Transcript of Proceedings Vol. 1

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Impact area
- Criminal Justice
Topic
- Capital Punishment
LDF Attorneys
Cooperating Attorney
- Robert Stroup
Notable Person
- Warren McCleskey
Organizations
- LDF
- Stroup & Coleman
Matter
- McCleskey v. Kemp
Case
- McCleskey v. Kemp – Georgia Northern District Court (No. C87-1517A)
U.S. state
- Georgia
Collection
- Case Files
Taxonomy
Identifier
- f3ec3bbf-62a7-ef11-8a69-6045bdd6d628

Cite this item

Case Files, McCleskey Legal Records. Transcript of Proceedings Vol. 1, 1987. f3ec3bbf-62a7-ef11-8a69-6045bdd6d628. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/08f3927d-563d-4182-adda-56bab1cf89fc/transcript-of-proceedings-vol-1. Accessed October 09, 2025.

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

«rv -— wm

WARREN MCCLESKEY, DOCKET NO. C87-1517A

PETITIONER, ATLANTA, GEORGIA

-VS- JULY 8, 1987

RALPH M. KEMP, SUPERINTENDENT.

GEORGIA DIAGNOSTIC AND
CLASSIFICATION CENTER.

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RESPONDENT. VOLUME 1

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE J. OWEN FORRESTER. UNITED STATES DISTRICT |

JUDGE. |

APPEARANCES OF COUNSEL:

FOR THE PETITIONER: ROBERT H. STROUP, ESQ. |

JOHN CHARLES BOGER. ESQ.

FOR THE RESPONDENT: MARY BETH WESTMORELAND, ESQ.

SYDNEY HUSEBY
OFFICIAL COURT REPORTER

U. S. COURTHOUSE
ROOM 23467, 75 SPRING STREET: S.W.

ATLANTA, GEORGIA 30303

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

WARREN MCCLESKEY, DOCKET NO. C27-1517A

PETITIONER, ATLANTA, GEORGIA

~-VS~- JULY 8, 1987

RALPH M. KEMP, SUPERINTENDENT.
GEORGIA DIAGNOSTIC AND
CLASSIFICATION CENTER:

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RESPONDENT.

VOLUME 1

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE J. OWEN FORRESTER. UNITED STATES DISTRICT |

JUDGE.

APPEARANCES OF COUNSEL:

FOR THE PETITIONER: ROBERT H. STROUP. ESQ.
JOHN CHARLES BOGER. ESQ.

FOR THE RESPONDENT: MARY BETH WESTMORELAND. ESG.

SYDNEY HUSEBY
OFFICIAL COURT REPORTER

U. S. COURTHOUSE
ROOM 2367, 75 SPRING STREET: S.W.

ATLANTA, GEORGIA 30303

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(ATLANTA, FULTON COUNTY. GEORGIA: JULY 8, 1987,

IN OPEN COURT.)

THE COURT: WERE HERE THIS MORNING ON A PETITION FOR A

WRIT OF HABEAS CORPUS IN THE CASE OF WARREN MCCLESKEY VERSUS

RALPH M. KEMP, SUPERINTENDENT. GEORGIA DIAGNOSTIC AND

CLASSIFICATION CENTER 28 U.S.C. 2254 PROCEEDING. I DON’T HAVE

THE CASE NUMBER YET. DELORES., 15 SOMETHING.

THE CLERK: ITS RIGHT HERE, 1517.

THE COURT: 13517, 87-1517. SOME ANNOUNCEMENTS: A DAY

OR S80 AGO THE PARTIES WERE IN CONTACT WITH THE COURT. AT THAT

TIME THE COURT ADVISED MR. STROUP THAT THE FIRST QUESTION THAT |

THE COURT WOULD HAVE OF MR. STROUP ON A SIDE ISSUE IS WHAT

EXCUSE HAS BEEN OFFERED ON BEHALF OF THE PETITIONER FOR NOT

EARLIER RAISING THE ISSUE. THE SECOND THING. SUPPOSING THAT

THE PETITIONER PREVAILED ON THE ABUSE OF THE WRIT ISSUE. WHAT

THE COURT WOULD SAY ON THE THE SIDE ISSUE IS CALL YOUR FIRST

WITNESS. PETITIONER HAD SEVERAL DAYS NOTICE THAT THIS WOULD BE

AN EVIDENTIARY HEARING IF WE GOT TO THAT. YESTERDAY MR. STROUF

CAME TO THE OFFICE OF THE COURT AND INDICATED THAT HE HAD NOT

SERVED ANY SUBPOENAS BUT HAD THEM READY. THE COURT CALLED THE

MARSHAL AND ASKED FOR THE MARSHALS ASSISTANCE IN LOCATING THE

WITNESSES.

APPARENTLY, SOME PROGRESS WAS MADE IN THAT RESPECT. THE

MARSHAL REPORTED TO ME THIS MORNING THAT HE HAD CONTACT WITH

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MR. RUSSELL PARKER OF MR. SLATON“S OFFICE WHO WAS TOTALLY

UNCOOPERATIVE. RUDE. ARROGANT. AND STATED THAT HE WOULD NOT

COOPERATE IN ANY FASHION UNLESS HE HAD A SUBPOENA IN HIS HAND.

OF COURSE. THE COURT CAN ACCOMODATE MR. PARKER. THE MARSHALS

OFFICE HAS MANAGED TO SERVE MR. SLATON WHO OTHERWISE WOULD NOT

APPARENTLY COME WITHOUT A SUBPOENA. THE MARSHALS OFFICE WAS

GIVEN THE ADDRESS OF OFFIE EVANS AS HIS SISTER’S. SHE STATED

TO THE MARSHALS SERVICE THAT THEY HAD NO IDEA OF HIS

WHEREABOUTS.

GRADY ESKEW HAS NOT BEEN EMPLOYED IN MR. SLATON’S OFFICE

FOR FIVE YEARS, AND THEY HAVE BEEN UNABLE AT THIS POINT TO
SERVE MR. PARKER BECAUSE HE IS ON TRIAL. MR. ROY MAYS OF THE |

CITY ATTORNEY’S OFFICE CALLED AND SAID THAT HE HAD BEEN SERVED |

WITH A SUBPOENA THIS MORNING TO PRODUCE THE INVESTIGATIVE FILE.

HE WILL APPEAR BUT THAT HE ONLY HAS A COPY OF THE FILE. AND |

HES NOT THE CUSTODIAN AND CAN‘T AUTHENTICATE IT. HE STATED
FURTHER THAT HE INTENDED TO MAKE AN ORAL MOTION TO QUASH THE |

SUBPOENA. THE COURT HAS BEEN GIVEN A COPY OF THE PETITION OVER

THE WEEKEND AND STUDIED IT AND YESTERDAY AFTERNOON RECEIVED A |

COPY OF THE ANSWER RESPONSE FROM THE STATE ATTORNEY GENERAL’S |

OFFICE ON BEHALF OF WARDEN KEMP. |

THE COURT HAS CONCLUDED THAT THE ISSUES THAT IT IS

INTERESTED IN ARE THE MASSIAH ISSUE, WHAT THE COURT WILL CALL

THE BRADY ISSUE. WHICH IS THE FAILURE TO TURN OVER THE PORTIONS

OF THE STATEMENT IN WHICH IT IS ALLEGED THAT MCCLESKEY SAID TO |

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EVANS THAT HE SHOT IN PANIC, AND THOSE ARE THE ONLY TWO ISSUES AT THE MOMENT. THE COURT UNDERSTANDS THAT, FROM THE

REPRESENTATIONS OF THE STATE, THAT THE RECORDS OF THIS COURT

WILL DEMONSTRATE THAT MR. TURNER, THE TRIAL COUNSEL. NEVER

SPECIFICALLY ASKED FOR A BALLISTICS EXPERT. AND, OF COURSE,

THERE CAN BE NO DEPRIVATION OF THE CONSTITUTIONAL RIGHT UNLESS

IT WAS EXERCISED. IF THAT IS FACTUALLY INCORRECT, I“LL BE GLAD

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TO HEAR FROM THE PETITIONER ON THE FACTS. |

LET ME ANNOUNCE ONE OTHER THING AT THE BEGINNING OF THIS

HEARING. LIKE THE PETITIONER. THE COURT HAD NOT SEEN THE |

WRITTEN STATEMENT OF OFFIE EVANS UNTIL IT WAS ATTACHED TO THE |

PETITION. THE COURT HAS READ THAT STATEMENT AND REALIZES THAT

COUNSEL FOR THE PETITIONER, IN THE EXERCISE OF GOOD TACTICAL

JUDGMENT, HAD TO TENDER THE PETITION AS A SWORD AS WELL AS A |

SHIELD. AFTER HAVING READ IT. THE COURT HAS CONCLUDED THAT |

NOBODY SHORT OF WILLIAM FAULKNER COULD HAVE CONTRIVED THAT |

STATEMENT, AND AS A CONSEQUENCE FINDS THE TESTIMONY OF OFFIE |

EVANS ABSOLUTELY TO BE TRUE, AND THE COURT STATES ON THE RECORD)

THAT IT ENTERTAINS ABSOLUTELY NO DOUBT AS TO THE GUILT OF MR. |

MCCLESKEY.

ALL RIGHT. MY FIRST QUESTION, I GUESS, OUGHT TO BE

ACTUALLY DIRECTED TO THE STATE. AND THAT IS YOU DQ CONTEND AS |

TO THE TWO ISSUES THAT I HAVE OUTLINED AS BEING MOST OF CONCERN

TO THE COURT THAT THE PETITION OUGHT TO BE DISMISSED FOR ABUSE |

OF THE WRIT: IS THAT RIGHT, MS. WESTMORELAND?

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MS. WESTMORELAND: YES, YOUR HONOR, THAT IS CORRECT.

THE COURT: ALL RIGHT. THE COURTS CONCERN IN THE

MASSIAH ISSUE IS THIS AND THE BRADY ISSUE IS THAT MASSIAH HAS

BEEN ON THE BOOKS LONG ENOUGH FOR ME TO HAVE STUDIED IT IN LAW

SCHOOL, AND IT WAS EMINENTLY CLEAR AT ALL RELEVANT TIMES PRIOR

TO THE TRIAL BUT CERTAINLY DURING THE TRIAL AND ABSOLUTELY

DURING THE FIRST HABEAS THAT OFFIE EVANS WAS A CELLMATE OF THE

PETITIONER, AND THAT WOULD ALWAYS RAISE THE POSSIBILITY OF A

MASSIAH ISSUE COUPLED WITH THE TESTIMONY THAT I UNDERSTAND

OCCURRED AT THE TRIAL TO THE EFFECT THAT AT LEAST ONE DEPUTY

STATED THAT EVANS CAME TO HIM WITH THE INFORMATION, SO THIS

WOULD INDICATE SOME LAW ENFORCEMENT INVOLVED.
I HAVE SOME REAL CONCERN WITH UNDERSTANDING WHAT EXCUSE |

CAN BE OFFERED FOR NOT HAVING PREVIOUSLY INRUIRED INTO WHEN, IF

AT ALL. MR. EVANS BECAME AN AGENT OF THE STATE. THE PROBLEM |

THAT I HAVE WITH THE ISSUE THAT I AM DENOMINATING THE BRADY |

ISSUE RELATIVE TO THE STATEMENT CONCERNING THE FACT THAT HE

PANICKED IS THIS: I DONT THINK IT GOES TO THE GUILT OR

INNOCENCE. IT IS AT LEAST ARGUABLY FAVORABLE TO THE SENTENCING

PHASE OF THE TRIAL. IN THAT I THINK I HAVE LEARNED THAT THAT |

WOULD BE A MITIGATING FACTOR. MY QUESTION TO YOU, MS. |

WESTMORELAND, IS WAS THERE DIRECT OR CIRCUMSTANTIAL EVIDENCE

DURING THE TRIAL WHICH WOULD HAVE LED THE JURY TO UNDERSTAND

THAT IT WAS A DECISION MADE AT THE INSTANT AS OPPOSED TO A

LAYING-IN-WAIT KILLING? I THINK I REMEMBER THE TESTIMONY, BUT |

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I AM NOT CERTAIN, SO IN THE FIRST INSTANCE YOU MAY WISH TO SAY

WHATEVER YOU WANT TO SAY ABOUT THE MASSIAH ISSUE.

I THINK THE BURDEN OF THAT FALLS, HOWEVER, ON THE

PETITIONER. THE BRADY ISSUE WORRIES ME A BIT MORE IN THAT IT

IS CLEAR THAT THEY DIDNT HAVE THE STATEMENT. AND I UNDERSTAND

FROM THEIR REPRESENTATIONS MANY, MANY, MANY, MANY REQUESTS WER

MADE FOR IT, AND I AM NOT AT THIS POINT SOLD ON YOUR OPEN

RECORDS ACT ARGUMENT. SO MY QUESTION IS. IF IT WAS ARGUABLY

FAVORABLE. IS IT NEVERTHELESS HARMLESS IN THAT THE JURY

UNDERSTOOD THAT THE SHOOTING COULD HAVE ONLY OCCURRED AS AN

INSTANTANEOUS DECISION AS OPPOSED TO A PLANNED LYING IN WAIT

KILLING. PROCEED.

MS. WESTMORELAND: YOUR HONOR, I MIGHT MAKE A COUPLE OF

POINTS. ONE. IN REFERENCE TO THE WITNESSES, TO BACK-SPACE JUST

BRIEFLY, MY LUNDERSTANDING IS MR. PARKER IS PLANNING ON BEING

HERE THIS MORNING AS WELL AS SOME DETECTIVES FROM FULTON

COUNTY, AND I BELIEVE CARTER HAMILTON IS ALSO PRESENT, WHO IS

ONE OF THE WITNESSES MENTIONED IN THE DEPOSITION LIST BY THE

PETITIONER.

THE COURT: ALL RIGHT. SIR.

MS. WESTMORELAND: WE, OF COURSE, REASSERT OUR OPEN

RECORDS ACT ARGUMENT THAT HAS BEEN MADE TO THE COURT. AND I

WOULD LIKE TO BRIEFLY POINT OUT A FEW FACTS THAT I THINK ARE

IMPORTANT IN REGARD TO THIS ISSUE. AS FAR AS THE STATEMENT OF

OFFIE EVANS ITSELF, OUR SUBMISSION HAS BEEN ALL ALONG THAT IT’S

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| BRIEF SUBMITTED TO THE COURT. THERE ARE REFERENCES ON DIRECT

WE NEED THE RECORDS AT THIS POINT.

CLEAR FROM THE RECORD IN THIS CASE THAT THERE WAS A STATEMENT.

COUNSEL CERTAINLY SHOULD HAVE KNOWN THERE WAS A STATEMENT MADE

BY MR. EVANS. THE RECCRD IS REPLETE WITH REFERENCES TO

STATEMENTS. AND I THINK THE CLEAR INDICATION IS THERE WAS SOME

SORT OF WRITTEN STATEMENT MADE. THE EVIDENCE PRESENTED, THE

TESTIMONY AT TRIAL, THE TESTIMONY OF THE STATE HABEAS

PROCEEDING. THOROUGHLY INDICATES THAT THERE WAS SUCH A

STATEMENT SOMEWHERE. THE COURT: MR. SLATON HAS CALLED TO SAY THAT IN

RESPONSE TO THE SUBPOENA SERVED ON HIM PERSONALLY. SOMEONE WAS

ON THEIR WAY BRINGING THE SUBPOENAED DOCUMENTS AND SHOULD RE |

HERE ABOUT 10:00 O“CLOCK. IF THE THE PETITIONER DECIDES TO

HAVE HIM HER PERSONALLY. IF YOU LET ME KNOW THAT, I‘LL HAVE

THAT COMMUNICATED BACK TO HIM. I DON‘T KNOW IF WE‘LL GET TO

THAT STAGE, BUT I WANT TO KNOW NOW IF YOU WANTED HIM HERE |

PERSONALLY.

MR. BOGER: YOUR HONOR, WE DON‘T NEED HIM PERSONALLY.

THE COURT: ALL RIGHT. GO AHEAD. MS. WESTMORELAND,

MS. WESTMORELAND: YOUR HONOR. AS WE“VE NOTED IN THE

APPEAL TO A WRITTEN STATEMENT OF EVANS. THE TESTIMONY AT THE STATE HABEAS CORPUS HEARING SHOWS THAT JOHN TURNER. TRIAL |

COUNSEL TESTIFIED THERE WERE TWO THINGS NOT DISCLOSED TQ HIM |

PRIOR TO TRIAL. ONE WAS GRAND JURY TESTIMONY. THE OTHER WAS R

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STATEMENT. AND AT THE TIME OF TRIAL HE DIDN‘T KNOW WHO MADE THE

STATEMENT. OBVIOUSLY. THAT WAS ONE OF THE REASONS IT WAS GIVEN

TO THE TRIAL COURT FOR AN IN-CAMERA INSPECTION.

THE TESTIMONY OF EVANS IN QUESTIONING BY MR. STROUP, THE

LINE OF GUESTIONING WAS DEVELOPING THE AGENCY CONCEPT. AND MR.

PARKER’S DEPOSITION SPECIFICALLY BEFORE THE STATE HABEAS CORPUS

COURT, WHICH WAS INCLUDED IN THE FIRST FEDERAL HABEAS

PROCEEDING AS RESPONSE TO EXHIBIT NO. é, THERE IS DISCUSSION

ABOUT THE FILE OF THE STATE BEING MADE AVAILABLE. WHAT WAS

REQUESTED AND WHAT WAS DISCUSSED WAS THE FILE THAT WAS MADE

AVAILABLE TO DEFENSE COUNSEL PRIOR TO TRIAL. THE QUESTIONING

CONSISTENTLY WAS ALONG THE LINES OF MR. STROUP WAS REQUESTING

THE FILE MADE AVAILABLE TO DEFENSE COUNSEL. MR. PARKER SAID, I

AM GIVING YOU THE FILE THAT WAS MADE AVAILABLE TO DEFENSE
COUNSEL PRIOR TO TRIAL. IN ESSENCE, THIS IS THE DISCOVERY |

FILE, |

SUBSEQUENT QUESTIONING REVEALED MR. PARKER SPECIFICALLY |

STATED THAT THERE HAD BEEN A STATEMENT OF OFFIE EVANS WHICH HAD

NOT BEEN INTRODUCED AT TRIAL THAT WAS PART OF THE IN-CAMERA |

INSPECTION THAT WAS MADE. MR. STROUP SAID HE WANTED THE RECORD

TO REFLECT THAT THE PARTIES AGREE THAT THEY WILL COPY THE

ENTIRE INVESTIGATIVE FILE MADE AVAILABLE TO COUNSEL. I THINK |

THAT A READING OF THIS DEPOSITION AND THE SUBSEQUENT TESTIMONY

MAKES IT CLEAR THAT WHAT WAS DELIVERED AT THAT TIME WAS THE

DISCOVERY FILE. IF YOU WILL, THE FILE THAT COUNSEL HAD ACCESS

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TO PRIOR TO TRIAL. IT WAS CLEAR THAT THERE WAS INFORMATION NOT

IN THAT FILE, BUT THAT WAS THE SUBJECT OF AN IN~CAMERA |

INSPECTION BY THE TRIAL COURT. INCLUDING SOME TYPE OF |

STATEMENT. OBVIOUSLY. RELATING TO THE TESTIMONY OF OFFIE EVANS

BECAUSE THATS EXACTLY WHAT MR. PARKER TESTIFIED TO. OUR

SUBMISSION IS HE CERTAINLY SHOULD HAVE KNOWN THERE WAS A

STATEMENT BY OFFIE EVANS. HAD IT BEEN REQUESTED AT THAT POINT

IN TIME, IT WOULD HAVE BEEN --
THE COURT: FOR THE PURPOSE OF THESE PROCEEDINGS. MS.

WESTMORELAND. I WILL FIND THAT YOU HAVE ESTABLISHED IN SPADES

THAT THEY KNEW THERE WAS A WRITTEN STATEMENT. THE QUESTION 1S

THE CONTENTS OF THE STATEMENT. |

MS. WESTMORELAND: YOUR HONOR. THAT WOULD BE QUR POINT,

THAT IF THEY KNEW THERE WAS A WRITTEN STATEMENT, CERTAINLY THEY

COULD HAVE MADE THE REQUEST AT THAT POINT IN TIME UNDER THE

OPEN RECORDS ACT TO OBTAIN IT. THE REQUEST WAS FOR THE

INVESTIGATIVE FILE. TO MY KNOWLEDGE, NO REQUEST WAS EVER MADE

FOR A POLICE DEPARTMENT FILE WHICH WAS AVAILABLE AT THAT TIME.

THE COURT: AT WHICH TIME, THE HABEAS? |

MS. WESTMORELAND: HABEAS, STATE HABEAS PROCEEDING.

THE COURT: STATE HABEAS ONE?

MS. WESTMORELAND: STATE HABEAS ONE, YES, YOUR HONOR.

TO MY KNOWLEDGE, THE FIRST TIME THAT THAT REQUEST HAS EVER BEEN

DIRECTLY MADE WAS MAY OR JUNE OF THIS YEAR UNDER THE OPEN

RECORDS ACT. THE OPEN RECORDS ACT HAS BEEN CLEAR, CERTAINLY,

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SINCE 1976. THE CLOSED RECORDS ARE SOMETHING THAT ARE

DISCOVERABLE UNDER THE OPEN RECORDS ACT, AND THE RECENT SUPREME

COURT CASE OF THE STATE OF GEORGIA HAS DEALT WITH WHETHER THERE

WAS AN EXCEPTION TO THAT OPEN RECORDS ACT FOR CASES PENDING ON

COLLATERAL REVIEW, NOT AS TO WHETHER THAT ACT HAS EVER —— THE

ACT HAS NEVER SPECIFICALLY EXEMPTED THOSE RECORDS BUT, RATHER,

THE CITY ATTORNEY S OFFICE WAS TRYING TO ESTABLISH AN EXCEPTION

TO THE ACT, WHICH THE GEORGIA SUPREME COURT DID NOT ALLOW AT

THAT TIME. IT“S NOT NEW LAW IN THIS STATE BY ANY STRETCH OF

THE IMAGINATION. IT CERTAINLY COULD HAVE BEEN MADE AVAILABLE.

COULD HAVE BEEN DISCOVERABLE.

THE COURT: WELL, ACCORDING TO MR. BOGER”S BRIEF,

VARIOUS AND SUNDRY COUNSEL FOR MR. MCCLESKEY HAVE MADE A NUMBER

OF REQUESTS FOR THE STATEMENT. DO I UNDERSTAND YOUR

REPRESENTATION CORRECTLY?

MR. BOGER: WE DIDN'T KNOW THERE WAS A WRITTEN

STATEMENT. WE REQUESTED ALL STATEMENTS OF THAT SORT AT

PRETRIAL. DURING TRIAL. AND AT OTHER POINTS.

THE COURT: DURING THE HABEAS AND AT HABEAS?

MR. BOGER: AT HABEAS CORPUS, MR. STROUP ATTENDED A
DEPOSITION OF RUSSELL PARKER AND BELIEVED AT THAT TIME THAT HE |

HAD GOTTEN ALL THE DOCUMENTS AND THE PROSECUTORS —-- ALL THE |

STATEMENTS IN THE PROSECUTOR‘S FILE.

THE COURT: WAS THERE A REQUEST MADE AFTER THE AFPEAL.,
THE FIRST APPEAL, FOR THE STATE FOR ANY WRITTEN STATEMENT OF

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| PARKER. MR. PARKER BROUGHT TO THAT DEPOSITION A FILE. MR.

| STROUP. PERHAPS. CAN —-—- THERE WAS NO FORMAL SUBPOENA FOR THE

ANY SORT?

MR. BOGERt THERE WAS A DEPOSITION DIRECTED OF MR.

FILE. SIMPLY BECAUSE HE HAD BEEN SUBPOENAED TQ THE STATE HABEAS

HEARING. AND HE WAS UNABLE TO ATTEND. AND MR. STROUP |

REPRESENTED TO THE COURT IN THE STATE HABEAS HEARING, THIS IS A

PROBLEM, BECAUSE HE WAS ASKED TO BRING HIS FILE. AND I NOT ONLY

| NEED IT TO EXAMINE HIM ON ANY KINDS OF CLAIMS THAT MAY RELATE

| TO RELATIONSHIPS WITH MR. EVANS, I NEED IT ON AN INEFFECTIVE

| ASSISTANCE CLAIM TO SHOW WHAT WAS IN THE FILE AND WHAT THE

| DEFENSE COUNSEL DIDN‘T USE. $0 THE CLEAR CONTEMPLATION ON THE

| RECORD OF THE STATE HABEAS HEARING, THE INITIAL STATE HABEAS

HEARING, WAS THAT THAT FILE WOULD BE BROUGHT WITH MR. PARKER. |

MR. PARKER DIDN‘T ATTEND THE HEARING. HE WAS IN COURT AT THAT

TIME, AND SO A DEPOSITION WAS SCHEDULED. HE BROUGHT HIS FILE

TO THE -- TO THE DEPOSITION.

THE COURT: ALL RIGHT. THANK YOU. GO AHEAD.

MS. WESTMORELAND: AND. YOUR HONOR. THAT IS PRECISELY

| OUR POINT, WHAT HE BROUGHT TO THE DEPOSITION WAS THE FILE MADE

AVAILABLE TO TRIAL COUNSEL. NOT A REPRESENTATION THAT IT ALSO

INCLUDED THE MATTER WHICH HAD BEEN CONDUCTED —-- EXAMINED BY THE

TRIAL COURT IN CAMERA. THERE WAS NEVER A REPRESENTATION BY MR.

PARKER THAT THAT WAS INCLUDED IN THAT FILE. IT WAS CLEARLY

STATED THROUGHOUT THE DEPOSITION. HERE IS THE FILE MADE

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AVAILABLE TO TRIAL COUNSEL. ONCE AGAIN MR. PARKER STATED THERE

WAS A STATEMENT OF OFFIE EVANS. IT WAS PART OF THE IN-CAMERA

INSPECTION. A SIMPLE COMPARISON QF THE TWO SHOWS THAT THE

STATEMENT QF OFFIE EVANS WAS NOT IN THE FILE PRODUCED AT THAT

STATE HABEAS DEPOSITION. AND I THINK ITS FAIRLY CLEAR THAT IF

IT WAS PART OF THE IN-CAMERA INSPECTION. IT WAS NOT GOING TO BE

IN THE FILE THAT WAS MADE AVAILABLE TQ TRIAL COUNSEL PRIOR TO

TRIAL.

ITS CERTAINLY SOMETHING THAT COUNSEL SHOULD HAVE MADE A

SPECIFIC REQUEST FOR. REALIZING THAT THE INVESTIGATIVE FILE

MADE AVAILABLE TO COUNSEL WAS NOT GOING TO CONTAIN THE MATTER

WHICH WAS PRESENTED TO THE TRIAL COURT FOR AN IN-CAMERA

INSPECTION. NOW. AS TO —--— THE COURT HAS ASKED QUESTIONS

CONCERNING THE ACTUAL FACTS OF THE TRIAL OF THE CASE AND WHAT

WAS PRESENTED AT THE TRIAL: I THINK THE EVIDENCE THAT WAS

PRESENTED, AS THERE WAS ACTUALLY NO EYEWITNESS TO THE KILLING,

CERTAINLY THE JURY HAD TO DRAW INFERENCES FROM WHAT WAS

PRESENTED AT THE TRIAL. THE ARGUMENT WAS MADE THAT. AS THERE

WERE TWO SHOTS FIRED. IT WAS CERTAINLY INTENTIONAL AND

MALICIOUS KILLINGS ONE TO THE HEAD AND ONE TO THE CHEST WHICH

ACTUALLY HIT THE POCKET OF THE FOLICE OFFICER.

THE ARGUMENT WAS MADE BY THE PROSECUTOR THAT THE SECOND

SHOT WAS FIRED AFTER —- THE SECOND SHOT TO THE CHEST WAS

ACTUALLY FIRED WHEN THE OFFICER WAS IN A PRONE POSITION, BASED

ON THE ANGLE OF RICOCHET OF THE BULLET BEING FOUND IN THE

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COUCH. THIS TYPE OF ARGUMENT WAS PRESENTED. THERE WAS THE

TESTIMONY OF OFFIE EVANS OFFERED IN REBUTTAL. BEN WRIGHT, I

BELIEVE. TESTIFIED SIMPLY THAT MCCLESKEY SAID HE SHOT A COP

WHEN HE CAME BACK OUT. OTHER THAN THAT TYPE OF TESTIMONY. THE

JURY WAS DRAWING INFERENCES FROM THE EVIDENCE.

WE WOULD POINT OUT TO THE COURT THAT WHEN MR. EVANS

TESTIFIED AT TRIAL. IT WAS IN REBUTTAL. PETITIONER HIMSELF HAD

ALREADY TESTIFIED DENYING BEING PRESENT AT ALL AND DENYING

HAVING ANY CONVERSATIONS IN THE JAIL OF AN INCRIMINATORY NATURE. MR. HAMILTON TESTIFIED FROM THE TRIAL -— FROM THE

JAIL, HE WAS THE JAILER WHO TESTIFIED AS TO THE WHEREABOUTS OF

OFFIE EVANS. OFFIE EVANS THEN TESTIFIED. THE STATE CALLED

ANOTHER WITNESS AND AN OBJECTION WAS MADE BY MR. TURNER,

DEFENSE COUNSEL. AT THAT POINT. THE TRIAL COURT GAVE A |

SPECIFIC INSTRUCTION THAT THE TESTIMONY BEING PRESENTED AT THIS

STAGE, INCLUDING ALL TESTIMONY PRESENTED AFTER MR. MCCLESKEY |

TESTIFIED, WAS SOLELY FOR IMPEACHMENT PURPQSES ONLYS IT WAS 0

BE USED BY THE JURY FOR NO OTHER REASON EXCEPT TO IMPEACH THE |

TESTIMONY OR THE EVIDENCE PRESENTED BY THE DEFENSE, NOT

ACTUALLY SUBSTANTIVE EVIDENCE, IF YOU WILL. TO MY

RECOLLECTION. THATS WHATS IN THE TRANSCRIPT RELATING TO HOW

THE SHOTS TOOK PLACE. AS YOU RECALL THE TESTIMONY OF OFFIE |

EVANS WAS, MCCLESKEY SAID IT WAS. I BELIEVE, HIM OR ME. AND Ir

THERE HAD BEEN A DOZEN. I WOULD HAVE SHOT MY WAY OUT. THATS |

THE TESTIMONY.

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THE COURT: ALL RIGHT. NOW, TELL ME THAT AGAIN.

MS. WESTMORELAND: MR. EVANS“ TESTIMONY, MY RECOLLECTION

AT TRIAL. IS TO THE EFFECT THAT VARIOUS STATEMENTS WERE MADE

INCLUDING TO THE EFFECT THAT IF THERE HAD BEEN A DOZEN COPS

THERE. I WOULD HAVE SHOT MY WAY OUT.

THE COURT: WELL, THE HIM OR ME PART YOU LEFT QUT THE

SECOND TIME. IS THAT IN THERE OR NOT,

MS. WESTMORELAND: IM TRYING TO RECALL EXACTLY HOW

THATS PHRASED. I KNOW THATS IN THE STATEMENT, AND I THINK

THERE IS SOME INDICATION OF THAT IN THE TRIAL TRANSCRIPT. BUT

MY MEMORY IS NOT A HUNDRED PERCENT CERTAIN ON THAT AT THIS

POINT. AND I WOULD HATE TO MISREPRESENT THE FACTS TO THE COURT

ON THAT POINT.

THE COURT: ALL RIGHT.

MS. WESTMORELAND: HE DID TESTIFY AS TO OTHER

CONVERSATIONS THAT HE OVERHEARD IN THE JAIL, I BELIEVE,

CONCERNING BEN WRIGHT AND HIS PARTICIPATION OR LACK OF

PARTICIPATION IN THE INCIDENT. THAT'S MY RECOLLECTION OF THE

FACTS RELATING TQ THE ACTUAL SHOOTING ITSELF THAT TOOK PLACE AT

TRIAL. THAT ANSWERS THE TRIAL —-- THE COURTS QUESTION.

THE COURT: DOES THE STATE CONTEND THAT THE SHOQTING OF

ANOTHER IN PANIC IS ANYTHING OTHER THAN A MITIGATING

CIRCUMSTANCE FOR THE PURPOSES OF DECIDING WHAT PENALTY TO

IMPOSE?

MS. WESTMORELAND: YOUR HONOR, WHEN THERE IS A SECOND

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SHOT FIRED WHILE THE VICTIM IS LYING ON THE FLOOR AND THE FIRST

SHOT HAS OBVIOUSLY BEEN TO THE HEAD AND THE VICTIM IS DEAD, I

DON’T SEE HOW CLAIMING THAT A SHOT WAS FIRED IN PANIC IS

MITIGATING IN ANY FASHION. THE COURT: NOW, TELL ME THAT AGAIN. THE FIRST SHOT

ENTERED THE HEAD AND THE SECOND SHOT THE CHEST?

MS. WESTMORELAND: THE SECOND SHOT ENTERED THE CHEST.

THATS THE ARGUMENT OF THE PROSECUTOR WERE THE INFERENCES FROM

THE EVIDENCE PRESENTED AT TRIAL. SECOND THERE WAS A BULLET I

BELIEVE LODGED IN A SOFA. THE ARGUMENT WAS MR. MCCLESKEY HAD

HIDDEN BEHIND THE SOFA WHEN THE OFFICER CAME IN AND THAT THE |

FIRST SHOT HIT HIM, I BELIEVE, IN THE EYE. I“M NOT CERTAIN, HIT

HIM IN THE HEAD, AND THE SECOND SHOT HIT A CIGARETTE LIGHTER IN

HIS POCKET AND RICOCHETED AND FROM THE ANGLE OF THE RICOCHET. |

THE VICTIM WOULD HAVE HAD TO BE LOWER THAN THE PERSON,

RICOCHETED INTO THE SOFA ITSELF.

THE COURT: RICOCHETED DOWN.

MS. WESTMORELAND: YES, YOUR HONOR, THATS CORRECT. SO

OUR POSITION IS, WHEN YOU‘VE GOT A QUESTION WHERE. IT’S NOT A |

QUESTION OF RAISING A GUN AND FIRING A SHOT. WE‘RE TALKING

ABOUT FIRING A SHOT AND THEN POINTING THE WEAPON AND FIRING IT,

AND I BELIEVE THAT WAS THE ARGUMENT MADE BY THE PROSECUTOR.

AND THE CIGARETTE LIGHTER WAS IN THE POCKET AND I BELIEVE WAS

DIRECTLY OVER THE HEART, IF I AM NOT MISTAKEN ABOUT THE

CIRCUMSTANCES. AND I THINK ITS PARTICULARLY PERTINENT IN A

CASE IN WHICH THE THE DEFENSE RAISED IS ONE OF ALIBI, NOT A

DEFENSE OF LESSER CULPABILITY OR I“M NOT THE PERSON WHO FULLED i
|

THE TRIGGER OR I WAS IN A DIFFERENT ROOM OR I WAS PANICKED. |

MR. MCCLESKEY CONSISTENTLY SAID I WASNT EVEN THERE. I NEVER |

TOOK PART IN THIS ARMED ROBBERY. ASIDE FROM HIS CONFESSION.

HIS TESTIMONY AT TRIAL WAS I WASN’T THERE AT ALL. I DIDNT

HAVE ANYTHING TO DO WITH IT.

THE COURT: IT‘S YOUR REPRESENTATION TO THE COURT THAT

THERE IS NO EVIDENCE OR ARGUMENT OF COUNSEL THAT MR. MCCLESKEY

WAS ACTUALLY LAYING IN WAIT OR LOOKOUT OR THAT SORT OF THING?

MS. WESTMORELAND: YOUR HONOR. I THINK THE ARGUMENT BY

THE PROSECUTOR WAS THAT I BELIEVE HE WAS HIDING BEHIND THE SOFA

OR SOMETHING TO THAT EFFECT, LAYING —— HE WAS IN THE FRONT OF

THE STORE WHEN THE POLICE CAME, HID BEHIND THE SOFA AND WHEN

THE POLICEMAN CAME BY SHOT HIM AT THAT POINT IN TIME. THATS

MY RECOLLECTION OF TRIAL COUNSEL‘S ARGUMENT. I HAVE NOT

REVIEWED IT THAT CLOSELY RECENTLY.

THE COURT: DO WE HAVE THE RECORD OF THE TRIAL AS A PART

OF THE RECORD IN THIS CASE?

MS. WESTMORELAND: IT“S A PART OF THE RECORD IN THE

FIRST FEDERAL HABEAS CORPUS ACTION. WHICH WE WOULD ASK THE

COURT TO TAKE JUDICIAL NOTICE OF FOR PURPOSES OF THIS

PROCEEDING. MY UNDERSTANDING IS IT IS BACK —-

THE COURT: THATS MY QUESTION, IS IT BACK?

ME. WESTMORELAND: I CALLED THE ELEVENTH CIRCUIT COURT

. HERE.

OF APPEALS TWO DAYS -- I BELIEVE YESTERDAY. THEIR INDICATION

FROM THEIR RECORDS WAS IT HAD BEEN RETURNED TO THEIR COURT. AND

THEY HAD RETURNED IT TO THIS COURT. AS FAR AS I KNOW IT IS

THE COURT: ALL RIGHT.

MS. WESTMORELAND: LIKE I SAID, WE WOULD ASK THE COURT

TO TAKE JUDICIAL NOTICE OF THAT RATHER THAN -- WHICH IS WHY WE

HAVE NOT DUPLICATED THE ENTIRE TRIAL TRANSCRIPT. THE COURT: THATS AGREEABLE WITH ME. IF THE PETITIONER |

HAS NO OBJECTION. ALL RIGHT. ANYTHING ELSE YOU WANT TO SAY AT

THIS POINT? |

MS. WESTMORELAND! NOT AT THIS POINT, YOUR HONOR.

THE COURT: ALL RIGHT, MR. BOGER. |

MR. BOGER: MAY IT PLEASE THE COURT, FIRST, ON THE |

QUESTION OF ABUSE OF THE WRIT WITH RESPECT TO THE MASSIAH, |

HENRY. BRADY CLAIMS, WE HAVE THIS MORNING AFFIDAVITS THAT WE

PLAN TO SUBMIT IN RESPONSE TO YOUR HONORS INDICATION THAT YOU

ARE INTERESTED —- YOUR INDICATION TO MR. STROUP THAT YOU ARE

INTERESTED IN THAT ISSUE WHICH I WOULD LIKE TO SUBMIT TO THE

COURT NOW. THEY ARE FROM MYSELF AND FROM MR. STROUP, FROM TWO

ASSISTANTS WHO HELPED US IN TRYING TO LOCATE MR. EVANS HIMSELF.

IF I —— IF THE COURT PLEASE, I/D LIKE TO SUBMIT THEM AS |

PETITIONER’S 1 THROUGH 4. |

THE COURT: WELL, WE’RE HERE FOR AN EVIDENTIARY HEARING |

AND IF MRS. WESTMORELAND HAS NO OBJECTION TO YQUR SUBMITTING AN

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AFFIDAVIT I WON‘T INSIST ON IT, BUT IF SHE WISHES TO EXAMINE OR

CROSS-EXAMINE THEN WELL DO IT LIVE.

MS. WESTMORELAND: YOUR HONOR, SINCE I HAVEN’T SEEN THE

AFFIDAVITS I WOULD PREFER LIVE TESTIMONY AT THIS TIME BEFORE

THE COURT.

THE COURT: ALL RIGHT. DO YOU WANT ME TO RECESS WHILE

YOU READ THEM?

MS. WESTMORELAND: I WOULD APPRECIATE THE OPPORTUNITY TO

DO SO, CERTAINLY, YOUR HONOR.

THE COURT: ALL RIGHT. READ FAST BUT I WILL BE IN

RECESS UNTIL YOU COME AND TELL ME THAT YOU HAVE READ THEM.

(WHEREUPON, A BRIEF RECESS WAS HAD.)

MS. WESTMORELAND! YOUR HONOR, IF I MIGHT BEFORE WE

RESUME, THERE’S ONE MATTER OF HOUSEKEEPING DETAIL I WANTED TO

TAKE UP AT THE BEGINNING. WE ARRANGED TO HAVE MR. MCCLESKEY

HERE TELEPHONICALLY YESTERDAY AFTERNOON. THE DEPARTMENT

REQUESTED THAT WE OBTAIN IT IN WRITING FOR THE RECORD.

THE COURT: HAVING BEEN CRITICAL OF ONE STATE OFFICE,

WAS GOING TO COMPLIMENT THE STATE ON BRINGING MR. MCCLESKEY

THOUGH THEY DID NOT HAVE A WRIT.

THE CLERK: DO YOU NEED THE ORIGINAL?

MS. WESTMORELAND! WE JUST NEED A COPY TO GIVE TO THE

OFFICIALS. |

THE CLERK: OKAY. LET ME —-

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AFFIDAVITS, IN LOOKING AT ALL FOUR OF THEM, AS TO THE

| THEIR EVIDENCE IN THE CASE. I HAVE NO PROBLEM WITH THAT

METHODOLOGY IN PRESENTING THEIR TESTIMONY IN THAT -—-
EVIDENCE. I WILL TELL YOU. MR. BOGER. THAT I READ THEM OVER

' THE RECESS, AND IT DOESN‘T ANSWER THE QUESTION ON THE MASSIAH

MS. WESTMORELAND: THAT WILL BE FINE.

THE COURT: ALL RIGHT. YOUR POSITION ON THE AFFIDAVITS?

MS. WESTMORELAND: YOUR HONOR, OUR POSITION ON THE

AFFIDAVITS OF MR. BELT AND STEVENSON, QUR SUBMISSION IS THAT

THEY ARE JUST SIMPLY IRRELEVANT AND THEY RELATE TO ATTEMPTS TO

OBTAIN MR. EVANS‘ TESTIMONY IN 1987 AND CERTAINLY HAVE NOTHING

TO DO WITH THE QUESTION OF ABUSE AT THIS STAGE OF THE

PROCEEDINGS.

THE COURT: I CERTAINLY AGREE WITH THAT DECISION.

MS. WESTMORELAND: AS TO THE AFFIDAVITS OF MR. STROUP

AND MR. BOGER, WE DON‘T CONCEDE THAT ANYTHING IN THEM IS

NECESSARILY ACCURATE. IF THIS IS HOW THEY WANT TO PRESENT

THE COURT: MR. STROUP?

MS. WESTMORELAND: NO, YOUR HONOR.

THE COURT: ALL RIGHT. THEY WILL BE RECEIVED IN
ISSUE. YOU AND MS. WESTMORELAND BOTH, I KNOW YOU BOTH SO WELL

I LAPSE INTO THESE FAMILIAR COMMENTS, CONCEDING THAT YOU DIDNT

HAVE A STATEMENT AND CONCEDING THAT YOU ASKED FOR IT A BUNCH oF

TIMES AND IT WASN‘T GIVEN TO YOU. YOU DID KNOW A COUPLE OF |

THINGS, ONE, THAT OFFIE EVANS WAS A CELLMATE OF MCCLESKEY AND, |

TWa, THAT HE WAS COOPERATING WITH LAW ENFORCEMENT. MY FIRST

REACTION IS THAT THAT WOULD PUT ANY COUNSEL ON NOTICE TO

INQUIRE AS TO WHEN THAT COOPERATION BEGAN WITHOUT REFERENCE TO

THE STATEMENT.

I UNDERSTAND THAT YOU CONTEND THAT THE MEETING OF THE

DISTRICT ATTORNEY AND THE POLICE AND THAT SORT OF THING IN THE |

STATEMENT GAVE YOU AN ADDITIONAL REASON TO BE SUSPICIOUS. AND I

HAVE READ THAT AND I APPRECIATE THAT. BUT THATS NOT THE

QUESTION I“M ASKING. IF YOU’RE DOING THE LEGAL DEFENSE FUNDS“

USUAL THOROUGH JOB AND IF YOU ARE HANDLING THE CASE IN THE WAY

THAT MR. TURNER IS KNOWN BY THIS COURT TO HANDLE HIS CASES, IT

SEEMS TO ME THAT AT SOME POINT IN TIME, IT WOULD OCCUR TO YOU,

ONE OF THE THREE OF YOU. TO ASK RUSSELL PARKER OR ANY POLICE

OFFICER THAT YOU‘VE HAD ON THE STAND OR OFFIE EVANS WHOM YOU

HAVE HAD BEFORE JUST WHEN IT WAS THAT HE STARTED COOPERATING.

IT MAY BE THAT SOME OF THE STATEMENTS UNDER THE CASE -- UNDER

THE CIRCUMSTANCES MOST FAVORABLE TO THE STATE. AS THE RECORD

NOW EXISTS, IT MAY BE THAT SOME OF THE STATEMENTS WOULD HAVE

BEEN EXCLUDED AFTER THE TIME HE WENT TO THE DEPUTY SHERIFF AND |

PROFFERED THE EVIDENCE, S80 I“M REALLY JUST AT A LOSS TO SEE |

WHAT EXCUSE THERE WOULD BE FOR NOT LOOKING INTO THAT EARLIER.

MR. BOGER: YOUR HONOR, I THINK I WILL CALL MR. STROUP |

BECAUSE WE CAN ADDRESS THAT QUESTION. NOT EXCLUSIVELY THROUGH

HIS TESTIMONY. WE HAVE SOME OTHER DOCUMENTS THAT WE’D LIKE TO

SUBMIT TO THE COURT BUT HIS TESTIMONY ON THIS POINT MIGHT BE

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HELPFUL. LET ME. IF I COULD, BEFORE I CALL HIM TO THE STAND,

SIMPLY SUBMIT TO THE COURT MY AFFIDAVIT WITHOUT THE STATES

OBJECTION AS PETITIONERS 1 IN THIS PROCEEDING AND --

THE COURT: YOURS AND MR. STROUP‘S WILL BE RECEIVED AS

MAY BECOME RELEVANT BUT THEY ARE NOT RELEVANT TO THIS ISSUE.

MR. BOGER: THANK YOU, YOUR HONOR. BEFORE I CALL MR.

STROUP TO THE STAND, I WOULD WISH TO INVOKE THE RULE. YOUR

HONOR. THE -- IT SEEMS TO ME THAT WHAT WE HAVE ALLEGED HERE

MAY INVOLVE SOME. PERHAPS EVEN MANY OF THE STATE AND CITY AND

EVEN PERHAPS FEDERAL OFFICIALS WHO ARE UNDER SUBPOENA. WE

DON‘T KNOW ALL OF WHO HAS RESPONDED TO THE SUBPOENA THIS

MORNING. YOUR HONOR MADE SOME RECITATION, WE‘VE SERVED

TO PUT UNDER SUBPOENA.

THE COURT: ALL RIGHT. CALL THE ONE -- CALL YOUR LIST

OF WITNESSES, THEN ILL ASK THE STATE TO DO LIKEWISE.

MR. BOGER: JUST A MINUTE. YOUR HONOR. WE SUBPOENAED

ROY MAYS FROM THE CITY ATTORNEYS OFFICE. ATLANTA CITY

JR., OF THE ATLANTA BUREAU OF POLICE SERVICES. WE SUBPOENAED

DETECTIVE W. K. JOWERS OF THE ATLANTA BUREAU OF POLICE

SERVICES. WE‘VE SUBPOENAED DETECTIVE SIDNEY DORSEY OF THE

ONE AND TWO. THE OTHER TWD ARE IRRELEVANT TO THIS ISSUE. THEY

ADDITIONAL SUBPOENAS AS WELL. IF I COULD GIVE YOU A SENSE FOR

THE PEOPLE WE‘VE TRIED. IN COMPLIANCE WITH YOUR HONOR”S NOTICE,

ATTORNEY’S OFFICE. WE‘VE SUBPOENAED DETECTIVE WELCOME HARRIS,

ATLANTA BUREAU OF POLICE SERVICES. WE SUBPOENAED OR ATTEMPTED

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TO SUBPOENA GRADY ESKEW. I MEAN, YOUR HONOR HAS REPORTED THAT

SOME OF THESE HAVE BEEN --

THE COURT: THE REPORT I HAVE IS THAT HE HASN‘T BEEN

WITH THE DISTRICT ATTORNEY‘S OFFICE FOR FIVE YEARS AND.

THEREFORE, I CONCLUDE THAT HE WAS NOT SERVED.

MR. BOGER: I THINK THAT’S RIGHT. YOUR HONOR. WE

SUBPOENAED RUSSELL PARKER. WE SOUGHT TO SUBPOENA OFFIE GENE

EVANS. THAT WAS RETURNED UNSERVED. I MIGHT ADD, YOUR HONOR,

WE THINK HES A CRITICAL WITNESS AND I THINK WILL APPLY TO THE

COURT FOR A BENCH WARRANT. I UNDERSTAND THAT HE“S A FUGITIVE

FROM PROBATION IN ATLANTA. HES SUPPOSED TO BEGIN REPORTING TQ

THE ATLANTA PROBATION AUTHORITIES IN EARLY MAY. WE THINK HE’S

A MATERIAL WITNESS IN THIS PROCEEDING, AND WE“RE GOING TO. I

BELIEVE, ASK YOUR HONOR AT THE APPROPRIATE MOMENT FOR A BENCH

WARRANT TO SECURE HIS PRESENCE BEFORE THIS CQURT.

THE COURT: WELL. WE HAVEN‘T GOTTEN TO THE POINT OF

DECIDING WHETHER WERE GOING TO HAVE AN EVIDENTIARY HEARING.

BUT BEYOND THAT PROBLEM. THE NEXT PROBLEM IS THAT I AM UNDER

THE IMPRESSION AND PERHAPS MISTAKENLY THAT THE RULES DON’T

APPLY -— THE RULES DO NOT PROVIDE FOR A MATERIAL WITNESS

WARRANT EXCEPT IN CRIMINAL CASES. IF YOU CAN CONVINCE ME

OTHERWISE THEN. IF WE GET TO THAT POINT, I WILL CONSIDER

HONORING YOUR REQUEST.

MR. BOGER! I REALIZE —-

THE COURT: HMM?

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| REDDING OF THE ATLANTA BUREAU OF POLICE SERVICES OR SOMEONE

MR. BOGER: EXCUSE ME, YOUR HONOR. I REALIZED WE

WEREN‘T AT THAT POINT YET, WHICH IS WHY I WAS SPEAKING

PROSPECTIVELY.
THE COURT: I JUST WANT YOU TO KNOW THAT I HAVE SOME

RESERVATION ABOUT MY POWER TO DO SO.

“MR. BOGER: ALL RIGHT. YOUR HONOR. WE SUBPOENAED CHIEF

ELSE WITH KNOWLEDGE OF THE RECORDS OF THAT DEPARTMENT. WE‘VE

SUBPOENAED THE U.S. MARSHAL SERVICE FOR ANY DOCUMENTS THEY MAY |

HAVE RESPECTING OFFIE EVANS WHEN HE WAS IN FEDERAL CUSTODY IN |

1978. WE SUBPOENAED THE FEDERAL BUREAU OF INVESTIGATION

THROUGH ITS HEAD HERE IN ATLANTA OR ANY DESIGNATE WITH RECORDS |

OF OFFIE EVANS INVESTIGATIONS IN 1978 AND RELATED MATTERS. WE

| SUBPOENAED THE U.S. ATTORNEYS OFFICE. SIMILARLY. ASKING FOR ANY

| DOCUMENTS THEY MAY HAVE ABOUT OFFIE EVANS” CUSTODY AND

INCARCERATION AND THE CHARGES THAT WERE PENDING AGAINST HIM IN

1978,

WE SUBPOENAED. AND I BELIEVE YOUR HONOR PERHAPS HAS

MENTIONED THIS, THE FULTON COUNTY SHERIFFS DEPARTMENT FOR

DEPUTIES OR OTHER OTHERS AT THE JAIL WITH KNOWLEDGE OF THE

CUSTODY OF MR. EVANS THERE IN 1978 AND I BELIEVE A SEPARATE

- SUBPOENA FOR SOMEONE WITH KNOWLEDGE OF THE PRACTICES OF -- OF

| CUSTODIAL CARE. WHO WAS PUT WHERE AND UNDER WHAT CIRCUMSTANCES.

I‘M SORRY. THOSE SUBPOENAS HAVE NOT BEEN SERVED. WE‘VE BEEN IN

TOUCH WITH COUNSEL FOR THE SHERIFFS OFFICE AND HAVE TOLD THEM

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WHAT WE“RE INTERESTED IN AND ATTEMPTING AT THIS POINT TO SERVE

IT. I‘M TRYING TO MAKE SURE WE DON’T LEAVE ANYBODY OUT WHO MAY

HAVE BEEN CONTACTED AND SHOWN UP ALREADY THIS MORNING. |

AND WE SUBPOENAED THE WARDEN OF THE ATLANTA PENITENTIARY,

FOR RECORDS THAT HE COULD BRING OR A DESIGNATE COULD BRING

RELATED TO MR. EVANS‘ FEDERAL CUSTODY IN 1978. I BELIEVE

THATS IT, YOUR HONCR.

THE COURT: MS. WESTMORELAND?

MS. WESTMORELAND: YOUR HONOR. IN ADDITION TO THOSE. THE

ONLY OTHER SPECIFIC NAME WE WOULD HAVE WOULD BE CARTER HAMILTON

WHO WAS EMPLOYED AT THE FULTON COUNTY JAIL AND TESTIFIED AT

TRIAL. MR. HAMILTON IS HERE THIS MORNING.

THE COURT: LADIES AND GENTLEMEN, ANY OF THOSE OF YOU WHO ARE PRESENT WHO BY NAME OR BY DESIGNATION HAVE BEEN |

MENTIONED BY EITHER COUNSEL, IF YOU WOULD RETIRE QUTSIDE OF THE

COURTROOM. DO NOT DISCUSS YOUR TESTIMONY AMONG YOURSELVES OR |

WITH ANYONE EXCEPT COUNSEL FOR EITHER OF THEM. HOLD ON JUST a

MINUTE AND REMAIN IN ATTENDANCE UNTIL YOU ARE CALLED BACK. TW

MORE PEOPLE HAVE JUST COME IN, IF EITHER ONE OF YOU ARE UNDER |

SUBPOENA FOR THIS PROCEEDING, THE RULE HAS BEEN INVOKED AND I |

MUST ASK YOU TO RETIRE OUTSIDE, REMAIN IN ATTENDANCE. AND DON’T

COME BACK IN UNTIL YOU ARE REQUESTED TO DO 80. YOU MAY DISCUSS

YOUR TESTIMONY ONLY WITH COUNSEL. |

COUNSEL, I WILL EXPECT BEYOND THAT THAT YOU INSTRUCT

YOUR WITNESSES AS TO THE THE INVOCATION OF THE RULE.

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MS. WESTMORELAND: YOUR HONOR, I WOULD NOTE, I BELIEVE

THE TWO PEOPLE YOU ARE REFERRING TO WHO JUST CAME IN ARE

EMPLOYEES OF THE DEPARTMENT OF CORRECTIONS AT THE DIAGNOSTIC

CENTER.

THE COURT: I SAID IF --

MS. WESTMORELAND: I THINK THEY WERE UNSURE. |

THE COURT: ALL RIGHT. ANY OF YOU FIT IN THAT CATEGORY |

STEP OUT. THERES A BENCH QUTSIDE YOU CAN SIT ON OR ACROSS THE

CORRIDOR OVER TOWARD JUDGE WARD’S CHAMBERS THERE IS A WITNESS |

ROOM THAT IS MINE. AND YOU CAN SMOKE IN THERE.

MR. MAYS: YOUR HONOR, MAY I ADDRESS THE COURT?

THE COURT: YOU MAY.

MR. MAYS: IM NOT HERE BY DESIGNATION. IM HERE

BECAUSE THE SUBPOENA WAS DIRECTED DIRECTLY TO ME AS —— TO

PRODUCE CERTAIN DOCUMENTS OF WHICH I AM NEITHER THE CUSTODIAN

NOR WAS MY NAME MENTIONED AS ONE OF THE FOLKS SUBPOENAED.

THE COURT: WELL, HE STARTED OUT BY YOU -- YOUI WERE THE

FIRST PERSON HE NAMED.

MR. MAYS: OH, DID HE? I DIDN‘T HEAR HIM. 1 WAS HOPING

HE WOULD RELIEVE ME OF THE SUBPOENA. WOULD YOUR HONOR HEAR AT

AN APPROPRIATE TIME A MOTION TO GUASH THIS SUBPOENA. THE ONE

THAT HAS BEEN DIRECTED TO ME? I UNDERSTAND THERE IS ANOTHER

SUBPOENA THAT HAS BEEN DIRECTED TO THE CHIEF OF POLICE OR SOME

OTHER | meme

THE COURT: IF MR. REDDING OR HIS DESIGNATEE IS HERE

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WITH THE FILE, I WOULD ASSUME THEY WOULD BE WILLING TO RELEASE

YOU, BUT I DON’T KNOW WHAT THE ANSWER TO THE FIRST PART OF THE

QUESTION IS. SOME OF YOU NODDED YOUR HEADS AS THOUGH YOU WERE

EMPLOYEES OF THE ATLANTA BUREAU OF POLICE SERVICES. ARE A

COUPLE OF YOU) OFFICERS?

