General Legal Files

    NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

efense und 99Hudson Street, New York, N.Y. 10013 ¢ (212) 219-1900 

  

June 22, 1987 

  

Via Hand Pellivery 
  

Hon. Lewis Slaton 
District Attorney 
Fulton County Courthouse 
136 Pryor Street 
Atlanta, Georgia 30303 

re: Warren McCleskey v. State of Georgia 
No. A-40553, Superior Court, Fulton County 
  

Dear Mr. Slaton: 

‘I am co-counsel for Warren McCleskey, a death-=sentenced 
Georgia inmate who was prosecuted for armed robbery and 
murder by Russell Parker, Esq., of your office in October 
of 1978. In Lhe intervening years, Mr, McCleskey has pursued 
state and federal habeas corpus proceedings, seeking to 
vacate his conviction and death sentence. 

We have recently learned that a written statement made by 
a central State witness in that case, Offie Gene Evans, was 
withheld from trial counsel. The statement suggests that 
Mr. Evans'testimony during trial was materially false or 
misleading in several respects previously unknown to us, 
Even more seriously, the statement suggests that this 
witness, Mr. Evans, may have cooperated with city jailors, 
Atlanta police detectives, and/or prosecutors from your 

office deliberately to elicit statements from Mr. McCleskey, 
while he and Mr. McCleskey were both incarcerated in the 

Fulton County Jail, at a time when defense counsel had 
been appointed for Mr. McCleskey, and without Mr. McCleskey's 

knowledge of the relationship between Mr. Evans and State 
officials. Such conduct, as you are aware, would violate 
Mr. McCleskey's Sixth Amendment rights guaranteed by 
United States v. Henry, 447 U.S. 264 (19380) and Maine v. 
Moulton,  U.8., . , 33 L.Ba.2¢ 431 (3985). 
  

  

We find this situation extremely disturbing. In 
Mr. McCleskey's second habeas corpus proceeding, we have 
filed in the Superior Court of Butts County today a 

Contributions are deductible for U.S. income tax purposes 

The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part of the National Association for the Advancement of Colored People (NAACP) although 
LDF was founded by the NAACP and shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget. 

 



  

Hon. Lewis Slaton -2- June 22, 1987 

motion for a court order instructing all relevant state, prison, 
and municipal officials and their respective employees 
and agents, to formally preserve all records and documents 
pertaining to Mr. McCleskey's case, including police and 

prosecutorial records on the crime for which Mr. McCleskey 
was prosecuted, Fulton County Jail records, and investigative 

files on Mr. McCleskey, his co-defendants, and Mr. Evans. 
While it is still uncertain whether these records and 
documents will reveal any wrongdoing on the part of police 
officials or prosecutors from your office, we anticipate that 
these materials will shed new light on this issue. 

We have no reason to question the integrity of the Fulton 
County police and the attorneys under your supervision; 

nevertheless, the accurate preservation of all relevant records 
and documents on Mr. McCleskey'!s case 1s essential in 
determining whether Mr. McCleskey's death sentence is the 
result of constitutionally impermissible conduct. We 
therefore ask you to assume personal responsibility to ensure 

that these records and documents are fully protected, 
and respectfully request your cooperation in this matter, 

Should you have any questions, please contact me at my 
office, or my co-counsel, Robert Stroup, at (404) 580-8500, 

Thank you very much for your assistance, 

  

   

Vegpy truly yours, 

John Charles Boger 

cc: Mary Beth Westmoreland, Esq. 
Assistant Attorney General 

 



  

IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

WARREN MCCLESKEY, 

Petitioner, 

: CIVIL ACTION NO. 87V1028 
V. 

RALPH KEMP, WARDEN, - 

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HABEAS CORPUS 

Respondent. . : 

MOTION TO DISMISS AND BRIEF IN SUPPORT 
  

Comes now Ralph Kemp, Warden, Respondent in the 

above-styled action, and submits the instant motion to dismiss 

the petition for habeas corpus relief filed on behalf of Warren 

McCleskey., Respondent specifically urges this Court to dismiss 

¥Fe position because the petition fails to state a claim upon 

which relief can be granted. The instant petition is 

successive within the meaning of 0.C.G.A. § 9-14-51 as the one 

issue not Breviduily raised could have been raised in the prior 

petition and is not based on new law applicable to this case 

and the Sthor four claims were raised and decided adversely to 

the Petitioner previously and, thus, under the principles of 

res judicata should not be reconsidered by this Court. 

 



  

: fe) ~ STATEMENT OF THE CASE 

  

On June 13, 1978, the grand jury of Fulton County, Georgia, 

J returned a three count indictment against the Petitioner, 

: Warren McCleskey, and his three co-indictees, David Burney, 

Bernard Depree and Ben Wright, Jr., charging said individuals 

with the offense of murder and with two counts of armed 

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robbery. The Petitioner was tried separately beginning on 

October 9, 1978, and was found guilty on all three counts, The 

jury IApBEed hE death penalty after a separate sentencing 

proceeding on the murder charge, finding that: (1) the offense 

of murder was committed while the Petitioner was engaged in the 

commission of another capital felony and (2) the offense of 

murder was committed against a peace officer, corrections 

employee or fireman while engaged in the performance Of his 

official duties. See 0.C.G.A § 17-10-30(b)(2) and (b)(8). 

