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July 28, 1991 - September 13, 1991
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SER-13-*81 FRIZ17:15 TIMROBERT WW, "CULLEN TEL MO: 4@84 521-
ad 25-13-91] 16:43
DISTRICT ATTORNEY FLINT CIRCUIT
325 Paz red Ee
a1
IN THE SUPERJIQR COURT OF BUTTS COUNTY
STATE OF GEORGIA
WARREN MCCLESKEY, t CIVIL ACTION NO
PETITIONER 1 §1-QV=1660
V8. HABEAS CORPUS
WALTER D, ZANT, WARDEN,
RESPONDENT ;
ORDER
Petitioner is before the Court on his third petition foi
habeas Qorpus relief in the state courts, ié ha file A "r
for stay of execution now scheduled by order of the Superic
Court of Pulton County. Respondent has filed a metion to dismiss
the petitien, Petiticner's procedural history is set out at
pages 1-5 of the presant petition, and at pages 2~5 Qf
Respondent's motion to dismies.
Patitioner's sole claim in the present petition is a viola-
tion of his Sixth Amendment rights undel Magsiah v United
Stateg, 377 U.8, 201 (1964). Petitioner raised this igsue in nis
first and second gtate habeag proceedings, Thies urt, based on
#325 PE
SEF-13-'21 FRY 17:15 1D:ROBERT 4). CLU LEN TEL HO:4R4 221-1923
@9-,13-81 16: 44 DISTRICT ATTORNEY FLINT CIRCUIT ee2
tha evidance presented to it, denied Petitioner relief on his
Macsiah claim in 1981. A similar claim in Petitioner's succes-
sive petition in 1987 was barred by res judicata principlas,
Patitionar'a additional evidence on hia Masmsiah claim comes
from a retired jailer, Ulyssas Worthy, Mr, worthy gave testimony
at Petitioner's 1967 U.8. District court haaring. while Mr.
Worthy's testimony contradicted the testimony of other witnaases,
it has been found to be less than e¢onclusive in other procead=
inga. 8ee Depree v, Newsome (Respondent's Exhibit No. 5).
Petitioner has asserted a Massiah claim in three atate
habeas petitions. The Court finds that this present claim is
barred by res Judicata, See Stevens v. Kemp, 254 Ga, 228 (1985),
Additionally, the Court finds that any additional facts sup-
Plementing this claim could have been presented, with reasonable
utilization of discovery methods available in habeas actions, in
Petitioner's firgt habeas action, ‘Therefore, the Court finds
that this claim is now also barred by the provisions of OCGA,
gsaction 9-14-51,
With respect to a "miscarriage of justice” review of the
claim under the provisions of OCGA, Section 9«14~48(d), dicta in
the opinions of both the united States Court of Appeals and the
Bupreme Court of the United States confirm the lack of evidence
showing a miscarriage of Justice. Further, this Court has found
nothing in this cage indicating "factual innocence®,
EEFP~-13-"21 FRI1 17:16
. 89-13-91
Accordingly, tha
| miss. Petitionar's
This 13th day of
—
ID: ROBERT Ll.
1E: 44
motion
CULLEM TEL HO: 484 521-1929 H325 Pid
DISTRICT ATTORNEY FLINT CIRCUIT Ba3
Court grants Respondent's motion to dis~
fox Atay of execution ig danied.
Saptember, 1991,
jr 1
[SAY Lyd el - HAL CRAIG
JUDGE SUPERJOR COURTS
FLINT JURICEAL CIRCUIT
IN THE SUPERIOR COURT OF BUTTS COUNTY
STATE OF GEORGIA
WARREN McCLESKEY, * CIVIL ACTION NO.
Petitioner, * 91-V-3669
*
VS. *
*
WALTER D. ZANT, Warden,
Georgia Diagnostic &
Classification Center,
Respondent.
HABEAS CORPUS
*
%
¥
*
PETITIONER'S MOTION FOR A STAY OF EXECUTION
COMES NOW petitioner Warren McCleskey, by his undersigned
counsel, and moves this Court for a stay of the execution of his
death sentence, presently set to be carried out sometime between
Tuesday, September 24, 1991 and Tuesday, October 1, 1991. In
support of his application, petitioner shows the following:
1. A timely petition for a writ of habeas corpus was filed
in this Court on June 13, 1991. It is currently pending before
the Court. In that petition, petitioner alleges that his case
presents a meritorious constitutional claim under Massiah v.
United States, 377 U.S. 201 (1964) and United States v. Henry,
447 U.S. 264 (1980), a claim which is not procedurally barred by
Georgia law.
2. Petitioner has shown in his petition and memorandum in
opposition that both 0.C.G.A. § 9-14-51 and Smith v. Zant, 250
Ga. 645, 652, 301 S.E.24 32 (1983) require this Court to
entertain petitioner's constitutional claim on its merits. Since
the Honorable J. Owen Forrester has concluded that claim itself
is meritorious (see State Habeas Petition, Exh. D), sufficient
grounds exist to warrant a stay of execution.
3. On September 9, 1991, the Superior Court of Fulton
County (Hon. William W. Daniel), entered an order requiring
petitioner's execution to be carried out by the Georgia
Department of Offender Rehabilitation sometime between Tuesday,
September 24, and October 1, 1991. (A copy of that order is
annexed as Exhibit A.)
4. Under these circumstances, the Court should grant a stay
of execution to ensure that it can rule on the merits of
petitioner's claim without the threat or distraction of a pending
execution.
Respectfully submitted,
Else rt Elece pn
Robert H. Stroup
141 Walton Street
Atlanta, Georgia 30303
(404) 522-8500
Mark E. Olive John Charles Boger
Georgia Resource Center University of North Carolina
920 Ponce de Leon, N.E. School of Law, CB # 3380
Atlanta, Georgia 30306 Chapel Hill, North Carolina 27599
(404) 898-2060 (919) 962-8516
ATTORNEYS FOR PETITIONER
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been
furnished by mail to Mary Beth Westmoreland, Esq., counsel for
respondent, at the following address: 132 State Judicial
Building, 40 Capitol Square, S.W., Atlanta, Georgia 30334.
>
This \>' aay of September, 1991.
Catses C20 Sore,
ATTORNEY FOR PETITIONER U
--———
-
FILED IN OFFicp
JE 9 1991
IN THE SUPERIOR COURT OF FULTON COUNTY CLERK
ik
RN SURERIGR © OURT
FULTON COUNTY GEORGIA
Cato ald Spy
STATE OF GEORGIA, : x CASE NO. A-40553
Vi
* MURDER
WARREN MCCLESKY,
: x
Defendant.
:
O RDFER
The Court having sentenced the defendant, Warren McClesky
on the 12th day of October, 1978, to be executed by the
Department of Corrections at such penal institution as may be
designated by said Department, in accordance with the laws of
Georgia, and;
The date for the execution of the said Warren McClesky
having passed by reason of a stay of execution entered by the
federal district court, and said stay having been lifted on
September 3, 1991, and the trial judge, the Honorable Sam P. as
McKenzie, now being deceased; the undersigned, as required by his
duties as Chief Judge of the Atlanta Judicial Circuit entered the
following Order;
IT IS CONSIDERED, ORDERED AND ADJUDGED by this Court that
within a time period commencing at noon on the 24th day of
September, 1991, and ending seven days later at noon on the 1st
day of October, 1991, the defendant, Warren McClesky shall be
executed by the Department of Corrections at such penal
institution and on such a date and time within the aforementioned
time period as may be designated by said Department all in
accordance with the laws of Georgia. :
EXHIBIT "A"
The Clerk is directed to serve a copy of this Order upon
the Commissioner of the Department of Corrections, the Warden of
the Georgia Diagnostic and Classification Center, Jackson,
Georgia, the Attorney General for the State of Georgia, the
District Attorney, the Defendant, and last known counsel of
record for the Degenimne.
This day of September, 1991.
BAe pd, rn
WILLIAM W. DANIEL, CHIEF JUDGE
SUPERIOR COURT
Atlanta Judicial Circuil
NOTE: The new time-period fe e execution fixed by the judge
shall commence not less than ten nor more than twenty days from
the date of the order. O0.C.G.A. § 17-10-40.
Counsel for Defendant:
Mr. Robert H. Stroup
141 Walton Street
Atlanta, Georgia 30303
Mr. John C. Boger
University of North Carolin&™
School of Law, CB # 3380
Chapel Hill, North Carolina 27599
”~
Draft 7/28/91
IN THE SUPERIOR COURT OF BUTTS COUNTY
STATE OF GEORGIA
* CIVIL ACTION NO.
91-V-3669
WARREN McCLESKEY,
Petitioner, *
VS. *
WALTER D. ZANT, Warden, * HABEAS CORPUS
Georgia Diagnostic & *
%*
*
Classification Center,
Respondent.
PETITIONER’S MEMORANDUM OF LAW
IN OPPOSITION TO RESPONDENT’S MOTION TO DISMISS
COMES NOW petitioner Warren McCleskey, by his undersigned
counsel, and files this memorandum of law in opposition to
respondent's Motion to Dismiss, dated July 5, 1991. As we will
demonstrate, respondent's motion is legally insufficient and
should be denied, for three reasons:
(1) First, as a matter of law, respondent relies on
principles of res judicata that do not avail him. Under settled
Supreme Court precedent, see, e.g. Smith v. Zant, 250 Ga. 645,
652, 301 S.E.2d4 32, 37 (1983); cf. Nelson v. Zant, Ga. (No.
91A0524) (June 25, 1991), res judicata has no application to this
case. Petitioner's constitutional claim is based on newly
available evidence that was withheld from him by State actors at
the time of his previous applications. The Supreme Court has
unmistakably affirmed the right of an applicant to bring forward
such a claim, even on a successive application:
The defendant has a right to rely on the accuracy of
the trial testimony of the state's witness where the
truth or falsity of his testimony is peculiarly within
the knowledge of the state and the state is under a
duty to reveal false testimony. Thus, we find
unpersuasive the state's argument that the defendant
should have discovered the state's breach of duty.
Smith v. Zant, 250 Ca. at 6532,
(ii) Second, respondent's motion to dismiss depends on
factual grounds that are irrelevant or untimely. Respondent's
twin factual arguments appear to be (a) that petitioner's
evidence is not "newly available," but was instead readily
discoverable in 1987 or earlier, and (b) that the totality of
petitioners's evidence does not suffice to prove a violation of
Massiah v. United States, 377 U.S. 201 (1964). Smith v. Zant
dictates petitioner's burden of proof in responding to
respondent's first argument. Under 0.C.G.A. § 9-14-51,
petitioner need only tender well-pleaded allegations that State
officials, although aware of the underlying misconduct petitioner
now complains of, failed to reveal it at trial or in initial
state habeas proceedings. Pettitoner in this case proffers
exactly the proof of State concealment that Smith requires.
Respondent's second factual argument -- that the record
facts do not suffice make out a Massiah violation -- is clearly
an attack on the merits of petitioner's claim. Georgia law
cleraly provides that motions to dismiss are not a proper vehicle
for resolution of the merits. Since petitioner's well-pleaded
allegations -- supported by sworn transcripts and affidavits --
allege a classic violation of Massiah and United States v. Henry,
447 U.S. 264 (1980), respondent's motion to dismiss must be
denied. A final decision on the merits must abide the
development of a full factual record.