UNIDENTIFIED SPEAKER: I JUST BROUGHT ONE OF THE

WITNESSES LIP HERE. YOUR HONOR.

THE COURT: OKAY. DO YOU KNOW IF CHIEF REDDING HAS SENT

ANYONE WITH RECORDS?

UNIDENTIFIED SPEAKER: NOT TO MY KNOWLEDGE. I CAN

CONTACT HIS OFFICE AND FIND QUT.

THE COURT: ALL RIGHT. MR. MAYS, ILL EXCUSE YOU AND

PERHAPS THAT GENTLEMAN, AND YOU CAN GO OUT AND FIND OUT WHETHER

THE ORIGINALS ARE EN ROUTE. I THINK THAT'S WHAT MR. BOGER IS

INTERESTED IN.

MR. BOGER: THAT’S RIGHT. YOUR HONOR, BUT WE KNOW TO A

CERTAINTY THAT MR. MAYS HAD A FILE IN HIS POSSESSION IN EARLY

JUNE BECAUSE HE AND MR. STROUP WERE IN CONTACT -—-—

THE COURT: HE DOESN‘T SAY HE DOESNT HAVE A FILE.

MR. BOGER: RIGHT.
THE COURT: HE JUST SAYS THAT HE‘S NOT THE CUSTODIAN OF |

THE ORIGINAL. HE HAS A COPY. IS THAT RIGHT. MR. MAYS?

MR. MAYS: THAT’S RIGHT AND CANNOT AUTHENTICATE ANY

DOCUMENT IN EITHER OF THE FILES.

MR. BOGER: WELL, IT MAY BE, YOUR HONOR. FOR OUR

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HAVING BEEN FAULTED BY THE STATE FOR LETTING WHAT THEY CONSIDER

PURPOSES, COPIES ARE ALL THERE ARE. WE AREN‘T CERTAIN THERE --

THERE ARE ORIGINALS KEPT OF ALL THESE DOCUMENTS WE CERTAINLY

WOULD LIKE TO ACCOMODATE MR. MAYS BUT THAT THE AT THIS POINT

OBVIOUS DOCUMENTS SLIP THROUGH OUR FINGERS. KNOWING THAT MR.

MAYS HAS SOME DOCUMENTS. WHETHER ORIGINALS OR COPIES. THAT ARE

IN HIS POSSESSION, WERE RELUCTANT TO LET HIS DOCUMENTS GO AT

THIS POINT WITHOUT FURTHER INQUIRY.

THE COURT: WELL. WE HAVEN‘T GOTTEN TO THE POINT OF |

DECIDING WHETHER WERE GOING TO HAVE A HEARING OR NOT. THIS
GENTLEMAN OVER HERE IS NOT UNDER SUBPOENA. GO AND FIND QUT IF |

THE ORIGINALS OF EVERYTHING YOUVE GOT ARE EN ROUTE. IT WILL

HELP ME RULE ON YOUR MOTION.

MR. MAYS: ALL RIGHT. THANK YOU VERY MUCH.

MR. BOGER: YOUR HONOR, YOU HAVE AT THIS POINT RULED |

IRRELEVANT AN AFFIDAVIT BY BRYANT STEVENSON.

THE COURT: IT MAY AT SOME POINT BECOME RELEVANT. IT 1s

NOT RELEVANT AS TO THE MASSIAH ISSUE. |

MR. BOGER® WELL, HE IS IN THE COURTROOM AND I THINK

PERHAPS WE SHOULD ALERT THE COURT THAT HES HERE BUT -—-

THE COURT: WELL, IF YOU INTEND TO CALL HIM AS A WITNESS

I THINK OUT OF AN ABUNDANCE OF CAUTION I WOULD ASK HIM TO |

LEAVE.

MR. BOGER: I THINK OUT OF THAT ABUNDANCE I WILL. YOUR

HONOR. I“D CALL ROBERT STROUP TQ THE STAND.

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THE COURT: ALL RIGHT. COME UF TQ BE SWORN.

THE CLERK: IF YOU WILL PLEASE RAISE YOUR RIGHT HAND.

DO YOU SOLEMNLY SWEAR THAT THE EVIDENCE YOU SHALL GIVE AT THE

HEARING NOW BEFORE THIS COURT SHALL BE THE TRUTH. THE WHOLE

TRUTH, AND NOTHING BUT THE TRUTH, SO HELP YOU GOD?

THE WITNESS: I DO.

THE CLERK: IF YOU WILL HAVE A SEAT. PLEASE. SIR. AND

STATE YOUR FULL NAME FOR THE RECORD.

THE WITNESS: ROBERT H. STROUP.

ROBERT Ha. STROUP,

CALLED AS A WITNESS ON BEHALF OF THE PETITIONER, BEING FIRST

DULY SWORN, TESTIFIED AS FOLLOWS:

DIRECT EXAMINATION

BY MR. BOGERt:

Go. MR. STROUP, ARE YOU FRESENTLY ONE OF THE COUNSEL FOR

WARREN MCCLESKEY. THE PETITIONER IN THIS MATTER?

A. I AM.

Q. WHEN DID YOU FIRST BECOME COUNSEL IN THIS CASE?

A. APRIL OF 1980.

Ql. UNDER WHAT CIRCUMSTANCES?

A. I WAS CONTACTED BY PATSY MORRIS OF THE ACLU ASKING ME IF

I WOULD AGREE TO REPRESENT WARREN MCCLESKEY ON HIS

POST-CONVICTION PROCEEDINGS.

. AT THAT POINT, WHAT WERE THE STAGE —— WHAT WAS THE STAGE

OF HIS PROCEEDINGS?

A. THE GEORGIA SUPREME COURT DECISION ON DIRECT APPEAL HAD

BEEN ISSUED IN, I BELIEVE, JANUARY OF 1980, AND THERE WAS A

CERT. PETITION THAT NEEDED TO BE FILED TO THE LL.S. SUPREME

COURT.

od. DID YOU PREPARE THAT PETITION?

A. YES, I DID.

(a. WHAT KINDS OF CLAIMS DID YOU INVESTIGATE AT THAT TIME

WITH RESPECT TO THE CERTIORARI PETITION?

A. MY RECOLLECTION IS THAT THE THE CLAIMS WERE BASED ON

CLAIMS THAT WERE RAISED ON DIRECT APPEAL BY JOHN TURNER.

a. DO YOU RECALL WHY YOU SO LIMITED YOURSELF?

A. WELL. IT WAS MY UNDERSTANDING THAT I WAS RESTRICTED TO

THE ISSUES THAT HAD BEEN RAISED ON DIRECT APPEAL.

Qa. RESTRICTED IN WHAT FORUM?

A. IN THE —-- IN THE SUPREME COURT. IN THE UNITED STATES

SUPREME COURT, THAT THE CERT. ISSUES NEEDED TO BE ISSUES THAT

HAD BEEN RAISED ON DIRECT APPEAL TO THE GEORGIA SUPREME COURT. |

Q. DID YOU, IN FACT. ULTIMATELY FILE THAT PETITION?

A. YES, I DID.

Gl. WAS IT GRANTED OR DENIED?

A. IT WAS DENIED IN OCTOBER QF “80.

Q. DID YOU AT SOME POINT THEREAFTER BEGIN TO PREPARE ANY

FURTHER DOCUMENTS OR PLEADINGS FOR MR. MCCLESKEY?

A. RIGHT. ACTUALLY. SOME AMOUNT OF INVESTIGATION HAD GONE

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ON WHILE THE CERT. PETITION WAS PENDING.

XR. TOWARD WHAT END? WHAT --

A. ANTICIPATING A —— A HABEAS CORPUS PROCEEDING IN STATE

COURT.

Q. AND WHAT WAS THE SCOPE OF YOUR INVESTIGATION, GENERALLY

SPEAKING. IN PREPARATION FOR THAT STATE HABEAS CORPUS FILING?

A. WELL, I SPOKE WITH —-- JUST GENERALLY SPEAKING WHAT DID I

DO TO GET =~

Gl. YES, LETS TALK GENERALLY AND THEN FOCUS MORE

SPECIFICALLY ON THE POSSIBLE MASSIAH OR HENRY CLAIMS.

A. WELL, I SPOKE WITH THE CLIENT SEVERAL TIMES. I READ THE

TRANSCRIPT. I AM CERTAIN I READ THE TRANSCRIPT OF THE TRIAL

PRIOR TO FILING THE —- THE CERT. PETITION IN THE UNITED STATES

SUPREME COURT. I AM CERTAIN THAT I REREAD THAT TRANSCRIPT

AGAIN AT SOME TIME PRIOR TO THE FILING OF THE STATE HABEAS

PETITION. I SORT OF, AS I READ, I WAS TRYING TO IDENTIFY

ISSUES, BOTH ISSUES THAT HAD BEEN RAISED OR SUGGESTED ON

DIRECTED APPEAL AS WELL AS NEW ISSUES THAT HAD NOT BEEN RAISED

AND ——

@. ULTIMATELY, FOR THE RECORD. HOW MANY ISSUES DID YOU

PRESENT TQ THE STATE HEY HABEAS CORPUS COURT?

A. IN EXCESS OF 20. THE PRECISE NUMBER I CAN‘T SAY. 22

MAYBE. I THINK IT DEPENDS, IN PART, ON HOW YOU COUNT THE

PARAGRAPHS AND WHETHER A PARTICULAR PARAGRAPH COUNTS AS A

SEPARATE ISSUE OR IS ENCOMPASSED IN A PRIOR PARAGRAPH.

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| Qe BUT QVER 20. THE DISTRICT COURT HAS NOTED THAT MR.

MCCLESKEY. AT ANY POINT DID IT OCCUR TO YOU THAT THERE MIGHT

| A POSSIBLE RELATIONSHIP?

EVANS, ONE OF THE WITNESSES AT TRIAL AGAINST YOUR CLIENT,

WARREN MCCLESKEY. HAD BEEN A CELLMATE AT SOME POINT PRIOR TO

THE TRIAL AND HAD ULTIMATELY GIVEN TESTIMONY AGAINST MR.

BE A SO-CALLED MASSIAH OR HENRY CLAIM TO BE RAISED?

A. YES, IT DID, AND IT OCCURRED DURING THIS INVESTIGATION

FOR THE STATE HABEAS HEARING. IT WAS SUGGESTED TO ME JUST ON

THE SORT OF THE BEAR FACTS THAT WE HAD. WHICH WERE NOT MANY,

THAT IS, THAT HE WAS —— THAT EVANS WAS ASSIGNED TO THE CELL

IMMEDIATELY ADJACENT TO WARREN MCCLESKEY. I WONDERED ABOUT THE
CIRCUMSTANCES OF THAT. PARTICULARLY AS IT RELATED --

PARTICULARLY BECAUSE MCCLESKEY WAS IN SOLITARY.

2. LET ME ASK YOU, MR. STROUP, DID YOU TAKE YOUR SUSPICION |

A STEP FURTHER AND CONTACT ANYONE TO FIND OUT INFORMATION ABOUT

A. YES, I —-- I INTERVIEWED A NUMBER OF —— I SPOKE WITH A

COUPLE OF ATLANTA BUREAU OF POLICE SERVICES OFFICERS, THE

PEOPLE WHO I KNEW JUST FROM MY PRIOR LITIGATION. THE ATLANTA |

BUREAU OF POLICE SERVICES. FOR THE PURPOSE OF GETTING

BACKGROUND INFORMATION ON HOW I MIGHT GO ABOUT REASONABLY

DEVELOPING FACTUAL EVIDENCE IN SUPPORT OF A CLAIM.
QR. LET ME JUST MAKE THE RECORD CLEAR. YOU MENTIONED PRIOR |

LITIGATION WITH THE ATLANTA BUREAU OF POLICE SERVICES. THAT |

WAS UNRELATED TO THIS CASE? |

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A. YES. I HAD BEEN FOR A NUMBER OF YEARS COUNSEL IN A

TITLE SEVEN PROCEEDING THAT INVOLVED THE ATLANTA BUREAU OF

POLICE SERVICES.

Q. ALL RIGHT. DID YOU AT ANY POINT SPEAK WITH ANY

PARTICULAR OFFICERS OF THE ATLANTA BUREAU OF POLICE SERVICES

ABOUT THE RELATIONSHIP BETWEEN OFFIE EVANS AND THEIR

DEPARTMENT?

A. I THINK MY CONVERSATIONS WITH THE ATLANTA BUREAU OF

POLICE SERVICES PERSONNEL WAS, BASICALLY, ALONG THE LINES OF —-

MY RECOLLECTION AT THIS POINT IS THAT MY CONVERSATIONS WERE

ALONG THE LINES OF, IF EVANS IS AN INFORMER, HOW WOULD I —-

WELL, NO. FIRST OF ALL. GIVEN THE PRACTICES OF THE BUREAU. IS

THERE REASON TO THINK THAT EVANS COULD BE A -- AN INFORMER

PLANTED THERE IN THE CELL, AND IF SO, HOW WOULD I GO ABOUT

DEVELOPING FACTUAL SUPPORT FOR THAT.

a. AND DID YOU RECEIVE ANY ANSWERS TO THOSE QUESTIONS?

A. RIGHT, I -- I. IN FACT, WAS TOLD THAT -- THAT IT WOULD

NOT BE SURPRISING FOR THAT TO HAVE OCCURRED. AND THE SUGGESTION

WAS I NEEDED TO SPEAK WITH A NUMBER OF PEOPLE AT THE —— WHO

WERE DEPUTIES AT THE FULTON COUNTY JAIL REGARDING WHAT

INFORMATION THEY WOULD HAVE.

a. NOW. THESE ARE DEPUTY SHERIFFS SERVING UNDER THE SHERIFF

WHO ARE AT THE JAIL?

A. THAT WAS MY UNDERSTANDING.

a. DID YOU SPEAK WITH SUCH JAILERS?

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| THIS POINT WHETHER I EVER WAS ABLE TO MAKE CONTACT WITH HIM. I

- SPECIFICALLY IDENTIFIED TO ME AS PEOPLE WHO MIGHT HAVE

KNOW I MADE EFFORTS TO CONTACT HIM BUT WHETHER -- I CAN‘T SAY

| A. NO. THEY —— NONE OF THEM HAD ANY INFORMATION.

REGARDING HOW EVANS CAME TO BE ASSIGNED TO THE JAIL CELL THAT

A. I KNOW THAT I SPOKE WITH TWO PEOPLE WHO WERE

INFORMATION, AND I HAD A THIRD NAME. I AM UNABLE TO STATE AT

AT THIS TIME WHETHER I ACTUALLY SPOKE WITH HIM OR NOT.

Q. SO YOU SPOKE WITH AT LEAST TWO. DID EITHER ONE OF YOU

GET -- DID EITHER ONE OF THEM GIVE YOU INFORMATION RESPECTING

MR. EVANS“ STATUS AS AN INFORMANT?

BASICALLY, THEY HAD NO RECOLLECTION OF THE CIRCUMSTANCES
HE WAS ASSIGNED TO OR OF ANY CONVERSATIONS WITH THE ATLANTA |

BUREAU OF POLICE SERVICES DETECTIVES REGARDING OFFIE EVANS” |

|
i ASSIGNMENT TO THAT JAIL CELL.

Q. NOW. THERE‘S BEEN SOME REPRESENTATIONS THIS MORNING THAT

AT SOME POINT A DEPOSITION OF RUSSELL PARKER, THE ASSISTANT

DISTRICT ATTORNEY IN THIS CASE. WAS TAKEN. DID YOU TAKE THAT

DEPOSITION?

A. YES. I DID.

(8 8 DO YOU RECALL WHEN IT WAS?

A. IT WAS —-— MY RECOLLECTION IS THAT IT WAS MID FEBRUARY OF

“81. IT WAS AFTER THE HEARING THAT WE HAD IN BUTTS SUPERIOR |

COURT ON THE FIRST STATE HABEAS HEARING, WHICH I RECALL WAS |

LATE JANUARY. MAYBE JANUARY 30TH.

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a. WAS THE RECORD -- FORGIVE ME. WAS THE RECORD STILL OPEN

FOR INCLUSION OF THIS DEPOSITION IN THE STATE HABEAS

PROCEEDING?

A. YES. YES.

Gl. DURING -—-

A. “MR. PARKER WAS NOT AVAILABLE TO COME TO THE HEARING

ITSELF, AND THE RECORD HAD BEEN HELD OPEN FOR HIS DEPOSITION.

Gl. DURING THAT DEPOSITION. DID YOU QUESTION MR. PARKER

ABOUT WHETHER THERE HAD BEEN AN INFORMANT RELATIONSHIP BETWEEN

MR. EVANS AND THE ATLANTA BUREAU OF POLICE SERVICES OR THE

PROSECUTORS OFFICE?

A. YES, 1 DID.

Q. DO YOU RECALL HIS ANSWERS?

A. I — I ASKED I DON’T RECALL THE SPECIFIC QUESTION, BUT

THERE IS A QUESTION IN THERE ABOUT POLICE INFORMER.

el. IF YOU DON’T RECALL. LET ME ASK YOU, IF I MIGHT, IF I

CAN APPROACH THE BENCH, IF I CAN SHOW COUNSEL, MY WITNESS. A

COPY OF THE DOCUMENT. CAN YOU IDENTIFY THAT DOCUMENT?

A. YES, IT’S A COPY OF THE DEPOSITION OF RUSSELL PARKER

THAT WAS TAKEN AS PART OF THE PROCEEDINGS FOR THE FIRST STATE

HABEAS.

Q. DOES THAT REFRESH YOUR RECOLLECTION ABOUT WHEN IT WAS

TAKEN?

A. RIGHT. IT SAYS FEBRUARY 14TH.

G. 19817 LET ME DIRECT YOUR ATTENTION TO THE BOTTOM OF

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PAGE 14 OF THAT DEPOSITION.

A. YES, I ASKED --

Wo. NO, WHO IS QUESTIONING AT THIS POINT?

A. THE == IT’S -- ACTUALLY. IT SEEMS TO BE EXAMINATION BY

NICK DUMICH.

Q. AND WHO IS NICK DUMICH?

A. HES THE ASSISTANT ATTORNEY GENERAL WHO WAS REPRESENTING

THE STATE IN THIS PROCEEDING.

Gl. DO YOU RECALL THE QUESTION AND THE ANSWER NOW THAT YOU

HAVE REVIEWED THESE DOCUMENTS? A. WELL. IT INDICATES THAT NICK ASKED RUSS PARKER, DO YOU

HAVE ANY KNOWLEDGE THAT MR. EVANS WAS WORKING AS AN INFORMANT

FOR THE ATLANTA POLICE OR ANY POLICE AUTHORITIES WHEN HE WAS

PLACED IN THE FULTON COUNTY JAIL AND WHEN HE OVERHEARD THESE

CONVERSATIONS OF MR. MCCLESKEY?

Gl. AND WHAT WAS THE —-

A. AND THE ANSWER WAS, I DON‘T KNOW OF ANY INSTANCE THAT

OFFIE EVANS HAD WORKED FOR THE ATLANTA POLICE DEPARTMENT AS AN

INFORMANT PRIOR TO HIS OQVERHEARING CONVERSATIONS AT THE FULTON

COUNTY JAIL.

=. DID YOU HAVE ANY REASON TO DOUBT MR. PARKER‘S TESTIMONY |

AT THAT POINT?

A. NO.

Q. YOU INDICATED THAT YOU HAD -- YOU WERE SUSPICIOUS AND
YOU MADE SOME PREHEARING ATTEMPTS TO DEVELOP EVIDENCE. AT ANY |

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POINT, DID YOU FILE A CLAIM BASED ON MASSIAH?

A. RIGHT. WELL -- YEAH, I WISH I HAD LOOKED AT THE
PLEADINGS MORE RECENTLY, BUT MY RECOLLECTION IS THAT I AMENDED |

THE STATE HABEAS PETITION TO SPECIFICALLY INCLUDE A PARAGRAFH |

WHERE I VIEWED MYSELF AS RAISING A HENRY CLAIM. A U.S. VERSUS

HENRY CLAIM, QUITE SPECIFICALLY.

Gl. AT THAT POINT, DID YOU HAVE SUBSTANTIVE EVIDENCE

ACQUIRED FROM YOUR SUSPICIONS TO SUPPORT IT?

A. RIGHT. AT THE TIME ALL I HAD WAS THE -- THE BARE BONES

KIND OF EVIDENCE THAT I HAD. MY RECOLLECTION IS I -- I FILED

THE PETITION AND THEN REALIZED THAT I STILL MIGHT VERY WELL BE

ABLE TO DEVELOP SOMETHING IN SUPPORT OF IT AND THAT I SHOULD

INCLUDE IT AND, THEREFORE, AMEND IT TO ADD THAT PARAGRAPH.

>. DURING -- DURING THE STATE HABEAS PROCEEDING. DID YOU

MAKE ANY INQUIRIES WITH RESPECT TO OFFIE EVANS ON THIS ISSUE?

A. I DID TRY TO DEVELOP ON MY EXAMINATION WITH OFFIE EVANS

THE -- THE MATTER OF THE CIRCUMSTANCES FOR HIS BEING PLACED IN

SOLITARY CONFINEMENT AND SPECIFIC QUESTIONS ABOUT WHO THE

ARRESTING OFFICER, WHO HIS ARRESTING OFFICER WAS, IN AN EFFORT

TO THEN FURTHER DEVELOP THE CIRCUMSTANCES SURROUNDING HIS

ARREST AND PLACEMENT IN SOLITARY.

(2. WERE THOSE EFFORTS SUCCESSFUL? DID ANY EVIDENCE COME

ouT?

A. NO. HE HAD NO RECOLLECTION OF WHO THE ARRESTING OFFICER

WAS, AND HE HAD NO NOTION AS TO THE REASONS FOR HIS BEING

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| TESTIMONY WAS.

PLACED IN SOLITARY CONFINEMENT. AT LEAST THAT'S WHAT HIS

THE COURT: WAS THIS ON DEPOSITION OR AT THE HEARING?

THE WITNESS: NO, NO, THAT IS AT THE STATE HABEAS |

HEARING.

BY MR. BOGER:

Gl. HAD YOU MADE ATTEMPTS PRIOR TO THE STATE HEARING TO

SPEAK TO MR. EVANS?

A. ACTUALLY, YES, I HAD. MR. EVANS, WE HAD -—- I HAD

SUBSTANTIAL PROBLEMS IDENTIFYING -- LOCATING OFFIE EVANS PRIOR

TO THE STATE HABEAS HEARING, AND I SPENT MUCH MORE TIME THAN I

WOULD HAVE LIKED IN THE —- IN THAT TIME PERIOD. THAT MONTH OR

MONTH AND A HALF TIME PERIOD PRIOR TO TRIAL, TRYING TO LOCATE

| HIM. IT TURNED OUT, ACTUALLY, THAT HE WAS IN THE —-- IN

JACKSON, AND ——

Q. BY THAT YQU MEAN THE GEORGIA DIAGNOSTIC CENTER?

A. RIGHT.

QR. LET ME —- LET ME =

A. BUT ON SOME PECULIAR CIRCUMSTANCE SUCH THAT HE WASN-‘T

SHOWING UP ON THE STATE SYSTEM. AND WHEN WE —— OR WHEN WE —-

WHEN WE MADE INQUIRY —-- AND I‘M SORRY, 1 REALLY HAVE FORGOTTEN

THE DETAILS, BUT EVEN THOUGH WE WERE MAKING INQUIRIES. WE

WERENT ASKING THE RIGHT QUESTION OR SOMEHOW AT ANY RATE WE

KEPT —— YOU KNOW, WE —- THEY.

Gl. YOUR EFFORTS WERE UNSUCCESSFUL?

235

A. RIGHT.

Q. LET ME JUST SUMMARIZE YOUR TESTIMONY AND ASK YOU ONE oi:

A. NO, NO, I SHOULD SAY —-= NO, NO, I DID THEN LOCATE HIM

LIKE VERY CLOSE TO THE DATE OF THE HEARING, SIX, SEVEN DAYS, 1!

DONT KNOW, PRIOR TO THE HEARING, ACTUALLY LONG ENOUGH IN |

ADVANCE THAT WE WERE ABLE TO GET A WRIT ISSUED BY THE BUTTS

SUPERIOR COURT FOR HIM TO BE BROUGHT TO THE STATE HABEAS

HEARING BUT NOT -- JUST —- THERE REALLY WASN‘T ENOUGH TIME,

GIVEN THE PRESS OF MY -- THE ORDERING OF MY PRIORITIES TO GET

IN AND INTERVIEW HIM PRIOR TO THE HEARING.

Ql. SO YOU ATTEMPTED DURING THE HEARING TO SPEAK TO HIM.

YOU INDICATED THAT IN A DEPOSITION MR. PARKER HAD INDICATED HE

KNEW OF NO SUCH RELATIONSHIP. YOU HAD SPOKEN WITH ATLANTA |

FOLICE BUREAU OFFICIALS WHO POINTED YOU TOWARD FULTON COUNTY.

MS. WESTMORELAND: YOUR HONOR, I“LL OBJECT TO MR. BOGER

SUMMARIZING THE TESTIMONY OF COUNSEL, HIS OWN WITNESS CAN |

TESTIFY FOR HIMSELF.

THE COURT: SUSTAIN THE OBJECTION.

BY MR. BOGER:

®t. MR. -—- MR. STROUP LET ME ASK YOU ONE ADDITIONAL QUESTION

ON THIS LINE. DURING THE HEARING, DID YOU ATTEMPT ANY OTHER

EFFORTS TO SUBSTANTIATE EVEN INFERENTIALLY AN INFORMANT

RELATIONSHIP BETWEEN MR. EVANS AND THE STATE?

A. WELL, I —-— EXCUSE ME. I THOUGHT IN —- AND THE

DEPOSITION RECORD WILL REALLY SPEAK FOR ITSELF. 1I“D HAVE TO

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LOOK AT IT. I THOUGHT I HAD SOME EXAMINATION OF RUSSELL PARKER

DIRECTLY AS OPPOSED TO NICK DUMICH’S QUESTIONS ALONG THE LINES

OF WHAT HIS —- HIS OWN RELATIONSHIP WAS WITH OFFIE EVANS PRIOR

TO JULY OF 1978.

MR. BOGER: YOUR HONOR. WE CAN DO THIS ONE OF TWO WAYS.

I CAN EITHER REFRESH HIS RECOLLECTION THROUGH VARIOUS PAGES. OR

WE CAN SUBMIT THE DOCUMENT, WHICH THE STATE IS WELL AWARE OF

AND HAS MADE REFERENCE TO. IT APPEARS TO ME IT MIGHT SPEED THINGS IF WE SIMPLY SUBMIT THE DOCUMENT BECAUSE I THINK WHAT IT

WILL REFLECT IS SOME QUESTIONS OF THAT SORT, BUT ID OFFER IT |

INTO EVIDENCE. |

THE COURT: I THINK WE NEED IT IN THE RECORD BUT WHILE

YOUVE GOT HIM ON THE STAND. MS. WESTMORELAND? |

MS. WESTMORELAND: YOUR HONOR. I WAS JUST GOING TO |

COMMENT, AS WE NOTED PREVIOUSLY. I BELIEVE THIS WAS SUBMITTED

AS RESPONDENTS EXHIBIT NUMBER SIX IN THE FIRST FEDERAL HABEAS

PROCEEDING. IF IT WOULD SIMPLIFY THINGS TO HAVE AN ADDITIONAL

COPY PRESENTED IN THE RECORD OF THIS CASE. WE HAVE ABSOLUTELY

NO OBJECTION AND CERTAINLY AGREE TO HAVING THAT SUBMITTED. |

THE COURT: WELL. AT SOME POINT PUT IT IN AS YOUR 3, BUT

RIGHT NOW WHILE YOU‘VE GOT HIM SO HE CAN TALK ABOUT WHAT HE

SEES, REFRESH HIS RECOLLECTION AND ASK HIM TO ——

BY MR. BOGER: |

Gl. LET ME DIRECT YOUR ATTENTION TO PAGES NINE AND FOLLOWING

OF THE DEPOSITION, MR. STROUP. IF YOU COULD REVIEW THOSE PAGES

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AND THEN HAVING REVIEWED THEM USE YOUR RECOLLECTION TO TESTIFY

FURTHER. ACTUALLY. PERHAPS I MISDIRECTED YOU. IF YOU COULD

BEGIN AT PAGE EIGHT.

A. WELL, YES. IN RESPONSE TO YOUR QUESTION, I DID ASK

RUSSELL PARKER DURING HIS DEPOSITION SPECIFICALLY AS TO HIS OWN

INVOLVEMENT WITH OFFIE EVANS, WHETHER HE HAD ANY PRIOR DEALINGS

WITH EVANS PRIOR TO HIS --— WHAT I MEANT WAS EVANS‘ BECOMING

INVOLVED IN THE FRANK SCHLATT CASE. AND HE INDICATED THAT. NO.

HE DIDNT KNOW EVANS PRIOR TO THAT TIME. AND THERE WAS ALSO

SOME EXAMINATION REGARDING WHAT, IF ANYTHING. PARKER KNEW

REGARDING ATLANTA POLICE DETECTIVES AND THEIR CONTACTS WITH

OFF IE EVANS.

a. LET ME —— LET ME ASK YOU FURTHER NOW. DURING THE STATE

HABEAS PROCEEDING ITSELF. DID YOU QUESTION MR. EVANS ABOUT ANY

OTHER RELATIONSHIPS HE MAY HAVE ENTERED INTC WITH RESPECT TO

THE STATE?

A. YES. ACTUALLY. THE OTHER PIECE OF INFORMATION THAT WE

HAD ON AN INFORMER KIND OF RELATIONSHIP INVOLVING OFFIE EVANS

WAS A SITUATION THAT QCCURRED AFTER MCCLESKEY“S TRIAL. IN WHICH

EVANS APPEARED AT A TRIAL IN FULTON COUNTY WITH RUSS PARKER AS

THE DISTRICT ATTORNEY.

RQ. THATS THE SAME RUSSELL PARKER AS THE DISTRICT ATTORNEY

IN MR. MCCLESKEY”S CASE?

A. RIGHT, IN WHICH OFFIE EVANS‘ TESTIMONY BASICALLY WAS

THAT WHILE IN FULTON COUNTY JAIL HE RECEIVED A JAILHOUSE

CONFESSION FROM THE DEFENDANT.

Q. BY THE DEFENDANT. YOU MEAN THE DEFENDANT IN THE OTHER

CASE?

A. THE DEFENDANT IN THAT CASE.

RA. WHAT DID YOU PROFFER THAT FOR? |

A. WELL, WE —— THAT“S THE ONLY OTHER BIT OF INFORMATION |

THAT WE“VE BEEN ABLE TO DEVELOP, AND WE DID OFFER THAT EVIDENCE

AT THE STATE HABEAS HEARING FOR WHATEVER INFERENTIAL VALUE IT

HAD OF —-- AS TO EVANS” RELATIONSHIP, RECOGNIZING THAT IT WAS A

RELATIONSHIP AFTER THE MCCLESKEY TRIAL. BUT. NONETHELESS, IT

WAS WHAT WE HAD OF A CONCRETE NATURE AND WE DID PRESENT THAT

EVIDENCE THROUGH CROSS—-EXAMINATION OF OFFIE EVANS AT THE STATE |

HABEAS HEARING. Q. DID THE STATE -- THE STATE HABEAS COURT ADMIT THAT

EVIDENCE?

A. I DON'T RECALL AT THIS POINT. |

a. LET ME, IF I MIGHT, APPROACH THE WITNESS, GIVE YOU A

DOCUMENT: AND SEE IF IT WILL HELP YOU REFRESH YOUR |

RECOLLECTION.

MS. WESTMORELAND! ONCE AGAIN FOR THE COURT‘S REFERENCE.

I BELIEVE THE STATE HABEAS TRANSCRIPT IS IN THE FIRST FEDERAL |

PROCEEDINGS AS RESPONDENT’S EXHIBIT NO. S.

THE COURT: ALL RIGHT.

BY MR. BOGER: |

a. DO YOU RECOGNIZE THIS DOCUMENT. MR. STROUP?

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HABEAS,

BEHALF,

BEGIN TO EXAMINE OFFIE EVANS.

MCCLESKEY TRIAL.

HAD CONFESSED TO MURDER TO YOu?"

YES. THIS IS A COPY OF THE TRANSCRIPT FROM THE STATE

THE FIRST STATE HABEAS PROCEEDING IN WARREN MCCLESKEY-’S

AND YOU-VE DIRECTED ME TO PAGE 123, WHICH IS WHERE I

GO IN AND DEVELOP THAT.

eo.

RAISED THE SIXTH AMENDMENT CLAIM BASED ON THE RECENT SUPREME

WAS THERE ANY IMPEDIMENT TO THAT EFFORT?

THERE WAS AN OBJECTION RAISED

BY WHOM?

THE STATE.

ON GROUNDS OF WHAT?

ON THE GROUNDS OF RELEVANCY,

COURT CASE, UNITED STATES VERSUS -—-

I ASKED HIM, "OTHER THAN THE

HAVE YOU EVER YOURSELF TESTIFIED THAT SOMEONE

AND IT WAS MY EFFORT THEN TO

AND I INDICATED THAT WED

THE COURT REPORTER

IDENTIFIES IT AS UNITED STATES VERSUS TANNER, WHICH MAY BE MY --

HER READING OF MY ACCENT, I SUPPOSE,

INFORMERS AND A PAID INFORMER, AND I

LINE OF QUESTIONING IS SIMPLY TO DEVELOP A PATTERN IN THIS CASE

THAT AMOUNTS TO A PAID INFORMER BEING ASSIGNED TO THE FULTON

COUNTY JAIL IN A SITUATION WHERE HE CAN, IN ONE FASHION OR

ANOTHER.

CUSTODY OF THE FULTON OFFICIALS.

AND MR. DUMICH INDICATED THAT THERE WAS NO TESTIMONY

THAT HE WAS A PAID INFORMER AT ALL.

ELICIT INCRIMINATING EVIDENCE FROM PERSONS WITHIN THE

RELATING TO THE USE OF

WENT ON TO SAY THAT THE

I AGAIN ARGUED THAT WE

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WERE TRYING TO SHOW A PATTERN. THERES A FURTHER OBJECTION ON

RELEVANCY BY NICK DUMICH, AND THEN THE COURT INQUIRED AS TO

WHETHER HE HAD EVER TESTIFIED IN A CASE BEFORE YOU TESTIFIED IN

MCCLESKEY“S CASE ABOUT SOMETHING SOMEBODY HAD TOLD YOU IN

PRISON AND --

RQ. BY "HE" YOU MEAN EVANS AT THIS POINT?

A. RIGHT. AND OFFIE EVANS INDICATED, "NO." AND, ACTUALLY,

THEN THERE IS FURTHER -—- A FURTHER EXCHANGE BETWEEN THE COURT AND MYSELF, AND THEN AT 126 I DO RESUME QUESTIONING REGARDING

HIS SUBSEQUENT TESTIMONY AT THE TRIAL OF ANOTHER DEFENDANT WITH

|
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RUSS PARKER AS THE DISTRICT ATTORNEY HANDLING THE CASE.

THE COURT: SO YOU WERE ALLOWED TO INQUIRE?

BY MR. BOGER:

Q. APART FROM THAT SUBSTANTIVE ACTIVE EVIDENCE -- |

THE COURT: THAT’S A QUESTION. YOU WERE THEN ALLOWED TQ Sense

THE WITNESS: YES, IT APPEARS THAT I WAS. |

THE COURT: ALL RIGHT.

BY MR. BOGER:

ol. APART FROM THAT SUBSTANTIVE EVIDENCE OF SUBSEQUENT

TESTIMONY BY MR. EVANS, WERE YOU ABLE TO DEVELOP ANY OTHER

EVIDENCE IN SUPPORT OF A HENRY. MASSIAH CLAIM?

A. NONE THAT I CAN RECALL.

QR. WERE YOU AWARE OF ANY WRITTEN STATEMENT BY --

THE COURT: LET ME STOP YOU THERE.

Q. —— OFFIE EVANS?

THE COURT: LETS TAKE A MORNING RECESS NOW, BE IN

RECESS ABOUT 15 MINUTES.

(WHEREUPON, A BRIEF RECESS WAS HAD.)

THE COURT: DURING THE RECESS, I FLIPPED THROUGH THE |

FEDERAL —- MY DECISION IN THE 1ST HABEAS, AND I DON‘T SEE A

MASSIAH ISSUE RAISED.

MR. BOGER: I WAS GOING TO --

THE COURT: DOES THE PETITIONER CONTEND THAT IT WAS

RAISED? MR. BOGER: NO, YOUR HONOR, I WAS GOING TO GET TO THAT

NEXT.

THE COURT: OKAY.

Q. MR. STROUP LET ME PURSUE THAT LINE OF QUESTIONING NOW.

YOU INDICATED THAT YOU HAD FILED AN AMENDMENT TO THE STATE

HABEAS PETITION RAISING A MASSIAH HENRY TYPE OF CLAIM. DID you

ADVANCE THAT CLAIM SUBSEQUENT TO THE FEDERAL OR TO THE STATE |

HABEAS CORPUS HEARING?

A. THE CLAIM WAS NOT CARRIED OVER INTO THE FEDERAL HABEAS

PETITION.

Lo. WHY NOT?

A. I THINK THAT I LOOKED AT WHAT WE HAD BEEN ABLE TO

DEVELOP IN SUPPORT OF THE CLAIM FACTUALLY IN THE STATE HABEAS

PROCEEDING AND MADE THE JUDGMENT THAT WE DIDN'T HAVE THE FACTS

TO SUPPORT THE CLAIM AND, THEREFORE, DID NOT BRING IT INTO

FEDERAL COURT.

Go. DID YOU CARRY OVER ANY RELATED CLAIMS SUCH AS THE GIGLIO

VERSUS UNITED STATES CLAIM? |

A. WE DID THINK THAT WE HAD A VERY GOOD CLAIM INVOLVING

OFFIE EVANS.

THE COURT: GIGLIO CLAIM?

THE WITNESS: RIGHT.

BY MR. BOGER:

Cl. MR. STROUP, LET ME ASK YOU A FEW ADDITIONAL RUESTIONS.

AT THE TIME OF THE STATE HABEAS CORPUS PROCEEDING, DID YOU HAVE

ANY KNOWLEDGE OF ANY WRITTEN STATEMENT THAT HAD BEEN MADE RY |

OFFIE EVANS?

A. NO.

QR. DID YOU HAVE ANY KNOWLEDGE AT THE TIME OF THE FEDERAL

HEARING OF ANY SUCH STATEMENT?

A. NO.

2. WHEN WAS THE FIRST TIME THAT YOU ARE AWARE THAT THERE

WAS A WRITTEN STATEMENT BY OQFFIE EVANS GIVEN TQ THE POLICE?

A. THE FIRST TIME I KNEW ABOUT IT WAS ABOUT 4:30 IN THE

AFTERNOON ON JULY 10TH —- JUNE 10TH OF 1987, AND I OPENED UP AN

ENVELOPE THAT I HAD PICKED UP FROM THE CITY ATTORNEY“S OFFICE

AS 1 WAS GOING DOWN THE ELEVATOR TO SORT OF READ WHAT IT WAS I

HAD PICKED UP. I WAS TAKING THE ELEVATOR DOWN, AND I OPENED IT

UP AND SAW THAT 21 PAGE STATEMENT FROM OFFIE EVANS.

Q. ONE FINAL QUESTION. AT THE TIME OF THE STATE HABEAS

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CORPUS HEARING. WHO WAS ACTIVELY INVOLVED IN THE INVESTIGATION

AND THE PRESENTATION OF EVIDENCE AT THE HEARING AND AT THE

DEPOSITION IN CONCERT WITH YOU? |

A. AT THE STATE -— AT THE STATE HABEAS HEARING?

Q. THATS CORRECT. |

A. EXCUSE ME. BASICALLY. I DID THE -- I HAD THE MAJOR

RESPONSIBILITY OF -- FOR THE FIRST STATE HABEAS HEARING ON

WARREN MCCLESKEY“S BEHALF. I DRAFTED THE PETITION. I OR

PEOPLE IN MY OFFICE DID THE INVESTIGATION. YOUI AND, EXCUSE ME.

OTHER LAWYERS FROM THE FUND WERE ON THE PLEADINGS BUT I DID -—-
I KNOW I SENT YOU COPIES OF THE PLEADINGS OF -- I“M NOT CERTAIN

AT THIS POINT THAT YOU HAD INVOLVEMENT THROUGH THE FIRST STATE |

HABEAS HEARING BEYOND YOUR RECEIPT OF THE PLEADINGS. I MAY

HAVE ON OCCASION CALLED YOU WITH A QUESTION, JUST GENERALLY AS

TO A LEGAL ISSUE. I DON’T HAVE ANY RECOLLECTION OF THAT. ANY |

SPECIFIC RECOLLECTION EVEN OF THAT DURING THE FIRST HABEAS, BUT

I WOULD NOT BE SURPRISED THAT I WOULD HAVE DONE THAT BUT

BASICALLY —— I MEAN, I WAS THE ONLY ONE --~ I WAS THE ONE WHO CONDUCTED THE. HEARING ON BEHALF OF MCCLESKEY. I WAS THE ONE IN

CHARGE OF THE INVESTIGATION, THE INTERVIEWING OF WITNESSES. THE

PREPARATION OF DOCUMENTS BOTH AT THE BUTTS SUPERIOR COURT LEVEL

AS WELL AS THE GEORGIA SUPREME COURT LEVEL.

MR. BOGER: YOUR HONOR. AT THIS TIME I DON'T HAVE ANY

ADDITIONAL QUESTIONS OF MR. STROUP. ID LIKE TO OFFER INTO

EVIDENCE -- THE STATE HAS INDICATED ITS BEEN IN PREVIQUS

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SUBMISSIONS IN THE FIRST HABEAS, BUT FOR THE CONVENIENCE OF THE

COURT -— THE DEPOSITION OF RUSSELL PARKER THAT’S BEEN REFERRED

TO. THAT WOULD BE PETITIONER‘S 3, I BELIEVE.

THE COURT: IT WILL BE ADMITTED.

MR. BOGER: THANK YOU,

THE COURT: ANYTHING FURTHER OF THIS WITNESS?

MR. BOGER: NO, YOUR HONOR.

THE COURT: YOU MAY CROSS. BY MS. WESTMORELAND®

a. MR. STROUP, I BELIEVE YOUR TESTIMONY WAS THAT YOU TALKED

TO SOME -- SOME MEMBERS OF THE ATLANTA BUREAU OF POLICE |

SERVICES PRIOR TO THE FIRST STATE HABEAS CORPUS PROCEEDINGS 1s

THAT CORRECT? |

A. YES. |

o. AND YOU DO NOT RECALL WHO THOSE INDIVIDUALS WERE AT THIS

TIMES IS THAT ALSO CORRECT? |

A. NO, NO. I —- I CAN TELL YOU OF TWO SPECIFIC PERSONS WHO |

I SPOKE WITH: WHETHER —-—

a. WHO DID —- |

A. WHETHER THAT‘S THE THE COMPLETE LIST OR NOT, I CAN‘T |

TELL YOU. |

a. WHO DID YOU SPEAK WITH?

A. ONE OF THE PEOPLE I SPOKE WITH WAS ~— HE‘S NOW CAPTAIN

EULIS MOORE. HE AT THE TIME MAY HAVE BEEN A SERGEANT, I‘M NOT |

SURE OF THE TIMING ON HIS PROMOTION TO CAPTAIN. AND THE OTHER

ATLANTA POLICE OFFICER WHO I KNOW SPECIFICALLY I SPOKE WITH WAS

DETECTIVE GRESHAM.

QR. DID YOU AT ANY TIME TALK WITH DETECTIVE HARRIS PRIOR TO |

THE FIRST STATE HABEAS PROCEEDING?

A. NO.

Q. DID YOU TALK TO DETECTIVE DORSEY AT ANY TIME PRIOR TO

THE FIRST STATE HABEAS PROCEEDING? A. NO.

QR. WHAT ABOUT INVESTIGATOR. I BELIEVE HE WAS, ESKEW?

A. NO, I DID NOT.

Q. DID YOU EVER TALK TO DEPUTY HAMILTON?

A. I DONT BELIEVE SO. I DON'T -- I TALKED WITH SOME

PEOPLE ALSO AT FULTON COUNTY JAIL. I DON’T HAVE A SPECIFIC

RECOLLECTION OF HAMILTON. IT IS POSSIBLE THAT I SPOKE WITH

HAMILTON.

oR. DID YOU TALK WITH ANYONE THEN WHO WAS ACTUALLY INVOLVED

IN —— DIRECTLY INVOLVED WITH OFFIE EVANS, ELICITING HIS --

A. YES, THAT WAS MY UNDERSTANDING, THAT I WAS SPEAKING TO

PEOPLE AT FULTON COUNTY JAIL WHO WERE DIRECTLY INVOLVED WITH

OFFIE GENE EVANS. THE —— I KNOW —-- I KNOW OF TWO PEOPLE WHO I

SPECIFICALLY SPOKE WITH AND A THIRD PERSON WHO —-- WHO WAS

REPRESENTED TO ME AS POSSIBLY HAVING SOME INFORMATION. THE

PEOPLE WHO I SPOKE WITH, THERE WAS A GENTLEMAN NAMED BOBBY

EDWARDS WHO BY THAT TIME HAD LEFT THE FULTON COUNTY SHERIFFS

DEPARTMENT, IF I“VE GOT THE DEPARTMENT RIGHT. I UNDERSTOOD HE

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WAS AT THE JAIL AND THAT HE HAD INFORMATION OR WAS IN A

POSITION TO HAVE INFORMATION RELATED TO THE QUESTIONS I WAS

ASKING, THE UNDERLYING CIRCUMSTANCES OF EVANS” ASSIGNMENT TO

SOLITARY. HE HAD BY THAT TIME MOVED TO HELEN, GEORGIA OR

THEREABOUTS. I —~ AND I THINK IT WAS —- HE WAS —- IT WAS

REPRESENTED TO ME THAT HE WAS IN REAL ESTATE.

AND I WAS ABLE TO FIND HIM THROUGH A REALTOR WHO I KNOW

UP IN THAT AREA, AND I SPOKE WITH HIM, AND HE TOLD ME HE HAD

SIMPLY NO RECOLLECTION WHATSOEVER OF ANY OF THE CIRCUMSTANCES. QQ. ONCE OFFIE EVANS MENTIONED SPECIFICALLY THE NAME OF |

DORSEY, DETECTIVE DORSEY. IN HIS TESTIMONY AT THE STATE HABEAS |

CORPUS PROCEEDING. DID YOU TALK TO DETECTIVE DORSEY TO |

ASCERTAIN IF HE HAD ANY INFORMATION THAT MIGHT BE USEFUL?
|

A. NO. I DID NOT. |
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2. AND. I BELIEVE. DURING THE DEPOSITION OF MR. PARKER. HE |

MENTIONED THE NAMES OF DETECTIVE JOWERS AND DETECTIVE HARRIS.

DID YOU TALK TQ THEM AFTER THAT DEPOSITION TO ASCERTAIN IF THEY

HAD ANY INFORMATION? |

A. AT THAT —— NO, I DID NOT. AT THAT POINT IN TIME IN THE |

PROCEDURE, YOU KNOW, THE -— MY UNDERSTANDING WAS THE RECORD WAS

CLOSED. I MEAN, WE -— WE HAD CONCLUDED THE EVIDENCE IN THE |

STATE HABEAS HEARING. IT WAS LEFT OPEN SPECIFICALLY FOR PARKER

AND KELLY FIGHT’S DEPOSITIONS. AND WE WERE ON A BRIEFING |

SCHEDULE. |

Q. YOU DID NOT MAKE ANY ATTEMPT, THOUGH. TO CONTACT

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WITNESSES WHOSE NAMES HAD BEEN MENTIONED BOTH BY MR. EVANS AND

BY MR. PARKER AS HAVING HAD CONTACT WITH MR. EVANS?

A. I HAVE —-- NO, I DO NOT BELIEVE THAT I DID. |

a. SO ALL YOU KNEW WAS THAT MR. PARKER HAD NO KNOWLEDGE OF

WHETHER THESE DETECTIVES HAD HAD ANY PRIOR CONTACT WITH MR. |

EVANS, YOU DID NOT KNOW WHETHER THESE DETECTIVES THEMSELVES HAD

ANY PRIOR CONTACT WITH MR. EVANSs IS THAT CORRECT?

A. I BELIEVE THAT”S CORRECT, I -- LET ME THINK. WHAT I HAD

WAS THEIR TESTIMONY AT TRIAL. THAT. YOU KNOW. THESE POLICE

OFFICERS TESTIMONY AT TRIAL AND PARKERS DEPOSITION TESTIMONY.

THE COURT: DID THEY TESTIFY REGARDING THIS SUBJECT AT |

TRIAL? |

THE WITNESS: I FRANKLY CAN’T SAY AT THIS POINT. |

MS. WESTMORELAND: YOUR HONOR, I DON‘T RECALL THAT THEY |

DID. I BELIEVE THE ONLY ONE WHO DID WAS CHIEF —— WAS THE |

JAILER, MR. HAMILTON. AT THE REBUTTAL PHASE. I DON‘T RECALL

THEIR TESTIMONY RELATING TO TESTIMONY OF OFFIE EVANS AT TRIAL

SPECIFICALLY.
BY MS. WESTMORELAND: |

Q. AND AS TO DEPUTY HAMILTON WHO DID TESTIFY AT TRIAL AND |

DID INDICATE HE WAS THE ONE, I BELIEVE, OBTAINING THE INITIAL

CONTACT WITH MR. EVANS, YOU DID NOT TALK TO HIM PRIOR TO THE

STATE HABEAS PROCEEDING: IS THAT CORRECT? |

A. EXCUSE ME. I CANNOT SAY AT THIS POINT THAT I DID OR DID

NOT. IT IS POSSIBLE. BUT I DON'T HAVE ANY RECOLLECTION OF

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| GQ. AND YOU NEVER REQUESTED ANY RECORDS FROM THE ATLANTA

DOING IT.

POLICE DEPARTMENT PRIOR TO THE FIRST STATE HABEAS CORPUS

PROCEEDING: IS THAT CORRECT?

A. I DID REQUEST RECORDS FROM THE ATLANTA POLICE BUREAU.

THEY WERE RECORDS RELATED TO THE RACE DISCRIMINATION CLAIM.

BUT I DID NOT REQUEST RECORDS RELATING TO AN INFORMER CLAIM.

MS. WESTMORELAND: ALL RIGHT. I HAVE NO FURTHER

QUESTIONS, YOUR HONOR.

THE COURT: REDIRECT?

MR. BOGER: NO, YOUR HONOR. |

THE COURT: ALL RIGHT. SIR. THANK YOU, YOU MAY GO DON,

MR. STROUP. |

MR. BOGER: YOUR HONOR. I HAVE AT LEAST ONE FURTHER BIT |

OF EVIDENCE TO SUBMIT ON THIS QUESTION. IT’S. PERHAPS, JUST

FOR THE CONVENIENCE OF THE COURT AND MAYBE NEED NOT BE |

ADMITTED, BUT IN TERMS OF HAVING DOCUMENTS QUICKLY BEFORE vou, |

THE TRIAL TESTIMONY OF OFFIE EVANS IS FOUND IN THE TRANSCRIPT

AT PAGES 847 THROUGH 883. ON PAGE 872 AND 73 -- 872 AND 873,

MR. EVANS IS ASKED ON DIRECT EXAMINATION BY MR. PARKER ABOUT

WHEN HE FIRST MADE CONTACT WITH THE -- WITH THE FULTON OR THE

ATLANTA POLICE DEPARTMENT AND WITH MR. PARKER‘S OFFICE WITH

RESPECT TO STATEMENTS HE HAD ALLEGEDLY HEARD FROM WARREN

MCCLESKEY,» AND HIS TESTIMONY THERE, IT SEEMS TQ ME, IS

PERTINENT.

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JAIL HAD ASKED HIM WHAT WAS GOING ON, HE HAD AN INTERVIEW WITH

HE SAYS THAT A DEPUTY HAD OVERHEARD HIM. OF COURSE, THE

RECORD IS -- THESE DOCUMENTS WILL SPEAK MORE ACCURATELY THAN
MYSELF BUT THAT THE DEPUTY HAD OVERHEARD HIM, AND HIS TESTIMONY

IS, WHAT DID HE HEAR YOU ALL SAYING? WHAT I JUST GOT THROUGH |

TALKING ABOUT. IN OTHER WORDS. THE SUBSTANCE OF HIS TESTIMONY

TO THE JURY, JUST A WHOLE BUNCH, AND HE GOES ON AT PAGE 880 ON

CROSS TO SAY AT THAT POINT. AFTER THE CONVERSATIONS HAD BEEN

COMPLETED AND HE HAD -- THE DETECTIVE HAD -- THE DEPUTY IN THE

THE OFFICIALS, WITH THE DETECTIVES. AND WITH MR. PARKER.

$0, IN OTHER WORDS, HIS TESTIMONY AT TRIAL. GIVEN UNDER

OATH IN THE PRESENCE OF MR. PARKER WAS THAT THERE WERE NO |

CONTACTS OF THAT SORT UNTIL AFTER THE CONVERSATIONS WITH MR.

MCCLESKEY HAD BEEN COMPLETED. ONCE AGAIN. I HAVE MADE REPRESENTATIONS. AND THE RECORD WILL SPEAK PROBABLY BETTER, BUT

I CAN SUBMIT THOSE EXCERPT —— TRANSCRIPT PAGES FOR THE COURT As

PETITIONER’S 4, SO THAT WILL BE IN FRONT OF YOUR HONOR. |

THE COURT: THEY WILL BE RECEIVED.

MR. BOGER: THANK YQU, YOUR HONOR.

MS. WESTMORELAND: YOUR HONOR. I WOULD POINT QUT FOR THE

COURTS INFORMATION IN THE RESPONSIVE PLEADINGS THAT WE HAVE |

FILED WE HAVE INCLUDED AS EXHIBITS ALL THE EXHIBITS THAT WERE

SUBMITTED TO THE SECOND STATE HABEAS CORPUS COURT. INCLUDED IN

THAT IS MR. EVANS” TESTIMONY AT TRIAL AS WELL AS MR. |

MCCLESKEY“S TESTIMONY AT TRIAL. VARIOUS EXCERPTS FROM THE

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TRIAL TESTIMONY FOR THE COURT‘S CONVENIENCE ARE INCLUDED IN

THAT.

THE COURT: ALL RIGHT. IS MR. HAMILTON’S TESTIMONY SO

INCLUDED?

MS. WESTMORELAND: MR. HAMILTON-S TESTIMONY IS ALSO

INCLUDED. IT BEGINS WITH MR. HAMILTON‘S TESTIMONY AND MR.

EVANS TESTIMONY IN THE REBUTTAL PHASES OF THE TRIAL.

THE COURT: ALL RIGHT. LET ME ASK YOU ANOTHER QUESTION,

MR. BOGER: WHAT IN THE WRITTEN STATEMENT DO YOU CONTEND IS

INCONSISTENT WITH WHAT YOU HAVE JUST TOLD ME ABOUT WHAT MR.

EVANS THE TESTIFIED?

MR. BOGER: WELL. I THINK WHAT WE WOULD HOPE TO PROVE AT

A HEARING ON THE MERITS IS THAT LONG BEFORE THE CONVERSATIONS |

WITH MR. MCCLESKEY WERE CONCLUDED. THAT MR. EVANS HAD MET WITH

THE STATE OFFICIALS, WITH THE DETECTIVES. AND WITH MR. PARKER.

THE COURT: I UNDERSTAND THAT YOU HAVE NO EVIDENCE OF

THAT SAVE FOR WHATEVER INFERENCE YOU CAN DRAW FROM THE WRITTEN |

STATEMENT. AM I CORRECT? |

MR. BOGER: THAT’S WHY WE WANT A HEARING, YOUR HONOR,

YES.

THE COURT: ALL RIGHT. WHAT IS THERE IN -- ABOUT THE

WRITTEN STATEMENT THAT SUPPORTS AN INFERENCE THAT IT WAS

EARLIER THAN OFFIE EVANS TESTIFIED TO IT BEING?

MR. BOGER? ALL RIGHT. IN THE MIDDLE OF THE STATEMENT. |

I BELIEVE IT’S ON PAGE 14 -—-

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. GIRLFRIEND, BUT, IN ANY EVENT, MCCLESKEY CAN‘T LEAVE SOLITARY.

AND THE DETECTIVES WERE SITTING THERE, BUT I WAS UNABLE TO GET

| AN ANSWER. THE PHONE JUST RANG. THATS WHAT I TOLD MACK" ——

. MEANING MCCLESKEY. HE INITIALS THAT —— “WHEN I GOT BACK TO THE |

THE COURT: MR. MILLS. DO YOU HAVE THE STATEMENTS?

MR. BOGER: -—— HE RECITES THAT THERE HAS BEEN AN

INTERVIEW.

THE COURT: WAIT JUST A SECOND. WE DON‘T HAVE A PAGE

NUMBER.

“MR. BOGER: AT THE BOTTOM THERES SOMETHING THAT’S

OBSCURE, YOUR HONOR, S68-14-78, THE 14 IS THE FOURTEENTH PAGE.