Consecutive life sentences were imposed on the two counts of 

“armed robbery. : 

id The lPetitioner. thon: appenlisd his convictions and sentences 

to the Supreme Court of Georgia. On appeal to that gourt, the 

Petitioner raised sone ten grounds for relief including the 

following: (1) the application of the death -penalty in the 

Petitioner's case was arbitrary and discriminatory based on the - 

unfettered discretion of the prosecutor; (2) a post-indictment 

lineup was conducted without the knowledge or presence of 

-‘coungel; (2) the in-court identification by Ms. Barnwell should 

 



  

“have been St oprestid; (4) the in-court identification by 5 

witness Ross should have been suppressed; (5) the in court 

identification by witness Umberger should have been suppressed; 

| (6) the in-court identification by witness Kiessling should = 

: have been suppressed; (7) the confession should have been 

suppressed as it was involuntary and made with the hope of 

benefit; (8) the prosecution failed to disclose all statements 

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made by the Petitioner and withheld impeaching evidence (this 

- allegation relates to the statement made to Offie Evans); (9) 

the prosecution failed to disclose impeaching evidence. : 

regarding Mamie Thomas; and (10) the trial court improperly 

. admitted evidence of prior criminal acts. (Respondent's 

Exhibit No. 1). The Supreme Court of Georgia affirmed the 

convictions and sentences and found all the above grounds to be 

without merit. McCleskey v. State, 245 Ga. 108, 263 S.E.2d 146 
  

(1980). The Petitioner subsequently filed a petition for a 

writ of certiorari to the Supreme Court of the United States 

asserting that the trial court improperly admitted evidence of 

other crimes, that the jury's discretion was not oToverly 

channelled and there was a deliberate vilnnii ating of the 

confession to Evans. Certiorari was denied by the Court ,! 

‘McCleskey v. Georgia, 449 U.S. 891 (1980). 
  

On January 5, 1981, the Petitioner filed a petition for Bons ay 

habeas corpus relief in the Superior Court of Butts- County, 

Georgia as Case No. 4909. (Respondent would specifically ask 

 



  

Evans not to prosecute him; deliberate withholding of the 

this Court to take judicial notice of TH records in that case 

in considering the instant proceeding.) The following 

allegations were raised in the original petition: the death 

penalty is arbitrarily, capriciously and whimsically applied; 

the death penalty was imposed pursuant to a pattern and 

practice of discrimination; there were no theoretical 

justifications tor tie death penalty; the death sentence was 

cruel and unusual in the instant case; the Petitioner was not 

afforded adequate notice and al opportunity to present 

evidence; the trial jury was not a representative cross-section 

based upon the death-gqualification of the ary hE Jury was 

prosecution-prone based on the death-qualification of the jury; 

the trial court failed to adequately instruct jurors with 

scruples against the death penalty to subordinate their 

personal views; the introduction of the Petitioner's statement 

was improper as he was arrested without a valid warrant and 

without probable cause; the Petitioner's statements were 

“involuntary; failure to disclose an arrangement with witness 

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statement made by the Petitioner to Evans; failure to appoint 

experts including an investigator to contact witnesses and to 

allow the Petitioner to proceed in forma pauperis; displaying 

the Petitioner to certain witnesses pretrial; impermissible 

charge on the presumption of mental state; the assistant 

district attorney arguing at the sentencing phase relating to 

 



  

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Ga the reduction of a previous sentence; the admission of evidence - 
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of the Petitioner's participation in other robberies without 

instruction; the charge at the guilt-innocence phase regarding 

the use of independent crimes; challenge to the appellate 
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‘3 review procedure; the means of implementing the death penalty; 
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Petitioner received ineffective assistance of counsel. 

| (Respondent 's Exhibit No. 2), 

; Petitioner subsequently filed an amendment to that petition 

in which he challenged the introduction into evidence of the 
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Fetitioner's statements to "an informer" and a challenge Mmommec Rsv Cass 
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essentially to the sufficiency of the evidence. (Respondent's 

Exhibit No. 3). A hearing was held by the court on January 30, 

1980. By way of order dated April 8, 1981, the Superior Court 

denied habeas corpus relief. (Respondent's Exhibit No. 4). 

The Supreme Court of Georgia denied the subsequent application 

for a certificate of probable cause to appeal on June 7, 1981. 

A subsequent petition for a writ of certiorari was denied by 

the Supreme Court of the United States on November 30, 1981. 
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On December 30, 1981, the Petitioner filed a petition for 

habeas corpus relief in the United States District Court for 

the Northern District of Georgia. Evidentiary hearings were 

held before that court in August 1983 and in October, 1983. An 

order was entered on February 1, 1984, in which the court 

- rejected all the issues raised in the petition except for the 

alleged undisclosed deal with witness Evans. The court 

 



  

directed that habeas relief be granted as to that issue and 3 

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ordered that the conviction and sentence for malice murder be 

set aside, but affirmed -the convictions for armed robbery. 

- McCleskey v. Zant, 508 F. Supp. 338 (M.D.Ga. 1984). 
  

Both parties appealed the decision of the district court to 

the United States Court of Appeals for the Eleventh Circuit. 

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On March 28, 1984, the Eleventh Circuit Court of Appeals : 

directed that the case-be heard initially by the court sitting 

en banc. On January 29, 1985, the en banc court issued an - 

opinion which affirmed all convictions and sentences. 

McCleskey v. Kemp, 753 F.2d 877 (11th Cir. 1985) (en banc). 
  

