Post-Hearing Briefs

    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 

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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. 

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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