(iii) Finally, respondent's claim that any Massiah claim
was "harmless error" likewise depends upon this Court's
consideration of a full factual record that has not yet been
placed before the Court. What is clear, at present, is that
United States District Judge J. Owen Forrester -- the one judge
in this case who has heard the relevant witnesses -- found that
[olnce the fact of the Massiah violation in this case
is accepted, it is not possible to find that the error
was harmless. A review of the evidence presented at
the petitioner's trial reveals that [informant Offie]
Evans' testimony about the petitioner's incriminating
statements was critical to the state's case. There
were no witnesses to the shooting and the murder weapon
was never found. The bulk of the state's case against
the petitioner was three pronged: (1) evidence that
petitioner carried a particular gun on the day of the
robbery that most likely fired the fatal bullets; (2)
testimony by co-defendant Ben Wright that petitioner
pulled the trigger; and (3) Evans' testimony about
petitioner's incriminating statements. As petitioner
points out, the evidence on petitioner's possession of
the gun in question was conflicting and the testimony
of Ben Wright was obviously impeachable. . « «. Because
the court cannot say, beyond a reasonable doubt, that
the jury would have convicted petitioner without Evans'
testimony about petitioner's incriminating statements,
petitioner's conviction for the murder of Officer
Schlatt must be reversed pending a new trial.
St. Hab. Pet., Exh. D, 29-31.
In addition, sworn affidavits from two of McCleskey's twelve
trial now confirm Judge Forrester's finding. These jurors aver
without hesitation: that Offie Evans was the key witness to the
identity of the murderer; that the jury's based its death
sentence largely on Evans' testimony; that the jury's reliance on
Evans stemmed from his apparent role as a disinterested witness:
3
that, had Offie Evans' secret relations with the police been
disclosed, at least two jurors would never have voted to convict
McCleskey of malice murder; and that, moreover, these jurors
would have held fast against imposition of a death sentence.
Given this sworn testimony from the jurors themselves, there is
no need to rely on second-hand speculations from persons who
weren't there: jurors who heard and decided the case assure us
that the State's use of Evans' testimony, far from "harmless
error," was the master stroke that sent McCleskey to Death Row.
I.
SINCE STATE ACTORS PREVIOUSLY WITHHELD
CRUCIAL EVIDENCE OF THEIR OWN
UNCONSTITUTIONAL CONDUCT, THE CONTROLLING
GEORGIA PRECEDENTS NOW REQUIRES THIS COURT TO
HEAR PETITIONER’S PRESENT CHALLENGE ON ITS
MERITS =-- DESPITE HIS PRIOR HABEAS
APPLICATIONS AND WITHOUT ANY RES JUDICATA BAR
Respondent's principal legal argument is a simple one:
"[Ulnder the principles of res judicata, this Court should
decline to review [petitioner's] issue." (Resp. Br. 1).! At
first glance, the controlling statute, 0.C.G.A. § 9-14-51,
appears to support respondent. It provides:
All grounds for relief claimed by a petitioner for a
writ of habeas corpus shall be raised by a petitioner
in his original or amended petition. Any grounds not so
raised are waived.
! Each reference to respondent's Motion to Dismiss and
Brief in Support, dated July 5, 1991, will be indicated by the
abbreviation "Resp. Br." followed by the number of the page on
which the reference may be found.
2%
However, the statute does not stop with a general
declaration of waiver, but goes on to create two important
exceptions to the general rule. It requires dismissal UNLESS:
[i] . . . the Constitution of the United States or of
this state otherwise requires or [ii] unless any judge
to whom the petition is assigned, on considering a
subsequent petition, finds grounds for relief asserted
therein which could not reasonably have been raised in
the original or amended petition.
The meaning of the second exception =-- requiring a state
habeas court to entertain the merits of any claim "which could
not reasonably have been raised" -- was authoritatively
interpreted by the Supreme Court of Georgia in Smith v. Zant, 250
Ga. 645, 301 S.E. 2d 32 (1983). This Court should closely examine
the circumstances in Smith, since they are nearly identical to
those at issue here.
John Eldon Smith, a death-sentenced Georgia inmate,
unsuccessfully sought state habeas corpus relief in 1977. Six
years later, in 1983, his federal claims exhausted, Smith
returned to the state habeas courts and asserted additional
constitutional claims, including a claim based upon newly
discovered evidence. He alleged that the prosecuting attorney
and a key State witness had made a deal, in violation of Giglio
v. United States, 405 U.S. 150 (1972), and Napue v. Illinois, 360
U.S. 264 (1959). _See Smith v. Zant, 250 Ga. at 645-646; id. at
650.72
> Smith had alleged in his second application that, in
1982, the defense team had obtained an admission from the
attorney who prosecuted Smith's case that he had failed to
disclose a pre-trial promise of leniency made to a key State's
5
Although Smith's 1983 petition was summarily dismissed by
the Superior Court, the Georgia Supreme Court granted Smith's
application for a certificate of probable cause. Following oral
argument, the Supreme Court affirmed the dismissal of most of
Smith's claims under 0.C.G.A. § 9-14-51. Id., 250 Ga. at 646.
However, Chief Justice Hill, writing for a unanimous Court,
remanded Smith's claims under Giglio and Napue, directing a full
hearing on their merits.
In granting Smith a full hearing, the Court brushed aside
the State's defense -- the same defense now asserted by the State
in McCleskey's case -- that Smith's defense attorneys should have
uncovered any alleged State misconduct earlier. The Court's
analysis is quoted in full:
The state did not meet petitioner's false
testimony claim on its merits, but defended
on the ground of waiver, contending that,
with due diligence, the defense could have
ascertained the necessary information, and
thus that the grounds for relief could
"reasonably have been raised in the original
or amended petition." OCGA § 9-14-51 (Code
Ann. § 50-127), supra. The state urges that
when, shortly after the trials, [the State's
witness] in fact pleaded guilty in exchange
for a life sentence, Smith and his lawyers
should have made further inquiry of [the
witness] and his attorney. This was not
done. Nor has the state shown that [the
State's witness] would have admitted his
alleged perjury had he been asked by defense
counsel.
The state's argument overlooks the thrust of
Napue v. Illinois . . . and Giglio v. United
witness. The witness had denied, during cross-examination at
trial, any such relationship. Smith v. Zant, 250 Ga. at 648~-
650.
States. It is not so much that [the State's
witness] testified falsely, but that the
state, by allowing this knowingly false
statement to stand uncorrected deprived the
defendant of a fair trial. Since the
prosecution has the constitutional duty to
reveal at trial that false testimony has been
given by its witness, it cannot, by failing
in this duty, shift the burden to discover
the misrepresentation after trial to the
defense. The defendant has a right to rely
on the accuracy of the trial testimony of the
state's witness where the truth or falsity of
his testimony is peculiarly within the
knowledge of the state and the state is under
a duty to reveal false testimony. Thus, we
find unpersuasive the state's argument that
the defendant should have discovered the
state's breach of duty. As was said in
Williams v. State, 250 Ga. 463 at 466, 298
S.E. 2d 492 (1983): "The state urges that
the defendant should have done more than he
did to protect himself. We find that the
state should have done more than it did to
protect the defendant's rights." See also
Price v. Johnston, 334 U.S. 266 (1948).
We, therefore, hold that Smith has alleged
facts, supported by affidavits, sufficient to
satisfy the requirements of OCGA § 9-14-51
(Code Ann. § 50-127), to entitle him to a
hearing on the merits of his false testimony
claim; i.e., petitioner has shown grounds for
relief which could not reasonably have been
raised in his original habeas petition. The
habeas court erred in dismissing Smith's
Napue-Giglio claim, and we remand this case
for a hearing on the merits of this issue.
Smith v. Zant, 250 Ga. at 651-652. (Emphasis added).
Petitioner McCleskey's present habeas petition, like John
Smith's successive petition, depends upon a prior State cover-up
of an unconstitutional conspiracy. Specifically, McCleskey has
proof that Atlanta police officers conspired with a jailhouse
informant, Offie Evans, to procure incriminating admissions from
McCleskey. The conspiracy was successful: Evans first spoke
7
with cellmate McCleskey and then, called by the State as a key
witness against petitioner McCleskey during his 1978 trial, used
the purported fruits of his secret interrogation to name
McCleskey as the triggerman in the crime. (See St. Hab. Pet. €¢
32-37.)° The Atlanta police officers invovled, as part of the
State's prosecutorial team, were obligated to disclose their
misconduct to the defense.* Instead, they lied, and permitted
Evans to lie, in order to obtain McCleskey's conviction.
* Each reference to the Petition for a Writ of Habeas
Corpus, filed by petitioner as an appendix to his Application for
a Writ of Habeas Corpus, dated June 13, 1991, will be indicated
by the abbreviation "St. Hab. Pet." followed by the number of the
page on which the reference will be found.
5 The United States Supreme Court has traditionally
imputed the misconduct of any member of the prosecution team to
the State itself. See, e.g., Mooney v. Holohan, 294 U. S. 103
(1935); Brady v. United States, 373 U.S. 83 (1963). The good
faith of some State actors cannot excuse the bad faith of others.
Especially is this true when Sixth Amendment claims are under
consideration. As Justice Stevens explained in Michigan v.
Jackson, 475 U. S. 625, 634 (1986),
Sixth Amendment principles require that we impute the
State's knowledge from one state actor to another. For the
Sixth Amendment concerns the confrontation between the State
and the individual.
See also Giglio v. United States, 405 U. S. 150, 154 (1972);
santobello v. New York, 404 U.S. 257, 262 (1971); Cf. United
States v. Bagley, 473 U. 8S. 667, 671 & n.4 (1986).
The lower federal courts have regularly applied this rule to
police misconduct of the sort at issue here. See, e.g., Freeman
Vv. State of Georgia, 599 F.2d 65, 69-70 (5th Cir. 1979) ("We feel
that when an investigating police officer willfully and
intentionally conceals material information, regardless of his
motivation and the otherwise proper conduct of the state
attorney, the policeman's conduct must be imputed to the state as
part of the prosecution team"); Barbee v. Warden, 331 F.2d 842
(4th Cir. 1964) ("The police are also part of the prosecution,
and the taint on the trial is no less if they, rather than the
State's Attorney, were guilty of the nondisclosure. . . "hid BF
Schneider v. Estelle, 552 F.2d 593 (5th Cir. 1971); Jackson Vv.
Wainwright, 390 F.2d 288, 296 (5th Cir. 1968); Curran v. State of
Delaware, 259 F.2d 707, 713 (3d Cir. 1958).
8
The teaching of Smith v. Zant is that McCleskey and his
counsel were entitled to presume that State witnesses told the
truth. In addition, they were entitled to rely upon the express
assurance by the prosecutor that no illegal informant
relationship marred the State's case. The prosecutor gave such
an express assurance in this case, in 1981, during a deposition
later admitted into evidence during petitioner's initial state
habeas proceedings in this Court:
Q. [Defense Counsel]: Okay. Were you aware at the time of
the trial of any understandings between Evans and any
Atlanta police department detectives regarding favorable
recommendation [sic] to be made on his federal escape charge
if he would cooperate with this matter?
A. [Assistant District Attorney]: No, sir.
Q. Let me ask the question another way to make sure we
are clear. Are you today aware of any understanding
between any Atlanta police department detectives and
Offie Evans?
A. No, sir, I'm not aware of any.
(Parker Dep., 9-10).
On cross-examination, the Assistant District Attorney
broadened his testimony:
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
of Mr. McCleskey?
A. TI 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.
(Parker Dep. 14-15).
Under Smith v. Zant, petitioner McCleskey thus has two
separate bases for his present entitlement to be heard on the
merits of his Massiah claim: (i) first, he relied on the State's
failure to disclose the Massiah violation when Offie Evans
testified during petitioner's 1978 trial; and (ii) second, he
relied on the prosecutor's denial of any Massiah violation during
his 1981 deposition.” Together, these misrepresentations, and
petitioner's justifiable reliance upon them, excuse petitioner's
failure to have brought forward evidence of State misconduct
earlier. They squarely meet the terms of 0.C.G.A. § 9-14-51's
second exception, as interpreted in Smith wv. Zant: the "grounds
for relief asserted therein . . . could not reasonably have been
raised in the original or amended petition."
II
THE FACTS ASSERTED BY THE RESPONDENT DO NOT
ENTITLE HIM TO A DISMISSAL OF PETITIONER’S
APPLICATION. AT MOST, THEY PRESENT DISPUTED
ISSUES WHICH SHOULD BE RESOLVED ONLY AFTER
FULL CONSIDERATION OF THE MERITS
As noted above, respondent launches two factual arguments in
his motion to dismiss. We will treat them in turn.
