Post-Hearing Briefs
Public Court Documents
September 9, 1987 - October 1, 1987

167 pages
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Case Files, McCleskey Legal Records. Post-Hearing Briefs, 1987. dce601f0-62a7-ef11-8a69-7c1e5266b018. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/1149f6f8-9c67-4fcc-bf66-cf482e2935a4/post-hearing-briefs. Accessed July 12, 2025.
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ; WARREN MCCLESKEY, Petitioner, CIVIL ACTION NO. C87-1517A Ve HABEAS CORPUS RALPH KEMP, WARDEN, UuS.Ce § 2254 * F Fk F F XX * * * Respondent. POST-HEARING BRIEF ON BEHALF OF THE RESPONDENT Pursuant to the directions of the court at the most recent hearing in this action, Respondent hereby submits the instant post hearing brief. In the instant brief, Respondent will address those two Lesiies argued in the brief submitted by the Petitioner, although the court had indicated the briefs were to be addressed solely to the allegation of 5: violation of Massiah yV. United States, 377 U.S. 201 (1964). Respondent will also acdress the question of abuse of the writ insofar as it purtains to the issues being briefed. E 4 ABUSE OF THE WRIT Although Respondent recognizes this Court 1% expressed its opinion concerning the abuse of the writ issue, Respondent feels that it is extremely important to address this issue at this time, particularly as to all aspects of the Massiah claim. Respondent would specifically initially take issue with this Court's ruling at the beginning of the first hearing that there had not been an abuse of the writ as to an allegation of a Massiah violation arising during the course of Offie Evans incarceration and would also reassert Respondent's position that any allegation of a Massiah violation has been totally abandoned by the Petitioner based upon a deliberate strategic choice by counsel and should not be considered at this point. Respondent has never waived the assertion of abuse of the writ. This Court noted that objections were not made; however, a thorough review of the transcript will reveal that this Court specifically ruled that quections into background would be allowed to lay a foundation and also the court itself asked questions concerning matters which could allegeldly relate to an ab initio Massiah issue. Respondent did object when it appeared the questions asked were directly related to an allegation of an ab initio Massiah violation and would reassert abuse of the writ as to any assertion of Massiah. The courts of this circuit and the Supreme Court of the United States have long recognized that there are several bases for finding an abuse of the writ. If one "deliberately witholds . . . grounds for federal collateral relief at the time of Filing his first application . . . he may be deemed to waive his rights to a hearing on the second application presenting the withheld ground." Sanders v. United States, 373 U.8.:1,:.18 (1963). ‘In addition, "The same may be true if . . . the prisoner deliberately abandons one of his grounds at the first hearing." Id. These two examples are part of the basis for the holding in Sanders that "Nothing in the tradition of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay." Id. The Supreme Court of the United States has reaffiined this position noting, "Successive petitions for habeas corpus that raise claims deliberately withheld from prior petitions constitute an abuse of the writ." Woodard v. Hutchins, 0.8. = £19084). See also Antone v. Dugger, 465 U.S. 200, 206 (1984) (noting, "As applicant had presented each of these claims to the state court before the first petition for habeas was filed . . . applicant hardly can contend that these claims were unknown to him at that time.") The courts of this circuit have also emphasized the possibility of an abuse of the writ finding when one deliberately withholds or abandons a ground of relief. "Thus, a petitioner who fails to include a claim of which he was aware in his first petition runs the risk of a denial of such claim in a second petition on the ground that he has abused the writ Of: habeas. Corpus.” Mays v, Balkcom, 631 F.24. 48, 51 (5th Cir. 1980). Further, the burden is on the Petitioner when the State alleges abuse of the writ, as was done in this case, to rebut the State's contentions. Thus, the Petitioner has the burden of proving by a preponderance of the evidence when a ground was not previously presented in a federal habeas corpus petition that "the failure to present the ground in the prior proceeding was neither the result of an intentional abandonment or withholding nor the product of inexcusable neglect." Witt wv. wainwright, 755 F.2d 1396, 1397 {11th Cir, 1985): Adams V. Dugger, 816 F.2d 1493, 1494 (llth Cir. 1987); Stephens v. Kemp, 721 P.28 1300, 1303 (11th Cir. 1983); Tucker v. Kemp, 813 P,24 749, 750 n.l1 (11th Cir. 1987); In re Shriner, 735 P.24 1236, 1241 (llth Cir. 1984), It is clear from the holdings of the Eleventh Circuit Court of Appeals that the burden is upon the Petitioner and the Petitioner "must demonstrate the failure to present the ground in’ the prior proceeding was neither the result of an intentional abandonment or withholding nor the product of inexcusable neglect." Fleming v. Kemp, 794 F.2d 1478, 1482 (11th Cir. 19886). Recently, the Eleventh Circuit Court of Appeals has addressed a case under abuse of the writ principles and found that a claim in the first petition had been withdrawn and abandoned. The court concluded that the burden was then upon the Petitioner to rebut the assertion of abuse of the writ. This was founded upon the equitable nature of the proceedings for a writ of habeas corpus and noting that the court could dismiss a petition when it was found to be raising grounds which were available at the time of filing the prior petition but not relied upon, Darden v. Dugger, 825 F.28 287, 293 (1l1ith Cir. 1987). In Darden, the Petitioner had asserted that even if there had been abuse the court should consider the claim because it involved a claim of innocence. The Eleventh Circuit specifically disagreed finding that the issue was abandoned. "Intentional abandonment of a claim is precisely tite obntegt that application of the concept of abuse of the writ is intended to =zddress." Id. at 294, The question raised in the instant case in relation to the Massiah violation is not one of inexcusable neglect but of deliberate alandonment of an issue. Thus, different consideraticrs come into play than would be considered when faced with an allegation of inexcusable neglect. Inexcusable neglect necessarily involve questions of information known to a ‘Petitioner and whether he could have reasonably raised a claim. Deliberate abandonment, which is what is present in the instant case, involves simply a consideration of whether the issue was known and the Petitioner or his counsel made a knowing choice not to pursue the claim. In the instant case, it is undisputed that the Massiah claim was raised in the state habeas corpus proceedings. Respondent submits that there is no basis for a distinction between what this Court refers to as an ab initio Massiah claim and one that may have allegedly developed later during Evans’ incarceration. The question is the same one. That is, whether Evans was acting as an informer for the state and had been placed in a position by the state and was acting as an agent for the state in order to overhear the Petitioner's conversations. Thus, if any Massiah claim has been abandoned, then all Massiah claims have been abandoned. A review of the testinony presented tO this cours ab: Lie first hearing shows that there is no question but that the issue was abandoned. First of all, a reference to exhibits submitted to this Court by the Respondent reveals that the issue was raised in the first state habeas corpus petition and was also asserted in the amendment to :he first state habeas corpus petition. See Respondent's Exh bit H and attachments thereto. It is also uncontroverted that Petitioner did not raise the claim in the first federal habeas corpus petition Filed with this Court. As noted by this Court at the first hearing, it was imminently clear that Evans was located in a jail cell near the Petitioner, which situation would always raise a possibility of a Massiah issue and there was also testimony at the trial that Evans relayed information to a deputy. This Court itself was concerned as to why there were no previous inquiries as to when Evans might have become an agent of the state if he did at all, {(H.T.I at 5). 4 This Court further noted that knowing that Petitioner was located near Evans at the jail and that Evans had apparently cooperated with law enforcement officers should put counsel on notice as to inquire when the coperation began. Id. at 19. At this Court noted, counsel never asked either.the assistant district attorney or any of the police officers when Mr. Evans began cooperating with them. Further, Mr. Robert Stroup testified before this Court that he became counsel in this case in April, 19890. He raised more than twenty issues in the state habeas corpus proceeding first filed in Butts County and it occurred to him that there might be a Massiah claim. He felt it was suggested just based on the facts. He made some minimal efforts to seek information, but certainly fell short of any Rind of. in depth inquiry. Id. at 31-3. He specifically recalled amending the habeas corpus petition which he viewed as raising a claim of a violation of lRespondent will refer to the transcript of July 8, 1987, as H.?.1, the transcript on July 9, 1987, as H.?.11, and the transcript on august 10, 1987, as H.T.I1I, Massiah. He also knew by the time of the state habeas corpus proceeding that Evans had testified in another case involving the same assistant district attorney. Mr. Stroup's only excuse for why he did not pursue the claim in the first federal habeas proceeding was that he felt that he did not have facts to. support the claim. This 1s despite the fact that Mr. Stroup at no time talked to Detectives Harris or Dorsey prior to or subsequent to the state habeas corpus proceeding and did not recall talking to Deputy Hamilton even though Hamilton testified at the trial. He did not seek to question Detective Dorsey even after Evans mentioned his name and did not subpoena any records regarding the informant claim. This Court specifically found that there was a deliberate withholding of the issue because it was clear that Mr. Stroup thought about the issue at the state habeas COPS: CORTE: and gave it up." (H.T.I at 59). The question presented to this Court is whether this Court should conclude that based upon counsel's conduct, there has been an abuse of the writ. It is clear in this case that counsel knew the issue existed and chose as a matter of tactics not to present the claim in the first federal habeas corpus petition. The simple assertion that counsel did not think he had sufficient facts to prove the claim is insufficient to overcome the barrier of an intentional abandonment of an issue. Counsel obviously felt he had enough information to raise the lain in the state habeas corpus proceeding in the first place and also presented other claims to this Court which he has been unable to factually substantiate.’ If counsel felt the claim had merit to begin with or was even suspicious, he should have continued to pursue the calim with this Court in a timely fashion. Counsel then could have sought discovery from this Court, as was done on other issues, and the issue would have been litigated years earlier rather than engaging in needless piecemeal litigation. This is clearly the exact type of needless litigation that is contemplated by Rule 9(b) and the cases previously cited. These cases contemplate courts not considering issues that not only were known to counsel at the time of filing the first federal habeas corpus petition but. which counsel admits he evaluated and chose deliberately not to raise, even after havifia railed then in the state courts. Respondent submits that under the above authority this Court should dismiss any allegation of a Massiah violation regardless of when this Court contemplates that it might or might not have occurred. It has clearly been deliberately abandoned and under the equitable principles of abuse of the writ should not be considered by this Court at this time. This Court seems to make a aistinction between whether Evans was originally placed in the cell as an informant or became an agent of the state at some later point in time. Respondent submits that this all is a part of the same Massiah claim, that is, whether Evans acted as an agent of the state in violation of the Sixth Amendment fight to counsel. This was precisely the issue raised in the state habeas corpus proceeding. Therefore, Respondent submits that this issue is clearly an abuse of the writ. Respondent also submits that the Brady issue raised by the Petitioner is an abuse of the writ. This Court did not indicate that this issue was open for briefing, but Respondent feels it is pertinent as Petitioner addressed the claim to reassert the position of abuse of the writ. The only assertion by the Petitioner as to why he should be allowed to relitigate an issue of a Brady violation is the belated acquisition of an actual copy of Evans' statement by counsel for the Petitioner. Respondent submits that a review of the record shows that counsel is guilty of inexcusable neglect in failing to obtain this statement earlier and should not be allowed to pursue this claim at this time. Respondent has previously set forth Respondent's position on the Open Records Act and will not reiterate that claim before this Court. The only excuse Petitioner has offered is an assertion that he simply did not realize that there was actually a written statement. Respondent submits that a review of the entire proceedings leading up to the present shows that if counsel was indeed unaware there was a written statement, such constitutes inexcusable neglect. -10- As noted previously, the trial court conducted an incamera inspection of certain specificed material noting in his order, "The court finds that although the documents might become material for rebuttal at trial, they are not now subject to discovery. (T.R. 46). Thus, from this point, counsel knows that there is material which was not disclosed to defense counsel but which was the subject of an in camera inspection. Clearly, counsel was free to renew the request at or during trial. Further, during cross-examination of the Petitioner, counsel for the Petitioner objected to cross-examination by the assistant district attorney indicating that he had asked for all statements by the Petitioner. The trial court stated, "He has a statement which was furnished to the Court but it doesn't . help your client." (T. 830). Again, this points to the fact that there is some type of written statement which is part of the material included in the in camera inspection which was not disclosed by the trial court. Although this does not clearly indicate that it was in fact a statement of Evans, it certainly indicates that it was a statement made by the Petitioner himself to someone. The only possible implication is a statement made to Offie Evans. The only way for the police to get any written information relating to this was to either obtain a written statement from Evans or make a written report concerning a statement given to them by Evans pertaining to the statement made to Evans by the Petitioner. Certainly, -¥l~ this puts counsel on notice that there is a written document which was not seen by defense counsel prior to trial pertaining to statements made by the Petitioner while in’ jail. Further, on direct appeal trial counsel voi sed an allegation relating to the failure to disclose statements of the Petitioner and the alleged withholding of impeaching evidence. In the brief counsel stated, "Offie Gene Evans' statement contains substantial impeachment value." (See Attachment to Respondent's Exhibit H). In the opinion on direct appeal, the court held, "The prosecutor showed the defense counsel his file, but did not furnish this witness’ [Evans] statement." McCleskey v. State, 245 Ga. 108, 112, 263 S.E.2d 146 (1980). This seems to be a clear indication that the Georgia Supreme Court at least assumed there was a statement by Evans which was part of the in camera inspection. Certainly, if the Supreme Court of Georgia can make that determination from the record then present counsel can also make such a determination. In addition to the above, a reading of the entire state habeas curpus proceeding shows that counsel most certainly should h&ve been aware of the fact that there was some type of written statement as of the time of that proceeding. Counsel has asserted that he assumed he had the entire prosecutor's file. This is clearly not the case as the record makes it clear that what was given to counsel was the file given to “l2 defense counsel. It was clear from the trial transcript and the testimony of defense donnsel at the state habeas hearing that there were certain matters not included in the information provided to defense counsel. Present counsel never asked the prosecutor for the matter which was the subject of the in camera inspection and never sought it in the state habeas corpus proceeding. A review of John Turner's testimony in the state habeas corpus court shows that counsel clearly should have been aware that there was a statement. 2 During the questioning of Mr. Turner, he was asked about the testimony of Offie Evans and whether that was a surprise to him. Mr. Turner responded as follows: 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 prelimina:ty hearing was not to make any statements to anybody about: the incident. In fact, I went so far as to say to g.7e him the 2The state habeas corpus transcript was included as an Exhibit to the first federal habeas corpus case in this Court in No. C81-2434A. This Court indicated in the prior hearings it would take judicial notice of those records. «13- clear from this that the there was a statement in analogy that a fish can't get caught unless it opens its mouth to bite the hook. I had talked with him constantly about that in terms of have you said anything to anybody. The bottom line was when I got the witness list, I noticed that at some stage some Deputies names were on there. The only thing I could conclude that something had been said or possibly had been said. And I asked Mr. McCleskey if he had discussed the facts with anyone there at the jail and his Co-Defendant “and he said, "No." to as S.H.T7.) The court then went on to state, statement he made if you made a motion for it." -14- "Well, 1d. writing referring to what Mr. McCleskey had told Offie Evans. Mr. Turner responded, (First state habeas corpus transcript at 76, hereinafter refer TI think the question should be why they did not give you a copy of the It is state habeas corpus court felt that "Well, I can't answer that question even up to this point in time. That was one of the issues I raised on appeal, the fact that I was never given any indication that the statement existed." 1Id. The court went on to inoulresot Mr. Turner as to whether he and the prosecutor discussed the matter at all. Mr. Turner responded the following: We went over the motions, all of the motions and the only thing he said to me about his file was that there were two things which were not 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 he didn't disclose what it was or who the person was in that context. 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. (S.H.T.77). The court then inquired in detail as to the right of a defendant to obtain a copy of his own statement under state law. It was also reiterated that Mr. Turner did not contact Deputy Hamilton prior to trial even though his name was -15-~ on the list due to the fact that "Mr. McCleskey was quite adamant to the fact that he hadn't said anything incriminating or even mentioned the case or discussed it with anyone." 14. at 79-80. During cross-examination Mr. Turner further testified that he went over the names on the witness list with the Petitioner, "Particularly with criminal records like Offie Evans. That was the one I can recall specifically asking him about." Id. at 86. The Petitioner told Mr. Turner that he did not know who Offie Evans was. Id. From a review of all of the above at least at the time of the state habeas corpus hearing, it was the general understanding that there was a statement by the Petitioner which was not disclosed to trial counsel prior to trial. The only logical conclusion is that this is in reality a statement of Offie Evans relating a statement by the Petitioner or at least a report setting forth the information related by Offie Evans concerning what the Petitioner told him. This is further emphasized during th» deposition of the assistant district attorney, Russell Parker. This deposition was taken by Mr. Stroup, February 16, 1981. During that deposition, Mr. Parker was asked, "Prior to the trial of Warren McCleskey did you have a file which you made available to defense counsel representing Warren McCleskey?" (Parker deposition at 4). Mr. Parker 16 responded, "I had a file I made available to all the defense counsel in this case." Id. (emphasis added) It was again reiterated this was a file made available to defense counsel prior to and during trial. This was the file identified at the deposition, again, the file "that was made available back at pre-trial and trial." Id. at 5. (emphasis added). At no time 1s there any indication that this file includes the matter which was the subject of the in-camera inspection, but it was clearly stated that this was the matter given to defense counsel. Further during the deposition, Mr. Stroup refers to a "statement" from Offie Evans. In response to a question concerning the statement, Mr. Parker clarified so that counsel would be fully aware of the circumstances and stated, "When you refer to a statement, Offie Evans .gave his statment but it was ‘not introduced at the trial. It was part of that matter which was made in camera inspection by the Judge prior to trial,” Id. at 8. Petitioner asserts that this simply was unresponsive to the question. This does not undermine the fact that Mr. Parker specifically told counsel for the Petitioner in his deposition that there was a statement given by Offie Evans, it was the statement which was the subject of the in camera inspection by the trial judge and it was clearly not a part of the file being turned over to Mr. Stroup at that point in time. To not understand that this refers to a writtern “wlTe statement of Offie Evans is inexcusable neglect because the only way not to understand that is to not listen to Mr. Parker in the deposition or not go back and read the deposition after it has been prepared. At the end of the deposition, it was reiterated that there would be a copy provided of "the entire investigative file that was made available to counsel." Id. at 13. It should be noted that during this deposition the only question asked of Mr. Parker relating to any type of Massiah claim was asked by the assistant attorney general and Mr. Stroup simply failed to ask any questions whatsoever concerning this issue. In fact, the only testimony given by Mr, Parker on this point was, "I don't know of any instance where Offie Evans worked for the Atlanta Police Department as an informant prior to his overhearing conversations at the Fulton County Jail." Id. at 15, Mr. Stroup never pursued this asst inn except to ask Mr. Parker concerning a possible deal with one of the police officers. Mr. Parker related that he did not see how anything such as that could have occurred. id, at 18, Counsel has asserted that all of the above specific references to written statements and to a written statement of Of fie Evans was insufficient to put him on notice that there actually was a written statement. This is virtually incredible in light of the fact that the Georgia Supreme Court felt that there was some type of written statement and the fact that the a 00 state habeas corpus court in its order in the first state habeas corpus proceeding made the following specific factual findings: It is clear that defense counsel had access to the prosecution's discovery file which included statements from all witnesses (except Evans) and investigative reports. (H.T.38; Parker deposition, p. 4). First state habeas corpus order at 9. (emphasis added). 3 This is a clear factual finding by the state court that there was actually a written statement from Offie Evans and this is a clear indication of the state habeas corpus court finding that all statements from all witnesses except for that statement given by Offie EVans were given to John Turner. Thus, the state habeas corpus court itself also specifically realized that there was a written statement from Offie Evans. Respondent submits that the above shows that Petitioner's counsel is clearly guilty of inexcusable neglect and has failed to prcve that he is not guilty of inexcusable neglect. The burden of proof is on the Petitioner to prove that he is not guilty of inexcusable neglect by a preponderance of the 3This order is included as attachement to Exhibit H submitted to this Court and as Respondent's Exhibit No. 4 in the second state habeas corpus proceeding. -10w evidence. All of the above overwhelming indications of a written statement by Evans and the clear sbotenent by the Georgia Supreme Court that there was some type of written statement and the even clearer statement by Mr. Parker and the state habeas corpus court that there was a written statement, certainly belies any assertion that counsel had no basis for knowing of such a statenent. Thus, Respondent submits that this is clearly inexcusable neglect. It is also clear that Petitioner had a legal basis for obtaining a copy of this statement in the first state habeas corpus proceeding or in the federal habeas corpus proceeding. As was found in the second habeas corpus proceeding by that court "There is legal authority giving him the right to access to this document." Second state habeas corpus order at 13. That court found as fact, "There is no valid reason why Petitioner could not have outlined this statement earlier." Id. at 13. Certainly, Petitioner could have sought the statement earlier under the Georgia Open Records Act, could have subpoenated the statement from Mr. Parker, could have asked for the state habas corpus court to reopen the record so that he could subpoena the statement to a hearing before that court, could have asked for discovery from this Court in order to obtain that statement or could have requested this Court to issue a subpoena for the obtaining of that statement. 30 Petitioner simply failed to do anything to obtain the statement even though there are numerous legal avenues which he could have taken to obtain the statement at that time. Thus, Respondent submits that the allegation concerning a Brady violation is also an abuse of the writ. My Lo 11, PROCEDURAL DEFAULT Respondent would also reiterate the previous argument made as to an assertion of procedural default with respect to Petitioner's allegation of a Brady violation and the allegedfailure to correct alleged misleading statements or incorrect statements of Offie Evans. Although a Brady violation was raised prior to the second state habeas corpus petition concerning the denial of access to the statement, the specific allegation raised now is that the testimony of Offie Evans was misleading and inaccurate and the prosecutor failed to correct that information. This allegation was not raised until the second state habeas corpus proceeding. That court idisnlesed the petition as successive ander 0.C.G:A. § 9-14-51. This constitutes a finding of procedural default under state law. The Eleventh Circuit Court of Appeals has recognized this type of procedural default and has required a showing of cause and prejudice under similar circumstances. Morris v. Kemp, 809 P.24.1499, 1801 (11th Cir. 1987) cert. denied, . . U.8. __, 107 SuCt..