The -Petitioner then filed a petition for a writ of 

certiorari in the Supreme Court of the United States. In that 

petition, the Petitioner asserted that the death penalty was 

discriminatorily applied, that there was a violation of Giglio 

Vv. United States, 405 U.S. 150 (1972) based upon the testimony 
  

of Offie Evans, that the charge on intent was impermissibly 

burden-shifting and that the jury was impermissibly qualified 

as to capital Pn SAE The Supreme Court of the United 

States subsequently granted the petition £07 3 writ of 

certiorari limited to the consideration of the aoolicathen of; 

the death penalty. On April 23,1887, the Court issued an 

opinion concluding that Petitioner had not shown discrimination 

in the imposition of the death penalty as to his case and 

affirmed the decision of the Eleventh Circuit Court of 

 



  

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Appeals. On or about May 16, 1987, Petitioner filed a petition 

for rehearing by that Court. In that petition, Petitioner 

reasserted his claim of ineffective assistance of counsel at 

the sentencing phase, reasserted his claim related to the 

charge on intent and reasserted his claim relating to a 

violation of Giglio v, United States, asserting that the 
  

  

decision in United States v. Bagley, 474 U.S. -, 105 S.Ct. 

3375_(1985), justified the granting of the petition. On June 

8, 1987, that Court denied the petition for rehearing. 

Petitioner then filed the Snstant petition raising four 

allegations which had been previously raised and one new : 

allegation. EF 5 

SUCCESSIVE PETITIONS 
  

Respondent respectfully urges the court to dismiss the 

instant petition as being successive under Georgia law and for 

failing to state a claim upon which relief can be granted. See 

0.C:C.A..8 3-14-51, Under this code section all claims for 
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relief must be raised in the first state habeas corpus petition 

unless they could not have reasonably been raised or unless 

they are constitutionally nonwaivable Smith v. Zant, 250 Ga, 
  

- 645, 301 S.E.2d 32 (1983). As a threshold matter, this Court 

must consider whether the Petitioner is entitled-to a hearing 

on the merits of the claims. Respondent would submit that 

Petitioner is-not entitled to a hearing on the merits of any of. 

 



  

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~_ the claims presented. Additionally, under state law the 

principles of res judicata preclude reconsideration of claims 

previously considered and decided adversely to the Petitioner, 

Stevens v. Kemp, 254 Ga. 228, 327 S.E.2d 185 (1985). This rule 
  

only becomes inapplicable when the grounds for relief are based 

on a change in the law occurring subsequent to the prior habeas 

~ corpus proceeding. Id. at 230, Respondent submits that there 

is no change in the law applicable to the facts and 

circumstances of the instant case which would justify- 

reconsidering any of the issues previously decided adversely to 

the Petitioner, 

  

ALLEGATIONS OF PETITIONER 

A. SYSTEMATIC EXCLUSION OF BLACK 

- JURORS BY PEREMPTORY STRIKES. 

In his first allegation, Petitioner asserts that the 

prosecutor used his peremptory strikes to systematically 

exclude black jurors at trial. Petitioner relies on the 

holding of Batson v. Kentucky, U.S ; 106 S.Ct. 1712 
  

(1986) in support of his claim. Petitioner asserts that Batson 

constitutes new law and that the issue could not have 

‘reasonably been raised previously. 

As noted by the Petitioner, this claim has never been 

raised previously by the Petitioner, although the issue itself- 

 



  

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could have been rais ed under the standard of Swain v. Alabama, 
  

380 U.S. 202 (1965). Batson v. Kentucky changed the standard 
  

to be applied in determining if there were an equal protection 

violation; however, the claim has been available to be raised. 

Petitioner's assertion of new law is simply not supported by 

the decisions of various courts. The Supreme Court of the 

  

United States has specifically held that Batson v. Kentucky is 

not retroactive in collateral proceedings "where the judgment 

of conviction was rendered, the availability of appeal - 

exhausted, and the time for petition for certiorari had: 

elapsed," Allen v, Hardy, U.S. 1106 5. Ct. 2878, 2880 
  

n.l (1986). Petitioner's only assertion is that Batson should 

be applied retroactively as this is a death penalty case. Both 

this court and the Eleventh Circuit Court of Appeals have 

declined to apply Batson v. Kentucky retroactively to death 
  

  

penalty cases, See High v. Kemp, No. 85-8989 (11th Cir. June 

4, 1987); "Fleming v. Kemp, No. 86-Y--662 (Butts Sup. Ct. June 
  

20, 1986). Thus, Respondent submits that there is no 
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justification for this Court's applying Batson v. Kentucky 
  

retroactively to the circumstances of this case. 

~~ Therefore, as the instant allegation could have previously 

been raised under the old standard and as the standard 

  

: enunciated in Batson v. Kentucky, supra, does not apply in the 

instant case, Respondent submits that this allegation falls 

within the meaning of 0.C.G.A. § 9-14-51 and is clearly 

successive, 

 



  

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statistical evidence previously offered to the United States 

B. INTENTIONAL DISCRIMINATION, 

Petitioner next asserts that there was intentional racial 

discrimination in the imposition of the death penalty in his 

case.” Petitioner asserts there was a pattern and practice 

statewide and in Fulton County of discriminating against black 

defendants who killed white victims. Petitioner relies on 

Pistrict Court and asserts that he is now attempting to show - 

‘intentional discrimination in his case. The only additional 

facts asserted by the Petitioner are the utilization of 

peremptory strikes by the district attorney. 

This allegation has been previously raised and decided 

adversely to the Petitioner both in his first state habeas 

- corpus petition and in his federal habeas corpus petition, 

Thus, under Stevens v. Kemp, supra, and the principles of res 
  

judicata, this Court should decline to reconsider this issue. 