> It is, of course, immaterial whether prosecutor Russell
Parker himself knew about the Massiah violation. As indicated
above, see note 4, when he spoke, the law imputes to him the
knowledge of the entire prosecution team, including the
unquestionably knowledgeable participants in the police
conspiracy.
10
A. Respondent’s Assertion That Petitioner Should
Have Discovered The State’s Misconduct
Earlier Is Irrelevant Under Georgia Law. It
Is Also Factually Incorrect, As The Federal
District Court Found
1. The 21-Page Statement -- Respondent begins by
complaining that "[pJ]etitioner has failed to establish exactly
what newly discovered facts would justify this Court's re-
litigation of this issue and what facts he contends are newly
discovered." (Resp. Br. 10). Offie Evans' 2l-page written
statement, given to Atlanta police in August of 1978, is not
"new," respondent notes; petitioner had uncovered the statement
(no thanks to the prosecution or the State Attorney General's
Office) by 1987, when petitioner's second state application was
filed. (Id.; see also id. at 12-13).
Petitioner's claim, however, does not depend upon the 21-
page statement alone, but upon the carefully concealed story of
the Massiah violation which first came tumbling out of the mouths
of various witnesses, inadvertently, during a federal evidentiary
hearing in July of 1987 -- only after McCleskey's second state
application had been summarily dismissed. Turning to these
witnesses, respondent bundles together a handful of half-truths
and misrepresentations by insisting that "all . . . were readily
available at any time to testify." (Resp. Br. 10).
2. The Police Witnesses -- The police officers involved
in the conspiracy -- Sidney Dorsey and, perhaps, Welcome Harris -
—- were doubtless "available" in 1987. Indeed, petitioner
actively sought a state habeas hearing to put them under oath.
11
By summarily granting the State's 1987 motion to dismiss,
however, this Court deprived petitioner any meaningful
opportunity to obtain their testimony.
Moreover, as Judge Forrester found after listening to their
testimony in federal court, these police witnesses in 1987 were
actively covering up the Massiah violation and their own
involvement in it: "Unfortunately, one or more of those
investigating Officer Schlatt's murder stepped out of line.
Determined to avenge his death the investigator(s) violated
Clearly-established case law." (St. Hab. Pet., Exh. D, 31).
"Detective Dorsey," Judge Forrester observed, "had an obvious
interest in concealing any [Massiah] arrangement" (St. Hab.
Pet., Exh. E, 10); and this "complicated scheme . . . required
Evans and any officers involved to lie and lie well about the
circumstances." (St. Hab. Pet. 21).
For these reasons, Judge Forrester rejected any possibility
that petitioner could have obtained proof of the Massiah
violation by means of an informal interview with Detectives
Harris, Dorsey or the other detectives:
The state argues that petitioner's counsel should have
at least interviewed Detectives Harris and Dorsey and
Deputy Hamilton. Given that all three denied any
knowledge of [the details of the conspiracy to violate
Massiah] . . . it is difficult to see how conducting
such interviews would have allowed petitioner to assert
this claim any earlier.
(St. Hab. Pet., Exh. D, 25).
3. Offie Evans -- Respondent also faults McCleskey's
counsel for alleged failure to interrogate Offie Evans: "Mr.
12
Evans . . . testified before this Court in 1981, but was not
asked whether he had been moved or placed in a jail cell as an
agent for the State. Thus, Petitioner simply failed to pursue
that line of questioning." (Resp. Br. 11). Respondent's
assertion is false. Defense counsel Stroup pursued an entire
line of questioning on these issues, asking Offie Evans under
oath when he had been placed in solitary confinement at the
Fulton County Jail (1987 St. Hab. Tr. 116), whether there was a
"special reason" he had been put into solitary confinement (id.
116-117), whether he had been placed adjacent to the cell of
Warren McCleskey (id. 117), the identity of the investigators and
police officers who had spoken with him, when those conversations
with police had occurred (id. 117-118), whether he had been
promised anything in exchange for his testimony against Mr.
McCleskey (id.,122), and whether he had subsequently given
testimony against any other inmates in other cases. (Id. 126-
127).
Informant Evans, in response, never disclosed that he had
been moved from another cell to the cell adjacent to McCleskey's,
or that he had been asked by Atlanta detectives secretly to
interrogate Mr. McCleskey, or that he had agreed to do so, or
that he had subsequently given a 2l1l-page written statement to
Atlanta investigators.
4. Ulysses Worthy -- Finally, respondent faults petitioner
for not locating jailor Ulysses Worthy prior to McCleskey's 1987
state habeas application. During the 1987 federal hearing,
13
Worthy -- a retired jailor at the Fulton County Jail -- proved to
be a key witness concerning the Massiah violation. Jailor Worthy
testified that he had overheard Atlanta police detectives as they
met with informant Offie Evans, in Worthy's office at the jail,
during July of 1978. In Worthy's presence, the officers coached
Evans on his secret interrogation of McCleskey. According to
Worthy, Detective Sidney Dorsey (or perhaps another "officer on
the case") "asked Mr. Evans to engage in conversations with
McCleskey who was being held in the jail." To set up Evans'
questioning, these officers asked jailor Worthy to move Evans
from another part of the jail to a cell next to McCleskey. Judge
Forrester himself questioned jailor Worthy on the essential
points:
THE 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.
WITNESS: I was asked can -- to be placed near
McCleskey's cell, I was asked.
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 to draw
him out a little bit about it?
THE WITNESS: Get some information from him.
Judge Forrester ultimately found that "one or more of those
[who were] investigating Officer Schlatt's murder" (St. Hab.
Pet., Exh. D, 31) requested Captain Ulysses Worthy to move
informant Evans to the cell adjacent to Mr. McCleskey. Next, the
14
officers instructed informant Evans to "get some information"
from Mr. McCleskey about Officer Schlatt's homicide (St. Hab.
Pat., Exh. D, 21-23)
[Evans] was moved, pursuant to a request approved by
Worthy, to the adjoining cell for the purpose of
gathering incriminating information; Evans was probably
coached in how to approach McCleskey and given critical
facts unknown to the general public; Evans engaged
McCleskey in conversation and eavesdropped on
McCleskey's conversations with [co-defendant Bernard]
DuPree; and Evans reported what he had heard . . . to
Assistant District Attorney Parker.
(St. Hab..Pet., Buh. D, 23).°
Respondent suggests that, in light of Worthy's potentially
explosive testimony, McCleskey should now be faulted for failure
to have called him earlier:
Detective Harris freely mentioned the name of Captain
Ulysses Worthy when asked in the federal district court
proceeding. Petitioner has never indicated that he
attempted to contact Mr. Worthy or that he was
prevented from doing so in any fashion.
® In light of these and other comprehensive findings by
Judge Forrester on all aspects of the Massiah claim, we are
frankly baffled by respondent's unsupported declaration that
"there has never been any finding of a coverup or police
misconduct regarding any statement of Offie Evans." (Resp. Br.
15). See, e.9, St. Hab. Pet., Exh. D, 21, 28:
[T]he use of Evans as McCleskey alleges . . . developed
into a complicated scheme to violate McCleskey's
constitutional rights -- its success required Evans and
any officers involved to lie and lie well about the
circumstances. . . . Given the facts established
earlier, petitionr has clearly established a Massiah
violation here. It is clear from Evans' written
statement that he did much more than merely engage
petitioner in conversation about petitioner's crimes.
As discussed earlier, Evans repeatedly lied to
petitioner in order to gain his trust and to draw him
into incriminating statements. Worthy's testimony
establishes that Evans, in eliciting the incriminating
statements, was acting as an agent of the state.
15
(Resp. Br. 11). This suggestion, however, is a triumph of
hindsight. In 1987, there was no visible thread connecting
Ulysses Worthy (by then, long-retired as a jailor, working in
obscurity at Morehouse College) to McCleskey's case. Neither
his name nor his role had ever been mentioned by anyone. He
played no known role in the police investigation. He had assumed
no special responsibility for McCleskey, and in 1978, had been
but one of hundreds of jailors working in the Fulton County Jail
during McCleskey's incarceration there.
Only when Detective Harris was cross-examined under oath
about the 2l1-page statement of Offie Evans did Worthy's name
surface. Asked by defense counsel Stroup where the 2l1-page
statement had been taken, Detective Harris grudgingly mentioned
"a room [at the Fulton County Jail] that was occupied by a
captain, and I don't think -- he's no longer employed out there,
I think his name is Worthy." Pressed on whether jailor Worthy
had been present during the interview, Detective Harris lied:
"No, sir. I'm sure he wasn't, you know." Suspicious of
Detective Harris' answer, defense counsel promptly located and
subpoenaed Worthy.
After fully considering these circumstances -- both Worthy's
obscurity and the concerted police effort to hide his role --
Judge Forrester concluded that
counsel's failure to discover . . . Worthy's testimony
. « . Was not inexcusable neglect. .
Petitioner's counsel represents, and the state has not
disputed, that counsel did conduct an investigation of
a possible Massiah claim prior to the first federal
petition, including interviewing "two or three
16
jailers." . +. . The state has made no showing of any
reason that petitioner or his counsel should have known
to interview Worthy specifically with regard to the
Massiah claim.
(St. ‘Hab, Pet., Exh. D, 25).
In sum, McCleskey now comes before this Court with new and
important evidence obtained since his 1987 state habeas filing.
This evidence was previously hidden by State actors, and could
not reasonably have been obtained by petitioner through informal
investigation. It emerged only during the federal hearing in
1987. Under Smith, it should be heard on its merits.
B. A Motion To Dismiss Is An Inappropriate
Vehicle For Adjudication Of The Merits Of
Petitioner’s Claim
Although respondent confesses that "no court actually
directly reversed the factual findings" of Judge Forrester (Resp.
Br. 11), he nonetheless draws on a welter of unpersuasive
authorities to urges this Court to re-determine the merits of the
Massiah claim -- on this preliminary motion =-- prior to
consideration of the full factual record. As justification, he
points to "numerous comments" from the majority opinion of the
Supreme Court of the United States (Resp. Br. 12-14), which, he
implies, somehow tacitly undermine the facts found by the
District Court on the Massiah claim. Much of the Supreme Court's
dicta to which respondent points is relevant, on closer
examination, not to the merits, but to that Court's application
of its new, strict "cause" and "prejudice" inquiry announced in
17
McCleskey's case. It does not, in short, overturn Judge
Forrester's factual findings.
Respondent also (i) prematurely solicits a judgment by this
Court that "certain findings by the district court are obviously
clearly erroneous," and (ii) denies that "there has been [any]
showing that the testimony of Offie Evans was unreliable or
false." (Resp. Br. 15-16). This Court's determination of whether
factual findings are "clearly erroneous," however, is plainly an
inappropriate inquiry on a motion to dismiss. As to respondent's
bland assurances about Offie Evans' credibility, we are content
simply to juxtapose Judge Forrester's factual findings:
The credibility or believability problems with [Evans']
testimony are evident. He has a strong motivation for
saying he was not an informant . . . . The numerous
contradictions within his deposition also lead the
court to the conclusion that his testimony would not be
believable. . . Evans' testimony is not likely to
change the credibility of Worthy's testimony or the
fact that petitioner showed by a preponderance of the
evidence that a Massiah violation occurred.
(St. Hab. Pet., Exh. D, 9-10).
Respondent's final factual argument attempts to capitalize
on certain contrary findings rendered by another federal court
during another habeas proceeding, involving one of McCleskey's
co-defendants. (See Resp. Br. 10, 15). This lame effort turns
all known principles of collateral estoppel on their head:
surely McCleskey is entitled to rely on prior factual findings
made in his own case; he is not bound by findings made in another
courtroom, in another case, to which he was not a party.