__. (1987), As Petitioner has never factually demonstrated cause and prejudice for failure to timely raise this precise factual claim, Respondent asserts that Petitioner should be precluded from litigating this issue at this time. 30, 11. MASSTIAH CLAIM The first allegation addressed in Petitioner's brief is an allegation of a violation of Massiah v. United States, supra. Respondent submits that Petitioner has failed to carry his burden of proving by a preponderance of the evidence that there was a violation of his Sixth Amendment right to counsel in relation to the testimony of Offie Evans. In Massiah v, United States, 377 U.S. 201 (1964), the Court examined a situation of a federal agent obtaining incriminating statements from a defendant who had been freed on bail after he had retained a lawyer. The means by which the agent obtained the statements were classified as being surreptious. In that case, the codefendant and Petitioner had been released on bail. The codefendant decided to cooperate with government agents in conducting the investigation and a transmitter was installed under the seat of the car. The codefendant engaged in a lengthy conversation with the Petitioner in the car and an agent listened tc those incriminatory statements. The court held that the constitutional rights of the Petitioner had been violated by the use at trial of evidence of his own incriminating statements which were deliberately elicted by agents after indictment absent counsel. This was true even though the Petitioner was out on bail at the time. -3 Fw The Court reaffirmed this position in United States v. Henry, 447 U.S. 264 (1980). The question before the Court in Henry was whether the defendant's Sixth Amendment rights were violated by the admission of incriminatory statements made to a cellmate who was an undisclosed government agent. The statements were made after indictment and while in custody. Under the circumstances of that case, after counsel was appointed, government agents contacted an inmate by the name of Nichols who had previously been engaged as a paid informer. Nichols told the agents that he was in the same cell block with the defendant and Nichols was told to be alert to possible conversations but was told not to initiate any conversation or to question the defendant. After Nichols was released he contacted the agent and told the agent he had conversations with the defendant. Nichols was then paid by the agent. The jury was also not told that Nichols was a paid informant when he testified at trial. The Court found that the question was whether a government agent deliberately elicted incriminatory statements. The Court found that three factors were important under the circumstances of that case, that is, Nichols was acting under instructions as a paid inforreént for the government, Nichols was ostensibly no more than a fellow inmate and the defendant was in custody and had been indicted. Id. at 270. The Court found that the informant in Henry, as in Massiah, was charged with the task of obtaining information. 2h The question was whether the government interferred with the Sixth Amendment right by deliberately eliciting incriminatory statements. The Court held that there was a constitutional violation by the government's intentionally creating a situation which was likely to induce a defendant to make statements which were incriminatory and to make them without the assistance of counsel, Id. at 274, In Maine v. Moulton, U.S. y: 206:8.Ct. 477 (1985), the Court examined the question of whether a defendant's Sixth Amendment right to counsel had been violated by the use at trial of the defendant's incriminatory statements which were made to a codefendant. Under the circumstances of that case, the codefendant was determined to be a secret government informant and the conversations occurred after indictment and at a meeting of the codefendant and defendant to plan a defense strategy for the trial. The Court noted that the Sixth Amendment would not be violated whenever the statements were obtained by luck or happenstance after the Sixth Amendment right had attached. Id. at 487. The violation was the knowing exploitation of an opportunity to confront a defendant without the presence of counsel. Id. The Court noted that proof that the state must have known that the "informant" was likely to obtain information was sufficient. Id. at n.l2, Most recently in Kuhlmann v. Wilson, U.S. vr 106 S.Ct. 2616 (1986), the Supreme Court found the primary concern dB of the Massiah line of cases was a secret interrogation by techniques which would be the equivalent of a direct interrogation by the police. A defendant must show that the police and the informant took some action beyond merely listening and must show that that action was designed to deliberately elicit incriminating statements. Id. From a review of the above it can be seen that the Petitioner in the instant case in order to meet his burden of proof must show that Offie Evans was acting as an agent or informant of the authorities. In order to make this showing, it must be proven by a preponderance of the evidence that Evans was placed in a cell with the intent that Evans obtain incriminating. evidence from the Petitioner and that Evans was instructed to conduct himself so that he could obtain such information. Thus, it must actually be shown that Evans was acting on behalf of the police at the time he heard the conversations or engaged in the conversation with the Patitioner and at the directions of the police. Respondent submits that Petitioner has failed to carry his burden of proof ia this regard. This Court has had lengthy hearings concerning this a.legation. Petitioner's assertion is that the testimony of one witness, Ulysses Worthy, is sufficient to establish this Massiah claim. Petitioner would have this Court disbelieve the testimony of all other witnesses who have testified and attempt *26« to find some way to credit only minimal parts of Mr. Worthy's testimony, which testimony is admittedly confusing when considered over the course of the two different days that he testified, and essentially find that he is the only credible witness who testified before the court. Respondent submits that this simply defies logic and that such credibility cannot be attached to one witness who has had no reason to even think about this case since 1978 and to a witness who was called in to testify before this Court and asked to remember things occurring nine years ago without any basis for refreshing his recollection. It also requires this Court discrediting the testimony of witnesses who were intimately involved in his case, who testified at subsequent proceedings and who had better reasons for having clearer recollections as to the points of this case. Petitioner would also have this Court find in particular that Detective Dorsey was a "malevolent actor" and somehow impute some underhanded motive to Detective Dorsey without ever having rroven that Detective Dorsey was aware of the consequences of his testimony. Petitioner would also have this Court credit Mr. Worthy's testimony at the first hearing and discredit his testimony at the second hearing, somehow asserting that this office acted in some fashion so as to convince Mr. Worthy to change his testimony under the fear that he might cause the conviction or the sentence in this case to be reversed or that his testimony might reflect badly on a police officer. None of these bald assertions by the Petitioner are supported by the record in this case. Petitioner had adquate opportunity to EEO Mr. Worthy as to why his memory was more specific at the second hearing before this Court. Mr. Worthy gave no indication that he was aware of the consequences of his testimony or that he understood the legal significance of the questions being asked nor did he indicate that he had any qualms about any effect it may have on any police officers. Respondent submits that this type of speculation by the Petitioner is simply unwarranted in this case. It is essential to examine in detail the testimony given by all witnesses before this Court at both proceedings as well as to examine the testimony before other courts. Carter Keith Hamilton testified in the trial of this case. According to Mr. Hamilton's testimony at trial, he was a floor deputy on the first floor of Fulton County jail. Mr Hamilton was asked, "Do you know what cell he [Warren McCleskey] was in in July, the early part of July, 1978 at the Fulton ounty Jail." (T. 860). Mr. Hamilton responded, "Yes sir, he was in one north fifteen." (Id.) Mr. Hamilton did not respond that Petitioner was in that cell for a part of that time or for one day, but responded that in the early part of July, 1978, Mr. McCleskey was in that cell. Mr. Hamilton was then asked if he knew where Offie Gene Evans' cell was. Mr. Hamilton responded, -28. "Yes, sir, he was in one north fourteen, right next door to Warren McCleskey." 1d. at 861. Again, no indication was given by Mr. Hamilton that Mr. Evans had been in more than one cell or had been moved or had been in that cell for only a short period of time. Mr. Hamilton did not go into any conversations he had with Mr. Evans because an objection was made by trial counsel that any such information would be hearsay. Thus, Mr. Hamilton had no opportunity to testify whether he was approached by Evans or Evans approached him. Offie Gene Evans also testified at the trial of the case. Mr. Evans testified that the Petitioner was in the cell next to him at the Fulton County Jail. (T. 869). Mr. Evans was asked if he had carried on conversations with the Petitioner and Bernard Depree and Evans responded that he had. He also responded that Bernard Depree was upstairs in the cell above Evans. Mr. Evans then testified as to the statements made to him by the Petitioner. During cross-examination of Evans, Evans stated that a deputy at the jail heard them talking about it. Evans testified that these conversations occurred around the 8th or 9th of July. He testified that he was placed in solitary "When I first came from the streets, they just put me in there straight from the street." (T. 873). Mr. Evans described solitary confinement as being single cells side by side. Mr. Evans was extensively cross-examined about the statements made to him by the Petitioner. He was also further A asked about his conversations with Deputy Hamilton and he stated that Deputy Hamilton "said did I want him to call Homicide, would I tell them that. I said yeah, so he called them." (T. 880). Finally, Offie Evans was asked when he got moved. Evans responded that he was moved on August 14th. (7. 881). At the conclusion of the testimony of Mr. Evans, the trial court instructed the jury that the evidence that had been presented since the defendant had rested, which included the testimony of Hamilton and Evans, was for the purposes of impeachment only and for no other purpose. (T. 885). At the state habeas corpus hearing, trial counsel, John Turner, emphasized that the Petitioner told him ghat he made no statements to anyone at the prison and did not talk about the incident at all. (S.H.T. 76). He reiterated that he asked Petitioner about Evans and Petitioner stated that he did not even know vho Offie Evans was. (S.H.T. 86). Offie Evans also testified before the state habeas corpus court. He stated-that he was in the Fulton County Jail on July, 1978. He stated further that he was taken to Fulton County Jail and was placed in solitary confinement, (S.H.T. 116). Mr. Evans was in solitary confinement "a little bit better than a month." 1d. In response to the questions by Mr. Stroup, he responded that he was taken out to Fulton County Jail around the first of July and the implication from the testimony is that he was placed in solitary confinement at that time where he remained until about August 14. Id. Mr. Evans stated he was not sure as to why he had been placed in solitary confinement. Mr. Stroup further asked, "While you were in solitary confinement, you were adjacent to the cell of Warren McCleskey., Is that correct?" (s.,H.T. 117). Mr. Evans responded affirmatively. Mr. Evans was then asked if he talked with any Atlanta police officers about the substance of his conversations with Warren McCleskey prior to the time of his testimony and he responded that he had talked with Officers Harris and Dorsey. Id. He stated that these conversations occurred while he was still in solitary confinement. At this time, Evans indicated that he had had the deputy have one of the police officers come out and talk with him, which was contrary to his trial | testimony in which he indicated the deputy suggested the police officers coming out. (S.H.T. 118). vans also testified that he had conversations with Russell Parlier prior to his testimony at trial. He said that he had the ccaiversation with Parker in July or August. He stated that the d3:tective knew he had escape charges and indicated that he ‘“:alked with Detective Dorsey first before talking with Russell Parker. Id. at 119. He later indicated that Detective Dorsey said he would speak a word for him. (T. 122). Evans was subsequently cross-examined concerning his testimony in other cases subsequent to Petitioner's case. ~3- Petitioner himself also testified at the state habeas corpus hearing. The Petitioner was asked if he was asserting that Offie EVans was not telling the truth and did not tell the truth at trial. The Petitioner responded , "That is correct. Well, now, I would like to clarify that when I said the statements had not been made. There were conversations that went on, you understand. But never nothing incriminating." (S.H.T. 155). Petitioner further stated that he did not tell Mr. Evans what Evans testified to at trial. He stated, "There was a guy in there next to me that I used to talk to about the law and circumstances surrounding the case but never nothing incriminating." (S.H.T. 156). Petitioner reiterated that he did not remember Evans being in the cell next to him. Id. ‘Russell Parker also testified by way of deposition. in the state habeas corpus proceeding. Counsel for the Petitioner did not ask any questions concerning Evans being an agent or an informant. Mr. Parker indicated that he first found out about Evans' testimony from either Detective Jowers or Harris who apparently had been contacted by Deputy Hamilton. Mr. Parker did not recall at that time whether he went to the jail and talked to Evans or whether they talked to Evans at the Atlanta Police Department. He did know that he talked to Evans and did talk to him at the Atlanta Police Department at some time. (Parker deposition at 9). He further recalled Detective Dorsey being involved in the investigation but did not know at what -30 point. The only thing he recalled in relation to Evans' statement was that Hamilton, Jowers and Harris were involved. Id. Mr. Parker testified that he did not know Evans prior to that time and was not aware of any understandings concerning any favorable recommendations between any detective and Evans. When asked specifically by the assistant attorney general whether he was aware that Evans was working as an informant when he was in the Fulton County Jail, Parker responded, "I don't know of any instance that Offie Evans had worked for the Atlanta Polite Department as an informant prior to his overhearing conversations at the Fulton County Jail." 14. at 15. No other questions were asked by either counsel of Mr. Parker concerning a possibility of Evans being an informant or agent. In addition to this testimony, this Court has the statement of Offie Evans. At the very beginning of that statement Mr. Evans says, "I'm in the Fulton County Jail cell #1 North 14 where I have been since July 3, 1978 for escape. Warren McCleskey was in cell #15, which was right next to my cell. Bernard Dupree was in cell #2 North 15 which was right above my cell and McCleskey's." A clear reading of this statement indicates that at the time the statement was made, even though the statement was actually given at the police department, the Petitioner was incarcerated in the Fulton County Jail and was in cell #1 North 14 and had been in cell #1 North 14 since he 33 was incarcerated in the Fulton County Jail, which was since July 3, 1978. The point of this statement is that Evans had been next to McCleskey from the time he was placed in the jail until the time of making the statement and was not moved until later in August. In addition to the above, this Court has the testimony given at two separate hearings. A summary of that testimony is essential for reviewing the issues presented before this Court. It is important to note that this Court found Mr. Evans to be a credible witness simply from the bases of the extensive statements given. In fact this Court noted that it found the testimony of Evans to be true and there was no doubt as to the quilt of the Petitioner. (H.7.. I at 4). The testimony presented before this Court and the records are fairly clear that Offie Evans was arrested on or about July 3, 1978. Evans met with Russell Parker and two detectives from the Atlanta Police Derartment at the Fulton County Jail on July 12, 1978. Evans gave a written statement on August 1, 1978. This Court was initia. ly concerned with whether an agency relationship arose on July 12, 1978 and, if so, what information the authcrities received after that date. The testimony of Russell Parker clarifies this point. Mr. Parker had taken notes of his meeting with Evans on July 12, 1978, which notes were introduced into evidence before this Court as Petitioner's Exhibit No. 9. Mr. Parker testified that his 34 recollection was that Evans did not tell him anything different on August lst than he did on. July 12ch. (H.T. 1-2 152). This Court specifically noted that on the pages of Mr. Parker's notes, there were two separate references to Evans' making statements that if there had been a dozen police officers the Petitioner would have shot his way out. Id. Parker further testified that he did not know of any information that Evans obtained between July 12th and August lst and he did not tell Evans to keep his ears open and did not tell him to talk with Petitioner any further. (H.T.I at 167.) Mr. Parker's notes reveal that on July 12, 1978, Evans told the authorities that he was in the cell next to McCleskey and that McCleskey relayed information concerning Bernard Dupree and specifically provided information in which the Petitioner said he shot the police officer. In fact, Evans relayed on that day that McCleskey said it was either going to be the police officer or the Petitioner and that he would have shot his way oit if there had been a dozen policemen. No evidence has been introduced to contradict the above facts. Therefore, Respondent submits that there is just no question as to the nonexistence of a Massiah violation based on an allenacidn that an agency relationship arose on July 12th as the authorities received all pertinent information from Evans on July 12, 1978. | The other question which Petitioner was allowed to develop concerns whether Evans was actually placed in the cell next to Petitioner and, thus, was in essence an agent or informant at 38 the time of the original conversations with Petitioner. Respondent submits that a consideration of all of the testimony before this Court shows that this simply was not the case. Russell Parker, the Assistant District Attorney, testified consistenly before this Court that he had never known Evans prior to July 12, 1978. Mr. Parker further testified that he did go to the jail on July 12, 1978, to talk with Offie Evans, and he would have guessed originally that Detective Dorsey was not there. Mr. Parker assumed based on the indication on his notes that Dorsey did go. (H.T.I at 130-1). Mr. Parker received information on July 12, 1978, that there was an inmate at the jail that had information. He decided to go to the jail with Detective Harris. He again reiterated that he did not remember Dorsey being there and, if asked, would have said it was Detective Jowers. (H.T.I at 147). Mr. Parker also came and testified on the next day at the hearing before this Court. During this time, the questioning focused on whether Mr. Parker investigated the possibility that Evans had been an informant for other agencies. He was also asked about Evans being placed in solitary confinement in Fulton County Jail. Mr. Parker responded that he did not know specifically but he just knew that Mr. Evans was an escaped federal prisoner. He was not aware specifically that the Petitioner was in solitary confinement, but just knew that the two were in cells next to each other. He further reiterated 36 that to his understanding the first time that anyone knew the Petitioner had said anything to be overheard was on July 11, 1978, when Evans talked to Deputy Hamilton. (H.T. Ilvat 77). Petitioner's Exhibit No. 10 were further notes from Mr. Parker relating to calls he made concerning Offie Evans. These were calls during which Mr. Parker was trying to determine in his own mind whether to believe Evans. Mr. Parker finally testified before this Court at the hearing on August 10, 1978. Mr. Parker affirmatively stated that he had never asked anyone to move Offie Evans to overhear any conversations and never suggested to Evans that he overhear any conversations. (H.7.,111 ac 11). In fact, Parker stated that he specifically did not ask Carter Hamilton or Ulysses Worthy to move Offie Evans and it never came to his attention that any such request was made and even as to the date of the hearing he had no knowledge of any such request being made. As to who was present at the July 12, 1978 meeting, he indicated the only information he had was his notes in which he indicated that Detective Dorsey was there. Id. at 113. He reiterated that the first knowledge he had of Offie Evans was the morning of July 12, 1978. He specifically stated that he knew of no request to move Evans and nothing of that sort occurred in his Presence. Id. at lle. Officer W. K. Jowers testified before this Court for the first time on July 9, 1987. Officer Jowers testified that he «37 was one of the investigators responsible for compiling information and conducting the investigation. He testified that he had absolutely no contact with Offie Evans. (H.7.11 at 35). He specifically did not recall talking with Evans at any time, much less prior to July, 1978. 8. ac 38. Officer Jowers also testified at the hearing on August 10, 1978, he reiterated that he did not know Offie Evans. He further positively testified that he never asked that Offie Evans be moved and never heard of any such request. He never asked Worthy or Hamilton to move Evans and there was no ‘reference in any of his files indicating such a request was made. (H.,?. IIT at 97). Detective Welcome Harris began his testimony on July 8, 1987. He was involved in the investigation of the murder of Officer Frank Schlatt almost from the beginning. He testified that Officer Jowers was his partner at the time, but other officers, including Detective Dorsey did some work on the case. Detective Harris' first ccntact with Offie Evans was on July 12, 1987. He received infoimation from Deputy Hamilton that an inmate had some information about the case. He recalled going to the Jail on July 12, 1978, with Russell Parker and he testified that he thought Detective Dorsey was there, but he was not sure. It was apparent that Detective Harris based his recollection on who was present primarily on the notes of Mr. Parker. Detective Harris testified that he -38~ thought the interview with Evans occurred in Captain Worthy's office, but he was sure Worthy was not there. (H.T.I at 196). Harris testified that he did not think he knew that Evans was in the cell next to the Petitioner until they got to the jail. Harris testified that the first time he had ever seen Evans was on July 12, 1978, when he went to interview Evans. He did not know that Evans had been an informant prior to that time. The only thing he knew was that his next encounter with Evans was on August 1, 1978. Further, to his knowledge no one was in contact with Evans between the two time periods. He reiterated Mr. Parker's prior testimony that it seemed to him that the information they received on August 1, 1978, was basically the same as that received on July 12, 1978. (H.T.I at 212). Detective Harris resumed his testimony on July 9, 1987. At that sige te reiterated she fact that he had no previous dealings with Evans. (H.T. II at 12). He did think that he made some contact with the federal penitentiary relating to Evans' prior history. He stated that he did not hear anyone tell Evans to keep his eyes and ears open and he specifically did not tell Evans any such thing. He emphasized that he made no suggestions to Evans at all. CH. P.IT at 24). Detective Harris testified finally before this Court on August 10, 1987. During that testimony, he again stated that his First contact with Evans was on July 12, 1978. He was emphatic that he never asked anyone to move Evans, never asked -39- Evans to overhear any conversations and never suggested to Evans to overhear conversations. He specifically did not make any such request to Mr. Worthy. He also did not recall Worthy being in the room during the interview on July 12, 1978. (H.T.III at 103). He indicated that his testimony was still vague as to a recollection of Detective Dorsey being present at the interview on July 12, 1978. When he was cross-examined concerning Mr. Evans' testimony at the state habeas corpus hearing, he was emphatic that Evans was simply inaccurate if there was any indication of a prior meeting with him. Detective Harris reiterated the fact that he had absolutely no meeting with Evans until July 12, 1978, and did not know of Evans until he received the phone call on that date. Carter Hamilton also testified consistently in this case. Mr. Hamilton was called to testify on July 8, 1987. In 1978 Mr. Hamilton was a floor deputy at the Fulton County jail. He specifically recalled having conversations about this case with Evans on either July llth or July 12th. He recalled that Evans came in on an escape charge and would have been put in isolation as an escape risk. (H.T.I at 177). He testified that he would not have had any conversations with Evans regarding the Schlatt killing prior to July 11, 1978. He also did not have any conversations with any detectives regarding that case prior to July 11, 1978. He knew of no one that implied to Evans that he should listen to McCleskey or talk to -40- McCleskey. On July 11, 1978, Evans indicated to Hamilton that he overheard conversations between Petitioner and Depree. Hamilton asked Evans if he would talk to the officers. {H.D7. 