THE COURT: OH, I SEE. 14. ALL RIGHT.

MR. BOGER: HE RECITES IN THE MIDDLE OF THIS 21-PAGE

STATEMENT THAT AT A PARTICULAR POINT, MR. MCCLESKEY ASKED TO

HAVE A TELEPHONE CALL MADE TO SOMEONE WHOSE NAME 1S BLOTTED

OUT. WE THINK LATER ITS —— WE KNOW IT’S HIS EX-WIFE OR HIS

BUT HE THINKS THAT OFFIE EVANS CAN. A PIECE OF PAPER IS PASSED

TO MR. EVANS. EVANS’ STATEMENT SAYS THAT HE WENT OUT, "THIS IS

THE SAME PIECE OF PAPER THAT I GAVE DETECTIVE HARRIS, DETECTIVE

DORSEY, AND DISTRICT ATTORNEY PARKER WHEN THEY CAME TO

INTERVIEW ME." THEN HE SAYS, "THERE WAS TWO PIECES OF PAPER

WITH BLANK”S NAME ON IT. I TRIED TO CALL BLANK WHILE THE DA

CELL."

AND THEN HE GOES ON WITH ADDITIONAL THINGS THAT

MCCLESKEY SAID AFTER HE GOT BACK TO THE CELL. NOW, PLAINLY, IN

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THAT INTERVIEW, THIS STATEMENT WAS NOT WRITTEN AND SIGNED. YOU

CANT SIGN A STATEMENT ON ONE OCCASION RECOUNTING EPISODES THAT

FOLLOW IT. YOU CAN‘T KNOW WHAT MCCLESKEY WOULD HAVE SAID WHEN

YOU GOT BACK TO THE CELL. |

THE COURT: I HAVE YOUR POINT. |

MR. BOGER: S0 THERE WAS AT LEAST ONE INTERVIEW WITH

DISTRICT ATTORNEY PARKER AND HARRIS AND DORSEY THAT TOOK PLACE |

{
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| DURING THE MIDDLE OF THE CONVERSATION, THE EXTENDED SERIES OF |

CONVERSATIONS WITH WITH WARREN MCCLESKEY. I MIGHT ADD THAT WE

NOTE FROM THE DOCUMENT THAT THE ALLEGATION THAT MCCLESKEY WOULD

HAVE SHOT A DOZEN OF THEM. IF HE HAD TO, TO GET OUT OF THERE,

LET’S SEE. WHERE DOES THAT COME. WHICH IS ON PAGE 16. YOUR

HONOR, LOOK AT THE BOTTOM PARAGRAPH WITH THREE STARS BESIDE IT

IN THE LEFT-HAND SIDE, "HE DIDN‘T GIVE A DAMN, IF IT HAD BEEN A

DOZEN OF THEM. ET CETERA, THAT HE WOULD HAVE TRIED TO SHOOT HIS

WAY OUT." THAT WAS TESTIMONY THAT WAS BROUGHT OUT BY MR. EVANS

AT TRIAL AND WAS HEAVILY RELIED ON BY THE PROSECUTOR TO PROVE

MALICE.

THE COURT: THERE IS NO INDICATION IN THIS THAT IT WAS

GIVEN --~ THAT THAT STATEMENT WAS MADE PRIOR TQ THE INTERVIEW

WITH THE TWO DETECTIVES AND ~-

MR. BOGER: TO THE CONTRARY. IT APPEARS VERY STRONGLY

THAT IT WAS MADE SUBSEQUENT TO THE INTERVIEW.

THE COURT: WELL, I SEE THAT. BUT I“M NOT NOT READING

THE FIRST 14 PAGES. 1I“M TAKING YOUR REPRESENTATION TO BE THAT

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MR. BOGER:

THE COURT:

MR. BOGER:

THE COURT:

MR. BOGER:

THE COURT:

MR. BOGER:

IT DOESN‘T APPEAR IN THE FIRST 14 PAGES.

LEAST LEAVES IN AN UNAUTHORIZED FASHION. WHAT HAPPENS TO HIM

IS HES NOT SENT BACK TO THE FEDERAL PENITENTIARY TO COMPLETE

HIS PENDING SENTENCE ON FORGERY.

AGENT. HE BELIEVES,

WARREN MCCLESKEY.

THATS RIGHT. IN OTHER WORDS. WE HAVE

THEORIES THAT ON THE MERITS WE WOULD ADVANCE THAT THE |

RELATIONSHIF WITH MR. EVANS PRECEDED HIS COMING TO THIS FULTON

COUNTY JAIL. HE IS, AFTER ALL, A FEDERAL PRISONER SERVING A |

FORGERY SENTENCE WHO IS IN A HALFWAY HOUSE AND ESCAPES OR AT

I DON‘T FIND THAT REMARKABLE. |

OR FOR ESCAPE BUT —- |

WAS HE CHARGED WITH ESCAPE? |

HE“S NEVER FORMALLY CHARGED WITH ESCAPE.

EVEN IN THE COMPLAINT? |

THERE IS AN INVESTIGATION APPARENTLY MADE.

MR. PARKER INDICATES THAT AT SOME POINT HE SPOKE WITH THE FBI

WHO WAS CONDUCTING THAT INVESTIGATION, SO

WE NEED -— WED LIKE TO FIND QUT ON THE MERITS, YOU KNOW, HOW

FAR THAT PROCEEDED AND WHAT THE RELATIONS BETWEEN THE STATE AND

THE LOCAL OFFICIALS WERE, BUT WHAT HE WAS ~~ IS PUT IN THE CITY pod

IN THE COUNTY JAIL. THE FULTON COUNTY JAIL. AND NOT JUST IN ANY

CELL, HE“S PUT IN SOLITARY CONFINEMENT. HE IS AFTER ALL A

FORGER WHO HAS WALKED AWAY FROM A HALFWAY HOUSE RIGHT NEXT TO

I —— WE WOULD LIKE TO SHOW THROUGH EVIDENCE THAT WE

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ADDUCE THAT THE RELATIONSHIP BETWEEN CITY OFFICIALS AND MR.

EVANS, IN FACT. BEGAN AT THE TIME OF OR BEFORE HE WAS PLACED IN

THAT CELL. BUT WHAT THIS DOCUMENT SHOWS US IS THAT AT SOME

| POINT DURING THE MIDDLE OF THIS MONTH LONG PERIOD HE DOES MEET |

WITH THESE OFFICIALS. HE GOES BACK TO THE CELL. AND FURTHER

STATEMENTS BY MR. MCCLESKEY ARE ELICITED.

THE COURT: I SEE. |

MR. BOGER: I MIGHT ADD, YOUR HONOR. THAT THE STATEMENT,

THIS IS THE STRIKING POINT THAT WE WANT TO INQUIRE INTO, THAT’S

ONE OF THE REASONS I WANTED THE ~- THE WITNESSES UNDER THE

RULE. THE STATEMENT ITSELF. THIS, AS YOU CALL IT, FAULKNERIAN

STATEMENT TAKES FLACE ON -—- IS SIGNED ON THE 1ST OF AUGUST. IT

PURPORTS TO CONVEY CONVERSATIONS IN ENORMOUS DETAIL THAT TOOK

PLACE ON JULY 8TH AND 9TH AND 10TH. IT“S FOR THAT REASON AND

THE UNUSUAL DETAIL OF MR. EVANS‘ MEMORY THAT WE HAVE REQUESTED

IN QUR DOCUMENT REQUEST ALL INFORMATION ABOUT POSSIBLE WIRES OR

BUGS OR OTHER MECHANICAL DEVICES BY WHICH THE CONVERSATIONS |

THAT APPEAR IN THE STATEMENT MAY HAVE BEEN RECORDED. IT SEEMS

TO US IMPLAUSIBLE THAT A HALF-EDUCATED SEMI LITERATE PERSON

LIKE MR. EVANS COULD CARRY AROUND LIKE JAMES BOSWELL THIS SORT |

OF MEMORY OF WHOLE CONVERSATIONS THAT TAKE PLACE OVER THIS

| PERIOD OF TIME. BUT THATS TO BE ESTABLISHED ON THE MERITS. IF -

THE COURT: ORAL TRADITION IS FAIRLY STRONG WITH

ILLITERATE PEOPLE. MR. BOGER.

MR. BOGER: IF I MIGHT. YOUR HONOR, I WOULD LIKE TO SUM

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UP AND MAKE A SHORT ARGUMENT ABOUT WHY WE THINK WE HAVE

OVERCOME ANY SUGGESTION OF ABUSE OF THE WRIT ON THIS CLAIM. THE COURT: WELL. ALL RIGHT. I“M GOING TO TRY TO FIGURE

OUT WHERE I AM AT THE MOMENT. BASICALLY. THE ONE THING THAT |

YOU WOULD CONTEND IS THAT THE STATEMENT ITSELF. THIS LAST |

COLLOQUY, IS EVIDENCE OF A MASSIAH VIOLATION.

MR. BOGER: THAT“S CORRECT, YOUR HONOR.

THE COURT: NOTWITHSTANDING WHAT MAY HAVE GONE BEFORE

IT. ALL RIGHT. GO AHEAD AND SUM UP.
MR. BOGER: WHAT MR. STROUP HAS TESTIFIED IS THAT |

WORKING ALONE. WORKING WITHOUT THE ASSISTANCE OF HIS |

CO-COUNSEL., THE NAACP LEGAL DEFENSE FUND. MYSELF OR OTHER

ATTORNEYS, HE DID ENGAGE IN EXTENSIVE INVESTIGATION BASED ON

HIS SUSPICION SHARED BY YOUR HONOR SIMPLY BY THE FACT THAT WE

HAVE A PRISONER PUT IN THE CELL NEXT TO MR. MCCLESKEY WHO

ULTIMATELY GIVES TESTIMONY THAT THERE MAY HAVE BEEN SOME

RELATIONSHIP. HE TALKED TO ATLANTA BUREAU OF POLICE SERVICES

PERSONNEL KNOWN TO HIM ABOUT HOW ONE MIGHT DEVELOP SUCH EVIDENCE, WHO WERE THE KIND OF PEOPLE THAT MIGHT KNOW OF THAT

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SORT OF RELATIONSHIP. |

THEY POINTED HIM TO FULTON COUNTY JAILERS. HE TESTIFIED

ON DIRECT AND CROSS-EXAMINATION THAT HE SPOKE WITH AT LEAST Twa

OR THREE OF SUCH PERSONS WHO SAID THEY HAD KNOWLEDGE OF MR. |

EVANS“ INCARCERATION THERE BUT HAD NOTHING THEY COULD

CONTRIBUTE TO ANY POSSIBLE RELATIONSHIP. EVEN WENT TO THE —-

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THE DIFFICULTY OF FINDING A RETIRED OFFICER WHO LIVED SOME AREA

AWAY AND WHO IS IN THE REAL ESTATE BUSINESS. HE SAID, TO FIND

QUT IF HE KNEW ANYTHING. HE DID AT THE STATE HABEAS CORPUS

HEARING ASK MR. EVANS HIMSELF QUESTIONS ABOUT THAT

RELATIONSHIP. MR. EVANS DENIED IT. HE DEPOSED THE PROSECUTOR

IN THE CASE, RUSSELL PARKER. WHO SAID THAT HE DIDNT KNOW OF

ANY SUCH RELATIONSHIP INVOLVING NOT ONLY THE PROSECUTOR‘S

OFFICE BUT THE POLICE DEPARTMENT. AND, FINALLY. MR. STROUP INDICATES THAT HE HAD NO

KNOWLEDGE, AS HAVE I IN AN AFFIDAVIT. OF ANY WRITTEN STATEMENT.

NOW, THE STANDARD. OF COURSE. ON ABUSE OF THE WRIT IS ONE OF |

DELIBERATE WITHHOLDING OR INEXCUSABLE NEGLECT. I WOULD SUBMIT |

THAT ON ITS FACE, IT’S ALMOST IMPOSSIBLE TO FIND DELIBERATE

WITHHOLDING OF A DOCUMENT THATS NOT IN YOUR POSSESSION OR

EVIDENCE THATS NOT IN YOUR POSSESSION. AND, THEREFORE. THE

ONLY REAL QUESTION BEFORE US --

THE COURT: DELIBERATE WITHHOLDING OF AN ISSUE. WHAT

YOU -- THE EVIDENCE -- WHAT YOU HAVE ESTABLISHED BEFORE ME IS

CONTRARY TO WHAT I HAVE ASSUMED FROM READING YOUR PETITION.

PERHAPS, I DIDN‘T READ IT WITH AN EYE TO IT. AND I ASSUMED |

THAT IT HAD FRANKLY NEVER OCCURRED TQ ANYBODY TO THINK ABOUT |

IT.

NOW, HAVING HEARD MR. STROUP‘S TESTIMONY. IT IS CLEAR

THAT AT THE STATE HABEAS LEVEL HE THOUGHT ABOUT IT WITHOUT

PASSING JUDGMENT ON HOW THOROUGH AN INVESTIGATION HE DID. AT

SOME POINT IN TIME, HE LEFT THAT ISSUE TO THE STATE COURT AND

NEVER BROUGHT IT HERE. AND AS IT WOULD RELATE TO THE WHOLE

ISSUE, THAT SOUNDS LIKE, I DON‘T KNOW WHETHER YOU WANT TO CALL

IT DELIBERATE BYPASS OR INTENTIONAL ABANDONMENT OR WHATEVER,

BUT HE GAVE UP THE BIG ISSUE. NOW, THAT DOESN‘T -— THAT

DOESN”T INDICATE ANY OPINION AS TO THE STATEMENT.

MR. BOGER: THAT’S RIGHT.

THE COURT: THE ISSUE.

MR. BOGER: THE BRADY ISSUE.

THE COURT: BUT THE BIG ISSUE, INVESTIGATING THE BIG

ISSUE AND THAT’S —-- YOU KNOW, IT‘S CLOSE TO SUCCESSIVE. YOU

NEVER BROUGHT IT HERE, SO ITS NOT TRULY SUCCESSIVE. I GUESS

IT STILL FITS UNDER THE RUBRIC OF ABUSE, BUT THEN IT GOES DOWN

TO THE CASE THAT MS. WESTMORELAND CITED. THE DELIBERATE RYPASS,

TACTICAL CHOICE THAT HE MADE.

MR. BOGER: WELL, YOUR HONOR, IN RESPONSE TO THAT, OF |

COURSE, WHAT MR. STROUP‘S TESTIMONY WAS, IS THAT HIS JUDGMENT

WAS THAT HE HAD SIMPLY ADDUCED NO EVIDENCE IN SUPPORT OF IT.

THE COURT: WELL, HE STILL HASNT.

MR. BOGER: WELL. THAT'S WHAT —— THAT“S WHAT -—-

THE COURT: EXCEPT FOR THIS.

MR. BOGER: -- THAT'S WHAT —— WE“VE GOT THE STATEMENT.

THE COURT: THE SEQUENCING, THE PAGE 14, PAGE 146 THING, HE STILL HASN‘T ADDUCED ANY EVIDENCE THAT THERE WAS A PRIOR

ARRANGEMENT. |

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MR. BOGER: WELL, THAT’S WHAT WE‘D LIKE A HEARING TO |

PROVE. WE THINK THE EVIDENCE IS STRONG ENOUGH EVIDENCE. PRIMA |

FACIE, IN SUPPORT OF THE CLAIM THAT IT DOES WARRANT A HEARING.

BUT LET ME ADD, YOUR HONOR, TWO -- |

THE COURT: WELL. THE STATEMENT IS ABSOLUTELY CONSISTENT

WITH ALL OF THE EVIDENCE THAT WAS KNOWN AT THE TRIAL UP TO THAT

ONE ISSUE ABOUT WHEN THE MATERIAL ON PAGE 14 WAS MADE VIS-A-VIS

THE —-- THE COMING INTO THE AGENCY OR EMPLOY OF THE CITY. SEE |

THE POINT I‘M MAKING? IN OTHER WORDS, THIS -—-—

MR. BOGER: WITH RESPECT TO THE MASSIAH ISSUE, YOU MEAN?

THE COURT: THE FIRST QUESTION ON THE MASSIAH LINE OF

CASES WAS, WAS HE AN AGENT WHEN HE WAS PUT THERE TO LISTEN OR

TO ASK OR WHATEVER HIS DIRECTIONS? I DON‘T SEE ANY EVIDENCE AT

ALL OR EVEN AN INFERENCE TO BE DRAWN FROM ANYTHING YOU

PRESENTED TO ME THAT THAT RELATIONSHIP EXISTED AB INITIO.

CLEARLY, ALL OF THE EVIDENCE OF RECORD IN THE CASE INDICATES

THAT AT SOME POINT THAT KIND OF RELATIONSHIP BEGAN. ARGUABLY.

MAYBE IT DID, MAYBE IT DIDN“T. BUT WE AT LEAST HAVE THIS

MEETING.

NOW. THE STATEMENT SAYS THAT THE MEETING OCCURRED MIDWAY

THE RELATIONSHIP, NOW, DONT HOLD ME TO MIDWAY. BUT DURING THE

RELATIONSHIP AFTER SOME OF THE INCRIMINATING EVIDENCE WAS HAD,

ARGUABLY BEFORE OTHERS. S0 AS TO THE PREEXISTING RELATIONSHIP

BETWEEN OFFIE EVANS AND THE POLICE. I‘M STILL ASKING YOU WHERE

THERE IS ANY EVIDENCE OF A PREEXISTING RELATIONSHIP.

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MR. BOGER: OF COURSE, OUR CONTENTION --

THE COURT: OR WHERE THERE“S ANYTHING THAT THIS

STATEMENT SAYS THAT IS INCONSISTENT WITH WHATS KNOWN?

MR. BOGER: WELL, OUR CONTENTION, OF COURSE. IS THAT THE

STATE RARELY KEEPS RECORDS SAYING WERE BEGINNING TO ENGAGE IN

A FRAUD ON THE STATE COURTS. WE ARE ABOUT TO PUT AN INFORMANT

IN THE JAIL. WE DO THINK THAT THATS A MATTER ON WHICH THE

WRITTEN STATEMENT SHEDS SUFFICIENT SUSPICION AND LIGHT THAT A

FULL HEARING IS WARRANTED. I MEAN. IT ~~ IN OTHER WORDS, WE

MAY WELL FIND THAT THERE ARE FILE TAPES OF BUGGED CONVERSATIONS

BETWEEN MR. EVANS AND MR. MCCLESKEY. THATS A POSSIBILITY. AT

THIS POINT WE DON’T KNOW. WED HAVE TO TALK TO THE OFFICIALS.

WED HAVE TO HAVE THEM UNDER OATH AND HAVE THEM TESTIFY ABOUT

THAT. WE D0 KNOW FROM THE STATEMENT THAT MR. EVANS HAS GIVEN

SUBSTANTIALLY DIFFERENT TESTIMONY AT TRIAL —- THIS GOES TO THE

BRADY ISSUE ~- THAN WHAT HE GAVE IN THIS WRITTEN STATEMENT.

THE COURT: SUBSTANTIALLY DIFFERENT IN WHAT RESPECT?

MR. BOGER: WE CAN POINT TO EIGHT OR TEN MATTERS. YOUR

HONOR, AND I HAVE THOSE CATALOGUED AND CAN GO THROUGH THEM FROM

HOW THE CONVERSATIONS FIRST AROSE AT TRIAL. HE TOLD THE JURY

WE JUST BEGAN TO TALK ABOUT IT, INDEED, IN MORE DETAIL THAN

THAT.

THE COURT: THE ONLY ONE I‘M AWARE OF FROM YOUR PETITION

IS THE -- THE I-SHOT-IN-PANIC STATEMENT.

MR. BOGER: IN OUR PETITION, YOUR HONOR. I THINK WE

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POINT OUT THAT HIS TESTIMONY IS SUBSTANTIALLY AT VARIANCE ABOUT HOW THE RELATIONSHIP FIRST BEGAN. THE WHOLE POINT THAT I

MENTIONED JUST EARLIER, DID HE -- DID THE JAILER OVERHEAR HIM

AFTER THE CONVERSATIONS AND THEN HE SIMPLY DISCLOSED WHAT HE |

KNEW, OR WERE THERE A SERIES OF MEETINGS IN WHICH HE WENT BACK |

AND FORTH WITH ADDITIONAL EVIDENCE TO THE STATE. THATS ONE. |

WHAT HIS MOTIVATION WAS, WHETHER HE WAS DOING THIS, AS HE PUT

IT, TO LET THE CHIPS FALL WHERE THEY MIGHT, WHOEVER IT MIGHT

HARM AND WHAT MIGHT HAPPEN OR WHETHER, IN FACT. HE WAS DOING IT

FOR DIFFERENT REASONS.

THE COURT: I RULED WITH YOU ON THAT ISSUE. LET ME SAY |

IT AGAIN: GIGLIO IS NOTHING BUT A SUBSET OF BRADY. ANY

EVIDENCE THAT SHOWS THAT A WITNESS HAD A HOPE OF REWARD, IN

| THIS COURT‘S MIND, WAS THEN AND IS NOW IMPEACHED., BUT I HAVE

BEEN REVERSED EN BANC AND WE ARE WASTING OUR TIME TO WORRY

ABOUT THAT. THAT’S ABOUT AS THOROUGH A REVERSAL AS YOU CAN

GET.

MR. BOGER: IT WAS A CLOSE EIGHT TO FOUR VOTE. YOUR

HONOR, AND WE DO THINK THAT’S --

THE COURT: THATS TWO TO ONE. I DON’T CALL THAT CLOSE.

MR. BOGER: I LOST THE STATISTICAL ARGUMENT. AS I

RECALL. BUT. FOR EXAMPLE. IN THIS STATEMENT —— AND IT“S HARD

TO KNOW NOW WHETHER HES LYING IN THE STATEMENT OR SAYING THAT

HE LIED TO MCCLESKEY -- BUT HE SAYS, "I USED TO STICK UP WITH

THEM, TOO." MEANING DO STICK UPS OR DO ARMED ROBBERIES. HE

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TESTIFIED AT TRIAL THAT HE NEVER HAD ANY RUNNING RELATIONSHIP

ON THE STREET WITH MR. —— WITH MR. WRIGHT. THAT’S OBVIOUSLY AN

IMPORTANT POINT.

THE COURT: WELL, I READ THOSE POINTS. I THOUGHT THOSE

WERE YOUR ARGUING THAT HE WAS PUT UP TO THIS, NOT THAT THEY

WERE TRULY IMPEACHING.

MR. BOGER: THAT’S RIGHT. HE TESTIFIES. YOUR HONOR. OR

IN HIS WRITTEN STATEMENT HE SAYS THAT HE TOLD MCCLESKEY THAT HE

HAD SEEN BEN WRIGHT A FEW WEEKS AGO AND THAT BEN WRIGHT TOLD

HIM THEY, THE OTHER CO-DEFENDANTS., WERE TRYING TO PUT IT ON

WRIGHT. TRYING TO PUT THE SHOOTING ON WRIGHT. MAKE HIM THE

RESPONSIBLE PARTY. HE TESTIFIES AT TRIAL THAT HE DIDN‘T SPEAK

WITH WRIGHT AT ALL BETWEEN THE TIME OF THE ROBBERY AND THE

EVENTS THAT OCCUR HERE, THAT HE HADNT SEEN HIM. SO HE HAS, IN

HIS STATEMENT. TESTIMONY THAT HE HAS SPOKEN WITH WRIGHT. AND,

INDEED, THERE’S SOMETHING THAT WED LIKE TO PURSUE ON THAT.

THE KNOWLEDGE THAT THE OTHER CO-DEFENDANTS WERE SAYING

THAT BEN WRIGHT WAS THE PERSON WHO WAS THE TRIGGER PERSON WHO

KIND OF, QUOTE. PUT IT ON BEN WAS. TO OUR BEST INFORMATION. NOT

PUBLIC KNOWLEDGE. IT WAS SOMETHING THAT WAS KNOWN TO THE

POLICE THROUGH THEIR INTERROGATION OF MR. MCCLESKEY. FOR MR.

EVANS TQ COME IN TO THE CELL AND BEFORE MCCLESKEY HAS TALKED

ABOUT THIS WITH HIM, TO SAY. "OH. BY THE WAY, I HEAR THAT YOU

ARE TRYING TO PUT THIS ON MR. WRIGHT, MAKE HIM THE RESPONSIBLE

TRIGGER PERSON." IS —— SUPPORTS AN INFERENCE AT LEAST THAT HE

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GOT THAT INFORMATION FROM SOMEONE. FROM THE POLICE.

THAT, IN OTHER WORDS, THE POLICE TOLD HIM, THIS IS WHAT | MCCLESKEY HAS SAID THUS FAR. HERE‘S THE KIND OF INFORMATION WE

NEED YOU TO GET. GO IN TO THE CELL. SAY YOU‘RE THE UNCLE OF |

BEN WRIGHT. SAY YOU‘VE SEEN HIM RECENTLY. SAY HERES WHAT HE |

TELLS YOU. SAY YOU USED TO DO STICK UPS WITH HIM AND SEE WHAT |

COMES OUT. THERES OTHERWISE NO MOTIVE FOR THIS MAN. IF HE’S |

SIMPLY SITTING IN THE CELL, TO MAKE UP A STRING OF STATEMENTS, |

I‘M BEN WRIGHT’S UNCLE. MY NAME IS CHARLIE. I‘VE HEARD THESE

THINGS. WHICH HE APPARENTLY HAD NOT HEARD, I KNOW WHAT YOU‘RE

SAYING TO THE POLICE, UNLESS —— UNLESS HE’S ON A MISSION

ALREADY. OTHERWISE HE SIMPLY IS SITTING THERE HEARING WHATEVER

HE HEARS, BUT WE‘VE GOT HIM ACTING AGGRESSIVELY AND, INDEED, |

WHEN THE CO-DEFENDANT SAYS. YOU BETTER BE CAREFUL, THIS MIGHT

BE THE MAN, TO WIT, IT MIGHT BE AN AUTHORITY. HE ALLAYS THE

CO-DEFENDANT“S SUSPICION BY TALKING TO HIM ABOUT THINGS HE KNEW

AT REIDSVILLE AND, BASICALLY —- |

THE COURT: THAT’S NOT EXACTLY THE WAY IT WENT. BUT I

KNOW WHAT YOU MEAN. MCCLESKEY SAYS, NO, HE‘S NOT THE MAN

BECAUSE HE HAS ALREADY INDICATED TO ME THAT HE KNEW PEOPLE OUT

HERE. |

MR. BOGER! THIS IS NOT THE ACTION OF A PASSIVE PERSON

IN THE CELL WHO SIMPLY HEARS SOMETHING NEXT DOOR. THIS IS A

MAN -- THIS IS A MAN ON A MISSION TO GAIN THE CONFIDENCE OF MR.

MCCLESKEY AND GET STATEMENTS FROM HIM, AND, CERTAINLY. WE THINK

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THAT, ALL OF WHICH CONTRADICTS THE WAY HE TOLD IT AT TRIAL AND,

THEREFORE, BEARS ON THE BRADY POINT. THE MOONIE VERSUS HOLLAHAN

POINT BECAUSE ITS VERY IMPORTANT FOR A JURY WHO IS TRYING TO

MAKE A DECISION ABOUT WHETHER TO TRUST OFFIE EVANS ON THIS

CRITICAL POINT TO KNOW WHETHER HE‘S DOING IT FOR SIMPLY TELLING

WHAT HES HEARD LIKE A TAPE RECORDER OR WHETHER HE HIMSELF HAS

INSINUATED HIMSELF WITH SOME -- SOME END IN VIEW.

THE COURT: WELL, IF THAT COULD BE CONSIDERED BRADY I

WOULD FIND IT WOULD BE HARMLESS BEYOND A REASONABLE DOUBT FOR

THE REASON I SAID EARLIER. AND THAT IS ANY JURY WHO HAD SEEN

THIS STATEMENT. I SUBMIT, WOULD BELIEVE OFFIE EVANS BEYOND ANY

SHADOW OF A DOUBT.

MR. BOGER: I WANTED TO ADDRESS --

THE COURT: NOW, WHETHER OR NOT THOSE INFERENCES FIT THE

WAY THEY DO ABOUT WHETHER HE WAS PUT UP TO IT IS ANOTHER

MATTER.

MR. BOGER: I WANTS TQ ADDRESS A POINT IN TWO WAYS. YOUR

HONOR. ONE, OF COURSE. IF THERE IS A MASSIAH VIOLATION, THE

JURY NEVER WOULD HAVE SEEN THIS STATEMENT. IT WOULD HAVE BREEN

SUPPRESSED.

THE COURT: SURE. I UNDERSTAND THAT.

MR. BOGER: BUT THE SECOND IS ITS OUR CONTENTION THAT

IT’S PERFECTLY PLAUSIBLE FOR AN INMATE LIKE OFFIE EVANS, WHO

KNOWS WHAT THE STATE NEEDS, IT“S GOT FOUR PEOPLE FOR ARMED

ROBBERY, IT’S GOT THEM FOR FELONY MURDER. IT WANTS. AS RUSSELL

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| PARKER SAID AT THE OPENING OF MCCLESKEY’S TRIAL, IT WANTS TO

| EVIDENCE DIRECTLY. IT‘S PERFECTLY PLAUSIBLE FOR OFFIE EVANS,

| KNOWING THAT THERES A BENEFIT IN IT FOR HIM, TO GO INTO THE

| CELL, TO GARNER LOTS OF TRUE STATEMENTS ABOUT HOW THE ROBBERY

PROVE WHO THE TRIGGER PERSON IS, AND IT DOESN‘T HAVE THAT

TOOK PLACE, BUT TO ADD AS THE TOPIC WHAT HE KNOWS WILL SUIT THE,

STATES INTEREST, SOME STATEMENTS CONFESSING TO BEING A TRIGGER

MAN, WHICH ARE NOT THEMSELVES TRUE.

THE COURT: I HEAR YOU BUT I‘M NOT CONVINCED.

MR. BOGER: WELL -—
THE COURT: BECAUSE OF THE CONTEXT IN WHICH THE MOST

INCRIMINATING EVIDENCE IS STATED. I MEAN. YOU ARGUE ON THE ONE

HAND TO ME THAT OFFIE EVANS IS AN ILLITERATE DOFE. AND ON THE

OTHER HAND HE IS BECOMING IN WHAT APPARENTLY IS A
CONTEMPORANEOQUSLY RECORDED STATEMENT. SOMEBODY OF AT LEAST JOEL

CHANDLER HARRIS” ABILITY. IF NOT FAULKNER‘S ABILITY. AT WEAVING

YARNS, AND THAT DOESN‘T HAVE THE SOUND OF A LIE TO ME. |

MR. BOGER: WELL, HE KNOWS -- HE IS STREET SMART. HES

BEEN IN AND OUT OF JAIL SINCE 1953. HE UNDERSTANDS THE BOTTOM

LINE IN TERME OF POLICE PRACTICES AND FROSECUTORIAL NEEDS. |

THE COURT: SURE. AND ALL HES GOT TO DQ IS SAY, LOOK,

THE MAN TOLD ME HE PULLED THE TRIGGER. HE DOESNT KNOW TO |

EMBROIDER ALL THIS AND GIVE IT THE TEXTURE THAT IT HAS. BUT

ANYHOW THAT’S THE SUBJECT ON WHICH I GUESS WE WILL HAVE TO JUST -

MR. BOGER: BUT TO LOOK BACK, IN EFFECT. YOUR HONOR, TO |

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THE ABUSE QUESTION. THE QUESTION IS INEXCUSABLE NEGLECT AND

FAILURE TO DISCOVER THIS RELATIONSHIP. IF YOU LOOK AT THE --

AT THE CRITICAL CASES ON INEXCUSABLE NEGLECT, THE CLASSIC CASE

IS PRICE VERSUS JOHNSON. THE 1948 SUPREME COURT CASE IN WHICH

ON A FOURTH PETITION, THE SUPREME COURT HELD THAT A DEFENDANT

WAS ENTITLED TO A HEARING WHERE HE DISCOVERED THAT THERE WAS A

RELATIONSHIP BETWEEN THE PROSECUTOR AND A WITNESS THAT MAY HAVE

VIOLATED THE EQUIVALENT OF GIGLIO OR BRADY.

THE COURT NOTED, AND I CAN‘T RECALL THE FACTS PRECISELY.

THE COURT NOTED IN PRICE VERSUS JOHNSON, IT WAS INSTINCT IN THE

RELATIONSHIP THAT THIS WITNESS -- THIS WITNESS MAY HAVE GIVEN

FALSE TESTIMONY. BUT WELL CONFESS IT“S NOT INEXCUSABLE NEGLECT

FOR THE STATE TO WITHHOLD THIS EVIDENCE AND FOR YOU TO COUNT ON

THE INTEGRITY OF THE STATE. UNDER THESE CIRCUMSTANCES. THE COURT: IF YOURE TALKING ABOUT THE STATEMENT

THATS ANOTHER MATTER. IF YOURE TALKING ABOUT YOUR

BROAD-SCALED ATTACK, YOU HAVE INDICATED TODAY WHAT IT REQUIRES

TO GET AT IT. BASICALLY. YOU ASKED TWO FOLKS. AS I UNDERSTAND IT, WHO HAD SOME KNOWLEDGE. RUSS PARKER AND OFFIE EVANS,

DIRECTLY IF THERE WAS THIS RELATIONSHIP. THEY SAID, NO. THERE

IS ABSOLUTELY NO INDICATION THAT THEY WENT TO THE OFFICERS. |

THERE IS NO INDICATION OF SUBPOENAING JAIL RECORDS. THERE IS

NO INDICATION OF SUBPOENAING ALL THESE OTHER RECORDS. AND

THATS THE WAY YOU DO IT. AND IF THEY DONT LET YOU DO IT IN

THE STATE HABEAS, THEY MAY LET YOU DO IT IN THE FEDERAL HABEAS,

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| BUT UNLESS YOU BRING IT HERE THE FIRST TIME AROUND YOU DONT

KNOW.

MR. BOGER: WELL, YOUR HONOR, MY RESPONSE TO THAT IS

THAT MR. STROUP DID, IN FACT. TALK WITH THE JAIL OFFICIALS WHO

THE ATLANTA BUREAU OF POLICE TOLD HIM WOULD BE THE PEOPLE WHO

WOULD KNOW ABOUT THIS. AND WHAT THE JAIL OFFICIALS SAID WAS

UNHELPFUL. AT SOME POINT -- AT SOME POINT ONE HAS TO BE ABLE

TO RELY ON THE INTEGRITY OF THE OFFICIALS WITH WHOM ONE IS

DEALING. ONE SIMPLY CAN‘T BEGIN EVERY FEDERAL OR STATE HABEAS

CORPUS PROCEEDING BY SAYING I THINK THE ATTORNEY GENERAL IS

LYING, I THINK THE PROSECUTOR IS LYING, I THINK THE POLICE ARE

LYING. AND I“M GOING TO SUBPOENA EVERYBODY CONNECTED WITH THE

CASE.

NO DOUBT. IF THAT WERE DONE IN EVERY CASE. THERE WOULD

BE ROUTINE MOTIONS BY THE STATE SAYING. SHOW ME SOMETHING.

SHOW ME SOMETHING THAT PROVES THAT YOUVE GOT ANY —— ANYTHING

WOULD BE. I DON‘T KNOW, IM JUST HERE BECAUSE THE LAW HAS

DEVELOPED THAT YOU CAN‘T TRUST THE PROSECUTOR WHEN HE SAYS, I

DON’T KNOW OF ANY RELATIONSHIP BETWEEN THE FOLICE OR MYSELF,

PARENTHETICALLY NOTE THAT THE PROSECUTOR IS IN ON THESE

MEETINGS, BOTH EVANS AND —— AND THE DETECTIVES AND PARKER

HIMSELF ACKNOWLEDGE THAT WHEN THEY MEET, HE‘S WITH THEM, SO I

DON‘T KNOW OF ANYTHING THAT MY COLLEAGUES HAVE DONE. AND THE

SUGGESTION TO THE COURT IS THAT A RULE WOULD BE ESTABLISHED

MORE THAN A SUSPICION THAT EVERY ONE IS LYING, AND THE RESPONSE

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THAT HOLDS IT’S INEXCUSABLY NEGLECTFUL TO SAY. WELL. PARKER IS

PROBABLY BEING MISLED. OR HE‘S A FOOL OR HE’S BEING DISHONEST.

HIS COLLEAGUES PROBABLY DID THIS EITHER BEHIND HIS BACK OR WITH

HIS CONNIVANCE, AND WE JUST DIDN’T ASK THE QUESTION THE RIGHT

WAY. AND IT’S INEXCUSABLY NEGLECTFUL.

~ THE COURT: WELL, AS TO THE AB INITIO RELATIONSHIP, THE

PROBLEM I“VE GOT. MR. BOGER, IS THAT YOU ARE NQ FURTHER ALONG

TODAY THAN YOU WERE WHEN MR. STROUP MADE THE DECISION THAT HE

MADE. YOU HAVE NOTHING NEW TODAY TO INDICATE TO ME THAT THERE
WAS AN AB INITIO RELATIONSHIP THAN YOU DID BACK THEN.

MR. BOGER: I --— NO.

THE COURT: AND AT THIS POINT IN TIME YOU WANT ME TO

STOP THE WORLD SO YOU CAN CONDUCT A FISHING TRIP ON THE THIRD

HABEAS OR THIRD APPEAL OR -—- |

MR. BOGER: I“VE GOT EVIDENCE —- YOU‘RE RIGHT, YOUR |

HONOR. IVE GOT EVIDENCE IN WRITING, A STATEMENT BY EVANS

WITNESSED BY MR. PARKER, WHICH SHOWS THAT AT SOME POINT IN THE |

MIDDLE OF THE PROCEEDINGS THERE WAS SOMETHING THAT WASN‘T |

DISCLOSED TO THE JURY OR TO THE DEFENSE COUNSEL THAT IS AT |

VARIANCE WITH THE TESTIMONY. I“VE GOT EVIDENCE THAT MR. EVANS

STATEMENT KNOWN TO THE PROSECUTOR AND TO THE STATE WAS |

MATERIALLY AT VARIANCE WITH HIS TESTIMONY AT TRIAL. WHAT I DO |

NOT HAVE AT THIS POINT IS A WRITTEN DOCUMENT THAT SHOWS WHEN |

THE RELATIONSHIP WITH MR. EVANS AND THE STATE ACTUALLY BEGAN. |

I AGREE WITH THAT. OF COURSE -—-- |

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|

| WHEN IT BEGAN. WHETHER THAT‘S BELIEVABLE OR NOT IS --

THE COURT: WELL. YOUVE GOT PLENTY OF EVIDENCE TO SAY
MR. BOGER: THAT’S RIGHT. |

THE COURT: -—- ANOTHER MATTER.

MR. BOGER: BUT THIS IS PECULIARLY THE KIND OF CLAIM, |

THIS IS UNLIKE AN INEFFECTIVE ASSISTANCE CLAIM WHERE YOU CAN

SAY TO COUNSEL. COUNSEL. JUST GO OUT AND DO THE INVESTIGATION

YOURSELF. THE PEOPLE WERE TRYING TO INVESTIGATE ARE THE PEOPLE THAT TRIED THE CASE. THEY’RE STATE OFFICIALS.

THE COURT: WELL. UNTIL YOU HAVE EXAMINED THE PEOPLE |

THAT WERE INVESTIGATING THE CASE THAT ALLEGEDLY HAD CONTACT

WITH HIM AND UNTIL YOU HAVE SUBPOENAED THE RECORDS OF THE JAIL

TO A HEARING, IN THIS COURT’S VIEW. YOU HAVENT TOUCHED EVERY

BASE.

MR. BOGER: I AGREE WE HAVE NOT TOUCHED EVERY BASE.

THE COURT: BUT THAT REALLY MAY NOT MATTER BECAUSE ON

THE FACE OF THIS STATEMENT THERE MAY BE YET A MASSIAH

VIOLATION. THAT I THINK IS WHAT WE HAVE TO ADDRESS NEXT. SO

WITHOUT --

MR. BOGER: LET ME —

THE COURT: ~—— WITHOUT CARRYING ON THIS COLLOGUY MUCH

LONGER, I“LL LET YOU FINISH IN A SECOND OR TWO, I WANT TO HEAR

YOUR VIEW OF ALL OF THE REQUESTS THAT WERE MADE FOR A WRITTEN

STATEMENT.

MR. BOGER: ALL RIGHT. YOUR HONOR. THE FINAL REMARKS ON

THAT IS I WOULD RESPECTFULLY SUGGEST THAT THE ISSUE IS NOT

WHETHER EVERY BASE WAS TOUCHED. INEXCUSABLE NEGLECT REALLY

CONTEMPLATES NEGLECT. IT CONTEMPLATES LESS THAN AN UTTERLY
THOROUGH JOB. INDEED, THE CASE MOST ON POINT IM SORRY TO SAY. IS ANOTHER CASE IN WHICH I WAS INVOLVED CALLED ROSS VERSUS |

COPPER IN WHICH THE 11TH CIRCUIT REMANDED A MATTER FOR FURTHER |

CONSIDERATION ON INEXCUSABLE NEGLECT AND SET DOWN SOME |

STANDARDS TO GUIDE THAT INQUIRY, AND IT CITES MOST OF THE OTHER

CONTEMPORARY AUTHORITY. THE COURT CONCEDES THERE CAN BE

NEGLECT. THE QUESTION IS WHETHER IT IS INEXCUSABLE., WHETHER THERE WAS ANY EXCUSE FOR IT, AND QUR SUBMISSION, INDEED. IS

THAT WHEN STATE OFFICIALS CLOSELY RELATED TO THE MATTER.

INCLUDING THE PROSECUTOR AND THE JAILERS HAVE MADE THESE

REPRESENTATIONS THERE'S NOTHING GOING ON THAT —-

THE COURT: WELL, I DON‘T MEAN TO SAY THAT WHAT WE-RE

DEALING WITH IS ALTOGETHER INEXCUSABLE NEGLECT BECAUSE THERE

WAS SOME FOLLOWING UP ON THE ISSUE. THE PROBLEM IS THAT You

LEFT IT ON THE TABLE AT THE STATE HABEAS HEARING AND IF —- IF

MR. STROUP DIDNT THINK HE WAS GOING TO GET A FULL AND FAIR

HEARING THERE. HE CERTAINLY CAN TRY HERE. BUT IT WAS LEFT

THERE. THAT WAS AN INTENTIONAL DECISION BY YOU ALL TO DO THAT

BASED ON THAT AND NOTHING HAS CHANGED EXCEPT THIS STATEMENT, |

AND THIS STATEMENT DOESN‘T CHANGE THE FACTS THAT WERE KNOWN AT |

THE TIME. AS TO WHEN THE RELATIONSHIP BEGAN. NOW, AS TO WHEN

INFORMATION WAS OBTAINED WITH REFERENCE TO THAT BEGINNING OF

{

THE RELATIONSHIP, I CONCEDE THAT THIS STATEMENT IS NEW AND

DIFFERENT.

MR. BOGER: WELL, LET ME -— WE, I THINK, HAVE EXFLORED

THIS TOPIC AT SOME LENGTH. YOU ASKED, YOUR HONOR, FOR ME TO

ADDRESS THE QUESTION ABOUT DISCOVERY OF THE STATEMENT ITSELF,

IS THAT --

THE COURT: I REMEMBER FROM READING YOUR PETITION ON

SUNDAY -- WELL. ACTUALLY I DIDNT READ IT ON SUNDAY. I READ IT

ON SATURDAY. WHICH IS SOME DAYS AGO -- THAT YOU CLAIM TO —-

THAT VARIOUS OF MR. MCCLESKEY’S LAWYERS ASKED ON A NUMBER OF

OCCASIONS ASKED FOR A WRITTEN STATEMENT AND WERE DENIED. TELL
ME ABOUT THAT.

MR. BOGER: THAT‘S CORRECT.

THE COURT: TELL ME WHAT YOUR PROFFER IS.

MR. BOGER: PRIOR TO TRIAL, YOUR HONOR, THE ATTORNEY FOR

MR. MCCLESKEY, JOHN TURNER. DID FILE A KIND OF OMNIBUS MOTION

IN WHICH HE REQUESTED ALL MATERIAL THAT MIGHT BE EXCULPATORY.

ALL WITNESS STATEMENTS OF ANYBODY WHO HAD KNOWLEDGE OF THESE

MATTERS AND ALL STATEMENTS BY HIS CLIENT. THAT’S INCLUDED IN

OUR PETITION AS EXHIBIT M, AND I MUST SAY, YOUR HONOR, WE MADE
A MISTAKE WITH THE DOCUMENT WE SENT TO YOU WITH THE LETTERING

OF SOME OF THE EXHIBITS, AND SO THE REVISED VERSION THAT WE |

FILED WITH THE THE COURT HAS GOT THE PROPER M. I THINK THE M |

YOU HAVE IS ACTUALLY A DIFFERENT DOCUMENT, BUT IN THE QFFICIAL |

VERSION AS EXHIBIT M SO HE ASKED -- HE ASKED FOR ALL SUCH

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| APPOINTMENT WHICH I“VE GOT TO KEEP, SO ILL CERTAINLY LET YOU

74 |

THE COURT: BEFORE THIS BEGAN I SET A LUNCHEON

FINISH -——

MR. BOGER: FINE.

THE COURT: -—- BUT IT WILL BE AFTER LUNCH. MS.

WESTMORELAND, LET ME TELL YOU THIS: IF I DETERMINE TQ LET THIS

STATEMENT IN, MY FIRST REACTION AS TO TO WHAT APPEARS ON PAGE |

16 VIS-A-VIS THE —-- PAGE 14 IS THAT THAT WOULD BE PRIMA FACIE |

EVIDENCE OF A MASSIAH TYPE VIOLATION, AND THE BALL WOULD BE IN

YOUR COURT TO REBUT IT. I JUST DON‘T WANT YOU TO BE SURPRISED |

BY THAT. ALL RIGHT? WE‘LL BE IN RECESS UNTIL 2:00 0‘CLOCK.

(WHEREUPON, A LUNCHEON RECESS WAS HAD.)

THE COURT: YOU WERE GOING TO TELL ME ABOUT THE EFFORTS |

ALLEGEDLY MADE TO REQUEST WRITTEN STATEMENTS. |

MR. BOGER: YES, YOUR HONOR. SHORTLY BEFORE WE BROKE

FOR LUNCH. I WAS BEGINNING TO GO THROUGH THE DOCUMENTS THAT ARE

IMPORTANT ON THIS MATTER. THE FIRST ONE IS IN, AS I INDICATED,

EXHIBIT M. IT WAS THIS OMNIBUS DISCOVERY MOTION THAT WAS FILED

PRETRIAL BY JOHN TURNER.

THE COURT: WHAT WITH REFERENCE TO WRITTEN STATEMENTS

DOES IT SPECIFICALLY SAY?

MR. BOGER: FOR EXAMPLE. IT“S ENUMERATED "PARAGRAPH TWO,

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. ALL WRITTEN STATEMENTS OF WITNESSES IN THE POSSESSION OF

PROSECUTOR RELATED TO THE CHARGES AGAINST THE NAMED DEFENDANT

. IN THE ABOVE STYLED CASE AS WELL AS ALL STATEMENTS RELATING TO

| ANY OTHER DEFENDANTS." THAT’S ON THE FIRST PAGE OF THE

MULTIPLE PAGE DOCUMENT.

THE COURT: ALL RIGHT.

MR. BOGER: THEN, FOR EXAMPLE. FURTHER DOWN, "PARAGRAPH

EIGHT. ALL WRITTEN OR RECORDED STATEMENTS AND ALL SUMMARIES OR

MEMORANDA OF ANY ORAL. OR WRITTEN STATEMENTS MADE BY THE NAMED
DEFENDANT AND ALL OTHER DEFENDANTS." WHICH IT SEEMS TQ ME WOULD

ENCOMPASS NOT ONLY WRITTEN STATEMENTS TAKEN FROM THE DEFENDANT |

BUT ORAL STATEMENTS MADE BY THE DEFENDANT TO A THIRD-PARTY SUCH
|

AS MR. EVANS. AND THERES A RECITATION FURTHER ON ABOUT THE |

NEED FOR THESE DOCUMENTS AND SO FORTH. |

THE COURT: LET ME TAKE YOU TO PARAGRAPH 12 WHICH

CATCHES MY EYE, "A DETAILED DESCRIPTION OF ALL PHYSICAL ITEMS

OTHER THAN DOCUMENTS AND PICTURES WHICH THE PROSECUTOR

ANTICIPATES USING IN THE TRIAL OF THE MAIN DEFENDANT IN THE

EXACT PLACE WHERE AND UNDER WHOSE CUSTODY SAID ITEM" —— THIS

MOTION IS MADE UNDER THE AUTHORITY OF BRADY. IS THERE ANY

OTHER BRADY REQUEST BESIDES THAT?

MR. BOGER: THERE IS A SECOND MOTION THAT WE APPEND HERE

THAT FOLLOWS THIS ONE. IT’S CALLED MOTION FOR DISCLOSURE OF

IMPEACHING INFORMATION WHICH IN EFFECT, AS YOU SEE READING IT, |

ASKS FOR ALL CONSIDERATIONS OR PROMISES, ALL MATTERS WHICH

COULD BE USED -- IT“S MORE A GIGLIO REQUEST THAN IT IS A BRADY

REQUEST, BUT IT ASKS FOR IMPEACHING EVIDENCE OF ANY WITNESSES

AGAINST —- THE STATE WILL USE.

THE COURT: LET’S BE SURE THAT’S THE PROPER

CHARACTERIZATION. LET ME READ IT.

MS. WESTMORELAND: YOUR HONOR, I HATE TO INTERRUPT MR.

BOGER“S PRESENTATION, BUT I WOULD LIKE TO ASK ONE QUESTION AT

THIS TIME. IF THESE ARE THE SAME DOCUMENTS WHICH WERE

SUBMITTED TO THE SECOND STATE HABEAS CORPUS COURT AS EXHIBITS

AT THAT TIME THAT HE IS REFERRING TO NOW?

MR. BOGER: THEY ARE. YOUR HONOR.

MS. WESTMORELAND: IN THAT CASE. YOUR HONOR, WE WOULD

NOTE THAT THAT COURT SPECIFICALLY DECLINED TO ADMIT THE

DOCUMENTS, THEY WERE NOT SIGNED. THEY HAVE NOT BEEN STAMPED

FILED AND COULD NOT BE LOCATED IN THE ACTUAL TRIAL RECORD OF

THE CASE. OUR INDICATION TO THE COURT AT THAT TIME WAS THAT

THERE WAS AN IN-CAMERA INSPECTION DONE, S0, OBVIOUSLY. SOME

REQUEST WAS MADE SOMEHOW SOMEWHERE, BUT THERE HAS NEVER BEEN

ANY INDICATION THAT THESE PARTICULAR MOTIONS WERE FILED.

THE COURT: WHO TRIED THIS CASE, JUDGE WILLIAMS TRY IT?

MR. BOGER: SAM MCKENZIE, YOUR HONOR.

MS. WESTMORELAND: JUDGE MCKENZIE TRIED THE CASE. YOUR

HONOR.

MR. BOGER: YOUR HONOR. WE DID GO INTO THAT IN SOME

DETAIL IN THE STATE HABEAS CORPUS PROCEEDINGS. MR. STROUP

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TESTIFIED THAT HE OBTAINED MR. TURNER‘S FILE, AND THAT'S WHERE

THESE DOCUMENTS CAME FROM. IT IS CLEAR THAT SOME WRITTEN

DOCUMENTS WERE FILED. MS. WESTMORELAND HAS REPRESENTED, WE

HAVE NOT HAD A CHANCE TO CHECK, THAT THE SUPREME COURT OF

GEORGIA FILE DOES NOT CONTAIN THESE DOCUMENTS. IN FACT,

THOUGH. THERE WERE WRITTEN BRADY REQUESTS OF THIS SORT MADE,

BUT THE IN-CAMERA ORDER WAS IN RESPONSE TO THEM AT THE TRIAL

LEVEL. THERE WAS A BRADY CLAIM BROUGHT TO THE STATE SUPREME

COURT. THE STATE SUPREME COURT IN ITS OPINION REVERSES THAT

|
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THERE WAS A WRITTEN REGQUEST FOR SUCH MATERIAL. WE CITED TO THE

STATE COURT A STATE STATUTE WHICH PERMITS THE INSTANTER

RECOGNITION OF AN UNSIGNED DOCUMENT LIKE THIS, IF THE ORIGINAL |

HAS BEEN LOST FROM THE TRIAL RECORD THROUGH NO FAULT OF THE

DEFENDANTS.

SINCE MR. TURNER, WHO IS NOW AN ASSISTANT DISTRICT

ATTORNEY IN FULTON COUNTY, REPRESENTED BOTH AT TRIAL AND IN

STATE HABEAS THAT SUCH DOCUMENTS WERE FILED. WE SAID THESE ARE

PLAINLY THE DOCUMENTS. AND HERE ARE THE COPIES AND, IN EFFECT. |

THEY ARE THE BEST EVIDENCE. AND WE NEVER HAD TO FULLY RESOLVE |

THE MATTER BECAUSE THE STATE WAS FORCED TO CONCEDE THERE WERE

BRADY REQUESTS THAT WERE FILED BY MR. TURNER, AND THERE WERE

REQUESTS FOR THESE KINDS OF STATEMENTS.

MS. WESTMORELAND: WE CONCEDED THAT. OBVIOUSLY. THERE

WAS SOME BASIS FOR THE TRIAL COURT MAKING AN IN CAMERA

INSPECTION. THE CONCESSION WAS NEVER MADE THAT THESE MOTIONS

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WERE EVER FILED OR EXACTLY WHAT MOTIONS WERE FILED BY THE COURT

AND WE CERTAINLY -—-

THE COURT: YOU CONCEDE THAT THERE WAS A BRADY REQUEST?

MS. WESTMORELAND: YOUR HONOR, WE CONCEDE THAT SOMETHING

PROMPTED THE TRIAL COURT TO MAKE AN IN-CAMERA INSPECTION.

THATS ALL WE REALLY KNOW FOR THE RECORD, IS IT EXISTS AT THIS |

POINT. WE JUST —— AS I SAID, THE OFFICIAL RECORDS DO NOT

CONTAIN THESE MOTIONS. WHETHER IT WAS MADE ORALLY, PROFFERED

TO THE COURT, WE DON’T KNOW.
THE COURT: AS FAR AS I KNOW, THE FEDERAL RULES OF |

EVIDENCE APPLY IN HABEAS CORPUS PROCEEDINGS. AND YOU ARE UNABLE

TO AUTHENTICATE THE DOCUMENTS, SO I CAN‘T CONSIDER THEM. I |

WILL CONSIDER THE FACT THAT A REQUEST WAS MADE FOR STATEMENTS,

WHICH IS NECESSARILY IMPLIED FROM THE ACTION OF THE TRIAL

COURT.

MR. BOGER: YOUR HONOR, WE MAY BE ABLE TO SUPPLEMENT THE
RECORD FURTHER ON THIS PARTICULAR POINT WITH A DOCUMENT THAT |

WAS FILED BY THE STATE IN THE STATE HABEAS PROCEEDING WHICH 1s

MR. TURNER‘S APPELLATE BRIEF, BRIEF TO THE SUPREME COURT OF |

GEORGIA, WHICH MY COLLEAGUE, I THINK WILL LOOK AT WHILE I

CONTINUE OUR CONVERSATION.

MS. WESTMORELAND: WE HAVE SUBMITTED THAT BRIEF TO THIS |

COURT WITH QUR RESPONSIVE PLEADINGS FILED YESTERDAY. |

THE COURT: ALL RIGHT.

M3. WESTMORELAND: IT“S IN THE RECORD.

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MR. BOGER: AND THAT BRIEF REFERS TO SUCH REQUESTS AND,

INDEED, MAKES IT THE BASIS FOR APPEAL. AND THE REQUESTS WERE

DENIED.

THE COURT: WHAT KIND OF REQUESTS?

MR. BOGER: WELL. "IN THE INSTANT" —- QUOTING FROM PAGE

14 OF THE APPELLANT“S BRIEF, "IN THE INSTANT CASE, TRIAL

COUNSEL FILED MOTIONS TO OBTAIN ALL STATEMENTS, PAREN, WRITTEN

OR ORAL. OF THE DEFENDANT AND FOR THE DISCLOSURE OF ALL

IMPEACHING EVIDENCE. PROSECUTOR ALLOWED DEFENSE COUNSEL TO

VIEW THE STATEMENTS OF ALL WITNESSES, ET CETERA." AND ON IT

GOES, AND HE TALKS ABOUT THE IN-CAMERA MATERIALS. SO HE'S
RECITED AT LEAST THAT MUCH, THAT THE DOCUMENTS WERE FILED.

THE COURT: WELL. LET ME SEE WHAT HE SAYS. WELL, FIRST

OF ALL. I DON-T KNOW THAT THIS IS ADMISSIBLE. ARE YOU AGREEING

THAT THIS IS ADMISSIBLE EVIDENCE OF THE FACTS THAT ARE CITED

THEREIN?