18
III
THE STATE’S USE OF OFFIE EVANS’ TESTIMONY ~-- AS
DISTRICT JUDGE OWEN FORRESTER EXPRESSLY FOUND, AND AS
AFFIDAVITS FROM TWO OF PETITIONER’S TWELVE TRIAL JURORS
NOW ESTABLISH IRREFUTABLY =-- WAS NOT “HARMLESS ERROR”
Respondent's last basis for dismissal relies on the
"harmless error" holding rendered, as an alternative ground, by a
panel of the United States Court of Appeals. The principal
ground on which that court ruled, however, was a procedural one:
that McCleskey's habeas application should have been deemed an
"abuse of the writ." See McCleskey v. Zant, 890 F.2d 342, 346,
351 (11th Cir. 1989). In addressing the harmless error question
as an alternative ground, the panel committed serious error
itself, for it repudiated Judge Forrester's carefully elaborated
factual findings on harmless error, without any showing that
those findings were themselves "clearly erroneous" under Rule 52
of the Federal Rules of Civil Procedure. The Supreme Court of
the United States did not reach or decide that issue, since it
ruled against petitioner on the "abuse of the writ" point.
Hence, there was no final, authoritative decision from the panel
on the "harmless error" point.
More importantly, the panel's holding was uninformed by the
evidence now before this Court: sworn testimony from two trial
jurors that leaves mistakable the gravity of the injury done to
Warren McCleskey by the State's secret dealings with Offie Evans.
The two jurors declare emphatically that neither a conviction for
malice murder nor a sentence of death would have been imposed on
McCleskey without the apparently neutral and impartial testimony
19
of Offie Evans. Had either juror known of Evans' arrangements
with Atlanta police, they would have discredited his testimony
and held out against a sentence of death. Armed with this
knowledge, it becomes impossible for anyone of good faith to
contend that the State's deliberate misconduct was "harmless
beyond a reasonable doubt" under Georgia or federal standards.
CONCLUSION
Respondent's motion to dismiss should be denied, and
petitioner should be entitled to proceed to the merits of his
Massiah claim.
Respectfully submitted,
Robert H. Stroup
141 Walton Street
Atlanta, Georgia 30303
(404) 522-8500
Mark E. Olive John Charles Boger
Georgia Resource Center University of North Carolina
920 Ponce de Leon, N.E. School of Law, CB # 3380
Atlanta, Georgia 30306 Chapel Hill, North Carolina 27599
(404) 898-2060 (919) 962-8516
ATTORNEYS FOR PETITIONER
20
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been
furnished by mail to Mary Beth Westmoreland, Esq., counsel for
Respondent, Office of the Attorney General, 132 State Judicial
Building, 40 Capitol Square, S.W., Atlanta, Georgia 30334.
This day of July, 1991.
ATTORNEY FOR PETITIONER
21
IN THE SUPERIOR COURT OF BUTTS COUNTY
STATE OF GEORGIA
WARREN MCCLESKEY x CIVIL ACTION NO.
. * 91-V-3669
Petitioner, * 3
x HABEAS CORPUS
V. x . 2
WALTER D. ZANT, WARDEN, *
*
Respondent. *
ISSUE I: What is the general law regarding res judicata and
collateral estoppel in State of Georgia?
DISCUSSION: Pursuant to section 9-12-40 of the Official Code
of Georgia Annotated:
A judgment of a court of competent jurisdiction shall
be conclusive between the same parties and their
privies as to all matters put in issue or which under
the rules of law might have been put in issue in the
cause wherein the judgment was rendered until the
judgment is reversed or set aside.
Ga. Code Ann. § 9-12-40 (1982).
Georgia cases frequently recite this statute to state the
proposition of law regarding res judicata. See, e.dq., Norris v.
Atlanta & West Point R.R. Co., 254 Ga. 684, 333 S.E.2d 835, 837
(1985); Usher v. Johnson, 157 Ga. App. 420, 421, 278 S.E.24 70,
72 (1981). Elements affecting the strength of a res judicata
claim include: 1) a valid antecedent judgment; 2) identity of
parties; 3) identity of issues or cause of action; and 4) public
policy considerations concerning strict application. Fierer v.
Ashe, 147 Ga. App. 446, 448, 249 S.B.24 270, 272 (1978). In
addition, a prior decision on the merits is necessary for the
doctrine of res judicata to apply. Norris, 254 Ga. at 684, 333
S.E.24 at 837.
2
Res judicata is similar to collateral estoppel in that both
require two actions between the same parties or their privies.
Id.; Usher, 157 Ga. App. at 421, 278 S.E.24 at 72... Collateral
estoppel differs, however, in that it does not involve the
adjudication of identical causes of action. Id. Rather,
collateral estoppel may be asserted when a party attempts to
relitigate an issue which has previously been decided. Id.
ISSUE II: What are the policy reasons behind res judicata
and collateral estoppel which would potentially prevent the State
from relitigating the factual findings of Judge Forrester?
DISCUSSION: In McNeal v. Paine, Webber, Jackson & Curtis,
Inc., 249 Ga. 662, 293 S.E.2d 331 (1982), the plaintiff sued the
defendant securities-dealer in federal court, claiming damages
resulting from violations of the Securities Exchange Act of 1934.
Id. The plaintiff also sued Paine, Webber and one of its
employees in state court alleging the same violations. Id.
After the defendant securities-dealer received a favorable
verdict in the federal action, the court held the plaintiff was
barred from relitigating his claim in state court. The court
stated:
To allow this case to proceed against [the employee]
would create a framework under which a plaintiff could
consciously design a legal strategy which would allow
him two shots at the same target. In gaming and sports
there may be such a thing as the best two out of three,
but not even those circles recognize the best one out
of two.
d. at 664, 293 S.E.24 at 333.
3
Similarly, in a divorce action wherein the plaintiff argued
a prior proceeding was "merely a nullity," the Georgia Supreme
Court stated that "[n]o party, plaintiff or defendant, is
permitted to stand his case before the court on some of its legs,
and if it falls, set it up again on the rest in a subsequent
proceeding, and thus evade the bar of former judgment." Booker
Vv. Booker, 107 Ga. App. 339, 441, 130 s.E.248 260, 262 (1963).
ISSUE III: Does Georgia case law indicate that state courts
are required to honor the judgments or findings of federal courts
made in cases adjudicating the same cause of action or issues,
and visa versa?
DISCUSSION: State courts are expected to give full faith and
credit to the judgments of federal court. 28 U.S.C. §1738
(1948). Thus, state courts must afford federal judgments at
least the same preclusive effect as would be afforded to a state
judgment. See Pope v. City of Atlanta, 240 Ga. 177, 186, 240
S.BE.24 241, 246 (1977) (Hall, J., dissenting). In Paine, the
plaintiff attempted to bring an action based on the same alleged
violations of the Securities Exchange Act of 1934 in both federal
and state court. Paine, 249 Ga. at 663, 293 S.E.2d at 332. The
court found that because the federal court could have exercised
pendant jurisdiction over the state claims, res judicata barred
the plaintiff from adjudication in state court. Id.
The plaintiff in Chilivis v. Dasher, 236 Ga. 669, 225 S.E.2d
32 (1976), raised federal and state constitutional claims in
4
federal court and subsequently attempted to relitigate the state
claims in state court. Id. at 669-70, 225 S.E.2d at 33. The
Georgia Supreme Court held that because identical state
constitutional questions were adjudicated in federal court, the
judgment of that court had a binding res judicata and collateral
estoppel effect; therefore, a state action was barred. Id. at
670, 225 sS.BR.2d at 33-34.
ISSUE IV: Does the State have a valid argument that McClesky
is bound by the court’s findings in the trial of his co-
defendant?
DISCUSSION: McClesky should not be bound by the findings of
his co-defendant’s trial because he was not a party to that
proceeding. As stated above, the proceedings must occur between
identical parties or their privies for res judicata or collateral
estoppel to apply. Norris, 254 Ga. at 685, 333 S.E.2d at 837;
Ga. Code Ann. 9-12-40 (1982); Blackburn v. Blackburn, 168 Ga.
App. 66,772,.308'S.2.24 193, 198 11983). For instance, Blackburn
involved, first, a child custody action between the mother and
the paternal grandmother and, second, a child custody action
between the mother and the father. Blackburn, 168 Ga. App. at
66-67, 308 S.E.2d at 194-195. The court held that the father’s
claim for custody was not barred by the determination in the
first action that the mother was not an unfit parent because he
did not participate in that lawsuit. Id. at 72, 308 S.E.2d at
198.
Additionally, the doctrine of mutuality of estoppel may
pertain to the present case. In Porterfield v. Gilmer, 132 Ga.
App. 463, 208 S.E.24 295 (1974), aff'd, 233 Ga. 671, 212 8.E.24
842 (1975), the plaintiff attempted to capitalize on findings of
negligence in a prior suit to which the defendant was not a
party. Id. at 464, 208 S.E.2d at 296. The court held that "if a
judgment cannot be effective as res judicata against a person, he
may not avail himself of the adjudication and contend that it is
available to him as res judicata against others." Id. at 466,
208 S.E.2d at 297. On appeal, the Georgia Supreme Court found
that a lack of mutuality would not preclude the plaintiff from
asserting collateral estoppel; nevertheless, a lack of privity
would act as a bar. Porterfield v. Gilmer, 233 Ga. 671, 674-75,
212 S.E.24 842, 844 (1975).
The holding of Porterfield may be applicable only to cases
involving separate lawsuits against an employee and his employer,
as derivative liability represents a traditional exception to the
requirement of mutuality of estoppel. For example, in Subsequent
Injury Trust Fund v. Alterman Foods, Inc., 162 Ga. App. 428, 291
S.E.2d 758 (1982), a workers’ compensation action, the court
stated that lack of mutuality was a valid reason for denying the
res judicata effect of a previous finding. Id. at 429, 291
S.E.24 at 760.
ISSUE V: Can the State successfully contend that the
appellate court’s expression that a Massiah violation would
constitute harmless error bars McClesky from reviving the issue
based on the doctrine of collateral estoppel?
DISCUSSION: If the appellate court’s findings regarding
harmless error are in fact dictum, claims of res judicata or
collateral estoppel against McClesky should fail. Collateral
estoppel requires not only that an identical issue has been
actually litigated, but also that the ruling on that issue be
essential to the final judgment. Usher, 157 Ga. App. at 421, 278
S.E.2d at 72. "[T]here is estoppel by judgment only as to such
matters within the scope of the previous pleadings as necessarily
had to be adjudicated in order for the previous judgment to be
rendered." Id.
IN THE SUPERIOR COURT OF BUTTS COUNTY
STATE OF GEORGIA
WARREN MCCLESKEY CIVIL ACTION NO.
91-V-3669
Petitioner,
HABEAS CORPUS
yY..
WALTER D. ZANT, WARDEN,
*
%.
%
%
¥
BN
N
N
Respondent.
RESPONDENT'S SECOND NOTICE OF FILING
COMES NOW Walter Zant, Warden, Respondent in the
above-styled action, and submits the instant additional
exhibits for this Court's consideration in relation to the
motion to dismiss:
(1) Respondent's Exhibit No. 6 - testimony of Offie Evans
from the state habeas corpus hearing held on January
30, 1981, consisting of pages 114 through 133 of the
transcript;
(2) Respondent's Exhibit No. 7 - deposition of Russell
Parker, taken in the prior habeas corpus action, No.
49009.
CONCLUSION
WHEREFORE, Respondent prays that these documents be made a
part Of the record in.this case.