1 at 181). On the morning of the 12th, Hamilton recalled that Detective Harris and Russell Parker came to the jail along with another officer. Id. at 182. Hamilton took Evans to a room down front where they could sit and talk. Hamilton stayed in the room until the interview was over. He did not have a clear recollection as to who the other detective was that was present, although he indicated it could have been Detective Dorsey. (H.T.I at 183). He indicated that he had no other specific conversations about this case with Evans during July of 1978. He further testified that he had no prior dealings with Evans. (H.T.I at 189). on August 10, 1987, Carter Hamilton testified consistently with his prior testimony. He testified that the first time he knew Evans had any information regarding the Petitioner's case was on July llth and to his knowledge the first time anyone came to the jall.to talk to Evans about this case was on July 12, 1978. (H.T.1II at 68). He had no knowledge of Evans being moved and he recalled Evans being in isolation when he first came in. He testified this would have been based on the outstanding escape charge. He further recalled the Petitioner being in isolation when he first came into the Fulton County jail. Id. at 69. Hamilton testified positively that no one “hdl asked to have Evans moved to overhear conversation of the ‘Petitioner and that he personally never asked Worthy to move Evans and he did not tell Worthy that anyone wanted Evans moved. Further, during the interview on July 12, 1978, no one asked Evans to overhear conversations. Hamilton reiterated his testimony that he was the one who suggested to Evans that the detectives be called and that Evans did not mention the detectives and gave no indication he had talked to police officers previously. (H.T.III at 76-7), Detective Sidney Dorsey testified before this Court on July 9, 1987. He first became involved in the investigation of a homicide on the Monday after the crime. He did not recall specifically who was his partner but thought it might have been Harris. He thought that Detective Jowers was the lead investigator on the case. (H.T.III at 48). Dorsey did testify that he knew Evans prior to this case. His specific recollection was that he had been to the federal penitentiary and seen Evans and had also seen Evans at a half-way house with another detective. He did not know why he 1ad been there in the first place but it was specifically not to meet Offie Evans. Id. at 49, He saw Evans again at 1 woman's home and assumed Evans either called him there or they just happened to be there at the same time. He did not know why. He also had run into Evans at city court and spoke to Evans. He thought Evans might have called him another time or two but he was not -42~ sure. He indicated that Evans had on occasion been cooperative, but he had never gotten any information from Evans where Evans wound up testifying. (H.T.III at 54). He was further not aware that Evans had served as an informant to anyone else. His recollection was that at the time of the Schlatt investigation, he did not think he knew Evans had escaped or that he was wanted for escape. He fursiier did not recall going .to see Evans at the Fulton County jail at the time of this case or at any other time. He did not recall attending a meeting with Parker and Harris and Evans. Id. at 57. He indicated that it was possible he ‘had met with Evans on occasions during the investigation of the case, but testified that if he had made any promises to Evans he would have a specific recollection of that fact. Id. at 65. He was asked specifically by the court if he did anything directly or indirectly to encourage Evans to obtain evidence from the Petitioner. Dorsey positively responded that he did not. He indicated ne had absolutely no knowledge of anything of the sort and had never even heard of it ocearring. (2.7.11 at 63). Officer Dorsey testified consistently with the above on August 10, 1987. He: als again positive that he did not talk to Evans during the investigation of the Schlatt case and ask him to attempt to overhear conversations of the Petitioner. (H.T.III at 80). He was positive that he did not direct Evans to engage in conversations and never heard anyone else make -43- such a request. He was positive that he made no request that Evans be moved and he did not ask Carter Hamilton to make such 8 request, ld. at 81. He still indicated he did not remember seeing Evans in the Fulton County jail and had no recollection of attending the meeting on July 12, 1978. He further reconfirmed his prior testimony on cross-examination that if he had made a promise to Evans he would have remembered it. The first time he heard any information concerning such an allegation was back in the 1980's. He remembered being asked by Mr. Parker at that time and remembered at that point in time that he had the feeling that Evans was lying. (H.T.III at 87). He was emphatic that if any such request to be moved had been made. he would have remembered it. Id. at 94. A review of the all of the above testimony shows that all of these witnesses testified consistently during both sets of hearings. All witnesses emphatically denied ever having made any request that Evans be moved, emphatically denied ever h2aring anyone make such a request and denied ever having any knowledge that such a request had been nade. All witnesses ware surdher consistent in their testimony that they were inaclear as to whether Detective Dorsey was present at the meeting on July 12, 1978. The only reason any witness testified that Dorsey was there at all was based on the inclusion in the notes of Mr. Parker of Dorsey's name. Harris and Parker initially testified they did not recall Dorsey being -44-~ present and Dorsey himself simply did not recall being there. Although Petitioner has attempted to focus heavily on Detective Dorsey's denial of being at the meeting, it appears that his recollection concerning his presence at the meeting was the same as the other officers, unclear due to the length of time that has passed. It is important to note that Detective Dorsey has never been asked to testify concerning the information received by Evans and had no reason to have his recollection refreshed at any time prior to the testimony before this Court. Contrary to this, Deputy Hamilton testified at trial both in this case and in the case of Bernard Depree. Detective Harris also has testified previously in this case and Mr. Parker tried both cases. Thus, they all had specific reasons to refresh their recollection, and even they were unclear as to Detective Dorsey's presence. The only witness who has testified inconsistently, both with all other witnesses who have testified and with his own testimony in this case is Olysses Worthy. Respondent submits that Mr. Worthy's testimony when considered as a whole is simply so confusing and ambiguous that this Court should not credit any of his testimon, Upon reflection, it is clear that Mr. Worthy is simply confused as to the events that occurred or is mistaken. Mr. Worthy was first called to testify before this Court on July 9, 1978. He had not even been employed with the Fulton County jail for quite a few years and had never had -45~ an occasion to testify in this matter or discuss the Evans situation with anyone prior to his testimony. In fact, Mr. Worthy had no reason to even know why he was being brought to court. Necessarily, his memory would have been vague at best. Mr. Worthy's original testimony was ambiguous and confusing. He testified that he recalled the murder of Officer Schlatt being brought up between Dorsey and Evans, but indicated he was not a participant to that conversation and testified he did not recall Dorsey asking Evans to listen for statements by the Petitioner. (H.T.II at 148). During examination by counsel for the Petitioner, Mr. Worthy was asked, "Do you recall whether Mr. Dorsey asked Mr. Evans to listen to what he heard in the jail from those who may have been near him?" (H.T.II at 148). Mr. Worthy responded positively, "no, sir, I don't recall that". Id. Mr. Worthy was then asked, "do you recall whether he asked him to engage in conversations with somebody who might have been in a nearby cell?" Mr. Worthy responded, "Seems I recall something being said to that effect to Mr. Evans . . . but I'm not sure that it came from Mr. -- from Detective Dorsey or who." Id. at 149. He then responded upon further questioning that he was not really sure and h: also was not sure that Evans agreed to that arrangement. When asked further questions Mr. Worthy responded with such statements as "I believe so." Thus, from this it is clear that Mr. Worthy simply is unsure of what did transpire, is unsure if anyone -46- actually asked Evans to listen, did not specify whose conversations Evans was asked to overhear and does not even know who made the request, if indeed such a request was made. Worthy then testified that the detectives were out at the jail several times. He did recall Russell Parker and Detective Harris coming out to interview Evans but was not certain as to whether Dorsey was present on that occasion or not. Contrary to the testimony of Hamilton and Harris, Mr. Worthy testified that he was in the office during part of that meeting. He was finally asked if he recalled a request being made in this case that "someone" be placed in a cell next to "someone else" so that he could overhear conversations. He responded that he did. (H.T.II at 153). He stated he did not really know who made the request and he thought to his recollection Evans was placed in the cell next so the Petitioner. As he could recall, it was a request of some officer on the case. He further testified he did not recall when it was that he might have been asked to move Mr. Evans and he did not know of any conversations that Mr. Evans had overheard and he did not recall at that time who made the request. Id. at 156. Mr. Worthy testified again before this Court on August 10, 1987. Although Petitioner has attempted to assert that Mr. Worthy was somehow convinced to change his testimony, that simply is not the case. In fact, the record before this Court shows simply that Mr. Worthy was interviewed prior to his 47 testimony or AGalt 10th, and was asked questions about this case, but there is no indication Mr. Worthy was ever told of the significance of his testimony. A review of Mr. Worthy's testimony from the first hearing shows that it is extremely ambiguous, unclear and highly suspect. Mr. Worthy continually stated he was unsure, only believed that certain things occurred, did not recall when or who made requests and so forth. Respondent submits that this further corroborates Respondent's assertion that Mr. Worthy has simply been confused all along as to the occurrence of any request for a move. Mr. Worthy had time to reflect upon his testimony and think about what had occurred some nine years previously and testified again on August 10, 1978. After having had the opportunity to think about the case further, Mr. Worthy testified before the court on that date that the first time he recalled Evans ever being brought to his attention was on an occasion when one of the deputies informed him that Evans had information to pass on to the district attorney or police. Mr. Worthy vus positive that it was deputy Hamilton who brought Evans to his attention. (B.T.I11 at 14). Mr. Worthy was certain that that was his first meeting with Offie Evans on that date. This obviously has to have been the July 11, 1978 date as this was the first time that Mr. Hamilton had any indication that Evans knew anything about this case whatsoever. Mr. Worthy testified he gave Hamilton permission -48-~- to call the deputies. Mr. Hamilton did not corroborate this testimony and did not mention ever talking to Mr. Worthy about this matter. Mr. Worthy recalled that: the investigators came to talk to Evans within a few days, To his knowledge, that was the first time anyone had come to the jail to talk to Evans regarding the Schlatt murder. He recalled the meeting taking place in his office and being in and out, Id. at 17. He specifically testified that after the meeting none of the investigators asked him to do anything. (H.T.III at 18). When asked if someone asked him to move Evans, he was unclear at first and then remembered that it was actually Hamilton that allegedly asked him to move Evans. His uncertainty was as to who he thought asked Hamilton to request that the move be made. He emphasized that the first time he was ever asked to move Evans was on the day the officers were out to the jail with Mr. Parker to talk with Evans and that that was the only time he was ever asked to make such a move. Contrary to the testimony of all other witnesses, Mr. Worthy stated that Carter Hamilton asked that Evans be placed ir a cell near the Petitioner. Mr. Worthy further testif .ed that he did not know for a fact that Evans was ever actual.” moved. He specifically testified he did not hear anyone ask Evans to listen to conversations. He testified positively that neither Harris, Dorsey, Jowers nor Parker asked him to move Evans so that he could overhear conversations. Id. at 24. He testified on this -49~ occasion that his recollection was that the meeting with Dorsey was at the same time the other officers were there. He was not sure who the request came from for Evans to overhear conversations. Id. at 32. Mr. Worthy then became even more confused and did not recall if Dorsey was present with Parker. Mr. Worthy was clear that he was not present at the meetings and that he simply understood the officers came back several times. It is clear Mr. Worthy had no knowledge of these facts, but is simply assuming that they occurred. He did reiterate that the first time Mr. Parker came to the jail was the first time he remembered seeing the detectives at the Jail to interview Evans in relation to this case. He had not had a meeting with Dorsey prior to the one in which Parker came to the jail and the only encounter he had was the one with the officers when they had been called to come out to talk to Evans. Id. at 36. Worthy testified that he did not recall talking to Dorsey by himself but he believed Parker and Harris were there. Id. at 37. Mr. Worthy again reiterated that the only encounter he had in which he was asked that Evans be moved was after the interview occurred when Dorsey and several other officers were there. He stated that Hamilton was the first one to ask that was be moved. He reiterated on redirect examination that there was no meeting prior to the time when Parker and the officers came to the jail when anyone had been there to talk to Evans about the Schlatt murder. After being 50m reminded by this Court of the importance of this case, Mr. Worthy testified that there may have been other meetings when he was not present. and did not recall being told of any other meetings. He reemphasized the fact that when he was asked to place Evans near the Petitioner was on the day when Mr. Parker was there. He testified he was first approached by Carter Hamilton and he did not know who asked Carter Hamilton to make the request. He testified that the officer on the case did not directly ask him to make any move. (H.T.III at 65-6). Respondent submits that what the above shows is that Mr. Worthy was confused at best during the first time he testified before this Court. He did not recall specific incidents and appeared to be easily led into agreeing to whatever he was asked. Upon thinking further, Mr. Worthy obviously recalled meeting mvane on the day that Parker and the detectives came out to talk to Evans and also recalled that this was the first time he met Evans. By this time Mr. Worthy had already committed himself to testifying that someone had asked that Evans be moved. As Mr. Worthy was certain that he had not met Evans prior to this occasion and only knew of Evans when Carter Hamilton brought him to his attention, the only way for Mr. Worthy to make his testimony consistent was to say that he had been asked to move Evans when the officers came out. It is important to note that the only name ever given by Mr. Worthy as the person asking that a move be made was that of Carter -51- Hamilton. He did not know who allegedly asked Carter Hamilton to make the move. Carter Hamilton completely contradicts the testimony of Mr. Worthy saying he never made such a request. There 1s no reason to discredit the testimony of Mr. Hamilton. He has testified before regarding this incident and has had better reason to keep his memory refreshed than Mr. Worthy. Mr. Worthy is also not sure who made any such request and, even though he was continually asked whether there was a prior dealing with Dorsey, Mr. Worthy seemed to resolve the confusion and decided he had not seen Dorsey and Evans together at the jail prior to the time that Mr. Parker came to the jail. This Court has asked for logic in order to attempt to explain the inconsistency between the testimony of Mr. Worthy and the testimony of every other witness who testified before. this Court. Respondent submits that there is no way to logically resolve the testimony without concluding that at some point in time a witness was mistaken. When considering the fact that all other witnesses testified consistently in this case, Respondent submits that the only logical conclusion is that Mr. Worthy is simply mistaken about being requested to move Office Evans. He vas uncertain about this point at the first hearing and simply was confused about other details. Although at the time of the second hearing his memory did become clearer as to when he first heard of Evans and when he first met with Evans, he was still obviously confused as to -52-~ whether there was a request for Evans to be moved. As this Court has noted, it would not make sense for a request to move Evans to occur on the day of the meeting as Evans was already in the cell next to the Petitioner. Mr. Worthy was clear, however, that no such request could have occurred prior to that meeting because he did not even know of Evans prior that meeting. One logical explanation is that Mr, Worthy is simply mistaken as to his recollection that a request for a move occurred. Another logical explanation is that Mr. Worthy became aware that Evans had overheard conversations and maybe over the course of time he assumed that Evans was moved so that he could overhear these conversations. Further, the records will reflect that Mr. McCleskey and Mr. Depree were subsequently moved out of isolation pursuant to their various requests and it may have een that Mr. Evans himself made a comment about needing to be moved back near Mr. McCleskey at a later date. All of this is simply speculation; however, i: is no more speculative than the speculation engaged in by the Petitioner, where Petitioner would have this Court make Detec:ive Dorsey out to have committed perjury and to have engaged in a direct violation of the Petitioner's constitutional rights and further to have engaged in an extremely complicated conspiracy to have Evans placed near Mr. McCleskey, to coach Mr. Evans not to tell anyone he had been placed near Mr. McCleskey and to be sure -53- that no one else had any information at all regarding this point. This imputation of such a malicious motive to Detective Dorsey 1s totally unwarranted by the evidences Lerors this Court. Further, one flaw in Petitioner's argument is that if Detective Dorsey were going to such extremes to concoct such an absurd conspiracy, then certainly he would not have volunteered the information that he knew Evans prior to the July 12, 1978, interview. Detective Dorsey seemed rather certain that no one else knew that Evans and Dorsey had had any kind of informant relationship prior to that occurrence. If Detective Dorsey was going to perjure himself so as to deny arranging for Evans to overhear conversations then logic dictates that he would have also denied knowing Evans at all. He did not do that but readily admitted to knowing Evans and testified as to his recollection of prior meetings with Evans. Respondent submits that Petitioner's malevolent actor theory and conspiracy theory simply is not supported by the evidence before this Court but requires this Court to virtually disbelieve the testimony of every witness that testified before ehis dourt and part of the testimony of Mr. Worthy. Rather than simply assume that Mr. Worthy is confused And mistaken as submitted by the Respondent, Petitioner would have this Court assume that Mr. Worthy was somehow convinced to actually change his testimony and that he perjured himself at a subsequent hearing before this Court. Petitioner then would have this Court assume that Detective -54-~- Dorsey committed perjury before this Court and would have this Court assume as well that the other witnesses who testified either committed perjury or were so blind that they simply did not know of this major conspiracy that was on going. Such a conclusion is simply preposterous. Respondent submits that a review of all of the testimony shows that all witnesses except Mr. Worthy testified consistently. It is clear from the testimony of these witnesses that there was no arrangement to have Mr. Evans moved or placed in a cell next to the Petitioner. Mr. Evans in his statement clearly indicated that he had been in the cell next to the Petitioner from the beginning. Mr. Hamilton in his testimony at the original trial indicated that Mr. Evans had been in the cell next to the Petitioner during July of 1978. All other testimony is consistent on this point. It is interesting to note that in his brief the Petitioner asserts that Evans' testimony at the state habeas corpus hearing is totally accurate and there is no reason to believe that Evans' testimony was false or Ont Lived relating to conversations with Dorsey. This is ironic in light of the fact that the Petitioner himself consistently asserted that he never had any conversations with Evans about this case and that Evans has been lying throughout these proceedings concerning the conversations that he had. Now the Petitioner is attempting to vouch for the credibility of Mr. Evans as to a very limited <S8 matter. It should be noted that Detective Dorsey acknowledged meeting with Evans prior to this case, and Evans may well have been thinking about that incident. Harris was emphatic that he had never met Evans prior to this case. Petitioner further asserts that it is clear that Dorsey understood the adverse legal consequences and that he was the only one with no clear recollection of the incident occurring. This ignores the actual testimony before this Court. As noted previously, all witnesses were unclear as to whether Detective Dorsey was present at the meeting and simply relied on Mr. Parker's notes and assumed that Detective Dorsey was present. There is no indication whatsoever that Dorsey understood the adverse legal consequences of his testimony. As noted previously, if Detective Dorsey hac engaged in such a conspiracy and had Ander stood this then it made absolutely no sense for Detective Dorsey to come forward voluntarily with information that he had known Evans prior to this incident. He simply could have denied the knowledge of that as well. In fact, Detective Dorsey was honest in his testinony and testified to the best of his recollection. Respondent concurs with Petiticner's assertion that Evans was apparently not unfamiliar with the prospects of being an informant. It appears from the testimony that Mr. Evans has in the past and subsequently given information to the police and appears to be an inmate who assumes that if he is cooperative «~B6= that he may be able to obtain some benefit. What this shows is that Petitioner knows how to obtain information from other inmates and has been successful in doing so. "this certainly would explain Mr. Evans' engaging the Petitioner in conversations. The Petitioner has asserted that it is strange that there is no indication of Evans' engaging the Petitioner in conversations between July 3rd and July 8th. That may very well be attributable to the fact that until July 8, 1978, Fvans was simply unaware of who the Petitioner and Bernard Depree were. It may very well have been that it was on July 8th, or around that time that the Petitioner and Depree started engaging in conversations. Logically, one could assume that if Evans overheard these conversations, he may simply have become curious and decided to inject himself into them. He had known Ben Wright previously and simply elaborated upon that by albinite to be a relative of Ben Wright perhaps out of his own curiosity or maybe in the hopes that he might find out something beneficial to himself. Evans' prior experience wi:h the prison system may well have led him co believe that if L=» found out valuanle information he might be able to use it to his advantage. Respondent submits that this is a plausible explanation for the conversations engaged in by Evans with the Petitioner and Depree. Respondent submits that a review of all of the above clearly shows that there is no credible evidence that there was -57- any agency or informant relationship with Offie Evans prior to July 12, 1978. Respondent does not concede that any such relationship arose on July 12th, but simply Adtech that sach is irrelevant in light of the notes of Russell Parker. Petitioner has failed to met his burden of proving by a preponderance of the evidence that a Massiah violation has occurred. Respondent would also submit that it is important to note the context in which Evans' testimony was utilized in this case. Mr. Evans was called only as a rebuttal witness and the jurors were instructed to consider his testimony only as impeachment. The Petitioner himself consistently denied even having the conversations with Evans and denies even knowing Mr. Evans. Further, the Petitioner himself offered an alibi defense and asserted he was not even present at the time that the armed robbery and shootings took place. Under these circumstances, Respondent submits that there clearly should be no finding of a Massiah violation, particularly in the context of an abusive habeas corpus petition. “58 iv. BRADY ISSUE, Petitioner finally asserts a violation of .Brady v. Maryland, 373 U.S. 83 (1963), and subsequent cases. Petitioner's basis for this claim is an assertion that the written statement by Offie Evans given on August 1, 1978, is inconsistent with Evans' trial testimony. Petitioner also asserts that there are certain matters never disclosed to him. The only thing that Petitioner can point to that was not actually disclosed was an assertion that the Petitioner stated he panicked and fired the shots. Petitioner has asserted that Mr. Evans was not actually a passive ear but aggressively sought out information and allegedly lied to the jury in stating that his coming forward was involuntary and that he was promised something. He asserts that Mr. Evans also shaded his account of the events. Finally, Petitioner points to two affidavits of jurors which he submits indicate that there was allegedly some eftoct on the outcome of the trial. Respondent would note once agesin for this Court that the affidavits of these jurors are s:mply inadmissible. Respondent has previously cited this Court to authority on this point and will not repeat it at this time, but would note that Petitioner never sought to have these affidavits admitted at any of the hearings before this Court and this Court should 3621 to consider them as they simply are an attempt to impeach the verdict of the jurors. S89. The Supreme Court of the United States has recently taken the opportunity to address allegations relating to Brady violations in United States v. Bagley, 473 U.8. 667 (1987). In that case, the Court reemphasized the holding in Brady which required disclosure "only of evidence that is both favorable to the accused and 'material either to guilt or to punishment.'" Bagley, supra at 674, quoting Brady, supra at 87. Subsequently, in United States v. Agurs, 427 U.S. 97, 104 (1976), the Court stated, "a fair analysis of the holding in Brady indicates that implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial." In Bagley, supra, the question focused on the failure to disclose evidence that might have been used to impeach government witnesses. The Court concluded that any alleged suppression of evidence "amounts to a constitutional violation only if it deprives the defendant of a fair trial . . .-a constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial," Bagley, supra at 677. A plurality of the Court then went on to adopt the reasonab.e probability test for determining materiality, that is, that there is a reasonable probability that "the result of the trial would have been different.” Id. at 684. In a concurring opinion, Justice White also ‘agreed with the plurality opinion that the A reasonable probability standard would be sufficient to cover all instances of failure to disclose favorable evidence. Thus, as the Eleventh Circuit Court of Appeals has noted, the "reasonable probability" test should be utilized for determining materiality of undisclosed evidence. United States V. Severdila, 790 F.2d 1556, 1560 n.2 (llth Cir. 1986). Thus, "evidence is 'material' if there is a reasonable probability that, but for the failure to produce such evidence, the outcome of the case would have been different." United States v. Barragan, 793 F.2d 1233, 1258 (11th Cir. 1986) (emphasis added). In the instant case, it is clear that the prosecution did not provide Evans' statement to the defense. Respondent submits, however, that this statement is not material under the standards set forth in Bagley. In order to make this determination it is first necessary to eianine the trial of this case. At the trial, Carter Hamilton testified only in rebuttal as to his contact with Evans. According to Hamilton, "he sent a note and said he would like to talk to me." (T. 861). Petitioner has asserted that Evans lied to the jury regarding an allegation that he came forward involuntarily. Clearly, the testimony of Hamilton itself points out this so-called inconsistency and the failure to disclose the statement of Evans is not material in regard to this information. Evans himself then testified at trial. As noted in the prior decisions of this case, there was a vast amount of impeachment evidence already presented to the jury concerning Mr. Evans' prior convictions and motivations for testifying. During direct examination, Mr. Evans testified that he did carry on conversations with the Petitioner and Bernard Depree. He specifically testified about entering into a conversation with Petitioner as to who shot a police officer. Evans testified as follows: We talked around there about two or three days and we got into a conversation about Ben [Wright], and so he -- of course, I told him that I knowed (sic) Ben real good, that we used to be together a lot, and I told him that I had been seeing Ben since that robbery, but I hadn't seen him you know, so we kept ‘on talking, and so we just kept talking until he started about how the robbery went down and how it was, and he told me, said he went in and checked the place out a few days before they robbed it, but then they went back to rob it. (T. 870). Petitioner has asserted that somehow Evans implied to the jury that he was a passive ear. This testimony of Evans We Jp fo alone shows that Evans actively engaged in conversations with the Petitioner, gave the Petitioner statements about his prior knowledge of Ben Wright and that this was not information directly volunteered by the Petitioner but came out during the course of conversations they had. Mr. Evans did testify that the Petitioner told him that Petitioner had been to the store a few days earlier. Petitioner had indicated in his prior statement that Mary Jenkins actually went and checked the place out a few days earlier, but in the statement of Evans, he went on at the same time to state, "McCleskey said that he double-checked the place the same day they robbed the place." (Evans' statement at 3). Thus, the Petitioner did tell Evans that he went and checked out the store, the only inconsistency is whether he did it a few days before or actually on the day of the robbery. This does not rise to the standard of materiality set forth in Bagley, supra. Petitioner has attempted to relitigate the claim of a violation of Giglio v. United States, 405 0.8. 150 (1972), by saying that Evans lied to the jury about being promised anything for his testimony. As noted previously, this issue has been litigated thoroughly in this case and is not open for review at this time. Finally, Petitioner asserts that Evans' statement refers to the Petitioner having panicked at the time he shot and that Er this was not testified to at trial. During the statement, Evans indicated that McCleskey told him, "and he [McCleskey] said that he knowed right then that it was going to have to be him or McCleskey one. Cause the police was headed toward where Ben was back there. And McCleskey said that he panicked, he just shot. McCleskey did not say how many times he shot or nothing." (Evans' statement at 6). Subsequently during the statement, Evans relayed that Petitioneritold him, "That when he was going to rob that he was looking for life and death, that he would rather live all his live in a penitentiary than to be dead. That he didn't give a damn if it had been a dozen of them son of a bitches that he would still have tried to shoot his way . . . ." (Evans' statement at 16). Evans testified as follows as trial: He [McCleskey] said he was in there when the police come in, but like the police wasn't expecting no robbery, but said after he seen the police come in and he was heading towards the other three, what was in the court -- I mean in the place taking the robbery off, he said that he couldn't stand to see him go down there, and I think the police looked around and seen him and he said, "Halt," or something, and he had to -- it was him or them one, and said that he had to shoot. Bi (7. 