Petitioner asserts that the decision by the Supreme Court 
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of the United States in his own case constitutes new law which 

for the first time advises him that he can prove intentional 

discrimination in his own case. Respondent submits-that this 

argument is frivolous. The Supreme Court of the United States 

did no more. than affirm equal protection cases which have 

  

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always required a showing of intentional and purposeful 

  

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discrimination. In fact, ‘Respondent has consistently asserted 

 



  

thyouahent the proceedings in that- case that the intentional 

aisorinination must be shown. Petitioner was on notice of this 

standard well prior to the time of the decision in his case by 

the Supreme Court of the United STates. Petitioner has not 

asserted any evidence before this Court that he could not have 

presented previously. In fact, Petitioner took the deposition 

of the assistant district attorney for the state habeas corpus 

proceeding filed initially with this Court and also took the - 

deposition of the district attorney of Fulton County in federal 

court. Petitioner advised the district court of the actual 

composition of his jury and could have advised the court of the 

racial makeup of the prosecutor's strikes. Appellee submits 

that the principle of res judicata precludes reconsideration of 

this claim as there is no new law applicable to this issue. 

Co’ NONDISCLOSURE OF IMPEACHING 

EVIDENCE. 

In his third allegation, Petitioner asserts that the 

prosecutor failed to disclose certain weritical” henenind 

evidence in the form of an alleged agreement with aitress Offie 

Evans, Petitioner also a8SOPLs that he has affidavits from two 

jurors stating that Evans’ testimony REfected their decision. 

This aT Tesation has previously been raised and litigated both 

in the state courts and in the federal courts and review should 

be precluded based upon the principles of res judicata. 

 



  

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Initially, Respondent would move to strike the two 

srridavits of the jurors or urge this court to sinoly rot 

consider these affidavits as they are improper under Georgia 

law. Georgia law specifically provides, "the affidavits of 

jurors may be taken to sustain but not to impeach their 

verdicts," O0.C.G.A., § 9-10-9., This statute has its roots in 

the common law purpose of the public-policy considerations such 

as protecting jurors from post-trial harrassment, finalizing 

verdicts and keeping inviolate the sanctity of the - 

deliberations. See Downs v. State, 145 Ga. App. 588, 244   

S.E.2d 113 (1978). The affidavits of the two jurors submitted 

in this case are simply inadmissible and are irrelevant. 

Therefore they should not be considered by this Court. 

Respondent also submits that Petitioner has failed to show 

that there is any new law justifying reconsideration of a claim 

previously decided adversely to him on the merits. When first 

considering this claim in state court, the court concluded that 

a simple ex parte recommendation of the detective was not 

  

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sufficient to trigger the applicability of Giglio v. United 

States, 405 U.S. 150 11972). The court further noted that the 

prosecutor was not aware of any understandings between Evans 

and a detective from the Atlanta police department. The court 

Aotea that absent any other evidence the court was not. going to 

eonclude that an agreement existed merely because. of - the 

subsequent disposition of criminal charges against the 

witness. (State habeas corpus order at 8). 

 



  

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‘Although the district court granted relief on this claim, 

the Eleventh Circuit Court of Appeals sitting en banc declined 

to grant relief and in fact found this allegation to be without 

merit. In its opinion, the court relied upon Giglio, supra, 
  

and held, "The detective's promise to speak a word falls far 

short of the understanding reached in Giglio and Napue." 

  

McCleskey v. Kemp, supra, 753 F.2d at 884. The court went on 

to note, "The detective's statement offered such a marginal 

benefit, as indicated by Evans, that it is doubtful it would 

motivate a reluctant witness or that disclosure of the 

statement would Rave Had any effect on his credibility.” 14. 

The en banc court thus declined to find any due process 

violation, The court did not stop its analysis at that point, 

however. The court went on to examine the question of whether, 

if there were a due process violation, -it would be harmless. 

The court found the following: 

In any event, there is no “reasonable 

‘likelihood" that the State's failure to 

disclose sid Botective's cryptic 

statement or Evans' different escape 

.soenaric affected the judgment of the 

jury. +i. Evans’ credibility was 

: exposed to. substantial impeachment even 

without the detective's statement and 

the inconsistent description of his 

 



  

escape. The prosecutor began his:= ~~". ey ~ 

direct examination by having FVanss 

recite a litany of past convictions. 

Evans admitted to convictions for - 

: | forgery, two burglaries, {arcenier, 

carrying a concealed weapon, and theft 

= . from the United States mail. On cross _ 

examination, McCleskey's attorney 

attempted to portray Evans as a - 

"professional criminal™. Evans also. 

admitted that he was testifying to : 

protect himself and one of McCleskey's 

codefendants . In light of this 

substantial impeachment evidence, we 

find it unlikely that the undisclogss 

information would have affected the 

jury's assessment of Evans’ credibility. 

14. The court went on to conclude that although the testimony 

of Evans added weight to the prosecution's cage, the sh did 

not find that it "could. 'in any reasonable likelihood have 

affected the judgment.'" Id. at -885, quoting Giglio, supra at 
  

154. The court then went into length as to why it made this 

finding, citing evidence at trial and argument by the Le 

 



  

prosecutor. "Thus, although Evan's testimony might well be 

: regarded as important in certain respects, the corroboration of 

that testimony was such that the revelation of the Giglio - 

promise would not reasonably affect the jury's assessment of 

his credibility and therefore would have no effect on the 

jury's decision.” McCleskey v. Kemp, supra at 885. 
  

Thus, the state court found that there was no-promise and 

the federal courts have found that not only was there no 

promise, but even if there had been a promise, the failure to 

disclose such a promise would have been harmless under the 

circumstances of this case. Respondent submits that based on 

the principles of res judicata this Court should decline to 

consider this issue. 