MS. WESTMORELAND: YOUR HONOR, WE DO SUBMIT. I THINK,

THE BRIEF FILED ON DIRECT APPEAL IS RELEVANT FOR THE COURT'S

CONSIDERATION. IT WAS SUBMITTED IN THE FIRST FEDERAL HABEAS

PETITION. WE HAVE SUBMITTED IT TO INDICATE THE ISSUES THAT HAD

BEEN RAISED AND THE ALLEGATIONS THAT WERE RAISED. |

THE COURT: WELL, HE WISHES TO OFFER IT FOR THE PROOF OF

THE FACTUAL MATTERS ASSERTED THEREIN BY MR. TURNER. DO YOU |

OBJECT OR NOT?

MS. WESTMORELAND: I THINK, AS FAR AS WHETHER PROOF OF

fe ateals

WHAT MR. TURNER ASSERTS AS FACT THEREIN, WE DO NOT AGREE THAT

IT°S NECESSARILY ADMISSIBLE FOR THAT PURPOSE. |

THE COURT: ALL RIGHT. |

MR. BOGER: MR. TURNER SO TESTIFIED IN THE STATE HABEAS |

PROCEEDING. I‘LL FIND THE REFERENCE. HE TESTIFIED THAT HE HAD

FILED SUCH DOCUMENTS AND THAT —-- HE WAS SUBJECT OF COURSE TO |

CROSS-EXAMINATION BY THE STATE AT THAT TIME AND MADE —— THE |
STATE. TO MY RECOLLECTION, MADE NO CONTENTION THAT SUCH |

DOCUMENTS WEREN‘T FILED, WHAT WE HAVE, IN EFFECT -- |

THE COURT: READ ME WHAT MR. TURNER SAID HE FILED. |

MR. BOGER: LET ME -- IF YOU DON’T MIND, YOUR HONOR, LET

MY COLLEAGUE FIND THAT. HE‘S MORE FAMILIAR WITH THE STATE |

HABEAS TRANSCRIPT. THE CONTEXT. AS YOU WILL SEE FROM THE

TRANSCRIPT ITSELF. IS, IN EFFECT. AN ATTACK BY MR. STROUP ON

TRIAL COUNSEL FOR BEING INEFFECTIVE. IT WAS IN THE CONTEXT OF

QUESTIONING ABOUT WHETHER HE HAD DONE WHAT TRIAL COUNSEL OUGHT |

TO HAVE DONE. THERE IS A QUESTION, ALL RIGHT, HOW ABOUT WITH

RESPECT TO THE TESTIMONY OF OFFIE EVANS, WAS THAT TESTIMONY

ALSO A SURPRISE TO YOU AT THE TIME OF THE TRIAL? THIS IS ON

PAGE 75. THE RESPONSE OF MR. TURNER IS. WELL, YES AND NO, AND |

THE REASON I QUALIFIED THAT IS BECAUSE ONE OF THE FIRST THINGS |

I SAID TO MR. MCCLESKEY WHEN I INTERVIEWED HIM AT THE ATLANTA |

JAIL PRIOR TO PRELIMINARY HEARING WAS NOT TO MAKE ANY

STATEMENTS TO ANYBODY ABOUT THE INCIDENT. HE GOES ON AND TALKS

ABOUT HIS CONVERSATIONS WITH MR. MCCLESKEY, AND THEN HE SAYS IN

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ALL. ORAL ANL' WRITTEN STATEMENTS WITHIN THE POSSESSION AND THE

A SEPARATE PARAGRAPH. IN ADDITION, I FILED A MOTION ASKING FOR

CONTROL OF THE PROSECUTOR, SO I DID NOT HAVE ANY FOREWARNING

THAT MR. EVANS WAS GOING TO TESTIFY TO SOME STATEMENT THAT HE

ALLEGEDLY OVERHEARD BASED ON THOSE CIRCUMSTANCES. THATS ON

PAGE 76.

THE COURT: ALL RIGHT.

MR. BOGER: AFTER THE MOTIONS WERE FILED BY MR. TURNER

IN THE TRIAL COURT. AN IN-CAMERA HEARING WAS HELD. AS A RESULT OF THE IN-CAMERA HEARING, THE STATE TRIAL COURT ENTERED AN

ORDER» A BRIEF ONE-PAGE ORDER, WHICH YOU NOW HAVE AS EXHIBIT N

TO THE STATE -- THE FEDERAL PETITION IN WHICH THE COURT RECITES

THAT IT’S CONDUCTED AN IN-CAMERA INSPECTION OF, QUOTE, CERTAIN |

ITEMS OF EVIDENCE IN THE STATE’S POSSESSION. THE COURT HELD |

THAT IT FOUND THAT “ALTHOUGH SUCH DOCUMENTS MIGHT BECOME

MATERIAL FOR REBUTTAL AT TRIAL. THEY ARE NOT NOW SUBJECT TO

DISCOVERY. IT IS FURTHER ORDERED THAT COUNSEL MAY AT THE

PROPER TIME ASK THE COURT FOR A FURTHER RULING, IF THE

CIRCUMSTANCES MAKE IT APPROPRIATE TO DO SO." NOW. THAT |

DOCUMENT WAS PART OF THE RECORD OF THE TRIAL COURT, AND IF IT-3

NOT ALREADY EVIDENCE IN THIS PROCEEDING, WE WOULD OFFER IT.

THE COURT: OBJECTION?

MS. WESTMORELAND: NO. YOUR HONOR. IN FACT, IT WAS ALSO

TENDERED WITH OUR RESPONSE TO THE COURT.

THE COURT: ALL RIGHT. ADMITTED.

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| EXISTS. BUT HE IS TOLD THAT SOMETHING HAS BEEN LOOKED AT

MR. BOGER: YOUR HONOR, I THINK WE HAVE AN ACTUAL

FACSIMILE, AN EIGHT AND A HALF BY 14 THAT WE CAN SUBMIT IN A

MOMENT THAT WILL BE PETITIONER’S FILING.

THE COURT: ALL RIGHT.

MR. BOGER: LET ME NOTE THAT THIS ORDER DOES NOT MENTION

WHAT IT WAS THAT WAS LOOKED AT IN-CAMERA. IT CERTAINLY DOESN‘T

INDICATE THAT IT WAS A STATEMENT IN WRITING BY MR. EVANS.

INDEED. IT DOESN‘T SAY WHO ITS BY OR WHAT IT’S ABOUT. IT’S

SIMPLY AN ITEM OF EVIDENCE THE COURT SAYS WHICH —— NOW. MR.

PARKER, IN HIS DEPOSITION THAT WAS FILED IN THE STATE HABEAS

PROCEEDING, EXPRESSLY TESTIFIES THAT HE DID NOT TELL JOHN

TURNER. THE DEFENSE COUNSEL, WHAT WAS REVIEWED. HE SAYS, "THE

MORNING OF THE TRIAL MR. TURNER PULLED ME INTQ A ROOM AND SAID,

“WHAT WAS IN THAT EX PARTE APPLICATION? WHAT WAS LOOKED AT BY

THE COURT?” AND HIS RESPONSE WAS. “I“M NOT GOING TO TELL you. |

IF I TOLD YOU, IT WOULDN‘T BE EX PARTE. THAT’S THE WHOLE POINTED OF EX PARTE PROCEEDINGS."

SO AT THAT POINT. AT LEAST, MR. TURNER HAS REQUESTED ALL

SUCH STATEMENTS. HE‘S NOT GOTTEN THIS WRITTEN DOCUMENT FROM |

MR. EVANS, AND HES NOT REALLY BEEN TOLD THAT SUCH A DOCUMENT

IN-CAMERA. THEN DURING THE MIDDLE OF THE TRIAL ON

CROSS-EXAMINATION OF MR. MCCLESKEY., THE STATE PROSECUTOR

OBVIOUSLY BEGINS TO ASK SOME QUESTIONS TO SET UP A BASIS FOR

IMPEACHING MR. MCCLESKEY, QUESTIONS ABOUT. DID YOU TALK WITH

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- ANYONE IN THE JAIL? DID YOU SAY X OR Y? STATEMENTS ON WHICH

| COUNSEL REALIZED THIS. IN OTHER WORDS, HE SAID, "YOUR HONOR.

| WAIT JUST A MINUTE. IT APPEARS TO ME NOW THAT THERE'S SOME

| WE KNOW NOW. THERE ARE AT LEAST THREE KINDS OF STATEMENTS THAT

IT WAS OBTAINING DENIALS BY MR. MCCLESKEY. AND THE TRIAL

STATEMENT THAT MAY BE INTRODUCED."

LET ME RECITE SPECIFICALLY. EXHIBIT O TO OUR PETITION

CONTAINS EXCERPTS FROM THE TRIAL TRANSCRIPT ONCE AGAIN. PAGES

830 TO 833 OR 832, I“M SORRY. AND HERE IS THE WAY IT READS AT

THE BOTTOM OF THAT PAGE.

THE COURT: WHAT PAGE?

MR. BOGER: ON PAGE 830. MR. TURNER SAYS, "YOUR HONOR,

BEFORE WE GO ANY FURTHER. COULD WE APPROACH THE BENCH FOR A

MINUTE, PLEASE?

THE COURT RESPONDS, "YES, SIR."

THEY APPROACH AND TURNER SAYS, "YOUR HONOR, I THINK THAT

FROM THE DIRECTION OF THINGS. FROM WHAT MR. PARKER IS SAYING, |

IT APPEARS THAT HE MUST HAVE SOME OTHER STATEMENTS FROM THE

DEFENDANT." IT’S IMPORTANT TO STOP AND ADD, IN LIGHT OF WHAT

CAN BE SPOKEN OF, AND YOULL SEE THE CONFUSION IN THIS

INTERCHANGE. THERE ARE STATEMENTS BY MR. MCCLESKEY. THERE ARE |

ORAL STATEMENTS BY OFFIE EVANS. AND THERE ARE WRITTEN

STATEMENTS BY OFFIE EVANS. HE SAYS. "IT APPEARS THAT THERE

MUST BE A STATEMENT FROM THE DEFENDANT. I ASKED FOR ALL |

WRITTEN AND ORAL STATEMENTS IN MY PRETRIAL MOTIONS. IF HE HAS |

SOMETHING HE HASN‘T FURNISHED ME, I WOULD OBJECT TO GETTING

INTO IT NOW."

THE COURT RESPONDS, "WELL. HE HAS A STATEMENT THAT WAS

FURNISHED TO THE COURT. BUT IT DOESN‘T HELP YOUR CLIENT." NOW,

THAT MAY WELL BE TALKING ABOUT THE WRITTEN STATEMENT. BUT IT

CERTAINLY DOESN’T SAY SO. IT SIMPLY SAYS HE HAS A STATEMENT,

BUT "IT DOESN‘T HELP YOUR CLIENT." IT SOUNDS LIKE IT‘S GOING

TOWARD A BRADY TYPE ISSUE.

"MR. TURNER: I“M NOT DEALING WITH THAT PART OF IT. I'M

SAYING I ASKED HIM" ——

MR. PARKER THEN JUMPS IN AND SAYS IT’S NOT EXCULPATORY.

“THE COURT: YOURE NOT EVEN ENTITLED TO THIS ONE.

"MR. TURNER: I AM ENTITLED TO ALL STATEMENTS THAT HE

MADE. MEANING MY CLIENT MADE. THAT’S WHAT THE MOTION WAS FILED

ABOUT.

"THE COURT: THIS IS NOT A STATEMENT OF THE DEFENDANT."

NOW. AT THAT POINT IT APPEARS THERE MAY BE ANOTHER STATEMENT

NOT FROM THE DEFENDANT THATS NOT EXCULPATORY TO WHICH HE’S NOT

GOING TO BE ENTITLED.

MR. TURNER SAYS. "WERE NOT TALKING ABOUT A STATEMENT OF

THE DEFENDANT." |

THE COURT THEN INTERJECTS., "I DON’T KNOW THAT WE‘RE

TALKING ABOUT ANY WRITTEN STATEMENT. I DON‘T KNOW THAT WE‘RE

TALKING ABOUT ANY WRITTEN STATEMENT." WHY THE COURT DOES THAT

IM NOT SURE, SINCE APPARENTLY WHAT DID UNDERLAY THIS EX PARTE

APPLICATION WAS A WRITTEN STATEMENT. THE PLAIN IMPRESSION LEFT

FROM THESE WORDS IS THE COURT SAYING I DON‘T WANT YOU TO BE

MISLED INTO THINKING THAT THERE IS NECESSARILY A WRITTEN

STATEMENT. THERE“S SIMPLY ANOTHER STATEMENT THATS NOT

EXCULPATORY.

THE PARTIES GO ON, AND I REALLY, YOU KNOW, DON‘T THINK

THE REST IS AS PERTINENT. MR. PARKER SAYS FURTHER DOWN THAT “I

WANT TO PLACE IN THE RECORD, I“VE FURNISHED COPIES OF EVERYTHING EXCEPT WHAT WERE ABOUT TO GET INTO, ET CETERA. PLUS

SOME GRAND JURY TESTIMONY." AND ON THEY GO. AND, CERTAINLY.

IT’S FREE FOR THE STATE TO GO IN. I DON‘T THINK THERE-’S |

ANYTHING MORE PERTINENT IN THIS EXCHANGE. |

BUT WHATS HAPPENED IS TWO THINGS. MR. TURNER HAS NOW |

MADE A MORE SPECIFIC REQUEST THAN HE DID PRETRIAL. IT HAS FOR |

THE SECOND TIME BEEN TURNED DOWN, AND HES LEFT BY THE TRIAL |

COURT WITH THE MESSAGE, "I“M NOT SAYING WERE TALKING ABOUT ANY

WRITTEN STATEMENT." HE THEN FILES AN APPEAL. HE FILES A BRIEF

TO THE SUPREME COURT OF GEORGIA IN WHICH, AS WE“VE INDICATED ra

THE COURT. HE MAKES A BRADY CLAIM. AND THE SUPREME COURT OF |

GEORGIA IN ITS OPINION ADDRESSES THAT CLAIM. WHAT THE COURT |

SAYS ON PAGE 150 OF 263 S.E. 2D REPORTER. THE UNOFFICIAL |

REPORTER. IS THAT THE APPELLANT HAS NOT SHOWN A MATERIAL

PREJUDICE AND WAS NOT DENIED A FAIR TRIAL UNDER BRADY VERSUS

MARYLAND. THE EVIDENCE HE SOUGHT TO INSPECT WAS INTRODUCED TO |

THE JURY IN ITS ENTIRETY AND A FAVORABLE INFERENCE, IF ANY,

COULD BE DRAWN BY THE JURY.

S00. IN EFFECT, THE SUPREME COURT OF GEORGIA HAS SAID

OFFIE EVANS‘ TESTIMONY HAS COME QUT AT TRIAL. AND THAT WAS THE

EVIDENCE HE SOUGHT TO INSPECT. AND IT WAS INTRODUCED. AND THE

COURT USES THE WORDS, "IN ITS ENTIRETY."

"THE COURT: IS THERE ANY REASON TO BELIEVE THE SUPREME

COURT OF GEORGIA KNEW ANY DIFFERENT? BY THAT I MEAN, DID JUDGE

MCKENZIE CAUSE WHAT HE SAW IN-CAMERA TO BE SEALED SO THAT IT

WAS A PART OF THE RECORD OR --

MR. BOGER: I BELIEVE IT WAS SEALED, BUT I DON’T KNOW

WHETHER IT WENT UP, WHICH IS WHY WERE VERY CAREFUL IN OUR

PLEADING TO SAY THE SUPREME COURT OF GEORGIA CONCEIVABLY MISLED

ITSELF. I MEAN, WE CERTAINLY HAVE MADE NO SUGGESTION THAT THE

SUPREME COURT OF GEORGIA DELIBERATELY MISSTATED. YOU KNOW. THE

FACTS IN THIS SITUATION.

THE COURT: DO YOU HAVE INFORMATION THAT WHAT JUDGE

MCKENZIE LOOKED AT IS STILL SEALED AND AVAILABLE?

MR. BOGER: I SUPPOSE —— I DON’T KNOW, YOUR HONOR. IT

MAY BE PART OF THE MATERIAL THAT WE“VE REQUESTED TO BE

PRODUCED. I DON’T KNOW WHETHER IT’S NOW WITH HIS COURT.

THE COURT: SUBPOENA THE CLERK OF THE SUPERIOR COURT?

MR. BOGER: THAT WE‘VE NOT DONE. THAT MAY BE THE ONLY |

PUBLIC QFFICIAL IN THE NORTHERN DISTRICT WE HAVEN‘T SUBPOENAED |

THIS MORNING. BUT MY IMPRESSION. THE IMPRESSION THAT I“M GIVEN

IS THAT. YES, THAT ~- THE DOCUMENT THAT WERE TALKING ABOUT,

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THINK THE STATE HAS EVER -— HAS EVER SUGGESTED THERE IS YET

| ANOTHER DOCUMENT QUT THERE.

THIS WRITTEN AFFIDAVIT OF OFFIE EVANS, IS THE DOCUMENT THAT WAS

SUBMITTED TO THE TRIAL JUDGE. WE CAN —— WE CAN CONFIRM THAT I

THINK THROUGH SOME FURTHER EVIDENCE. IF NEED BE, BUT I DON’T

THE COURT: WELL, I WASN’T WORRIED ABOUT YET ANOTHER.

ID LOVE QUT OF CURIOSITY’S SAKE TO KNOW WHAT JUDGE MCKENZIE

HAD IN FRONT OF HIM. THAT MAY BE MORE CURIOSITY AND OF LITTLE IMPORT, BUT THAT’S WHY I ASKED YOU. |

MR. BOGER: IN EFFECT: WE NOW HAVE AFTER DIRECT APPEAL |

THREE APPLICATIONS, IF YOU WQULD., BY THE DEFENSE, ONE PRETRIAL

ONE AT TRIAL. AND ONE BY WAY OF AN APPEAL SAYING WE WERE |

ENTITLED TO STATEMENTS MADE BY OUR CLIENT, STATEMENTS BY OUR

CLIENT TO ANYONE. ANY STATEMENTS THAT INCORPORATE HIS |

STATEMENTS. WE WERE DENIED BY JUDGE MCKENZIE PRETRIAL, DENIED

DURING TRIAL. AND DENIED ON APPEAL ACCESS TO THE DOCUMENT |

ITSELF BUT WERE TOLD BY THE TRIAL JUDGE AND BY THE SUPREME

COURT OF GEORGIA DURING TRIAL AND ON APPEAL THAT WERE NOT

NECESSARILY TALKING ABOUT A WRITTEN STATEMENT AND THAT THE |

EVIDENCE IN ITS ENTIRETY CAME -- CAME FORWARD. S00 THAT WAS THE

STATE OF THE RECORD WHEN MATTERS -—- WHEN THE STATE HABEAS |

CORPUS PROCEEDINGS.

AT THAT TIME. WE“VE REHEARSED THIS MORNING THE COURSE OF

THIS DEPOSITION WITH RUSSELL PARKER, DURING WHICH THE STATE‘S |

FILE WAS PRESENTED. AND THEN A LETTER CAME FROM NICHOLAS |

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DUMICH, THE ASSISTANT ATTORNEY GENERAL, AT THAT TIME TO THE

COURT REPORTER. IN EFFECT. PLACING —- PLACING THE FILE THAT MR.

PARKER HAD BROUGHT INTO THE RECORD OF THE STATE HABEAS CORPUS

PROCEEDINGS. AND WHAT THAT DOCUMENT SAYS. AND THAT DOCUMENT. A

COPY OF IT IS EXHIBIT P TO OUR PETITION, "DEAR FOSTER." WHO IS

THE COURT REPORTER, "ENCLOSED IS A COMPLETE COPY OF THE

PROSECUTOR’S FILE RESULTING FROM THE CRIMINAL PROSECUTION OF

WARREN MCCLESKEY IN FULTON COUNTY AS AGREED BY COUNSEL FOR BOTH

PARTIES WHO ATTENDED THE DEPOSITION OF MR. RUSSELL PARKER ON

FEBRUARY 16, 1981. THE ENCLOSED FILE. INCLUDING COVER SHEET.

IS TO BE ATTACHED TO MR. PARKER‘S DEPOSITION AS JOINT EXHIBIT A

AND FORWARDED ALONG WITH THE DEPOSITION TO THE SUPERIOR COURT

OF BUTTS COUNTY." AND A CC OF THAT IS TO ROBERT STROUP, MR.

MCCLESKEY“S ATTORNEY.

NOW, I WOULD OFFER INTO EVIDENCE BOTH THE TRANSCRIPT

EXCERPTS THAT WE HAVE AS EXHIBIT 0 FROM THE TRIAL COURT, I

THINK THE COURT CAN TAKE JUDICIAL NOTICE OF THE SUPREME COURT

OF GEORGIA“S OPINION. EXHIBIT P IS MR. DUMICH’S LETTER AND

WOULD OFFER THAT INTO EVIDENCE AS WELL. THE BRIEF IN THE STATE

SUPREME COURT. I GUESS, WAS SUBMITTED BY THE STATE. WE WOULD

OFFER IT HERE. IF WE NEED TO, IN ADDITION, TO MAKE SURE THAT

ITS PART OF THE RECORD IN THIS CASE ON THIS POINT, S0 THATS

REALLY PETITIONER’S 4s 7, AND 8.

THE COURT: DUMICH SAYS IN THE LETTER, IT”S THE

FROSECUTOR’S COMPLETE FILE BUT THE ONE THING YOU HAVEN‘T MADE

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| ANSWER THAT. LET ME —-— I DON’T BELIEVE THERE WAS A SUBPOENA.

I BELIEVE THAT THE MATTERS WERE CONDUCTED WITHOUT THE SUBPOENA

CLEAR TO ME, YOU MAY HAVE SAID IT AND I MISSED IT, IS WHAT IS

HE RESPONDING TO AND HOW IS IT WORDED?

MR. BOGER: IF I HAVE MR. PARKER’S DEPOSITION I CAN
BY MR. STROUP. BUT ON THE THIRD PAGE, WHICH IS REALLY THE :

OPENING PAGE OF THE DEPOSITION, MR. STROUP BEGINS AND ASKS FOR |

HIS NAME AND HIS EMPLOYMENT. AND WAS HE THE ASSISTANT HANDLING

THE CASE. AND THEN ON THE FOURTH PAGE. ONCE HE HAD NAILED
THOSE DETAILS DOWN, HE SAYS. "PRIOR TO THE TRIAL OF WARREN

MCCLESKEY. DID YOU HAVE A FILE WHICH YOU MADE AVAILABLE TO

DEFENSE COUNSEL REPRESENTING WARREN MCCLESKEY?

"ANSWER: I HAD A FILE. AND I MADE IT AVAILABLE TO ALL

| THE DEFENSE COUNSEL IN THIS CASE. |

"QUESTION: ALL RIGHT. THERE WAS ONE FILE THAT WAS MADE

AVAILABLE TO ALL THE DEFENSE COUNSEL INVOLVED? |

"ANSWER: PRIOR TO TRIAL AND DURING TRIAL. |

“ALL RIGHT. LET ME DIRECT YOUR ATTENTION TO THE FRONT |
|

COVER OF THAT FILE. LET ME ASK YOU, DO YOU HAVE THAT FILE WITH

| YOU HERE TODAY? |

"ANSWER: YES, I DO."

THE COURT: WAIT A MINUTE. I LET MY MIND WANDER. WHERE

ARE YOU READING FROM? IS IT IN THE RECORD? |

MR. BOGER! YES, IT’S IN THE DEPOSITION OF —- |

THE COURT: JUST HAND IT UP AND LET ME SEE WHERE YOU‘RE

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TURNER SAW.

READING FROM.

MR. BOGER: -- MR. PARKER.

THE COURT: HAVE YOU GOT AN EXHIBIT OVER THERE. MR.
MILLS? WHAT PAGE ARE YOU ON? |

MR. BOGER® NO, IT“S NOT THAT DOCUMENT, I DON’T BELIEVE,

YOUR HONOR. IT‘S THE DEPOSITION WHICH IS —-

LAW CLERK: HERE IT IS.

THE COURT: WHAT PAGE ARE YOU ON?

MR. BOGER: I WAS ON PAGE —-- ACTUALLY. I CAN SHORTEN IT.

I WAS ON PAGE FOUR READING. BUT IF WE LOOK ON PAGE FIVE AT THE |

BOTTOM, THERES A DISCUSSION OFF THE RECORD. AND WE GO BACK ON

THE RECORD ON LINE 20, "BY MR. STROUP, LET’S GO BACK ON THE

RECORD. WE HAVE AGREED THAT —- COUNSEL FOR THE PARTIES HAVE

AGREED THAT WE WILL COPY AND ATTACH TO THE DEPOSITION THE

ENTIRE FILE INCLUDING THE COVER SHEET."

MS. WESTMORELAND: YOUR HONOR. I BELIEVE THAT STATEMENT

IS READ QUT OF CONTEXT.

THE COURT: YEAH, IT IS.

MS. WESTMORELAND: MR. BOGER BEGAN ON PAGE FOUR.

THE COURT: "PRIOR TO THE TRIAL OF WARREN MCCLESKEY DID

YOU HAVE HAVE A FILE THAT WAS MADE AVAILABLE TO DEFENSE COUNSEL

FOR MR. MCCLESKEY, HAD A FILE I MADE AVAILABLE." AND HE ASKED

IF YOU HAD THAT FILE —-- HERE HE’S TALKING ABOUT THE FILE THAT

MR. BOGER: THAT’S RIGHT, WHICH. AS FAR AS MR. STROUP

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KNEW WAS THE ENTIRE FILE. I MEAN, IN EFFECT, MR. STROUP WAS

RELYING, AS HIS AFFIDAVIT SUGGESTS AND IF WE NEED FURTHER

TESTIMONY WE CAN CERTAINLY DO THAT. PERHAPS WE SHOULD. MR.

STROUP, I BELIEVE. WAS RELYING ON THE RECORD AS IT DEVELOPED.

BOTH WITH RESPECT TO WHAT THE TRIAL JUDGE HAD SAID ABOUT ORAL

AND WRITTEN STATEMENTS AND WHAT THE SUPREME COURT OF GEORGIA

HAD SAID ABOUT THE EVIDENCE COMING QUT OF ITS ENTIRETY. IN

OTHER WORDS. OUR SUBMISSION TO THE COURT IS THERE WAS NO

KNOWLEDGE OR ANY SENSE OR CONTEMPLATION THAT THERE WAS ANOTHER

WRITTEN STATEMENT IN EXISTENCE AT THAT POINT.

NOW. THE STATE, I SHOULD ADD, HAS POINTED TO ANOTHER

PORTION OF THIS DEPOSITION. AND THE COURT SHOULD LOOK AT IT,

AND WE CAN GO THROUGH IT. THERE IS ONE EXCHANGE ON PAGE EIGHT

THATS, I THINK, THE CRUX OF THEIR ARGUMENT. ON LINE SEVEN,
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MR. STROUP IS GUESTIONING: "OKAY. NOW, I WANT TO DIRECT YOUR

ATTENTION TO A STATEMENT FROM OFFIE EVANS THAT WAS INTRODUCED

AT WARREN MCCLESKEY’S TRIAL AND ASK YOU A FEW QUESTIONS ABOUT

THAT STATEMENT." PLAINLY. HE TALKING ABOUT THE ORAL STATEMENT

BECAUSE THAT’S THE ONLY STATEMENT THAT WAS INTRODUCED AT THE

TRIAL. "HOW WAS IT THAT YOU CAME TO LEARN THAT OFFIE EVANS

MIGHT HAVE SOME TESTIMONY THAT YOU WOULD WANT TO LOSE" -- I

THINK IT MEANS USE —— "IN WARREN MCCLESKEY’S TRIAL?

"ANSWER: MR. PARKER, OKAY. WHEN YOU REFER TO A

STATEMENT, OFFIE EVANS GAVE HIS STATEMENT, BUT IT WAS NOT

INTRODUCED AT THE TRIAL. IT WAS PART OF THAT MATTER THAT WAS

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MADE IN-CAMERA INSPECTION BY THE TRIAL JUDGE PRIOR TO TRIAL.

"MR. STROUP, QUESTION: ALL RIGHT. LET ME MAKE CLEAR

WHAT MY QUESTION WAS THEN. OFFIE EVANS DID. IN FACT. GIVE

TESTIMONY AT THE TRIAL. LET ME REPHRASE THAT. WHEN DID YOU
LEARN THAT OFFIE EVANS HAD TESTIMONY THAT YOU MIGHT WANT TO USE

AT TRIAL?" |

NOW. I —- RATHER THAN MAKE REPRESENTATIONS ABOUT MR.

STROUP“S UNDERSTANDING, IT MAY BE IMPORTANT HERE TO PUT HIM

BACK ON THE STAND AND HAVE HIM GIVE HIS TESTIMONY ON THAT

POINT.

THE COURT: ALL RIGHT. WHAT’S MR. STROUP GOING TO
TESTIFY TO? |

MR. BOGER: YOUR HONOR. WE PROFFER THAT HE‘D SAY --

THE COURT: THAT HE DIDN'T UNDERSTAND WHAT RUSS PARKER
SAID WHEN HE SAID THERE WASN‘T -- WHERE IS IT? OFFIE EVANS

GAVE HIS STATEMENT BUT IT WAS NOT INTRODUCED AT TRIAL. IT WAS

PART OF THAT MATTER THAT WAS MADE IN-CAMERA INSPECTION BY THE

JUDGE PRIOR TO TRIAL. WHATS HE GOING TO SAY ABOUT THAT.

MR. BOGER: WHAT WE PROFFER., YOUR HONOR, IS HE’S GOING

TO SAY. FIRST, HE STILL UNDERSTOOD THEM TO BE TALKING ABOUT MR.

EVANS” ORAL STATEMENT AND THAT EVEN WHEN THEY TALKED ABOUT |

IN-CAMERA —- THE IN-CAMERA OFFERING THAT HE DIDN’T UNDERSTAND

THAT MR. EVANS HAD MADE A WRITTEN STATEMENT WHICH WAS NOT

PRODUCED. THIS MATTER WAS VERY HEAVILY PAPERED. THERE WERE |

LITERALLY HUNDREDS OF -- NOT HUNDREDS. SCORES OF POLICE REPORTS

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OF CONVERSATIONS WITH WITNESSES, WENT QUT TD THE GAS STATION,

TALKED TO THE PERSON WHO WAS ACROSS THE STREET. THEY SAY THEY

REMEMBERED SOMEBODY COMING OUT OF, YOU KNOW. THE STORE AT --

THIS WAY OR THAT WAY. IN OTHER WORDS, WRITTEN REFLECTIONS OF

ORAL CONVERSATIONS BY THE POLICE OFFICERS OR OTHERS WITH

POSSIBLE WITNESSES.

AT MOST. MR. STROUP EVEN ON RECOLLECTION WOULD NOT HAVE

THOUGHT ANYTHING MORE THAN THAT KIND OF DOCUMENT WAS BEING

REFERRED TO. CERTAINLY NOT A WRITTEN SWORN STATEMENT BY MR. EVANS WHICH WOULD HAVE -- WHICH WOULD HAVE BEEN ADMISSIBLE FOR |

IMPEACHMENT PURPOSES. MOREOVER. SINCE THE SUPREME COURT OF |

GEORGIA HAS SAID EVERYTHING CAME QUT IN ITS ENTIRETY, THERE WAS

NO SENSE AT ALL THAT ANYTHING AND ANY DOCUMENTS THAT WERE LEFT

IN THE —= IN THE FILE OF MR. -- MR. PARKER HAD ANYTHING TO ADD

TO WHAT HAD ALREADY COME OUT WHEN OFFIE EVANS TESTIFIED. AND |

WHAT WAS BEING SOUGHT HERE WAS ACTUALLY EVIDENCE TO GO TOWARD a

MASSIAH KIND OF CLAIM. WHEN DID YOU FIRST —— |

THE COURT: MY PROBLEM WITH THIS IS HE“S BEING TOLD

CLEARLY AT THAT TIME THAT THERE WAS A STATEMENT THAT DID NOT |

COME OUT AT TRIAL. THAT YOU MUST ADMIT AND DEAL WITH. THERE “3

A POSSIBILITY THAT IT DIDN‘T REGISTER. THERES A POSSIBILITY |

HE RATIONALIZED IT IN SOME FASHION TO BE CONSISTENT WITH WHAT |

THE SUFREME COURT OF GEORGIA SAID BUT THAT STATEMENT SAID OFF IE

GAVE A STATEMENT AND IT DID NOT COME QUT AT TRIAL, WHICH IS |

CONTRARY TO WHAT YOU HAVE SAID THE SUPREME COURT DID.

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MR. BOGER: NO, THE SUPREME COURT HAD SAID THAT THERE |

WAS NO EVIDENCE. THAT THE EVIDENCE ~- THE SUPREME COURT SAYS |

YOU DIDNT GET SOME DOCUMENT IN YOUR BRADY REQUEST THAT YOU HAD

SOUGHT, YOU DIDNT GET THAT. BUT THAT EVERYTHING —- EVERYTHING

THAT WAS MATERIAL CAME OUT IN THE TRIAL IN ITS ENTIRETY. IT

WAS THE TRIAL JUDGE THAT HAD SAID THERE MAY NOT EVEN BE

ANYTHING IN WRITING. |

THE COURT: I UNDERSTAND. THE POINT IS THE READER OF |

THE SUPREME COURT OPINION IS TO BELIEVE THAT WHATEVER MAY HAVE

EXISTED WAS COEXTENSIVE WITH THE ORAL TESTIMONY OF OFFIE EVANS.

MR. BOGER: THAT‘S CORRECT.

THE COURT: RUSS PARKER IS TELLING YOU THAT’S NOT SO.

MR. BOGER: I DON’T BELIEVE -— YOUR HONOR, MY

INTERPRETATION OF WHAT RUSS PARKER IS SAYING IS THERE WAS A

DOCUMENT THAT MAY HAVE REFLECTED SOME OF THE ORAL CONVERSATIONS

WE HAD WITH MR. EVANS. WE DIDNT CALL EVERYBODY IN THE JAIL.

WE HAD SOMETHING DOWN.

THE COURT: LET ME MAKE SURE I‘VE GOT YOU PINNED DOWN ON

THIS. ARE YOU CONCEDING THAT STATEMENT PUT YOU ON NOTICE OF A

WRITTEN STATEMENT? |

MR. BOGER: NO, NOT OF A WRITTEN —-

THE COURT: THATS WHAT YOU JUST GOT THROUGH TELLING ME,

MR. BOGER.

MR. BOGER: IT DEPENDS. LET’S —-

THE COURT: IT EITHER MEANS ORAL IN THE TESTIMONY OR IT

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MEANS HES REFERRING TO A WRITTEN STATEMENT. WHICH ONE DID IT

MEAN?

MR. BOGER: WE DON’T CONCEDE —-- WHAT OCCURS TO ME, YOUR

HONOR, IS IT MIGHT BE BETTER ON THIS SCORE IF CREDIBILITY AT

ALL COMES INTO THIS TO MAKE IT IN TERMS OF TESTIMONY. BUT, I

MEAN. ID BE GLAD TO MAKE IT IN TERMS OF A REPRESENTATION TO

THE COURT. WE DON‘T CONCEDE THAT IT EVER OCCURRED TO US THAT THERE WAS A WRITTEN STATEMENT FROM OFFIE EVANS. MR. STROUP-S,

I THINK. AFFIDAVIT REFLECTS. AND SINCE THAT’S IN EVIDENCE, 1m

FEEL MORE COMFORTABLE ACTUALLY READING IT. |

THE CLERK: 1I“VE GOT IT RIGHT HERE.

MR. BOGER: 1I“VE GOT IT RIGHT HERE. |

THE COURT: OFFICERS, ARE YOU ALL GOING BACK TO JACKSON |

TONIGHT?
|

STATE CORRECTIONS OFFICER: YES.

THE COURT: HOW LONG A TRIP IS IT?

STATE CORRECTIONS OFFICER: PARDON ME?

THE COURT: HOW LONG A TRIP IS IT?

STATE CORRECTIONS OFFICER: ABOUT 45 MINUTES TO AN HOUR.

THE COURT: IS THERE ANY TIME BY WHICH YQU HAVE TO GET |

BACK?

STATE CORRECTIONS OFFICER: NO, SIR.

THE COURT: THANK YOU,

MR. BOGER: ON PAGE NINE OF HIS AFFIDAVIT AFTER RECITING

WHAT HE HAD LEARNED FROM THE TRIAL COURT RECORD AND THE STATE

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SUPREME COURT RECORD. THE ITEMS THAT IVE GONE THROUGH. MR.

STROUP SAYS, "THE STATE ALSO CONTENDS THAT A PASSING COMMENT

FROM RUSSELL PARKER, THE ASSISTANT DISTRICT ATTORNEY WHO TRIED

THE CASE, MADE DURING HIS DEPOSITION TAKEN IN THE FIRST STATE

HABEAS HEARING SHOULD HAVE BEEN NOTICE TO ME OF THE EXISTENCE

OF A WRITTEN STATEMENT FROM EVANS. PARKERS COMMENT AT PAGE

EIGHT OF THE DEPOSITION, HOWEVER. WAS NOT DIRECTLY RESPONSIVE

TO MY QUESTION, AND I THOUGHT HE MISUNDERSTOOD MY QUESTION. I

DO NOT BELIEVE I ACTUALLY UNDERSTOOD WHAT HE SAID IN RESPONSE

TO MY QUESTION. AND I REPHRASED THE QUESTION TO MAKE CERTAIN

THAT HE UNDERSTOOD ME."

SO AT THIS TIME HES SAYING, I HAD NO SENSE EVEN OF WHAT

HE WAS SAYING. WHEN THE DEPOSITION TRANSCRIPT BECAME AVAILABLE

TO ME, HIS AFFIDAVIT CONTINUES FOR REVIEW. I ALREADY HAD NICK

DUMICH’S LETTER REFLECTING HIS UNDERSTANDING THAT WHAT WE WERE

DEALING WITH WAS A COMPLETE COPY OF THE PROSECUTORS FILE. IT

NEVER OCCURRED TO ME AT THIS STAGE IN THE PROCEEDINGS THAT

THERE WAS A WRITTEN STATEMENT FROM OFFIE EVANS THAT THE STATE

HAD NOT PRODUCED.

THE COURT: THAT IS CONSISTENT WITH HIS BEHAVIOR. 1

WOULD SUPPOSE THAT A PROSECUTOR —- WELL, NOT A PROSECUTOR BUT A PETITIONER’S ATTORNEY THAT HAD HIS WITS ABOUT HIM AS MR. STROUF

ALMOST ALWAYS DOES WOULD HAVE JUMPED ON PARKER’S STATEMENT LIKE

A WILD JUNE BUG.

MR. BOGER: INDEED. WE WENT ALL THE WAY THROUGH THIS

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HIM DOWN ON WITH RESPECT TO THE GIGLIO CLAIM, I THINK WE WOULD

| THE FACTS IN SUPPORT OF OUR ARGUMENT OF NO ABUSE OF THE WRIT.

COURT WITH THE GIGLIO CLAIM AND IF WE THOUGHT THERE WAS

ANYTHING IN WRITING FROM MR. EVANS THAT WE COULD HAVE PINNED

HAVE BEEN ON HIM IN A MINUTE. SO THAT IS THE FULL RECITATION
ONCE AGAIN. THE STANDARD THERE IS INEXCUSABLE NEGLECT. NOT |

SIMPLY NEGLECT.

INDEED. IF ONE THINKS BY ANALOGY. ONE WOULD HAVE TO ASK

WHETHER THE FAILURE TO PICK UF ON THIS AMBIGUOUS REMARK BY MR. |

PARKER SEEN IN THE CONTEXT OF THE PRETRIAL AND TRIAL AND |

APPELLATE STATEMENTS IN THE LETTER FROM MR. DUMICH WOULD HAVE

CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH |

AMENDMENT. THATS PLAINLY A HIGHER STANDARD. THE SIXTH |

AMENDMENT REQUIRES MORE OF COUNSEL THAN ANY INEXCUSABLE NEGLECT

STANDARD EVER WOULD, AND YET I CANT THINK OF ANY COURT IN THE |

COUNTRY THAT WOULD HOLD THAT IT WAS INEFFECTIVE ASSISTANCE OF |

COUNSEL TO HAVE FAILED TO PICK UP FROM THIS REMARK THAT THERE

WAS A DOCUMENT.

MOREOVER, LET ME -—- LET ME ADD. IF THERE IS -— IF THERE

IS A GIGLIO OR A BRADY OR A MASSIAH VIOLATION REVEALED BY THAT |

DOCUMENT, WE WOULD BE IN THE ANOMALOUS POSITION OF THE STATE

SAYING, WE FOOLED YOU, I DON‘T MEAN MS. WESTMORELAND HERSELF OR

HER COLLEAGUES, BUT WE GOT THROUGH THE STATE AND FEDERAL |

PROCEEDINGS WITHOUT YOU REALLY REALIZING THIS DOCUMENT EXISTED.

AND WE WERE OBLIGATED TO TURN IT OVER AT THE TIME OF TRIAL, OR

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WE WERE OBLIGATED TO MAKE THIS INFORMATION KNOWN AT THE TIME OF

TRIAL, BUT NOW SINCE WE GOT THROUGH THE FIRST ROUND, YOU CAN‘T

BRING IT UP NOW THAT ITS TUMBLED INTO YOUR HANDS BECAUSE YOU

WERE INEXCUSABLY NEGLECTFUL FOR FOLLOWING THIS COURSE OF LEADS,

MOST OF WHICH POINTED AGAINST THE EXISTENCE OF ANY WRITTEN

STATEMENT BY EVANS AT ALL, AND, CERTAINLY. ANY STATEMENT THAT

WAS IN ADDITION TO ANY EVIDENCE THAT HAD ALREADY COME OUT AT

THE TIME OF THE TRIAL, S0 THATS REALLY OUR SUBMISSION ON THAT

POINT ON ABUSE. I HAVE SOME FURTHER MATTERS BUT IT SEEMS TO ME

IT’S APPROPRIATE FOR THE STATE TO RESPOND AT THIS TIME. IF THAT

SUITS YOUR HONOR‘S DISPOSITION.

THE COURT: I THINK ILL TAKE A RECESS BEFORE 1 DO.

WELL BE IN RECESS FOR ABOUT TEN MINUTES.

(WHEREUPON, A BRIEF RECESS WAS HAD.)

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MR. BOGER:t ONE RECORD CLARIFICATION MATTER. I HAVE

BEEN PERSUADED. YOUR HONOR. DURING THE BREAK THAT -- MISS

WESTMORELAND URGES ME TO NOT CLUTTER UP THE RECORD. I“M NOT

INCLINED TO DO THAT DELIBERATELY. AND I TALKED TO THE COURT

REPORTER. THE DOCUMENTS 0, P, AND @., WHICH I HAD INDICATED TO

THE COURT WERE THE THREE PAGE TRIAL TRANSCRIPT EXCERPTS AND

THEN THE DUMICH LETTER AND -- WHAT WAS THE OTHER. I“M SORRY.

THE COURT: FROM THE COURT’S STANDPOINT YOU ARE

MAKING A RECORD THAT IS EASIER TO HANDLE THAN THIS TWO REAM

VOLUME THAT I HAVE TO FOOL WITH. I WOULD RATHER HAVE A

PULL-0OUT.

MR. BOGER: FINE. ILL BE GLAD TO DO THAT. YOUR

HONOR. THEN I WOULD OFFER INTO EVIDENCE OUR EXHIBIT N AS PETITIONER'S —— EXCUSE ME. OUR EXHIBIT O AS PETITIONER'S 6.
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THATS A THREE PAGE EXCERPT OF THE TRIAL TRANSCRIPT. PAGES 830

TO 833.

THE COURT: AT LEAST MY COPIES —-- MISS PAGE. WHAT IS

THE TEMPERATURE IN HERE?

THE CLERK: ABOUT 73. MR. BOGER: AND FPETITIONER’S EXHIBIT 7 WHICH IS |

EXHIBIT P ANNEXED TO THE PETITION. WHICH IS NICHOLAS DUMICH’S |

LETTER WE HAVE TALKED ABOUT. I WILL DISSEMBLE THIS AND GIVE |

THE COURT REFORTER.

THE COURT: WELL. YOU DON’T HAVE TO DISSEMBLE IT.

ATTACH IT TO THE PETITION. I CAN FIND IT THERE BUT THESE

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MULTI-VOLUME PIECES OF PAPER THAT ARE TOGETHER ARE A NIGHTMARE

TO DEAL WITH.

MR. BOGER: PERHAPS THEY ARE EVEN WORSE TO PUT

TOGETHER, YOUR HONOR. BUT I UNDERSTAND EXACTLY. THANK YOU.

THE COURT: ALL RIGHT. GO AHEAD. MISS WESTMORELAND.

MS. WESTMORELAND: WE APOLOGIZE FOR THE BULKY

VOLUMES, YOUR HONOR.

THE COURT: WELL. IF YOU PUT TABS ON THEM THERE ARE

EASY BUT OTHERWISE THE ARE A NIGHTMARE.

MS. WESTMORELAND: I THINK WE HAVE GOT TABS ON THAT

ONE. I HOPE. FOR THE COURT’ S INFORMATION. JUST AGAIN

HOUSEKEEPING DETAILS, WHAT THAT INCLUDES IS EVERYTHING THAT

HAS BEEN FILED BY EITHER PARTY BEGINNING WITH THE SECOND STATE

HABEAS PROCEEDING TWO WEEKS AGO, INCLUDING PETITIONS,

ATTACHMENTS TO PETITION, WHETHER THEY WERE ADMITTED OR NOT

ADMITTED. SO THE COURT HAS A COPY OF EVERYTHING THAT HAS BEEN

SUBMITTED EVEN TO THE STATE HABEAS CORPUS COURT OR THE GEORGIA

SUPREME COURT. S00 THAT -—- AND EXCERPTS FROM THE TRIAL

TRANSCRIPT ARE INCLUDED IN THAT FOR THE COURT’S INFORMATION
RATHER THAN RESUBMITTING THE ENTIRE TRIAL TRANSCRIPT AND

THINGS OF THAT NATURE. |

OUR POSITION TO THE COURT, AS IT HAS BEEN ALL ALONG,

WE HAVE A CLASSIC EXAMPLE OF ABUSE OF THE WRIT. I WOULD LIKE

TO GO BACK THROUGH THE REQUESTS OR LACK THEREOF FOR THE

STATEMENT, WHAT THE RECORD SHOWS, AND JUST TQ AMPLIFY UPON A

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FEW POINTS THAT I THINK ARE REFLECTED IN THE RECORD OF THIS

CASE. AND WHAT WE SUBMIT MAKES IT CLEAR THAT WHETHER COUNSEL

UNDERSTOOD THERE WAS A STATEMENT OR NOT. HE CERTAINLY SHOULD

HAVE UNDERSTOOD THAT FROM THE RECORD THAT IS PRESENTED. AND BY

NOT UNDERSTANDING AND MAKING AN APPROPRIATE REQUEST THAT IS

INEXCUSABLE NEGLECT.

MR. BOGER HAS ALREADY DISCUSSED THE FACT THAT THERE

WAS AN IN-CAMERA INSPECTION BY THE TRIAL COURT. IN WHICH THE

TRIAL COURT ESSENTIALLY SAID YOU CAN‘T HAVE IT NOW. IT MAY

BECOME MATERIAL FOR REBUTTAL. YOU CAN ASK AGAIN LATER.

DURING THE TESTIMONY, ONCE AGAIN CROSS-EXAMINATION OF MR.

MCCLESKEY., IT WAS BROUGHT OUT, MR. TURNER ASKED FOR IT. AT

THAT POINT IN TIME THE TRIAL COURT BASICALLY SAID IT’S NOT

EXCULPATORY. HE DID MAKE THE COMMENT ABOUT I“M NOT SURE WE

ARE TALKING ABOUT A WRITTEN STATEMENT, HOWEVER, HE HAD ALSO

INDICATED THAT THERE WAS A STATEMENT THAT HAD BEEN MADE PART

OF THE IN-CAMERA INSPECTION.

AT THAT TIME MR. EVANS HAD NOT EVEN TESTIFIED. SO

IT WASNT EVEN RELEVANT TO ANYTHING THAT WAS TAKING PLACE AT

THAT POINT IN TIME. ONCE MR. EVANS DID TESTIFY IN REBUTTAL NO |

REQUEST WAS MADE BY COUNSEL FOR ANY STATEMENT THAT MAY HAVE |

BEEN MADE BY MR. EVANS AT THAT POINT.

THE COURT: I APPRECIATE THE FACT YOU GOT TO

REPRESENT YOUR CLIENT BUT WHAT DO YOU EXPECT MR. TURNER TO DO

WHEN A SUPERIOR COURT JUDGE SAYS IM NOT EVEN SURE WE ARE

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TALKING ABOUT A WRITTEN STATEMENT?

MS. WESTMORELAND: YOUR HONOR, I THINK WHEN YOU HAVE

GOT A CASE WHERE THE SUPERIOR COURT JUDGE ALSO SAYS 1 HAVE

SOMETHING OF WHICH I HAVE MADE AN IN-CAMERA INSPECTION, IM

NOT SURE WE ARE TALKING ABOUT A WRITTEN STATEMENT, AND I I

THINK READING THE WHOLE COLLOGAUY ITS UNCLEAR AS TO WHO IS

TALKING ABOUT STATEMENTS OF EVANS, WHOS TALKING ABOUT

STATEMENTS OF MR. MCCLESKEY. WHETHER WE ARE TALKING ABOUT A

WRITTEN STATEMENT OF MR. MCCLESKEY., A WRITTEN STATEMENT OF

DFFIE EVANS.

CERTAINLY THERE IS SOME INDICATION THERE SOMEWHERE

THAT THE TRIAL COURT MADE AN IN-CAMERA INSPECTION OF SOMETHING |

WHICH WOULD HAVE TO BE IN WRITING, THAT HE‘S ALREADY SAID

MIGHT BECOME MATERIAL IN REBUTTAL. BUT AT THE TIME MR.

MCCLESKEY TESTIFIED IT WASN‘T EXCULPATORY AND THAT'S WHERE WE

ARE LEFT AT THAT POINT IN TIME. IT CERTAINLY PUTS TRIAL

COUNSEL ON NOTICE THAT THERE IS SOMETHING THERE.

HE GOES ON TO RAISE ON DIRECT APPEAL AN ALLEGATION

RELATING TO DENIAL OF THE INFORMATION FROM OFFIE EVANS, I

BELIEVE HE REFERS TO A STATEMENT. THE GEORGIA SUPREME COURT

IN ITS OPINION SPECIFICALLY TALKS ABOUT AND SAYS THAT THE

APPELLANT CONFIDED TO A FELLOW INMATE THAT HE SHOT THE POLICE

OFFICER. THE INMATE‘S NAME AND ADDRESS WAS INCLUDED IN A LIST

OF WITNESSES FURNISHED TO DEFENSE COUNSEL.

WE WOULD POINT OUT THAT MR. TURNER TESTIFIED HE DID

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NOT TALK TO OFFIE EVANS, ALTHOUGH HIS NAME WAS ON THE WITNESS

LIST. HE TESTIFIED, THAT BEING EVANS, FOR THE STATE AND WAS

SUBJECT TO A THOROUGH CROSS-EXAMINATION. THE PROSECUTOR

SHOWED THE DEFENSE COUNSEL HIS FILE BUT DID NOT FURNISH THIS

WITNESS A STATEMENT, IMPLYING EVANS.

NOW, WHETHER THE GEORGIA SUPREME COURT HAD A COPY OF

EVANS’ STATEMENT AT THAT POINT IN TIME I DO NOT KNOW. I DONT

KNOW WHERE THE IN-CAMERA MATERIAL IS, WHETHER IT WAS SEALED,

OR WHAT PART -- WHERE IT IS IN THE RECORD. BUT ONCE AGAIN

THERE'S SOME INDICATION THAT THEY THOUGHT THERE WAS A

STATEMENT OF SOME SORT. THEY GO ON TO NOTE THAT —- WHAT I

CONSTRUE THEIR OPINION TO MEAN IS THAT ESSENTIALLY EVANS”

TESTIMONY COVERS EVERYTHING THAT HE TOLD THE DETECTIVES BUT

THEY DO NOTE THAT THERE WAS A STATEMENT APPARENTLY THAT WAS

NOT FURNISHED.

PROCEEDING TO THE STATE HABEAS CORPUS PROCEEDING,

WHICH WE HAVE DISCUSSED I THINK AT LENGTH AT THIS POINT,

TURNER TESTIFIED BEFORE THE STATE HABEAS CORPUS COURT THAT THE

PROSECUTOR TOLD HIM THERE WERE TWO THINGS THAT WERE NOT

DISCLOSED, THAT IS. THE GRAND JURY TESTIMONY AND A STATEMENT.

HE SAID HE FURTHER ASSUMES FROM THE FACT THAT A DEPUTY”S NAME

NAME WAS ON THE LIST THAT THERE WAS SOME TYPE OF STATEMENT,

SOMETHING THAT HAD BEEN MADE WHILE IN THE JAIL BY MR.

MCCLESKEY. HE KEPT ASKING MR. MCCLESKEY. MCCLESKEY SAID I

DIDNT MAKE ANY INCRIMINATING STATEMENT.

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THE COURT: WHERE IS THAT? SHOW ME THAT?

MS. WESTMORELAND! STATE HABEAS CORPUS TRANSCRIFT I

BELIEVE AROUND PAGE 77. YOUR HONOR.

THE COURT: HOW DO I FIND THAT?

MS. WESTMORELAND: I DON’T BELIEVE IT’S ACTUALLY

BEEN SUBMITTED TO THE COURT IN THIS PARTICULAR PROCEEDING BUT

SUPERIOR COURT TOOK JUDICIAL NOTICE OF ITS OWN RECORDS.

THE COURT: WELL. I“M NOT WORRIED ABOUT IT, JUST -—-

MS. WESTMORELAND: I CAN PROVIDE A SEPARATE COPY oF

THAT.

THE COURT: READ ME THE APPROPRIATE COLLORUY.

MS. WESTMORELAND: THIS WAS AFTER —-- AND I BELIEVE

MR. BOGER HAD REFERRED TO THIS PART ON PAGE 76 OF THE STATE

HABEAS CORPUS TRANSCRIPT, IN WHICH MR. TURNER INDICATED, "I

FILED A MOTION ASKING FOR ALL ORAL AND WRITTEN STATEMENTS

WITHIN THE POSSESSION AND CONTROL OF THE PROSECUTOR. SO I DID

NOT HAVE ANY FOREWARNGING THAT MR. EVANS WAS GOING TO TESTIFY

TO SOME STATEMENT THAT HE ALLEGEDLY QVERHEARD BASED UPON THE

CIRCUMSTANCES. "

THE RUESTIONING IS THEN FROM MR. STROUP. BASICALLY

IS, "WHAT DID EVANS TESTIFY TO AT TRIAL?" AND THE COURT

INTERJECTED AT THAT POINTS, "WELL. I THINK THE QUESTION SHOULD

BE WHY DID THEY NOT GIVE YOU A COPY OF THE STATEMENT HE MADE

IF YOU MADE A MOTION FOR IT." MR. TURNER RESPONDED. "WELL. I

CANT ANSWER THAT QUESTION EVEN UP TQ THIS POINT IN TIME.

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THAT WAS ONE OF THE ISSUES THAT I RAISED ON APPEAL. THE FACT

THAT I WAS NEVER GIVEN ANY INDICATION THAT SUCH A STATEMENT

EXISTED." THE COURT, "YOU MEAN YOU TALKED TO THE PROSECUTOR

SIX TIMES AND YOU TWO NEVER DISCUSSED THAT AT ALL." THE

WITNESS SAYS, "WE WENT OVER ALL THE MOTIONS, ALL OF THE

MOTION. AND THE ONLY THING THAT HE SAID TO ME ABOUT HIS FILE

WAS THAT THERE WERE TWO THINGS THAT WERENT INCLUDED IN THE

FILE. ONE WAS THE GRAND JURY TESTIMONY OF A WITNESS AND HIS

LOGIC THERE WAS THAT THAT WAS NOT DISCOVERABLE, AND THE OTHER

WAS JUST A STATEMENT HE HAD AND THAT HE DIDN‘T DISCLOSE WHAT

IT WAS OR WHO THE PERSON WAS IN THAT CONTEXT."

I THINK LATER ON IN HIS TESTIMONY —-— THAT’S ON PAGE

77. LATER IN HIS TESTIMONY HE DISCUSSES —-

MR. BOGER: YOUR HONOR, IF I MAY INTERJECT. I THINK

THAT THE RECORD NEEDS -— THAT STATEMENT NEEDS TO BE FINISHED,

THE TESTIMONY OF THE WITNESS AT THAT POINT. THERE‘S ONE MORE

PARAGRAPH TO BE ADDED.

MS. WESTMORELAND: “THEY CLEARLY UNDERSTOOD AND THEY |

KNEW THAT THE MOTION HAD BEEN FILED SO MY THINKING ON THE

MATTER WAS THAT I HAD EVERYTHING PARTICULARLY RELATING TO THE

STATEMENTS OF THE DEFENDANT." THEN HE GOES ON DISCUSSING

WHETHER WE ARE TALKING ABOUT A COPY OF HIS STATEMENT. A COPY

OF HIS OWN STATEMENT.