870). He also repeated the statement made by the Petitioner that if it had been a dozen policemen he would have shot his way out, AT. . 871). A comparison of the above shows that while Evans did not specifically use the word "panic” he did indicate to the jury on one occasion that Che Petitioner was simply placed in a position where he felt he had to shoot. Respondent submits that the distinction in using the work "panic" simply is immaterial when considered in light of the other statements which the Petitioner did make to Evans that he would have shot his way out if there had been a dozen policemen. In considering this information under the materiality standard set forth in Bagley, supra, it is clear that it would have no effect on the outcome of either the guilt/innocence trial or the sentencing phase. This is particularly true in light of the fact that the Petitioner adamantly denied not only not making the statements to Evans at all, but totally denied committing the crime. This is not a circumstance in which the Petitioner testified and said he committed the crime but it was an accident or he did not mean to commit the crime. He testified and denied having anything to do with the robbery or shooting. Thus, under Bagley, supra, the statement concerning panic would not have affected the outcome of the trial or sentencing phase. 55 Respondent submits that reviewing the above clearly shows that there is no Brady violation present in the instant case as Petitioner has failed to show that there was any information which was material ender the standard set forth in Bagley, that is, Petitioner has failed to show that there is a reasonable probability that the evidence would have affected the outcome of the trial. Therefore, this allegation is clearly without merit. ~66« CONCLUSION Respondent submits that as set forth and argued consistently to this Court, the instant petition should be dismissed as an abuse of the writ. Further, Respondent would submit that Petitioner has failed to set forth a violation of either Brady v. Maryland, supra or Massiah v. United States, supra. Therefore, Respondent prays that this Court either dismiss the instant petition as an abuse of the writ or find that all allegations raised are without merit. Respectfully submitted, MICHAEL J. BOWERS 071650 Attorney General MARION O. GORDON 302300 First Assistant Attorney General '™ ; . / ld R 354725 Senior Assistant Attofney General A a ELAND 138%pP0 ant Attorney General </#f MARY BETH WESTMORELAND 132 State Judicial Building 40 Capitol Square, S. W. Atlanta, Georgia 30334 (404) 656-3349 «BF CERTIFICATE OF SERVICE I do hereby certify that I have this day served the within and foregoing pleading, prior to filing the same, by depositing a copy thereof, postage prepaid, in the United States Mail, properly addressed upon: Robert H. Stroup 151 Walton Street Atlanta, Georgia 30303 John Charles Boger 99 Hudson Street New York, New York 10013 This nl day of September, 1987. -B3= IN THE UNITED. STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION WARREN McCLESKEY, Petitioner, - against - RALPH M. KEMP, Superintendent, Georgia Diagnostic & Classification Center, Respondent. No. C87-1517A PETITIONER’S POST-HEARING REPLY BRIEF ROBERT H. STROUP 141 Walton Street Atlanta, Georgia 30303 (404) 522-8500 JOHN CHARLES BOGER 99 Hudson Street New York, New York 10013 (212) 219-1900 ATTORNEYS FOR PETITIONER WARREN McCLESKEY IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION WARREN McCLESKEY, Petitioner, - against - No. C87-1517A RALPH M. KEMP, Superintendent, Georgia Diagnostic & Classification Center, Respondent. LX J o e o o r a LX J LX J e e (X K o 0 0 0 0 0 0 0 o o PETITIONER’S POST-HEARING REPLY BRIEF Petitioner Warren McCleskey submits this brief in rep’'y to the post-hearing brief submitted by the respondent, lated September 28, 1987. The merits of petitioner’s Massiah and lrady claims have been set forth in petitioner’s opening brief. In this reply, we will limit our focus to respondent’s contention that petitioner has abused the writ of habeas corpus. I PETITIONER DID NOT ABUSE THE WRIT OF HABEAS CORPUS, AND HIS MASSIAH A AND MOONEY/BRADY CLAIMS ARE RIPE FOR DECISION BY THIS COURT ON THEIR MERITS A. Petitioner’s Massiah Claim Petitioner’s present claim under Massiah v. United States was neither presented nor decided in his initial federal petition. Therefore, under Rule 9(b) of Rules Governing Section 2254 Cases, the Court should consider the merits of this claim unless there has been "an abuse of the writ" under traditional equitable principles. Sanders v. United States, 373 U.S. 1, 17- 18 (1963); Moore v. Kemp, 824 F.2d 847, 851 (11th Cir. 1987) (en banc); Potts v. Zant, 638 F.2d 727, 740-41 ( 5th Cir. Unit B 1981). Petitioner’s conduct would constitute an abuse of the writ "only if due to ‘inexcusable neglect,’ Townsend [v. Sain, 372 U.S... 293, 317 (1963) ] ' .«..; Or’ M":an intentional relinquishment or abandonment of a known right or privilege, "’ Fay [v. Nola, 372 U.S. 391, 439 (1963)]." Paprsxar V. Estelle, 612 F.2d 1003, 1006 (5th Cir. 1980). In the paragraphs below, we will first examine whether petitioner’s condict constituted "inexcusable neglect," and then discuss whetter, after his initial state habeas proceeding, petitioner somehow "deliberately abandoned" his Massiah claim. (i) Petitioner’s Investigation of A Massiah Claim Did Not Constitute "Inexcusable Neglect" During the July, 1987 hearing, the State offered two possible reasons why petitioner’s Massiah claim has come too late and should not now be considered on its merits. First, it 2 suggested that in light of the inherently suspicious circumstances of Offie Evans’ incarceration near petitioner McCleskey, defense counsel should have suspected and investigated such a claim. Second, it contended that counsel should long ago have uncovered Evans’ 2l-page written statement which itself points toward an active informant relationship. We will address each of these contentions separately. It is not "inexcusable neglect" within the meaning of Sanders for a petitioner to omit a federal claim "if he proves by a preponderance of the evidence that he was ignorant of facts necessary to support the new ground when he filed his prior habeas corpus petition." Booker v. Wainwright, 764 F.2d 1371, 1376 (11th Cir. 1985); Haley Vv. Estelle, 632 F.24 1273, 1275 {5th Cir. Unit A 1980). The most celebrated case on this point, one nearly four-square with petitioner’s, is Price v. Johnston, 334 U.S. 266 (1948). The petitioner in Price had filed an initial federal petition in which he had raised a challenge to certain evidence on Fourth Amendment grounds. In passing, he also called the court’s attention to two different and contrary statements made at trial by the prosecution’s chief witness. Subsequently, on an amendment to his fourth federal petition, the petitioner alleged that the prosecution had knowingly induced the key witness, during a break in the trial, to change his story and give false testimony. 334 U.S. at 287. Although the petitioner had from the outset a strong basis to suspect misconduct, because of the alteration of the witness’ story after a mid-trial 3 conference with the prosecutor, the Supreme Court rejected the dismissal of his claim as an abuse. It distinguished cases in which a petitioner had full access to "proof [of the claim] which was accessible at all times." 334 U.S. at 289. The Court refused in Price to "assume that petitioner [Price] has acquired no new or additional information since the time of the trial or the first habeas corpus proceeding that might indicate fraudulent conduct on the part of the prosecuting attorneys." 334 U.S. at 290. Another powerful precedent is Guice v. Fortenberry, 661 F.2d 496 (5th Cir. 1981) (en banc), in which the former Fifth Circuit, sitting en banc, was called upon to apply the "inexcusable neglect" standard.l Reviewing a request for a federal hearing made by a habeas petitioner -- who had previously received a state hearing on the same constitutional claim, but who had omitted to present known evidence at that hearing -- the Court reasoned as follows: The neglect of Guice and [his co-defendant] ... to develop the crucial facts is not explained by the record. There is no substzntial allegation that the petitioners made a tactical choice to leave the evidence undeveloped. It «¢ppears more likely that, based on the inartful and scattershot nature of the various motions, the defendants and their attorneys did not appreciate fully the relevance of the missing 1The Supreme Court in Sanders held that the "principles developed in ... Fay v. Noia and Townsend v. Sain govern equally" in the ascertainment of possible abuse of the writ. Sanders v. United States, 373 U.S. 1, 18 (1963). The federal courts have, therefore, consistently turned to Townsend and Fay to judge whether a habeas applicant has been guilty of "inexcusable neglect" or "deliberate abandonment." See, e.qg., Potts v. Zant, 638 F.2d at 741; Paprskar v. Estelle, 612 F.2d at 1006. 4 evidence. Such neglect is not inexcusable within the meaning of Fay v. Noia. Guice v. Fortenberry, 661 F.2d at 507 (emphasis added). The Guice majority relied explicitly upon the Supreme Court’s reasoning in Townsend Vv. Sain, There, counsel for a habeas applicant, alleged that his client’s confession had been drug- induced; he nevertheless failed at an initial hearing to elicit any testimony from his expert witness on the effects of the drug administered to his client. Defense counsel’s failure to obtain critical testimony from his own witness obviously was "neglectful" but, the Supreme Court held, not "inexcusably" so: Under the circumstances, disclosure of the identity of [the drug] ... as a ‘truth serum’ was indispensable to a fair, rounded development of the material facts, and the medical experts’ failure to testify fully cannot realistically be regarded as Townsend’s inexcusable default. Townsend v. Sain, 372 U.S. at 322. See, also, Ross v. Kemp, 785 P.24 1467, 1278 (lith. Cir. 1986) ("reliance on misrepresentations" by key State actor would constitute "excusable action.") In this case, Mr. Stroup had a strong basis for suspecting that Offie Evans might have been acting under State authority, since Evans, a federal priscner, had been placed in a county jail, in solitary confinement, directly adjacent to petitioner McCleskey. Stroup did not, however, neglect to investigate these circumstances. To the contrary, he began a wide-ranging inquiry, first questioning officers of the Atlanta Bureau of Police Services about the possible use of informants, then speaking with 5 two or three jailors at the Fulton County Jail to learn what they might know of Offie Evans’ incarceration, then deposing Assistant District Attorney Russell Parker about a possible informant relationship, and finally questioning Evans directly about the issue during state habeas corpus proceedings. (Fed. Tr. I. 31 38). None of the Fulton County jailors Know anything about such a relationship. (Fed. Tr. I..32-33) District Attorney Parker testified as follows: Q. 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 [sic] of Mr. McCleskey? A. I don’t know of any instance that Offie Evans had worked for the Atlanta Police Department as an informant prior to his overhearing conversations at the Fulton County Jail. ; : : (Pet. Ex. 3, 14-15). Evans himself revealed nothing to confirm an informant relationship. Having thus been assured by the prosecutor -- on behalf of himself and the Atlanta police -- and by the suspected informant, under oath in a state habeas hearing, that no informant relationshis> ever existed, it was hardly "inexcusable" of Mr. Stroup, who was pursuing over twenty additional constitutional claims on his client’s behalf, to conclude that Evans, appearances to the contrary notwithstanding, had not served as a State informant.?2 2 The State in its brief faulted Mr. Stroup for not speaking directly with Detectives Harris and Dorsey. Even were an attorney normally required to interview every police officer in a case to avoid a finding of "inexcusable neglect" -- something the law uniformly rejects -- it was plainly demonstrated during the * * * * %* The State’s alternative theory of "inexcusable neglect" depends on its argument that defense counsel should have obtained Evans’ 2l-page written statement prior to 1987. Yet evidence presented to the Court during the July, 1987 hearing demonstrates that petitioner’s trial and habeas attorney repeatedly and diligently sought all such statements, but were denied access to them and even misled by various State actors, perhaps inadvertently, about their very existence. Prior to petitioner’s 1978 trial, John Turner, petitioner’s trial attorney, filed one or more pretrial motions under Bradv v. Maryland, 373 U.S. 83 (1963), seeking all written or oral statements made by petitioner and all exculpatory evidence.3 After conducting an in camera review, the trial court denied petitioner access to such documents, holding without elaboration that they were "not now subject to discovery." [Pet. Ex. 5}. The trial court’s order cortained absolutely nothing to indicate that among the documents withheld was any written statement of" Offie Evans. In fact, actording to prosecutor Russell Parker, Turner was never informed about the nature or content of the July and August, 1987 hearings that, had Stroup contacted these detectives, they would not have given him evidence that would have led to disclosure of the Massiah violation; both repeatedly disclaimed all knowledge of the violation, even under oath in this Court. 3Although there is some dispute about whether the documents proffered as Petitioner’s Exhibit M. to the federal petition are the precise documents filed by Turner (see Fed. Tr. I, 73-81), it is not disputed that Brady motions were filed. (Id. 78). 7 items submitted to the trial court for in camera inspection. (Pet. Ex. 3, at 8). At trial, during the State’s cross-examination of petitioner McCleskey, defense counsel Turner once again sought to determine whether any statements implicating his client had been obtained by the State: MR. TURNER: 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. I asked for all written and oral statements in my pre-trial motions. If he has something he hasn’t furnished me, I would object to getting into it now. THE COURT: Well, he has a statement that was furnished to the Court but it doesn’t help your client. MR. TURNER: I am not dealing with that part of it. I am saying I asked him -- MR. PARKER: It’s not exculpatory. THE COURT: You are not even entitled to this one. MR. TURNER: I am entitled to all statements he made. That is what the motion was filed about. THE COURT: This is not a statement of the defendant. MR. TURNER: We are not talking about a statement of the defendant. THE COURT: I don’t know that we are talking about any written statement. MR. TURNER: I am saying I filed for oral and written statements. I asked for all statements of the defendant. THE COURT: Let the record show I wrote you and made it of record. It is not admissible and what he is doing is in the Court’s opinion proper. (Pet. Ex. 6, 830-31) (emphasis added)). The trial court thus not only denied this second defense request; it affirmatively, and inexplicably, stated, "I don’t know that we are talking about any 8 written statement," (id. 831), obviously suggesting that no such statement existed at all. On appeal to the Supreme Court of Georgia, Turner contended that the State’s refusal at trial to turn over what Turner plainly believed to have been an oral statement by Offie Evans had violated petitioner’s rights. The Georgia Supreme Court denied the claim and upheld the State’s position, explicitly stating in its opinion that "[t]he evidence [the defense counsel] sought to inspect was introduced to the jury in its entirety." McCleskey v, State, 245 Ga. 108, 263 3.F.24 146, 150 (1980) (emphasis added). Thus, trial counsel made at least three separate attempts to obtain relevant statements from the State: not only were all denied, but the trial court and the Georgia Supreme Court implied that no written statement existed or that, if one did, it added nothing to the testimony presented orally at trial. As John Turner testified during state habeas proceedings, "I was never given any indication that such a statement existed." (St. Hab. Tr. 77). Turner’s pursuit of this evidence, far from "inexcusable neglect," constituted diligent =-- even exemplary-- defense work. Petitioner’s present counsel, Robert Stroup, was himself guided throughout state habeas corpus proceedings by his review of the trial and appellate proceedings, from which he drew the impression that no written statement of Offie Evans existed, but only an "oral statement ... introduced in its entirety through 9 Evans’ testimony at trial." (Pet. Ex. 1, at 2; see also id., at 8). Nevertheless, Mr. Stroup, sought the prosecutor’s investigative file and obtained, during the prosecutor’s deposition, an agreement for production of "the entire file" made available to defense counsel. (Pet. Ex. 3, 4-6). Subsequently the Assistant Attorney General handling the case mailed to Mr. Stroup and the court reporter a large number of documents, reciting in his transmittal letter that he was "[e]nclos[ing] ... a complete copy of the prosecutor’s file resulting from the criminal prosecution of Warren McCleskey in Fulton County." (Pet. Ex. 27). The 21-page written statement of Offie Evans was not included. (Pet. Ex. 2, at 3). The State has nevertheless suggested that Mr. Stroup should have. fealized that Evans’ weltten statement existed pecalise of one oblique reference made by prosecutor Parker during his state deposition.?4 The exchange in question began with a question by Mr. Stroup, obviously premised on the assumption that Evans had given police only an oral statement: "Okay. Now, I want to direct your attention to a statement f'om Offie Evans that was introduced at Warren McCleskey’s trial." (Pet. Ex. 3, at 8). The prosecutor responded, "Okay. When you referred to a statement, Offie Evans gave his statement but it was not introduced at the 4 The state suggests in its brief that the state habeas court found that a written statement by Evans existed. To the contrary, all the state court held, even implicitly, was that Evans had spoken with Atlanta police and prosecutors prior to trial and had given a "statement," which could easily have been oral. 10 trial. It was part of that matter that was made in camera inspection by the judge prior to trial." (Id.) Mr. Stroup immediately replied. "All right. Let me make clear what my question was, then. Offie Evans did in fact give testimony at the trial -- let me rephrase it. When did you learn that Offie Evans had testimony that you might want to use at trial?" (Id.) Mr. Stroup has subsequently averred that Parker’s comment, at page 8 of the deposition, ... 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. When the deposition transcript became available to me for review, I already had [Assistant Attorney General] Nick Dumich’s letter reflecting his understanding that what we were dealing with was a complete copy of the prosecutor’ 8 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. (Pet. Ex. 2, 9-10). After reviewing the sequence of events, this Court observed during the July 8-9, 1987 hearing: The statement was clearly important. It arguably has favorable information. It wasn’t tured over. I don’t think that there’s anything -- the oaly thing frankly that clearly indicates that Mr. Stroup should have known there was a statement is Riss Parker’s one comment in the habeas, and it is clear to me that Mr. Stroup didn’t understand what was told him. 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 [as] ... are raised by that statement ... So I will allow the statement to be admitted into evidence on the merits. (Fed. Tr. 118-19). This Court’s holding is fully consistent with Sanders, 11 Townsend, Guice, Paprskar and other relevant federal precedents. If it is not "inexcusable," as those cases teach, to neglect to introduce known, available evidence in a state hearing, surely it is not "inexcusable" to misunderstand the significance of an obscure, non-responsive remark in a post-hearing deposition that contravenes a long series of clear and repeated assurances by various State actors, implying that no undisclosed written statement existed. This Court’s decision to reach the merits of the claim, moreover, implicitly recognizes the principle that "the ends of justice” can require consideration of petitioner’s claim even if an attorney’s conduct could in some way be deemed an abuse of the writ. See Sanders v. United States, 373 U.S. at 18-19. As this Circuit has observed on several occasions, even if a successive petition could otherwise be dismissed without consideration on the merits, the ends of justice may nevertheless induce -- and may even require -- the district judge to exercise his discretion to address the merits ... The fact that a man’s life is at stake is relevant. Also relevant is the fact that [the petitioner] would be executed without ever having had any federal review of the merits .... Potts Vv. Zant, 638 P.248 727, 752 (3th Cir. Unit B. 3981). Accord: Potts Vv. Kemp, 764. F.24 13869, 1370-71 (Iieh: Cir. 1985) ("’[i]f a petitioner is able to present some "justifiable reason" explaining his actions, reasons which "make it fair and just for the trial court to overlook" the allegedly abusive conduct, the trial court should address the . successive petition’). 12 In petitioner’s case, the serious nature of the constitutional violation, the State’s repeated refusal to turn over the relevant evidence, and the life-or-death stakes, all combine to require full consideration of the merits in the interests of justice. (ii) Petitioner Did Not Knowingly or Intelligently Abandon His Massiah Claim In its recent submission to this Court, respondent has argued that petitioner may have "deliberately abandoned" his Massiah claim, and in that way might have disentitled himself to full consideration of its merits under the second branch of Sanders’ abuse-of-the-writ doctrine. Mr. Stroup acknowledged that he had in fact pleaded a Massiah claim in his initial state habeas petition, that he had investigated the claim, and that he had unsuccessfully sought to adduce evidence in support of that claim during the state hearings. (Fed. Tr. I, 31-43). Mr. Stroup explained that he did not carry the Massiah claim forward in his initial federal petition, however, becaus:2 he had been unable factually to substantiate it: -... I looked at wha‘. we had been able to develop in support of the claiin 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. (Fed. Tr. I, at 44). A close review of the "deliberate abandonment" branch of Sanders, establishes that petitioner’s conduct did not constitute an abuse. Perhaps the most comprehensive discussion of this 13 issue is contained in Potts v. Zant, 638 F.2d 727 (5th Cir. Unit B 1981). The Court in Potts notes that "the definition of waiver enunciated in Johnson vv. Zerbst, 304 U.S. 458 -- i.e., the intentional relinquishment or abandonment of a known right or privilege -- [is] one necessary element inter alia in finding a deliberate bypass." Potts v. Zant, 638 F.2d at 741 (emphasis added). Deliberate abandonment, in other words, must be "knowing and intelligent" as well as "deliberate" in order to constitute an abuse. Id. 743-44. The Potts majority pointed to the case of Wong Doo v. United States, 265 U.S. 239 (1924), cited by the Supreme Court in Sanders, in support of its analysis: {Iln the Sanders opinion, the Court characterized Wong Doo’s -... actions as being in bad faith. The Supreme Court stated: ‘The petitioner had full opportunity to offer proof of [the ground] at the hearing on the first petition; and if he was intending to rely on that ground, good faith required that he produce the proof then. To reserve the proof for use in attempting to support a later petition, if the first failed, was to make an abuse of the writ of habeas corpus. No reason for not presenting the proof at the outset is offered. 265 U.S at 241 (emphasis added). This passage, read in its entirety, indicates “hat Supreme Court’s conviction of the bad faith of the jetitioner in Wong Doo. Potts v. Zant, 638 F.24 at 74:5. Petitioner McCleskey, by contrast did not "reserve the proof" of a Massiah violation during his initial state habeas hearings for later use in a second federal petition. Instead, he pleaded the claim in good faith in state court =-- without any direct or conclusive evidence =-- and sought vigorously to establish the claim at the state hearing. Yet the prosecutor in 14 charge of the case flatly testified, "I don’t know of any instance that Offie Evans had worked for the Atlanta Police ‘Department as an informant prior to his overhearing conversations at the Fulton County Jail," (Pet. Ex. 3, Parker Dep., at 15), and Mr. Stroup was unsuccessful in his attempt to tie the fact that Offie Evans had regularly served as an informant for the State in various other cases to his conduct in this case. (St. Hab. Tr. 123-133). In short, after the State hearing, petitioner found that he had not uncovered firm evidence upon which to base a federal claim. Unlike Wong Doo, who "reserve[d] the proof for use in attempting to support a later petition," petitioner here reviewed everything he had uncovered: it was simply not enough to make out a claim. : | The en banc Court of Appeals has recently held that, "the inquiry into whether a petitioner has abused the writ ... must consider the petitioner’s conduct and knowledge at the time of the preceding rederal application." Moore v. Kemp, 824 F.2d at 851. This holding is consistent with the court’s earlier treatment of claims: predicated on newly discovered facts: The petitioner may avoid dismissal if he proves by a preponderance ‘of the evidence that he was ignorant of facts necessary to support the new ground when he filed his prior habeas corpus petition. Booker v. Wainwright, 764 F.2d 1371, 1376 (11th Cir. 1985); Haley v. Estelle, 632 F.2d 1273, 1275 (5th Cir. 1980) ("it is clear that a petitioner cannot be charged with having abused the writ of habeas corpus if, at the time of his earlier petition, he was 15 unaware of the facts on which his earlier claims are based"); see also HKalker v. Lockhart, 763 F.2d 942, 955 n.26. (8th Cir. 1985) (discovery of evidence suppressed by the State permits consideration of previously asserted claim in a successive petition); Sockwell v. Maggio, 709 F.2d 341, 344 (5th Cir. 1983) (per curiam) ("[i]f a petitioner’s unawareness of facts which might support a habeas application is excusable .. the subsequent filing is not an abuse of the writ") Applying this line of reasoning to petitioner McCleskey’s case, it is plain that his counsel did not "deliberately abandon" his Massiah claim. He acted neither "in bad faith" nor with a purpose "to vex, harass, or delay," Sanders v. United States, 373 U.S. at 18 in deciding not to go forward with his claim in; federal court. Instead, counsel Vas singly unable, even after a substantial state investigation, to uncover the well-concealed facts that now prove Evans’ informant relationship. These ficts establishing Evans’ relations with State authorities, as this Court now knows, have been brought to light only through the serendipitous discovery, in June of this year, of Evans’long-suppressed 2l-page statement, followed by a difficult and protracted federal hearing involving the actions of numerous reluctant, sometimes hostile, State witnesses =-- almost all afflicted with lapses of memory and similar disabilities. Petitioner’s "relinquishment or abandonment" of his Massiah claim under these circumstances was neither "knowing" nor "intentional" within the accepted meaning of Sanders and its progeny. 