Petitioner asserts that the court should reconsider this 

claim, citing to the two affidavits of the jurors which 

Respondent submits should not be considered in any fashion and 

asserting that there has been a change in the law, citing 

‘United States v. Bagley, 474 U.S. _- , 105 S.Ct. 3375 (1985); 
  

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Brown v. Wainwright, 785 F.2d ¥457° {11th Cir, 1985): and Haber 

vy. Wainwright, 756 F.2d 1520 (llth Cir. 1985). Respondent 
  

submits that these three cases do not represent a change in the 

applicable law to this case and do not give cause to reconsider- 

“%*his issue, 

: In the United States v. Bagley, supra, the Court reiterated 
  

its prior holding regarding the disclosure of exculpatory and 

 



  

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impeaching evidence. The Court noted that the error in that 

case, if there were any, was the failure to assist the defense _ 

by disclosing information that might have been helpful in 

conducting cross-examination., The Court noted that this 

alleged suppression would be a constitutional -vidlation only if 

it deprived the defendant of a fair trial and this would be 

found only if the evidence was material "in the sense that its 

suppression undermined confidence in the outcome of the 

trial." Id4., 105 S.Ct. at 3381, The Court derived the 

standard from previous cases of the Court noting, "The evidence 

is material only if there is a reasonable probability that, had 

the evidence been disclosed to the defense, the results of the 

proceeding would have been different. A 'reasonable 

probabililty' is a probability sufficient to undermine 

confidence in the outcome," 14, at 3384. Respondent submits 

that this standarg is Simply not new as it is based upon prior 
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Eleventh Circuit Court of Appeals Sitting en banc in this case, 
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In “fact, the two Eleventh Circuit cases  elted by the 

Petitioner as new. law actually cite to the en banc decision in 

  
  

McCleskey v. Kemp, supra. In Brown Vv. Wainwright, supra, the 

court noted that the case did not involve mere nondisclosure 

under those circumstances but a knowing introduction of false 

 



  

testimony and an exploitation thereof. "The appropriate 

b standard is that of Giglio and Bagley brought forward in our en 

A banc decision in McCleskey v. Kemp, 753 F.2d 877, 885 (llth 
  

  

| - Cir. 1985)(en banc). "Brown v. Wainwright, supra at 1464. 
= Thus, Brown specifically acknowledges the continuing validity 

of the decision of McCleskey, supra and cited McCleskey for the 
    

  

prevailing standard. Again, in Haber v. Wainwright, the court 5 

cited to McCleskey noting the holding that the comment by the 
  

detective was of marginal benefit and also that there was > 

harmless error. Id. at n.7. Thus, neither one of these cases 

even implicates the validity of the decision in McCleskey Va 
  

Kemp and certainly does not constitute new. law. Respondent 

submits that the standard applied by the Eleventh Circuit Court 

of Appeals was a correct statement of the law. In fact, the 

Petitioner himself sought to have the Supreme Court of the 

United States rehear this allegation asserting that Bagley was 

the new law and that court declined to grant rehearing. 

Petitioner's only other hssettion toy reconsidering this 

Slain 15 a referingeis the affidavits of the trial Jirors and 

the allegation of false and misleading information. Once 

again, the affidavits of the trial jurors should not be 

admissible for any consideration at thig stage. The effect of 

these affidavits would be to virtually impeach the verdict of 

those jurors assuming they have different information. ven in 

federal court, inguiry- into the mental processes of a juror may 

 



  

not be used as evidence in a subsequent challenge to the - 

decision. See Proffitt v. Wainwright, 685 F.2d 1227, 1255 
  

(11th Cir, 1382). 

In relation to the assertion that Evans would testify in 

more detail at this stage of the proceedings, Petitioner has 

failed to show why he could not have presented any additional 

evidence at an earlier time. Evans testified before the state 

habeas corpus court in the Petitioner's first Labois 

proceedings “Petitioner had ample opportunity to question Evans 

at that time and to conduct a deposition of the assistant 

district attorney. Had the POBLt lonky desired to make further 

inquiry, the Petitioner could have taken the deposition of the 

detective mentioned by Evans, but Petitioner did not do so. 

Thus, Respondent submits that Petitioner has failed to show why 

any information allegedly available now could not have been 

presented previously. 

This allegation is a classic example of an issue which has 

been raised and decided previously and which, based on the 
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principle of res judicata, should not be reconsidered in a 

later petition. 

 



  

ee D. DENIAL OF FUNDS FOR A BALLISTICS : ~ 
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a | EXPERT. 

Petitioner next asserts that the trial court improperly 

denied his motion for funds for a ballistics expert. 

Petitioner asserts that while this allegation has been decided 

R! previously, there is new law in the form of the decision in Ake 

  

get. v. Oklahoma, U.S. ry 105 5% Ct. 1087 (1985) which would 

i} ~~ Justify reconsideration of this claim. Petitioner also cites 

the decision of the Eleventh Circuit Court of Appeals in Moore 

  

-. v, Kemp, 809 F.2d 702 (11th Cir. 1987){en banc). 

Respondent submits that this allegation again is precluded 

bagel on the principles of res judicata. Petitioner raised 

this assertion in his first state habeas corpus petition filed 

in this Court. In ruling on this allegation, the state habeas 

corpus court found the following: 

As to a ballistics expert, the States 

witness Kelly Fite, testified that the 

murder Vea00R was 1 oAbLY a-.38 ROSSi; ; * 

but no weapon was ever recovered or 

introduced at trial, (H.T. 44-45), 

Mr. Fite stated that his opinion was 

based on an accumulation of data for 

several years plus a check with the 

F.B.1, record file in Washington. 