Respectfully submitted,
MICHAEL J. BOWERS 071650
Attorney General
4
MN ; yoy fii of AR of
of WM / i. Wr A ~— owls Slr £4 ; 4 oe %
EE
\
SUSAN V. BOLEYN / 065850
Senior Assistant Attorney General
A a ; 9
\ / ing N— ’ » 2 p ” 77) Ly KIS) i Phe cet A gf
MARY BETH WESTMORELAND 750150
Senior Assistant Attorney General
Please serve:
MARY BETH WESTMORELAND
132 State Judicial Building
40 Capitol Square
Atlanta, Georgia 30334
(404) 656-3349
CERTIFICATE OF SERVICE
1 do hereby certify that 1 have this day served
the within and foregoing RESPONDENT'S SECOND NOTICE OF
FILING, prior to filing the same, by depositing a copy
thereof, postage prepaid, in the United States Mail,
properly addressed upon:
Robert H. Stroup
141 Walton Street :
Atlanta, Georgia 30303
John Charles Boger
University of North Carolina
School of Law
CB No. 3380
Chapel Hill, North Carolina 27599
Mark E. Olive
Georgia Resource Center
920 Ponce de Leon Avenue
Atlanta, Georgia 30306
Honorable Hal Craig
Chief Judge
FPlint Judicial Circuit
Henry County Courthouse
2nd Floor
McDonough, Gerais 30253
This Ll aay of September, 1991.
71] NTN bray 22 L
Le ETH WESTMORELAND /
Senior) Assistant
Attorney General
T
T
"
WARREN McCLESKEY
LER
~ Petitioner
NS
WALTER ZANT, WARDEN
Fi
te
BUTTS “SUPERIOR COURT
3
CASE NUMBER: 4909
PETITION FOR WRIT OF
HABEAS CORPUS
Respondent
a
IN OPEN COURT BEFORE HONORABLE R. ALEX CRUMBLEY
JUDGE, .SUPERIOR COURTS
FLINT JUDICIAL CIRCUIT
Transéript of proceedings
held in Butts Superior Court
on January the 30th, . 1981
before Judge R. Alex Crumbley.
MR. ROBERT H. STROUP
Attorney at. Law
1515 Healey Bullding
57 Porsyth Street, N.W.
Atlanta, Georgla 30303
For the Petitioner:
For the Respondent: MR. NICHOLAS G. DUMICH
Assistant Attorney General
Atlanta, Georgia 30334
~
IZDEX 20 ‘siTaresErs
WITNESS IRECT™ CRCSS'. REDIRECT RECROASS
FOR THE PERPITIONET
B. il. Neilivrk 14 13
John Turner 23 §5 35 a6
Classie Barnwell ga 1:3 *
‘Offie vans - 11 129
Betty Jean Myers 133 143 146
Warren McCleskey 147 15-
5s
| C (
i
I hit the hold up button. . And so--because it was there on my
= Et
desk. And so, I saw him coming in the door with a zun in his .-=}
hand. And--
g ~~ 77v% 4 $e ” T “I 3 Nn YE wes +~ Q Sc your testimony--1'm sorry... I didn't mean to -
MR. DUMICH: I have no further questions.
THE COURT» Okay. You may step down. Thank you.
MR. STROUP: Your Honor, my next witness, Your
Honor, is orleans whom I think is in custody. A
THE COURT: « 411 right. Where is he?
3 If any of you ever wonder why citizens don't want
to get involved in things, that is a good example of it.
MR. STROUP: Mr. Evans, would you raise your right
hand?
| Whereupon,
OFFIE EVANS
was called as a witness and after having first
been duly sor was examined and testified as foliows:
|
| DIRECT EXAITINATION
i Wy MR. SEITE
!
; 0 Would you siale your full wane Tor Lhe record,
|
, A
. yh 14 3} | | i | | LJ]
Er ———————
please?
Offie Evans.
Q I'm sorry.
A Of fie Evans.
THLE COURT: How do you spell Offie
THE WITNESS: O~f-.i-i-e,
Q Mr..Evans,
of 18732 :
ail for a whi A I was in the county J
Q What county jail was that?
THE COURT: Mr.
l=.
will allow you to lay a little predicate by J
stating that he remembers
to so-and-so
four Times as fast,
STROUP:
THE COURT: If you have something
him, just go ahead and asl: him.
MR. STROUP: I have a number
Honor.
Q You
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Isn't that correct?
correct? that
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Q
were put into solitary confineme
A
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You went there i
Do you recall Lia Cate n
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Fulton County?
A IT: owas around hh
Q Right around Lhe
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confinement?
A They put me in there.
oe imi rights There was no special reason? pat a
A I guess because I had come fron the Federal Pen.
YI don't know,
Q Did you ever during that moninh and a half that rou
were there in solitary confinement--did ¥ou ever ask any of the
Fulton County Sheriff Deputies why it was that they put you in
solitary confinement?
A No.
: -
Q While you were you in solitary confinement, you
were adjacent to the cell of Warren McCleskey. Is that correct?
A Yes, sir.
Q 2311 right. And at his trial in Ociober of M978,
: you testified regarding your conversations that you had with
Warren McCleskev back in July when you were adjacent to his
cell,
¥s that correct?
A Uh~hum. (Affirmative.
9. hay. Whal--prior» 40 the time of your testimony,
had you talked with any Atlanta Folice Officers about the
substance of your conversations with Varren Melleskey in July?
A Yeah.
Q Do yaiaeeeall who Lh At Loy olive Officers
li
i ‘
Higeds
:
| A 11 and Dp NON,
Many
Q What was sata during that conversation with
Dorsey?. ' ... ER Ta Eh aE 9% ie
2 I don'ts ronsdher all about it. ag
Q Was that while you were still in solitary
confinement?
A Yeah.
Q All right. (How did he come out there to see you?
A Deputy 5010;
Q The Deputy was one of the deputies of Fulton County?
A Yes. s
Q ALY right. Had you asked the Fulton County Deputy
to have one of the Atlanta Police Officers related to. the
McCleskey case come out and talk to you?
A 1 4id that.
Q Okay. Did you have any conversations with
investigators from the District Attorney's Office pricr to your
testimony at Warren McCleskey's trial?
A Yeah.
Q . Who were the investigators--who were the
investigator or investigators that you talked to?
A Russell Parker.
Q Oh, it was Russell Parker?
A Right.
Q What was the substance of your conversation with
i Russell Parker?
-118-
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A I was explaining to him what we was talking about.
is Yovie po : . Cs > pli
He :asked me would I go to court and all. -®"~—- . - : hi ©
Q When did that conversation occur?
A Around: July, £00.
Q That was in July zliso that you had that
i conversation with Russell Parker?
. {
i : .
A Yeah, I'd say it was July.
It was July or either August, one.
Q A right... Did you tell Russell Porker at the
-~ -
time-that you had escape charges pending from the federal
system?’ . . x
A No, I didn't tell hin that 1 haduthat. Bat the
Detective knowed I had escape charges. v
; Q All right.
A That's (how he got it.
1 Q All right. You talked with Detective Dorsey--it
was Dorsey, the Detective you talked to?
| 5: Yes.
Q All right. And you talked with Detective Dorsey
j first before you talked with Russell Parker from the D.A.'s
: .
n } Orfice?
|
| A "nat ls riihi.
! 0 All right. So at the time of your conversation,
Lwan there anvidicecugasion belvween you and Russell Parker
| x3 3
roading your escape charges:
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-119- 2
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A He asked me what 1 was doing in jail and 1 tol
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him-I was in jail on escape. ¥ Tr.
Were ct
Q he federal escape charges a
like this here, they i waren
charging me for escape. They were charging me with breech
trust, because I had a run-in at the balf way house. And I
went home and didn't turn back in.
Q All right, J&didn't understand what you said.
They charged you with what?
"A I They broke 1t down to breech of trust. See,
was at the half way house. And I couldn't get along at the
d
't half way house. "Soil spoke to the man about 1t and he didn
do nothing about it. I went home and stayed at home until they
come and picked me up.
See’, I wasn't on the. run.
0 Well, there were charges or potential charges?
A Jos,
Q Of escape.
A Taat's rights.
Q To be lodped again you.
A Ye .
{) Vo Phame eins yn VOR Pin ATE
Wes pe t] Fo Rd oh 1 Cored : SCHR UT a NY sotiled
7s a wr STAR CNS VS pl 1 OY dor3e0y] pitentdug oul There unditholry
-120-
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Q. " * When was that? : : TH. oe
A That was in August. I think it was Anrusi when
-~
1 went before thelr committee out there and they told
were going to drop the charges.
Q In August of 1978, they told you they were going
to drop the charges?
A Yeah.
Q Are yob sure that was prior .to the time you
-
testified?
A It was in the last--it would have been the last
o
of August or around the first of September, somewhere in there.
Q Did Russell Parker tell you that he would speak
to federal offlclals on your behalf with respect to those
pending charges, the escape charges?
A I don't remember if he told me that or not.
Q All right. Do you know now that he did speak or
your behalf?
A I don't tmow that now or not.
Q Have you been in custody of state or federal
officials coutinucusly since July of 19787
A What do you mean? Have T been in Jalil since then?
0 Nw, OD: have aot recon reloanod oat some filme?
A Tt ve brerosy In ' d.
n , X77 1 o
, AE alah, hon were you releasod?
'
A January of 'T79. a
2 fr, 2 he a 0 : : Te . i 3
Q@ ~~‘ January 6l 1979. itn
And when were you taken back into custody?
A Since I was released?
Q Right. After July of 1979, when did you go back
into the custody of State Law Enforcement Officals?
A 70.
Q Sometime in 19797
A Uh-hun. .(Affirmative.)
oH 7HE COURT: Mr. Buans. let me ask you a question.
At the time that you testified in Mr. McCleskey's
%rial, had vou been promised anything in exchange for
your testimony?
THE WITNESS: wy ¥ wasn't. I wasn't promised
nothing about--I wasn't promised nothing by the D.A.
but the Detective told me that he would--he sald he
was going to ido it himsell, speak a word for me. That
was what the Detective told me.
BY MR. STROUP:
Q The Detective told you that he would speak a word
for you?
A Yeuh,
THE COURT: Vas he cross examined on that subject
at trial? Bo Hh BER
DROUP: I don't believe so, Your Honor. bi
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BY MR. STROUP:
Q Have you--other than the licCleske
have you, yourselfl, ever testified that someone had confessed a
murder to you?
A Why do. 1 have to go through all this?
I thought I was.coming in here on this case right here,
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Q Thére have been other cases in which you have
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testified at trial that people have con
A Have I got to answer that question?
THE COURT: Well, 1 can't imagine what the
relevancy would-be. Actually, there is no reason why
you should have to answer it except there is no
objection--
MR. DUMICH: Your Honor, I would object to the
relevancy ol it.
aE COUNRTe By ithe State, IL mirht vo to his
eredibility as a witness but what would that have to
with what ‘this eourt has to deeide
v RG TH pe a Fm vid oe Ive 4 3 ~ Wn. i 3 "oes ~
a Sixth Amendment claim that issn ined based on the
essed a murder to you?
eS
recent Supreme Court case, United States versus Hanner,
relating to thé use of informers ang a paid informer
How, the line of questioning is simply to develop
8 partern inithis case that amounts to a paid informer
where he can:in one fashion or another elicit
incriminating evidence from persons within the. custody
MR. DUMICH: Your lionor, there is no testimony
that he was a paid informer, at all.
THE COURT: Not that I've heard.
MR. STROUP: Well, that is correct. It is simply
that what I intend to show is that there is a patiern
of favored treatment of sale gentleman with respect
to pending charges that he has against him in eXchange
Or Gestimony that he gives... And while 1 understand
that he is not a paid informer, I think in terms of
the protection to the Sixth Amendment, it 18 not a
distinguishable. situation.
MR. DUMICH: « You’ Honor, l'd inquire as far as the
yo-bevaney, of thin Tive of questioning ds concerned: is
whether Lhoesmpattern-Lhat he bainttenpiing Lo show is
gipatiernithat decnricd bolero Hr. MeCleshoey's Lyia¥ and
thant porbiens mae he deeb cvant or whether this patiemn
Pa
.)
. re bE V4 PLETE ry i oy 3 . . Ld v ~ 1. ~ Yo. apostate ocegerrad nites Meo MeCieshioy?s: trial.
contend if there is anything after M
dy & AE SRO
that that would not be relevant in this case
HE COURT: Mr. Evans, had you ever
in. 2 case before you testified in Nr. McCleskey
about something, somebody had told you in
THY WITHESS: | Ho.