16 "[T]ested under equitable principles," Potts v. Zant, 638 F.2d at 743, it is Stae official, if anyone, not petitioner, who has acted in bad faith. B. Petitioner’s Moonev/Bradvy Claims Petitioner’s constitutional claims under Mooney v. Holohan, 294 U.S. 103 (1935) and Brady v. Maryland, 373 U.S. 83 (1963) have been asserted for the first time in his second federal petition. (See Fed. Petition qq 28-36). They rest upon newly discovered evidence -- Offie Evans’ 2l-page written statement-- which first was made available to petitioner by State officials on June 10th of this year. Prior to that time, as petitioner has demonstrated above, his trial and habeas counsel had made repeated, but unavailing efforts to obtain all such statements from the State. Under Sanders and Rule 9(b), as noted above’ these new claims constitute an abuse only if the failure to present them in petitioner’s initial federal petition constituted "inexcusable neglect" or "deliberate abandonment." For the reiisons set forth above, counsel’s conduct does not constitute "inexcusable neglect" barring consideration of these claims on their merits. Lacking any effective means, absent the written statement, to prove that Offie Evans’ trial testimony was false or misleading, or that the State had withheld exculpatory evidence, petitioner was unable to assert those claims in a prior petition. Nor did petitioner ever previously raise and "abandon" these claims in his prior petitions. Therefore, they should now be addressed on their merits. Booker v. Wainwright, 764 F.2d at 17 1376; Haley v. Estelle, 632 F.2d at 1275. CONCLUSION The Court should grant the petition for writ of habeas corpus and vacate petitioner’s conviction and death sentence. Dated: October 1, 1987 Respectfully submitted, ROBERT H. STROUP 141 Walton Street Atlanta, Georgia 30303 (404) 522-8500 JOHN CHARLES BOGER 99 Hudson Street New York, New York 10013 (212) 219-1900 By Attorneys for Petitioner Warren McCleskey 18 CERTIFICATE OF SERVICE I hereby certify that. I have this day prior to filing, served a copy of the within Petitioner’s Reply Brief upon: Mary Beth Westmoreland, Esq. Assistant Attorney General 132 State Judicial Building ~ 40 Capitol Square, S.W. Atlanta, Georgia 30334 counsel of record for Respondent, by causing a copy of same to be mailed to counsel at the above address. This day of October, 1987. ROBERT H. STROUP IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION WARREN McCLESKEY, e e LX ] 0 Petitioner, - against - RALPH M. KEMP, Superintendent, Georgia Diagnostic & Classification Center, Respondent. PETITIONER’S POST-HEARING No. C87-1517A MEMORANDUM OF LAW ROBERT H. STROUP 151 Walton Street Atlanta, Georgia 30303 (404) 522-8500 JOHN CHARLES BOGER 99 Hudson Street New York, New York 10013 (212) 219-1900 ATTORNEYS FOR PETITIONER WARREN McCLESKEY II. III. TABLE OF CONTENTS The Credible Record Evidence in This Case Establishes That The State Actively Solicited Offie Evans To Be An Undercover Informant, And That Evans Deliberately Elicited Incriminating Statements From Jail Inmate Warren McCleskey Which Were Used Against Him At Trial ... 1 A. Ulysses Worthy’s July 9th Testimony: The Prima Faclie CASE «cuversvvsessinseessinesetse ios Sewn J 2 B. Other Record Evidence Consistent With Worthy’s ACCOMNE ties venisivenst eins e'snss sme somisiossoiveinnsivoees 4 C. Worthy’s August 10th Testimony eee ececiveeees seve neni, 20 D. The Testimony of District Attorney Parker .......... 16 E. The Testimony of Deputy Hamilton ..... Sin sieietn ene io wie vie 18 Pr. The Other Police Witnesses ........ eine wibisie Winey vie AR G. The Testimony of Detective Dorsey ..... ov 0 0infuie sinie sno 20 BH. COnCLasSIoOn coco in, ca eminies tine rains ne anise eon ve. 24 Offie Evans’ Actions As A State Informant Violated Warren McCleskey’s Sixth And Fourteenth Amendment Rights Under Macaish VV. United Chats vuee sr oneioveveesionenem oo 25 The State Failed To Disclose To Defense Counsel (i) Significant Conflicts Between Offie Evans’ Trial Testimony And His Earlier Written Statement and (ii) Important Exculpatory Evidence, All In Violation Of Petitioner’s Right To The Due Process Of Law ...ceee.. 29 CONCLUSION +veesvess so siss sores en PEN ar Un entininnn sess evedens 37 THE CREDIBLE RECORD EVIDENCE IN THIS CASE ESTABLISHES THAT THE STATE ACTIVELY SOLICITED OFFIE EVANS TO BE AN UNDERCOVER INFORMANT, AND THAT EVANS DELIBERATELY ELICITED INCRIMINATING STATEMENTS FROM JAIL INMATE WARREN McCLESKEY WHICH WERE USED AGAINST HIM AT TRIAL A. Ulysses Worthy’s July 9th Testimony: The Prima Facie Case During this Court’s July, 1987 hearing on Warren McCleskey’s constitutional claims, Ulysses Worthy, who had for twelve years been captain of the day watch at the Fulton County Jail (Fed. II 146)1 gave testimony that suffices to establish a prima facie violation of Massiah v. United States, 377 U.S. 201 (1964). Specifically, Mr. Worthy told of a 1978 conversation between Atlanta police Sebective Sidney Dorsey and Fulton County inmate Offie Evans which took place in his presence at the Fulton County Jail. (Fed. II 148). During this conversation, Detective Dorsey, (or perhaps some other "officer on the case") requested Evans "to engage in conversations with somebody ... in a nearby cell." (Fed. II 148-49). Mr. Worthy confirmed that Dorsey’s targeted inmate was Warren McCleskey, who was being held in isolation awaiting trial following his indictment for murder and armed robbery. Mr. Worthy recalled, in other words, that the Atlanta lEach reference to the transcript of the July 8, 1987 hearing in this Court will be indicated by the abbreviation "Fed. I.” References to the transcript of the July 9, 1987 continuation of the hearing, which is separately numbered, will be indicated by the abbreviation "Fed. II." References to the transcript of the August 10, 1987 hearing will be indicated by the abbreviation "Fed. III." 2 police officer "asked Mr. Evans to engage in conversations with McCleskey who was being held in the jail." (Fed. II 150). As captain of the day watch, Worthy acknowledged that he occasionally received requests from Atlanta police officers to place one inmate in a cell next to another so that police could obtain information on pending criminal cases. (Fed. II 152). In the McCleskey case, Worthy specifically recalled that "[t]he officer on the case," made such a request to him. (Fed. II 153). In response to the request, Offie Evans was moved from another part of the Fulton County Jail to the cell directly adjacent to Warren McCleskey’s cell: Q. [By the State]: Mr. Worthy, let me see if I understand this. Are you saying that someone asked you to specifically place Offie Evans in a specific location in the Fulton County Jail so he could overhear conversations with Warren McCleskey? A. Yes, ma’am. (Fed. II 153). The 21l-page written statement given by O0Offie Evans to Atlanta police on August 1, 1978, demonstrates that Evans made the most of this opportunity. Not content to be a passive "ear," Evans actively and aggressively sought out McCleskey from his adjoining cell, he courted McCleskey’s trust, and repeatedly lied to him and to his partner Bernard Dupree: I told Warren McClesky [sic] ‘I got a nephew man, he in a world of trouble ...’ McClesky asked me ‘What is his name.’ I told him ‘Ben Wright.’ McCleskey said ‘You Beens’ [sic] uncle.’ I said ‘Yeah.’ He said ’‘What’s your name?’ I told him that my name was Charles. (Pet. Bx. 8, at 3). After falsely assuring McCleskey that he "used to stick up with Ben," and that "Ben told me that you shot the man yourself," (Pet. Ex. 8, at 4), Evans began to pry open the story of the crime. "I said man ‘just what’s happened over there." (Id.) Even after McCleskey told him some details of the crime, Evans continued his surreptitious interrogation: "And then I asked McClesky what kind of evidence did they have on him." (Pet. Ex. 8, at 86). In a subsequent conversation, Evans obviously sought to learn the location of the missing murder weapon: "Then I said, ‘They ain’t got no guns or nothing man?’" (Pet. Ex. 8, at 7). When Bernard Dupree overheard their conversation from his cell upstairs and became apprehensive, Evans worked hard to allay Dupree’s suspicions, wealking to Dupree about Reidsville [and] just about ma(king] Dupree know me himself." (Pet. Ex. 8, at 9). After Evans had obtained sufficient information, he sent word back to Atlanta detectives, who came out with Assistant District Attorney Russell Parker for an extended meeting. Mr. Worthy recalled that, following the initial meeting between Detective Dorsey and Evans, "Mr. Evans requested at some later occasion to call those detectives" who "were out several times." (Fed, II 151). Worthy recalled a meeting, attended by Evans Assistant District Attorney Russell Parker and Detective Welcome Harris, which took place in Worthy’s office. During the meeting, Evans presented the fruits of his undercover interrogations -——0 series of alleged admissions by Warren McCleskey which became the 4 linchpin of the State case against McCleskey at the guilt and penalty phases of his trial. (See Pet. Ex. 4). The constitutional significance of this course of conduct is virtually indisputable: if credited, Worthy’s testimony reveals a classic Massiah violation perpetrated against Warren McCleskey. At the invitation of the Court, we will undertake in Section I a careful analysis of the evidence -- how it fits together, what material conflicts exist, and how those conflicts should be resolved. We will then discuss in Section II the proper application of Sixth Amendment principles to these facts. B. Other Record Evidence Consistent With Worthv’s Account In assessing the credibility of any testimony, an essential test is its "degree of fit" with other evidence in the case. Reliable testimony, like a piece from a puzzle, should conform plausibly to the contours of adjacent pieces. The testimony of a witness who testifies while unaware of the other credible evidence or issues in dispute, and whose testimony is nonetheless consistent with the other credible evidence, carries the strongest stamp of truth. When Ulysses Worthy testified on July 9th, he had previously spoken with the State and with McCleskey’s counsel for no more than a few moments. (Fed. III 50-52). He had no knowledge of the factual or legal issues under consideration. (Fed. III 82). Under these circumstances, what is remarkable is how closely his July 9th testimony meshes with other undisputed evidence, as we will show. 5 (1) Worthy’s basic memory of a 1978 meeting at the Fulton County Jail between Detective Dorsey and Offie Evans-- the crucial precipitating event -- is independently confirmed by another key participant in that meeting, Offie Evans. Evans testified during McCleskey’s 1981 state habeas proceedings that he "talked with Detective Dorsey first before [he] talked with Russell Parker from the D.A.’s office." (Pet. Ex. 16, at 119) (emphasis added). While Evans was not specifically questioned in 1981 about his role as an informant, he did reveal that, during this meeting, Detective Dorsey told him "he would speak a word for" Evans in exchange for testimony against McCleskey. (Pet. Ex. 16, 122).2 Offie Evans gave this testimony at a time when its legal implications were not clear to anyone, and there is no reason to believe that the testimony was false or contrived. 3 (2) Worthy’s testimony that Evans was recruited as an undercover informant against McCleskey accords witha other undisputed circumstances revealed by this record: first, that 2While the State has previously argued that the Dorsey-Evans agreement itself did not constitute an actionable violation of Giglio wv. United States, 405 U.S. 150 (1972) =-- and while a majority of the Court of Appeals has accepted that legal argument, McCleskey v. Kemp, 753 F.2d 877, 882-85 (11th Cir. 1985) (en banc) =-- the State has not previously contended that the meeting did not take place, and this Court implicitly found as fact that it did when it accepted McCleskey’s Giglio argument in 1984. See McCleskey v. Zant, 580 F.Supp. 338, 380-84 (N.D.Ga. 1984). 3Detective Dorsey, who fully understood by 1987 the adverse legal consequences, was the only one of the three participants in the meeting who had no clear recollection that it had occurred. (Fed. III 87-88). His testimony is discussed separately below. 6 Evans was not unfamiliar with, or unwilling, as some inmates are, to play the role of an informant, since he had done so on several prior occasions; and second, that Evans agreed to and did play such a role in this case. Russell Parker’s written notes suffice to establish the first point. In July of 1978, he ascertained from several independent sources, among them federal corrections official Frank Kennebrough and FBI agent David Kelsey (or GBI agent Carl Neeley) that Evans was "a good informant," whose evidence was "reliable." (Pet. Ex. 10) (see Fed. III 81-82). Another federal correctional official, E.W. Geouge, described Offie Evans as "[a] professional snitch." (Id.) Evans’ striking behavior after being placed next to McCleskey’s cell bears out these descriptions. Evans was obviously a skilled informant who had esr actively sent on a mission to secure information about McCleskey and the Schlatt murder. Evans’ 2l-page written statement reveals that, once in an adjacent cell, Evans disguised his name, falsely claimed a close relationship with McCleskey’s co-defendant, lied about his own near-involvement in the crime, spoke to McCleskey about details of the crime which had not been made public and which were known only to Atlanta police and to the participants,? established himself with McCleskey as a reliable "insider," and then began systematically to press McCleskey for information For example, Evans accurately suggested to McCleskey that he knew that McCleskey and other co-defendants had told police that co-defendant Ben Wright was the likely triggerperson (Pet. Ex. 8 at 4) although this fact, to our knowledge, had not been made public in July of 1978. about the crime. (3) In pointing to Detective Dorsey as the officer who met with Evans and likely recruited him as an informant, Worthy’s testimony unwittingly conformed to another undisputed item of evidence: it was Dorsey alone among the police officers on the case who had previously known Evans (Fed. II 49), who had known him to be an informant (Fed. II 53), and who had relied upon him in the past. Id. Dorsey noted that "the first time I met [Evans] initially was before the McCleskey matter," (Fed. II 52) and he revealed that Evans had previously worked with him as an informant: Q. ... [H]e was the person over the years that would provide occasionally useful information to the department? | A. He has -- he has -- he has on occasions that I can recall been cooperative with me. Q. Right. And so when he called you’d come see him because it might well be the prospect of some information? A. Yeah, yeah. I'd see him or hear from him from time to time. ... [H]e was the kind of person that if he called me I’d go see him. (Fed. Tr. II 53, 52) Dorsey also made it clear that he had not shared his special relationship with Evans widely, not even with other Atlanta police officers. (Fed. II 55; 61-62). It is not surprising, therefore, that other officers investigating the McCleskey case professed not only not to have known Evans prior to July 12, 1978, but not to have realized that he had served as an informant 8 for Detective Dorsey. (Fed. I 142; Fed. II 85-86) (Russell Parker); (Fed. 1 200) (Welcome Harris); (Fed. II 35-38) (W.K.. Jowers) . Ulysses Worthy likewise had no knowledge of Evans’ prior role as an informant. (Fed. II 147; Fed. III 14-15). In sum, Worthy’s July 9th testimony, which identified Detective Dorsey as the State official who met with Evans to work out an informant relationship in the McCleskey case, meshes precisely with facts as we now know them: Evans had previously served as an informant and Dorsey was the one Atlanta police officer who had previously exploited Evans’ willingness to play such a role. (4) Furthermore, Worthy’s account of an initial meeting with Evans, followed by Evans’ move to a cell next to McCleskey, culminating in Evans’ meeting with Parker and Atlanta police officers, helps to explain one major puzzle about the basic structure and content of Evans’ 21-page written statement. Although Evans was arrested and taken to the Fulton County Jail on July 3, 1978 (Fed. Tr. II 101-17), his written statement is absolutely silent concerning any contact with McCleskey during the four-day period between July 3rd and July 8th. Only beginning on the 8th of July does Evans first begin to report any conversations between McCleskey and his partner Bernard Dupree. (Pet. 8, at 1). Not until July 9th does Evans report that he first introduced himself to McCleskey, claiming that he was Ben Wright’s uncle "Charles." (Pet. 8, at 3). The otherwise inexplicable silence about conversations or 9 events during this four-day period, and the affirmative evidence that Evans did not introduce himself to McCleskey during that period, is best explained by an intra-jail move: prior to July 8th, Evans was housed in another part of the jail and thus heard nothing. On the 8th, he was transferred to the cell next to McCleskey and immediately began compiling his extraordinarily thorough day-by-day account of McCleskey’s actions and statements. The abundantly detailed recollections of Evans’ exchanges with McCleskey which are reflected in Evans’ written statement demonstrate that the five-day gap in Evans’ account between his initial arrest and his first recorded recollections can not be explained simply by Evans’ failure of memory.> %* %* * %* Despite this strong body of evidence confirming Ulysses Worthy’s July 9 testimony, the record also includes some apparently conflicting evidence that needs examination and analysis. The most prominent item of evidence, which we will treat first, comes in Worthy’s own subsequent testimony on August 5The one item in Evans’ 21l-page statement that cannot be trusted is its first line, in which Evans recites that he "is in the Fulton County jail cell #1 north where [he has] been since July 3, 1978 for escape." (Pet. Ex. 8, at 1). Petitioner’s counsel challenged that line as odd and inaccurate long before its significance with respect to Evans’ move became clear. it was ostensibly made by Evans while being interviewed, not at the Fulton County Jail, but in another location, the Atlanta Bureau of Police Services. (See Fed. I 163-164) (counsel challenging the line). The reason for this odd initial statement by Evans is now obvious. If Evans had revealed to Parker on August 1st that he had been moved in the jail, this information may have provoked questions about the reasons for such a move: it may, in short, have uncovered the arrangement both Evans and Dorsey were taking great pains to conceal. 10 10, 1987. After examining that testimony, we will turn to the testimony of Russell Parker, of Deputy Carter Hamilton, and of the other Atlanta police officers, closing with a look at the testimony of Detective Sidney Dorsey. Cs Worthyv’s August 10th Testimony The testimony Ulysses Worthy gave on August 10th accorded in most fundamental respects with his July 9th account, (even setting aside for a moment his specific, point-by-point reconfirmation on cross-examination of virtually every important feature of his earlier testimony). Worthy agreed, after some initial confusing testimony about Deputy Carter Hamilton’s role, that "an officer on the case ... made [a] request for [Evans] to be moved," (Fed. ITI 50).6 Moreover, in response £6 Questioning from this Court, Worthy confirmed the following: THE COURT: But you’re satisfied that those three things happened, that they asked to have him put next to McCleskey, that they asked him to overhear McCleskey, and that they asked him to question McCleskey. THE WITNESS: I was asked can -- to be placed near McCleskey’s cell, I was asked. THE COURT: And you’re satisfied that Evans was asked to overhear McCleskey talk about this case? THE WITNESS: Yes, sir. THE COURT: And that he was asked to kind of try SWorthy testified that he did not consider Fulton County Deputy Sheriff Carter Hamilton to have been "an officer on the case." (Fed. III 49, 65). 1 to draw him out a little bit about it? THE WITNESS: Get some information from him. (Fed. III 64-65; id 26-28). It is only on two related points -- exactly when Evans’ move was requested, and the number of (and participants in) various meetings -- that Worthy’s August 10th testimony varies from his July 9th testimony. Worthy’s most noteworthy change on August 10th was his suggestion that the official request to move Evans came only at the close of the meeting between Evans and the Atlanta "investigators," apparently including Russell Parker. (Fed. III 16-19; id. 36-38).. Worthy attempted to explain that his earlier testimony had simply been misunderstood, and that his first and only meeting with investigators, including Dorsey, had in fact been the meeting attended by Russell Parker. (Fed. III 15-17; id. 36-37). Yet Worthy’s July 9th testimony made distinct references to (i) an initial meeting, attended by Detective Dorsey, Offie Evans, and Worthy, (Worthy could not recall whether Dorsey’s partner or "any other people" were present), (Fed. II 148) and (ii) a "subsequent meeting with Mr. Evans which occurred on a "later occasion" when "those detectives ... came back out." (Fed. IT 151). In his July 9th testimony, Worthy recalled that it was only at this "later" meeting that Russell Parker was present. (Fed. II 151). Worthy could not recall on July 9th whether Detective Dorsey even attended this second meeting. (Fed. II 151). 12 It is impossible to harmonize Worthy’s July 9th testimony with his August 10th testimony on this point: one must be credited, the other discounted. Worthy’s July 9th account, as we have seen, fits neatly with the other record evidence. By contrast, Worthy’s August 10th account is in conflict with all other physical and testimonial evidence presented by either side. We will briefly examine the conflicts which would arise if the August 10th account were to be credited. (1) Russell Parker testified that he met with Evans at the Fulton County Jail only once, on July 12, 1978. (Fed. I 153). Parker’s written notes of that meeting reflect that, at the very outset, Evans informed the assembled investigators that he was "in a cell next [to] McClesky [sic] ." (Pet. Ex. 9, at: 6). Evans’ extended acoounts of his conversation with McCleskey and Dupree, =-- which are reflected in Parker’s notes of July 12th (Pet. Ex. 9) and, in expanded form, in Evans’ later written statement, constitute, by themselves, overwhelming proof that Evans must have been moved prior to July 12th, since by July 9th he had already begun an extended series of conversations with McCleskey and his partner Dupree. (2) Moreover, Evans’ written statement makes reference to his physical location in the jail, indicating that Dupree spoke of McCleskey and Evans as being "down there," on the first floor. (Pet. Ex. 8, at 9). At another juncture in the statement, Evans explicitly stated that [t]he only way that Dupree could hear us talking was that he would have to be up to the vent cause he was 13 over us, so we laid down on the floor, McClesky [sic] was on the floor and I was on my bed, and we talked around the bars, and we talked around the bars from the front part of the cells. (Pet. Ex. 8, at 19-20). Thus Evans’ statement demonstrates that he must have been moved prior to July 12, 1978, and that Worthy’s August 10th testimony to the contrary is erroneous. (3) Finally, other evidence demonstrates that during his meeting with Russell Parker, Evans handed to Parker two notes which had been physically passed by McCleskey to Evans from his adjacent cell. (See Pet. Ex. 9, at 5; Pet. Ex. 8, at 14; Ped. I 148-49). It is impossible to explain how Evans could have overheard conversations between McCleskey and Dupree on July 8th, have engaged in extensive conversations with McCleskey ei July 9th and 10th, much less have received written notes from McCleskey prior to July 12th, if Evans himself was not moved to a nearby cell until after July 12th. Nor would it make sense for Atlanta investigators to request a move on July 12th if the fruits gathered by Evans prior to that time had already been obtained without such a move. On this point, then, Worthy’s August 10th testimony seems irrefutably mistaken. * * * * Why did Worthy, whose July 9th testimony was plausible and consistent, find himself so confused and contradictory on these points by August 10th? The Attorney General has suggested that, on July 9th, Worthy was simply "hit cold" (Fed. III 59) but that, during the interval before the August 10th hearing he was given 14 fan opportunity to think about it". (I4.) If that theory were correct, however, we would expect to find Worthy’s earlier testimony confused and contradictory and his later testimony clear and coherent. Instead, we find precisely the reverse. What else then -- besides the Attorney General’s "opportunity to think" -- occurred during that July 9 - August 10th interval? One answer irresistibly suggests itself. Worthy on July 9th did not understood the facts in dispute, the legal issues, or the significance of his own testimony for McCleskey'‘'s constitutional claims. (Fed. III 52-53). Subsequently, however, he read an Atlanta newspaper article announcing McCleskey’s stay of execution, describing the legal and factual issues, and focusing on his own critical testimony. (Fed. III 55-56). Worthy 2180 spoke during the interval with lawyers for the State of at least two occasions, one of them a formal meeting at the Fulton County Courthouse. (Fed. III 53-54). We respectfully submit that Mr. Worthy, a Fulton County deputy sheriff for nineteen years, found himself, =a‘ter reflection, not with a better memory for the facts, but rather with a growing reluctance to adhere to testimony that would implicitly place blame on a fellow police officer, Detective Sidney Dorsey. Worthy surely recognized, after his discussion with State attorneys, that his account of a jailhouse meeting between Dorsey and Evans prior to July 12, 1978, during which they discussed an informant relationship, would not only jeopardize the McCleskey conviction and death sentence, but would 15 also implicate an active-duty fellow officer in unconstitutional behavior. We submit that, on August 10th, Worthy attempted a hopeless compromise of his testimony. Unshaken in his basic story (i) that a move was made (ii) at the request of the police (iii) for purposes of eliciting testimony from McCleskey, Worthy nevertheless attempted to compress his July 9th account of two meetings into one meeting and to avoid any direct and damaging reference to Detective Dorsey (as opposed to a vaguer "officer on the case.") Upon examination, Worthy’s August 10th testimony bears certain marks of this compromise. Although Worthy spoke on August 10th of a single meeting at which he had been present, not once on direct examination did he speeilically refer to the date of that meeting. Nor did he once expressly confirm on direct examination that this was the meeting Russell Parker had attended; instead, he ambiguously stated that Evans had telephoned "either the District Attorney’s Office or the police department," (Fed. III 14), and he spoke vaguely, as did the Attorney General, of a meeting with "investigators of the Schlatt murder." (Fed, “III 15-18). Moreover, on cross-examination, Worthy declined to deny or repudiate any of his statements made during the July 9th hearing which plainly describe two meetings, one earlier with Dorsey, one later with Parker. In sum, Worthy left his testimony on these points in a hopelessly confused muddle, on which he could shed no light (Fed. III 35-36), even 16 when pressed by the Court to clarify his remarks. (Fed. III 61- 64) . On this record, Worthy’s July 9th testimony is credible and consistent; his August 10th testimony on this point is not. The Court’s August 10th observation that it "could think of the reason to discredit Worthy’s testimony" (Fed. III 119) is warranted the whole; the Court should, however, reject Worthy’s clumsy attempt on August 10th to protect Detective Dorsey. D. The Testimony of District Attorney Parker Assistant District Attorney Russell Parker firmly denied ever meeting with Evans prior to July 12, 1978. (Fed. I 142; Fed. III 109). He also testified that he never requested that Offie Evans be moved near McCleskey or that Evans act to overhear or elicit information from McCleskey in the cell. (Fed. III 111- 12). There is no reason, we believe, to doubt Mr. Parker on these points. Warren McCleskey’s constitutional claim does not depend on whether Parker was personally aware of the informant relationship. Parker never claimed that he possessed full knowledge of all steps taken by other officers investigating the case. To the contrary, he had no recollection of Detective Dorsey’s role in the McCleskey case at all (Fed. I 131; Fed. III 113), and more specifically, he did not remember Dorsey’s presence at the July 12, 1978 meeting, even though his own notes indicate that Dorsey attended that meeting. (Fed. I 131; Fed. III 113). Moreover, Parker was not aware of any interviews apart from the ones he 17 attended on July 12 and on August 1st (when Evans’ written statement was taken at the Fulton County Courthouse) even though Ulysses Worthy indicated that police officers came several times to the jail to meet with Evans. (Fed. I 159). Furthermore, Parker stated that he made no inquiries at all about Evans’ custodial arrangements. (Fed. "1 168; Fed, II 76: Fed. III Xl4~ 15). Even Evans’ prior role as an informant for the Atlanta police -- a fact well known to Detective Dorsey -- was unknown to Parker: Q. Do you recall any of the officers of the Atlanta Bureau of Police Services ever telling you that Evans had been an informant for them or had given reliable information in the past? A. If they did, I didn’t make a mental note of it and I ~ didn’t make a written note of it. (Fed. II 85-86). Parker’s ignorance of Detective Dorsey’s conduct is fully consistent with Detective Dorsey’s own testimony that he often worked independently from other investigators on a case (Fed. II 48-49), and that he did not think other officers on the McCleskey case knew of his relationship with Evans. (Fed. II 61). In sum, Parker, who did not dizectiv supervise all police actions in this case and who had especially little to do with Detective Dorsey, credibly disclaimed any knowledge of the Dorsey - Evans meeting, the move of Evans, or the request that Evans act as an informant. This disclaimer does not in the slightest impair the strong likelihood that such events took place -- in Parker’s absence, and without his knowledge. 