(Fite deposition, p. 4). Mr. Fite also 

 



  

| I stated that only two other ype weapons - 

: were possibilities, (I4., p. 7). Even 

| if another expert had testified, it is 

i doubtful that such testimony-could have 

sufficiently refuted the totality of 

evidence against Petitioner. 

: State habeas Corpus order at 10. The court went on to note 

that traditionally the appointment Of oacert witnesses lies 

within the Jigoretion of the trial court. The court : = 

specifically held, however, that "Petitioner denonstrated no 

special need for the appointment of an investigator, nor did y 

Petitioner request the appointment of a ballistics expert.” 
  

  

Id. Thus, in finding that there was no abuse of discretion, 

the court specifically found as fact that there was no request 

for a ballistics expert prior to trial nor was there any need 

shown for such expert. 

  

Respondent first submits that Ake v. Oklahoma, supra, 

2Dplies strictly to a request for psychiatric examination. 

Although certain Sbandiras set forth in {fiat Gectation lah 

apply in a Sifeereont context, that case involved solely the 

guestion of a psychiatric examination. Furthermore, as this 

Court has recognized, the principles of law set forth in Ake v, 

  

"Oklahoma, supra, are not entirely new to Georgia constitutional 

law, at least insofar as they relate to psychiatric. T 

 



examinations. See Messer v. Kemp, No. 86-V-670 (Butts Superior 

  

  

Court, June 27, 1986). Furthermore, in Caldwell v. : 
  

  

Mississippi, U.8. __ + 105 8.Ct. 2633 (1985), the Court 

: considered an allegation of a denial of experts other than 

psychiatric experts subsequent to the decision of Ake V. Ee 

Oklahoma, supra. The Court specifically found in that case it 
  

had no need to determine as a matter of federal constitutional 

: law "what if any showing would have entitled the defendant to 

5 assistance of the type sought here." Id. at 2637 n.l. The 5 

clear implication of this statement is that Ake v. Oklahoma 
  

does not necessarily relate to nonpsychiatric experts. The 

"Court went on to hold in Caldwell, supra, "Given that the 
  

Petitioner offered little more than undeveloped assertions that 

the request for assistance would be beneficial, we find no 

deprivation of due process in the trial judge's decision." 

Id. Under the circumstances of the instant case, therefore, 

Respondent submits that Ake v. Oklahoma does not constitute a 
  

change in the law. In fact, in the instant case there was no - 
= 5 : 4 = 

request for a ballistics expert made prior to trial. This was 

the basis of the decision of the state habeas court on the 

first petition and under those circumstances, the law has not 

changed. Thus, under the principles of res judicata, this 

Court should decline to reconsider this issue. 

 



E. PROSECUTOR'S REFERENCE TO 

APPELLATE REVIEW. 

Petitioner finally asserts that the prosecutor deliberately 

referred to appellate review in his closing argument the 

sentencing phase. Petitioner claims that the prosecutor 

- referred to the Petitioner having previously received three 

life sentences on other charges which had been reduced and 

asserted that perhaps the reduction had occurred on appellate   
review. Petitioner asserts that this allegedly directed the 

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jury's attention to the fact that Petitioner had previously 

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received sentences that had been reduced on appeal and that 

somehow affected the jury's deliberation as to sentencing in 

the instant case. Petitioner now asserts that this court 

- should reconsider this claim based upon the decision in 

Caldwell v, Mississippi, supra. 
  

As noted by the Petitioner, this allegation was raised and 

“decided adversely to the Petitioner in the first state habeas 

corpus petition. inst relevant whriion oF the prosecuter's 

argument was set forth in the appendix to that order which is 

attached to the instant motions  In'deciding this denne, the 

state habeas corpus court relied upon then Ga. Code Ann. § 

27-2206 which prohibited the counsel from arguing that a 

defendant, if convicted, might not be required to suffer the 

full penalty due to the possibility of clemency. The court 

also cited the decision of the Supreme Court of Georgia in 

 



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Prevatte v. State, 233 Ga. 929(6) 214 S.E.2d 365 (1975). The 
  

state habeas corpus court found the following: - 

Here, the prosecution used the 

talismanic words "appellate process", 

but it was in reference to a prior life 

sentence petitioner had gotten reduced, 

~~ not to the possibility that a life ; - 

sentence could be reduced if the jury 

decided to impose such a sentence. » 

Since the words referred to a past 

conviction, the Court cannot conclude 

that the words had the inevitable 

effect of encouraging the jury to 

attach diminished consequence to their 

verdict and take less than full 

responsibility for determining life or 

death, and effect found improper in 

  

Prevatte v. State, 233 Ga. 929(6) 

(1975). 

State Babess corpus order BE 13 

Thus, the state habeas corpus court decided the issue based 

upon a case decided in 1975 which set forth essentially the 

  

same principles as that set forth in Caldwell v. Mississippi, 

supra. In fact, as noted by the Petitioner, the same standard 

 



  

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has been in effect in the state of Georgia since 1848. Sec 

  

Monroe v. State, 5 Ga. 85 (1848). The mere fact that the 

Supreme Court of the United States has seen fit to state the 

same standard as a constitutional principle that has been 

utilized in the State of Georgia for almost a hundred and 

thirty years, does not give cause to reconsider an issue when 

~ the issue was decided on the proper legal principles at the 

time of the first state habeas corpus proceeding. Thus, 

  

law which would justify reconsidering this issue. 