THE COURT: A FEW PARAGRAFHS BEFORE THAT MR. TURNER

SAYS SOMETHING ABOUT DEFENDANTS STATEMENTS.

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ME. WESTMORELAND: YES, HE DOES, YOUR HONOR.

THE COURT: READ ME THAT.

MS. WESTMORELAND: I BELIEVE. THIS IS WHEN HE IS

ASKED —- SHORTLY BEFORE THAT HE IS ASKED, HOW ABOUT WITH

RESPECT TO THE TESTIMONY OF OFFIE EVANS, WAS THAT TESTIMONY

ALSO A SURPRISE TO YOU AT THE TIME OF THE TRIAL." THIS IS —-

I BELIEVE MR. BOGER HAD READ THIS PART TO THE COURT BEGINNING

ON PAGE 75. "WELL, YES AND NO, AND THE REASON I QUALIFY THAT

IS BECAUSE ONE OF THE FIRST THINGS I SAID TO MR. MCCLESKEY

WHEN I INTERVIEWED HIM AT THE ATLANTA JAIL, PRIOR TO THE

PRELIMINARY HEARING, WAS NOT TO MAKE ANY STATEMENTS TO ANYBODY

ABOUT THE INCIDENT."

THE COURT: FURTHER DOWN WITHIN THE PART YOU JUST

READ BUT ITS A LITTLE ABOVE THE PART THAT YOU WOULD

EMPHASIZE.

MS. WESTMORELAND: I BELIEVE THE COURT IS TALKING

ABOUT WHERE HE TALKS ABOUT FILING A MOTION FOR ALL ORAL AND

WRITTEN STATEMENTS.

THE COURT: I DONT HAVE IT IN FRONT OF ME SO I

CANT TELL YOQU.

MS. WESTMORELAND: LET ME JUST READ BRIEFLY ABOVE,

THAT. "THE BOTTOM LIME IS WHEN I GOT THE WITNESS LIST. I

NOTICED AT SOME STAGE THE DEPUTY’S NAME WAS ON THERE. THE

ONLY THING THAT I COULD CONCLUDE WAS SOMETHING HAD BEEN SAID

OR POSSIBLY HAD BEEN SAID, AND I ASKED MR. MCCLESKEY IF HE HAD

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DISCUSSED THE FACTS WITH ANYONE THERE AT THE JAIL AND HIS

CO-DEFENDANT AND HE SAID "NO." IN ADDITION, I FILED A MOTION

ASKING ASKING FOR ALL ORAL AND WRITTEN STATEMENTS WITHIN THE

POSSESSION AND CONTROL OF THE PROSECUTOR. SO I DID NOT HAVE

ANY FOREWARNING THAT MR. EVANS WAS GOING TO TESTIFY TO SOME

STATEMENT THAT HE ALLEGEDLY OVERHEARD BASED ON THOSE

CIRCUMSTANCES."

THE QUESTION IS THEN ASKED, "JUST SO THE RECORD IS

CLEAR. WHAT BRIEFLY DID MR. EVANS TESTIFY TO AT TRIAL." THE

COURT INTERJECTS AND SAYS, "THE RECORD WILL BASICALLY REFLECT

WHAT HE SAID." MR. STROUP SAYS, "YOUR HONOR. I BASICALLY WAS ne

RATHER THAN FOR THE RECORD WHICH IS IN THE RECORD I‘LL GIVE

YOU A BRIEF INTRODUCTION ABOUT IT." AND THE COURT THEN SAYS.

"WELL, I THINK THE QUESTION SHOULD BE WHY DID THEY NOT GIVE

YOU A COPY OF THE STATEMENT HE MADE IF YOU MADE A MOTION FOR

IT." THATS WHEN MR. TURNER RESPONDS. “WELL, I CAN‘T ANSWER

THAT QUESTION EVEN UP TO THIS POINT IN TIME. THAT WAS ONE OF

THE ISSUES THAT I RAISED ON APPEAL. THE FACT THAT I WAS NEVER

GIVEN ANY INDICATION THAT SUCH A STATEMENT EXISTED."

THE COURT: NEVER GIVEN ANY INDICATION THAT IT

EXISTED.

MS. WESTMORELAND: NOW, THE QUESTION WHICH WE SUBMIT

I THINK IS MOST CRITICAL IS THE QUESTIONING THAT HAS BEEN

REVIEWED QUITE EXTENSIVELY. AND THATS THE DEPOSITION OF MR.

PARKER WHICH IS IN EVIDENCE BEFORE THE COURT. AND TWO THINGS

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HAVE BEEN -- THAT WE THINK ARE PERTINENT HERE. FIRST OF ALL,

IT’S CLEAR FROM THE TESTIMONY IN THE DEPOSITION THAT WHAT MK.

PARKER WAS PRESENTING WAS THE FILE MADE AVAILABLE TO THE

DEFENSE. NOT HIS ENTIRE FILE BUT THE FILE MADE AVAILABLE.

THATS I THINK REPEATED SEVERAL TIMES IN THE DEPOSITION.

I THINK A READING OF THE LETTER FROM MR. DUMICH IN

CONTEXT IS A LETTER TQ THE COURT REPORTER STATING, "HERE IS

THE FILE THAT WE WERE TALKING ABOUT AT THE DEPOSITION. THE

DEPOSITION IS COMPLETE. YOU MAY NOW --

THE COURT: DOES THIS LETTER COME ON THE HEELS OF

THE DEPOSITION?

MS. WESTMORELAND: IT CAME AFTER THE DEPOSITION,

YOUR HONOR. IT WAS ADDRESSED TO THE COURT REPORTER WHO TOOK

THE DEPOSITION. IT WAS SUBMITTING —— I BELIEVE THERE WAS

PROBABLY SOME INDICATION OF COPYING THE FILES S00 THE ORIGINALS

DID NOT HAVE TO BE SUBMITTED. SO THE LETTER WAS ACTUALLY

ADDRESSED TO THE COURT REPORTER. IT CAME ON THE HEELS OF THE

DEPOSITION IN WHICH WE TALKED ABOUT -— THE DISCUSSION WAS

PRESENTING THE ENTIRE FILES AVAILABLE TO THE DEFENSE, WITH MR.

PARKER THEN SUBSEQUENTLY SPECIFICALLY STATING THAT THERE WAS A

STATEMENT OF OFFIE EVANS WHICH WAS A PART OF AN IN-CAMERA

INSPECTION.

NO ONE EVER ASKED HIM FOR THE EVIDENCE WHICH WAS

INCLUDED IN THE IN-CAMERA INSPECTION. THEY ASKED ~- HE WAS

ASKED FOR OR DISCUSSED THE FILE MADE AVAILABLE TO THE DEFENSE.

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THE THRUST I THINK OF THE ISSUE AT THAT POINT IN TIME WAS

PARTIALLY AT LEAST ADDRESSED TO THE QUESTION OF WHETHER MR.

TURNER HAD MADE AN APPROPRIATE EXAMINATION OF THE PROSECUTORS

FILE. AND WHETHER HE HAD RENDERED EFFECTIVE ASSISTANCE OF

COUNSEL AT THAT STAGE. AND MR. PARKER GAVE THAT FILE TO MR.

STROUP AT THAT POINT IN TIME OR IT WAS PRESENTED FOR INCLUSION

IN THE DEPOSITION. IT WAS MADE A PART OF THE STATE HABEAS

CORPUS RECORD.

AGAIN, WE THINK ITS IMPORTANT HERE THAT WHAT HAS

NEVER BEEN ASKED FOR IS THIS STATEMENT OF OFFIE EVANS.

THERES NEVER BEEN A REQUEST FOR THE INFORMATION THAT WAS PART

OF THE IN-CAMERA INSPECTION BY THE TRIAL JUDGE, AT LEAST NOT

TO MY KNOWLEDGE THAT I HAVE SEEN IN THE RECORD. THE FILE WAS

PRODUCED THAT WAS MADE AVAILABLE TO DEFENSE COUNSEL. CLEARLY

THATS NOT GOING TO INCLUDE THE INFORMATION THAT WAS PART OF

THE IN-CAMERA INSPECTION. IF IT’S A FILE MADE AVAILABE TO

DEFENSE COUNSEL IT CAN‘T INCLUDE THE MATTER WHICH WAS PART OF

THE IN-CAMERA INSPECTION OR THERE WOULD BE NO PURPOSE OF AN

IN~-CAMERA INSPECTION WHATSOEVER.

NO ONE EVER ASKED MR. PARKER OR THE ATLANTA POLICE

DEPARTMENT OR ANYONE ELSE TO PRODUCE OR WENT TO THE SUPERIOR

COURT OF FULTON COUNTY AND SAID WHERE IS THE MATTER THATS

FART OF THAT IN-CAMERA INSPECTION. I WANT TO SEE WHAT'S IN

THERE. I WANT TO SEE THE STATEMENT THAT MR. PARKER REFERS TD

IN HIS DEPOSITION. I THINK FROM MR. PARKERS DEPQSITION IT’S

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CLEAR THERE IS NO OTHER POSSIBLE INTERPRETATION BUT THAT THERE

IS A STATEMENT, IT WAS THERE, IT WAS KNOWN THEN, AND IT JUST

SIMPLY WAS NOT PURSUED OR REQUESTED.

IT COULD HAVE BEEN SOUGHT UNDER ANY NUMBER OF

AVENUES AND JUST SIMPLY WASN‘T AND THAT IT IS OUR SUBMISSION

IS INEXCUSABLE NEGLECT UNDER THE CIRCUMSTANCES OF THIS CASE.

THE COURT: LET ME ASK YOU ANOTHER QUESTION. WHAT

EXPLANATION WOULD YOU OFFER THAT WOULD BE INCONSISTENT WITH

MR. BOGER-S CONTENTION THAT BY MAKING UP RUSES OR GUISES MR.

EVANS WAS ATTEMPTING TO DEBRIEF THE PETITIONER, AND THAT IT IS

UNLIKELY THAT HE WOULD HAVE THOUGHT OF THOSE OR WOULD HAVE

BEEN MOTIVATED TO THINK OF THOSE OR WOULD EVEN HAVE HAD THE

KNOWLEDGE TO DO THOSE THINGS WITHOUT SOME CONTACT WITH LAW

ENFORCEMENT.

MS. WESTMORELAND: YOUR HONOR -- AND! EVEN THE

STATEMENT OF MR. EVANS —- THE INDICATION AT TRIAL WAS THAT MR.

EVANS WAS IN A POSITION WHERE HE COULD HEAR MR. MCCLESKEY AND

MR. DUPREE. THE CODEFENDANT. TALKING. MR. DUPREE WAS IN THE

CELL ABOVE MR. MCCLESKEY. THEY COULD HEAR THROUGH THE PIPES.

THEY TALKED THROUGH THE PIPES APPARENTLY QUITE A GOOD BIT.

MR. EVANS WAS IN A POSITION TO OVERHEAR THOSE CONVERSATIONS.

I THINK THE CLEAR IMPORT IS HE OVERHEARD THOSE CONVERSATIONS

AND HE WAS PROBABLY JUST CURIOUS. THERE IS SOME INDICATION HE

WAS ACQUAINTED WITH BEN WRIGHT, AND OUT OF CURIOSITY OR A

VIVID IMAGINATION, WHATEVER IT MAY BE. HE WAS INTERESTED IN

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WHAT WAS TAKING PLACE FOR GENERAL JAILHOUSE CONVERSATION.

I DON‘T THINK THERE“S ANY INDICATION THAT HE WAS PUT

UP TO IT, THAT ANYONE SUGGESTED THAT HE GO IN THERE AND DO

THAT. IN FACT, MR. MCCLESKEY’S TESTIMONY AT TRIAL WAS THAT

NOBODY EVER REPRESENTED TO HIM THAT HE WAS A RELATIVE OF BEN

WRIGHT-S. AND NOW THE ASSERTION IS THAT. WELL. OFFIE EVANS

CAME IN AND PASSED HIMSELF OFF I BELIEVE AS BEN WRIGHT S UNCLE

OR SOMETHING ALONG THOSE LINES.

THE COURT: IN SOME OTHER AREAS. INCLUDING THE

FOURTH AMENDMENT, THE SUPREME COURT HAS REQUIRED THAT A FERSON

CLAIM STANDING BEFORE HE ASSERTS A CONSTITUTIONAL VIOLATION.

I’M NOT AWARE OF THAT JURISPRUDENCE EVER BEING APPLIED TO THE

SIXTH AMENDMENT. ARE YOU?

MS. WESTMORELAND: NO, YOUR HONOR, IF IM FOLLOWING

YOUR QUESTION. I DON’T KNOW —-

THE COURT: IT IS INCONSISTENT FOR HIM TO SAY THAT

HE WAS DENIED HIS RIGHT TO SIXTH AMENDMENT EFFECTIVE

ASSISTANCE OF COUNSEL BY HAVING THE POLICE PUT AN INFORMANT IN

THERE AND EXTRACT HIS CONFESSION FROM HIM WHEN HE CONTENDS THAT IT NEVER HAPPENED IN THE FIRST PLACE. IF THIS WAS A

FOURTH AMENDMENT CASE. IF HE WALKED INTO THE COURT AND SAID I

NEVER SAW THE GOODS BEFORE. HAD NOTHING TO DO WITH THEM. I HAD

NO EXPECTATION TO PRIVACY. HE WOULD BE TOLD TO GO FOR SQOTH

AND NOT REENTER. BUT I AM UNAWARE OF ANY SUCH THINKING HAVING

EVER BEEN APPLIED TO A SIXTH AMENDMENT CLAIM. ARE YOU?

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MS. WESTMORELAND: I DON’T KNOW OF ANY, NO, YOUR

HONOR. I AGREE WITH THE COURT, IT IS INCONSISTENT AT THIS

STAGE OF THE PROCEEDINGS CERTAINLY, BUT I DON’T KNOW OF ANY

JURISPRUDENCE DIRECTLY ON THAT POINT.

ONE OTHER THING I WOULD SAY, BACKSPACING BRIEFLY.

THAT I FORGOT TO MENTION TO THE COURT. THERES SOME MENTION

BEEN MADE THAT. WELL, THE PROSECUTOR CAN JUST SIT BACK AND SAY

HA. HA, WE FOOLED YOU. THE PROSECUTOR IN THIS CASE DID

EXACTLY WHAT HE WAS SUPPOSED TO DO. HE GAVE MOST OF HIS FILE

TO THE DEFENSE COUNSEL. HE TOOK THE REST OF IT AND SAID,

HERE, TRIAL JUDGE. I DON‘T WANT TO GIVE THIS TO THEM. DO AN

IN-CAMERA INSPECTION. TELL ME WHETHER I“M SUPPOSED TO OR NOT.

THE TRIAL JUDGE MADE THE IN-CAMERA INSPECTION. SAID "NO. “

I DON’T KNOW WHAT MORE IS EXPECTED OF A PROSECUTOR

AT THAT STAGE OF THE TRIAL. HE HAS NOT BEEN DELIBERATELY

HIDING ANYTHING. HE SIMPLY HAD INFORMATION THAT HE DID NOT

FEEL HE WAS OBLIGATED TO DISCLOSE UNDER BRADY. THE TRIAL

JUDGE AGREED WITH HIM. WHEN HIS DEPOSITION WAS TAKEN AT THE

STATE HABEAS CORPUS PROCEEDING HE ACKNOWLEDGED THAT THERE WAS

A STATEMENT OF OFFIE EVANS, IN FACT ESSENTIALLY VOLUNTEERED

THAT THERE WAS A STATEMENT, THAT WAS WAS A PART OF THAT

IN-CAMERA INSPECTION. HE WASN‘T ASKED FOR THE STATEMENT AT

THAT POINT IN TIME. AND WE JUST DON’T HAVE ANY INDICATION

THAT THE PROSECUTOR ACTED IMPROPERLY IN ANY FASHION IN THIS

CASE.

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ITS NOT A CASE OF PERPETRATING --~ ATTEMPTING TO

PERPETRATE SOME TYPE OF FRAUD ON THE COURT OR DOING SOMETHING

IMPROPER IN REGARD TO PROSECUTORIAL CONDUCT IN THIS CASE.

THE COURT: MR. BOGER MAY HAVE BEGUILED ME RY

QUOTING THINGS QUT OF CONTEXT. BUT PAGE 14 AND PAGE 14 STRIKES

ME. AT FIRST READING, THAT ANYBODY THAT READ THE STATEMENT

WOULD SEE A GIGLIO VIOLATION ~- NOT A GIGLIO, A MESSIAH

VIOLATION.

MS. WESTMORELAND: YOUR HONOR. FIRST OF ALL, I THINK

OUR POSITION HAS BEEN AND STILL IS THAT THE COURT SHOULDN'T

EVEN CONSIDER THE STATEMENT BASED ON THE ABUSE OF THE WRIT

PRINCIPLES. I THINK ALSO THE MOST THAT CAN BE INFERRED FROM

THE STATEMENT IS THAT AT SOME POINT OFFIE EVANS RELAYED HIS

INFORMATION TO THE AUTHORITIES AND THE STATEMENT WAS MADE. A

CLEAR READING OF WHAT TOOK PLACE IN THE STATEMENT, MR. EVANS

BEGINS STATING, "I“M IN FULTON COUNTY JAIL." HE THEN GOES

THROUGH PAGE AFTER FAGE LISTING DATES. ON JULY 8TH THIS

OCCURRED AND THESE CONVERSATIONS TOOK PLACE. THE NEXT DAY.

JULY 9TH. THESE CONVERSATIONS TOOK PLACE.

THE COURT: WAIT A MINUTE. LET ME GET THE STATEMENT

SO I CAN FOLLOW ALONG WITH YOU. WHAT'S YOUR EXHIBIT NUMBER ON

THAT? NO, I THINK I HAVE IT.

MS. WESTMORELAND: FOR INSTANCE. ON PAGE 7 OF THE

STATEMENT HE RELATES, "THE NEXT DAY, JULY 10TH, WE STARTED

TALKING AGAIN." AND CONTINUES THE GUESTIONING, CONTINUES THE -~-

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RELATING THE SUBSTANCE OF THE CONVERSATIONS. AND THAT

CONTINUES ON THROUGH —- DOWN THROUGH PAGE —- THE MIDDLE OF

FAGE 13 OF THE STATEMENT. IN THE MIDDLE OF PAGE 13 WE HAVE A

NOTATION THAT SAYS, "SOME OF THE OTHER THINGS THAT MCCLESKEY

AND DUPREE SAID DURING THEIR CONVERSATIONS WERE." COLON.

THE COURT: WHERE ARE YOU?

MS. WESTMORELAND: THIS IS ON PAGE 13, ABOUT THE

MIDDLE OF THE PAGE OF MR. EVAN’S STATEMENT. WHAT APPARENTLY

HAPPENS IS MR. EVANS IS GIVING A CHRONOLOGICAL STATEMENT OF

EVERYTHING HE REMEMBERS IN THE ORDER THAT IT TOOK PLACE. HE

THEN GETS TO A POINT WHERE HE REMEMBERS THAT THERE WERE OTHER

CONVERSATIONS THAT TOOK PLACE. APPARENTLY NOT NECESSARILY IN

ANY PARTICULAR ORDER, AND STARTS LISTING THE THINGS THAT TOOK

PLACE. A, HE MENTION MR. MCCLESKEY HAVING A GIRL FRIENDS

TALKING ABOUT THE ALIBI AND GETTING THE PHONE CALL. WHICH

CONTINUES ON TO PAGE 14.

IF YOU WILL LOOK ON PAGE 15, ABOUT THE MIDDLE OF THE |

PAGE, THERE’S APPARENTLY AN END OF THE PARAGRAPH. A SPACING,

AND SOME ASTERISKS TO THE SIDE, AND WE HAVE ANOTHER COMMENT,

TALKING ABOUT. "DUPREE SAID HE A SHOTGUN OUT IN DEKALB

COUNTY," ETC. WHAT THESE ARE —— AND I THINK IT’S FAIRLY CLEAR

FROM A READING OF THE STATEMENT ~- THESE ARE ISOLATED

INSTANCES THAT OFFIE EVANS IS JUST REITERATING AT THE END OF

DETAILING HIS CHRONOLOGICAL STATEMENT. "BY THE WAY, IN

ADDITION TO ALL THESE OTHER THINGS, DURING THE COURSE OF OUR

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CONVERSATIONS THESE THINGS HAVE HAPPENED AT SOME POINT IN

TIME." THRE IS NO INDICATION THAT THESE ARE CHRONOLOGICAL

STATEMENTS. IT’S JUST A QUESTION THAT THESE ARE OTHER THINGS

HE REMEMBERED TAKING PLACE.

THE COURT: WELL. WHAT CONCERNS THE COURT IS.

"MCCLESKEY TOLD ME AND DUPREE LATER ON."

MS. WESTMORELAND: I BELIEVE THATS IN THE EARLY

PART, AFTER THE TELEPHONE CONVERSATION. IS THAT CORRECT? THE COURT: IT’S ON PAGE 146, AFTER THE PART YOU WERE

REFERRING ME TO. |

MS. WESTMORELAND: YOUR HONOR, I THINK ONCE AGAINM

OUR POSITION ON THAT IS THAT THAT "LATER ON." I DON’T KNOW

WHEN THAT REFERS TO. I DON’T THINK ITS CLEAR FROM THIS

RECORD THAT THAT'S LATER ON AFTER THE PHONE CALL. IN FACT, IT

MAY JUST BE LATER ON DURING OUR CONVERSATIONS MCCLESKEY TOLD

DUPREE AND ME THIS PARTICULAR FACT. THIS DOESN‘T INDICATE -—-

ONCE IT ENDS WITH THE CHRONOLOGICAL SEQUENCE. THERES NO

INDICATION OF ANY CHRONOLOGICAL ORDER WHATSOEVER.

CERTAINLY AT SOME POINT IN TIME HE TALKED TO THE

DETECTIVES AND MR. PARKER. THIS DOCUMENT DOES NOT INDICATE
WHEN THAT TOOK PLACE IN RELATION TO ANY OF THE STATEMENTS THAT |

WERE INTRODUCED AT TRIAL. I THINK OUR SUBMISSION WQULD BE |

THAT IT’S JUST SHEER SPECULATION TO ASSUME THAT THE PETITIONER

HAS CARRIED HIS BURDEN OF PROOF ON A MESSIAH CLAIM AT THIS

POINT IN TIME, PARTICULARLY ON A MESSIAH CLAIM WHICH WAS

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ABANDONED PRIOR TO THE FILING OF THE FIRST FEDERAL HABES

CORPUS PETITION, BY A STATEMENT FROM WHICH THE MOST YOu CAN DO

IS DRAW AN INFERENCE THAT AT SOME POINT IN TIME THERE WAS A

CONTACT WITH THE POLICE AUTHORITIES. AND THAT MAYBE SOME OTHER

STATEMENTS WERE GAINED AFTER THAT BUT WE DON‘T KNOW WHAT THOSE

OTHER STATEMENTS WERE.

THE COURT: WELL, WE KNOW WHAT THE STATEMENT IS IN

THAT ONE AND ARGUABLY ONE OF THE MOST IMPORTANT STATEMENTS IN

THE SENTENCING PHASE OF THE TRIAL OR FOR SENTENCING PURPOSES.

I DON’T KNOW WHETHER IT WAS ACTUALLY PUT ON AT THE SENTENCING

PHASE. I DON‘T MEAN TO SAY THAT.

MS. WESTMORELAND: YOUR HONOR. ONCE AGAIN QUR WHOLE

POINT IS THAT WE KNOW THAT STATEMENT WAS GIVEN BUT I THINK

FROM LOOKING AT THE WAY THIS WHOLE STATEMENT IS SET QUT, THAT

DOESNT INDICATE THAT STATEMENT WAS GIVEN LATER ON AFTER THE

CONVERSATION WITH THE DETECTIVES. I THINK ITS LATER ON IN

THE CONVERSATIONS. THIS IS SIMPLY ANOTHER THING THAT MR.

EVANS REMEMBERED AS PART OF THE CONVERSATIONS. HES GIVING

LITTLE BLURBS OF CONVERSATION THAT HE HAS REMEMBERED AFTER

HE“S GIVEN HIS WHOLE STATEMENT. MY READING OF THE STATEMENT

I5, CHRONOLOGICALLY, HERES WHAT HAPPENED.

MR. EVANS GETS TO THE END OF THAT AND HE SAYS, YES,

AND THERES SOME OTHER THINGS THAT I REMEMBER TAKING PLACE AS

WELL. ONE OF THEM WAS THE TELEPHONE CALL. ONE OF THEM WAS

SOME OTHER CONVERSATION. ONE OF THEM WAS THE CONVERSATION

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WHICH MCCLESKEY SAID THAT HE WOULD HAVE SHOT HIS WAY OUT OF

THERE IF THERE HAD BEEN A DOZEN POLICE OFFICERS OR SOMETHING

TO THAT EFFECT AND LISTS SEVERAL OTHERS. ONCE AGAIN, NOT IN

ANY CHRONOLOGICAL ORDER BUT JUST OTHER THINGS THAT HE

REMEMBERS TOOK PLACE DURING THE CONVERSATION.

WE HAVE NO INDICATION THAT HE WAS PLANTED IN THE

CELL, THAT HE WAS -- CAME OUT AND TALKED TO THE POLICE

OFFICERS AND THEY SAID GO BACK IN AND GET SOME MORE STATEMENTS

OR GO BACK IN AND BE SURE AND LISTEN FOR US. NOTHING OF THAT

IS SEEN FROM THE RECORD IN THIS CASE. AND OUR POSITION IS THAT

ANY MESSIAH CLAIM THAT HAS BEEN RAISED WAS DELIBERATELY
ABANDONED BY MR. STROUP, WITHOUT PURSUING THE NECESSARY

AVENUES, AND THE SUGGESTION HAS BEEN MADE, WELL, HE DID MAKE

SOME INVESTIGATION IN THIS CASE. THE INVESTIGATION MADE DOES

NOT EVEN BEGIN TO COMPLY WITH THE MINIMUM STANDARDS. HE

DIDNT EVEN TALK TO THE DETECTIVES WHO ARE PART OF ——- WHO ARE |

SPECIFICALLY MENTIONED BY MR. EVANS, WHO ARE SPECIFICALLY |

MENTIONED BY MR. PARKER. WITHOUT EVEN ASSUMING THAT MR. PARKER |

SAID ANYTHING UNTRUTHFUL IN HIS DEPOSITION. |

IT COULD VERY WELL BE TRUE THAT MR. PARKER KNEW OF

NOTHING. THE DETECTIVES MAY HAVE KNOWN MORE THAN MR. PARKER

DID, THEY MAY NOT HAVE, BUT CERTAINLY DILIGENT COUNSEL WOULD

HAVE GONE TO THE DETECTIVES, MENTIONED BOTH BY MR. EVANS AND

BY MR. PARKER, TO INQUIRE AS TO WHEN DID THIS TAKE PLACE.

WHEN DID YOU MEET HIM. DID YOU KNOW HIM BEFOREHAND. TO MAKE

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SOME TYPE OF INQUIRY ALONG THOSE LINES.

AND TO COME IN NOW AND SAY. WELL. THIS STATEMENT IS

NEW, I DIDN‘T KNOW ABOUT IT, WHEN THEY DIDN‘T PURSUE AVAILABLE

AVENUES AT THAT POINT IN TIME AND DELIBERATELY ABANDONED THEIR

CLAIM BEFORE COMING TO THIS CQURT FOR THE FIRST PETITION WE

SUBMIT IS CLEARLY AN ABUSE OF THE WRIT AND IS CLEARLY

INEXCUSABLE NEGLECT UNDER THOSE CIRCUMSTANCES.

THE COURT: WELL. AS I HAVE FAIRLY WELL INDICATED.

IT SEEMS TO ME THAT THE WHOLE NOTION OF ABUSE OF A WRIT

SUBSUMES THE NOTION THAT I SHOULD NOT NOW ON THE EVE OF AN

EXECUTION DATE BE ASKED TO STOP THE WHEEL WHILE COUNSEL FOR

THE PETITIONER INVESTIGATE ON THE VAIN HOPE OF FINDING

SOMETHING.

A PETITION FOR A WRIT OF HABEAS CORPUS I THINK

REQUIRES AT THE BEGINNING THAT YOU HAVE GOT AN ISSUE, AND ALL

MR. BOGER COULD FAIRLY ARGUE TO ME IS THAT THERE IS AN

INFERENCE FROM THE CONDUCT OF MR. EVANS THAT HE MIGHT HAVE

BEEN PUT UP TO IT BY THE POLICE BUT THATS ALL HE’S GOT. BUT

THE STATEMENT WAS CLEARLY IMPORTANT. IT ARGUABLY HAS

FAVORABLE INFORMATION. IT WASN’T TURNED OVER. I DON’T THINK

THAT THERES ANYTHING —- THE ONLY THING FRANKLY THAT CLEARLY

INDICATES THAT MR. STROUP SHOULD HAVE KNOWN THERE WAS A

STATEMENT IS RUSS PARKERS ONE COMMENT IN THE HABEAS. AND IT

IS CLEAR TO ME THAT MR. STROUP DIDN‘T UNDERSTAND WHAT WAS JUST

TOLD HIM.

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THE QUESTION GETS TO BE MAYBE IN A REREADING OF THE

DEPOSITION MAYBE HE SHOULD HAVE SEEN IT OR THAT SORT, BUT I

DON’T THINK THAT IT WOULD BE PROPER TO LET THIS CASE GO

FORWARD WITH SUCH SUGGESTIONS THAT ARE RAISED BY THAT

STATEMENT, AS TO WHAT IF ANYTHING WAS OBTAINED AFTER THAT

MEET ING.

SO I WILL ALLOW THE STATEMENT TO BE ADMITTED INTO

EVIDENCE ON THE MERITS OF A MESSIAH CLAIM AS IT WOULD RELATE

TO WHAT WAS TOLD AFTER THE FIRST MEETING WITH THE POLICE

OFFICERS. MY READING OF THE STATEMENT FRANKLY WOULD INDICATE

TO ME THAT IT, WITHOUT SAYING ANYTHING MORE THAN IS NECESSARY, |

THAT AT LEAST A PRIMA FACIE CASE OF A MESSIAH VIOLATION MAY BE |

MADE OUT.

S80 IF YOU WISH TO REBUT IT, TELL ME WHAT YOU WISH TO

Do.

MES. WESTMORELAND: YOUR HONOR, IF THE COURT IS GOING

OBVIOUSLY. WE WOULD TAKE ISSUE WITH THE COURTS RULING AT THIS |

POINT AND ASSERT THAT THERE CERTAINLY HAS BEEN AN EXCUSABLE

NEGLECT. IF THE COURT DOES FEEL THAT THERE HAS BEEN -— THE

PETITIONER HAS PRESENTED ENOUGH INFORMATION TO CARRY HIS

BURDEN OF PROOF, WHICH WE SUBMIT HE HAS THE BURDEN ON A

MESSIAH CLAIM, EVEN AT THIS STAGE OF THE PROCEEDINGS, WE ARE

PREPARED TO PRESENT THE TESTIMONY OF MR. PARKER CONCERNING

WHAT DID TAKE PLACE, HIS NOTATIONS AS TO WHAT WAS MADE, WHAT

——— —

DID HAPPEN, WHEN IT TOOK PLACE, WHEN INFORMATION WAS DISCLOSED |

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TO THEM ALONG THE LINES OF THE INFORMATION FROM OFFIE EVANS,

AS WELL AS THE DETECTIVES INVOLVED.

THE COURT: WELL, I REALLY DON‘T CARE. I HAVENT

GIVEN MR. BOGER THE OPTION OF PUTTING ON ANYTHING BEYOND THE

STATEMENT TO SUPPORT IT. IT SEEMED TO ME TO BE TIED TO YOUR --

TO DEAL WITH THE STATEMENT AND ITS IMPLICATIONS AND LET YOU

REBUT AND -- LET YOU DEAL WITH IT AND LET HIM REBUT. BUT I

CERTAINLY DON’T WANT THE RECORD TO INDICATE THAT HE HAS WANT

OF EVIDENCE IN HIS CASE OR A LACK OF EVIDENCE, AND IF THAT IS

YOUR POSITION THEN I WILL ALLOW MR. BOGER TO CALL ANY

WITNESSES HE WISHES TO CALL TO SHORE IT UP. IT’S REALLY A

QUESTION OF CONVENIENCE OF COUNSEL.

MS. WESTMORELAND: YOUR HONOR. ONCE AGAIN. AS I

SAID. WHICHEVER WAY THE COURT WISHES TO PROCEED. WE WOULD

INSIST --

THE COURT: IF IT IS YOUR POSITION THAT HE HAS

FAILED TO CARRY HIS BURDEN BY WHATEVER STANDARD IS NECESSARY,

PREPONDERANCE. OF THE EVIDENCE, PERHAPS I WILL LET HIM GO

FORWARD.

MS. WESTMORELAND: THAT IS OUR POSITION. YOUR HONOR.

THE COURT: BECAUSE OTHERWISE YOU COULD SIT DOWN AND

REST AND HES LEFT HANGING OUT IN THE BREEZE. I WILL DO THAT.

ALL RIGHT. ILL GIVE YOU ABOUT A TEN MINUTE EBREAK TO GET YOUR

WITNESSES LINED UP, MR. BOGER.

MR. BOGER! THANK YOu, YOUR HONOR.

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THE COURT: ALL RIGHT.

[WHEREUPON, THE FOLLOWING COLLOGUY OCCURRED

IN CHAMBERS. 1]

THE COURT: WHAT IS THIS ABOUT?

MR. BOGER: WE HAVE CONFERRED BRIEFLY. YOUR HONOR,

JUST TO TALK ABOUT THE WAY IN WHICH THE HEARING ON THE MERITS

MIGHT UNFOLD. MR. STROUP AND I THINK THAT WHAT WE HAVE TO DO

TO MAKE SURE WE MAKE A FULL RECORD IS TO BEGIN WITH THE

DOCUMENTARY WITNESSES THAT WE HAVE CALLED, AND INDEED SOME OF

THE PRINCIPAL WITNESSES. AND BY THAT WE WOULD MEAN MR. PARKER. |

AND THE DETECTIVES HAVE BROUGHT MR. PARKER’S CASE, LITERALLY A

BOX OF DOCUMENTS, THAT ARE GOING TO HAVE TO BE REVIEWED TO BE

SURE THAT THERE IS NOTHING IN THERE THAT BEARS ON THIS

TESTIMONY.

WE ARE PREPARED. IF THE COURT PLEASE. TQ DO THAT,

YOU KNOW, IN COURT ON THE RECORD IN A VERY SLOW PROCESS. MY

OWN SUBMISSION. THOUGH. IS THAT EVEN A SHORT RECESS OR

CONTINUANCE WHILE DISCOVERY DEPOSITIONS TOOK PLACE, BEGINNING

PERHAPS TOMORROW OR THE NEXT DAY —— TOMORROW IS FIND WITH US -—-

WHERE WE COULD OUTSIDE THE PRESENCE OF THE COURT PROCESS ALL

OF THESE DOCUMENTS AND MAKE SURE WE HAD WADED THROUGH THEM,

WOULD SPEED UP THE PROCESS OF THE HEARING ITSELF CONSIDERABLY. |

WE DON‘T WANT ON THE ONE HAND TO DELAY MATTERS

UNDULY. ON THE OTHER HAND, AS YOUR HONOR HAS SUGGESTED FROM

THE BENCH. WE ARE CONCERNED THAT THE RECORD ON THIS BE FULL

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BECAUSE IT“S AN IMPORTANT MATTER. AND IF THERE IS A MESSIAH

VIOLATION, ONE THATS BEEN PARTICULARLY WITH THE FRISONER LIKE

THIS, WHO IS A FEDERAL PRISONER AND FINDS HIMSELF IN A STATE |

FACILITY. IN A JAIL, THERE ARE INTERRELATIONSHIPS AMONG WHAT |

ANY DOF SIX OR SEVEN AGENCIES MAY HAVE TO DO WITH THIS.

IN OTHER WORDS: WE NEED TO FIND OUT ABOUT THE

ARRANGEMENTS, IF ANY, UNDER WHICH MR. EVANS WAS BROUGHT TO MR.

MCCLESKEY’S VICINITY. WHETHER IN FACT MR. PARKER‘S, YO} KNOW,

RELATIONSHIP EXTENDED BACK THAT FAR. THAT MAY WELL BE

REFLECTED IN FILES OF THE MARSHAL OR OF THE U.S. ATTORNEY OR

WHETHER ONE OF THE FEDERAL PENAL OFFICIALS. AND IT WOULD BEAR

ON MR. PARKER”S TESTIMONY CONSIDERABLY.

NOW. WITH ALL THAT SAID —- AND I DONT WANT TO |

BELAROR IT -- IT DOES APPEAR TO US THAT, YOU KNOW. A DAY OR |

TWO OF DISCOVERY COULD SUBSTANTIALLY REGULARIZE OR MAKE |

ORDERLY THE PROCESS OF PUTTING ON EVIDENCE ON THE CLAIM. MY

UNDERSTANDING IS THAT THEY TAKE NO POSITION. CAN‘T AGREE. |

MS. WESTMORELAND: WE ARE SORT OF IN THE POSITION OF E

WE ALL KNOW THE TIME CONSTRAINTS WE ARE UNDER AS WELL. I |

WOULD NOTE THAT IN RELATION TO MR. PARKER, HE DID MENTION THAT |

INCLUDED IN SOME OF THAT ARE THINGS THAT HE CONSIDERS TO BE

ATTORNEY WORK-PRODUCT. AND I TOLD HIM THAT WAS SOMETHING FOR

HIM TO BRING UP WITH THE COURT WHEN AND IF WE GOT TO THAT

STAGE OF THE PROCEEDINGS. AND AT THIS STAGE I DON'T REPRESENT

HIM S00 I WAS NOT -- YOU KNOW, ADVISING THE COURT THAT THERE |
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MAY BE SOME DISCUSSION THAT MAY NEED TO BE HAD ABOUT THOSE

RECORDS AT ANY RATE.

I DON‘T KNOW ABOUT ANYBODY ELSE‘S AND EVEN WHO'S

HERE. WE DO KNOW THAT THERES A POLICE -- THERE‘S A DETECTIVE

FROM THE POLICE DEPARTMENT WITH SOME RECORDS THAT ARE LIKE

THIS THICK. WHATS IN THEM I DON’T KNOW. I HAVEN‘T LOOKED AT

ANY OF THEM. I SIMPLY DON’T HAVE ANY IDEA WHATS IN THE

RECORDS.

MR. BOGER: THIS REALLY IS A CLASSIC INSTANCE IN

WHICH A COUPLE OF DAYS -— WE ARE READY TO WORK LONG HARD DAYS —-

OF DISCOVERY BY US MIGHT REALLY SAVE CERTAINLY THE COURT,

INDEED PERHAPS EVEN THE WITNESSES, CONSIDERABLE TIME. BUT

THATS WHAT WE WANTED TO BRING TQ YOUR HONOR. I KNOW THAT

THEY HAVE GOT AN EXECUTION DATE SET. MY UNDERSTANDING IS THE

GEORGIA PROCEDURE. FOR EXAMPLE, IS THAT THATS A FLOATING

DATE. IT“S A DATE WITHIN A WEEK DURING WHICH THE

COMMISSIONER, IN HIS DISCRETION. CAN ALTER THINGS.

SO THAT IN FACT EVEN IF WE BEGIN TO CROWD UP UPDN

THAT HE CAN SAY I HAVE CHANGED MY MIND, ITS FRIDAY. NOT

TUESDAY, AND THE WARRANT IT STILL VALID. THERE IS NO -—- MS. WESTMORELAND: I THINK I CAN MAKE THE

REPRESENTATION FOR SURE THAT THE COMMISSIONER, ABSENT SOME |

ORDER FROM THE COURT, WILL NOT CHANGE IT FROM TUESDAY NIGHT AT

7:00, I THINK I CAN MAKE THAT AS A SAFE REPRESENTATION AT |

THIS POINT, UNLESS WE COME UP WITH SOME EXTREME CIRCUMSTANCES

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TO PRESENT TO HIM.

BUT ONCE AGAIN THAT’S NOT SPECIFICALLY WITHIN MY

CONTROL. THATS HIS DISCRETION. THE BEST I CAN DO IS SAY

THEY WOULD LIKE YOU TO MOVE IT. OBVIOUSLY. IF THE COURT

ORDERS THAT IT BE STAYED FOR THAT TIME PERIOD THEN HE WOULD.

I WOULD POINT OUT ONE THING —-

THE COURT: I DON'T KNOW WHAT YOURE GOING TO LOOK

AT. THE ISSUE THAT I“M ALLOWING YOU TO GO FORWARD ON IS THE

ISSUE OF WHAT INFORMATION WAS OBTAINED AFTER THAT FIRST

MEETING WITH MCCLESKEY. AND THE DOCUMENTS OF THOSE PRESENT

CLEARLY WOULD BE SOMETHING I WOULD WOULD WANT TO LOOK AT. BUT

I DON'T KNOW WHAT ALL THESE PENAL DOCUMENTS AND EVERYTHING

ELSE HAVE TO DO WITH THAT.

YOU KNOW, AT THAT POINT IN TIME OR FROM THAT POINT

IN TIME FORWARD I THINK I CAN NOTE THAT HES A GOVERNMENT

AGENT. UNLESS THEY CAN REBUT IT THAT CERTAINLY IS THE

INFERENCE. THATS WHY I SAID I THOUGHT I WOULD GO AHEAD AND

LET HER GO AHEAD.

MR. BOGER: WELL. THAT CERTAINLY —— AND I UNDERSTAND

YOUR HONORS POSITION. THE FACTS MAY WELL DEVELOP EVEN FROM

MR. PARKER AND MR. DORSEY. IF LOOKED INTO THOROUGHLY. THAT THE

RELATIONSHIP PRECEDES THAT. IN OTHER WORDS. ONCE OME STARTS

TO LOOK AT WHEN THE RELATIONSHIP BEGAN —— AND CERTAINLY THE

DOCUMENT SHOWS THAT BY THAT TIME THERES A RELATIONSHIP —= IT

MAY WELL DEVELOP THAT THE RELATIONSHIP PRECEDES THAT. THAT

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THERE WAS A CONVERSATION WITH SOMEONE PRIOR TO THAT TIME.

THAT EVEN IF THAT MEETING THAT FOLLOWS. WHERE HE

TALKS ABOUT THE DOZEN OFFICERS, THAT THERE WAS SOME WIRE OR

SOME DEVICE IN THE CELL. WE DON‘T KNOW FOR CERTAIN. WE DONT

HAVE ANY -- WHAT LEADS US TO THAT IS THE SENSE OF THIS

INCREDIBLY DETAILED NARRATIVE. BUT WHILE NOT TRYING TO. YOU

KNOW, GET AROUND THE LIMITATIONS OF YOUR HONOR‘S ORDER AT ALL,

ONCE WE EXPLORE MR. PARKER AND MR. DORSEY AND IF MR. DORSEY

SAYS, WELL. I REALLY MET WITH HIM ON A PREVIOUS OCCASION, ON

JULY THE 3RD, ON JULY THE 2ND, OR I IN FACT TALKED TO THE

OFFICIALS OF THE ATLANTA PENITENTIARY RATHER WHEN I HEARD THAT

HE HAD VIOLATED THE HALFWAY HOUSE. BECAUSE I KNOW OFFIE EVANS,

BECAUSE EVERYBQDY ON THE STREET KNEW OFFIE EVANS AND KNEW BEN

WRIGHT. AND I ASKED THAT THEY TRANSFER HIM OVER TO THE JAIL.

ALL. ONE HAS TO DO IS TN ASK WHEN IS THE FIRST TIME

YOU TALKED TO MR. EVANS AND IF THATS THE ANSWER OF MR. DORSEY |

THEN IN A SENSE WE HAVE FALLEN BACK INTO THAT EARLIER PERIOD.

THE COURT: YOU ARE RAISING ISSUES THAT I MAY HAVE

TO CONFRONT BUT RIGHT NOW THATS NOT AN ISSUE THAT I HAVE |

ALLOWED YOU TO GO FORWARD ON. AND IT WOULD SEEM TO ME THAT WE

OUGHT TO START WITH THE ISSUE I HAVE ALLOWED YOU TO GO FORWARD

AND THEN SEE WHAT WE HAVE RATHER THAN SIT HERE AND SPECULATE.

I AM NOT DISPOSED AT THIS TIME TO LET YOU CONDUCT DISCOVERY IN

THE CASE. THE CASE THAT YOU MAKE BY PUTTING ON THE AFFIDAVIT

IS FAIRLY COMPELLING.

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NOW. I APPRECIATE THE FACT THAT IT IS NOT WITHOUT

THE POSSIBILITY OF BEING REBUTTED FOR SOME OF THE REASONS THAT

MISS WESTMORELAND ARGUED IN COURT. BUT WHY SHOULD I STOP THE

WORLD WHEN THE BALL REALLY IS IN HER COURT FOR YOU TO CONDUCT

DEPOSITIONS I DON‘T KNOW THE ANSWER TO THAT BUT IT SEEMS LIKE

TO ME THAT IT’S NECESSARY. IF YOU WANT TO SHORE IT UP, TO GET

IN THERE AND SHORE IT UP. IF YOU WANT TO REST ON WHAT YOU

HAVE GOT, THEN WE WILL SEE WHAT SHES GOT TO SAY ABOUT IT.

NOW, ONE SCENARIO MIGHT BE IF YOU WANT TO GO AHEAD

AND MAKE AS GOOD A CASE AS YOU CAN, THAT YOU PUT ON ALL THE

LIVE WITNESSES. YOU KNOW, ILL GIVE YOU ANQTHER 20 OR 30

MINUTES SO YOU CAN DO SOME LOOKING. THEN PUT ON THE LIVE

WITNESSES. YOU CAN LOOK AT THE DOCUMENTS QVERNIGHT WITH LEAVE

TO RECALL ANY WITNESS THAT YOU NEED TO RECALL BECAUSE OF WHAT

YOU HAVE SEEN, AND LETS JUST SEE WHERE WE END UP,

MR. BOGER: THAT WOULD CONSIDERABLY IMPROVE QUR

SITUATION BECAUSE WE DO HAVE THIS PARKER MATERIAL AND THE

DETECTIVES WHO REALLY BROUGHT THE THICK FILES THAT THEY HAVE.

NOW. YOU SAY THERE'S MATERIAL THAT ~- I HADN’T HEARD

THIS —-- THAT MR. PARKER IS GOING TQ —-

MS. WESTMORELAND: HE JUST MENTIONED SOMETHING ABOUT

SOME OF THIS IS WHAT I CONSIDERED TO BE ATTORNEY WORK-PRODUCT.

I DON'T KNOW WHAT HE IS REFERRING TO. I DON’T KNOW IF IT’S

JUST NOTES OR WHAT IT MAY BE. I DON‘T KNOW. I JUST MENTIONED

THAT FOR THE FACT THAT I‘M NOT SURE HES GOING TO BE ~—-

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THE COURT: MR. ROWER‘S OFFICE ENJOYS A GOOD REPUTE

WITH ALL FEDERAL JUDGES THAT I KNOW OF AND YOUR INTEGRITY,

MARY BETH, IS EXCELLENT. I THINK IF I WERE IN YOUR SHOES I

WOULD GO OUT THERE AND ASK THE POLICE OFFICERS AND I WOULD ASK

BUDDY PARKER, AS THOUGH YOU HAD AN INTERROGATORY OR A NQTICE

TO PRODUCE, OR WHATEVER. TO LOOK THROUGH THERE AND PULL OUT

FOR YOU ANY DOCUMENT THAT SHOW THE TIMES OF THEIR CONTACTS AND

WHEN THEY RECEIVED WHAT EVIDENCE WITH RELATIONSHIP TO THOSE

TIMES.

GO DO THAT AND HAVE THOSE ON THE TOP OF THE STACK.

LET JACK HAVE A LOOK AT THOSE AND THEN IF THEY WANT TO CALL

THEM ILL HEAR THEM, AND THEN YOU CAN LOOK AT WHATEVER ELSE

THEY HAVE GOT TONIGHT AND RECALL IF NECESSARY.

MR. BOGER: OKAY. I THINK THATS CLEAR. NOW. THE

DETECTIVES OBVIQUSLY DON‘T HAVE ANY SORT OF WORK PRODUCT

PRIVILEGE.

MS. WESTMORELAND: I DONT EVEN -- IF THERE'S

ANYTHING IN THERE ~-— ONCE AGAIN, I DON‘T EVEN KNOW WHATS IN

THE POLICE DEPARTMENT FILE AT THIS STAGE. WHAT MR. PARKER IS

PROBABLY GOING TO HAVE THERE ARE GQING TO BE NOTES THAT HE HAS

MADE DURING CONVERSATIONS AND —-— |

THE COURT: WELL, OF COURSE HE CAN MASK ANY -—- WELL, |

I SAY HE CAN. I DON’T EVEN KNOW THAT IT”S RELEVANT ANYMORE

BUT ARGUABLY HE COULD MASK ANY MENTAL IMPRESSIONS, BUT IF IT

SHOWS TIMING OR SEQUENCE, I DON’T THINK THATS PRIVILEGED. I

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DON’T THINK IT“S EVER BEEN PRIVILEGED. YOU GO OUT THERE AND

TELL THEM TO DIG IN THERE AND SHOW US WHAT HURTS, IF THERE'S

ANYTHING THAT HURTS. AND THEN MAKE THEM AVAILABLE. WHAT TIME

IS IT?

THE CLERK: ABOUT 3:52.

THE COURT: OKAY. ILL SEE YOU ALL ABOUT 4:20.

[CONCLUSION OF COLLOGUY IN CHAMBERS. 1

THE COURT: ALL RIGHT. MR. BOGER. CALL YOUR FIRST

WITNESS.

MR. BOGER: YOUR HONOR. WE CALL RUSSELL PARKER.

THE COURT: ALL RIGHT. WHERE IS HE?

M3. WESTMORELAND: HES OUT -- ILL GET HIM. MAY IT

PLEASE THE COURT.

THE CLERK: PLEASE COME IN FRONT OF THE PODIUM AND RAISE

YOUR RIGHT HAND.

YOU D0 SOLEMNLY SWEAR THAT THE EVIDENCE YOU SHALL GIVE

IN THE CAUSE NOW PENDING BEFORE THE COURT, SHALL BE THE TRUTH,

THE WHOLE TRUTH, AND NOTHING BUT THE TRUTH, S00 HELP YOU GOD.

THE WITNESS: I DO.

THE CLERK: BE SEATED ON THE WITNESS STAND. STATE YOUR |

FULL NAME.

THE WITNESS: MY NAME IS RUSSELL JOHN PARKER.

RUSSELL J. PARKER

BEING FIRST DULY SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:

DIRECT EXAMINATION

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BY MR. BOGER?

2. MR. PARKER. WERE YOU THE PROSECUTOR THAT PROSECUTED

WARREN MCCLESKEY FOR MURDER IN 19787

A. YES, SIR.

Qo. WERE YOU IN CHARGE OF THE CASE AT THE DISTRICT ATTORNEYS

OFFICE?

A. FOR THE PROSECUTION, YES. SIR.

Wo. ALL RIGHT. WERE THERE ANY OTHER ASSISTANT DISTRICT

ATTORNEYS WHO WORKED WITH YOU ON THIS CASE?

A. MR. TOM THRASH WHO IS IN PRIVATE PRACTICE NOW.

Q. AND WHAT WAS HIS ROLE?

A. HE WAS WITH ME.

THE COURT: HE WATS WHAT?

THE WITNESS: WITH ME. HE WAS FAIRLY NEW IN THE

OFFICE BUT HE DID HELP.

BY MR. BOGER:

Gl. NOW, WERE THERE OTHER INVESTIGATORS, NONLEGAL PERSONNEL

WITHIN THE OFFICE WHO ASSISTED YOU IN THIS CASE?

A. YES.

Q. WHO WERE THEY?

A. GRADY ESKEW AND A NUMBER OF QTHER INDIVIDUALS WHEN WE

DRUG THE CHATTAHOOCHEE AND I DON‘T REMEMBER WHO THEY ARE. BUT

IT WAS STATE CRIME LAB. DIVERS FROM COBB COUNTY. ALSO SOME

EMT PEOPLE I BELIEVE THAT HAD EXPERIENCE WITH DIVING

EQUIPMENT.

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Gr. AND IF YOU WOULD IDENTIFY GRADY ESKEW FOR ME, WHO WAS HE?

A. HE WAS AN INVESTIGATOR WITH THE FULTON COUNTY DISTRICT

ATTORNEYS OFFICE.

QA. AND WAS HE ASSIGNED TO THIS CASE?

A. HE WAS ASSIGNED TO THE SAME COURT I WAS.

a. $0 UNDER THE SYSTEM BECAUSE HE WAS IN THAT COURT HE HAD

THAT CASE AND YOU WERE IN THAT COURT AND YOU HAD THAT CASE?

A. THAT 18 CORRECT.

RQ. AND IS THAT THE BASIS ON WHICH YOU WERE ASSIGNED TO THIS

CASE, AS TQ WHICH COURT IT HAPPENED TQ -—-

A. THAT IS CORRECT.

Ge ALL RIGHT.

THE COURT: SQ YOU HAD ALL THE CASES OF IMPORT AT

LEAST IN JUDGE MCKENZIE‘S COURT.

THE WITNESS: AT THAT TIME. YES, SIR.

BY MR. BOGERt:

2. NOW: WERE THERE ATLANTA BUREAU OF POLICE SERVICES

QFFICERS WITH WHOM YOU WORKED ON THIS CASE?

A. SEVERAL.

Q. WHO WERE THEY?

A. DETECTIVE HARRIS AND DETECTIVE JOWERS. PRIMARILY.

(rN WHAT ABOUT DETECTIVE SIDNEY DORSEY, DID HE WORK ON THE

CASE?

A. ACCORDING TO MY NOTES HE WENT TO THE FULTON COUNTY JAIL

WITH US ON JULY THE 12TH. 1978, WHEN OFFIE EVANS WAS

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INTERVIEWED.

XQ. YOU SAY ACCORDING TO YOUR NOTES. DO YOU HAVE ANY

RECOLLECTION OF MR. DORSEY’S ROLE?

A. NOT EXCEPT WHEN I INTERVIEWED HIM AND LOOK AT MY RECORDS.

MY GUESS WAS THAT HE WASNT WITH ME BUT I SEE THAT HE WAS.

@. OKAY. WE ARE GOING TO GET TO THAT IN A FEW MINUTES. IM

SIMPLY TRYING TO ASCERTAIN NOW WHO IT WAS THAT TO YOUR

KNOWLEDGE WORKED WITH THE FULTON COUNTY DISTRICT ATTORNEYS

OFFICE ON THIS CASE.

THE COURT! WAS THAT IN “787

THE WITNESS: YES, SIR.

BY MR. BOGER?

RQ. WERE THERE OTHER OFFICIALS, EITHER STATE OR FEDERAL. WHO

WORKED WITH YOU IN THE INVESTIGATION AND IN THE PROSECUTION OF

THIS CASE?

A. I‘M SURE THERE WERE A NUMBER OF DETECTIVES WITH THE

ATLANTA POLICE DEPARTMENT THAT WORKED ON IT. IM SURE

DETECTIVE JOWERS AND DETECTIVE HARRIS CALLED PEOPLE IN WHEN

THEY NEEDED THEM. BUT THEY WERE THE PRIMARY TWO INDIVIDUALS

THAT I DEALT WITH.

Gl. ALL RIGHT. DID YOU HAVE ANY DEALINGS WITH ANY FEDERAL

OFFICIALS?

A. THE ONLY ONE I EVER DEALT WITH WAS AN FBI AGENT WHO

APPARENTLY HAD ARRESTED OFFIE EVANS ON HIS ARREST.

a. I‘M SORRY, HE ARRESTED OFFIE EVANS AT WHAT TIME?

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A. I DON’T KNOW WHETHER HE ARRESTED HIM OR NOT BUT HE WAS IN

CHARGE OF THE INVESTIGATION OF OFFIE EVANS‘ ARREST. THAT WAS

THE ONLY FEDERAL OFFICIAL THAT I KNOW OF THAT I EVER DEALT

WITH, EXCEPT THE U.S. MARSHAL’S OFFICE. I THINK I WROTE A

LETTER TO THE FEDERAL PRISON.

eo. WELL, ILL GET TO THOSE IN A MINUTE. FIRST. THE FEDERAL

BUREAU OF INVESTIGATION OFFICER, DO YOU RECALL HIS NAME?

A. NO. SIR, I DO NOT.

a, AND WHAT WAS HIS INTERRELATIONSHIP WITH YOU OR YOUR

OFFICE?

A. I THINK MY FIRST CONTACT WITH HIM WAS AFTER THE FIRST

TRIAL. I WAS TRYING TO FIND QUT WHERE OFFIE EVANS WAS SO I

COULD USE HIM ON THE SECOND TRIAL. I THINK THAT WAS MY

PRIMARILY CONTACT WITH HIM.

a. ALL RIGHT. $0 YOU HAD NO PRIOR CONTACTS WITH THE FEDERAL

BUREAU OF OF INVESTIGATION?