18 E. The Testimony of Deputy Hamilton Deputy Sheriff Carter Hamilton’s testimony substantially confirms certain basic elements of Worthy’s July 9th testimony, and contains virtually nothing that would undercut it. Hamilton testified at the July 9th hearing that he had no contact with Offie Evans prior to July 11, 1978. (Fed. I. 177). Furthermore, he had no clear recollection of Evans’ arrest or of his initial custody arrangements within the Fulton County Jail, only a "guess" that Evans would have been placed in isolation. (Fed. I 177-78). During the August 10th hearing, Hamilton: acknowledged that he worked only one shift on the first floor of the jail (Fed. III 72, 76) and that, because the jail contained at least 800-900 inmates at any one time, Hamilton would not normally have, and did not, learn of Evans’ presence, until he was moved to a first-floor cell within his area. (Fed. III 74-75). All Hamilton could say about Evans’ custody was that, once Evans had been placed next to McCleskey on the first floor, no one thereafter requested him to move Evans (Fed. III 69), and Evans was not thereafter moved. (Fed. IXI 68). Hamilton, who was present throughout the July 12, 1978 meeting in Worthy’s office, confirmed that no one requested Evans at that time to overhear or initiate conversations with McCleskey. (Fed. 1II 70). Hamilton also denied asking Worthy for permission to move Evans following that July 12th meeting (Fed. III 70-71), since Evans had in fact already been placed in 19 a cell next to McCleskey prior to July 12th. (Fed. II 71-72). Thus, Deputy Hamilton’s testimony confirms that any request for Evans to be moved -- and Evans’ move itself -- must have occurred prior to July 12, 1978. This testimony buttresses Worthy’s original account of the sequence of the crucial jailhouse events in July of 1978. Fe The Other Police Witnesses Like the testimony of Russell Parker, the testimony of the Atlanta police witnesses (exclusive of Sidney Dorsey, whom we treat separately below) does little or nothing to undercut the force or credibility of Worthy’s July 9th account. Detective Harris recalled that he had been the partner of Detective Jowers during the investigation of the McCleskey case (Fed. I 193), and that he had only . "vague recollection" at most of Detective Dorsey’s role in the investigation. (Fed. I 206; id. 195; Fed. IIT 107). Harris did not recall ever seeing Evans before July 12th (Fed. I 200; Fed. II 13; Fed. III 102-03), and did not know that Evans had previously served as an informant. (Fed. I 200-01; Fed. III 105). Jowers did not attend the July 12th meeting and neither knew Evans previously nor even spoke with him during this investigation. (Fed. II 35-36); Harris’ testimony presents only one minor point of conflict with other evidence. Offie Evans testified in state habeas corpus proceedings in 1981 that he met with Atlanta police officers in 1978 prior to his meeting with Russell Parker. (Pet. 20 Ex. 16, at 119). At one point in his testimony, Evans identified the officers at that initial meeting as "Harris and Dorsey." (Id. at 117). At a later polit; i evans spoke of the meeting as one with "Detective Dorsey" (id. 119), describing the Giglio discussion the two had engaged in without mentioning Harris’ presence or involvement. (Id. 120-22). Asked specifically about Evans’ 1981 testimony, Detective Harris denied that he had been present at any such meeting. Whether Harris was present or not, however, is irrelevant to McCleskey’s constitutional claim. if Harris was not present, there exists at most a minor failure of recollection by Evans about the identity of a passive participant in a meeting whose active participant was clearly Dorsey. If Harris was present and now fails to recall the event or is covering up nisipareicipation, revelation of that fact could only strengthen McCleskey’s contention. In sum, like Parker’s and Hamilton’s testimony, the testimony of the other Atlanta police officers does not undercut McCleskey’s claim. Each officer has denied personal participation in the improper ccnduct, yet each had very little contact with Detective Dorsey or knowledge of his role in the case. It remains perfectly plausible that Dorsey and Evans may have agreed upon, and consummated, a surreptitious plan to obtain evidence from McCleskey, without the slightest knowledge or participation by Harris or Jowers. G. The Testimony of Detective Dorsey The least trustworthy testimony offered during these 21 hearings came from Atlanta Police Detective Sidney Dorsey. He testified that he was assigned to investigate the murder of fellow officer Frank Schlatt in 1978. (Fed. II 47). He alone had a prior, confidential informant relationship with Offie Evans (Fed. II 53) which he clearly had relied upon in other cases. (Fed. II 49-53). Although Evans would ultimately provide critical evidence pointing to McCleskey as the triggerman, Dorsey professes a total lack of memory concerning any details of his relationship with Evans in this case: Q. Okay ... [Evans] found himself in the Fulton County Jail in July of 1978. Did you go see him at any point in July? A. Counselor, I do not recall going to see Offie Evans at the Fulton County Jail during that time or any time. 0. Do you remember any meetings that might have been held between Mr. Evans and yourself and Detective Harris and Russell Parker at the jail? A. Counselor, in all honesty, I do not. * %* * * A. I’m not suggesting that the meeting didn’t take place, nor am I suggesting that I wasn’t there. I just don’t recall being there and for some reason no one else remembers my being there either. (Fed. II 57-58, 59-60). As the excerpt above reveals, Dorsey was unwilling to deny categorically during the July and August hearings that he had met with Evans during the McCleskey investigation. On the contrary, he acknowledged that he "probably did" meet with Evans (Fed. II 60), that it was "very possible" he had done so, (Fed. II 66). He simply could not remember. 22 Detective Dorsey’s motive in 1978 for working with offie gvans in this case could not have peen clearer. A fellow police officer had been killed. Four suspects had been arrested. None of them had positively been jdentified as the triggerman. Dorsey had been assigned to the case. At some point ~~ at least by July 12th =-- he must have found out that his own informant Offie Evans, whom Dorsey deemed to be nreliable" (Fed. IT 62), with whom he had developed 2a fruitful relationship extending back several years (Fed. II 52-53), was in the Fulton County Jail, where McCleskey was being held. Dorsey surely must have realized that if Evans would agree to work for him as an informant, he could break the case. This Court has previously found, relying on Offie Evans’ undisputed testimony, that Detective Dorsey did at some point meet with offie Evans and promise to "say a word for him" if Evans would give evidence against Warren McCleskey. For someone like Dorsey, the deal made perfect sense. Yet, since it was unconstitutional, it also made eminent sense for Dorsey to act alone, without drawing other investigators or District Attorney Parker into his plans. Therefore, we submit, Parker, Jowers and Harris were deliberately kept in the dark about Dorsey’s arrangement, about the move, and even about Dorsey’s prior relationship with Evans. These other investigators were clothed with "deniability" by this stratagem, and they could testify that no unlawful arrangement had been made with a clear conscience. Dorsey, as the malevolent actor, thus kept his distance from the others and they, in turn, whether 23 consciously or subconsciously, minimized or forgot his role in the case. Dorsey’s presence was, however, necessary at the outset of the July 12th meeting; he, after all, was the Atlanta investigator who knew Evans and commanded his confidence. Yet once Evans delivered the goods to Parker and Harris on July 12th, Dorsey’s continuing presence was an affirmative risk. Consequently, Dorsey did not attend the August lst session during which Evans’ written statement was taken, and he was the only police officer closely connected to the McCleskey case who did not testify at McCleskey’s trial. (District Attorney Parker did call officers L.G. Beard (T. Tr. 325), W.K. Jowers (T. Tr. 359): 1. W.X. Perry {T. Tr. 477), Welcome Harris (T. Tr. 5786), and Sgt. H. W. McConnell (T. Tr. 801)). when confronted with Warren McCleskey’s 1987 federal petition and the prospect of a hearing in this case, we submit that Detective Dorsey chose the implausible but impregnable position of a massive memory loss. He reasoned that other investigators would have no firsthand knowledge of tlL=2 arrangements, and that the only other direct accomplice in the arrangement, Evans himself, would be unavailable to testify. Although Evans had unwittingly discussed his meeting with Dorsey during his 1981 state habeas testimony, Evans’ testimony did not directly address his informant relationship, only a Giglio deal that had been found by the Eleventh Circuit to have been legally 24 insufficient to state a constitutional claim.’ The only risk in Dorsey’s approach was that his 1978 arrangement with Offie Evans had required a third actor, someone in authority at the Fulton County Jail who would agree to move Evans from a distant cell to one adjacent to Warren McCleskey’s. That person, we have found, was Ulysses Worthy. Worthy’s serendipitous appearance at the close of the July 9th hearing, and his straightforward account of what happened at that meeting, allowed the entire arrangement to come to light. To sum up, we submit that Detective Dorsey’s testimony in this case is unworthy of belief. Displaying excessive zeal on behalf of a fallen fellow officer, Dorsey in July of 1978 chose a course of unconstitutional conduct in an attempt to gather evidence and solve this case. A twist of fate has led petitioner McCleskey to uncover this illegal conduct and to reveal the false course Dorsey has followed in covering his tracks. H. Conclusion Ulysses Worthy's July 9th testimony, after close examination, bears the hallmarks of truth: (i) it was given by "When Dorsey’s plan =-- about which we have speculated-- went awry and Evans’ testimony about the prior meeting with Dorsey became crucial, Dorsey during his August 10th testimony alleged for the first time that he had learned of Evans’ 1981 testimony from Russell Parker shortly after the state hearing and had, at that time, a "gut feeling then that the man was lying." (Fed. III 37). Dorsey admitted on cross-examination, however, that he made no written record to memorialize his 1981 reactions to the Evans testimony. (Fed. III 88). Notably, Dorsey did not mention this point when he discussed Evans’ testimony during the July 9th hearing in this Court. (Fed. II 64-66). 25 one who did not know its significance in advance; (ii) it is internally consistent; (iii) it coincides with the other reliable evidence; and (iv) it plausibly explains what actually happened. Detective Dorsey’s testimony, by contrast, can make no claim to credibility: (i) it was given by one who had admittedly coordinated his testimony with other witnesses; (ii) it is internally inconsistent; (iii) it conflicts with other reliable evidence; and (iv) it is wildly implausible. The testimony and documentary evidence either supports Worthy’s basic account or, at a minimum, is fully consistent with it. Worthy’s attempt on August 10th to revise those portions of his story that shed unfavorable light on Detective Dorsey are the only aspects of his testimony that do not merit this Court’s acceptance. a Le OFFIE EVANS’ ACTIONS AS A STATE INFORMANT VIOLATED WARREN McCLESKEY’S SIXTH AND FOURTEENTH AMENDMENT RIGHTS UNDER MASSIAH V. UNITED STATES The constitutional principles announced in Massiah v. United States, 377 U.S. 201 (1964) are not complicated. They prohibit the State from "us[ing] against [a defendant] at his trial ... his own incriminating words... deliberately elicited from him after he had been indicted and in the absence of his counsel." 377":U.8.. ait 206. The Court, drawing on Sixth Amendment principles as old as Powell Vv. Alabama, 287 U.S. 45 (1232), reasoned in Massiah that an indicted defendant is entitled to the assistance of counsel during any State interrogation. "/[I]f such 26 a rule is to have any efficacy’" the Court held, "’it must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse.’" Id. at 206. Subsequently, in United States v. Henry, 447 U.S. 32864 (1980), the Court addressed a case in which a Government informant, one Nichols, had been placed in a cell near that of detainee Henry. The informant, though instructed by an FBI agent "not to initiate any conversations with or question Henry regarding the [crime]," 447 U.S. at 266, nevertheless admitted at trial that "he had ‘an opportunity to have some conversations with Mr. Henry’" . which ultimately led to incriminating statements. 447 U.S. at 267. The Supreme Court found a violation of Massiah: Even if the agent’s statement that he did not intend that Nichols would take affirmative steps to secure incriminating information is accepted, he must have known that such propinquity likely would lead to that result ... Nichols was not a passive listener; rather, he had ‘some conversations with Mr. Henry’ ... and Henry’s incriminating statements were ‘the product of this conversation.’ Id. at 277. During the past two years, the Court has spoken twice more on Massiah. In Maine wv. Moulton, U.S. + 88 L.EQ.2d 481 (1985), it reaffirmed its earlier teachings and extended Massiah to cover surreptitious interrogation by a co-defendant. The co- defendant, in exchange for a State promise of consideration on his then-pending charges, agreed to meet with defendant Moulton, while wired with a body transmitter, to discuss the crime and the pending charges. 88 L.Ed.2d at 488-89. Moulton’s statements 27 were ultimately used against him at trial. The Court rejected the State’s proposed distinction that the meeting had been arranged by defendant Moulton, not the informant: [Klnowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to assistance of counsel as is the intentional creation of such an opportunity. 88 L.Ed.2d at 496. The Court also found the informant’s actions were not those of a passive "listening post," noting that the informant had "’frequently pressed Moulton for details of [the crimes] .. and in so doing elicited much incriminating information that the State later used at trial.’" 88 1..Ea.24 at 496-97 n.13. Compare United States v. Hicks,798 F.2d 446. (11th cir. 1986). Last Term in Kuhlman v. Wilson, u.s. y 91 'L.2A.24 384 (1986), the Court held that the State’s use of information secured by "a Jailhouse informant who was ‘placed in close proximity but [made] no effort to stimulate conversation about the crime charged,’" did not violate a defendant’s Sixth Amendment rights. 91 L.Ed.2d at 382. Chief Justice Burger, in concurrence, noted the "vast difference" under the Constitution "between placing an ‘ear’ in the suspect’s cell and placing a voice in the cell to encourage conversation for the ‘ear’ to record.” 91 L.Ed.2d at 386. The application of these principles to the present case requires that petitioner be granted habeas relief. Offie Evans was an informant, well-known to Detective Sidney Dorsey, one of 28 the Atlanta policemen investigating the murder of Officer Frank Schlatt. Dorsey (or another officer) as we have shown, requested and received permission to move Evans from another part of the Fulton County Jail to a cell adjacent to McCleskey’s. Once there, Evans began an aggressive campaign of deception and persistent questioning, which was focused directly on the Schlatt case and McCleskey’s role in it. Evans’ questioning elicited seriously incriminating admissions from McCleskey. Perhaps unwittingly, these illegal statements were gathered by Russell Parker and used as key elements of the State’s case against McCleskey, both at the guilt and at the penalty phases of his trial. Nothing more is necessary to require reversal under Massiah, Henry, and Kuhlman. 29 TII THE STATE FAILED TO DISCLOSE TO DEFENSE COUNSEL (i) SIGNIFICANT CONFLICTS BETWEEN OFFIE EVANS’ TRIAL TESTIMONY AND HIS EARLIER WRITTEN STATEMENT AND (ii) IMPORTANT EXCULPATORY EVIDENCE, ALL IN VIOLATION OF PETITIONER’S RIGHT TO THE DUE PROCESS OF IAWS As long ago as 1935, the Supreme Court held that "knowing use" by the State of perjured testimony would violate the federal Due Process Clause. Moonev v. Holahan, 294 U.S. 103, 112-13 (1935); Pyle V., Kansas, 317 U.S. 213 (1942). "The same result," the Court thereafter has held, "obtains when the State, although not soliciting false evidence, allows it to go uncorrected where it appears." Napue v. Illinois, 360 U.S. 264, 269 (1959). The Court has also condemned a prosecutor’s knowing use of testimony that, while not technically false, is deliberately and materially nisleading. In Alcorta v, Tesas 355 U.5.:.28 (1957) , the Court reversed a murder conviction obtained by a prosecutor whose key witness had, with the knowledge of the State, given testimony [which] taken as a whole, gave the jury [a] ... false impression [about] ... his relationship with [the defendant’s] wife." 355 U.S. at 31. The Court has set a stringent standard for reversal in such cases. It specified in United States v. Aqurs, 427 U.S. 97,103 (1976) that "a conviction obtained by the knowing use of perjured 8Although the Court expressed its tentative view that it "could find no merit for granting the petition" on any of Warren McCleskey’s other constitutional claims, it declined to "make that as a final finding." (Fed. III 119). We strongly believe that Evans’ 2l1-page statement and the testimony developed during the July and August, 1987 hearings substantiate McCleskey’s Due Process claims, as we explain in this section. 30 testimony must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. (emphasis added). Accord: United States v. Bagley, 473 U.S. 667, 679 n.9 (1985). The Court in Bagley in fact explained that "the standard of review applicable to the knowing use of perjured testimony is equivalent to the Chapman Rivhless~ortor standard, requiring the state to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Id.) This Circuit, has held, moreover, that the conduct of "an investigating police officer [who] willfully and intentionally conceals material information" has been held "imputed to the state as part of the prosecution team for such purposes." Freeman v. State of Georgia, 599 F.2d 65, 69 (5th Cir. 1979), citing Smith v. Florida, 410 F.2d 1349, 1351 (5th Cir. 1969); see Barbee v. Warden, 331 F.2d 842 (4th Cir. 1964). Thus knowledge of a police officer that renders a witness’ testimony false or materially misleading binds the State and requires reversal. In petitioner’s case, the recent revelation of Offie Evans’ 2l-page written statement -- witnessed and signed cn every page by the prosecutor, his investigator, and an Atlanta police detective -- has uncovered serious discrepancies between what Evans told State investigators two months prior to trial and what Evans later told petitioner’s jury. Viewed as a whole, these discrepancies establish a major due process violation. At trial, Evans’ credibility was absolutely critical to the 31 State’s case against petitioner Warren McCleskey. Apart from the inherently suspect testimony of petitioner’s co-defendant Ben Wright -- himself the other most likely suspect in the shooting of Officer Schlatt -- no other witness directly linked petitioner to the shooting. It was essential that the State persuade the jury that Offie Evans’ account of petitioner’s conversations could be trusted. The State’s approach was to acknowledge that Evans had a long criminal record, but to present him nonetheless as a disinterested bystander in the Schlatt case. Toward that end, Evans tried to portray himself to petitioner’s jury as a passive "ear," an inmate who heard what petitioner had to say and simply came forward to tell what he had chanced to learn: "I am just-- whoever it helps or whoever it harms, I am telling you what I know ... like I said, I am telling it straight, whoever it helps, it helps; whoever it harms, it harms." (T.Tr. 881). Asked to give his motive for testifying, Evans explaired that a deputy, after overhearing him talking with petitioner, came up to him and, "asked me what did I know about it ... said it sounded like a conspiracy." (T.Tr. 880) Evans suggestd that the deputy was aware that he "had been messing around with Ben [Wright] in the street," (T.Tr. 872), became worried that he might be considered a "suspect" or a "conspirator" in the case. As a result, he decided to cooperate. KId.) "in short," Evans testified, he had "cooperated with the deputy in order [not to] ... have any hassle in this." (7. Tr. 881). 32 Evans firmly denied that he had any other personal motive for coming forward. He specifically disavowed that the prosecutor had "promised [him] anything for testifying," (T.Tr. 268), informing the jury that he "wasn’t worrying about [any federal] escape charge. ... there wasn’t no escape charge." {T.Tr. 882). He also told the jury that while he knew co-defendant Ben Wright from prison, he had never "run with him or nothing like that." His own bona fides established, Evans recounted for the jury how petitioner McCleskey had come to talk about the Dixie Furniture store crime. Evans testified that he and petitioner first "got into a conversation about Ben, and so he -- of course I told him that I knowed Ben real good ... so we Kept on talking, and so we just kept talking until he started talking about how the robbery went down." {T.Tr. 870)... Evans twice implied that petitioner had methodically planned the robbery, stating that he was "sure" that petitioner had gone "in and checked the place out a few days before they robbed it." (T.Tr. 870; see id. 876). While he told the jury of several statements in which petitioner had allegedly expressed his intention to shoot Officer Schlatt (T.Tr. 870, 871, 879-80), he never suggested to the jury that he knew McCleskey might have "panicked" before he shot Officer Schlatt. A review of Evans’ 2l-page statement reveals just how misleading the overall impact of Evans’ trial testimony actually was. Far from a passive "ear," Evans actively and aggressively sought out petitioner, courted his trust, and pried open the 33 story of the crime. Subsequent testimony from both Evans (St. Hab. Tr. 118) and from Deputy Carter Hamilton makes it clear, moreover, that Evans lied to the jury when he suggested that he had come forward only involuntarily, when "overheard" by the deputy. Instead, thoroughly armed with the information he had drawn from petitioner and Bernard Dupree, it was Evans himself who summoned the deputy and requested an interview with the police: Q. And you did not approach Offie Evans, it was Offie Evans who approached you, is that correct? A. That’s correct. Q. All right. And you didn’t indicate to Offie Evans that you knew he had some relationship with Ben Wright, is that correct. Did you ever indicate to him that you knew that he had some relationship with Ben Wright? A. No, sir. (Fed. Tr. I at 169; id. at 181; Fed. III 78). Contrary to his trial testimony, furthermore, Evans was in fact promised something in exchange for his testimony: "The Detective told me that he would -- he said he was going to do it himself, speak a word for me. That was what the Detective told me." {St. Hab. Tr. 132). Apart from falsifying his own motivations for testifying, the 21-page statement reveals that Evans shaded his account of petitioner’s role for the jury in a manner that heightened its premeditated, calculated quality. Although he told the jury that petitioner had "cased" the furniture store several days before the robbery, the statement reveals that it was Mary Jenkins 34 (whose name is blotted out in the version received by petitioner) -- not petitioner -- who "went over to the place about a week before the robbery ... [checking] the place out to see where the money drawer was." (Pet. Ex. 8, at 4). More critically, Evans omitted any reference at trial to the portion of his statement revealing that, when Officer Schlatt approached, "McCleskey said that he panicked, he just shot." (Pet. Bx. 8, at 6). Instsaq, he stressed at trial McCleskey’s alleged remark, "It would have been the same if it had been a dozen of them, he would have had to try to shoot his way out." (T.Tr. 871). The overall effect of Evans’ testimony on petitioner’s Jury, just like the testimony of the key witness in Alcorta v. Texas, was falsely to convey the impression that he was a dispassionate and credible witness, who overheard a confession of a Eine and who was simply "telling it straight." (T.Tr. 881). Yet in fact Evans had obtained his evidence by weaving a web of lies and insinuations, drawing McCleskey and Dupree into the web, and then, valuable evidence in hand, summoning State agents to make a deal. His artfully incomplete testimony at trial -- accentuating petitioner’s malicious intent in shooting Officer Schlatt -- was the key to the prosecutor’s case both at the guilt and at the sentencing phases of petitioner’s trial. The prosecutor stressed to the jury in his closing guilt-phase argument (see Tr. T. 959- 60) that Officer Schlatt’s shooting had been malicious, execution-style: That officer laying on the floor was not a threat to anybody, and yet [McCleskey] was not satisfied, he 35 wanted to be sure that he finished off the job, and it hadn’t have been for a little old plastic cigarette lighter, then his heart would probably have been torn out as well. * * * (T.Tr. 961). McCleskey says the police slipped up on him ... and if he saw the car pull in [and] the police didn’t slip up on him, he could have gotten out of that back door like the other three did, but he chose not to do that, he chose to go the other way, and just like Offie Evans says, it doesn’t make any difference it there had been a dozen policemen come in there, he was going to shoot his way out. He didn’t have tb do that” , ... he deliberately killed that officer on purpose. I can guess what his purpose was. I am sure you can guess what his purpose was, too. He is going to be a big man and kill a police officer and get away with it. That is malice. (T.Tr. 974-75). Even without knowledge of Evans’ duplicity, petitioner’s jury was out nearly two hours on guilt-or-innocence; it returned seeking "a definition of malice murder." (T.Tr. 1005-07). Had the jurors known of Evans’ deliberate deceit in approaching McCleskey, had they realized that Evans had been on a mission actively to secure testimony, had they known of his quid pro quo arrangement with Detective Dorsey, there is surely a "reasonable likelihood" that this knowledge "could have affected" their judgment. United States v. Aqurs, 472 U.S. at 103. Even more certainly, had the jury been told that McCleskey had shot in panic, it seems now virtually impossible for the State to demonstrate "beyond a reasonable doubt" that the jury’s verdict on malice murder, its sentence of death, or both would not have 36 been different.? Evans’ statement that petitioner may have shot in panic, furthermore, was highly exculpatory with respect to petitioner’s possible sentence. Homicide cases are regularly deemed more aggravated if committed with wanton premeditation, and more mitigated if they are the product of a spontaneous or panicky response to a sudden show of force. In Brady v. Marviand, 373 U.S. 83 (1963), the Supreme Court stressed that exculpatory evidence must be provided to the defense upon request, "where the evidence is material either to guilt or to punishment." 373 U.S. at 87. See e.d., United States v. Bagley, 472 U.S. 663, 674 (1285); chaney v. Prown, 730 F.2d 1334. (10th Cir. 1984); Calley Vv. Callaway, 519 F.24 154, 221 45th Cir. 1975) (en banc) ("Brady requires the disclosure of material favorable thitre sense of mitigation or exculpation") Since petitioner’s trial counsel filed a series of pre-trial Brady motions in this case seeking all exculpatory evidence, Evans’ statement should plainly have been turned over. During the July, 1987 hearing, respondent argued that the Two jurors have in fact averred that knowledge of Evans’ arrangement with Detective Dorsey would likely have affected their sentencing verdicts. (Fed. Petition, Ex. F. qf 9-11r Bx. G, 99 1, 8-9). Both jurors have stressed that their verdicts depended heavily upon their judgments about Evans’ credibility. (See Fed. Petition Ex. F § 5-9; Fed. Petition, Ex. G 99 4, 10). These Juror affidavits simply confirm the general rule that "[tlhe jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend." Napue v. Illinois, 360 U.S. at 269. 