THE COURT: Have you since?
THE COURT: Bunt you had not before?
THE COURS: What .about that?
MR. STROUP: Well, if I may speak to
Honor, on a separate issue, I think that's
it is only subsequent, hon it is still. re
claims in this case particularly as it rel
conduct of the Distriet Attorney in this
If indeed as I understand this case, that
testimony given is rom-—-is for the sane
ttorney and is in exchange
charges that are pending.
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for a lighter sentence,
So on. that issue oll prior arrancemncnt
statements of the Prosecutor, the direct oiy
the Prosouctor al aia) of lin,
bsequent
upon
. ~ 4 Ie
ang uvhe
amination by
with respect
}
examination or that testimony from Mr- Evans is relevant.
i fosyn’,
Just for the propriety of what shies. Frosetulol nimsair
did with regard to the olthiing of testimony from Mr.
Evans regarding their arrangement.
THE COURT: ww I'm not sure 1. get the point.
I will let you ask him about it, briefly.
My, Evans, I will not let him go into anything
that 1. don't think will make any difference but if you
have done that again for the same Prosecutor, I think
-
he ought to be able to ask you about that. So answer
his questions.
BY MR. STROUP:
Q All righ Did you subsequently give testimony
at a trial of another Defendant with Russell Parker as the
District Attorney handling that case?
A Yeah.
Q And that Defendant's name was Wilbert Anderson, is
that correct?
A Yeah.
Q Al1Y right. And that trial cceurred in May of 19807
A Yeah.
Q "All right. That was--the Defendant in that case was
aceldsad of glhiooting soneone at ih: Rich's Department Store in
At Yantass Iorthntl corveet?
-126-
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A Yeah.
— CRIT x
the newspapers a lot in Atlanta, wasn't it?
A Yeah.
Q All wight. Now, the conversaticn
Wilbert Anderson that you testified about at
of 1980, when did that conversation occur?
THE COURT: Well, Xl don't think
all that, -
= Did Mr. Anderson tell vou that
that Mr. Anderson told you that he had
Is that what! 1t was?
Yes. THE WITNESS:
m ° THE COURT:
Of time and place would have--
MR. 37ROUP:
chronolory of his dealings with the Dis
Your Honor, is simply the reason,
BY MR. STROUP:
Q Was it in January of 1980 that vo
conversation with the Defendant, Vilbert
A It eonld have been in January.
0 AY: 23icht. And dld you In Hareh
™
jal! Whett in Fulton Superior Cours vie
Vi ith ig
; -127-
“The result of a case that was in the headlines, in-
with respect
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to
the trial in May
’
matters about
| .
he--4id you testify
shot somebody?
I can't imagine what all the details
Well, it simply--in terms of
rict Attorney,
of 1980 go before
10 sone
charges that were then pending before you--pending against you?
i A. mv Yeah. Ele HE at TR HE
Q All right. And do you recall who was inithe
courtroom on the day of your sentencing on those charges?
A What do you mean dol reecsll who ‘was in there?
: oa % "ie L Ss
Q All right. Was. Russell Parker in the courtroom that
day?
A lI don't remember.
Q All right. Did the District Attorney's Office
-—
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make a recommendation for a reduced sentence on charges that you
had then pending against you because of your testimony
Warren McCleskey trial and because of your expected testimony in
she Wilbert Anderson trial?
A oe uh-huh.
Q There was no memorandum read to Judge John Rhett
at "that time From the District Attorney's Office?
Russell Farker about your recelving a reduced sentence in April
of 1980 because of your anticipated testimeny in the Anderson
trial”
A FwvisantLonce waan't reduced ion dcoeorunt of that fact
QhaEneecunt. of dnnta
. Jilin 3 Fh AY L) Ri. 31:1 Pap Orr
Rye yd Cea eid QO Visas 3 Lim
-128~
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A I spoke to him but it wasn't on no basis about:
nothing like that... ~
THE COURT: iM». Duml
CROSS EXAI
BY MR. DUMICH:
Q Now, Mr. Evans, I've
Did Mr. Parker promise any
anybody to make sure that you get
éscape charge if you testified in
A If he Bid, he did it
remember anything about him doing
Q In regards to your testimony
you said you were relcased from prison or
think, in Janvary of-279. 1s. tha
A Yeuly.
Q Okay. At that tine
you have any other charges pending
Obviously od.
a And you were subscqu
A Yeuh, Ewan gress ed
{ YOR wore arrested Po
i -129
MTHNATT ITNATI
when
hs
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got just a couple of .questions.
kind
a lesser sentence on
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have,
ION
Your Honor. IPAW
of deal to contact
Mr. McCleskey's trial?
your
on his own because 1 don't
tT 817
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ently
nst you?
GAMraos : WE i
were released,
Were you
Arniod Re
you were released, I
did
not?
at these other trials,
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of Denton Black?
by 4
A. “Yeah, I vas picked up for
You were picked up for tha oO
And did that: supposedly occur on
A Uh-huni. (Affirmative.
Q And were you ever sentence
A No.
Q You were noll-prossed on t
A (Nods head affirmatively.)
-
Q But that was after you tes
trial, right?
A Yeah.
Q Okay. Were you ever picke
the September 10th, 1979 Armed Bonners
A Yeah.
Q Do you reriember that one?
And that charge didn't even ogcu
A Yeah.
Q And what did vou. roceive o
A Five yours,
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< onceYyear: Lo .sepvey
that. 3 -
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larch the 16th, 1979?
hat, is that right?
tified in Mr. Mc(Cleskey's
d- up and charged with
of Clarence Brantley?
r until September 10th,
n that sentence?
A Yeah.
5 Q .- What sentence are you serving
A 3 broke probation on tnt.
Q Okay. Did Mr. Parker ever come u
you to testify during the Wilbert Anderson tri
would testify, he would try to get you a lesse
Did he ever try to make that kind of d
A No. The reason I got a
Clarence Brantley, was because Clarence
want me, he wanted the“man who really robbed h
»
Z-he didn't lo} QQ
.” He told me
that if I would give him that fellow's name and help catch
him, that he would tell the Judge--try and get the Judge to ]
drop 0 sentence but he wouldn't drop it. He went ahead and
give me the five years anyway. That was between me and the
man that got robbed.
Q That was the name of the Cc-Defendant, if you
would give them his name?
A Leak: He was the one I made a dezl with.
Q Okay.
THE COURT: He said he made the deal with the
Co-Defendant, not with the Prosecutor or the police.
Isn't that right, Hr. Evans?
THE WITHESS: (:Yes,: sir,
BY MR. “DUMICH:
-131-~-
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DuPree t¢
Q
Okay. So you testified in three trials, right
dy AT BH > i er ai
ou testified 111 Mr. McCleskey's trial,- is that right?
(Nods head affirmatively.)
And that arose out of the same incident as Mr.
is trial, the Dixie Furniture robbery, isn't that
Yeah.
And then, you testi
Wilbert Anderson case, is that right?
A
Q
A
Q
Yeah.
Only three. times?
Yeah.
And Burney and DuPrcon's trial was after Warrer
McCleskey's trial, wasn't it?
A
Q
called a
And during Mr. MeCleskey's trial, you were only
5.2 rebuttal witness, weren't you?
Yas.
Yousweren?l sedi in thei case In ehliol, were you?
5)
MR. DUMICH: That's all.I h
L § BX)
THE COURT: All right: “You
Who 1s your next witness
MR. :SUOROUP:> Befty Myers.
Would you raise your right
duly sworn=was examined and
DIRECT EXAMINATION
BY MR. STROUP:
Yes. Ib's Betty Jean Nyers.
n c N ~ +c 3 ~ T ~ N ~ Are you related to Warren
What's that relationship?
What role did you play in obi:
Warren MeCleskey on charres
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PHA ZANT, Wathen.
IN THE SUPERIOR COURT OF BUTTS COUNTY | STATE OF GEORGIA
WARREN MeCLESKEY, :
a Petitioner, ” ly
v. Civil Action Wo. 4909
Babeas Corpus Georgia Diagnostic and
Classification Center,
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Pespondent.
] ! { ! 1 H I ! i 1 1 i f f i ! ! i i i t i ! t i %
The epost tion of RUSSELL DARKER xian before
Foster Corbin, Certified Court Reporter, all formalities,
- excluding the reading and signing of the deposition,
being waived, cormencing at 3:15 Pp. n., February 26,
+ 1981 at the Fulton County District Attorney! 8 office, '
PRL Tp
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Sg a
¥) reg "Fulton County Courthouse, Btisnta. Fulton Con
Georgia. pt “a,
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\espondent’s Exhibit No
or & EBT aya.
CASE NO. os s 3 7 6 2 CERTIFIED COURT REPORTERS
-SUITE 828, 1293 PEACHTREE STREET, NE
; ATLANTA, GEORGIA 30309
Lart’s Bobilils Af 7 (404) 892-3699 .. of
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APPEARANCE OF COUNSEL
For the Petitioner:
ROBERT H. STROUP, Fsquire
1515 PFealey Building
87 Forsyth Street, N.VW.
‘Atlanta, Georgia 30303
i Por the Respondent:
Eli NICHOLRS GC. DUMICE, Esquire
132 State Judicial Building
40 Capitol Square, 8.V.
Atlanta, Georgia 30234
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| law and pursuant to order of the court. Would yes swear the
sot Officar Frank Schlatt?
Pp RO OC rTEDY u GC €
MR, STROUP: This is the deposition of Russell
Parker c teen bv the poristonar for all purposes permitted und
witness?
Wherevpon, i
i RUSSELL PARKER
was called as a witness and, having been first duly ert
sworn, was examined and tantifiad as follows:
CROSS EXAMINATION
BY MR. pee 3 3 oy |
0 Would you for the record state your full name, Plea
Russell I. Parker, PeA-R-K-E -R,
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Where are you currently emploved? |
a Fulton County Dist trict Attorney’ s office. hin
I How long ‘have you been With the Pulton Gounty Diserd
Attornay" a office? :
ital
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Sidi Since’ uly, 1973.
: Were you the assistant district ‘attorney assigned
> handle the cages arising out of the shooting of Atlanta
A I handled the case, ves.
Q That {included the trial of Warren McCleskey?
HER _ Yes, se. WE A oe
8 re also involved the trial of two of the other |
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co-defendants; is that correct?
A Yes, sir. a
Q Do you racall when the trial of Warren ‘McCloskey "3
was?
| A Can x or my notes and vefrash ny memory?
c418,., It vas october, 1978; is that when we are talking |. about? = id oh | Ja
A Typry approximately, ves.
Q EF co-defendants ware tried in the next month
separately? 2 : |
AT That tomy recollection, ves, str.
i
a file Shir vou made avallavie to defense counsel represent
| wazzen Nagieskey?.
A Ihada £1le I made available to all the defense |
counsel in this case.
vi 2 211 right. “There was one gis hat yas gmade available five
J Y : ii
£1R 0 aig ol
x STE WLC RA SS TE his
to all the Setenne Aor iveivein : reg]
a "Prior to trial and during trial,
0 All right. let me direct your attention to the £ron
cover. Let me ask you, do you have that file with you here | |
40d LIAR 3 fred oh i 4 A
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date to deternine, as best as you can determine, Seto the sane i
today?
A Yes, I do.
Vine i All right. You have reviewed Ay 116 prior | to tht
a + Prior to the trial of Warren MeCleskey did vou have|
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On RRRY 4 SHER E <
; representation of Warren McCleskey, your best~-
cover of that file od ak you what those ‘quotations are that]
~ counsel for the parties have agreed that we will copy
hat is your bout vio as "a how accurately it details the
file that vas made available tack ‘in pretrial and trial porioft?
A Yes, sir.
@ All right. That specifically as it relates to
A Warren MeCleskey and the other Gufentants.
wd, Re Fight, It's ue sare fils any an it was an HL TN
ity ey SRN FRA LN ‘ oe
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LS I SEARS pg
5 CENT <+
ScLohey of 19787
A “2a far as 1 can determing.