Caldwell v., Mississippi does not set forth any new standard of 

 



  

  

Baas : © CONCLUSION. ~ he ‘; 

Respondent submits that it is clear that none of the issues 

presented justify consideration by this Court, Petitioner's 

  

first allegation, while not raised previously, does not set 

forth a claim for relief. Petitioner failed to raise this 

a allegation in his first state habeas corpus petition and has SE 

| failed to show that there is any new law applicable to him 
. a which would Justisy excusing that failure. As to the final 

EN : four claims, it is clear that all foul etains have been raised 

| and decided adversely to the Petitioner-on the merits and 

Petitioner has failed to show any applicable new law or new 

facts which would justify reconsidering any of these issues, 

Thus, Respondent submits that the instant petition should be 

dismissed. | | 

Furthermore, although Petitioner has asked for a stay of - 

~ execution at this time, there is no outstanding order of 

Specuntony. Therefore, this Court entering a £Eay would be. 

premature and inappropriate. i: is ol ar 

Wherefore, Respondent -prays that- this Court dismiss the 

instant petition and deny Petitioner's request for stay. 

Respectfully submitted, 

MICHAEL J. BOWERS- 071650 
‘Attorney General ; Dade 

MARION O. GORDON 302300 
First Assistant Attorney General 

 



    

MARY BETH WESTMORELAND 
= 132 State ‘Judicial Building 
- 40 Capitol Square, Ss. Ww. 
Atlanta, Georgia 30334 
(404) 656-3349 

  

      

  

gl. el 
’ 

AWILLIAW B, BZLL JR.) 354735 
Senior Assistant ttorney General 

    

     ’ARY BETH WESTMORELAND J 750150 
Assigyant Attorney Genéral 

 



   
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—CERTIFICATE OF SERVICE Zz 

I do hereby certify that I have this day served 
the within and foregoing brief, prior to filing the same, 

by depositing a copy thereof, postage prepaid, in the 

United States Mail, properly addressed upon: 

Robert H. Stroup 
a 141 Walton Street 

; Atlanta, Georgia 30303 

John Charles- Boger 5 
99 Hudson Street 
New York, New York 10013 

This _/7¥4 day of June 1987. 

   



  

IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

  

WARREN McCLESKEY 

Petitioner, 

vs. : HABEAS CORPUS 
: NO. 

  

RALPH M. KEMP, Superintendent 
Georgia Diagnostic and 
Classification Center, 

Respondent. 

  

MOTION FOR ORDER TO PRESERVE ALL 
INVESTIGATIVE RECORDS, DOCUMENTS AND FILES 
  

  

Petitioner Warren McCleskey, by his undersigned counsel, 

ROves tiie Cours Zor’ dn order instiucting ail relevant stats, 

county, and municipal officials, including but not limited to, 

the Fulton County District Attorney, the Atlanta Bureau of Police 

Services and the Fulton County Jail, and all officers, employees 

or agents thereof, to preserve all police, prosecutorial, and 

jail records, documents and files, whether official or 

unofficial, pertaining to: (1) the 1978 Dixie Furniture Store 

robbery; (ii) the homicide of Officer Frank Schlatt; and (iii) 

all investigations and information concerning petitioner, Bernard 

Dupree, Office Gene Evans, and Ben Wright; and to make such 

records and documents available to petitioner during discovery in 

this action. 

Alternatively, petitioner moves this Court for an order 

 



  

instructing the said officials to preserve all such records, 

files and documents, and to deliver immediately those records, 

files and documents, including but not limited to those listed in 

petitioner's discovery request, into the custody of this Court. 

Dated: June 22, 1987 Respectfully submitted, 

ROBERT H. STROUP 
141 Walton Street 

Atlanta, Georgia 30303 

JULIUS L. CHAMBERS 
JAMES M. NABRIT III 
JOHN CHARLES BOGER 

99 Hudson Street 

New York, New York 10013 

ATTORNEY FOR THE PETITIONER 

By   

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that I am one of the counsel for petitioner 

Warren McCleskey in this action, and that I served the annexed 

document on respondent, by placing copies in the United States 

mail, first class mail, postage prepaid, addressed to his 

attorneys, as follows: 

Mary Beth Westmoreland, Esq. 
Assistant Attorney General 
132 State Judical Building 
40 Capitol Sguare S.W. 
Atlanta, Georgia 30334 

Done this day of June, 1987. 

  

ROBERT H. STROUP 
Attorney for Petitioner McCleskey 

 



  

IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

  

WARREN McCLESKEY, 

Petitioner, 

vs. 2 HABEAS CORPUS 
: NO. 

  

RALPH M. KEMP, Superintendent 
Georgia Diagnostic and 
Classification Center, 

Respondent. 

  

PETITIONER'S NOTICE OF INTENT 
TO INTRODUCE AFFIDAVITS 
  

  

Petitioner Warren McCleskey, by his undersigned counsel, 

serves this notice, pursuant to 0.C.G.A. § 9-14-48(c), of his 

intent to introduce into evidence the sors affidavits annexed as 

Exhibits/Appendices D, E, F and G to his petition for a writ of 

habeas corpus, filed June 9, 1987, as well as Exhibit I of his 

First Amendment to the Petition, to be filed on June 22, 1987. 

Dated: June 22, 1987 Respectfully Submitted, 

ROBERT H. STROUP 
141 Walton Street 
Atlanta, Georgia 30303 

JULIUS L. CHAMBERS 
JAMES M. NABRIT III 
JOHN CHARLES BOGER 

99 Hudson Street 

New York, New York 10013 

ATTORNEY FOR THE PETITIONER 

By   

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that I am one of the counsel for petitioner 

Warren McCleskey in this action, and that I served the annexed 

document on respondent, by placing copies in the United States 

mail, first class mail, postage prepaid, addressed to his 

attorneys, as follows: 

Mary Beth Westmoreland, Esq. 
Assistant Attorney General 
132 State Judical Building 
40 Capitol Square S.W. 