37 "prosecutor in this case did exactly what he was supposed to do" by delivering Evans’ statement to the trial court for in camera inspection. {Fed. Tr. I, at 112). Yet Brady teaches that due process is violated by the withholding of exculpatory evidence "irrespective of the good faith or bad faith of the prosecution," 373 U.S. at 87; cf. gilglio v. United States, 405 U.S. 150, “154 (1972). While the Supreme Court has recently suggested that a slightly higher standard must be employed in assessing the materiality of evidence withheld by the State in violation of Brady -- whether "there is a reasonable probability had the evidence been disclosed to the defense, the result of the proceeding would have been different," United States v. Bagley, 473 U.S. 667, 682 (1985) -- the evidence of panic in this case is sufficiently material to meet the Bagley test. CONCLUSION Petitioner’s writ of habeas corpus should be granted; his conviction and death sentence should be vacated; and his case should be remanded for a fair trial conducted under procedures guaranteed by the federal constitution. Dated: September 9, 1987 “Respectfully submitted, ROBERT H. STROUP 151 Walton Street Atlanta, Georgia 30303 (404) 522-8500 JOHN CHARLES BOGER 99 Hudson Street York, New, Yo 10013 Eprisgh TORNEYS FOR PET ONER ARREN McCLESKEY IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION WARREN McCLESKEY, - against - RALPH M. KEMP, Superintendent, Georgia Diagnostic & Classification Center, Petitioner, o e LX ] e e e e [X J o e Respondent. PETITIONER’S POST-HEARING No. C87-1517A MEMORANDUM OF LAW ROBERT H. STROUP 151 Walton Street Atlanta, Georgia (404) 522-8500 30303 - JOHN CHARLES BOGER 99 Hudson Street New York, New York (212) 219-1900 10013 ATTORNEYS FOR PETITIONER WARREN McCLESKEY TABLE OF CONTENTS I. The Credible Record Evidence in This Case Establishes That The State Actively Solicited Offie Evans To Be An Undercover Informant, And That Evans Deliberately Elicited Incriminating Statements From Jail Inmate Warren McCleskey Which Were Used Against Him At Trial ... 1 A. Ulysses Worthy’s July 9th Testimony: The Prima Facie Case ..cceeeecee dimes ust anng ne neenes divine 2 B. Other Record Evidence Consistent With Worthy’s BACOOUNE eves corns srnsionennsve io. sine 0s sosnmsnnesennes 4 C. Worthy’s August 10th Testimony ...... rks savers venes 10 D. The Testimony of District Attorney Parker ...... er ueilb E. The Testimony of Deputy Hamilton ...scodeversssnvvee 18 F. The Other Police Witnesses .......... Sssiv tiene enrares 19 G. The Testimony of Detective Dorsey ....... Re 20 n. CT PR A RE a OE SO TO Eg I ire wed 2U II. Offie Evans’ Actions As A State Informant Violated Warren McCleskey’s Sixth And Fourteenth Amendment Rights Under Maceiah VV, UNIited SELES uve ecerteanenssvesesosenee 25 III. The State Failed To Disclose To Defense Counsel (i) Significant Conflicts Between Offie Evans’ Trial Testimony And His Earlier Written Statement and (ii) ‘Important Exculpatory Evidence, All In Violation Of Petitioner’s Right To The Due Process OF LAW .cveevcees 29 CONCLUSION cevnvens on sevsssesveniss "Wiens sss eens erin siose eo 0 nieve 37 THE CREDIBLE RECORD EVIDENCE IN THIS CASE ESTABLISHES THAT THE STATE ACTIVELY SOLICITED OFFIE EVANS TO BE AN UNDERCOVER INFORMANT, AND THAT EVANS DELIBERATELY ELICITED INCRIMINATING STATEMENTS FROM JAIL INMATE WARREN McCLESKEY WHICH WERE USED AGAINST HIM AT TRIAL A. Ulysses Worthy’s July 9th Testimony: The Prima Facie Case During this Court’s July, 1987 hearing on Warren McCleskey’s constitutional claims, Ulysses Worthy, who had for twelve years been captain of the day watch at the Fulton County Jail (Fed. II 146) 1 gave testimony that suffices to establish a prima facie violation of Massiah v. United States, 377 U.S. 201 (1964). Specifically, Mr. Worthy told of a 1978 conversation between Atlanta police detective Sidney Dorsey and Fulton County inmate Offie Evans which took place in his presence at the Fulton County Jail. (Fed. II 148). During this conversation, Detective Dorsey, (or perhaps some other "officer on the case") requested Evans "to engage in conversations with somebody ... in a nearby cell." (Fed. II 148-49). Mr. Worthy confirmed that Dorsey’s targeted inmate was Warren McCleskey, who was being held in isolation awaiting trial following his indictment for murder and armed robbery. Mr. Worthy recalled, in other words, that the Atlanta lEach reference to the transcript “of the July 8, 19387 hearing in this Court will be indicated by the abbreviation "Fed. I." References +o the transcript of the July 9, 1987 continuation of the hearing, which is separately numbered, will be indicated by the abbreviation "Fed. II." References to the transcript of the August 10, 1987 hearing will be indicated by the abbreviation "Fed. III." 2 police officer "asked Mr. Evans to engage in conversations with McCleskey who was being held in the jail." (Fed. II 150). As captain of the day watch, Worthy acknowledged that he occasionally received requests from Atlanta police officers to place one inmate in a cell next to another so that police could obtain information on pending criminal cases. (Fed. II 152). In the McCleskey case, Worthy specifically recalled that "[t]he officer on the case," made such a request to him. (Fed. II 153). In response to the request, Offie Evans was moved from another part of the Fulton County Jail to the cell directly adjacent to Warren McCleskey’s cell: Q. [By the State]: Mr. Worthy, let me see if I understand this. Are you saying that someone asked you to specifically place Offie Evans in a specific location in the Fulton County Jail so he could overhear conversations with Warren McCleskey? A. Yes, ma’am. (Fed. II 353). The 21-page written statement given by Offie Evans to Atlanta police on August 1, 1978, demonstrates that Evans made the most of this opportunity. Not content to be a passive "ear," Evans actively and aggressively sought out McCleskey from his adjoining cell, he courted McCleskey’s trust, and repeatedly lied to him and to his partner Bernard Dupree: I told Warren McClesky [sic] ’I got a nephew man, he in a world of trouble ...’ McClesky asked me ‘What is his name.’ I told him ‘Ben Wright.’ McCleskey said ‘You Beens’ [sic] uncle.’ I said ‘Yeah.’ He said ’‘What’s your name?’ I told him that my name was Charles. (Pet. Ex. 8, at 3). After falsely assuring McCleskey that he "used to stick up with Ben," and that "Ben told me that you shot the man yourself," (Pet. Ex. 8, at 4), Evans began to pry open the story of the crime. "I said man ‘just what’s happened over there." (Id.) Even after McCleskey told him some details of the Cringe; Evans continued his surreptitious interrogation: "And then I asked McClesky what kind of evidence did they have on him." (Pet. Ex. 8, at. 6). In a subsequent conversation, Evans obviously sought to learn the location of the missing murder weapon: "Then I said, ‘They ain’t got no guns or nothing man?’" (Pet. Ex. 8, at 7). When Bernard Dupree overheard their conversation from his cell upstairs and became apprehensive, Evans worked hard to allay Dupree’s suspicions, "talking to Dupree about Reidsville [and] Just about ma[king] Dupree know me himself." (Pet. Ex. 8, at 9). After Evans had obtained sufficient information, he sent word back to Atlanta detectives, who came out with Assistant District Attorney Russell Parker for an extended meeting. Mr. Worthy recalled thit, following the initial meeting between Detective Dorsey and Evans, "Mr. Evans requested at some later occasion to call thcse detectives" who "were out several times." (Fed. II 151). Worthy recalled a meeting, attended by Evans Assistant District Attorney Russell Parker and Detective Welcome Harris, which took place in Worthy’s office. During the meeting, Evans presented the fruits of his undercover interrogations -- a series of alleged admissions by Warren McCleskey which became the 4 linchpin of the State case against McCleskey at the guilt and penalty phases of his trial. (See Pet. Ex. 4). The constitutional significance of this course of conduct is virtually indisputable: if credited, Worthy’s testimony reveals a classic Massiah violation perpetrated against Warren McCleskey. At the invitation of the Court, we will undertake in Section I a careful analysis of the evidence -- how it fits together, what material conflicts exist, and how those conflicts should be resolved. We will then discuss in Section II the proper application of Sixth Amendment principles to these facts. B. Other Record Evidence Consistent With Worthv’s Account In assessing the credibility of any testimony, an essential test 1s its "degree of fit" with other evidence in the case. Reliable testimony, like a piece from a puzzle, should conform plausibly to the contours of adjacent pieces. The testimony of a witness who testifies while unaware of the other cred:ble evidence or issues in dispute, and whose testimony is nonetheless consistent with the other credible evidence, carries the strongest stamp of truth. When Ulysses Worthy testified on July 9th, he had previcusly spoken with the State and with McCleskey’s counsel for no more than a few moments. (Fed. III 50-52). He had no knowledge of the factual or legal issues under consideration. (Fed. III 52). Under these circumstances, what is remarkable is how closely his July 9th testimony meshes with other undisputed evidence, as we will show. 5 (1) Worthy’s basic memory of a 1978 meeting at the Fulton County Jail between Detective Dorsey and Offie Evans-- the crucial precipitating event -- is independently confirmed by another key participant in that meeting, Offie Evans. Evans testified during McCleskey’s 1981 state habeas proceedings that he "talked with Detective Dorsey first before [he] talked with Russell Parker from the D.A.’s office.” (Pet. Ex. 16, at 119) (emphasis added). While Evans was not specifically questioned in 1981 about his role as an informant, he did reveal that, during this meeting, Detective Dorsey told him "he would speak a word for" Evans in exchange for testimony against McCleskey. (Pet. Ex. 16, 122).2 Offie Evans gave this testimony at a time when its legal implications were not clear to anyone, and there is no reason to believe that the testimony was false or contrived. 3 (2) Worthy’s testimony that Evans was recruited as an undercover informant against McCleskey accords with other undisputed circumstances revealed by this record: first, that 2While the State has previously argued that the Dorsey-Evans agreement itself did not constitute an actionable violation of Giglio wv. United States, 405 U.S. 150 (1972) =-- and while a majority of the Court of Appeals has accepted that legal argument, McCleskey v. Kemp, 753 F.2d 877, 882-85 (llth Cir. 1985) (en banc) =-- the State has not previously contended that the meeting did not take place, and this Court implicitly found as fact that it did when it accepted McCleskey’s Giglio argument in 1984. See McCleskey v. Zant, 580 F.Supp. 338, 380-84 (N.D.Ga. 1984). 3petective Dorsey, who fully understood by 1987 the adverse legal consequences, was the only one of the three participants in the meeting who had no clear recollection that it had occurred. (Fed. III 87-88). His testimony is discussed separately below. 6 Evans was not unfamiliar with, or unwilling, as some inmates are, to play the role of an informant, since he had done so on several prior occasions; and second, that Evans agreed to and did play such a role in this case. Russell Parker’s written notes suffice to establish the first point. In July of 1978, he ascertained from several independent sources, among them federal corrections official Frank Kennebrough and FBI agent David Kelsey (or GBI agent Carl Neeley) that Evans was "a good informant," whose evidence was "reliable." (Pet. Ex. 10) (see Fed. III 81-82). Another federal correctional official, E.W. Geouge, described Offie Evans as "[a] professional snitch." (Id.) Evans’ striking behavior after being placed next to McCleskey’s cell bears out these descriptions. Evans was obviously a skilled informant who had been actively sent on a mission to secure information about McCleskey and the Schlatt murder. Evans’ 2l-page written statement reveals that, once in an adjacent cell, Evans disguised his name, falsely claimed a close relationship with McCleskey’s co-defendant, lied about his own near-involvement in the crime, spoke to McCleskey about details of the crime which had not been made public and which were known only to Atlanta police and to the participants, ?4 established himself with McCleskey as a reliable "insider," and then began systematically to press McCleskey for information 4For example, Evans accurately suggested to McCleskey that he knew that McCleskey and other co-defendants had told police that co-defendant Ben Wright was the likely triggerperson (Pet. Ex. 8 at 4) although this fact, to our knowledge, had not been made public in July of 1978. about the crime. (3) In pointing to Detective Dorsey as the officer who met with Evans and likely recruited him as an informant, Worthy’s testimony unwittingly conformed to another undisputed item of evidence: it was Dorsey alone among the police officers on the case who had previously known Evans (Fed. II 49), who had known him to be an informant (Fed. II 53), and who had relied upon him in the past. Ida. Dorsey noted that "the first time I met [Evans] initially was before the McCleskey matter," (Fed. II 52) and he revealed that Evans had previously worked with him as an informant: Q. ... [H]e was the person over the years that would provide occasionally usezul information to the department? A. He has -- he has -- he has on occasions that I can recall been cooperative with me. Q. Right. And so when he called you’d come see him because it might well be the prospect of some information? A. Yeah, yeah. I'd see him or hear from him from time to time. ... [H]e was the kind of person that if he called me I’d go see him. (Fed. Tr. II 53, 52) Dorsey also made it clear that he had not shared his special relationship with Evans widely, not even with other Atlanta police officers. (Fed. II 55; 61-62). It is not surprising, therefore, that other officers investigating the McCleskey case professed not only not to have known Evans prior to July 12, 1978, but not to have realized that he had served as an informant 8 for Detective Dorsey. (Fed. I 142; Fed. II 85-86) (Russell Parker); (Fed. I 200) (Welcome Harris); (Fed. II 35-38) (W.K. Jowers) . Ulysses Worthy likewise had no knowledge of Evans’ prior role as an informant. (Fed. II 147; Fed. III 14-15). In sum, VWorthy’s July 9th testimony, which identified Detective Dorsey as the State official who met with Evans to work out an informant relationship in the McCleskey case, meshes precisely with facts as we now know them: Evans had previously served as an informant and Dorsey was the one Atlanta police officer who had previously exploited Evans’ willingness to play such a role. (4) Purthermore, Worthy’s account of an initial meeting with Evans, followed by Evans’ move to a cell next to McCleskey, culminating in Evans’ meeting with Parker and Atlanta police officers, helps to explain one major puzzle about the basic structure and content of Evans’ 2l-page written statement. Although Evans was arrested and taken to the Fulton County Jail on'July 3, 1978 (Fed. Tr. Il 101-17), his written statement is absolutely silent concerning any contact with McCleskey during the four-day period between July 3rd and July 8th. Only beginning cn the 8th of July does Evans first begin to report any conversations between McCleskey and his partner Bernard Dupree. (Pet. 8, at 1). Not until July 9th does Evans report that he first introduced himself to McCleskey, claiming that he was Ben Wright’s uncle "Charles." (Pet. 8, at 3). The otherwise inexplicable silence about conversations or 9 events during this four-day period, and the affirmative evidence that Evans did not introduce himself to McCleskey during that period, is best explained by an intra-jail move: prior to July 8th, Evans was housed in another part of the jail and thus heard nothing. On the 8th, he was transferred to the cell next to McCleskey and immediately began compiling his extraordinarily thorough day-by-day account of McCleskey’s actions and statements. The abundantly detailed recollections of Evans’ exchanges with McCleskey which are reflected in Evans’ written statement demonstrate that the five-day gap in Evans’ account between his initial arrest and his first recorded recollections can not be explained simply by Evans’ failure of memory.> %* * %* %* Despite this Strong body of evidence Contiening Ulysses Worthy’s July 9 testimony, the record also includes some apparently conflicting evidence that needs examination and analysis. The most prominent item of evidence, which we will treat first, comes in Worthy’s own subsequent testimony on August 5The one item in Evans’ 2l-page statement that cannot be trusted is its first line, in which Evans recites that he "is in the Fulton County jail cell #1 north where [he has] been since July 3, 1978 for escape." (Pet. Fx. 8, at 1). Petitioner’s counsel challenged that line as odd and inaccurate long before its significance with respect to Evans’ move became clear. It was ostensibly made by Evans while being interviewed, not at the Fulton County Jail, but in another location, the Atlanta Bureau of Police Services. (See Fed. I 163-164) (counsel challenging the line). The reason for this odd initial statement by Evans is now obvious. If Evans had revealed to Parker on August 1st that he had been moved in the jail, this information may have provoked questions about the reasons for such a move: it may, in short, have uncovered the arrangement both Evans and Dorsey were taking great pains to conceal. 10 10, 1987. After examining that testimony, we will turn to the testimony of Russell Parker, of Deputy Carter Hamilton, and of the other Atlanta police officers, closing with a look at the testimony of Detective Sidney Dorsey. C, Worthy'’s Auqust 10th Testimon The testimony Ulysses Worthy gave on August 10th accorded in most fundamental respects with his July 9th account, (even setting aside for a moment his specific, point-by-point reconfirmation on cross-examination of virtually every important feature of his earlier testimony). Worthy agreed, after some initial confusing testimony about Deputy Carter Hamilton’s role, that "an officer on the case +... made [a] request for [Evans] to be moved," (Fed. III 50).° Moreover, in response to questioning from this Court, Worthy confirmed the following: THE COURT: But you’re satisfied that those three things happened, that taiey asked to have him put next to Mclleskey, that they asked him to overh:ar McCleskey, and that they asked him to juestion McCleskey. THE WITNESS: I was asked can -- to be placed near McCleskey’s cell, I was asked. THE COURT: And you’re satisfied that Evans was asked to overhear McCleskey talk about this case? THE WITNESS: Yes, sir. THE COURT: And that he was asked to kind of try Worthy testified that he did not consider Fulton County Deputy Sheriff Carter Hamilton to have been "an officer on the case." (Fed. III 49, 65). 11 to draw him out a little bit about it? THE WITNESS: Get some information from him. (Fed. III 64-65; id 26-28). It is only on two related points =-- exactly when Evans’ move was requested, and the number of (and participants in) various meetings -- that Worthy’s August 10th testimony varies from his July 9th testimony. Worthy’s most noteworthy change on August 10th was his suggestion that the official request to move Evans came only at the close of the meeting between Evans and the Atlanta "investigators," apparently including Russell Parker. (Fed. III 16-19; 1d. 36-38). Worthy attempted to explain that his earlier testimony had simply been misunderstood, and that his first and only meeting with investigators, including Dorsey, had in fact been the meeting attended by Russell Parker. (Fed. III 15-17; id. 36-37). Yet Worthy’s July 9th testimony made distinct references to (i) an initial meeting, attended by Detective Dorsey, Offie Evans, and Worthy, (Worthy could not recall whether Dorsey’s partner or "any other people" were present), (Fed. II 148) and (ii) a "subsequent meeting with Mr. Evans which occurred on a "later occasion" when "those detectives ... came back out." (Fed. IT 151). In his July 9th testimony, Worthy recalled that it was only at this "later" meeting that Russell Parker was present. (Fed. iII 151). Worthy could not recall on July 9th whether Detective Dorsey even attended this second meeting. (Fed. II 151). 12 It is impossible to harmonize Worthy’s July 9th testimony with his August 10th testimony on this point: one must be credited, the other discounted. Worthy’s July 9th account, as we have seen, fits neatly with the other record evidence. By contrast, Worthy’s August 10th account is in conflict with all other physical and testimonial evidence presented by either side. We will briefly examine the conflicts which would arise if the August 10th account were to be credited. (1) Russell Parker testified that he met with Evans at the Fulton County Jail only once, on July 12, 1978. (Fed. I 183). Parker’s written notes of that meeting reflect that, at the very outset, Evans informed the assembled investigators that he was "in a cell next [to] McClesky [sic]." (Pet. Ex. 9, at 6). Evans’ extended accounts of his conversation with MeCleskey and Dupree, =-- which are reflected in Parker’s notes of July 12th (Pet. Ex. 9) and, in expanded form, in Evans’ later written statement, constitute, by themselves, overwhelming proof that Evans must have been moved prior to July 12th, since by July 9th he had already begun an extended series of conversa:ions with McCleskey and his partner Dupree. (2) Moreover, Evans’ written statement makes reference to- his physical location in the jail, indicating that Dupree spoke of McCleskey and Evans as being "down there," on the first floor. (Pet. Ex. 8, at 9). At another juncture in the statement, Evans explicitly stated that [tlhe only way that Dupree could hear us talking was that he would have to be up to the vent cause he was 13 over us, so we laid down on the floor, McClesky [sic] was on the floor and I was on my bed, and we talked around the bars, and we talked around the bars from the front part of the cells. (Pet. Ex. 8, at 19-20). Thus Evans’ statement demonstrates that he must have been moved prior to July 12, 1978, and that Worthy’s August 10th testimony to the contrary is erroneous. (3) Finally, other evidence demonstrates that during his meeting with Russell Parker, Evans handed to Parker two notes which had been physically passed by McCleskey to Evans from his adjacent cell. (See Pet. Ex. 9, at 5; Pet. Ex. 8, at 14; Fed. I 148-49). It is impossible to explain how Evans could have overheard conversations between McCleskey and Dupree on July 8th, have engaged in extensive conversations with McCleskey on July 9th and 10th, much less have received written notes from McCleskey prior to July 12th, if Evans himself was not moved to a nearby cell until after July 12th. Nor would it make sense for Atlanta investigators to request a move on July 12th if the fruits gathered by Evans prior to that time had already been obtained without such a move. On this point, then, Worthy’s August 10th testimony seems irrefutably mistaken. * %* * %* Why did Worthy, whose July 9th testimony was plausible and consistent, find himself so confused and contradictory on these points by August 10th? The Attorney General has suggested that, on July 9th, Worthy was simply "hit cold" (Fed. III 59) but that, during the interval before the August 10th hearing he was given 14 "an opportunity to think about it". (Id.) If that theory were correct, however, we would expect to find Worthy’s earlier testimony confused and contradictory and his later testimony clear and coherent. Instead, we find precisely the reverse. What else then -- besides the Attorney General'’s "opportunity to think" -- occurred during that July 9 - August 10th interval? One answer irresistibly suggests itself. Worthy on July 9th did not understood the facts in dispute, the legal issues, or the significance of his own testimony for McCleskey's constitutional claims. (Fed. III 52-53). Subsequently, however, he read an Atlanta newspaper article announcing McCleskey’s stay of execution, describing the legal and factual issues, and focusing on his own critical testimony. (Fed. III 55-56). Worthy also spoke during the thbervAlE with lawyers for the State of at least two occasions, one of them a formal meeting at the Fulton County Courthouse. (Fed. III 53-54). We respectfully submit that Mr. Worthy, a Fulton County deputy sheriff for nineteen years, found himself, after reflection, not with a better memory for the facts, but rather with a growing reluctance to adhere to testimony that would implicitly place blame on a fellow police officer, Detective Sidney Dorsey. Worthy surely recognized, after his discussion with State attorneys, that his account of a jailhouse meeting between Dorsey and Evans prior to July 12, 1978, during which they discussed an informant relationship, would not only jeopardize the McCleskey conviction and death sentence, but would 15 also implicate an active-duty fellow officer in unconstitutional behavior. We submit that, on August 10th, Worthy attempted a hopeless compromise of his testimony. Unshaken in his basic story (i) that a move was made (ii) at the request of the police (iii) for purposes of eliciting testimony from McCleskey, Worthy nevertheless attempted to compress his July 9th account of two meetings into one meeting and to avoid any direct and damaging reference to Detective Dorsey (as opposed to a vaguer "officer on the case.") Upon examination, Worthy’s August 10th testimony bears certain marks of this compromise. Although Worthy spoke on August 10th of a single meeting at which he had been present, not once on direct exaninagion did he specifically refer to the date of that meeting. Nor did he once expressly confirm on direct examination that this was the meeting Russell Parker had attended; instead, he ambiguously stated that Evans had telephoned "either the District Attorney’s Office or the police department," (Fed. III 14), and he spoke vaguely, as did the Attorney General, of a meeting with "investigators of the Schlatt murder." (Fed. 1IX 15-186). Moreover, on cross-examination, Worthy declined to deny or repudiate any of his statements made during the July 9th hearing which plainly describe two meetings, one earlier with Dorsey, one later with Parker. In sum, Worthy left his testimony on these points in a hopelessly confused muddle, on which he could shed no light (Fed. III 35-36), even 16 when pressed by the Court to clarify his remarks. (Fed. III 61- 64) . On this record, Worthy’s July 9th testimony is credible and consistent; his August 10th testimony on this point is not. The Court’s August 10th observation that it "could think of the reason to discredit Worthy’s testimony" (Fed. III 119) is warranted the whole; the Court should, however, reject Worthy’s clumsy attempt on August 10th to protect Detective Dorsey. D. The Testimony of District Attorney Parker Assistant District Attorney Russell Parker firmly denied ever meeting with Evans prior to July 12, 1978. (Fed... I 142; Fed. III 109). He also testified that he never requested that Offie Evans be moved near McCleskey or that Evans act to overhear or elicit information from McCleskey in the cell. (Fed. III 111- 12). There is no reason, we believe, to doubt Mr. Parker on these points. Warren McCleskey’s constitutional claim does not depend on whether Parker was personally aware of the informant relationship. Parker never claimed that he possessed full knowledge of all steps taken by other officers investigating the case. To the contrary, he had no recollection of Detective Dorsey’s role in the McCleskey case at all (Fed. I 131; Fed. III 113), and more specifically, he did not remember Dorsey’s presence at the July 12, 1978 meeting, even though his own notes indicate that Dorsey attended that meeting. (Fed. I 131; Fed. III 113). Moreover, Parker was not aware of any interviews apart from the ones he 17 attended on July 12 and on August 1st (when Evans’ written statement was taken at the Fulton County Courthouse) even though Ulysses Worthy indicated that police officers came several times to the jail to meet with Evans. (Fed. 1 159). Furthermore, Parker stated that he made no inquiries at all about Evans’ custodial arrangements. (Fed. I 168; Fed. II 76; Fed. III 114- 15). Even Evans’ prior role as an informant for the Atlanta police -- a fact well known to Detective Dorsey -- was unknown to Parker: Q. Do you recall any of the officers of the Atlanta Bureau of Police Services ever telling you that Evans had been an informant for them or had given reliable information in the past? A. If they did, I didn’t make a mental note of it and I didn’t make a written note of it. (Fed. II 85-86). Parker’s ignorance of Detective Dorsey’s conduct is fully consistent with Detective Dorsey’s own testimony that he often worked independently from other investigators on a case (Fed. II 48-49), and that he did not think other officers on the McCleskey case knew of his relationship with Evans. (Fed. II 61). In sum, Parker, who did not directly supervise all police actions in this case and who had especially little to do with Detective Dorsey, credibly disclaimed any knowledge of the Dorsey - Evans meeting, the move of Evans, or the request that Evans act as an informant. This disclaimer does not in the slightest impair the strong likelihood that such events took place =-- in Parker’s absence, and without his knowledge. 