Fin’: fora. Tet me direct vour attention just to the
are wiitten on the cover? ii
A Well, T rrted to make notes vy day and time as to,
when defensa attorneys Yooke? at the file. Usually, I made Hie
hose notes at the tire fhey locked at it. Y would say the
notes are fairly accurate. If I didn't put it down initially,
then there may Le some > discrepancy. But I would say generally
that's a fairly, accurate log. : SL
0 All right. Can we ao off the Fecors Ses a Oe
(Discussion off the record.)
“Y MR. STROUP: |
0 Iet's go back on the record. We have agreed that-- |
an attach to ‘the Seposition the entire file including the Jet
4d
cover sheet. “The cover sheet that has your handwriting on Aly
TERT I EL SLR
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inspection of the file by defense counsel?
COA TY see only one entry that doesn't appear to tke ny
Ln and that is, the entry that Donnie Stein viewed
the file on September 27, 1978 for approximately ‘and hour and
a half. I'm sure I gave this file to defense attorneys and
asked them to make notations as to how long they had it; 5
Fb [2
whether or not they ‘gave me all the notations Vhich I then | |
would have put on the cover sheet, I don't know-- I don! t
know whose handwriting that is. Maybe it's Stein's, SANGRE.
a | That's the 9-27-78 entry?
‘A Uh-huh, Affirmative.)
e So the record is eYear, could you just tganttiy.
the ‘attorneys who were representing each of the defendants?
i Vell, Donnie Stein represented Ben Wright; the
public defender initially represented Burney and continued
to represent him throughout the trial. An Rctorney by the
name of Joa Gailey came into the pioture somewhere dyeing
ih recasting ‘also ep aamtad Re. Dupree was represen
by Mike Fashington, George Lawson and Charles Hudson. All 3.
| of them came by. at various times. John Turner represented
McCleskey.
iL With respect to John Turner's Fovisuing the file,
do you have any recollection of his yieuing the file other a
than’ the dates that's indicated on the Gover sheet?
BIR EE
Hoy I note that John Turner reviewed the file on Octobe
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Sth, 1973 for some 3 hours and fifteen Pinos, He apparently
eed ths file from October 9 through October 13 and throughout
the trial. John Turner and I had discusse 2d his client's % |
involvement on other times. Whether or not he reviewed the aE
file, I can't say.
-_
dds ALL, right. Vas. AS, usual practice to record the dato ,...
of defense counsel's ‘reviewing of he file and the tines? |
| A I tried to. I see there's actually two entries I hin
aidan’ t meke. Both of then were datad September 27, 19732. EG
involved Btaln who represented nen Wright. Cne represents |
Rudson who was one of the ‘three lavyars representing Dupree.
I'm sure there must have bear other GE yy perhaps
| {42 nppan A (Les, $ ond B
I didn't enter Parcs, ei 7 Ry HM « fron |
‘0 ALL right. Lot me just ask you, directing your
attention to the J or 4 different statements that are in nf
the £11 e-- was there Present at the time, wag there present
in the file at the time that John Turner reviewed the sue fo
ih CAL Eo GER WY I hr TN A NES SENG (ER La IPRA bs EF Sam
e statement from Dan Oliver dated 5-13-72? | |
Q All rove. Anc was there similarly at the time of
John Turner! '8 inspection of the file a statement by Ben Leste}
Tyson of 5=- 13-78?
A. Yes, 2
i 8 was there a statement in the ile at the tine
pf 2h Y JE ;
John ‘Turner Fovtoves the file, ! staterent fron Janes Grier,
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| testimony that you might want to uge at trial?
been Sonsacted by a opus 3 c. R. Hamilton, XY don't recall
Junior of 5-13-787
A | Yes, sir, ri
Q Finally, was there present in the file at the time |
that John Turner reviewed it a statement by Fenry Nelloms of £5,
mavbe May 15, ge as best as I can read it? |
re | okay. Now, IT want to trea your AEtent inh to Pi
statement From Offie Fvans that was introduced at Warren 0
MoCleskey's trial and ask you a few gquastions about that i ;
statement. How was it that you came to learn that Offle Eavns
might have sore testirony Shar yon would want to Tose in the |
Warren McCleskey trial? | af
py Okay. When you referred to a statement, Offie Gol
Evans gave his statement but it was not introduced at the Ll
trials it was part of that matter that was made in camera alia
inepectien by the Judge prior to trial,
Ge A right. Let me ‘make clear what ny question was,
igh 0h BY
let me Yeihvave 1, When aia you learn that Offie Evans had vip
RI believe I vas first notified by Detective Jowers
or Detective Harris, homicide detectives, who apparently had 5
Pe Ee tod
at this point whether Jowers and Rarris went. out to the jai isi
to tal: to offie and that i rvotvad me or whether op calles 2d po
thon. tte Fras aia in Yack els WPI ot ie era |
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over to the Atlanta otic Department and we talked to Evans
there. I know I did talk to Evans and I did talk to him at i i
the AEYauta Police Department.
0 How about Detective Dorsey? Do vou recall Petactivel
Pofzey being involved at all?
A Dozsey was {nvolved in the trvestigation. At what + fry 3 :
faze § 4
£4 i 4 AF [3 v
point, 1 don" op remember.
ha
A a HAT
0 All right. How about specifically with respect to
Sastigony of Offie Evans? Do you recall Dorsey having any
role in developing the testimony of Fvans?
A At this point I don't know if Dorsey had any role
in se. The only thing I remember really is that De i /
v, Hamilton, Detective Jovers and Harris, Wis [NO
i Did you, yourself, have any prior dealings with
Offie Evans prior to his becoming involved in the Frank Schla
case?
A | Mo, str, I adn’ : know Offie Evans Prior to that ti;
gui Ph ‘Okay. Were you aware at the time of ‘the trial’ ‘of i
any understandings between Evans and any Atlanta police depar
rant detactives regarding favorable recormendation to be made
on his federal escape charge if he would cooperate with this)
matter?
A No, sir.
“
. 3 Tob iy pn
Af. y A SNE AMR REP chan 0 SI “Ai RT TRE rg ry RH 2 NA A ptr ig Soot rasa kd rik a. th fore FT eli TE, Te g . TRA) A 4 !
fh 8.2 Let ma ask the question another way to make sure 1
‘we are clear. Are you today avare of anv understanding betwee
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placed back in the federal penitentiary.
all the trials were completed. And T Selisve it was in = he
+o “segragating him in soma wal. out at. the federal pen for hi
ai al i ———— PRN UHI ITY PERI BEAR rm L# 2
‘on protection.
defendants Burney and Dupree?
Penitentiary in Atlanta. : believe that would be after all’
10
any Atlanta police department detectives and Offie Evans? he
A No, sir, I'm not aware of any. I understood that
he was not prosecuted for the escape but I understand he was |°
f - Okay. pid vou, yourself, after the Warren HeCleskey|
trial, contact any, FBI agents to discuss wih ther the niin Th
we hdav EE fr]
of a ering escape ea
a X have talked to several FBI agents. about the case]
Baa i ar Lt fT af at — N SEPT ST ET CN RCI
only one time dia it involve offie Fvans, And that was after
SRE BE AN NA A el: PPE DG RI PNT TR eS aS Share
SoS EE aa aaah SIR A IR ae
: a — marina SS amie he © Lp el
nn
pi AES pA &
regarding offie Evans?
RR don’ t at this time. But I did write a letter to
the warden in the federal pen. At least I wrote, arated tt i: :
gre JE A
for Hr. Slayton. ra
iY : ‘a1 right. Tet A Cask you your RS on ‘the Jian
timing. Is it possible vou contacted an FBI agent regarding 1:
offie Evans’ s escape charge prior to the trial of the co- :
A E don't Know, I've got a letter dated November 20¢n,
1678, when IX wrote to the Warden at the United States
‘trials had been completed. I recall atficulties having orrg
iY I's wh of EO RESREE i3 ULT. 20 y Tre) wp ain fin FE uke A og A H wan . TDR ARO gE ERS JF ro FER. i%
; y TAT a A F:
Do you Xion who the PBI agent was ‘who you spoke with ere
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| don’ recall now whether he ne gti! in Tule County atl
Coats were.
transcript Ca A fed il A :
a okay.
1
Evans brought over to trial because he was a federal prisoner
I believe the first tire we brought him over, he was still tn
the Fulton County Jail, as I recall. I may be wrong. We st111
had to use u. 8. Marshals. X recall the second time he was ala
brought over, wa still have to use U, £. Marshals. And T
the FRI gents as to how to get him here,
a Lr My BEN
Q All right. Pow about prior to the wrial of ge co-
defendants? Do You have any recollection of a conversation =
bringing to the poris agent attention the fact that Evans (|:
had testified on Warren MeCleskey! s trial?
A Specifically, no. I think, however, when I wrote e |
this letter to the warden, Tr think I told the FBI agent who |!
JT PATS VES LAP
gave ma -thas. name what Offie Evans had done, that is, that
he had testified at Yous trials and what the yesutte of those)
z iy wh 3 hs aio TE Pert lgd TA
0 All right. Let me just refresh your recollection, 1
it doea-- lot ma show you a trial ‘transcript, ‘This is State
of Georgia versus David Burney and Bernard Pptses trial ro
commencing November 13, 1978 at Atlanta. I direct your
attention to a Ftaterent that Fou made at pags 371 of [har Al
Ag Eg aR Fe iT AE
[J
[£1 SET RTI GTN RA RT
Shi aR. 7 Ar ES,
EERE 3 Qo Was
or SR ho was in the tas bon. it r rallies v 4 aid nave
—
a conversation with the U. S. Marshal's office and algo with Bait
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fae don't believe tre federal charges of escape, ‘the Latest fodoral Wr
RSE
charges, will be processed against Mr. . Tvans.®
12
1} That indicates that prior to the trial of the
co-defendants and after McCleskey' # rial, you did contact a
agent of the FBI?
A I still don t know whether I contacted him or he
contacted me. But evidently we had a conversation.
LEN ALL right, Your Saaenent as of the rial of Bernard WN
Dupree and Pavid Burney was “that vou SEL the Sone, ia
that not correct, to determine if he was aning to continue to
press charges for escape?
- I say : have contacted. YX still don’ + ur whether
y {HA
I contacted the agent a8 to how to get Offle Fvans +o testify
/l
or whether the agent called me.
0 ‘Rll right. 5g i 3 x 64
A There was sore question in ny , mind as to how to ps
gat him over here the ‘second tire.
0° Your earlier statement made to the court was, x have
contacted the agent with the Federal Bureau of Investigation
, ob > ¥ ig PA LAD )
to EI 1s he is coing to IT Sy to Press sr of 7
escape; isn’ t thay correct? 2 aay
A That! s what the transcript savas, sir.
0 vy have not asked him to drop charges of escape But
RR a aac EE RL ET SC A GA ET UP OT Ea TR AR RR AN
I believe he is gotns i act on that information 1 have: passes
po i” ny =
3
Sire on RE ST ER ATR WHT SA TRE TEREST x a RIC SSB RARER AGEN TRE ad
to bin, that 1s, wr, Evans ata tostity once fa fora, And I x
BE ans Being a der Si a ee hae, _ fi of aie PRES
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| FBI agent. was? Pan
13
A Yes.
i That is correct, that is a correct statement of what
you said earlier?
5: WR | belisve is is correct, sir.
Rs § Rll right. You don't recall at that time who that
A No. I'm sure it was a Anint tat SOuTA have
investigated primarily his charge of escape.
Q You do not have any records that would indicate
the name?
A I probably | have a yaslow phone tab, [personal file, |
vith his name on LL
0 Okay.
2 But I thitewe it’s about this lettar TI wrote to Watm
Hanberry rather than relating to this conversation that you are
asking ahout,
° Prd rigne. 1 think that 8 all that I ‘have other than
YORE Vo
thet 1 do want the record 0 Ctankly reflect nt the parties
have agreed that we will copy the entire invescigstive A
that was made available to counsel~-
cB All counsel.