A. NOT THAT IM AWARE OF,

Go. OKAY. DID YOU DEAL WITH THE UNITED STATES MARSHALS

SERVICE OR THE FEDERAL PENITENTIARY OR ANYONE ELSE THAT MAY

HAVE HAD ANY CUSTODY OR CONTROL OVER MR. EVANS?

A. I DEALT WITH THE FEDERAL PENITENTIARY. I THINK I WENT

OUT AND INTERVIEWED SOMEONE OUT THERE THAT KNEW ABOUT OQFFIE

EVANS. OFFIE HAD TOLD US THAT HE HAD ACTED AS AN INFORMANT

AND I WENT OUT THERE AND TALKED TO HIM. I THINK I LISTED SOME

NAMES IN THAT MEMORANDUM THAT YOU HAVE BEEN SHOWN OR MY NOTES

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THAT YOU HAVE BEEN SHOWN.

Q. WE ARE GOING TO MARK SOME OF THE DOCUMENTS THAT WE HAVE

BEEN SHOWN. THIS MEETING THAT YOU MENTIONED QUT AT THE

FEDERAL PENITENTIARY WAS WITH AN INMATE OR AN OFFICIAL OF THE

INSTITUTION?

A. I THINK AT THE TIME I WENT OUT THERE I WAS SIMPLY TRYING

TO FIND OUT WHAT OFFIE EVANS WAS SUPPOSED TO HAVE DONE, AND I

THINK THE MAN I TALKED TO SAID HE HAD ACTUALLY GONE TO SCHOOL

WITH WARREN MCCLESKEY BUT I DON‘T REMEMBER HIS NAME.

Ql. WHEN YOU SAY WHAT HE HAD ACTUALLY DONE, YOU MEAN WHAT

CRIME HE HAD BEEN CONVICTED OF? AND AT WHAT POINT IN TIME WAS

THIS TRIP TO THE FEDERAL PENITENTIARY?

A. I DON‘T RECALL.

(5 8 WAS IT PRIOR TO MR. MCCLESKEY’S TRIAL?

A. I DONT RECALL.

Q. WELL. IF YOU HAVE NO RECOLLECTION. LET ME BE CLEAR,

THOUGH, IT WAS AN OFFICIAL YOU TALKED WITH WHO —-

A. I THINK IT WAS MR. KILLIBREW. IF THATS ONE OF THE TWO

NAMES LISTED ON THE LAST PAGE OF MY NOTES, BUT I CAN‘T SWEAR

TO IT BUT I THINK THAT'S WHAT THE NAME IS. I THINK THATS THE

INDIVIDUAL I TALKED TO,

Q. FINE. NOW, DID YOU HAVE ANY DEALINGS IN THE

INVESTIGATION OF THIS CASE WITH DEPUTIES OR OTHER OFFICIALS AT

THE FULTON COUNTY JAIL?

A. THE ONLY TIME I CAME IN CONTACT WITH ANY DEPUTY WAS A

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DEFUTY HAMILTON ON JULY THE 12TH. 1978. THATS THE EXTENT OF

MY CONTACT WITH A DEPUTY AT THE JAIL.

Gl. WE HAVE SUBPOENAED YOU TOGETHER WITH YOUR DISTRICT

ATTORNEY FILE. HAVE YOU BROUGHT THAT FILE WITH YOU TODAY?

A. I HAVE PERSONALLY NOT BEEN SUBPOENAED NOR HAS MY PERSONAL

FILE BEEN SUBPOENAED. WHAT’S IN THAT BOX THERE IS WHAT MR.

SLATON INSTRUCTED ME TO COME OVER HERE WITH. THAT CONTAINS

NOT ONLY THE OFFICIAL FILE OF OUR OFFICE BUT IT ALSO -— ABOUT

ONE-THIRD OF THAT FILE IS MY PRIVATE NOTES. THOSE NOTES THAT

I THINK COUNSEL HAVE JUST SHOWN YOU HAVE COME OUT OF THAT ROX

THERE. NOW, I DO HAVE SOME OTHER FILES IN MY OFFICE THAT HAVE

NEVER BEEN IN THAT ROX. |

Ro. WELL, LET ME CLARIFY THE RECORD ON THIS POINT. THE BOX

THAT YOU HAVE ARE THE FILES OF THE DISTRICT ATTORNEY IN FULTON

COUNTY ON THE WARREN MCCLESKEY CASE?

A. YES. AND ABOUT THIRD OF THAT ARE MY PERSONAL NOTES.

GQ. AND THOSE ARE NOTES ON THE CASE ITSELF?

A. YES.

Qo. ALL RIGHT. ARE THERE ANY OTHER?

A. YES. I HAVE TWO FILES IN MY OFFICE. I HAVE A FILE OF

THIS COURT'S ORIGINAL DECISION IN THIS CASE. I HAVE THE

ELEVENTH CIRCUIT DECISION IN THERE. I HAVE NEWSPAPER ARTICLES

IN THERE. I HAVE PHONE MESSAGES IN THERE. I HAVE DATES WHEN

THIS CASE WAS TRIED, SO WHEN ALL THESE REPORTERS CALL ME I

DONT HAVE TO GO DOWN TO THE REC ROOM AND FULL THE FILE AGAIN.

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I HAVE THE LATEST COPIES OF THE HABEAS CORPUS IN THERE. AND

I“M SURE I HAVE SOME OTHER THINGS IN THERE.

Gt. WELL. LET ME JUST BE SURE WITH RESPECT TO THAT LAST

REMARK ABOUT OTHER THINGS IN THERE. ARE THERE ANY DOCUMENTS

IN THERE -~

A. I CAN'T TELL YOU WHATS IN THERE, SIR. I HAVEN’T GONE

THROUGH THEM. THEY HAVE NEVER BEEN A PART (OF WHAT I CONSIDER

TO BE THE OFFICIAL FILE.

Q. WELL. THAT’S WHAT I WAS GOING TO ASK YOU, MR. PARKER. IS

WHETHER THEY WERE DOCUMENTS THAT WERE MADE OR ASSEMBLED AT ANY |

TIME PRIOR TO THE TRIAL OF THIS CASE IN 1978 OR IS THIS A

SUBSEQUENT FILE THAT KEEPS YOU UP-TO-DATE?

A. IT’S PROBABLY A 90 PERCENT SUBSEQUENT FILE AND I SAY THAT

BECAUSE I WANT TO COVER MYSELF. THERE MAY BE SOME THINGS IN

THERE THAT I COPIED FROM THE FILE WHILE I WAS WORKING IT. IT

MAY NOT BE PART OF THAT BUT IT MAY BE PART OF IT.

2. ALL RIGHT. I BELIEVE YOU SAID THERE WERE TWD FILES. ONE

OF THEM WAS A DESCRIPTION —-

A. THERE ARE TWO FOLDERS BECAUSE ONE FOLDER CAN‘T HOLD IT

ALL, AND THE TWO FOLDERS ARE IN A CARDBOARD BOX.

a. I KNOW THAT WE HAVE ATTEMPED TO MAKE SERVICE ON YO)

TODAY. YOU SAY THAT MR. SLATON. YOUR SUPERIOR. WAS SERVED AND |

YOU WERE NOT —- THAT YOU ARE HERE IN RESPONSE TO MR. -—-

A. I‘M HERE FOR TWO REASONS. MARY BETH WESTMORELAND ASKED

ME TO BE HERE. MR. SLATON ASKED ME TO COME OVER AND RRING

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THAT BOX OF RECORDS OVER THERE FOR WHAT YOU SUBPOENAED FROM

HIM. $0 I‘M HERE FOR TWO PURPOSES.

@. ALL RIGHT. I WOULD ASK YOU TO PROVIDE US, IF YOU WouLD,

EITHER THE FILES THAT YOU HAVE DESCRIBED IN YOUR OFFICE

INSOFAR AS AS THEY CONTAIN MATERIAL PRIOR TQ THE 1978 TRIAL?

A. I CAN‘T SIT HERE AND DO THAT. I JUST HAVE TO GO LOOK AT

17.

RQ. WELL. WE MIGHT HAVE TO ASK TO RECALL YOU FOR THAT PURPOSE

IF THERE ARE SUCH FILES. IF THERE ARE SUCH DOCUMENTS?

MS. WESTMORELAND: YOUR HONOR. I THINK WE COULD

CLARIFY THIS SIMPLY BY ASKING MR. PARKER IF THERE IS ANYTHING

IN THAT PARTICULAR PART OF THE FILE. ONCE AGAIN, WHAT WE HAVE

BEEN TOLD TO DO IS GET MR. PARKER TO PULL OUT ANYTHING

REFERRING TO OFFIE EVANS. HIS TIME IN JAIL, THE MATTERS THAT

WE DISCUSSED IN CHAMBERS WITH THE COURT, AND I THINK MR.

PARKER HAS DONE THAT.

I THINK IF MR. BOGER WOULD ASK MR. PARKER IF HE HAS

ANYTHING IN THAT FILE THAT RELATES TQ THAT INFORMATION PERHAPS

WE COULD ELIMINATE THE NECESSITY OF HAVING TO GO THROUGH YET

ANOTHER FILE IN THE CASE.

THE COURT: I UNDERSTAND THE WITNESS TO SAY THAT HE

DOESN’T KNOW WHAT IS IN THE, QUOTE, OTHER TEN PERCENT.

THE WITNESS: I DON'T THINK THERE IS ANYTHING ON

OFFIE EVANS IN THERE? SIR.

THE COURT: DO YOU KNOW?

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THE WITNESS: NO, SIR, I DO NOT NOW BUT I DON'T

THINK THERE IS.

THE COURT: ALL RIGHT. WELL. YOU MAY SERVE HIM

WHILE WE HAVE HIM HERE. YOU HAVE BEEN UNABLE TO SERVE HIM

OTHERWISE.

MR. BOGER: FINE, YOUR HONOR.

THE COURT: DO SOQ.

BY MR. BOGER?

Gl. MR. PARKER. DO YOU KNOW WHETHER THERE ARE ANY OTHER FILES

IN YOUR OFFICE WHICH WOULD RELATE TO THE PRETRIAL

INVESTIGATION OF THE MCCLESKEY CASE AND MORE PARTICULARLY TO

OFFIE EVANS AND HIS INVOLVEMENT IN THAT CASE?

A. NOT THAT IM AWARE OF, OTHER THAN WHAT I HAVE ALREADY

DESCRIBED TO YOU.

XQ. LET ME ASK YOU, DO YOU KNOW OF ANY RECORDS EITHER IN YOUR

OFFICE OR THE OFFICE -- THE ATLANTA DIVISION OF POLICE

SERVICES OR ANYWHERE ELSE TO YOUR KNOWLEDGE THAT MIGHT INCLUDE

WIRE TRANSCRIPTS OR RECORDINGS OF CONVERSATIONS THAT WOULD

RELATE TO MR. EVANS?

A. NO, SIR. THE ONLY TRANSCRIPTS I KNOW ARE GRAND JURY
TRANSCRIPTS WHICH ARE IN THAT BOX.

Cl. ALL RIGHT. LET ME BACK UP A MINUTE AND ASK NOT ONLY

ABOUT TRANSCRIPTS THEMSELVES BUT ANY TAPE RECORDINGS OR OTHER

ELECTRONICALLY OBTAINED STATEMENTS FROM MR. EVANS.

A. THE ONLY ELECTRONIC RECORDINGS THAT I KNOW OF ARE IN THAT

Fu
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BOX AND THEY HAVE TO DO WITH GRAND JURY TESTIMONY. THATS THE

ONLY RECORDINGS I KNOW OF.

Go. ALL RIGHT.

EXAMINATION

BY THE COURT?

Gl. THEY HAVE TO DO WITH GRAND JURY TESTIMONY?

A. YES, SIR.

Gl. DOES THAT MEAN THAT THEY ARE RECORDINGS OF GRAND JURY

TESTIMONY OR ARE THEY EVIDENCE THAT WAS FRESENTED TO THE GRAND

JURY?

A. I HAVE NEVER LISTENED TO THE TAPES BECAUSE I DID NOT

PRESENT THE CASE TO THE GRAND JURY BUT THEY ARE MARKED GRAND

JURY TAPES. AND THERE IS MATERIAL IN THERE THAT HAS EREEN

TRANSCRIBED.

Gl. IM NOT FAMILIAR WITH THE PRACTICE OF RECORDING STATE

GRAND JURIES. ARE THEY RECORDED ELECTRONICALLY OR ARE THEY

TAKEN DOWN BY STENOGRAPHER?

A. THIS WAS DONE TWICE. APPARENTLY. THEY HAD AN OFFICIAL

COURT REPORTER THERE WHO ISSUED A CERTIFIED COPY OF THE

PROCEEDINGS, AND QUR OFFICE APPARENTLY ALSO RECORDED ON A TAPE

RECORDER AND ALSO REDUCED IT TO A STATEMENT. I THINK BOTH OF

THOSE ARE IN THERE. AND I THINK THAT'S WHAT THAT TAPE IS, IS A

COPY OF THE GRAND JURY TESTIMONY WHICH SUPPLEMENTS WHAT THE

COURT REPORTER TOOK.

Q. AND THAT WAS THE TESTIMONY OF WHO?

139

A. MARY JENKINS.

BY MR. BOGER:

0. MR. PARKER, ARE THERE ANY RECORDS IN THE DISTRICT

ATTORNEY”S OFFICE OR UNDER ITS CONTROL THAT WOULD REFLECT THE

USE OF SURVEILLANCE DEVICES IN ANY CATEGORY OF CASES?

A. I’M NOT FAMILIAR WITH ANY ELECTRONIC SURVEILLANCE OR

OTHER TYPE OF WIRETAPS OR ANYTHING IN THIS WHOLE CASE.

Gl. WELL, NOW, MY QUESTION IS A SLIGHTLY DIFFERENT ONE. ARE

THERE FILES THAT ARE KEPT THAT WOULD GIVE A DISTRICT ATTORNEY

OR A POLICE OFFICER, AN INVESTIGATOR. KNOWLEDGE OF WHEN IN

FACT ON WHAT DATES AND WHERE AND IN WHAT CASES SURVEILLANCE OF

THAT SORT HAD BEEN UNDERTAKEN?

A. WHETHER MR. SLATON KEEPS A COPY OF ALL HIS ELECTRONIC

WIRETAPS OR NOT, I DON’T KNOW, BUT I HAVE NEVER KNOWN AN

ELECTRONIC WIRETAFP IN THIS CASE.

A. ALL RIGHT.

EXAMINATION

BY THE COURT!

Q. LETS SEPARATE IT INTO CONSENTUAL AND NONCONSENTUAL.

WHEN YOU) SAY YOU DON‘T KNOW IF MR. SLATON KEEPS A COPY OF ALL

HIS WIRETAPS, I PRESUME YOU ARE TALKING ABOUT CONSENTUAL COURT

ORDERED WIRETAPS?

A. YES. SIR.

Gl. S80 YOU DON‘T KNOW WHETHER HE KEEPS UP WITH THAT. DO YOu

CUSTOMARILY KEEP UP WITH CONSENTUAL MONITORING?

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A. IM NOT AWARE OF IT UNLESS IT WOULD BE DONE IN AN

INDIVIDUAL FILE.

a. BUT THERE”S NO —-— I THINK WHAT COUNSEL WANTS TO KNOW IS,

IS THERE A LOG THAT INDICATES ANYTIME YOU AUTHORIZED IT OR

RECEIVED THE PRODUCT OF CONSENTUAL MONITORING?

A. IM NOT AWARE OF ANY. IF THAT WERE DONE, IT WOULD BE IN

THE INDIVIDUAL FILES. I THINK THE CLERK OF THE SUPERIOR COURT

KEEPS COPIES OF ORDERS ON ELECTRONIC SURVEILLANCES.

Go. THAT WOULD BE NONCONSENTUAL?

A. YES.

BY MR. BOGER:?

Q. ARE YOU FAMILIAR WITH THE PRACTICE THAT THE ATLANTA

BUREAU OF POLICE SERVICES MIGHT HAVE WITH RESPECT TO SUCH WIRE

SURVEILLANCE?

A. NO. SIR.

2. OR THE LIKE?

A. I KNOW TO BE LEGAL THEY HAVE TO COME THROUGH THE DISTRICT

ATTORNEYS OFFICE ON COURT ORDER.

2. NOW. YOU HAVE TESTIFIED, MR. PARKER. THAT YOU WERE THE

PROSECUTOR IN THIS CASE. WAS THERE A TIME WHEN YOU TOOK A

WRITTEN STATEMENT FROM OFFIE EVANS?

A. I INTERVIEWED OFFIE EVANS FOR THE FIRST TIME I EVER SAW

HIM AND THAT WAS ON JULY THE 12TH, 1978. AT THAT TIME 1 TOOK

A NUMBER OF DETAILED NOTES AND BECAUSE OF THE VOLUME OF

MATERIAL THAT HE TOLD US IT WAS DECIDED THAT WE BETTER TAKE IT

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DOWN IN WRITING, AND THAT WAS DONE ON AUGUST THE 1ST, 1978. I

CANNOT TELL YOU WHY. IT WAS 14 DAYS OR 16 DAYS OR WHATEVER

PERIOD.

Gl. LETS DO QUESTIONS ONE AT A TIME, MR. PARKER. YOU ON

AUGUST THE 18T. 1978 DID TAKE A WRITTEN STATEMENT FROM ~-

A. I WAS PRESENT WHEN A POLICE STENOGRAPHER AT THE ATLANTA

POLICE DEPARTMENT TOOK IT. I WITNESSED A STATEMENT. IT IS 21 |

PAGES IN LENGTH AND SIGNED, AND I THINK MY NAME APPEARS ON

EVERY PAGE.

QQ. LET ME SHOW YOU A COPY OF A DOCUMENT. MR. PARKER?

A. YES. SIR.

Q. DO YOU RECOGNIZE THAT DOCUMENT?

A. I SURE DO.

@. CAN YOU IDENTIFY IT FOR US?

A. THAT IS THE STATEMENT THAT WAS TAKEN IN MY PRESENCE AT

THE ATLANTA POLICE DEPARTMENT ON AUGUST THE 1ST. 1978, BY THE

ATLANTA POLICE DEPARTMENT.

RQ. FINE. AT THE BOTTOM, AT THE LEFT CORNER, THERE ARE THREE

LINES THAT SAY WITNESS, WITNESS, WITNESS. DO YOU RECOGNIZE

THOSE SIGNATURES?

A. I RECOGNIZE MY SIGNATURE. I RECOGNIZE DETECTIVE HARRIS”

SIGNATURE. AND I RECOGNIZE GRADY ESKEW’S SIGNATURE.

MR. BOGER: ALL RIGHT. YOUR HONOR, AT THIS POINT I

WOULD OFFER THIS DOCUMENT INTO EVIDENCE AS PETITIONER'S 8.

THE COURT: ADMITTED.

142

BY MR. BOGER:

Q. NOW, MR. PARKER. WE ARE GOING TO TALK A LITTLE ABOUT THIS

STATEMENT BUT BEFORE WE DO I WOULD LIKE TO ASK YOU SOME

QUESTIONS THAT LEAD UP TO IT. WHEN DID YOU FIRST BECOME

INVOLVED IN THE MCCLESKEY CASE ITSELF?

A. PROBABLY SHORTLY AFTER THE DATE OF INDICTMENT, WHENEVER

THAT WAS.

§. ALL RIGHT. PRIOR TO THAT TIME YOU HAD NOT BEEN INVOLVED

IN ANY POLICE INVESTIGATION?

A. ND. BIR,

8. ALL RIGHT. AND WHEN DID YOU FIRST BECOME AWARE OF MR.

EVANS?

A. JULY THE 12TH, 1978.

0. AND WHAT WERE THE CIRCUMSTANCES?

A. YOU WILL SEE ON THE FRONT OF THOSE NOTES THAT HAVE BEEN

GIVEN YOU SOME LITTLE THREE BY FIVE PIECES OF PAPER.

@. THE NOTES ARE ACTUALLY NOT IN MY POSSESSION RIGHT NOW BUT

A. SMALL WHITE PIECES OF PAPER ON THE FRONT. I WAS CALLED

THAT MORNING BY SERGEANT MCCONNELL AND DETECTIVE HARRIS. THEY

STARTED TELLING ME THAT THERE WAS A MAN AT THE JAIL WHO

APPARENTLY HAD BEEN TALKING TO MR. MCCLESKEY AND MR. MCCLESKEY

HAD MADE SOME ADMISSIONS.

@. LET ME STOP YOU, MR. PARKER, AND ASK. YOU SAID SERGEANT

MCCONNELL, WHO IS THAT?

A. THAT WAS ONE OF THE HOMICIDE DETECTIVES.

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Q. ALL RIGHT.

A. I THINK I HAVE HIS NAME SMELLED WRONG. I THINK IT’S

SERGEANT MCCONNELL RATHER THAN THAN MCDONALD.

MR. BOGER: WE ARE DEFINITELY GOING TO GET THESE

DOCUMENTS INTO EVIDENCE AND PERHAPS SINCE YOU HAVE REFERRED TO

HIM SO MANY TIMES ILL DO THAT RIGHT NOW.

MS. WESTMORELAND: YOUR HONOR. I WOULD -- I THINK

MR. PARKER WANTS TO BE SURE AND KEEP THE ORIGINALS OF THESE

DOCUMENTS. I DON'T BELIEVE WE HAD AN OFFICIAL OF THE COURT

COPY THEM. SO IF WE COULD, IN ANY INTRODUCTION. WE WOULD LIKE

IT TO BE MADE COPIES RATHER THAN ORIGINAL DOCUMENTS

THEMSELVES.

MR. BOGER: WELL. LET ME SHOW HIM THE ORIGINAL. YOUR |

HONOR. AND SEE IF HE CAN IDENTIFY IT. THE WITNESS: WHATEVER

EXHIBIT THIS IS. THIS IS THE NOTES THAT I PASSED TO MARY BETH

WESTMORELAND 40 MINUTES AGO 1 BELIEVE, 45 MINUTES AGO.

BY MR. BOGER?

Q. WHERE DID THIS DOCUMENT COME FROM?

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A. THIS IS WHAT I CONSIDER MY PERSONAL NOTES. THEY CAME QUT |

OF THAT BIG BOX THAT I BROUGHT OVER HERE THIS MORNING BECAUSE

MR. SLATON HAD BEEN SUBPOENAED.

Q. WHEN YOU SAY YOU CONSIDER THESE YOUR PERSONAL NOTES. ARE

THESE YOUR ENTIRE PERSONAL NOTES FOR THE CASE OR PERSONAL

NOTES WITH RESPECT TO WHAT?

A. OFFIE EVANS” INTERVIEW AT THE FULTON COUNTY JAIL ON JULY

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THE 12TH, 1978.

MR. BOGER: ALL RIGHT. YOUR HONOR, I WOULD OFFER

THIS INTO EVIDENCE AS PETITIONER'S 9.

MS. WESTMORELAND: NO PROBLEMS. YOUR HONOR.

THE COURT: IT WILL BE ADMITTED.

MR. BOGER: ACTUALLY. YOUR HONOR. MAY I UPON THE

STATES REQUEST SUBMIT A SUBSTITUTED COPY FOR THE ORIGINAL

DOCUMENTS WHICH ARE THOSE OF MR. PARKER TO PROVE —-- THAT IF WE

CAN‘T READ THIS COPY. WE CAN —— I CAN SUBSTITUTE THE ORIGINAL

BUT IM PERFECTLY PREPARED TO MEET THE STATES REQUEST WITH

RESPECT TO THAT. AS LONG AS THESE THREE TURN QUT TO BE LEGIBLE

AS WE WORK OUR WAY THROUGH THEM.

MS. WESTMORELAND: THAT WOULD BE -—-

THE COURT: THATS FINE WITH ME.

MS. WESTMORELAND! THANK YOU, YOUR HONOR.

BY MR. BOGERt

Q. MR. PARKER, WE HAVE NOT HAD A FULL OPPORTUNITY TO LOOK

THROUGH THESE NOTES AND CONSEQUENTLY I“M GOING TO DEFER FOR

THE TIME BEING SOME OF MY QUESTIONS TO YOU ABOUT THEM. YOU

HAVE INDICATED THEY HELP YOU REFRESH YOUR RECOLLECTION ABOUT

THIS INCIDENT.

YOU SAY THAT YOU WERE CALLED ON THE 12TH OF JULY BY

TWO OFFICERS, DETECTIVE HARRIS AND A SERGEANT YOU MENTIONED.

WHERE DID YOU SAY YOU HAD THE NAMES OF THOSE REFLECTED?

A. I HAVE THEM ON LITTLE THREE BY FIVE SHEETS. I HAVE A

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SERGEANT MCDONALD. I THINK THAT SHOULD BE SERGEANT MCCONNELL.

I THINK I SPELLED HIS NAME WRONG. AND DETECTIVE HARRIS. I

DON‘T KNOW WHETHER I TALKED TO BOTH OF THEM OR ONE OF THEM OR

WHICH ONE, IF I ONLY TALKED TO ONE. BUT APPARENTLY I MAY HAVE

APPARENTLY TALKED TO BOTH OF THEM. THAT WAS THE MORNING OF

JULY THE 12TH. 1978. AND THEY WERE TELLING ME THAT THERE WAS

A MAN AT THE JAIL WHO HAD OVERHEARD MCCLESKEY CONFESS TO

HAVING SOMETHING TO DO WITH THE KILLING OF A POLICE OFFICER.

Oo. BY THE THAT TIME THE INDICTMENT HAD OCCURRED AND YOU WERE

ON THE CASE, IS THAT RIGHT?

A. THAT IS CORRECT.

Q. WHAT WERE THEY DOING AT THE JAIL. DO YOU KNOW?

A. THEY WEREN‘T AT THE JAIL,

a. WELL, WHERE DID THEY CALL YOU FROM?

A. FROM THE ATLANTA POLICE DEPARTMENT.

Q. ALL RIGHT. HOW DID THEY KNOW WHAT THEY WERE TRANSMITTING

TO YOU ABOUT THE MAN AT THE JAIL. DO YOU KNOW?

MS. WESTMORELAND: YOUR HONOR, ILL OBJECT TO THAT

RUESTION, CALLS FOR HEARSAY AND SPECULATION. DETECTIVE HARRIS

IS CERTAINLY HERE AND CAN TESTIFY AS TO HOW HE GAVE THE

INFORMATION, KNEW THE INFORMATION HIMSELF,

BY MR. BOGER:

Bl. DID THEY CONVEY TO YOU FROM WHERE THEIR INFORMATION CAME?

MR. BOGER: I“M NOT OFFERING IT FOR THE TRUTH OF IT

BUT SIMPLY TO KNOW THE CHAIN OF, IF YOU WOULD. OF KNOWLEDGE.

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THE COURT: THATS THE TRUTH.

THE WITNESS: WELL. I HAVE GOT A NOTE.

THE COURT: WAIT A MINUTE. THE OBJECTION IS GOOD IF

SHE WISHES TO STICK BY IT.

MS. WESTMORELAND: YOUR HONOR, INSOFAR AS MR. PARKER

IS TALKING ABOUT WHAT HE DID AND HOW HE PURSUED WITH THE

ACTION, I HAVE NO OBJECTION FOR THAT PARTICULAR PURPOSE. AS

TO WHAT THEY MAY HAVE KNOWN AND HOW THEY CAME TO CONTACT HIM,

THAT WOULD BE THE NATURE OF OUR OBJECTION.

THE COURT: WELL. I SUSTAIN THE OBJECTION ON THAT

BASIS.

BY MR. BOGER?

Gl. ALL RIGHT. WHAT DID YOU DO IN RESPONSE TO A TELEPHONE

CALL FROM DETECTIVE HARRIS?

A. DETECTIVE HARRIS AND I OBVIOUSLY DECIDED TO GO TO THE

JAIL BECAUSE THAT’S EXACTLY WHAT WE DID. AND I BELIEVE WE

RODE OVER TOGETHER.

Gr. ALL RIGHT.

A. IM NOT POSITIVE BUT I MET DETECTIVE HARRIS IF I DIDN'T

RIDE WITH HIM, AND I HAVE GOT NOTES THAT —-- WHO ELSE WAS

PRESENT WHEN WE TALKED TO MR. OFFIE EVANS.

. WELL, LET’S NOT —- LET‘S NOT GO THROUGH, YOU KNOW, ANY

MORE GUICKLY THAN WE NEED TO. ITS SOMETHING WE WANT TO BE

CAREFUL ABOUT. YOU AND DETECTIVE HARRIS GOT IN A POLICE CAR

OR SOMETHING AND DROVE OVER TO THE JAIL. IS THAT RIGHT?

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A. I GOT TO THE JAIL. I DON’T KNOW HOW I GOT THERE. I

THINK I RODE WITH THE POLICE OFFICERS BUT I MAY NOT HAVE.

Q. WHEN YOiJ ARRIVED WHERE DID YOU GO?

A. I‘M SURE WE WALKED INTO THE FRONT DOOR AND WENT TO THE

DESK QVER THERE AND ASKED TO SEE DETECTIVE -- I MEAN DEPUTY

HAMILTON.

(AN ALL RIGHT. AND WHY DID YOU ASK TO SEE DETECTIVE

HAMILTON?

A. BECAUSE IT WAS MY UNDERSTANDING THAT HAMILTON WAS THE ONE

THAT FOUND QUT THAT MCCLESKEY HAD BEEN TALKING.

Oo. OKAY. NOW, YOU SAID DEPUTY HAMILTON. HE WAS ONE OF THE

OFFICIALS AT THE JAIL, IS THAT CORRECT?

A. I DON’T KNOW WHAT KIND OF OFFICIAL HE WAS. HE WAS SIMPLY

A DEPUTY SHERIFF. Q. OID MR. HAMILTON IN FACT COME OUT AND GREET YOU?

A. HE MUST HAVE BECAUSE HE SAT IN ON THE INTERVIEW OF OFFIE |

EVANS. |

Q. DO YOU HAVE ANY INDEPENDENT RECOLLECTION NOW APART FROM

THE NOTES THAT YOU HAVE REFERRED TO OF THOSE EVENTS? A. HOW WE ACTUALLY GOT IN THE JAIL AND WHAT ROOM WE WENT TO

I DO NOT KNOW. I KNOW I WENT INTO THE JAIL. I KNOW I WENT IN

WITH DETECTIVE HARRIS. I SEE I HAVE GOT SIDNEY DORSEY [OWN. |

I DONT REMEMBER SIDNEY DORSEY BEING THERE. IF YOU HAD ASKED |

ME WHO IT WAS, I WOULD HAVE TOLD YOU IT WOULD HAVE BEEN |

DETECTIVE JOWERS INSTEAD OF DORSEY BUT APPARENTLY MY MEMORY

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WAS FAULTY. IT WAS DETECTIVE SIDNEY DORSEY, DETECTIVE HARRIS,

MYSELF, AND DEPUTY C. K. HAMILTON.

Q. NOW. YOU REFER TO YOUR NOTES TO REFRESH YOUR RECOLLECTION

ON THAT YOU SAY. WHERE IN YOUR NOTES IS THAT INDICATED?

A. IF YOU LOOK ON WHAT I CALL THE LITTLE ENVELOPE WHICH I

HAVE MARKED "NOTES."

Gl. I THINK THAT WOULD BE THE 4TH PAGE OF THE SUBSTITUTED

COPY?

A. THAT I CANT TELL YOU.

Ge NOTES HANDWRITTEN WITH A BOX AROUND IT AT THE TOP?

THE COURT: HE DOESN’T HAVE A COPY IN FRONT OF HIM.

THE WITNESS: IT SAYS JULY THE 12TH. 1978 NOTES.

TELEPHONE MESSAGES FROM MCCLESKEY TO OFFIE EVANS TO CALL

MCCLESKEY“S GIRL FRIEND BRENDA. EVANS INITIALED AND DATED

BOTH PIECES OF PAPER. THE NUMBERS AND NAMES ARE IN

MCCLESKEY“S HANDWRITING. INTERVIEWED BY DETECTIVE SIDNEY

DORSEY, DETECTIVE HARRIS, R. J. PARKER. AND DETECTIVE C. K.

HAMILTON. INSIDE ARE THE NOTES.

te AND THE NOTES THAT ARE INSIDE ARE NOTES THAT WERE PASSED

ALLEGEDLY BY MCCLESKEY TO MR. EVANS?

A. THAT IS WHAT I WAS LED TO BELIEVE, THAT THESE WERE TWO

NOTES THAT MCCLESKEY HAD GIVEN OFFIE EVANS TO CALL THIS

NUMBER. WHY I SEIZED THESE I DON’T KNOW BUT I HAD OFFIE EVANS

PLACE HIS INITIALS ON THEM AND THE DATES ON BOTH OF THEM, AND

I PUT THEM IN THIS ENVELOPE.

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Q. SO THE PARTIES. ON THE NEXT PAGE, PAGE FIVE OF THE

SUBSTITUTED ORIGINALS. THERE ARE TWO NAMES. BRENDA HARDY,

524-5565, 7-12-78, N.E..» IT LOOKS LIKE. AND THEN ANOTHER

NAME. BRENDA. 524-3565, ETC... ALSO DATED 7-12, OFFIE EVANS.

THOSE ARE THE NOTES THAT YOU WERE TOLD WERE PASSED BY MR.

MCCLESKEY TO MR. EVANS?

A. OFFIE EVANS AND OFFIE EVANS SAYS HE WAS ASKED TO CALL

THAT GIRL AND I SEIZED THOSE NOTES BUT I DON‘T KNOW WHY. THEY

ARE HERE. |

Gl. OKAY. DID MR. EVANS PLACE THAT TELEPHONE CALL IN YOUR

PRESENCE ON THAT OCCASION?

A. I“M NOT AWARE OF MR. EVANS EVER PLACING THE TELEPHONE

CALL TO BRENDA AT ANY TIME, IN MY PRESENCE OR WITHOUT MY

PRESENCE. I THINK HE TRIED TO CALL AND DIDN‘T GET HER BUT

THAT’S THE ONLY RECOLLECTION OF IT I HAVE.

Gl. ALL RIGHT. I DIDN'T ASK YOU WHETHER -——

A. BUT NOT IN MY PRESENCE.

2. IN OTHER WORDS. HE DIDNT EVEN ATTEMPT THE CALL IN YOUR

PRESENCE?

A. NOT THAT I RECALL.

Gl. LET ME REFER YOU FOR A MOMENT TO THE DOCUMENT WE MARKED

PETITIONERS 8, 1 BELIEVE, WHICH WAS THE WRITTEN STATEMENT

THAT YOU ULTIMATELY TOOK ON AUGUST THE 1ST. LET ME REFER YOU

TO PAGE 14 OF THAT DOCUMENT. IF YOU WOULD READ US -- LET ME

READ TO YOU HALFWAY DOWN. “THIS IS THE SAME PIECE OF PAFER

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THAT 1 GAVE TO DETECTIVE HARRIS, DETECTIVE DORSEY, AND

DISTRICT ATTORNEY PARKER WHEN THEY CAME TO INTERVIEW ME," HE

SAYS, TALKING ABOUT PAPER WITH TELEPHONE NUMBERS ON IT. “THERE

WAS TWO PIECES OF PAPER WITH BLANK’S NAME ON IT." IT GOES ON

TO SAY, "I TRIED TO CALL BLANK WHILE THE DA AND THE DETECTIVE

WERE SITTING THERE BUT I WAS UNABLE TO GET AN ANSWER. THE

PHONE JUST RANGED." WHICH I TAKE IT MEANS RANG. "THAT'S WHAT

I TOLD MAC WHEN I GOT BACK TO THE CELL."

DO YOU RECALL THAT PORTION OF THE STATEMENT BEING

TAKEN FROM MR. EVANS ON AUGUST THE 1ST.

A. I RECALL THAT PORTION OF THE STATEMENT BEING TAKEN BUT I

DO NOT RECALL OFFIE EVANS ACTUALLY TRYING TO MAKE THE PHONE

CALLS ON JULY THE 12TH, 1978 AT THE FULTON COUNTY JAIL, IN MY

PRESENCE.

Q. ALL RIGHT. $0 YOUR TESTIMONY IS NOT THAT IT DIDNT

HAPPEN BUT YOU CANT RECALL IT?

A. THAT IS CORRECT.

RQ. WELL. LET ME ASK YOU THIS —-- AND WE ARE GOING TO TALK

ABOUT IT IN SOME FURTHER DETAIL —-- DURING THAT INTERVIEW WERE

THERE TIMES WHEN YOU WERE NOT PRESENT?

A. I BELIEVE I WAS THERE THE WHOLE TIME. I TOOK THESE NOTES

AND I BELIEVE I WAS THERE THE ENTIRE PERIOD OF TIME.

Q. WHEN YOU LEFT AT THE END OF THE INTERVIEW DID DETECTIVE

DORSEY AND DETECTIVE HARRIS AND THE OTHER PARTICIPANTS LEAVE

AS WELL, TO YOUR RECOLLECTION?

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A. THAT IS MY RECOLLECTION.

Q. SO IF THEIR RECOLLECTION IS ACCURATE THERE REALLY WASNT

ANYBODY LEFT TO BE AROUND OFFIE EVANS ONCE YOU ALL HAD GONE.

AT LEAST MR. DORSEY AND MR. HARRIS AND YOU AND HAMILTON HAD

ALL GONE, IS THAT CORRECT?

A. I‘M SURE THEY DIDN-T LEAVE HIM THERE IN THE ROOM BY

HIMSELF. I“M SURE THEY TOOK HIM BACK TO THE CELL.

2. WELL, LET ME ASK YOU, WHAT DID OCCUR DURING THAT FIRST

MEETING ON THE 12TH OF JULY?

A. WELL, MR. EVANS HAD SO MUCH INFORMATION THAT I COULDN'T

TAKE IT ALL DOWN. I WAS DETERMINED AT THAT TIME THAT WE OUGHT

TO GET A SIGNED STATEMENT FROM HIM.

Go. WELL, BEFORE WE GO ON, YOU SAY MR. EVANS HAD 30 MUCH

INFORMATION. HOW DID THE INTERVIEW BEGIN?

A. ALL I CAN DO IS GO DOWN MY NOTES.

Go. IN OTHER WORDS, YOU HAVE NO INDEPENDENT RECOLLECTION AT

THIS POINT?

A. WHETHER I INTRODUCED MYSELF, WHETHER I SHOOK HIS HAND, I

DON‘T RECALL.

RQ. DO YOU RECALL -- DO YOU RECALL WHETHER MR. EVANS BEGAN RY

VOLUNTEERING INFORMATION OR WHETHER -- OR YOU DONT HAVE ANY

SENSE FOR IT AT ALL?

A. I DONT HAVE ANY SENSE FOR IT AT ALL. I“M SURE MR.

HAMILTON PROBABLY INTRODUCED HIM BUT I DONT EVEN REMEMBER

THAT.

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Ol. WERE THERE ANY OTHER OFFICERS PRESENT AT THE TIME?

A. NO, SIR, NO MORE THAN WHAT I SAID, DETECTIVE SIDNEY

DORSEY. DETECTIVE HARRIS. MYSELF, AND DEPUTY C. K. HAMILTON.

Q. WAS HE CONSTRAINED AT ALL, WAS HE IN RESTRAINTS, TO YOUR

RECOLLECTION?

A. NOT THAT I RECALL.

Q. ALL RIGHT. SO SOMEHOW A DISCUSSION BEGAN AND WHAT WAS

THE NATURE OF THAT DISCUSSION?

A. YOU WANT ME TO READ IT?

Q. THE DOCUMENT ITSELF IS IN EVIDENCE. IF WHAT YOU’RE

TELLING US WE HAVE NO MORE THAN —— THAT YOU CAN GIVE US NO

MORE THAN THE DOCUMENT ITSELF, SIMPLY READING IT INTQ THE

RECORD WILL SIMPLY FRODUCE IT TWICE. I WONDERED WHETHER FROM

THE DOCUMENT YOU COULD -- EITHER YOUR RECOLLECTION WOULD BE

REFRESHED OR WHETHER YOU ARE SIMPLY SAYING THAT THIS IS YOUR

PRIOR RECOLLECTION RECORDED AND THATS AS GOOD AS YOU CAN DO.

A. OBVIOUSLY, THESE FIVE PAGES OF NOTES DON’T EGUAL 21 PAGES

OF A SIGNED STATEMENT. BUT MY RECOLLECTION IS THAT HE DIDNT

TELL US ANYTHING DIFFERENT ON AUGUST THE 1ST. 1978 THAN HE

TOLD US ON JULY THE 12TH, 1978, BUT MY NOTES DON’T EQUAL 21

PAGES.

a. WELL, LET ME MOVE FORWARD THEN TO JULY THE 1ST. DID YOU

HAVE ANY CONVERSATIONS WITH MR. --—

MS. WESTMORELAND: I THINK YOU MEAN AUGUST 1ST. MR.

BOGER.

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MR. BOGER: EXCUSE ME. THANK YOU,

BY MR. BOGER?

Q. DID YOU HAVE ANY CONVERSATIONS WITH MR. EVANS AT ANY TIME

BETWEEN JULY 12TH AND AUGUST THE 18T7?

A. NO, SIR, I DID NOT.

Q. TO YOUR KNOWLEDGE DID ANY OF THE OTHER OFFICERS PRESENT.

MR. DORSEY OR MR. HARRIS?

A. I“M NOT AWARE OF ANYBODY HAVING ANY CONVERSATIONS WITH

MR. OFFIE OTHER THAN ON JULY THE 12TH AND AUGUST THE 1ST OF

1978.

Go. BUT WOULD YOU HAVE HAD -- WOULD YOU HAVE HAD REASON TO

KNOW IF ANYONE HAD HAD ADDITIONAL CONTACTS WITH HIM?

A. I HAVE NO NOTES TO THAT EFFECT AND I DON‘T REMEMBER

ANYBODY EVER TELLING ME THAT.

Qo. ALL RIGHT. BUT YOU DON’T KNOW FOR A FACT. YOU SIMPLY

KNOW I DON‘T HAVE A WRITTEN RECORD ON IT AND I DON’T RECALL

ANYBODY TELLING ME THAT THEY DID HAVE SUCH CONTACTS?

A. AND THERE IS NO MEMORANDUM FROM THE POLICE DEPARTMENT

THAT I KNOW OF THAT EXISTS THAT INDICATE THAT THAT TOOK PLACE.

GC, NOW, MR. HAMILTON OR DEPUTY HAMILTON WAS AN OFFICIAL AT

THE JAIL, IS THAT RIGHT?

A. I DON'T KNOW WHAT KIND OF OFFICIAL HE WAS. HE WAS A

DEPUTY SHERIFF ASSIGNED TO THE FULTON COUNTY JAIL.

&. 80 HE WAS THERE PRESUMABLY EVERY DAY?

A. THAT I DONT KNOW, SIR.

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Q. YOU DON’T HAVE ANY KNOWLEDGE OF THAT. DID ANY OTHER

OFFICIALS EITHER FROM YOUR OFFICE OR FROM THE POLICE

DEPARTMENT MAKE CONTACT WITH HIM BETWEEN THE --

A. I“‘M NOT AWARE OF ANY.

EXAMINATION

BY THE COURT?

Q. LET ME ASK YOU A QUESTION, SIR. REFER TO YOUR NOTES AS

THEY APPEAR ON LONG PAPER. IT IS THE SECOND PAGE -- WAIT A

MINUTE —— IT IS THE THIRD LONG PAGE. AS I HAVE IT. THERE ARE

TWO BRACKETS ON THE LEFT MARGIN.

A. OKAY.

(rR }8 THEN THERE ARE -~ THERE'S A NOTATION, "WARREN SAID HE

WOULD HAVE SHOT HIS WAY OUT EVEN IF THERE WERE A DOZEN -——

A. POLICEMEN.

Q. IS IT YQUR TESTIMONY THAT YOU WERE TOLD THAT INFORMATION

ON JULY THE 12TH, 19787

A. YES. SIR, AND I THINK IT APPEARS ON HERE MORE THAN ONCE.

MR. BOGER: YOUR HONOR, AS I NOTED FOR THE RECORD,

WE HAVE NOT HAD A FULL CHANCE TO REVIEW THESE FILES. EVEN

THESE DOCUMENTS... I MAY HAVE SOME ADDITIONAL QUESTIONS.

THE WITNESS: IF I MAY CALL THE COURT‘S ATTENTION TO |

PAGE 2 OF THOSE LONG NOTES, ABOUT A FOURTH OF THE WAY DOWN,

"MCCLESKEY SAID I SHOT THE POLICE. IT WAS EITHER HIM OR US.

IF THERE HAD BEEN A DOZEN HE WOULD STILL HAVE SHOT."

THE COURT: I KNEW I HAD SEEN THAT BUT I COULDN‘T

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FIND IT. ALL RIGHT.

BY MR. BOGER?

Mo. LET ME ASK YOU ONE QUESTION ABOUT THESE NOTES THAT YOU

HAVE. MR. PARKER. I NOTICE THAT THEY ARE IN A NUMBER OF

DIFFERENT HANDWRITINGS. CAN YOU HELP US TO IDENTIFY WHICH

ONES ARE YOURS AND WHICH ONES ARE OTHER PERSONS?

A. I RECOGNIZE ALL OF THEM AS MINE. THE FIVE LONGHAND

WRITTEN PAGES I RECOGNIZE AS MY COMPLETE HANDWRITING.

THE COURT: LOOK FOR EXAMPLE AT PAGE ONE, TOWARD THE
TOP ON THE RIGHT-HAND SIDE WHERE IT SAYS, "OFFIE GENE EVANS,

APD NUMBER 96687.

THE WITNESS: THAT'S MY HANDWRITING. DIFFERENT PEN

AND I PRINTED IT.

BY MR. BOGER?

Q. WERE THESE NOTATIONS MADE AT DIFFERENT TIMES?

A. I DON’T KNOW.

“. IN FACT, LET ME. IF YOU DON’T MIND, TAKE BACK THE

ORIGINAL THAT YOU HAVE THERE, AND JUST NOTE AS I LOOK THROUGH |

THAT THERE APPEAR TO BE A COUPLE OF DIFFERENT PEN MARKINGS. SOME OF THE ITEMS ARE IN PENCIL AND OTHERS APPEAR TO BE IN A

KIND OF PEN. D0 YOU RECALL WHETHER YOU MADE ALL OF THESE |

NOTES CONTEMPORANEOUSLY OR NOT?

A. THAT IS MY BEST RECOLLECTION.

Qo. WOULD THERE HAVE BEEN ANY REASON FOR YOU TO HAVE SWITCHED

FROM ONE IMPLEMENT OF WRITING TQ ANOTHER AND BACK TO. YOU

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KNOW, THE FIRST?

A. I MAY HAVE GONE BACK TO THE OFFICE AND ADDED IN PENCIL

BUT I THINK I MADE EVERYTHING AT THE JAIL AT THE TIME THAT HE

WAS INTERVIEWED.

THE COURT: LET ME SEE THE ORIGINAL ALL RIGHT. FOR

CLARIFICATION OF THE RECORD. THE PORTIONS OF THE ORIGINALS

THAT WERE THE SUBJECT OF THE COURT’S QUESTIONS EARLIER ARE

APPARENTLY IN SEQUENCE AND IN THE SAME PEN APPARENTLY AS THE

REST OF THE NOTES.

BY MR. BOGER:

ot. MR. PARKER. LET ME GIVE YOU BACK THESE ORIGINALS. IT’S

YOUR TESTIMONY THAT ALTHOUGH YOU BELIEVED THAT ALL OF THIS WAS

WRITTEN CONTEMPORANEOUSLY YOU MAY HAVE ADDED SOME ADDITIONS

WHEN YOU GOT BACK TO THE OFFICE. IS THAT RIGHT?

A. I DONT RECALL DOING IT.

Qo. ALL RIGHT. BUT YOU DON’T RECALL THAT YOU DIDN“T DQ THAT.

YOU HAVE TESTIFIED YOU DIDN‘T HAVE A CLEAR RECOLLECTION APART

FROM THE NOTES?

A. I THINK THE THING THAT I MIGHT HAVE ADDED WOULD HAVE BEEN

OFF1E GENE EVANS, HIS ATLANTA PD NUMBER, HIS FBI NUMBER, AND

HIS [ATE OF BIRTH. I THINK THATS WHAT I ADDED WHEN I GOT

BACK TQ THE OFFICE.

QR. I NOTICE THAT YOUR STYLE OF NOTE TAKING IS TO LEAVE

FAIRLY WIDE MARGINS AND BE FAIRLY CLEAR AND STRAIGHT FORWARD

IN WHAT YOURE WRITING, BUT WHEN WE LOOK ON THE SECOND PAGE IT

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DOES APPEAR THAT THE PHRASE THAT YOU HAVE CALLED TO THE

COURTS ATTENTION, ABOUT HE WOULD HAVE -- IF THERE HAD BEEN A

DOZEN OF THEM HE STILL WOULD HAVE SHOT, IS ACTUALLY CROWDED

BETWEEN LINES. IT 3S THE ONLY PLACE I SEE ON THOSE TWO PAGES

WHERE YOU DONT APPEAR TO HAVE SIMPLY CARRIED THE DOCUMENT OR

CARRIED THE SENTENCE ON TO THE NEXT LINE. INDEED. YOU HAVE

USED TWO OR THREE LINES IN ANY SPACE AREA. WAS THERE ANY

REASON FOR THAT?

A. MY GUESS IS I DIDNT GET IT ALL DOWN. AS I RECALL. MR,

EVANS TALKED RATHER FAST. I THINK I WENT BACK OVER MY NOTES

WITH HIM TO BE SURE I HAD THINGS DOWN, AND I THINK THAT'S

PROBABLY THE WAY IT SITS.

(AS NOW, I NOTICE THAT THE HANDWRITING APPEARS TO ALTER A

LITTLE IN THAT SAME AREA. YOU HAVE MCCLESKEY SAID “Z" SHOT

THE POLICE, IF IT WAS EITHER HIM OR LKS, AM I READING YOU

CORRECTLY?

A. ILL READ IT TO YOU THE WAY I INTERPRET MY OWN WRITING.

MCCLESKEY SAID, "I SHOT THE POLICE. IT WAS EITHER HIM QR US,

IF THERE HAD BEEN A DOZEN HE WOULD STILL HAVE SHOT."

2. IS IT THE SAME PENCIL STROKE THERE OR PEN STROKE AFTER

THE PERIOD IN "US." WHEN YOU BEGIN AGAIN. IT APPEARS TO ME

THAT WHATS DONE IS A DIFFERENT KIND OF WRITING THATS TAKEN

UP THERE?

A. YOU WILL JUST HAVE TO ASSUME WHAT IT IS.

THE COURT: MR. BOGER, I DONT WANT TO PRETERMIT A

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SIFTING CROSS-EXAMINATION BUT IT IS IMMINENTLY CLEAR TO THE

COURT THAT EVEN IF YOU WERE TO MAKE QUT A CASE OF THE FACT

THAT THAT PARTICULAR PHRASE HAD BEEN ADDED THERE, IT IS

PERFECTLY IN SEQUENCE AND IN PLAIN PEN ON THE NEXT PAGE. S0 I

THINK IT“S A DISTINCTION WITHOUT A DIFFERENCE.

| MR. BOGER: WELL. YOUR HONOR. I DO THINK IT APPEARS

TO HAVE BEEN ADDED THERE. AND OF COURSE I INDICATED TO THE

COURT THAT WE HAVEN‘T HAD A FULL OPPORTUNITY TO LOOK THROUGH

IT.

THE COURT: I APPRECIATE THAT BUT I WAS JUST

POINTING OUT TO YOU THAT WHEN ALL IS SAID AND DONE, IF YOU

TURN THE PAGE YOUR WHOLE ARGUMENT IS GOING TO GET SHOT DOWN.

SO LETS MOVE ON TO SOMETHING THAT MIGHT BE MORE MELPFUL.

BY MR. BOGER!

Q. HOW LONG DID YOUR INTERVIEW LAST WITH MR. EVANS AT THAT

TIME?

A. I DON’T RECALL. I DIDN‘T PUT A TIME STARTING AND I

DIDNT PUT A TIME ENDING. MY RECOLLECTION IS IT TOOK SEVERAL

HOURS.

(8 ALL RIGHT. YOU INDICATED YOU HAD BEEN CALLED DURING THE

MORNING. SO DID YOU GO DOWN THERE -- YOU SAID RIGHT AWAY I

BELIEVE. WAS IT A MORNING CONVERSATION?

A. THAT'S MY BEST RECOLLECTION, YES. SIR.

Q. DO YOU RECALL WHETHER IT WAS AT THE END OF THE DAY OR

WHETHER YOU STILL HAD SOME TIME IN THE AFTERNOON WHEN THE

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CONVERSATION IS COMPLETED?

A. I DONT KNOW WHAT WE DID FOR LUNCH BUT I“M SURE I DIDN‘T

SKIP LUNCH.

(. SO IT MIGHT HAVE BEEN THAT THE INTERVIEW BROKE AND YOU

CAME BACK TO -—-

A. I THINK THE INTERVIEW WAS COMPLETED BEFORE LUNCH, SIR.

Go. OKAY.

A. WE MAY HAVE GONE ON LATE AND THEN TAKEN A LATE LUNCH BUT

THERE WAS ONLY ONE INTERVIEW AND WE DIDN‘T BREAK THAT I

RECALL.

@. NOW. ITS YOUR TESTIMONY THAT THERE REALLY WEREN’T ANY

INTERVIEWS BETWEEN THAT AND THE 1ST OF AUGUST. LETS TURN TO

THE "=e

A. IM NOT AWARE OF ANY INTERVIEWS.

Q. THATS RIGHT, YOU WERE NOT AWARE OF ANY INTERVIEWS IN THE

INTERVENING PERIOD. ON THE 1ST OF AUGUST YOU TESTIFIED THIS

STATEMENT WAS TAKEN, A WRITTEN STATEMENT, FROM MR. EVANS.

WHERE WAS THIS STATEMENT TAKEN?

A. THE ATLANTA POLICE DEPARTMENT. HOMICIDE SECTION.

Q. HOW WAS THAT ARRANGED. WAS MR. EVANS BROUGHT TO THE

DEPARTMENT?

A. I DONT KNOW, I SHOWED UP. I DON’T KNOW WHETHER I WAS

THERE FIRST OR HE WAS THERE FIRST. I ASSUME THE DETECTIVE

MADE ARRANGEMENTS FOR HIM TO GET THERE.

(. HAD YOU ASKED FOR THAT MEETING?

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A. THE ONLY THING I REMEMBER SAYING TQ THE DETECTIVES IS

HES GOT SO MUCH INFORMATION WE OUGHT TO REDUCE IT TO WRITING.

Go. AND THEY THEN CALLED YOU UP AND SAID WE HAVE GOT MR.

EVANS -—-

A. I CANT TELL YOU WHY IT TOOK SO LONG BETWEEN JULY THE

12TH AND AUGUST THE 1ST. I“VE GONE BACK AND I CAN‘T FIND MY

PERSONAL POCKET CALENDAR. I“VE GONE BACK TO MY TRIAL

CALENDARS AND I SEE I WAS IN COURT SEVEN OF THOSE DAYS. NOW,

1 CAN‘T ACCOUNT FOR THE OTHER DAYS. I DON‘T KNOW WHETHER

DETECTIVE HARRIS WAS TIED UP OR DETECTIVE JOWERS WAS TIED LP

OR I WAS TIED UP, OR THIS WAS THE ONLY TIME WE COULD ALL GET

TOGETHER. I JUST DON’T RECALL.

Qo. WELL. LET ME ASK YOU. YOU SAID YOU HAVE GONE BACK AND

LOOKED FOR YOUR PERSONAL CALENDARS. WHEN DID YOU DO THAT?

A. WHEN MISS MARY BETH WESTMOELAND CALLED ME, WITHIN THE

LAST WEEK AND A HALF. I HAVE A DESK CALENDAR. I ALSO HAVE A

POCKET CALENDAR. I FOUND MY DESK CALENDAR AND I FIND NO

NOTATIONS ON THERE AS TO WHAT I MIGHT HAVE BEEN DOING DURING

THOSE INTERVENING PERIODS OF TIME FROM JULY THE 12TH TO AUGUST

THE 18T, 1978. I HAVE NOT FOUND MY POCKET CALENDAR.

SO THEN I WENT TO MY COURT CALENDARS TO CHECK TO SEE

IF I WAS IN COURT AND I FOUND THAT I HAD CASES SCHEDULED SEVEN

OF THOSE DAYS BETWEEN THAT PERIOD OF TIME.

Q. 80 YOU DONT HAVE A RECOLLECTION ABOUT WHY IT TOOK THAT

LONG. YOU DON'T HAVE A RECOLLECTION ABOUT WHO SCHEDULED A

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MEETING. ALL YOU KNOW IS YOU RECALL BEING THERE AT SOME

POINT?

A. I KNOW I TOLD DETECTIVE HARRIS THAT IT WOULD BE SMART TO

GET IT IN WRITING BECAUSE HE’S GOT SO MUCH INFORMATION, AND

WHY IT TOOK UNTIL AUGUST THE 1ST I CAN‘T EXPLAIN TO YOU. I DO

NOT KNOW.

