368
Thomas, J., dissenting
To sum up, the correlation between questionnaire answers and the use of the graphic script is far stronger than any correlation with race. Sixteen veniremen clearly indicated on the questionnaires their feelings on the death penalty,11
and 15 of them did not receive the graphic script.12 Eight veniremen gave unclear answers and those eight veniremen got the graphic script.13 In other words, for 23 out of 24, or 96%, of the veniremen for whom questionnaire information is available, the answers given accurately predict whether they got the graphic script.14 Petitioner's theory that race determined whether a venireman got the graphic script produces a race-to-script correlation of only 74%—far worse.15
2
Petitioner fares no better with his allegation that the prosecution employed two different scripts on the basis of
ished [sic] anyone." However she then circled "no" in answering question 58, indicating that she did not have any objection to imposing the death penalty.
11 See VDR 1648 (Hinson), 625 (Nelson); Joint Lodging 12 (Bozeman), 20 (Fields), 28 (Warren), 36 (Rand), 125 (Mary Sumrow), 132 (Ronnie Long), 140 (Weiner), 148 (Mazza), 156 (Vivian Sztybel), 164 (Debra McDowell), 172 (Kevin Duke), 189 (Brenda Walsh), 197 (Filemon Zablan), 213 (Hearn).
12 Sztybel received the graphic script. VDR 2828.
13 Boggess, Kennedy, Baker, Mackey, Bailey, Keaton, Gutierrez, and Woods.
14 This analysis considers Hinson and Nelson as being clearly opposed to the death penalty in their questionnaires (answering question 56 "no" and question 58 "yes") and Kennedy as being ambiguous (though in fact he answered question 56 "yes" and 58 "no"). Even without these assumptions, 13 out of 15 veniremen who answered "yes" to question 56 and "no" to question 58—indicating clear support for the death penalty—did not receive the graphic script. And seven out of seven of those answering "no" and "no" or "yes" and "yes"—indicating ambiguous or mixed feelings about the death penalty—or not answering clearly at all received the graphic script. This yields an accuracy rate of 20 out of 22, or 91%.
15 For whites, 10 out of 12 did not get the graphic script. For blacks, 7 out of 11 did get the graphic script. This means race predicted use of the graphic script only 74% of the time.
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