All counsel including John Turnar—-
RNC WN '
£78 AE
0
A. Right. i
be
1 | ana it will be attached to the aspsttion as a Bxnsbat
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id ofsie Fyne teatirony at, Erial, Mr, Necie key. 3 trial,
vas put back in the federal pen.
14
"Mp. DUMICH: That's fine. Are you through?
MR. STROUP: Yeah, that's all x have,
| REDIRECT EXAMINATION
BY MR. DUMICH:
1 I Just have 2 few questions. Mr. Parker, in Vegans
1 {..
was A any deal whatsoever rade with Mr. Evans in exchanga iki
or his testinony at the trial?
A I'm not aware of any. I don't know of any deal. op
Ri What about: at the Burney trial? Was there anything,
vas Shove any indication given by you to Mr, Evans prior to |
his testimony in the Burnoy prin that you would do anything |
for him or try to do, try 50 contact “people for him to try ji
and see that his escape charge wasn't prosecuted or that he 1
would dob a reduction in sentence or anything Riong those
lines? | 4 on op
ak | I have never asked anyDoay to roy a Shams, 3 gon'h BRyy JW sign
3 2 St of 0£215 vor bel anybody to wry and cut the charges
dropped for him. x am not surprised that they are éropped. +
Obviously the police officer was killed and the guy testified
twice for the state. It doesn't surprise me in the least that
the charges have been dropped. But the fact that the charge
was dropped doesn’ & mean that he wasn’ t Dinighet because he |
BY Po. you have any Kpaartadas thas Mr. Pvans was working
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fo his overhearing conversations at the Fulton Sosnby Jail. ™
any plea negotiations with you during the course of the pretr
telephone and in person-- as to the disposition of tha case,
is
as an informant for the Atlanta Police or any police authori
when he was placed in the Fulton County Jail and when he over,
thesa ‘coversations of Mr. McCleskev?
A I don't inom of any instance that 0ffie Evans had | 3,
worked for the Atlanta Police Department as an informant prio
{es
heard
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1 IS
itd vy tf eg fRE ET
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Q Do you recall whether Mr, Turner, Mr, John Turner, HR
‘whe represented Mr, McCleskey at the trial, had engaged in Li
- |
contacts with him prior to Mr. McCleskey's trial?
Hy N John Turner contacted me saveral times, both by
I don't think at any time did he ever indicate to me that at]
McCleskey wanted to plead guilty. In fact, the morning of |
trial, as I recall, John Torney asked for a short pretrial-~-
and feane into the witness roor. of course, ha vantod to know
ras the Tatters were at thay time that the judge had made il.
ial
an In camera inspection of. of course, 1 told him r couldn't 1 Bd
tell him; no sense in having an in camera inspection if xX
was going to do that, At that time I believe he told me that
McCleskey wanted a trial, was adamant, would not plead quiley
Okay.
A We never discussed a plea.
0. let me ask you this: Are you avars of Wye 14 x
A There we were other things that went along with that.
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An Atlanta was coerced. Tm sure those are sEalononts that vere
attorneys representing their Clients got copies of their af
clerk's file, you'll see whale the state Filed 5 a Notion to
16
=
0 Would you explain? fn
A McCleskey ‘had given two statements, one in Marietta i
and Cobb County, ‘one at the Atlanta Police Department. According
te Jehn Turner, McCleskey felt like he could stand on the one |
in Atlanta, I mean the one in Cobb County, claimed that the one
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AREA 3g wy i 3 1;
‘given to John Turner that are not listed on this File cover. |
In other words, his client 3 statements-- I'm sure the other I
clients" statements that are not listed on the file cover. so|
vhen I gay they reviewed the files, there are other instances|’
where they have gotten information perhaps, autopsy, I'm sure|
they ao portions of the crime lab reports. I'm sure they got
copies of their Clients! statements. And that's one reason T
—
was suggasting that if you are going to attach any part of ths
file, you ought to attach the whole thing bacause even the |
Get Serplos of hair of all he Xefondanta. "We vere ‘trying op ir
match up hair sarples, So I'm sure they were aware of tab rind
onorty that had been prepared and why we were preparing re
motion for hair samples, s0 when I gay this cover sheet a
I don't think really shows the whole picture of the information
that they had.
5) Okay. Zot-me ask you, axe vou avare of ‘why ‘the ig i
EA
Zhetatonts was ae to seek is Seath penalty LW ‘this particular
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72h
pid hand have any bearing on your decision to Beek the death
penalty?
the FBX in regards to Offie Evans’ 8 testimony in this case, |
for Mr, offie Evans in regards to not being prosecuted? You Lp
)?
case?
A Well, I'm not so sure I understand exactly Wat You.
are asking me. The client-- John Turner said his client claimed
he wasn' t guilty. Y don't think John Turner ever said anything
other than that, Everything I had indicated that McCleskey ;
wag the person that killed S2ticer Sehlatt iid fe FE pntas hl)
Q pia Hr, McCleskey" 8 race have any influence on your
decision i. seek the death penalty in this case? oy
a. S Yo, sir.
a Yhat about the race of the Yiotin Officer Gehtater
3, Yo, oir.
Qa | pariser when vou testified that you may have contacted
was that in any way an attempt to get favorable treatment
may have covered nat a earlier. I done wanted to rake sure w ve
get that in the record. i a 3:4
A ps don't think TI ever asked him to do i n i
fact, I'm sure I aan? t. Like ¥ say, I'm not surprised that i
he Wesnit prosecuted. | fi
e Okay. aos HTL id...
A I'm not shocked, in other words, | iG gE pn
‘0 That’ n a1 , have.
AN ru, Feld LY 7
lg Ein EN
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‘Dupree trials?
| not aware of any such offer.
18
| RECROSS EXAMINATION
BY MR. STROUP: | ;
Q I Just have a couple nore. Would it surprise you
that one of the Atlanta Police Department detectives who had
hodn dealing with offie Evans had made an agreement or come
NARS an understanding with him to make a favorable recommendation re
in exchange for hiz cooperation at the MoCleskey and Burney-
A I don’ + really sea how anybody can promise anys hing,
I don’ know of any. I'm not aware of any such ‘agreement. I m
o | vould it surprise you to learn that that understanding
had been ranstiads ot | | | | i
15 2 don’ ” knovr of any oftioax that would make that -
promise but let re explain something else to you, There is i
generally an FBI agent that follows the crimes in the Atlanta
area that is a contact point with the Atlanta, Police Department.
I dontt remember his name at this point. But x think we Sipac
learned from him tras Ben Weight had been arrested out at i
Pine Bluff, Arransas. 3 think he was pretty much in daily LE
contact with the FBI agent out there as to, was this the
Ben wright we were looking for, was this the man we were Looking
for, because obviously he was using another nave. I Dave, |
talked to the FBI agent. Tr have talked to him several times
during the time that the individual that was arrested out RE
Br re Vela fig. 3
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| whother or not he was Den Wright. But we've never discussed .
cooperated.
anybody has pre in any good word, Put. I'm not surprised that
surprise. re at all ‘that that's the en result. 2
19
FA 2 7, hy
Offie Evans. , think 1t was probably common knowledge among “f
the homicide Sf tions or Petectives that Of fie Evans had
0 There vas a Alone working relationship between the |
noni olde detoctives and the FBI?
} Ny . ; i id ) g §-: PT Sadi Yo gl fo bd th ERY 5 FERRE FI GB [Eg ¢ Stine
La voll, 2 don" t know. ‘What gt m ne is thay" ve got |
a contact man. There! 8 probably one that hancs around down Lele
there to furnish them information and get information in :
return, honicide, Ered robberies, ‘motor vehicle thefts, iif
burglaries, con artists. I don > know of any agreement. |
# i @ pg 8 fair to say that there would certainly be an
opportunity for. Atlenta police officers to put. in a soo word
with the FBI agent in Offie Evans’ 8 behalf? | a
YY I'm sure. That's why I say, I doen't Suspect that £
Offie Evans was not prosecuted for his escape; “You take an J
{ya hy: TY I b RY
Atlanta Ea officer, Yolivs officer anywhere that's been | 4
lled, somebody ends up testifving for the state or for
he federal government, putting his life in danger, it doean't
Q Prior to trial, did you take any steps at all to Lt
Asternine vhather or not any Atlanta Police detectives Soi
on ‘the case had ‘come. to an understanding with offic tegarding--
Paul ; I
x ah Ind REESE .
Ey : otfie Evans was irtorvionod by Jowers and Harris =
-
and myself at length one day. I don't know how manv times we
| questioned him. But I don't think he ever told us that he
ever expected anvening, Fe never asked for anything. I don't
| know fof any promises or any requests shat Offie Evans ever
made.
-_
bl 3A Let me also, Just £0 ve! re clear on this, let me ul
refar vou again. to thia same Hn this is State of ;
Georgia again versus David Burney, Junior and Rernard Pupree-,
acain, let me at this time direct you to Offie Evans's testing
at the bottom of 964 and 965. I think you were examining him |
| at that point in the record. Does he not Indichte that the
| homicide detectives who came out and talked to him were Rarris
and Dorsay?
A (Nods hoad affirmatively.)
SE Yor, yourself, were not involved in anv meetings |
whare Dorsey was present, along with yourself and Offie Fvans?
pd Yeah, 1 remember it was at the Atlanta JFolice Department
with Farris and Jowers. Dorsey may very well have been in that. «
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don't remember Dorsey being there,
Qo Okay.
A 2s I remerber, it was Harris and Jowers.
AT
Q Lat ma ask you one more uration, and that relates
to your discussion of the cover gheet entries on the
ih a4
i investigative files chat defense counsel were all able to Ei
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ihe 3 TR LE TIED SO WHE d [s
inspect. You were indicating that there was some information
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21
that defense counsel had gotten without an inspection of the
£1le?
A Yes, sir.
a Would defense counsel, in order to review the
bulk of the witnesses' statements that are ronbainas in here
have ‘had to come ‘and read the investigative file? :
Sua Well, 1s they wanted to read my file, obviously
they are going to have to core over and oad ji, 3 didn’ t.
give them copies of the statements except their clients!
statements. There was a preliminary hearing transcript. 7
don't know whether they had a copy of that now or not. But EE
I do remember there was a preliminary hearing transcript. And :
I don't Yensrbor who all had copies of it.
MR. STROUP: All that, That's all I have.
: MR. DUMICE: I don't have anything more.
(Whereupon, the deposition was concluded, )
CERT IPIQOATY } 3a or REY TREETORIF SAE TN 14 PE I A SUE I OF aid POL! BIRR BE BL
FULTON COUNTY ) ; CARE
I, Yosser Corbin, Certified Court Reporter, certify :
that at the above-named deposition I dia duly swear the witneps
and that pages 1 through 21, inclusive, are a true and |
completa transcription of vi gtencoraphic notes taken at the
deposition and that same was reduced to typawriting by me
iy personally. Rita, ki Fa STS Stk Ln
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22
Be 4 further certify that I am WPL of kin nor
counsel to any of the parties nor interested in the matter
financially.
WITNESS my hand and official seal at Atlanta, Fulton
County, Georgia on this the 23rd dav of February, 1951.
iy EO ! FOSTER corbin
(SERL)
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Sworn to and before me on this the
1981.
My commission expires
23
RUSSELL PARKER
day of
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4. (Notary Public) yy
Ad Rain 1.5 3 Op : ER, fal oy
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PR RE i Foal 1% pane Fi % 3 wie
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{
a A DTA SY A BA TS ARINC IIT TORE | TR i RET (ET SN. RI YR A
SEE ie IASI TCE PR a gi
3 1- =| SC . Ta 7
Corrections to Russell Parker's deposition in Warren
McCleskey v. Valter Zant case, 2
7-2 of
ik Fl PA
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