@. NOW, WAS DETECTIVE HARRIS THE PRINCIPAL PERSON ON WHOM

YOU RELIED WITH RESPECT TO THIS MATTER? A. I —— MY INVESTIGATION, WHAT I DID, IF I WANTED SOMETHING

DONE I TRIED TO CALL DETECTIVE HARRIS OR DETECTIVE JOWERS. IF |

I COULDN'T GET THEM I’M SURE I TALKED TO LIEUTENANT PERRY AND |

HE PROBABLY GOT ONE OF THEM FOR ME.

@. ALL RIGHT. WHAT ABOUT YOUR INVESTIGATOR?

|
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A. MR. ESKEW. MR. ESKEW WAS WITH ME WHEN THIS STATEMENT WAS |

TAKEN. MR. ESKEW WAS NOT WITH ME WHEN WE WENT QUT TO THE JAIL |

AND I CANT TELL YOU WHY. HE APPARENTLY WAS TIED UP DOING |

SOMETHING ELSE.

6. DO YOU KNOW WHETHER HE HAD ANY INTERVENING CONVERSATIONS

WITH MR. EVANS?

A. I‘M NOT AWARE OF ANY. I DIDNT INSTRUCT HIM TO AND I

DONT THINK HE EVEN KNEW MR. EVANS ANYMORE THAN I DID.

Ql. DID YOU LET ANYONE ELSE IN THE DEPARTMENT. INCLUDING MR.

ESKEW, KNOW WHEN YOU GOT BACK THAT YOU THOUGHT YOU HAD A

WITNESS WITH A LOT OF INFORMATION?

A. I‘M SURE I DISCUSSED IT WITH MR. ESKEW.

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Q. 80 YOU DONT KNOW WHAT ACTION HE MAY HAVE TAKEN

SUBSEQUENT TO THAT?

A. I DONT THINK HE WOULD HAVE TAKEN ANY.

Q. NO. RUT I WAS ASKING WHAT YOUR KNOWLEDGE WAS?

A. I DON‘T KNOW WHAT HIS KNOWLEDGE WAS AND I DONT THINK HE

WOULD DO IT UNLESS I ASKED HIM TO DO IT, AND I DIDN‘T ASK HIM

TO DO IT.

oN. ALL RIGHT. ON THE 1ST OF AUGUST YOU FOUND MR. EVANS IN

THE ATLANTA POLICE DEPARTMENT?

fA. YES, SIR.

Gl. WHAT TIME OF DAY WAS THAT?

Aa THAT I DON’T RECALL BUT I THINK IT WAS EARLY IN THE

MORNING.

Qe NOW. HOW WAS THE INFORMATION THAT YOU PREVIOUSLY HAD

OBTAINED FROM HIM AND THE INFORMATION THAT YOU SAY YOU

OBTAINED FROM HIM ON THE 1ST OF AUGUST, HOW WAS THAT REDUCED

TO THE DOCUMENT WE HAVE HERE. WHAT WAS THE PHYSICAL PROCESS?

A. I DONT REMEMBER THE TYPIST BUT I THINK THEY TOLD HIM TO

SIT DOWN AND START TELLING THE TYPIST AND THIS IS WHAT WAS

PRODUCED. IM SURE SOMEWHERE ALONG THE LINES WE ASKED

QUESTIONS BUT THIS WAS TAKEN BY A TYPIST.

Rx. DID MR. EVANS HAVE NOTES?

A. NOT THAT I‘M AWARE OF.

Q. DID HE HAVE ANY WRITTEN DOCUMENTS THAT WOULD ASSIST HIS

RECOLLECTION?

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A. NOT THAT IM AWARE OF.

Q. WAS THIS --

A. OTHER THAN THE TWO PHONE MESSAGES WHICH I HAD TAKEN FROM

HIM ON JULY THE 12TH AND HE INITIALED AND DATED THEM.

A. THOSE ARE THE ONLY TWO NOTES THAT I‘M AWARE OF OFFIE

EVANS EVER HAVING IN THIS CASE.

i. WELL, THE FIRST SENTENCE OF THIS DOCUMENT BEGINS, "I AM

IN THE FULTON COUNTY JAIL. CELL NUMBER ONE, NORTH 1S, WHERE I

HAVE BEEN SINCE JULY 3RD, 1978". IS THAT THE WAY IN THE

ATLANTA POLICE DEPARTMENT HE BEGAN HIS STATEMENT?

A. THAT HAD TO BE, THATS THE WAY IT IS.

Q. 80 IN FACT HE WASN‘T IN THE POLICE —-~ HE WASN‘T IN THE

FULTON COUNTY JAIL. HE WAS IN THE POLICE DEPARTMENT. HE

WASNT IN CELL 14 OR CELL ONE, NORTH 14, HE WAS —-- HE WAS IN

SOMEBODY S OFFICE -—-

THE COURT: MR. BOGER. THAT IS NOT ONLY NIT-PICKING

AND QUIBBLING IT'S IRRELEVANT. IT IS EGUALLY CLEAR THAT HE

COULD HAVE BEEN REFERRING TO THE PLACE OF HIS USUAL ABODE.

NOW. LETS MOVE ON.

MR. BOGER: YOUR HONOR. WHAT I WAS OFFERING IT FOR,

I MIGHT SAY, IS THAT IF ONE HAD RECONSTRUCTED A STATEMENT FOR

HIM NOT KNOWING WHERE THE CONVERSATION -- WHERE THE ULTIMATE

SIGNING OF THE DOCUMENT WAS GOING TO TAKE PLACE, ONE MIGHT

HAVE POSITED HIM IN HIS CELL AND, YOU KNOW. TO THAT EXTENT IT

SEEMS TO ME ITS RELEVANT.

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THE COURT: IF SOMEBODY HAD DONE WHAT?

MR. BOGER: IF SOMEBODY HAD DRAFTED A STATEMENT FOR

HIM, MAYBE EVEN BASED ON NOTES THAT THEY HAD GOTTEN FROM HIM,

ONE MIGHT HAVE STARTED SUCH A STATEMENT BY PUTTING HIM IN THE

CELL. I AM IN THE CELL. AND THEN IF TURNED QUT THAT RATHER

THAN BEING IN THE CELL OR THE JAIL THE MEETING WAS AT THE

ATLANTA POLICE BUREAU --—

THE COURT: I DON’T WANT TO BE DISCOURTEOUS BUT THIS

IS THE THIRD TIME THIS CASE HAS BEEN THROUGH COURT. YOU’RE

HERE TO PROVE ALLEGATIONS, NOT TO FISH, AND THE ONLY

ALLEGATION THAT WE ARE TALKING ABOUT RIGHT NOW IS A MESSIAH

VIOLATION. ABOUT SOMEBODY MAKING UP A STATEMENT AND THAT SORT

OF THING.

MR. BOGER: ALL RIGHT, YOUR HONOR.

BY MR. BOGER?

Q. I NOTICE, THOUGH, MR. --

MR. BOGER: AND. YOUR HONOR, I“M NOT TRYING TO BE IN

VIOLATION OF WHAT YOU HAVE JUST SAID. I WANT TO ASK ONE OR

TWO OTHER QUESTIONS ABOUT THE STRUCTURE OF THE DOCUMENT. TO

CLARIFY IT.

BY MR. BOGER:

Q. I NOTICE THAT THERE ARE QUOTATION MARKS AT GREAT MANY

POINTS THROUGHOUT THIS. IN WHICH THERE APPEAR TO BE VERBATIM

QUOTATIONS FROM MR. MCCLESKEY OR MR. DUPREE OR MR. EVANS,

HIMSELF. DID MR. EVANS IN HIS STATEMENT TO THE TYPIST SAY

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"QUOTE," AND THEN GO INTO A QUOTATION? HOW WAS THIS VERBATIM

LANGUAGE WRITTEN INTO THE DOCUMENT?

A. I‘M SURE THATS WHAT THE TYPIST PUT IN THERE AND I DIDN-T

DO THE TYPING.

Gr. NO, I UNDERSTAND THE TYPIST PUT THAT IN THERE FHYSICALLY.

DID SHE DO IT IN RESPONSE TO EVANS” STATEMENT, "NOW, I“M

TELLING YOU EXACTLY WHAT THEY SAID"?

A. THAT IS MY BEST RECOLLECTION OF WHAT TOOK PLACE. IM

SURE THAT'S WHY SHE PUT IT IN THERE. TO TRY TO CLARIFY IT.

Q. OKAY. DID HE SAY ANYTHING QTHER THAN OR IN ADDITION TO

THE LANGUAGE THAT APPEARS HERE. IN OTHER WORDS —-- OR DID SHE

SIMPLY TAKE DOWN A TRANSCRIPTION OF EVERYTHING HE SAID FROM

THE TIME HE STARTED TO THE TIME HE STOPPED?

A. I DO NOT REMEMBER. MY BEST RECOLLECTION IS THAT THIS 21

PAGE STATEMENT IS WHAT HE TOLD US ON AUGUST THE 1ST. 1978.

ol. IN THAT STATEMENT HE TALKS ABOUT SOME DISCUSSIONS THAT HE

HAD ON AUGUST THE 8TH OR THE 9TH AND THE 10TH?

THE COURT: AGAIN —-

MS. WESTMORELAND: JULY.

MR. BOGER: EXCUSE ME.

BY MR. BOGER!

A. JULY 8TH, 9TH, AND THE 10TH. AND THEN HE SAYS ON THE

EIGHTH PAGE. IF YOU LOOK AT IT, THAT HE DIDN‘T TALK TO

MCCLESKEY NO MORE FOR A COUPLE OF DAYS AFTER THAT. HE THEN

TALKS ABOUT CONVERSATIONS THAT HE HAD SUBSEQUENT TO THAT TIME,

166

WHEN THEIR DISCUSSIONS WERE RENEWED. DID YOU ASK HIM WHETHER

THERE WERE ANY STATEMENTS THAT HE OBTAINED FROM MR. MCCLESKEY

DURING THE INTERVAL FROM THE 12TH OF JULY WHEN YOU! FIRST

TALKED WITH HIM UNTIL AUGUST THE 15ST. OR DID YOU JUST SIMPLY

LET HIM TALK?

A. I THINK WE JUST SIMPLY LET HIM TALK. IF YOU HAVE EVER

INTERVIEWED OFFIE EVANS —— AND I‘M SURE MR. STROUP HAS -- HE

TALKED VERY RAPIDLY AND IT’S VERY HARD TO UNDERSTAND HIM AND

YOU REALLY HAVE TO SLOW HIM DOWN.

Gl. SO IT’S YOUR TESTIMONY THEN THAT YOU BASICALLY LET MR.

EVANS TALK AND HE GAVE YOU STATEMENTS, SOME OF WHICH MAY HAVE

COME FROM INFORMATION HE GAINED PRIOR TO THE TIME YOU FIRST

MET. AND SOME OF WHICH HE MAY HAVE GAINED IN THE INTERVENING

THREE WEEKS?

A. IM NOT AWARE OF ANY INFORMATION HE OBTAINED IN THE

INTERVENING TIME BETWEEN JULY THE 12TH AND AUGUST THE 1ST.

WHETHER HE DID OR NOT I DON‘T KNOW BUT IM NOT AWARE OF ANY.

Cl. ALL RIGHT. DID YOU ASK HIM ON THE 12TH OF AUGUST WHETHER

HE WOULD AGREE TO MAKE A STATEMENT FOR YOU?

A. I‘M SURE WE DID.

GQ. DID HE AGREE THAT HE WOULD?

A. I‘M SURE HE DID BUT I HAVE NO INDEPENDENT RECOLLECTION OF

IT, BUT IM SURE WE WOULD NOT HAVE BROUGHT HIM OVER TO THE

ATLANTA POLICE DEPARTMENT UNLESS HE HAD AGREED TO DO IT.

RQ. DID YOU ASK HIM TO KEEF HIS EARS OPEN FOR ANYTHING ELSE

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HE MIGHT HEAR?

. NO, SIR: I DID NOT.

. DID YOLI INSTRUCT HIM NOT TO TALK --

A. NO, SIR. I DID NOT.

Q. DID YOU SEND HIM BACK TO THE CELL WITH KNOWLEDGE THAT —-

A . I SENT HIM NOWHERE. I CONDUCTED MY INTERVIEW AND WE

ol. DID YOU GIVE HIM ANY INSTRUCTIONS ONE WAY OR ANOTHER

ABOUT ~-

A. NO.

1. -=— HOW TO CONDUCT HIMSELF SUBSEQUENTLY IN THE JAIL?

A. NO. SIR.

a. BUT AT THAT POINT HE KNEW THAT YOU WANTED A STATEMENT

FROM HIM AND THAT YOU INTENDED TO REDUCE IT TO WRITING?

A. THAT S MY BEST RECOLLECTION, OTHERWISE WE NEVER WOULD

HAVE TAKEN HIM TQ THE POLICE DEPARTMENT ON AUGUST THE 1ST.

BUT I HAVE NO INDEPENDENT RECOLLECTION OF ASKING HIM THAT BUT

OBVIOUSLY WE DID.

Gl. DID YOU MAKE ANY INQUIRIES WITH RESPECT TO HIS CUSTODY

DURING THE PERIOD AFTER JULY THE 12TH AND PRIOR TQ AUGUST THE

18T7?

A. I THINK I MADE AN INQUIRY AS TO WHAT HIS APD NUMBER, WHAT

HIS FBI NUMBER WAS, AND WHAT HIS DATE OF BIRTH WAS, BECAUSE I

SEE THAT WRITTEN ON THERE. AND I DOUBT SERIOUSLY IF HE WOULD

HAVE KNOWN WHAT HIS FBI NUMBER WAS UNLESS DEPUTY HAMILTON GAVE

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THAT TO ME. I DQUBT SERIOUSLY IF HE WOULD HAVE KNOWN WHAT HIS

ATLANTA POLICE DEFARTMENT NUMBER WAS.

Q. WHY DID YOU MAKE THOSE INQUIRIES?

A. WELL, I THINK I GOT A COPY OF HIS RAP SHEET AND I THINK I

GAVE IT TO COUNSEL ON A MOTION, WHEN I LISTED HIM AS A

POSSIBLE WITNESS.

Q. THATS SUBSEQUENT TO AUGUST THE 1ST. IM NOW TALKING

ABOUT THE PERIOD -- OR IS THIS —-- THESE DOCUMENTS AND NUMBERS

THAT WE ARE TALKING ABOUT ONES THAT YOU MIGHT HAVE GOTTEN MUCH

AFTER ALIGUST THE 18T?

A. I NEVER KNEW OFFIE EVANS, SO IF I GOT A COPY OF HIS RAP

SHEET I HAD TO GET IT FROM THE ATLANTA POLICE DEPARTMENT. I

SERVED THAT ON COUNSEL BY MOTION AND I‘M SURE THAT'S WHY THAT

APPEARS ON HERE.

Q. LET ME ASK YOU, THOUGH, CIRCLING BACK, DID YOU MAKE ANY

OTHER INQUIRIES WITH RESPECT TO HIS CUSTODY FROM THE TIME

AFTER YOU TALKED WITH HIM: HERES A WITNESS THAT YOU HAVE

DISCOVERED HAS IMPORTANT INFORMATION. BETWEEN THAT TIME ON

JULY OR THE 12TH AND AUGUST THE 1ST WHEN THE STATEMENT WAS

FINALLY REDUCED TO WRITING?

A. I DONT REMEMBER HAVING CONVERSATION WITH ANYBODY EXCEPT

MR. ESKEW AND POSSIBLY MR. HARRIS AND MR. JOWERS.

Q. YOU WEREN'T OBVIOUSLY AWARE OF ANY CONVERSATIONS THEY

HAD?

A. NO, IM NOT AWARE OF ANY CONVERSATIONS THEY HAD WITH

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ANYBODY ABOUT MR. OFFIE EVANS‘ CUSTODY.

THE COURT: THE COURT IS GOING TO TAKE ANOTHER

LITTLE TEN MINUTE RECESS. IF YOU HAVE NO MORE DIRECT

QUESTIONS THAN THE ONES YOU HAVE BEEN ASKING FOR THE LAST FIVE

OR TEN MINUTES. I WOULD SUGGEST A PROCEDURE WHERE AFTER WE

COME BACK YOU CALL SOME POLICE OFFICER OR SHERIFF OR WHATEVER.
LETS FIND OUT WHAT THEY KNOW. AND THEN WITH A RIGHT TO |

RECALL AFTER DOCUMENTS ARE MARKED AND I THOUGHT. MISS |

WESTMORELAND, I WOULD LET YOU RESERVE YOUR CROSS UNTIL HE WAS

COMPLETELY THROUGH WITH THE WITNESSES. |

MS. WESTMORELAND: THATS FINE, YOUR HONOR. |

THE COURT: OR I WOULD LIKE TO —— I DON'T WANT TO

INTERFERE WITH THE EFFECTIVE PRESENTATION OF YOUR CLIENTS

CASE BUT I WOULD LIKE VERY MUCH TO HEAR WHAT MR. HAMILTON HAS |

TO SAY IF HE'S HERE. IS HE HERE? |

MS. WESTMORELAND: YES, YOUR HONOR, HES HERE.

THE COURT: AND ANY OF THE DETECTIVES THAT WERE

PRESENT AND WE COULD ACCOMPLISH THAT DURING THE NEXT HOUR.

THEN I MIGHT BE ABLE TO SEND THESE FOLKS BACK TO JACKSON ABOUT

6230.

MR. BOGER: FINE, YOUR HONOR.

THE COURT: FINE. WE WILL BE IN RECESS

CWHEREUPON, A SHORT RECESS WAS TAKEN. ]

MS. WESTMORELAND: YOUR HONOR, MR. PARKER IS BACK

BEFORE THE COURT. THE QUESTION WAS WHETHER HE WAS SUPPOSED TO

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REMAIN OR HOW WE WERE PROCEEDING AT THIS POINT. AND I BELIEVE

ALTHOUGH NOW HES BEEN SERVED THE SUBPOENA, THE QUESTION HAS

BEEN CONCERNING THE FILES HE HAS IN HIS OFFICE. I THINK HE

WOULD LIKE SOME DIRECTION FROM THE COURT ON WHAT HE NEEDS TO

DO AT THIS STAGE OF THE PROCEEDINGS.

THE COURT: ASSUMING THAT YOU HAVE ASSERTED OR ARE

ASSERTING A PRIVILEGE, WHAT I WOULD LIKE FOR YOU TO DO IS TO

TURN OVER THE DOCUMENTS THAT ARE RESPONSIVE TO THE SUBPOENA AS

THEY MIGHT RELATE TO THE MESSIAH ISSUE.

MR. PARKER! SQ I UNDERSTAND, DO YOU WANT ME TO LOOK

THROUGH -- MY BOX OF MATERIALS IN MY OFFICE TO SEE IF THERE-S

ANYTHING ON OFFIE EVANS?

THE COURT: IM SATISFIED WITH YOUR EXPERIENCE

YOURE FAMILIAR WITH THE MESSIAH CASE AND IT’S PROGENY.

MR. PARKER: I HAVE HEARD IT MENTIONED. YOUR HONOR,

I DON’T KNOW IF I HAVE EVER READ IT OR NOT. I APOLOGIZE IF I

HAVENT.

THE COURT: THATS THE CASE THAT SAYS YOU‘RE NQT

SUPPOSED TO PLANT SOMEBODY EITHER AS AN INFORMANT OR AS A

CELLMATE OR WHATEVER.

MR. PARKER: I“M FAMILIAR WITH THAT RULE OF LAW.

THE COURT: TO GET CONFESSIONS AFTER FOLKS HAVE GOT

A LAWYER.

MR. PARKER: I“M FAMILIAR WITH THAT RULE OF LAW,

YES, SIR.

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THE COURT: ANYTHING THAT WOULD PERTAIN TO THAT

ISSUE AS IT RELATES TO OFFIE EVANS IS GERMANE TO THAT

SUBPOENA.

MR. PARKER: ILL DO THAT.

THE COURT: NOW. THE SUBPOENA ACTUALLY ASKS I

PRESUME FOR ALL OF YOUR DOCUMENTS. WHAT WOULD BE BEST TO GET

THIS ROUND UP WITH DISPATCH IS THIS. IF YOU DON‘T MIND

LEAVING THE BOX YOU BROUGHT AND —-- OR AT LEAST THOSE PORTIONS

OF IT THAT EVEN REMOTELY RELATE TQ IT, AND MAKING THE EFFORT

TO MAKE THE MISCELLANEOUS MATTERS THAT ARE IN YOUR OFFICE

AVAILABLE OR IF YOUR COUNSEL INSISTS AT LEAST ANY THAT HAVE

ANY TANGENTIAL EFFECT TO A MESSIAH TYPE ISSUE OR OFFIE EVANS

THIS EVENING WOULD FACILITATE THIS COURTS DISPOSITION. I

DONT WANT TO COME BACK TO COURT. I WOULD PREFER NOT TO COME

BACK TO COURT TOMORROW.

MR. BOGER SAID HE HASN‘T HAD A CHANCE TO EXAMINE ANY

DOCUMENTS THAT ARE ARGUABLY HELPFUL ON THIS POINT. AT THIS

POINT IN TIME IM NOT GOING TO TELL YOU, YOU GOT TO WORK LATE

TONIGHT. IM JUST TELLING YOU IT WILL FACILITATE --

MR. PARKER? I DON’T PLAN TO WORK LATE. I HAVE

INTERVIEWS I HAVE TO CANCEL. S80 ILL GO BACK TO THE OFFICE

AND CANCEL THEM AND BRING THAT MATERIAL OVER.

THE COURT: ALL IM REQUIRING YOU TO DO IS TO BE

THERE AVAILABLE FOR THESE COUNSEL. I WILL SUSPEND AT 4:30 OR

THEREABOUTS. $0 IF YOU WILL BE AVAILABLE TO THEM WITH THE

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OTHER MATERIALS AROUND QUARTER OF 7:00 OR 7:00 SO THAT THEY

COULD REVIEW THEM. YOU KNOW, I APPRECIATE THE FACT THAT WE

ARE DEALING -— I APPRECIATE THE FACT THAT WE ARE DEALING WITH

ONE ISSUE HERE AND THATS THE MESSIAH ISSUE, AND TO ASK YOU TO

TURN OVER EVERYTHING IN THE WORLD IS BROADER THAN THAT. I

DON‘T THINK I HAVE TO DRAW YOU A PICTURE THAT IT MAKES THIS

COURTS JUDGMENT AND THE COURT OF APPEALS AND THE SUPREME

COURTS JUDGMENT MUCH MORE CONFIDENT IF THERE IS THE

APPEARANCE OF FAIRNESS. S0 THAT TO THE EXTENT THAT YOU FEEL

THAT YOU CAN TURN OVER. JUST LET THEM LOOK.

I OBVIOUSLY AM NOT OBLIGED OR I CAN'T OBLIGE YOU OR

YOUR CLIENT TO RESPOND TO ANY DISCOVERY THAT IS BEYOND THE

ISSUE THAT IM CONSIDERING. $0 AT A MINIMUM I“M SAYING LOOK

FOR ANYTHING THAT WOULD RELATE TO OFFIE EVANS OR THE MESSIAH

ISSUE, AND IF YOU FEEL SO DISPOSED TO FACILITATE THINGS THEN

JUST LET THEM LOOK. IT’S UP TO YOU.

MS. WESTMORELAND: YOUR HONOR HAD MENTIONED THE BOX

THAT MR. PARKER HAD BROUGHT. DID YOU WANT HIM TO LEAVE IT

HERE OR —-

THE COURT: IF WE PLAY THIS BY THE RULES HE IS

ENTITLED ——- HE. MR. BOGER, IS ENTITLED TO DISCOVER RELEVANT

EVIDENCE OR EVIDENCE THAT MIGHT LEAD TO RELEVANT EVIDENCE ON

ANY ISSUE BEFORE THE COURT. THE ONLY ISSUE I“M INTERESTED IN

IS THE MESSIAH ISSUE. SO IF YOU WISH TO STAND ON YOUR RIGHTS

YOU CAN GO THROUGH THERE AND PICK OUT ANYTHING THAT IS

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RESPONSIVE TO THAT AND FOLD UP THE BOX AND TAKE IT HOME.

WHAT I“M TRYING TO SUGGEST TO YOU IS, IF YOU DON’T

OBJECT TO IT, IT PROBABLY MAKES EVERYBODY ELSE FEEL LIKE THE

PROCEEDING IS FAIRER IF THEY JUST LET THEM LOOK THROUGH THE

BOX AND SATISFY THEMSELVES THAT THERE‘ S NOTHING ELSE IN THERE.

BUT I“M NOT GOING TO ORDER YOU TO DO ANYTHING MORE THAN THE

FEDERAL RULES OF DISCOVERY REQUIRE.

MS. WESTMORELAND: ILL HAVE TO LEAVE THAT UP TO MR. |

PARKER SINCE ITS HIS FILE.
MR PARKER: THEY CAN GO THROUGH THE BOX HERE AND

ILL GO BACK TO OFFICE AND GO THROUGH MY NOTES. |

THE COURT: ARE YOU WILLING TO LEAVE THE BOX HERE?

MR. PARKER! YES, SIR, OR IN THE CLERKS CUSTODY.

MR. BOGER: YOUR HONOR. MR. STROUP IS GOING TO TAKE

THE NEXT WITNESS. I WOULD BE HAPPY TO SIT IN THE COURTROOM

WITH THE BOX AND SEE IF I CAN LOOK THROUGH IT AT THAT TIME AND

MOVE THINGS ALONG.

THERE IS ONE ADDITIONAL MATTER BEFORE MR. PARKER

LEAVES THAT MAY HELP US IN THESE PROCEEDINGS. IT’S LITERALLY

ONE SET OF TWO OR THREE QUESTIONS WITH REGARD TO THE WHEREABOUTS OF MR. EVANS. I SIMPLY WANT TO ASK HIM AS WE WILL |

ASK THE POLICE OFFICERS. IF THEY KNOW THE CURRENT WHEREABOUTS |

OF MR. EVANS. IF WE COULD DO THAT --

THE COURT: DO YOU KNOW WHERE HE IS. MR. PARKER? |

YOU ARE UNDER OATH.

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MR. PARKER: I UNDERSTAND HE‘S JUST GOTTEN OUT OF

JAIL, YOUR HONOR, BUT I DO NOT KNOW WHERE HE IS. I ASSUME

HES IN THE ATLANTA AREA SOMEWHERE.

THE COURT: YOU HAVE NO INFORMATION OR LEADS?

MR. PARKER: NO. I COULD PROBABLY FIND HIM. I HAVE

SPENT ENOUGH TIME WITH HIM.

| THE COURT: HIS SISTER, FOR EXAMPLE, HAS INFORMED

THE UNITED STATES MARSHALS THAT SHE DOESN’T KNOW WHERE HE IS.

MR. PARKER: HIS EX-WIFE I THINK USED TO WORK FOR

DOBBS HOUSE. WHETHER OR NOT SHE STILL DOES OR NOT AT THE

ATLANTA AIRPORT. I DONT KNOW.

THE COURT: BUT BEYOND THAT YOU KNOW OF NO LEADS

THAT WOULD BE HELPFUL TO THEM?

MR. PARKER: NO, YOUR HONOR.

THE COURT: DOES THAT TAKE CARE OF IT?

MR. BOGER: THAT'S FINE. THANK YOU.

THE COURT: ALL RIGHT. CALL THE NEXT WITMESS, THEN

MR. STROUP.

MR. STROUP: MR. HAMILTON. THE COURT: COME UP UP, PLEASE, TO BE SWORN.

THE CLERK: PLEASE COME IN FRONT OF THE FODIUM AND RAISE

YOUR RIGHT HAND.

YOU DO SOLEMNLY SWEAR THAT THE EVIDENCE YOU SHALL GIVE

IN THE CAUSE NOW PENDING BEFORE THE COURT, SHALL BE THE TRUTH,

THE WHOLE TRUTH, AND NOTHING BUT THE TRUTH, SO HELP YOU GOD.

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THE WITNESS: I DO.

THE CLERK: BE SEATED ON THE WITNESS STAND. STATE YOUR FULL NAME.

THE WITNESS: MY NAME IS CARTER KEITH HAMILTON.

CARTER K. HAMILTON |

BEING FIRST DULY SWORN. WAS EXAMINED AND TESTIFIED AS FOLLOWS! |

DIRECT EXAMINATION

BY MR. STROUP:

a. MR. HAMILTON. MY NAME IS BOB STROUF. IM HERE

REPRESENTING THE PETITIONER. WARREN MCCLESKEY., IN THIS

PROCEEDING. WHERE ARE YOU CURRENTLY EMPLOYED?

A. SUPER VALUE. |

Gl. AND HAVE YOU PREVIOUSLY BEEN EMPLOYED BY THE FULTON |

COUNTY SHERIFFS DEPARTMENT? |

A. YES, SIR.

Q. WHEN WERE YOU EMPLOYED WITH THE FULTON COUNTY SHERIFF-S

DEPARTMENT? |

A. I HAVE BEEN GONE EIGHT YEARS SO -—- I BELIEVE I WENT THERE |

IN “74, |

RQ. LET ME GET THE FIGURES RIGHT BECAUSE I HAVE BEEN GONE

EIGHT YEARS.

RA. YOU LEFT APFROXIMATELY 19797?

A. YEAH, ABQUT “79.

Q. ALL RIGHT. AND HOW LONG DID YOU WORK FOR —-

A. FOUR AND A HALF YEARS.

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FOUR AND A HALF YEARS. $50 YOU WERE EMPLOYED SOMETIME MID

“74 TO “79, SOMEWHERE ALONG IN THERE.

ALL RIGHT. AND FOR SOME PERIOD OF TIME WERE YOU ASSIGNED

TO THE FULTON COUNTY JAIL?

YES: SIR, THE WHOLE TIME.

THE ENTIRE TIME?

YES, SIR.

AND WHAT WERE YOUR DUTIES WHILE EMPLOYED AT THE FULTON

COUNTY JAIL?

I WORKED THE FLOOR AS A FLOOR DEPUTY.

YOU WORKED THE FLOOR AS A FLOOR DEPUTY?

YES, SIR. I ALSO WORKED IN THE KITCHEN.

ALL RIGHT. DURING THE PERIOD OF 1978 WHAT WERE YOUR

DUTIES AS A FULTON COUNTY SHERIFF’S DEPUTY?

QR.

I WAS FLOOR DEPUTY AT THAT TIME.

DO YOU RECALL WHAT FLOOR OR FLOORS YOU WERE ASSIGNED TO?

MOST OF THE TIME I WORKED THE FIRST FLOOR.

AND WHAT WAS ENCOMPASSED ON THE FIRST FLOOR?

YOU MEAN AS FAR AS —-- HOW DO YOU MEAN?

WELL. WERE THERE DIFFERENT AREAS. WERE THERE SOLITARY AS

AS NONSOLITARY --—

YES: SIR.

—-=— AREAS OF THE FIRST FLOOR?

YES. SIR.

AND WERE YOU -- DID YOU COVER THE ENTIRE FIRST FLOOR?

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A. YES, SIR.

a. ALL RIGHT. BUT PART OF YOUR RESPONSIBILITIES INVOLVED

PRISONERS WHO ARE HELD IN SOLITARY CONFINEMENT. IS THAT RIGHT?

A. YES, SIR.

eo. DURING 1978 DID YOU EVER HAVE OCCASION TO HAVE

CONVERSATIONS WITH A PERSON NAMED OFFIE GENE EVANS?

A. YES, SIR.

Q. DO YOU RECALL WHEN YOU FIRST HAD A CONVERSATION WITH HIM?

A. ALL RIGHT. AS FAR AS THE EXACT DATE OF A FIRST

CONVERSATION, I HAD CONVERSATIONS WITH FROBABLY EVERYRODY ON

THE FLOOR. I HAD A CONVERSATION WITH HIM PERTAINING TO THIS

CASE ON PROBABLY ABOUT THE 11TH OR 12TH.

Q. OKAY. LETS COME BACK TO THAT. WOULD YOU HAVE HAD PRIOR

CONVERSATIONS —— DO YOU EXPECT THAT YOU WOULD HAVE HAD PRIOR

CONVERSATIONS WITH EVANS PRIOR TO THE 11TH OR THE 12TH?

A. I WOULD IMAGINE I WOULD HAVE HAD CONVERSATIONS WITH

EVERYBODY THERE.

Cl. OKAY. DO YOU HAVE ANY RECOLLECTION AT THIS POINT IN TIME

QF THE CIRCUMSTANCES OF EVANS BEING PLACED IN SOLITARY

CONFINEMENT?

A. TO THE BEST OF MY KNOWLEDGE HE CAME THERE ON AN ESCAPE

CHARGE, AND HE WOULD BE PUT BACK THERE IN ISOLATION AS AN

ESCAPE RISK.

QR. THAT IS YOUR BEST GUESS BUT YOU DON'T HAVE rr

A. THAT WOULD BE MY GUESS.

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(2. BUT YOU DON’T HAVE A CLEAR RECOLLECTION AT THIS POINT?

A. NO, SIR.

a. DO YOU HAVE ANY RECOLLECTION AT THIS POINT OF WHO THE

ARRESTING OFFICER WAS FOR OFFIE EVANS AT THAT TIME?

A. NO. NO, SIR.

RQ. DID YOU -- DO YOU HAVE THEN ANY SPECIFIC RECOLLECTIONS OF

ANY CONVERSATIONS THAT YOU, YOURSELF. HAD BETWEEN OFFIE EVANS,

BETWEEN THE TIME THAT HE WAS PLACED IN SOLITARY CONFINEMENT

AND THIS CONVERSATION THAT YOU REFER TO THAT OCCURRED ALONG

ABOUT THE 11TH. AS BEST AS YOU RECALL?

A. NOT TO THE BEST OF MY KNOWLEDGE, SIR.

GQ. ALL RIGHT. JUST FOR PURPOSES OF REFRESHING YOUR

RECOLLECTION. IF IT DOES, DID YOU, FOR EXAMPLE. HAVE ANY

CONVERSATIONS WITH HIM REGARDING THE FRANK SCHLATT

INVESTIGATION?

MS. WESTMORELAND: COULD I ASK COUNSEL TO PLACE A

TIME FRAME ON THAT QUESTION AND BE MORE SPECIFIC.

MR. STROUP: ALL RIGHT.

BY MR. STROUP:

GQ. I‘M GENERALLY DIRECTING YOUR ATTENTION TQ THE TIME PERIOD

OF EARLY JULY, PRIOR TO THIS JULY 11TH DATE THAT YOU HAVE

MENTIONED?

A. NO, SIR. I WOULD NOT HAVE.

G2. YOU WOULD NOT HAVE. DID YOU, YOURSELF -- WHAT KNOWLEDGE

DID YOU, YOURSELF. HAVE OF THE INVESTIGATION SURROUNDING THE

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DIXIE FURNITURE STORE ROBBERY AND THE SHOOTING QF OFFICER

SCHLATT?

A. AT WHAT POINT?

Gl. PRIOR TO JULY 11TH OF 19787

A. ONLY THAT THERE WAS AN INVESTIGATION GOING ON, THAT THERE

HAD BEEN A ROBBERY. AND AN OFFICER HAD BEEN SHOT.

eo. DID YOU HAVE ANY CONVERSATIONS WITH ANY DETECTIVE FROM

THE ATLANTA BUREAU OF POLICE SERVICES REGARDING THAT

INVESTIGATION, AGAIN PRIOR TO JULY 11TH, OF 19787

A. NO, SIR.

QR. AND IS THAT A FAIRLY CLEAR RECOLLECTION OR IS THAT JUST

YOUR BEST GUESS AT THIS POINT IN TIME?

A. NO, THATS A FAIRLY CLEAR RECOLLECTION.

a. DO YOU, YOURSELF. HAVE ANY NOTES THAT YOU WOULD HAVE KEPT

DURING THE NORMAL COURSE OF THE PERFORMANCE OF YOUR DUTIES. OF

NOTES. DIARIES, ANY KIND OF WRITINGS THAT WOULD REFLECT YOUR

ACTIVITIES ON A GIVEN DAY IN JULY OF 19787

A. NO, SIR, I WOULDN‘T HAVE, MYSELF.

Gl. YOU WOULDNT HAVE. YOURSELF. AND YOU DIDNT KEEP THEM AT

THAT TIME, IS THAT CORRECT?

A. NO, SIR. THAT'S CORRECT.

Gl. AND I THINK THEN THAT THE CONVERSATIONS THAT YOU WOULD

HAVE HAD WITH —- YOUR RECOLLECTION THEN IS THAT THE

CONVERSATIONS YOU WOULD HAVE HAD WITH OFFIE EVANS PRIOR TO

JULY 11TH WOULD HAVE BEEN ALONG THE LINES OF —— WELL, LET ME

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REPHRASE THAT. JUST SO IM CLEAR, YOU HAVE NO RECOLLECTION

WHATSOEVER OF YOUR HAVING ANY CONVERSATION WITH OFFIE EVANS,

YOURSELF, REGARDING THE FRANK SCHLATT MURDER INVESTIGATION OR

THE DIXIE FURNITURE STORE ROBBERY. PRIOR TO JULY 11TH OF 1977?

A. NO, SIR. I WOULDN‘T HAVE HAD ANY CONVERSATION WITH HIM.

EXAMINATION

BY THE COURT:

Qo. DID YOU OR -- YOU KNEW THAT MCCLESKEY WAS A SUSPECT IN

THE DIXIE FURNITURE CASE? |

A. I KNEW THAT THERE WAS FROBABLY FOUR SUSPECTS OF THE

PEOPLE WHO WERE INVOLVED IN IT, AND THAT WAS THROUGH THE

MEDIA.

2. DID YOU OR DID ANYONE ELSE. TO YOUR KNOWLEDGE. EVER STATE

OR IMPLY TQ OFFIE EVANS THAT IT WOULD BE NICE IF HE KEPT HIS

EARS OPEN BECAUSE HE WAS NEXT DOOR TO MCCLESKEY?

A. NO, SIR.

Q. OR DID YOU EVER ASK HIM PRIOR TO THE 11TH IF MCCLESKEY

WAS TALKING DR ANYTHING ELSE LIKE THAT?

A. NO, SIR.

MR. STROUP: SHALL I PROCEED?

THE COURT: YES,

BY MR. STROUP:

RQ. IN TERMS OF MAKING AN ASSIGNMENT TO A PARTICULAR CELL, IN

1978 WHO WOULD MAKE AN ASSIGNMENT TO A GIVEN CELL?

A. IT WOULD GO THROUGH THE CLASSIFICATION OFFICE.

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Q. THE CLASSIFICATION OFFICE?

A. OFFICE.

A. THEY HAVE A CLASSIFICATION OFFICER WHO WOULD ASSIGN THE

INMATES TO A PARTICULAR CELL.

Q. DO YOU RECALL WHO THAT PERSON WAS IN 19787

A. I BELIEVE IT WAS SERGEANT EVANS. ROBBY EVANS I BELIEVE.

THE COURT: IS HE A SHORT DARK COMPLECTED --—

THE WITNESS: DARK HAIR. YES, SIR. I THINK HE'S

SELLING REAL ESTATE IN NORTH GEORGIA THE LAST TIME I HEARD.

THE COURT: THATS NOT THE ONE I‘M THINKING OF.

OKAY.

BY MR. STROUP:

11TH. WHAT CONVERSATIONS THEN DID YOU HAVE WITH OFFIE EVANS ON

THAT DATE?

A. HE TOLD ME THAT HE HAD OVERHEARD SOME CONVERSATIONS ABOUT

THE ROBBERY THAT MR. MCCLESKEY AND MR. DUPREE HAD TALKING

BETWEEN THE FLOORS, AND I ASKED HIM AT THAT TIME WOULD HE TALK

TO THE OFFICERS WHO WERE INVESTIGATING THE CASE AND HE SAID HE

WouLD.

Go. WHAT DID YOU DO NEXT?

A. I CALLED THE OFFICERS.

Cl. AND WHO WERE THE OFFICERS WHO YOU SPOKE WITH?

A. I GOT AHOLD OF OFFICER HARRIS.

Q. DO YOU RECALL HOW IT WAS THAT YOU GOT HOLD OF HIM?

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A. ON THE TELEPHONE. I CALLED -- I CALLED THE --

a. DID YOU KNOW AT THAT POINT IN TIME TO CALL OFFICER HARRIS

DIRECTLY?

A. I KNEW THAT HE —-— AT THAT TIME I KNEW THAT HE WAS

INVESTIGATING THE CASE.

Ql. DO YOU RECALL HOW IT WAS THAT YOU HAD THAT INFORMATION?

A. NO, I DONT.

Gl. IS IT POSSIBLE THAT HE HAD BEEN OUT THERE ON SOME OTHER

MATTER PRIOR TO THAT TIME?

A. I GUESS IT’S POSSIBLE.

Ql. BUT YOU DONT HAVE A PRESENT RECOLLECTION AT THIS POINT?

A. NO, SIR.

Q. ONE WAY OR THE OTHER. AND WHAT HAPPENED. YOU CALLED UP —-—

YOU CALLED OFFICER HARRIS I THINK YOU INDICATED?

A. YES. SIR.

Gi. AND WHAT DID YOU TELL OFFICER HARRIS?

A. I TOLD HIM THAT SOMEBODY HAD SOME INFORMATION ABOUT THE

CASE AND THAT —- SAID HE WANTED TO TALK TO HIM.

QA. AND WHAT HAPPENED NEXT?

A. ON THE MORNING OF THE 12TH OFFICER HARRIS AND MR. RUSS

PARKER AND ANOTHER OFFICER I BELIEVE CAME OUT TO THE JAIL TO

TALK TO HIM.

el. THAT WAS —- YOUR RECOLLECTION THAT WAS THE NEXT MORNING?

A. MEXT MORNING. I BELIEVE THATS —- THE NEXT MORNING IS

WHEN I GOT AHOLD OF THEM AND THEY CAME AROUND NOON I GUESS.

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Q. AND WHAT HAPPENED UPON THEIR ARRIVAL?

A. WE TOOK MR. EVANS DOWN TO A ROOM, DOWN FRONT, WHERE THEY

COULD SET DOWN AND TALK TO HIM.

Qu DID YOU HAVE SOME CONVERSATIONS WITH EVANS BETWEEN THE

TIME THAT YOU HAD SPOKEN WITH MR. HARRIS AND THE TIME THAT THE

DETECTIVES AND MR. PARKER CAME OUT TO INTERVIEW HIM?

A. NOT TO MY RECOLLECTION.

Q. AND HOW WAS IT THAT EVANS WAS TAKEN DOWN TO THE ROOM?

A. I CARRIED HIM DOWN TO THE ROOM.

(A YOU CARRIED HIM DOWN AND DO YOU RECALL WHAT YOU SAID TO

HIM WHEN YOU CARRIED HIM DOWN?

A. I TOLD HIM THAT THE OFFICERS WERE HERE TO TALK TO HIM.

id. ALL RIGHT. NOW. WERE YOU THEN PRESENT FOR ANY

CONVERSATIONS THAT TRANSPIRED?

A. I STAYED THERE UNTIL THEY GOT THROUGH WITH HIM.

Cl. DO YOU RECALL THEN WHO WAS PRESENT AT THE OUTSET OF THIS

INTERVIEW?

A. YOU MEAN AT THE START OF THE INTERVIEW.

Gl. RIGHT, AT THE VERY BEGINNING?

A. MYSELF. AND MR. EVANS, MR. RUSS PARKER. DETECTIVE HARRIS,

AND THERE WAS ANOTHER DETECTIVE. THERE WAS ANOTHER DETECTIVE

BUT NOW I CANT TELL YOU WHO IT WAS.

A. DORSEY?

A. THAT MAY BE.

eo. IS POSSIBLE BUT YOU DONT HAVE A CLEAR RECOLLECTION AT

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THIS POINT.

A. NO.

Qo. ALL RIGHT. AND THEN THE ONLY PEOPLE PRESENT WERE THESE

FIVE PEOPLE THAT YOU HAVE INDICATED. YOURSELF, OFFIE GENE

EVANS, MR. PARKER. MR. HARRIS. AND ONE OTHER DETECTIVE?

A. THATS TO THE BEST OF MY MEMORY. SIR.

QR. ALL RIGHT. AND THEN WHAT DO YOU RECALL OF THAT

CONVERSATION?

A. WELL. I DIDN“T TAKE NOTES. HE JUST —- YOU KNOW, HE

DISCUSSED HOW THAT THEY WERE TALKING BACK AND FORTH FROM

FLOOR. AND THEN WENT TO DISCUSSING THE STUFF THAT WAS GOING ON

WHICH, YOU KNOW, WASN‘T MY DIRECT CONCERN. MY DIRECT CONCERN

WAS HIS SECURITY. SO I —- YOU KNOW. AS FAR AS REALLY SETTING

THERE LISTENING, TRYING TO TAKE EVERYTHING IN, I WOULDN‘T DO

THAT.

(2. DID YOU, YOURSELF, HAVE DIFFICULTY UNDERSTANDING WHAT

OFFIE EVANS WAS SAYING DURING THE COURSE OF THE CONVERSATION?

A. I WASN'T REALLY LISTENING TO HIM, SIR.

ol. AND WERE YOU THERE FOR THE ENTIRE CONVERSATION?

A. I WAS THERE. I WAS THE ONE THAT CARRIED HIM BACK TO HIS

CELL.

(2. OKAY. OKAY. PRIOR TO YOUR CARRYING HIM BACK TO THE CELL

DO YOU RECALL —-- DID ANYONE LEAVE DURING ANY PORTION OF THE

INTERVIEW?

A. I COULDN'T =~ NO, I COULDN“T ANSWER THAT ONE WAY OR THE

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OTHER.

(. YOU DONT HAVE ANY RECOLLECTION?

A. NO, SIR.

ol. ALL RIGHT. DO YOU HAVE ANY RECOLLECTION OF ANYONE

LEAVING EARLY AND NOT COMING BACK IN AT ALL AS OPPOSED TO

SOMEONE LEAVING AND COMING BACK?

A. I WOULD HAVE TO ANSWER THAT THE SAME WAY I JUST DID THE

LAST QUESTION.

. RIGHT. OKAY. DID YOU PAY ANY ATTENTION TO HOW THE

INTERVIEW ITSELF ENDED?
A. NO, SIR. |

@. WAS ANYTHING SAID TO YOU AS THE SHERIFF‘S DEPUTY AS TO

WHETHER ANYONE WOULD BE BACK TO SPEAK WITH EVANS FURTHER OR

ANY DIRECTIONS TO YOU ABOUT WHAT WAS EXPECTED OF EVANS. ANY |

KIND OF COMMENTS ALONG THOSE LINES?

A. NO, SIR. THE ONLY THING I KNEW THAT THEY WAS COMING BACK

FOR WAS TO RUN TESTS TO VERIFY WHETHER OR NOT YOU COULD TALK

FROM ONE FLOOR TO THE NEXT FLOOR.

Gl. OKAY. DID YOU THEN AFTER THIS INTERVIEW HAVE ANY CONTACTS LATER IN JULY WITH ANY OF THE DETECTIVES WHO WERE

INVOLVED IN THE INVESTIGATION OF THE FRANK SCHLATT MURDER OR

THE DIXIE FURNITURE STORE ROBBERY OR DISTRICT ATTORNEY PARKER? |

A. ARE YOU TALKING ABOUT OTHER THAN THE TIME THAT WE RUN THE

TEST?

QM. RIGHT. RIGHT, I WAS NOT TALKING ABOUT THE TIME THAT THIS

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TEST WAS RUN. I WAS SPEAKING OTHERWISE?

THE COURT: WELL, INQUIRE ABOUT THAT. WHILE THEY

WERE THERE RUNNING A TEST. IF THEY DID, DID THEY ASK YOU IF

YOU HEARD ANYTHING FURTHER OR DID YOU SEE ANY OF THEM HAVE ANY

CONVERSATION WITH OFFIE EVANS?

THE WITNESS: NO, SIR.

THE COURT: NEITHER.

THE WITNESS: NO, SIR. NEITHER.

THE COURT: GO AHEAD, MR. STROUP.

BY MR. STROUP:

A. IM SORRY, YOU MAY HAVE ANSWERED MY QUESTION BUT MY TRAIN

OF THOUGHT GOT LOST. DID THEY —- OTHER THAN COMING BACK TQ

CONDUCT THIS TEST, DID YOU THEN HAVE ANY OTHER CONVERSATIONS

DURING JULY OF “78 WITH ANY OF THE POLICE OFFICERS OR

DETECTIVE PARKER?

A. NOT TO MY KNOWLEDGE. SIR.

@. OKAY. HAVE YOU, YOURSELF, —— DURING THE COURSE OF THIS

INTERVIEW THAT WAS CONDUCTED —- DURING THE COURSE OF THE

INTERVIEW THAT WAS CONDUCTED WITH OFFIE EVANS WAS THERE ANY

TAPE RECORDING MADE OF THAT STATEMENT?

A. NO, SIR, NOT TO THE BEST OF MY KNOWLEDGE. MR. PARKER

TOOK NOTES.

@. ALL RIGHT. DO YOU RECALL ANYONE ELSE TAKING NOTES?

A. NO, SIR.

. HAVE YOU, YOURSELF. USED ANYTHING TO REFRESH YOUR

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RECOLLECTION REGARDING THESE EVENTS IN PREPARATION FOR YOUR

TESTIMONY TODAY?

A. NO, SIR.

2. AND YOU HAVENT LOOKED AT ANY NOTES OR TALKED WITH ANYONE

IN AN EFFORT TO JUST BRING THIS EVENT BACK TO YOUR MIND?

A. NO, SIR. NOT TO -—- ARE YOU ASKING ME HAVE I DONE

SOMETHING TO COERCE MYSELF OR TO READ UP ON EVERYTHING THAT

TOOK PLACE. I HAVE NOT.

THE COURT: OR HAVE YOU TALKED TO ANYONE?

THE WITNESS: NO. SIR.

BY MR. STROUP:

RQ. ALL RIGHT. YOU HAVE NOT DISCUSSED THIS WITH ANY OF —-

ANY OF THE ATLANTA POLICE BUREAU DETECTIVES, FOR EXAMPLE. JUST

TO BRING BACK INTO YOUR MIND WHAT HAPPENED?

A. NQ, SIR.

Go. YOU HAVEN'T DISCUSSED IT TODAY AND YOU HAVEN‘T DISCUSSED

IT ANYTIME?

A. NO. SIR.

ol. WELL, ANYTIME AT ALL IN THE PAST?

A. I DIDNT KNOW ABOUT THIS UNTIL LAST NIGHT AND I WORKED

ALL NIGHT.

Ci, YES. QKAY.

A. I HAVE BEEN UP ALL DAY, TOO, AND I GOT TO WORK AGAIN

TONIGHT.

THE COURT: SORRY ABOUT THAT.

188

BY MR. STROUP?

@. AND THE SAME. JUST TO MAKE CERTAIN I HAVE ASKED ALL THE

QUESTIONS: ABOUT DISTRICT ATTORNEY, THE ASSISTANT DISTRICT

ATTORNEY AND MR. PARKER, YOU DIDNT CHAT WITH HIM OUT IN THE

HALLWAY OR HAVE ANY CONVERSATIONS WITH HIM ABOUT WHAT WENT ON?

A. NO. SIR.

MR. STROUP: IF I MIGHT JUST CONFER WITH CO-COUNSEL.

EXAMINATION

BY THE COURT:

@. WHILE YOU ARE CONFERRING LET ME ASK ONE QUESTION FOR MY

OWN CURIOSITY. WHILE OFFIE EVANS WAS IN THE OFFICE TALKING

WITH THE DETECTIVES AND THE DISTRICT ATTORNEY, DID HE OR DID

ANYONE ELSE ON HIS EEHALF MAKE A PHONE CALL TO HIS GIRL

FRIEND?

A. THERE WASN’T A PHONE IN THERE WHERE WE WERE, TO THE BEST

OF MY RECOLLECTION, THE ROOM WE WAS IN, SIR.

BY MR. STROUP:

@. ONE OTHER QUESTION. DIRECTING YOUR ATTENTION BACK TO

THIS CONVERSATION YOU HAD WITH OFFIE EVANS ON I THINK YOU

INDICATED JULY 11TH OF 1978, DID EVANS RECOUNT TO YOU BEFORE

YOU CALLED DETECTIVE HARRIS, OFFICER HARRIS, DID HE RECOUNT TO

YOU IN DETAIL THESE CONVERSATIONS THAT HE SAID HE HAD

OVERHEARD?

A. YOU MEAN GOING THROUGH THE WHOLE THING? NO, SIR, HE DID

NOT.

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@. RIGHT. OKAY. I’M SORRY, ONE OTHER ONE THAT JUST OCCURED

TO ME. HAD YOU ANY, YOURSELF, ANY PRIOR DEALINGS WITH OFFIE |

EVANS PRIOR TO 19787 I MEAN PRIOR TO HIS COMING TO THE FULTON

COUNTY JAIL IN 19787

A. NO. SIR,

@. I‘M SORRY, I SEE I HAVE A COUPLE MORE. AGAIN, DIRECTING

YOUR ATTENTION TO THIS CONVERSATION THAT YOU HAD WITH OFFIE

EVANS, HAD YOU, YOURSELF, OVERHEARD ANY CONVERSATIONS BETWEEN

OFFIE EVANS AND WARREN MCCLESKEY OR BERNARD DUPREE?

A. NO. SIR, NOT MYSELF.

@. WERE YOU AWARE OF ANY OTHER DETECTIVE HAVING OVERHEARD

ANY CONVERSATIONS BETWEEN WARREN MCCLESKEY AND BERNARD DUPREE

OR OFFIE EVANS?

A. NOT TO MY KNOWLEDGE, SIR.

@. AND YOU DID NOT APPROACH OFFIE EVANS, IT WAS OFFIE EVANS

WHO APPROACHED YOU, IS THAT CORRECT?

A. THAT'S CORRECT.

@. ALL RIGHT. AND YOU DIDNT INDICATE TO OFFIE EVANS THAT

YOU KNEW THAT HE HAD SOME RELATIONSHIP WITH BEN WRIGHT, I%

THAT CORRECT? DID YOU EVER INDICATE TO HIM THAT YOU KNEW THAT

HE HAD SOME RELATIONSHIP WITH BEN WRIGHT?

A. NO, SIR.

THE COURT: DO YOU KNOW WHO BEN WRIGHT IS?

THE WITNESS: YES, SIR.

MR. STROUP: THATS ALL I HAVE.

190

THE COURT: IM GOING TO EXCUSE YOU NOW. IF EITHER

STATE'S COUNSEL OR PETITIONER‘S COUNSEL NEED YOU TOMORROW,

MAKE CERTAIN THAT WE HAVE A PHONE NUMBER WHERE WE CAN REACH

YOU, WE WILL DO QUR BEST TO LET YOU GET SOME SLEEP BUT WE ARE

TRYING TO WIND THIS THING DOWN IF WE CAN. SO WE MAY HAVE TO

ASK YOU BACK BUT WE WILL TRY NOT TO.

ALL RIGHT. CALL YOUR NEXT WITNESS.

MR. BOGER: DETECTIVE HARRIS.

THE CLERK: PLEASE COME IN FRONT OF THE PODIUM AND RAISE

YOUR RIGHT HAND.

YOU DO SOLEMNLY SWEAR THAT THE EVIDENCE YOU SHALL GIVE

IN THE CAUSE NOW PENDING BEFORE THE COURT, SHALL BE THE TRUTH,

THE WHOLE TRUTH, AND NOTHING BUT THE TRUTH, S0 HELP YOU GOD.

THE WITNESS: I DO.

THE CLERK: BE SEATED ON THE WITNESS STAND. STATE YOUR

FULL NAME.

THE WITNESS: OKAY. MY NAME IS INVESTIGATOR WELCOME HARR

JR. IM EMPLOYED BY THE CITY OF ATLANTA, BUREAU OF POLICE

SERVICES. HOMICIDE SGUAD.

WELCOME HARRIS. JR.

BEING FIRST DULY SWORN. WAS EXAMINED AND TESTIFIED AS FOLLOWS:

DIRECT EXAMINATION

BY MR. BOGER:®

Q. DETECTIVE HARRIS, WHEN DID YOU FIRST BECOME INVOLVED WITH

THE WARREN MCCLESKEY CASE?

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A. OH. ALMOST IMMEDIATELY WHEN IT HAPPENED, WHICH WOULD HAVE

BEEN APRIL. ~— IT WILL BE APRIL THE 13TH, -78,

Qo. “78. 1 BELIEVE THE RECORD WILL PROBABLY SHOW --

A. MAY. YEAH. Wo. DO YOU HAVE WITH YOU A FILE? |

A. I HAVE WITH ME, YES. SIR. |

Q. AND WHAT IS THE NATURE OF THAT FILE?

A. THIS IS THE FILE ON OFFICER FRANK R. SCHLATT.

Q. WHOSE FILE IS THAT?

A. WELL, THATS OUR OFFICE FILE.

Gl. OKAY. WHO WITHIN THE OFFICE MAINTAINS THE FILE ON THAT

A. WELL, WE HAVE —- YOU KNOW, WE HAVE A FILE CABINET WE KEEP |

THEM IN BUT THESE HERE CONTAIN A NUMBER OF ORIGINALS I WOULD |

SAY. SOME OF THEM ARE REPRODUCTIONS BUT —— I DON‘T KNOW WHERE

THEY GOT THESE FROM THIS MORNING. IM THINKING THAT THEY GOT

THEM FROM THE RECORDS SECTION DOWNTOWN. THE CITY OF ATLANTA.