18 E. The Testimony of Deputy Hamilton Deputy Sheriff Carter Hamilton’s testimony substantially confirms certain basic elements of Worthy’s July 9th testimony, and contains virtually nothing that would undercut it. Hamilton testified at the July 9th hearing that he had no contact with Offie Evans prior to July 11, 1978. (Fed. I. 177). Furthermore, he had no clear recollection of Evans’ arrest or of his initial custody arrangements within the Fulton County Jail, only a "guess" that Evans would have been placed in isolation. (Fed. I 177-78). During the August 10th hearing, Hamilton acknowledged that he worked only one shift on the first floor of the jail (Fed. III 72, 76) and that, because the jail contained at least 800-900 inmates at any one time, Hamilton would not normally have, and did not, learn of Evans’ presence, until he was moved to a first-floor cell within his area. (Fed. III 74-78). All Hamilton could say about Evans’ custody was that, once Evans had been placed next to McCleskey on the first floor, no one thereafter requested him to move Evans (Fed. III 69), and Evans was not thereafter moved. (Fed. III 68). Hamilton, who was present throughout the July 12, 1978 meeting in Worthy’s office, confirmed that no one requested Evans at that time to overhear or initiate conversations with McCleskey. (Fed. IlI 70). Hamilton also denied asking Worthy for permission to move Evans following that July 12th meeting (Fed. III 70-71), since Evans had in fact already been placed in 19° a cell next to McCleskey prior to July 12th. (Fed. III 71-72). Thus, Deputy Hamilton’s testimony confirms that any request for Evans to be moved -- and Evans’ move itself -- must have occurred prior to July 12, 1978. This testimony buttresses Worthy’s original account of the sequence of the crucial jailhouse events in July of 1978. F. The Other Police Witnesses Like the testimony of Russell Parker, the testimony of the Atlanta police witnesses (exclusive of Sidney Dorsey, whom we treat separately below) does little or nothing to undercut the force or credibility of Worthy’s July 9th account. Detective Harris recalled that he had been the partner of Detective Jowers during the investigation of the McCleskey case (Fed. I 193), and that he had only a "vague recollection" at most of Detective Dorsey’s role in the investigation. (Fed. I 206; id. 195; Fed. IIT 107). Harris did not recall ever seeing Evans before July 12th (Fed. I 200; Fed. II 13; Fed. III 102-03), and did not know that Evans had previously served as an informant. (Fed. I 200-01; Fed. III 105). Jowers did not attend the July 12th meeting and neither knew Evans previously nor even spok2 with him during this investigation. (Fed. II 35-36); Harris’ testimony presents only one minor point of conflict with other evidence. Offie Evans testified in state habeas corpus proceedings in 1981 that he met with Atlanta police officers in 1978 prior to his meeting with Russell Parker. (Pet. 20 Ex. 16, at 119). At one point in his testimony, Evans identified the officers at that initial meeting as "Harris and Dorsey." (Id. at 117). At a later point, Evans spoke of the meeting as one with "Detective Dorsey" (id. 119), describing the Giglio discussion the two had engaged in without mentioning Harris’ presence or involvement. (Id. 120-22). Asked specifically about Evans’ 1981 testimony, Detective Harris denied that he had been present at any such meeting. Whether Harris was present or not, however, is irrelevant to McCleskey’s constitutional claim. If Harris was not present, there exists at most a minor failure of recollection by Evans about the identity of a passive participant in a meeting whose active participant was clearly Dorsey. If Harris was present and now fails to recall the event or is covering up his participation, revelation of that fact could only strengthen McCleskey’s contention. In sum, like Parker’s and Hamilton’s testimony, the testimony of the other Atlanta police officers does not undercut McCleskey’s claim. Each officer has denied personal participation in the improper conduct, yet each had very little contact with Detective Dorsey or knowledge of his role in the case. It remains perfectly plausible that Dorsey and Evans may have agreed upon, and consummated, a surreptitious plan to obtain evidence from McCleskey, without the slightest knowledge or participation by Harris or Jowers. G. The Testimony of Detective Dorsev The least trustworthy testimony offered during these 21 hearings came from Atlanta Police Detective Sidney Dorsey. He testified that he was assigned to investigate the murder of fellow ofticer Frank Schlatt in 1978. (Fed. II 47). He alone had a prior, confidential informant relationship with Offie Evans (Fed. II 53) which he clearly had relied upon in other cases. (Fed. II 49-53). Although Evans would ultimately provide critical evidence pointing to McCleskey as the triggerman, Dorsey professes a total lack of memory concerning any details of his relationship with Evans in this case: Q. Okay ... [Evans] found himself in the Fulton County Jail in July of 1978. Did you go see him at any point in July? A. Counselor, I do not recall going to see Offie Evans at the Fulton County Jail during that time or any time. Q, Do you remember any meetings that might have been held between Mr. Evans and yourself and Detective Harris and Russell Parker at the jail? A. Counselor, in all honesty, I do not. %* %* * %* A. I’m not suggesting that the meeting didn’t take place, nor am I suggesting that I wasn’t there. I just don’t recall being there and for some reason no ore else remembers my being there either. (Fed. II 57-58, 59-60). As the excerpt above reveals, Dorsey was unwilling to deny ‘categorically during the July and August hearings that he had met with Evans during the McCleskey investigation. On the contrary, he acknowledged that he "probably did" meet with Evans (Fed. II 60), that it was "very possible" he had done so, (Fed. II 66). He simply could not remember. 22 jve Dorsey’s motive in 1978 for working with oOffie Detect lice Evans in this case could not have peen clearer. A fellow po . one officer had been killed. Four suspects had been arrested N of them had positively been identified as the triggerman. Dorsey had been assigned to the case. At some point == at least by July 12th he must have found out that his own informant Offie Evans, whom Dorsey deemed to be nreliable" (Fed. IT 62), with whom he had developed a fruitful relationship extending back several years (Fed. II 52-53), was in the Fulton County Jail, where McCleskey was being held. Dorsey surely must have realized that if Evans would agree to work for him as an informant, he could break the case. This Court has previously found, relying on Offie Evans’ undisputed testimony, that Detective Dorsey did at some point meet with Offie Evans and promise to "say a word for him" if Evans would give evidence against Warren McCleskey. For someone like Dorsey, the deal made perfect sense. Yet, since it was unconstitutional , it also made eminent sense for Dorsey to act alone, without drawing other investigators or District Attorney Parker into his plans. Therefore, we submit, Parker, Jowers and Harris were deliberately kept in the dark about Dorsey’s arrangement, about the move, and even about Dorsey’s prior relationship with Evans. ~~ These other investigators were clothed with "deniability" by this stratagem, and they could testify that no unlawful arrangement had been made with a clear conscience. Dorsey, as the malevolent actor, thus kept his distance from the others and they, in turn, whether 23 consciously or subconsciously, minimized or forgot his role in the case. Dorsey’s presence was, however, necessary at the outset of the July 12th meeting; he, after all, was the Atlanta investigator who knew Evans and commanded his confidence. Yet once Evans delivered the goods to Parker and Harris on July 12th, Dorsey’s continuing presence was an affirmative risk. Consequently, Dorsey did not attend the August 1st session during which Evans’ written statement was taken, and he was the only police officer closely connected to the McCleskey case who did not testify at McCleskey’s trial. (District Attorney Parker did call officers L.G. Beard (T. Tr. 325), W.K. Jowers (T. Tr. 359); Lt. W.K.- Perry {(T. Tr. 477), Welcome Harris (T. Tr. 576), and Sgt. H. W. McConnell (T. Tr. 801)). When confronted with Warren McCleskey’s 1987 federal petition and the prospect of a hearing in this case, we submit that Detective Dorsey chose the implausible but impregnable position of a massive memory loss. He reasoned that other investigators would have no firsthand knowledge of the arrangements, and that the only other direct accomplice in the arrangement, Evans himself, would be unavailable to testify. Although Evans had unwittingly discussed his meeting with Dorsey during his 1981 state habeas testimony, Evans’ testimony did not directly address his informant relationship, only a Giglio deal that had been found by the Eleventh circuit to have been legally 24 insufficient to state a constitutional claim.’ The only risk in Dorsey’s approach was that his 1978 arrangement with Offie Evans had required a third actor, someone in authority at the Fulton County Jail who would agree to move Evans from a distant cell to one adjacent to Warren McCleskey'’s. That person, we have found, was Ulysses Worthy. Worthy’s serendipitous appearance at the close of the July 9th hearing, and his straightforward account of what happened at that meeting, allowed the entire arrangement to come to light. To sum up, we submit that Detective Dorsey’s testimony in this case is unworthy of belief. Displaying excessive zeal on behalf of a fallen fellow officer, Dorsey in July of 1978 chose a course of unconstitutional conduct in an attempt to gather evidence and solve this case. A twist of fate has led petitioner McCleskey to uncover this illegal conduct and to reveal the false course Dorsey has followed in covering his tracks. H. Conclusion Ulysses Worthy's July 9th testimony, after close examination, bears the hallmarks of truth: (i) it was given by "When Dorsey’s plan =-- about which we have speculated-- went awry and Evans’ testimony about the prior meeting with Dorsey became crucial, Dorsey during his August 10th testimony alleged for the first time that he had learned of Evans’ 1981 testimony from Russell Parker shortly after the state hearing and had, at that time, a "gut feeling then that the man was lying." (Fed. III 87). Dorsey admitted on cross-examination, however, that he made no written record to memorialize his 1981 reactions to the Evans testimony. (Fed. III 88). Notably, Dorsey did not mention this point when he discussed Evans’ testimony during the July 9th hearing in this Court. (Fed. II 64-66). 25 one who did not know its significance in advance; (ii) it is internally consistent; (iii) it coincides with the other reliable evidence; and (iv) it plausibly explains what actually happened. Detective Dorsey’s testimony, by contrast, can make no claim to credibility: (1) it was given by one who had admittedly coordinated his testimony with other witnesses; (ii) it is internally inconsistent; (iii) it conflicts with other reliable evidence; and (iv) it is wildly implausible. The testimony and documentary evidence either supports Worthy’s basic account or, at a minimum, is fully consistent with it. Worthy’s attempt on August 10th to revise those portions of his story that shed unfavorable light on Detective Dorsey are the only aspects of his testimony that do not merit this Court’s acceptance. | 1 OFFIE EVANS’ ACTIONS AS A STATE INFORMANT VIOLATED WARREN McCLESKEY’S SIXTH AND FOURTEENTH AMENDMENT RIGHTS U!DER MASSIAH V. UNITED STATES The constitutional principles announced in Massiah v. United States, 377 U.S. 201 (1964) are not complicated. They prohibit the State from "us[ing] against [a defendant] at his trial ... his own incriminating words... deliberately elicited from him after he had been indicted and in the absence of his counsel." 377 U.S. at. 2065, The Court, drawing on Sixth Amendment principles as old as Powell v. Alabama, 287 U.S. 45 (1932), reasoned in Massiah that an indicted defendant is entitled to the assistance of counsel during any State interrogation. w/11}f such 26 a rule is to have any efficacy’" the Court held, "’it must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse.’" Id. at 206. Subsequently, in United States v. Henry, 447 U.S. 264 (1980), the Court addressed a case in which a Government informant, one Nichols, had been placed in a cell near that of detainee Henry. The informant, though instructed by an FBI agent "not to initiate any conversations with or question Henry regarding the [crime]," 447 U.S. at 266, nevertheless admitted at trial that "he had ‘an opportunity to have some conversations with Mr. Henry’" which ultimately led to incriminating statements. 447 U.S. at 267. The Supreme Court found a violation of Massiah: Even if the agent’s statement that he did not intend that Nichols would take affirmative steps to secure incriminating information is accepted, he must have known that such propinquity likely would lead to that result ... Nichols was not a passive listener: rather, he had ‘some conversations with Mr. Henry’ ... and Henry’s incriminating statements were ‘the product of this conversation.’ Id. at 271. During the past twe years, the Court has spoken twice more on Massiah. In Maine v._ Moulton, U.s. +88 L.Bd.24 48% (1985), it reaffirmed its earlier teachings and extended Massiah to cover surreptitious interrogation by a co-defendant. The co- defendant, in exchange for a State promise of consideration on his then-pending charges, agreed to meet with defendant Moulton, while wired with a body transmitter, to discuss the crime and the pending charges. 88 L.Ed.2d at 488-89. Moulton’s statements ef were ultimately used against him at trial. The Court rejected the State’s proposed distinction that the meeting had been arranged by defendant Moulton, not the informant: [Klnowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to assistance of counsel as is the intentional creation of such an opportunity. 88 L.Ed.2d at 496. The Court also found the informant’s actions were not those of a passive "listening post," noting that the informant had "’frequently pressed Moulton for details of [the crimes] .. and in so doing elicited much incriminating information that the State later used at trial.’" 88 L.E4d.24 at 496-97 n.13. Compare United States v. Hicks,798 F.2d 446 {11th Cir. 1986), Last Term in Kelilnan ¥Y. Wilson, ~~ U.s. .9) T..Pd.24 364 (1986), the Court held that the State’s use of information secured by "a Jailhouse informant who was ‘placed in close proximity but [made] no effort te stimulate conversation about the crime charged,’" did not +wviolate a defendant’s Sixth Amendment rights. 91 L.Ed.2d at 332. Chief Justice Burger, in concurrence, noted the "vast difference" under the Constitution "between placing an ‘ear’ in the suspect’s cell and placing a voice in the cell to encourage conversation for the ‘ear’ to record." 91 L.Ed.2d at 38s. The application of these principles to the present case requires that petitioner be granted habeas relief. Offie Evans was an informant, well-known to Detective Sidney Dorsey, one of 28 the Atlanta policemen investigating the murder of Officer Frank Schlatt. Dorsey (or another officer) as we have shown, requested and received permission to move Evans from another part of the Fulton County Jail to a cell adjacent to McCleskey'’s. Once there, Evans began an aggressive campaign of deception and persistent questioning, which was focused directly on the Schlatt case and McCleskey’s role in it. Evans’ questioning elicited seriously incriminating admissions from McCleskey. Perhaps unwittingly, these illegal statements were gathered by Russell Parker and used as key elements of the State’s case against McCleskey, both at the guilt and at the penalty phases of his trial. Nothing more is necessary to require reversal under Massiah, Henry, and Kuhlman. 29 II THE STATE FAILED TO DISCLOSE TO DEFENSE COUNSEL (i) SIGNIFICANT CONFLICTS BETWEEN OFFIE EVANS’ TRIAL TESTIMONY AND HIS EARLIER WRITTEN STATEMENT AND (ii) IMPORTANT EXCULPATORY EVIDENCE, ALL IN VIOLATION OF PETITIONER’S RIGHT TO THE DUE PROCESS OF LAWS As long ago as 1935, the Supreme Court held that "knowing use" by the State of perjured testimony would violate the federal Due Process Clause. Mooney v. Holahan, 294 U.S. 103, 112-13 (1935); Pyle v. Kansas, 317 U.S. 213 (1942). "The same result,” the Court thereafter has held, "obtains when the State, although not soliciting false evidence, allows it to go uncorrected where it appears." Napue v. Illinois, 360 U.S. 264, 269 (1959). The Court has also condemned a prosecutor’s knowing use of testimony “that, while not technically false, is deliberately and materially misleading. In Alcorta v. Texas, 355 U.S. 28 (1957), the Court reversed a murder conviction obtained by a prosecutor whose key witness had, with the knowledge of the State, given testimony [which] taken as a whole, gave the jury [a] ... false impression [about] ... his relationship with [the defendant’s] wife." 355 U.S. .at 31. The Court has set a stringent standard for reversal in such cases. It specified in United States v. Aqurs, 427 U.S. 97, 103 (1976) that "a conviction obtained by the knowing use of perjured Although the Court expressed its tentative view that it "could find no merit for granting the petition" on any of Warren McCleskey’s other constitutional claims, it declined to "make that as a final finding." (Fed. III 119). We strongly believe that Evans’ 2l-page statement and the testimony developed during the July and August, 1987 hearings substantiate McCleskey’s Due Process claims, as we explain in this section. 30 testimony must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. (emphasis added). Accord: United States v. Bagley, 473 U.S. 667, 679 n.9 (1985). The Court in Bagley in fact explained that "the standard of review applicable to the knowing use of perjured testimony is equivalent to the Chapman harmless-error standard, requiring the state to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Id.) This Circuit, has held, moreover, that the conduct of "an investigating police officer [who] willfully and intentionally conceals material information" has been held "imputed to the state as part of the prosecution team for such purposes." Freeman v. State of Georgia, 599 F.2d 65, 69 (5th Cir. 1979), citing Smith v. Florida, 410 F.2d 1349, 1351 (5th Cir. 1969); see Barbee v. Warden, 331 F.2d 842 (4th Cir. 1964). Thus knowledge of a police officer that renders a witness’ testimony false or materially misleading binds the State and requires reversal. In petitioner’s case, the recent revelation of Offie Evans’ 2l-page written statement -- witnessed and signed on every page by the prosecutor, his investigator, and an Atlanta police detective -- has uncovered serious discrepancies between what Evans told State investigators two months prior to trial and what Evans later told petitioner’s jury. Viewed as a whole, these discrepancies establish a major due process violation. At trial, Evans’ credibility was absolutely critical to the 31 State’s case against petitioner Warren McCleskey. Apart from the inherently suspect testimony of petitioner’s co-defendant Ben Wright -- himself the other most likely suspect in the shooting of Officer Schlatt -- no other witness directly linked petitioner to the shooting. It was essential that the State persuade the jury that Offie Evans’ account of petitioner’s conversations could be trusted. The State’s approach was to acknowledge that Evans had a long criminal record, but to present him nonetheless as a disinterested bystander in the Schlatt case. Toward that end, Evans tried to portray himself to petitioner’s jury as a passive "ear," an inmate who heard what petitioner had to say and simply came forward to tell what he had chanced to learn: "I am Just-- whoever tt helps or whoever it harms, I am telling you what sa know ... like I said, I am telling it straight, whoever it helps, it helps; whoever it harms, it harms." (T.Tr. 881). Asked to give his motive for testifying, Evans explained that a deputy, after overhearing him talking with petitioner, came up to him and, "asked me what did I know about it ... said it sounded like a conspiracy." (T.Tr. 880) Evans suggested that the deputy was aware that he "had been messing around with Ben [Wright] in the street," (T.Tr. 872), became worried that he might be considered a "suspect" or a "conspirator" in the case. As a result, he decided to cooperate. Id.) "In short," Evans testified, he had "cooperated with the deputy in order [not to] ... have any hassle in this." {T. Tr. 881). 32 Evans firmly denied that he had any other personal motive for coming forward. He specifically disavowed that the prosecutor had "promised [him] anything for testifying" (T.Tr. 2368), informing the jury that he "wasn’t worrying about [any federal] escape charge. ... there wasn’t no escape charge." {(T.Tr. 882). He also told the jury that while he knew co-defendant Ben Wright from prison, he had never "run with him or nothing like that." His own bona fides established, Evans recounted for the jury how petitioner McCleskey had come to talk about the Dixie Furniture store crime. Evans testified that he and petitioner first "got into a conversation about Ben, and so he -- of course I told him that I knowed Ben real good ... so we kept on talking, and so we just kept talking until he started talking about how the robbery went down." (T.Tr. 870). Evans twice implied that petitioner had methodically planned the robbery, stating that he was "sure" that petitioner had gone "in and checked the place out a few days before they robbed it." {(T.Tr. 870; see id. 876) . While he told the jury of several statements in which petitioner had allegedly expressed his intention to shoot Officer Schlatt (T.Tr. 870, 871, 879-80), he never suggested to the jury that he knew McCleskey might have "panicked" before he shot Officer Schlatt. A review of Evans’ 2l-page statement reveals just how misleading the overall impact of Evans’ trial testimony actually was. Far from a passive "ear," Evans actively and aggressively sought out petitioner, courted his trust, and pried open the 33 story of the crime. Subsequent testimony from both Evans (St. Hab. Tr. 118) and from Deputy Carter Hamilton makes it clear, moreover, that Evans lied to the jury when he suggested that he had come forward only involuntarily, when "overheard" by the deputy. Instead, thoroughly armed with the information he had drawn from petitioner and Bernard Dupree, it was Evans himself who summoned the deputy and requested an interview with the police: Q. And you did not approach Offie Evans, it was Offie Evans who approached you, is that correct? A. That’s correct. Qe. All right. And you didn’t indicate to Offie Evans that you knew he had some relationship with Ben Wright, is that correct. Did you ever indicate to him that you knew that he had some relationship with Ben Wright? A. No, sir. (Fed. Tr. I at 169; id. at 181; Fed. III 78). Contrary to his trial testimony, furthermore, Evans was in fact promised something in exchange for his testimony: "The Detective told me that he would -- he said he was going to do it himself, speak a word for me. That was what the Detective told me." (St. Had). Apart from falsifying his own motivations for testifying, the 21-page statement reveals that Evans shaded his account of petitioner’s role for the jury in a manner that heightened its premeditated, calculated quality. Although he told the jury that petitioner had "cased" the furniture store several days before the robbery, the statement reveals that it was Mary Jenkins 34 (whose name is blotted out in the version received by petitioner) -=- not petitioner -- who "went over to the place about a week before the robbery ... [checking] the place out to see where the money drawer was." (Pet. Ex. 8, at 4). More critically, Evans omitted any reference at trial to the portion of his statement revealing that, when Officer Schlatt approached, "McCleskey said that he panicked, he just shot." (Pet. Ex. 8, at 6). Instead, he stressed at trial McCleskey’s alleged remark, "It would have been the same if it had been a dozen of them, he would have had to try to shoot his way out." (7.7Tr. 871). The overall effect of Evans’ testimony on petitioner’s jury, Just like the testimony of the key witness in Alcorta v. Texas, was falsely to convey the impression that he was a dispassionate and credible witness, who overheard a confession of a crime and who was simply "telling it straight." (T.Tr. 881). Yet in fact Evans had obtained his evidence by weaving a web of lies and insinuations, drawing McCleskey and Dupree into the web, and then, valuable evidence in hand, summoning State agents to make a deal. His artfully incomplete testimony at trial -- accentuating petitioner’s malicious intent in shooting Officer Schlatt -- was the key to the prosecutor’s case both at the guilt and at the sentencing phases of petitioner’s trial... The prosecutor stressed to the jury in his closing guilt-phase argument (see Tr. T. 959- 60) that Officer Schlatt’s shooting had been malicious, execution-style: That officer laying on the floor was not a threat to anybody, and yet [McCleskey] was not satisfied, he 35 wanted to be sure that he finished off the job, and it hadn’t have been for a little old plastic cigarette lighter, then his heart would probably have been torn out as well. %* * %* (T.Tr. 961). McCleskey says the police slipped up on him ... and if he saw the car pull in [and] the police didn’t slip up on him, he could have gotten out of that back door like the other three did, but he chose not to do that, he chose to go the other way, and just like Offie Evans says, it doesn’t make any difference it there had been a dozen policemen come in there, he was going to shoot his way out. He d4idn’t have to do that , +... he deliberately killed that officer on purpose. I can guess what his purpose was. I am sure you can guess what his purpose was, too. He is going to be a big man and kill a police officer and get away with it. That is malice. (T.Tr. 974-75). Even without knowledge of Evans’ duplicity, petitioner’s jury was out nearly two hours on guilt-or-innocence; it returned seeking "a definition of malice murder." (T.Tr. 1005-07). Had the jurors known of Evans’ deliberate deceit in approaching McCleskey, had they realized that Evans had been on a mission actively to secure testimony, had they known of his quid pro quo arrangement with Detective Dorsey, there is surely a "reasonable likelihood" that this kncwledge "could have affected" their judgment. United States v. Aqurs, 472 U.S. at 103. Even more certainly, had the jury been told that McCleskey had shot in panic, it seems now virtually impossible for the State to demonstrate "beyond a reasonable doubt" that the jury’s verdict on malice murder, its sentence of death, or both would not have 36 been different.? Evans’ statement that petitioner may have shot in panic, furthermore, was highly exculpatory with respect to petitioner’s possible sentence. Homicide cases are regularly deemed more aggravated if committed with wanton premeditation, and more mitigated if they are the product of a spontaneous or panicky response to a sudden show of force. In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court stressed that exculpatory evidence must be provided to the defense upon request, "where the evidence is material either to guilt or to punishment." 373 U.S. at 87. See e.d., United States v, Baglev, 472 U.S. 663, 674 (1985); Chaney Vv. Brown, 730 F.2d 1334 (10th Cir. 1984); Calley V.. Callaway, 519 F.2d4 184, 221 (5th Cir. 1975) (en banc) ("Brady requires the disclosure of material favorable in the sense of mitigation or exculpation") Since petitioner’s trial counsel filed a series of pre-trial Brady motions in this case seeking all exculpatory evidence, Evans’ statement should plainly have been turned over. During the July, 1987 hearing, respondent argued that the Two jurors have in fact averred that knowledge of Evans’ arrangement with Detective Dorsey would likely have affected their sentencing verdicts. (Fed. Petition, Ex. F. ¢ 9-11; Ex. G, 99 1, 8-9). Both jurors have stressed that their verdicts depended heavily upon their judgments about Evans’ credibility. (See Fed. Petition Ex. F § 5-9; Fed. Petition, Ex. G 19 4, 10). These juror affidavits simply confirm the general rule that "[tlhe jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend." Napue v. Illinois, 360 U.S. at 269. 37 "prosecutor in this case did exactly what he was supposed to do" by delivering Evans’ statement to the trial court for in camera inspection. {Fed. Tr. I, at: 112). Yet Brady teaches that due process is violated by the withholding of exculpatory evidence "irrespective of the good faith or bad faith of the prosecution," 373 U.S. at 87; cf. Giglio v. United States, 405 U.S. 150, 154 (1972). While the Supreme Court has recently suggested that a slightly higher standard must be employed in assessing the materiality of evidence withheld by the State in violation of Brady -- whether "there is a reasonable probability had the evidence been disclosed to the defense, the result of the proceeding would have been different," United States v. Bagley, 473 U.S. 667, 682 (1985) -- the evidence of panic in this case is sufficiently material to meet the Bagley test. CONCLUSION Petitioner’s writ of habeas corpus should be granted; his conviction and death sentence should be vacated: and his case should be remanded for a fair trial conducted urder procedures guaranteed by the federal constitution. Dated: September 9, 1987 Respectfully submitted, ROBERT H. STROUP 151 Walton Street Atlanta, Georgia 30303 (404) 522-8500 JOHN CHARLES BOGER 99 Hudson Street York, New, Yo 10013 Re/s5: TORNEYS FOR PET ONER ARREN McCLESKEY