Ql. I SEE. YOU DIDNT BRING THOSE DOCUMENTS YOURSELF?

A. THEY WERE BROUGHT HERE RY SERGEANT MCCLURE. WHO CAME OVER |

HERE WITH ME.

Q. ALL RIGHT. I THINK WE WILL WANT TO REVIEW THEM OR IF MY

CO-COUNSEL. IS BACK AT THE TABLE OR WHEN HE COMES BACK REVIEW

THEM DURING THIS PRESENTATION. IF IT“S POSSIBLE WE CAN, YOU

KNOW, MAKE IT SHORTER, IF WE DO THAT, BUT ILL HAVE QUESTIONS

TO ASK OF YOU WHILE WE ARE CONTINUING WITH THAT PROCESS.

192

MR. BOGER: IF I MIGHT APPROACH THE WITNESS?

THE CQURT: YOU MAY.

THE WITNESS: I WILL NEED THEM TO REFER TO CERTAIN

DATES AND THINGS. OKAY.

BY MR. BOGER:

QR. DO LET ME KNOW IF YOU DO NEED THEM. WERE THERE OTHER

QFFICERS IN THE ATLANTA BUREAU OF POLICE SERVICES THAT WORKED

WITH YOU ON THIS CASE?

A. YES, SIR.

@. WHO WERE THEY?

A. WILLIAM JOWERS., SIDNEY DORSEY. AND J. A. WALKER. JR.

THERE WERE SEVERAL OTHERS. I THINK THATS ALL THE

INVESTIGATORS. I BELIEVE SERGEANT MCCONNELL WHO IS NO LONGER

EMPLOYED BY THE BUREAU OF POLICE SERVICES R. F. WILLIAMS, WHO

IS NO LONGER EMPLOYED BY THE BUREAU OF POLICE SERVICES. AT

THE TIME ALL THESE PEOPLE WERE EMPLOYED IN HOMICIDE AND WORK -—-

AND THIS WAS A CASE THAT WE WORKED ARQUND THE CLOCK AS A

MATTER OF FACT. ALL THREE SGUAD WERE INVOLVED, YOU KNOW,

XR. WELL, THATS WHAT I WANTED TO ASK. WHATS THE

RELATIONSHIF OF YOU TQ THE OTHER TWO OFFICERS OR DETECTIVES

YOU MENTIONED?

A. I WOULD SAY THAT I JUST CARRIED THE BRUNT OF THE

INVESTIGATION FOR THE MOST PART, JUST THE ONLY THING I CAN

TESTIFY TO LIKE I HAD BEFORE, JUST WHAT I DID IN THE

INVESTIGATION. I DONT GUESS I“M NO BETTER THAN ANYBODY ELSE.

193

I JUST DID MY JOB.

Qo. WERE YOU AND MR. JOWERS OR DETECTIVE JOWERS ON DIFFER

SHIFTS?

A. WE WERE ON THE SAME SHIFTS. NOW. WE WERE PARTNERS DURING

THAT TIME. YES. SIR.

Gl. MR. DORSEY OR DETECTIVE DORSEY, WAS HE ON A DIFFERENT

SHIFT?

A. NO. I BELIEVE HES WORKING DAY WATCH AT THAT TIME.

Q. S00 THE THREE OF YOU WORKED TOGETHER ON THE CASE?

A. OFF AND ON. ILL PUT IT THAT WAY. BUT MY PARTNER AT THAT

TIME WAS DETECTIVE JOWERS, OKAY, BUT DORSEY DID WORK ON IT

ALONG WITH OTHER OFFICERS.

(le OKAY. DID YOU MAKE ANY CONTACT AT ANY POINT WITH OFFIE

EVANS?

A. OFFIE EVANS, YES, I DID.

QR. WHEN WAS THAT. THE FIRST TIME?

A. THAT WAS ON -- I BELIEVE THE DATE IS JULY THE 12TH.

Q. AND WHAT MAKES YOU REMEMBER THAT DATE?

A. WELL, I SAW IT -- FOR THE RECORD I HAD TO REVIEW IT.

IT’S BEEN NINE YEARS.

Q. 50 IN OTHER WORDS YOU HAVE REVIEWED SOME OF THE RECORDS?

A. NOT THAT. IT WAS ON A LEGAL PAD, ON A PIECE OF PAPER

THAT MR. PARKER HAD. THATS WHERE I GOT THE DATE FROM, RIGHT.

Q. MR. PARKER SHOWED YOU AND YOu ALL SHARED THAT DOCUMENT?

A. RIGHT.

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Q. HAVE YOU USED THAT DOCUMENT TO REFRESH YOUR RECOLLECTION

OF THOSE EVENTS?

A. YES, SIR. AS FAR AS THE DATES IS CONCERNED, YES.

Q. DO YOU HAVE ANY OTHER FILES OR RECORDS THAT WOULD HELP

FRESH YOU AS TO WHEN YOU FIRST TALKED WITH MR. EVANS?

A. NO, SIR. TO MY RECOLLECTION THAT IS IN FACT THE FIRST

cl. HOW DID YOU COME TO SPEAK WITH HIM?

A. WITH MR. EVANS?

¢. MR. EVANS.

A. GOTTEN INFORMATION FROM THE FULTON COUNTY DEPUTY. I

BELIEVE HIS NAME WAS HAMILTON. THAT'S THE ONE 1 SAW IN THE

HALL WHEN I CAME THIS MORNING. AS A MATTER OF FACT, THAT’S

THE FIRST TIME I HAD SEEN HIM IN NINE YEARS.

2. WHAT WAS THE INFORMATION YOU RECEIVED?

A. HE TOLD US THAT HE HAD AN INMATE OUT THERE WHO HAD SOME

INFORMATION CONCERNING THE SCHLATT CASE AND THE ROBBERY OF THE

FURNITURE STORE.

Q. AT THAT TIME DID HE TELL YOU WHAT THE INFORMATION WAS?

A. NO. I THINK =-—= MY FIRST CONTACT I BELIEVE WITH HIM WAS

OVER THE TELEPHONE. IN OUR OFFICE. AND I THINK THEN MY NEXT

CONTACT WAS WITH —— THE NEXT PERSON I TALKED TO WAS A —- WAS

ASSISTANT DA RUSS PARKER. AND AT THAT TIME RUSS ANDY I WENT

QUT —- LATER ON WE WENT OUT AND TALKED TQ HIM THAT MORNING.

THATS WHY I SAY IT WAS THE 12TH.

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OKAY. SO THE TWO OF YOU WENT OUT THERE. WHEN YOU GOT TO

THE JAIL WERE YOU JOINED BY ANYONE?

SURE.

I BELIEVE IT WAS THREE OF US THERE. LIKE I SAY, IM NOT

I KNOW THERE WAS RUSS PARKER AND MYSELF AND I BELIEVE

IT WAS DORSEY. I AM NOT SURE.

Q. OKAY. WAS ANYBODY ELSE PRESENT WHEN YOU HAD YOUR

INTERVIEW?

A. WITH EVANS?

D. RIGHT.

A. I DON‘T RECALL. MIGHT HAVE BEEN. I CAN‘T SAY.

Qo. DO YOU REMEMBER WHETHER THE DEPUTY HAMILTON WAS PRESENT

OR NOT?

A. I DONT ~—- HE COULD HAVE BEEN. I‘M NOT SURE.

2. BECAUSE YOU SIMPLY DON‘T REMEMBER?

A. I JUST DON’T REMEMBER. NO, SIR.

Go. WHAT TIME OF DAY WAS IT?

A. THE ONLY THING I CAN TELL YOU. SIR, IT WAS BEFORE NOON.

SO IT SHOULD HAVE BEEN SOMETIME THAT MORNING. ILL SAY

ROUGHLY ANYWHERE BETWEEN 9:00 AND 10:00 OR SOMETHING LIKE THAT

BUT BEFORE NOON.

WERE YOU ALL TOGETHER IN THE ROOM?

YES, SIR. . I BELIEVE THE ROOM —-- 1 BELIEVE WE WERE IN A

ROOM THAT WAS OCCUPIED BY A CAPTAIN, AND I [DON’T THINK -- HE'S |

NO LONGER EMPLOYED QUT THERE. I THINK HIS NAME IS WORTHY BUT

IT WAS CAPTAIN WORTHY’S OFFICE.

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Q. WAS CAPTAIN WORTHY THERE?

A. NO, SIR, I“M SURE HE WASN‘T. YOU KNOW.

Qt. DID YOU HAVE ANY TYPIST OR ANY PERSON THERE TO TAKE A

STATEMENT FROM MR. EVANS?

A. NO JUST OTHER THAN NOTES THAT RUSS TOOK. MR. PARKER TOOK.

Q. DID YOU TAKE ANY NOTES?

A. I DONT RECALL. I MIGHT HAVE. I DON’T RECALL. SIR.

Gl. HAVE YOU LOOKED FOR THOSE NOTES?

A. WELL, YOU HAVE EVERYTHING I HAVE RIGHT THERE.

GQ. OKAY.

A. IF I HAD ANYTHING, I -—- YOU KNOW. LIKE I SAY, I DON'T

RECALL TAKING ANY.

Q. YOU DONT KEEP A SEPARATE FILE?

A. WELL, NORMALLY I WOULD BUT BY THE SAME TOKEN HE WAS

TAKING THE NOTES €0 -- AND AT THAT POINT, IF MEMORY SERVES ME

CORRECTLY. THAT PARTICULAR CASE IS IN THE HANDS OF THE

DISTRICT ATTORNEY AT THAT TIME. YOU KNOW, WE WERE STILL

WORKING IN CONJUNCTION WITH EACH OTHER.

Q. BY THAT YOU MEAN WHAT?

A. BY THAT I MEAN BY VIRTUE OF THE FACT THAT THE DEFENDANTS

AT THE TIME WERE IN THE FULTON COUNTY JAIL. THEY HAD ALREADY

BEEN BOUND OVER AND INDICTED.

Q. OKAY. DO YOU KEEP A PERSONAL DIARY OR RECORD OR LOG OR

ANYTHING THAT WOULD CHART YOU?

A. OTHER THAN —-— YOU KNOW, OTHER THAN WHAT WE CALL A CRIME

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SCENE NOTEBOOK. IF I HAD ONE. I KNOW I WOULD HAVE HAD ONE

DURING THE TIME THAT THE INVESTIGATION WAS INITIATED. NOW,

YOU KNOW, WHERE IT IS NOW I COULDN'T TELL YOU.

QR. DO YOU HAVE ANY —— DO YOU HAVE ANY DOCUMENTS THAT YOU ARE

REQUIRED TO FILE, SAY A DAILY LOG WITH THE DEPARTMENT THAT

WOULD SAY THE 2ND OF JULY WENT TO THE FOLLOWING PLACE?

A. OTHER THAN THE FACT, YOU KNQW, YOU WOULD MAKE

SUPPLEMENTS.

Q. SUPPLEMENTS TQ -—-

A. SUPPLEMENT TQ THE ONGOING INVESTIGATION,

THE COURT: YOU WERE THINKING ABOUT IT FROM AN

INVESTIGATIVE FILE STANDPOINT. I THINK WHAT HE'S THINKING

ABOUT IS KIND OF LIKE LAWYERS KEEP TIME SHEETS TO SHOW WHAT

YOU DID.

THE WITNESS: NO, SIRs WE WEREN‘T DOING THAT.

THE COURT: YOU DO AN ACTUAL TIME -—-

THE WITNESS: WE WOULDN‘T HAVE AN ACTUAL TIME, NO,

SIR. WE DIDNT HAVE ANYTHING LIKE THAT. THEY STARTED THAT

AND THEN THEY SUSPENDED THAT AFTER THAT TIME. NO, WE DIDN‘T

HAVE ANYTHING LIKE THAT. NOW, WE HAD A LOG SHEET IN UNIFORM

BUT NOW BEING IN GENERAL INVESTIGATION LIKE I WAS IN AND I

STILL AM IN, NO.

BY MR. BOGERt?

Gl. DO YOU HAVE ANY DIARIES OR ANYTHING ELSE THAT WOULD SHOW

NOT WITH RESPECT TO THE INVESTIGATION BUT DAY BY DAY?

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A. PERSONAL DIARIES, NO, SIR.

QA. SQ YOU GOT TO THE MEETING. WHAT HAPPENED?

A. WELL, WE LISTENED TO HIM. HE BEGIN TQ TALK ABOUT THE

FACT THAT HE HAD OVERHEARD A DISCUSSION BETWEEN MR. MCCLESKEY

AND A GUY BY THE NAME OF BERNARD DUPREE.

a. DID WHAT HE SAY COINCIDE WITH WHAT DETECTIVE OR DEPUTY

HAMILTON HAD TOLD YOU?

A. WELL, HAMILTON DIDN‘T GO IN DEPTH. HAMILTON JUST CALLED

US. HE FELT LIKE ONCE HE RECEIVED THE INFORMATION AND AS NEAR

AS I CAN RECALL THE GUY SAID HE WANTED TO TALK TO THE POLICE

AND HAMILTON GOT US IN TOUCH WITH HIM. NOW, I DONT THINK

HAMILTON WENT IN DEPTH, OTHER THAN SAYING THAT THIS GUY

POSSIBLY KNOWS SOMETHING ABOUT THE ROBBERY OF THE DIXIE

FURNITURE STORE AND THE SHOOTING OF THE OFFICER.

Ql. DID HAMILTON EVEN TELL YOU THAT HE HAD A FEELING WHY HE

KNEW IT, THAT HES NEXT DOOR TO MCCLESKEY?

AR. NO, I THINK HE WA3 JUST DOING HIS DUTY. JUST THOUGHT

MAYBE HE SHOULD CONTACT THE PEOPLE WHO WERE INVOLVED IN THE

INVESTIGATION.

a. BUT IT PROMPTED YOU AND DETECTIVE PARKER TO IMMEDIATELY

GET IN THE CAR AND GO OUT THERE. DID YOU LEARN BEFORE YOU GOT

TO THE SCENE THAT EVANS WAS NEXT DOOR TO MCCLESKEY?

A. I DON’T THINK SO. I DON‘T THINK WE KNEW THAT UNTIL WE

GOT QUT THERE AND I THINK THAT WAS BROUGHT TO OUR ATTENTION BY

DEPUTY HAMILTON.

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Qo. DID MR. EVANS GO INTO GREAT DETAIL WITH YOU ABOUT THE

NATURE OF THE DISCUSSIONS WITH MR, -—-

A. OKAY. OFF THE TOP OF MY HEAD YOU WANT TO KNOW ~- WELL,

HE SAID SOMETHING ABOUT -—-— HE WANTED TO KNOW WHY DID —-— HE.

MEANING MR. MCCLESKEY. HAD PUT HIS NAME AND THIS DUPREE., THEY

QUESTIONED EACH OTHER BACK AND FORTH. THERE WAS SOME

UTTERANCE —-- SOME UTTERANCES ABOUT TWO STATEMENTS THAT HAD

BEEN MADE. ONE IN COBB COUNTY AND ONE IN FULTON COUNTY WHEN HE

ARRIVED AT THE ATLANTA POLICE DEPARTMENT.

a. LET ME INTERRUPT YOU JUST ONE MINUTE, DETECTIVE. TO ASK YOU WHETHER YOU ARE NOW TESTIFYING FROM YOUR PRESENT

RECOLLECTION? |

A. IM TESTIFYING BASED ON, SIR. BASED ON RECOLLECTION, ALSO |

BASED ON OTHER ITEMS THAT I SAW ONLY FOR THE FIRST TIME THIS

MORNING. BUT NOW I DO RECALL THOSE EVENTS. THAT THEY

TRANSPIRED AFTER READING -- LOOKING AT SOME OF THE THINGS THIS

MORNING.

a. SO YOU HAVE A PRESENT RECOLLECTION?

A. YES, SIR, IM JUST TELLING YOU THE BEST I CAN.
Ql. FINE. OKAY.

A. AND THE FACT THAT THE OFFICER WAS SHOT. NOW. IM JUST |

PARAPHRASING IT. THE OFFICER WAS SHOT AND WHO SHOT THE

OFFICER. AND I THINK -— NOW, LIKE I SAY. I DON’T RECALL |

LOOKING AT THIS, THIS MORNING, JUST SKIMMING THROUGH. I THINK |

THERE WAS SOMETHING SAID ABOUT DUPREE THREATENING TO TELL THAT |

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MR. MCCLESKEY IS THE ONE WHO ACTUALLY FIRED THE SHOT THAT

KILLED THE POLICE OFFICER.

QR. DID MR. EVANS EXPLAIN, HIMSELF, ABQUT WHY HE“S DOING

THIS, ABOUT WHY HE-S COMING FORWARD TO TALK?

A. NO, BUT -- I COULDN’T TELL YOU THAT.

Q. DID HE INDICATE TO YOU HE HAD EVER SERVED AS AN INFORMANT

BEFORE?

A. I DON’T RECALL HIM INDICATING THAT TO ME. THAT’S MY

FIRST MEETING WITH HIM, FIRST TIME THAT I EVER SEEN HIM.

ol. I UNDERSTAND THAT WAS YOUR FIRST MEETING BUT DID HE AT

THAT TIME SAY I HAVE GIVEN INFORMATION BEFORE?

A. THAT I DO NOT RECALL. I DO NOT RECALL ASKING HIM THAT.

I DON’T KNOW WHETHER RUSS ASKED HIM THAT. I DONT RECALL

ASKING THAT. MYSELF. EXAMINATION

BY THE COQURT:

Qo. AT THE TIME YOU WENT OUT THERE DID YOU KNOW HE HAD BEEN

AN INFORMANT?

A. NO, SIR, I DIDN‘T KNOW. I REALLY DIDN‘T. THATS MY

FIRST TIME. YOUR HONOR, EVER SEEING THE MAN.

Q. FROM JUST HEARSAY OR FILES?

A. FROM HEARSAY I COULDN‘T —-= I DIDN’T KNOW.

BY MR. BOGER:

Gl. DID HE TELL YOU AT ANY TIME DURING THE CONVERSATION,

THOUGH, THAT WHAT HE HAD DONE IN THE PAST IS BE AN INFORMER OR |

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HELP PEOPLE DUT?

A. OKAY. NOW. MAYBE IF I HADN’T SAW IT IN WRITING OR

SOMETHING LIKE THAT. IN STATEMENT FORM THAT HE MADE. MAYBE I

COULD SAY "YES" BUT I DON’T RECALL HIM SAYING ANYTHING LIKE

THAT.

Q. LET ME GIVE YOU A DOCUMENT THAT MAY HELP YOU TO REFRESH

YOUR RECOLLECTION.

A. OKAY. OKAY. ANY PARTICULAR PAGE?

Q. THIS IS A DOCUMENT THAT’S PREVIOUSLY BEEN MARKED AS

PETITIONERS EXHIBIT ¢. DID YOU RECOGNIZE THIS DOCUMENT,

DETECTIVE? ;

A. WELL. LIKE I SAY, THESE ARE THE PAPERS I SAW THIS

MORNING, OKAY.

2. DKAY.

A. AND I KNEW THAT HE WAS TAKING NOTES AT THE TIME WE WERE

OUT THERE.

2. DO YOU HAVE ANY OTHER REASON TO KNOW WHETHER OR NOT THEY

ARE CONTEMPORANEOUS NOTES OF MR. PARKER?

A. THAT THEY ARE NOT? THESE ARE —— I BELIEVE THESE ARE THE

SAME ONES HE HAD. I ALSO —-- WELL, AS FAR AS I KNOW THESE ARE

THE SAME ONES HE HAD.

QR. DID YOU WATCH HIM DURING THE COURSE OF TAKING THESE

NOTES?

A. DID I WATCH?

QR. DID YOU WATCH HIM IN THE COURSE OF TAKING THE NOTES?

A. WELL, YEAH, HE WAS IN PLAIN VIEW OF ME WHERE I COULD SEE

HIM. WE WERE SITTING IN THE SAME ROOM, RIGHT.

XR. LET ME TURN TO PAGE 4 OF THE LONGER PORTION OF THE

STATEMENT, THE EIGHT AND A HALF BY THIRTEEN PORTION. AND

DIRECT YOUR ATTENTION HALF WAY DOWN DOWN THE PAGE. THERES A

SERIES OF STATEMENTS THAT SAY "HALFWAY HOUSE. I WAS A TRUSTEE

AT." THEN IT HAS THE NAME OF FRANK KENNERBREW., CTC DIRECTOR.

THEN IT HAS TWO PERSON‘S NAMES, LIEUTENANT GOULD. LIEUTENANT

WHITMIZE, PAREN, COUNSELOR. DO YOU RECALL HIS CONVERSATIONS

ABOUT THOSE TWO INDIVIDUALS?

A. NO, I DONT. NO, I REALLY DONT.

Q. TO THE RIGHT OF THAT THERE-“S A SIGN AND THEN SOMETHING

THAT SAYS "CAN VERIFY -- " IT LOOKS LIKE NUMBER HERE. "HELPED

THEM. THATS WHY I WAS PUT IN “S.7" DO YOU REMEMBER?

A. I DON'T SEE THAT. WHERE IS THAT, ON THE SAME PAGE?

Q. RIGHT BY THE NAMES LIEUTENANT GOULD AND LIEUTENANT

WHITMIRE?

A. OKAY. TO THE RIGHT OF THAT. OKAY.

Gl. YEAH. "HELP THEM."

A. NO, LIKE I SAY, I DON‘T RECALL. THE ONLY THING. I‘M

SEEING IT HERE NOW.

eo. DID HE DISCUSS WITH YOU WHY IT WAS HE WAS IN SOLITARY

CONFINEMENT?

A. NO, BUT ILL TELL YOU WHAT NOW. I [DO REMEMBER SOMETHING.

IF YOU GET BACK HERE TO THE NAME FRANK KENNERBREW. NOW, I DO

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BELIEVE SOMEBODY NAMED KENNERBREW IS A -— AT THE FEDERAL

PRISON I THINK. I“M NOT SURE. I THINK THAT NAME —— LIKE I

SAY NOW, IF WE TALK ABOUT IT DIFFERENT THINGS COME BACK TO ME.

I DO REMEMBER THE NAME KENNERBREW NOW.

@. THATS WHAT REFRESHING RECOLLECTION IS ALL ABOUT.

A. I THINK KENNERBREW IS A GUY THAT WAS WORKING AT THE —-

FOR THE U.S. PENITENTIARY SYSTEM AND WAS STATIONED OUT ON

MCDONOUGH BOULEVARD AT THE U.S. PRISON. I THINK THAT. I

THINK THATS WHO THAT IS.

Q. WHAT DID MR. EVANS TELL YOU ABOUT MR. KENNERBREW AND HIS

RELATIONSHIPS WITH HIM?

A. THAT I DONT KNOW. NOW, LIKE I SAID BEFORE. I DMO NOT

KNOW BUT I SAY THE NAME —- THE NAME, AFTER I LOOK AT THE NAME,

I SEE CTC DIRECTOR. I“M THINKING ABOUT A GUY NAMED

KENNERBREW. A TALL GUY.

THE COURT: DO YOU KNOW LIEUTENANT GOULD OR

LIEUTENANT WHITMIRE?

THE WITNESS: NO, SIR. I DONT. I DON'T RECALL ANY

OF THAT.

BY MR. BOGER:

G2. DID YOU AT ANY POINT AFTER THIS JULY 12TH INTERVIEW MAKE

ANY EFFORT TO DETERMINE MR. EVANS” RELIABILITY?

A. I DONT RECALL DOING ANYTHING SPECIFICALLY AFTER RUSS GOT

THE NOTES, AND LIKE I SAID SEVERAL OTHER THINGS WERE GOING ON

AND ASKED ME WHAT THOSE THINGS ARE. I DON'T KNOW BECAUSE IT

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WAS PRETTY HECTIC AROUND THERE THEN. BUT THE ONLY THING I CAN

TELL YOU, THE NEXT ENCOUNTER I HAD WITH EVANS WAS ON,

ACCORDING TO THE INFORMATION THAT ~- I LOOKED AT THE STATEMENT

THIS MORNING —— WAS AUGUST THE 1ST. AS FAR AS I KNOW, WHEN WE

GOT THE TYPEWRITTEN STATEMENT FROM HIM.

Q. WELL, DID YOU CHECK WITH MR. KENNERBREW TO FIND OUT

WHETHER OFFIE EVANS HAD PREVIOUSLY HELPED HIM OUT?

A. I RECALL MAYBE GOING BY THERE. I DONT KNOW WHETHER I.

MYSELF, SPECIFICALLY WENT IN THERE AND TALKED WITH HIM OR NOT.

I BELIEVE I DID TALK WITH HIM BUT I DON’T KNOW —— I WILL SAY

THIS. IF I WENT AND TALKED TO HIM. I AM QUITE SURE THAT I

ASKED HIM ABOUT EVANS. IM QUITE SURE OF THAT.

BQ. WOULD THERE BE ANY WRITTEN NOTATION THAT WOULD REFLECT

THAT CONVERSATION?

A. YEAH, I SHOULD HAVE.

Go. S00 IT SHOULD BE IN THAT FILE?

A. RIGHT. IF ONE WAS MADE, RIGHT.

a. OKAY.

A. IF ONE WAS MADE. RIGHT.

DR. WOULD YOU HAVE SOME VAGUE SENSE THAT YOU MIGHT HAVE

TALKED WITH HIM?

A. I MIGHT HAVE TALKED TO HIM. I MIGHT HAVE JUST FILED IT

AWAY MENTALLY. I DON‘T KNOW BUT I DO -- LIKE I SAY, IM

SITTING BACK HERE GETTING A MENTAL PICTURE OF THIS GUY

KENNERBREW. I VAGUELY REMEMBER WHO WE ARE TALKING ABOUT NOW

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WHEN YOU SAY KENNERBREW. I‘M PRETTY SURE THATS GOING TO BE

THE SAME FERSON.

ol. DID YOU DISCUSS WITH MR. JOWERS OR DETECTIVE JOWERS OR

MR. PARKER WHETHER OR NOT YOU COULD RELY ON THE WORD OF MR.

EVANS PRIOR TO AUGUST?

A. WHETHER OR NOT WE COULD RELY ON HIM?

ol. DID YOU BELIEVE HIM?

A. WELL. YOU SET BACK AND TAKE CERTAIN THINGS INTO

CONSIDERATION. ESPECIALLY THINGS THAT YOU OBSERVED ON THE

SCENE I GUESS, AND YOU WOULD SIT BACK AND TRY TO WEIGH IT AS

TO WHAT HE SAID. BUT I’M THE KIND OF PERSON LIKE THIS, I

DON’T TAKE EVERYTHING ON FIRST -- YOU KNOW. FIRST COME, FIRST

SERVE. BASIS. IT TAKES A TIME. IT TAKES AWHILE. I HAVE TO

BE ABLE TO CORROBORATE WHAT HE SAYS OR ANYBODY ELSE SAYS WITH

WHAT I FIND ON THE SCENE OR WHAT OTHER PEOPLE HAVE TO SAY

ABOUT A PARTICULAR INCIDENT.

SO I CANT SAY —— I“M PRETTY SURE AT SOME POINT IN

TIME WE WERE ABLE AT SOME PQINT TO VERIFY HIS RELIABILITY AS

TO CERTAIN THINGS THAT HE WAS TELLING US.

GQ. HE WENT BACK TO THE CELL AFTER YOU FINISHED SPEAKING WITH

HIM, IS THAT RIGHT?

A. YEAH, BUT YOU’RE GOING TO HAVE TO GIVE ME A DATE ON THAT. |

WENT BACK TO THE CELL --

Q. THE SAME DAY YOU HAD THE FIRST INTERVIEW?

A. I WENT BACK TO THE CELL.

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Ee NO, HE WENT BACK TO THE CELL. MR. EVANS?

A. WELL, WE LEFT HIM WITH THE DEPUTY. I ASSUME HE DID.

Qo. YOU ALL LEFT TOGETHER?

A. RUSS PARKER, I. AND I BELIEVE DORSEY. WE ALL LEFT

206

TOGETHER. WHOEVER THE THREE WERE THAT WENT OUT WITH ME, WE

LEFT TOGETHER.

@. YOU INDICATED MR. —— OR DETECTIVE DORSEY HAD ARRIVED

SEPARATELY OR AT LEAST HE HADN‘T GONE --

A. NO. WHAT IM SAYING IS I KNOW THAT RUSS PARKER AND I WAS

THERE. I HAD TO -- HAD A TYPE OF VAGUE RECOLLECTION AS TO WHO

THE THIRD PERSON WAS BUT I BELIEVE IT WAS DORSEY. I THINK I

SAID THAT. I BELIEVE IT WAS DORSEY.

oY. OKAY. DID YOU GET BACK IN TOUCH WITH MR. EVANS REFORE

THE 18ST OF AUGUST?

A. I DONT RECALL GETTING BACK IN TOUCH WITH HIM, NO, SIR.

Gl. YOURE NOT SURE ABQUT THAT?

A. I SAY I DON’T RECALL GETTING BACK IN TOUCH WITH HIM UNTIL

THE 13T OF AUGUST AND I THINK IT WAS —- WELL, I KNOW IT WAS

RUSS, MYSELF. AND I THINK ONE OF THE INVESTIGATORS. GRADY

ESKEW, THE ONE THAT TOOK THE STATEMENT FROM EVANS, AND THAT

WAS ON AUGUST THE 8TH. I MEAN. I“M SORRY, AUGUST THE 1ST I

BELIEVE, 8-1-78.

a. SO GRADY ESKEW WAS THE ONE WHO TOOK THE STATEMENT.

THAT YOU MEAN --

A. NO. WHAT IM SAYING BY THAT IS THAT IT WAS A JOINT THING,

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A JOINT EFFORT. WHAT I'M SAYING IS THESE PEOPLE WORK FOR THE

DA’S OFFICE. I WORK FOR THE CITY OF ATLANTA AND THATS THE

WAY —-— AND RUSS PARKER WAS THE PROSECUTING ATTORNEY. AND IF

IM NOT MISTAKEN GRADY ESKEW AT THAT TIME WAS HIS ASSISTANT,

HIS AIDE OR INVESTIGATOR.

QR. OKAY. SO ON THE 1ST OF AUGUST YOU SAW MR. EVANS AGAIN?

A. YES. SIR.

2. AND WHERE WAS THAT?

A. I BELIEVE THAT WAS TAKEN AT THE COURTHOUSE.

A. YEAH. I BELIEVE AT THE FULTON COUNTY COURTHOUSE. I

BELIEVE THAT S WHERE WE CARRIED HIM AND GOT THAT STATEMENT.

FULTON COUNTY COURTHOUSE.

Q. WHO BROUGHT HIM OVER?

A. I DON'T KNOW WHETHER WE —— I“M SURE WE DIDN'T TRANSPORT

HIM. I THINK HE WAS TRANSPORTED BY A COUNTY AUTHORITY. BY THE

FULTON COUNTY AUTHORITIES.

GQ. DO YOU RECALL THEN WHERE IN THE COURTHOUSE YOU MET WITH

HIM?

A. THE ONLY THING I CAN TELL YOU IT WAS AN OFFICE. I

BELIEVE IT HAD TO BE ON THE THIRD FLOOR IN ONE OF THE DAS

OFFICE UP THERE. I COULDN‘T TELL YOU EXACTLY WHAT OFFICE NOW

BUT wo

Q. HAD ANYBODY IN THE INTERVENING PERIOD. TO YDUR KNOWLEDGE,

GOTTEN BACK IN TOUCH WITH HIM. I MEAN --

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A. HIM, WHO?

@. MR. EVANS, RIGHT?

A. NOT TO MY KNOWLEDGE. LIKE I SAY, YOU ASKED ME WHILE AGO

DID I GET IN TOUCH WITH HIM. I DIDN’T GET IN TOUCH WITH HIM.

I DON’T HAVE ANY KNOWLEDGE OF ANYBODY ELSE GETTING IN TOUCH

WITH HIM.

@. WHEN YOU GOT HIM INTO THE ROOM ON THE THIRD FLOOR OF THE

COURTHOUSE ON THE 1ST OF AUGUST, WHAT DID YOU DO? HOW DID THE

TAKING OF THIS WRITTEN STATEMENT OR THE WRITTEN STATEMENT IN

THIS CASE OCCUR?

A. WELL. I THINK IT JUST -- BASICALLY, HE JUST STARTED

TALKING ABOUT WHAT HE KNEW AND WHAT HE HAD OVERHEARD.

@. LET ME JUST -— SO THAT EVERYBODY HAS THE SAME DOCUMENTS

IN FRONT OF THEM. GET A COPY OF PETITIONER’S 8 1 BELIEVE AND

SHOW IT TO YOU. DO YOU RECOGNIZE THAT DOCUMENT?

A. YES. SIR.

@. WHAT IS THAT?

A. THIS IS THE STATEMENT OF OFFIE EVANS.

@. OKAY.

A. OFFIE GENE EVANS.

@. IS YOUR SIGNATURE THE ONE THAT'S THE SECOND ONE?

A. MINE WOULD BE THE SECOND ONE. YES, SIR.

@. LET’S TALK A LITTLE BIT ABOUT HOW THIS STATEMENT GOT

TAKEN IN THAT ROOM ON THAT DAY. YOU SAY MR. EVANS WHAT, BEGIN

TALKING OR DID YOU ASK HIM QUESTIONS?

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A. WELL, HE KNEW —- OKAY, BY VIRTUE OF THE FACT THAT

HAMILTON HAD CALLED US OUT TO THE JAIL, HE KNEW THE REASON WHY

HE WAS THERE. THAT WAS TQ GIVE A STATEMENT ABOUT WHAT HE HAD

OVERHEARD, THE CONVERSATION HE HAD HEARD BETWEEN MR. MCCLESKEY

AND MR. DUPREE. SO HE JUST, YOU KNOW, HE STARTED —-- IT WAS

NOT COERCED BY US.

WE TOLD HIM TO JUST TELL IT THE WAY HE HEARD IT AND

HE STARTED QUT WITH, "I AM A FULTON COUNTY —--— " YOU KNOW, "I

AM IN FULTON COUNTY JAIL. CELL NUMBER ONE. NORTH 14." HE

STARTED THAT WAY. NOT AT QUR ASSISTANCE. THIS WAS HIM

SAYING. HE JUST STARTED TALKING.

Gl. NOBODY SAID. OFFIE, WE ARE HERE TO TAKE THE STATEMENT IN

WRITING?

A. IM SURE -—- YOU KNOW. THE TYPEWRITER 18 SITTING —— HE'S

SITTING THERE BEFORE A TYPIST. HE KNEW IT WAS GOING TO BE

TAKEN DOWN.

A. IS THIS A VERBATIM STATEMENT? I MEAN. IN OTHER WORDS, OR

WERE THERE QUESTIONS AND ANSWERS AND THE SORT OF SHAPING OF

SOME OF THIS? DID YOU ALL INTERVENE OR DID YOU JUST LET HIM

GO AND TAKE THE DICTATION IN EFFECT? A. HE —— TO MY RECOLLECTION, HE JUST STARTED NORMALLY LIKE,

YOU KNOW —— IN OTHER WORDS, WHEN YOURE TAKING A STATEMENT, IF

I INTERCEDE IT“S NOT HIS STATEMENT. THIS IS HIS STATEMENT, |

NOT BY MY ASSISTANCE. HE KNOWS WHAT I WANT IT FOR, WHAT HE

KNOW, WHAT HE OVERHEARD. THATS ALL I WANT, THE TRUTH. IN

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OTHER WORDS, AS FAR AS ME INSISTING THAT HE SAY CERTAIN

THINGS, NO, SIR: I DIDNT PUT WORDS INTO HIS MOUTH, NO.

Q. WELL. WHO WAS ACTIVE AS YOU ALL TALKED THROUGH IT,

THOUGH? YOU SAID MR. ESKEW WAS INVOLVED. WAS MR. PARKER

THERE?

A. WELL -— OKAY, RUSS PARKER WAS THERE. I THINK IF YOU LOOK

BACK HERE ON ONE OF THESE PAPERS YOU SEE WHERE A QUESTION AND

ANSWER SESSION. I DON'T KNOW WHETHER WE CONDUCTED ONE. IM

PRETTY SURE WE DID BECAUSE THATS BASIC PROCEDURE.

Q. I THINK ON THE LAST TWO PAGES THERE IS SOME QUESTIONS?

A. BASICALLY, WHAT YOU HAVE HERE IS -- OKAY.

Gl. NOW. YOU TALKED ABOUT HIS TALKING ABOUT WHAT HE

OVERHEARD. AS I LOOK THROUGH THIS STATEMENT, THERE APPEAR TO

BE SOME STATEMENTS RIGHT AT THE VERY BEGINNING ABOUT WHAT HE

OVERHEARD FROM THE PIPES BETWEEN HIMSELF, BETWEEN MR.

MCCLESKEY, AND MR. DUPREE. BUT THEN HE TALKS ABOUT ANOTHER

SERIES OF OCCASIONS IN WHICH HE COMES AND TALKS WITH WARREN

MCCLESKEY AND INTRODUCES HIMSELF AS BEN WRIGHT’S UNCLE, AND

SAYS HIS NAME IS CHARLIE AND THAT HE KNOWS WHATS GOING ON.

80 THATS REALLY NOT WHAT HE OVERHEARD. THAT PART AT LEAST.

THATS ~-

A. THATS DIRECT CONVERSATION BETWEEN HE AND MCCLESKEY I

GUESS.

2. RIGHT. DID HE EXPLAIN TO YOU WHY HE BEGAN THOSE

CONVERSATIONS AND WHY HE SAID HE WAS MR. WRIGHT’S LINCLE?

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A. I THINK IT WOULD BE SAFE TO ASSUME THAT ANYBODY THATS IN

JAIL WOULD, YOU KNOW. YOU GOT SOMEBODY TALKING, YOU ARE JUST

MAKING INQUIRIES, JUST TRYING TO FIND OUT WHAT HE CAN FIND OUT

FOR WHATEVER REASONS. I COULDN’T TELL YOU WHAT HIS MOTIVES

WERE.

Go. BUT YOU SAID HE UNDERSTQOD THAT THIS INFORMATION WOULD BE

USEFUL TO YOU ALL?

A. WELL, THATS COMMON KNOWLEDGE, THAT IT WAS DEFINITELY --

YES, SIR, WE WANTED THE INFORMATION YEAH. BUT NOW I“M SAYING

THAT INFORMATION EVIDENTLY WAS GOTTEN BEFORE. YOU KNOW, BEFORE

HE CONTACTED US.

el. OKAY. SOME OF THE STATEMENTS IN HERE HE SAYS RELATE TO A

TIME BEFORE HE SPOKE WITH YOU ALL ON THE 12TH. HE TALKS ABOUT

THE JULY THE 8TH, JULY THE 9TH. JULY THE 10TH. AND SO FORTH.

AND THEN LATER ON HE SAYS THERES A PERIOD WHEN HE AND

MCCLESKEY AREN‘T TALKING TWO OR THREE OR FOUR DAYS, AND THEN

HE SAYS LATER ON THEY BEGIN TALKING AGAIN.

DID YOU ASK HIM TO SEPARATE OUT THE INFORMATION HE

LEARNED BEFORE HE SPOKE WITH YOU THE FIRST TIME FROM THAT

WHICH HE LEARNED LATER OR DID YOU ASK HIM JUST TO TELL IT INA

STRAIGHT CHRONOLOGY?

A. I HAD NO WAY OF KNOWING THAT. I JUST TOLD HIM TO TELL ME |

WHAT HE HAD —— WHAT HE KNEW. I JUST LET HIM —- LIKE I SAID, I

DIDNT COACH HIM OR ANYTHING. I JUST LET HIM START TALKING.

Gl. RIGHT.

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A. JUST LIKE I DID —-- LIKE I SAY, HE STARTED OUT WITH THE

FIRST WORD, "I AM,"

8. RIGHT. BUT HE HAD OBVIOUSLY STAYED ALERT AT THE TIME

AFTER HE HAD MET WITH YOU ALL ON THE 12TH OF JULY. I MEAN HE

HAD ADDITIONAL INFORMATION, ISN‘T THAT CORRECT?

A. DID HE DO WHAT NOW?

@. AFTER HE HAD GONE BACK TO THE CELL ON THE 12TH OF JULY HE

HAD KEPT HIS EYES AND EARS OPEN. HE HAD ADDITIONAL

INFORMATION HE HAD LEARNED FROM MR. -— FROM MR. MCCLESKEY AT

THAT TIME?

A. WELL, THAT I COULDNT SAY.

@. WELL. YOU HAD HEARD THE FIRST INTERVIEW?

A. 1 HAD HEARD THE FIRST INTERVIEW. IT SEEMED LIKE TO ME IT

WAS BASICALLY THE SAME THING. NOW, IF HE HEARD ANYTHING ELSE

I CANNOT SIT HERE AND TELL YOU THAT HE TOLD ME, SAID, WELL.

SINCE I HAVE TALKED TO YOU ON THE 12TH I HAVE FOUND THIS OUT.

I DON’T RECALL HIM SAYING THAT. HE JUST GAVE US A COMPLETE

STORY AS BEST HE COULD TELL IT I GUESS.

@. WELL. IN HIS TESTIMONY —— I MEAN IN HIS WRITTEN

STATEMENT. THOUGH, HE IN FACT SAYS THERE‘S SOME EVENTS THAT

TOOK PLACE AFTER MY INTERVIEW. LET ME JUST SHOW YOU AN

EXAMPLE. LET’S LOOK ON PAGE 14. HE TALKS ABOUT THE TELEPHONE

NUMBERS? |

A. OKAY. WHAT ARE WE TALKING ABOUT NOW?

(8 TAKE A LOOK AT THAT. READ ON PAGE 14 FOR JUST A MINUTE.

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ABOUT HALFWAY DOWN HE SAYS -- HE TALKS ABOUT PIECES OF PAPER.

THIS IS THE SAME PIECE OF PAPER THAT I GAVE TO DETECTIVE

HARRIS, DETECTIVE DORSEY. AND DISTRICT ATTORNEY PARKER, WHEN

THEY CAME TO INTERVIEW ME.

A. UH-HUH (AFFIRMATIVE).

1. THERE WERE TWO FIECES OF PAPER AND HE MENTIONS HE TRIED

TO CALL WHILE YOU WERE THERE BUT COULDNT REACH THESE TWO

PEOPLE FOR MR. MCCLESKEY. DO YOU REMEMBER THAT ON THE 12TH?

A. UH-HUH (AFFIRMATIVE).

(2. YOU REMEMBER THAT TELEPHONE CONVERSATION?

A. I REMEMBER.

G2. THERES NO CONVERSATION. HE DIDNT MAKE CONTACT?

A. YES, SIR.

Gla AND THEN IT SAYS WHEN I GOT BACK TO THE CELL I TOLD

MCCLESKEY IN EFFECT ABOUT WHAT HAPPENED AND HE SAID, OKAY. SHE

WILL PROBABLY BE OUT HERE SUNDAY. THEN ON THEY GO. THAT'S

OBVIOUSLY INFORMATION THAT HE LEARNED AFTER HE TALKED WITH YOU

THE FIRST TIME. AT LEAST THAT'S WHAT HE SAYS.

A. OKAY. A NOTE WITH A TELEPHONE NUMBER ON IT.

Q. RIGHT.

(. NOW. I SUPPOSE THE STATEMENT SPEAKS FOR ITSELF. DETECTIVE |

HARRIS, BUT PLAINLY HE IS RECORDING EVENTS THAT TOOK PLACE |

AFTER YOU AND HE SPOKE ON THE 12TH FOR THE FIRST TIME. AT

LEAST THATS WHAT HE SAYS.

A. OKAY.

214

THE COURT: WHERE ARE YOU?

MR. BOGER: I“M STILL ON PAGE 14, YOUR HONOR.

BY MR. BOGER:

Q. SO YOU SIMPLY DIDNT SORT THAT OUT. YOU LET HIM SAY WHAT

HE HAD TO SAY?

A. RIGHT. I JUST LET HIM SAY WHAT HE HAD TO SAY.

Q. OKAY. WHEN YOU DID ASK HIM -- HE GETS TO A PART WHERE HE

HAS TALKED AT GREAT LENGTH ON PAGE THIRTEEN, AND THEN THERES

A WHOLE CHANGE IN THE STRUCTURE OF THE STATEMENT. HE SAYS,

"SOME OF THE OTHER THINGS THAT MCCLESKEY AND DUFPREE SAID

DURING THEIR CONVERSATIONS WERE, A." AND THEN HE GOES ON AND

HE DOESN‘T HAVE A B OR A C BUT THERE“S SOME LITTLE STARS.

LIKE ON PAGE 15, THERE’S SOME STARS, AND PAGE 14 THERES SOME

STARS, AND 17.

HOW DID THAT PORTION OF THE STATEMENT GET WRITTEN?

DID HE SAY. "PLEASE PUT THREE STARS ON THE LEFT" OR AT SOME

POINT DID HE SORT OF STOP HIS IMITIAL NARRATIVE AND YOU START

ASKING HIM SOME ADDITIONAL QUESTIONS?

A. NO, I DON’T THINK WE DID THAT. JUST LIKE HE SAID RIGHT

HERE, SOME OTHER THINGS THAT MCCLESKEY AND DUPREE SAID DURING

THAT CONVERSATION. I TOOK IT TO MEAN THAT THESE WERE

CONVERSATIONS THAT HE -- OTHER THINGS THAT HE HAD OVERHEARD.

OKAY, PRIOR TO US BEING CALLED OUT THERE. NOW. AS FAR AS

THESE LITTLE STARS OUT HERE, I DON’T KNOW OTHER THAN THE FACT -

I DONT KNOW. I COULDN‘T TELL YOU THAT. YOU HAVE GOT FOUR

215

AND YOU HAVE GOT THREE. I DONT KNOW.

A. SO YOU DON'T KNOW WHY ——

A. I’M SURE -— I DON‘T KNOW WHETHER HE TOLD US TQ STOP AND

PUT THE STARS THERE OR NOT. I DON’T RECALL HIM SAYING

ANYTHING LIKE THAT.

Qa. DID HIS NARRATION GO UNBROKEN FOR TWO HOURS, UNTIL THE

GUESTIONS AT THE VERY END?

A. WELL. I IMAGINE. SIR. DURING THE TIME THAT HE WAS TALKING

I IMAGINE HE STOPPED AT SOME POINT.

2. AND DID YOU ALL THEN INTERVENE WITH QUESTIONS AND

COMMENTS?

A. I‘M PRETTY SURE WE HAD CONVERSATION BUT LIKE I SAY I

DONT KNOW EXACTLY WHAT IT WAS ABOUT. BUT IT WAS NOT A LENGTHY

CONVERSATION BETWEEN US AND HIM. OTHER THAN THE THE FACT THAT

HE WAS GIVING US A STATEMENT. BECAUSE ONE THING, WE DIDN‘T

WANT TO INTERRUPT HIS TRAIN OF THOUGHT.

a. WELL, IT LOOKS AT SOME POINT AS IF HIS OWN TRAIN OF

THOUGHT GETS STOPPED AND THINGS START BACKWARDS. IS IT

NATURAL TO ASSUME THOSE ARE THE PLACES WHERE MAYBE HIS TRAIN

OF THOUGHT DID SLOW DOWN AND YOU ALL MAYBE HAD CONVERSATION

AND THEN THINGS MOVED BACK ALONG?

A. I THINK IT”S SAFE TO SAY THAT MAYBE HIS TRAIN OF THOUGHT,

CONCENTRATION, MIGHT HAVE BROKE AT SOME POINT. THEN HE HAD TO

SIT BACK AND REFLECT. HIMSELF. THAT-S ALL I CAN TELL YOU.

BUT AS FAR AS US DELIBERATELY STOPPING HIM OR ANYTHING LIKE

216

THAT, I COULDN‘T SAY THAT, FOR THE PURPOSES OF THE

CONVERSATION.

THE COURT: MR. BOGER,. WE ARE GETTING A LITTLE LATE

HERE FOR THESE FOLKS WHO HAVE TO GO BACK TO JACKSON. ARE YOU

ABOUT THROUGH WITH THE BREAD AND BUTTER THAT YOU CAN DO RIGHT

NOW?

MR. BOGER: QUITE CLOSE. I WANTED TO CHECK WITH MY

CO-COUNSEL. BUT LET ME DO THAT FOR A MOMENT, YOUR HONOR.

YOUR HONOR. MR. STROUP HAS TOLD ME THAT HE’S THROUGH

ONE BUT NOT TWO OF THESE FILES. THERE COULD BE SOME

ADDITIONAL QUESTIONS THAT WOULD HAVE —-- IT WOULD BE WONDERFUL

IF WE CQULD HAVE THE SAME ARRANGEMENT WITH THIS --

THE COURT: I EXPECT IT. I WAS JUST -- I WANTED YOU

TO GET TO THE HEART OF THE MATTER NOW EXCLUSIVE OF HAVING A

CHANCE TO REVIEW THE DOCUMENTS, AND I GATHER FROM THE TONE OF

YOUR QUESTIONS YOU HAVE ESSENTIALLY DONE THAT AS WELL AS YOU

CAN DO IT, WITHOUT HAVING LOOKED AT THE DOCUMENTS AT THIS

TIME. IS THAT RIGHT?

MR. BOGER: THERE‘S ONLY ONE OTHER LINE OF INQUIRY

THAT I NEED TO GO INTO AND IT’S PROBABLY NOT AT THE HEART OF

THE MATTER. BUT I -- AT SOME POINT I WOULD LIKE TO ASK THE

DETECTIVE ABOUT WIRING AND SURVEILLANCE PROCEDURES THAT HE MAY

BE AWARE OF.

THE COURT: YOU MAY DO THAT IF WE RECALL HIM. LET’S

JUST ASK ONE QUESTION.

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EXAMINATION

BY THE COURT:

Q. ARE YOU AWARE OF ANY CONSENTUAL OR NONCONSENTUAL

EAVESDROPPING IN THIS CASE?

A. EAVESDROPPING, NO, SIR.

Q. FOR EXAMPLE, IS THERE ANY -- [00 YOU HAVE ANY KNOWLEDGE,

NO MATTER HOW YOU OBTAINED IT. THAT OFFIE EVANS HAD A BODY BUG |

ON AT THE TIME ~~ A. NO, SIR, NOT TO MY KNOWLEDGE.

QR. OR DID ANY OF THE DETECTIVES HAVE A WIRE ON THEM WHEN

THEY TALKED TO OFFIE EVANS? |

A. NC, SIR.

BY MR. BOGER:

Gl. DID HE HAVE ANY NOTES WHEN HE SPOKE WITH YOU ALL, ANY

WRITTEN NOTES OF HIS CONVERSATION?

A. THE ONLY THING I CAN RECALL, LIKE I SAID, JUST LOOKING AT

IT THIS MORNING. IS THE FACT THAT THIS -- I DON’T RECALL

ANYTHING ABOUT NOTES OTHER THAN THE FACT THAT YOU GOT THIS

TELEPHONE NUMBER DATED 7-12, AND THEN HE HAD HIM TO INITIAL

IT. THATS THE ONLY NOTES 1 REMEMBER.

MR. BOGER: YOUR HONOR, AT THIS POINT. SUBJECT TO

RECALL, AFTER WE LOOK AT THE DOCUMENTS, THATS WHAT WE HAVE.

THE COURT: ALL RIGHT. YOU ARE UNDER THE SUBPOENA

OF THIS COURT CONTINUING TO DQ 50. I“M GOING TO ASK COUNSEL

TO DO THEIR BEST TO ACCOMMODATE YOU BUT I“M GOING TO RECESS

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TONIGHT UNTIL 9:30 IN THE MORNING. AND IF THEY NEED TO RECALL

YOU AND THEY NEED YOU AT 9:30 THEN ILL NEED YOU AT 9:30.

THE WITNESS: YES, SIR, I UNDERSTAND.

THE COURT: MAKE SURE YOU ARE WHERE THEY CAN GET

HOLD OF YOu,

THE WITNESS: YES. SIR.

THE COURT! WHAT HAVE YOU DONE TO OBTAIN INFORMATION

ON THE PROCESS THAT LODGED --

MR. BOGER: I“M SORRY, THE PROCESS THAT --

THE COURT: WHAT EVIDENCE IS THERE THAT YOU HAVE

THOUGHT OR THATS IN THE RECORD ON THE PROCESS THAT -- BY

WHICH THE SHERIFF OF FULTON COUNTY HAD LAWFUL CUSTODY OF MR.

MCCLESKEY. IN OTHER WORDS, SHERIFFS DON’T TAKE CUSTODY OF

FOLKS JUST TO BE NICE. THEY USUALLY INSIST ON HAVING SOME

PAPER THAT SHOWS THAT THEY HAVE THE RIGHT TO HAVE HIM. HAVE

YOU SUBPOENAED ANY SUCH DOCUMENT?

MR. BOGER: I DONT BELIEVE SO. I THINK HE WAS A

FULTON COUNTY -- I MEAN HE WAS A FULTON COUNTY PRISONER

BECAUSE THAT'S WHERE, TO MY UNDERSTANDING OF IT. PEOPLE WHO

HAVE COMMITTED CRIMES IN FULTON COUNTY ARE HOUSED PENDING

TRIAL.

THE COURT: S00 YOURE CONTENDING -— DID I ASK ABOUT

MCCLESKEY?

MR. BOGER: YOU SAID MCCLESKEY.

THE COURT: IM SORRY, EVANS.

|
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MR. BOGER: FINE. WE HAVE IN FACT. YOUR HONOR,

FILED A SUBPOENA OR AT LEAST ATTEMPED TO FILE A SUBPOENA ON

THE FEDERAL PENITENTIARY. THE WARDEN OUT THERE. FOR HAVING

SOMEBODY WITH KNOWLEDGE OF THE PRACTICES FOR INCARCERATION OF

FEDERAL PRISONERS IN 1978. IN OTHER WORDS, WE SOUGHT SOMEBODY

WHO WOULD KNOW WHEN THEY PUT PEOPLE IN FULTON COUNTY JAIL AND

IF SO WHY, AND I DON‘T KNOW WHAT THE RETURN IS.

THE COURT: HE WOULDN‘T NECESSARILY KNOW THAT. DO

YOU KNOW WHO ARRESTED OFFIE EVANS?

MR. STROUP: WE HAVE TRIED -- WE HAVE BEEN UNABLE TO

IDENTIFY WHO IT WAS.

THE COURT: DID A REPRESENTATIVE OF THE FBI EVER

SHOW UP HERE?

MR. BOGER: WE GOT SOME INFORMATION DURING THE DAY

WHICH I HAVEN‘T FULLY PROCESSED. THERE’S THIS STATUTE THAT WE

HAVE TO MEET THAT EXPLAINS THE RELEVANCE OF TESTIMONY. THAT

SORT OF THING, THAT WE --

THE COURT: LET ME SEE COUNSEL IN CHAMBERS. YOU

GENTLEMEN TAKE OFF WITH THE PETITIONER AND ILL SEE YOU ALL

TOMORROW MORNING AT 9:30. ILL SEE YOU IN CHAMBERS.

CWHEREUPON, THE PROCEEDINGS WERE ADJOURNED

FOR THE DAY. TO BE RECONVENED AS ORDERED BY

THE COURT. ]

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235

UNITED STATES OF AMERICA

| NORTHERN DISTRICT QF GEORGIA

220

X22

C~E-R-T-I-F-I1-C-A-T-E

I. SYDNEY HUSEBRY, OFFICIAL COURT REPORTER OF THE UNITED

STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, DO

HEREBY CERTIFY THAT THE FOREGOING 98 PAGES CONSTITUTE A TRUE TRANSCRIPT OF PROCEEDINGS HAD BEFORE THE SAID COURT HELD IN THE

CITY OF ATLANTA. GEORGIA. IN THE MATTER THEREIN STATED. |

IN TESTIMONY WHEREOF I HAVE HEREUNTO SET MY

HAND ON THIS 10TH DAY OF JULY, 1987.

SYDNEY HUSEBY |
OFFICIAL COURT REPORTER |
NORTHERN DISTRICT OF GEORGIA

221

CERT IFICNTE

UNITED STATES OF AMERICA,

NORTHERN DISTRICT OF GEORGIA:

I, SAMUEL N. BALDWIN. OFFICIAL COURT REPORTER OF

THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT

OF GEORGIA, DO HEREBY CERTIFY THAT THE FOREGOING cio Phd 219

CONSTITUTE A TRUE AND ACCURATE TRANSCRIPT OF THE PROCEEDINGS

HAD BEFORE THE SAID COURT. HELD IN THE CITY OF ATLANTA.

GEORGIA.

IN TESTIMONY WHEREOF I HEREUNTO SET MY HAND ON

THIS THE ww DAY QF ==-, 1987.

Str SPA Soa SS TA Pa foun ns ee Seah Se Em OA Se OES AS A Gh Sts ASE GA Se WA ers Sa re bt

SAMUEL N. BALDWIN

OFFICIAL COURT REPORTER

UNITED STATES DISTRICT COURT

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Transcript of Proceedings Vol. 1

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