Atlanta, Georgia 30334 

Done this day of June, 1987. 

  

ROBERT H. STROUP 

Attorney for Petitioner McCleskey 

 



  

IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

  

WARREN McCLESKEY 

Petitioner, 

vs. i HABEAS CORPUS 
: NO. 

  

RALPH M. KEMP, Superintendent 
Georgia Diagnostic and 
Classification Center, 

Respondent. 

  

MOTION FOR ORDER TO PRESERVE ALL 
INVESTIGATIVE RECORDS, DOCUMENTS AND FILES 
  

  

Petitioner Warren McCleskey, by his undersigned counsel, 

moves this Court for an order instructing all relevant state, 

county, and municipal officials, including but not limited to, 

the Fulton County District Attorney, the Atlanta Bureau of Police 

Services and the Fulton County Jail, and all officers, employees 

or agents thereof, to preserve all police, prosecutorial, and 

jail records, documents and files, whether official or 

unofficial, pertaining to: (i) the 1978 Dixie Furniture Store 

robbery; (ii) the homicide of Officer Frank Schlatt; and (iii) 

all investigations and information concerning petitioner, Bernard 

Dupree, Office Gene Evans, and Ben Wright; and to make such 

records and documents available to petitioner during discovery in 

this action. 

Alternatively, petitioner moves this Court for an order 

 



  

files and documents, 

files and documents, 

instructing the said officials to preserve all such records, 

and to deliver immediately those records, 

including but not limited to those listed in 

into the custody of this Court. petitioner's discovery request, 

Dated: June 22, Respectfully submitted, 

ROBERT H. STROUP 
141 Walton Street 

Atlanta, Georgia 30303 

JULIUS L. CHAMBERS 
JAMES M. NABRIT III 
JOHN CHARLES BOGER 

99 Hudson Street 

New York, New York 10013 

ATTORNEY FOR THE PETITIONER 

  By 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that I am one of the counsel for petitioner 

Warren McCleskey in this action, and that I served the annexed 

document on respondent, by placing copies in the United States 

mail, first class mail, postage prepaid, addressed to his 

attorneys, as follows: 

Mary Beth Westmoreland, Esq. 
Assistant Attorney General 

132 State Judical Building 
40 Capitol Sguare S.W. 
Atlanta, Georgia 30334 

Done this day of June, 1987. 

  

ROBERT H. STROUP 
Attorney for Petitioner McCleskey 

 



  

IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

  

WARREN McCLESKEY 

Petitioner, 

vs. : HABEAS CORPUS 
: NO. 

  

RALPH M. KEMP, Superintendent 
Georgia Diagnostic and 
Classification Center, 

Respondent. 

  

MOTION FOR DISCOVERY 
  

Petitioner Warren McCleskey, by his undersigned counsel, 

moves this Court, pursuant to 0.C.G.A. §§9-14-48(b) and 9-11- 

30(a), for an order granting him leave to conduct the discovery 

indicated in the annexed notices of deposition. In support of 

this motion, petitioner submits the accompanying memorandum of 

law. 

Dated: June 22, 1987 Respectfully Submitted, 

ROBERT H. STROUP 
141 Walton Street 

Atlanta, Georgia 30303 

JULIUS L. CHAMBERS 
JAMES M. NABRIT III 
JOHN CHARLES BOGER 

99 Hudson Street 

New York, New York 10013 

ATTORNEY FOR THE PETITIONER 

By 
  

 



  

IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

  

WARREN McCLESKEY, 

Petitioner, 

vs. 3 HABEAS CORPUS 
: NO. 

  

RALPH M. KEMP, Superintendent 
Georgia Diagnostic and 
Classification Center, 

Respondent. 

  

NOTICE OF DEPOSITION 
  

TO: RALPH M. KEMP, Superintendent, 
Georgia Diagnostic & Classification Center 

Jackson, Georgia 30233 : 

PLEASE TAKE NOTICE that, pursuant to 0.C.G.A.§§9-14-48(b) & 

9-11-30(a), and the order of the Suprerior Court of Butts County, 

entered , 1987, petitioner Warren McCleskey, by his 

undersigned counsel, will take the depositions of the individuals 

listed in the annexed schedule of depositions, at the times 

indicated, before a notary public or other officer duly qualified 

to administer oaths, for purposes of discovery or use as evidence 

at trial, or both. The depositions will take place at the 

offices of Robert H. Stroup, 141 Walton Street, Atlanta, Georgia 

30303. The depositions will continue from day to day until 

completed. 

 



  

You are invited to attend and cross-examine. 

Dated: June 22, 1987 Respectfully Submitted, 

ROBERT H. STROUP 

141 Walton Street 
Atlanta, Georgia 30303 

JULIUS L. CHAMBERS 
JAMES M. NABRIT III 
JOHN CHARLES BOGER 

99 Hudson Street 

New York, New York 100183 

ATTORNEY FOR THE PETITIONER 

By   

 



  

Schedule A 
  

SCHEDULE OF DEPOSITIONS 
  

Deponents 
  

1. One or more officials of the 
Atlanta Bureau of Police Services 

with knowledge of, and custody 
over, all investigative records 
and files related to the homicide 
of Officer Frank Schlatt, the armed 
robbery of the Dixie Furniture Store 
and/or the indictment of Warren 
McCleskey for armed robbery and murder 

in 19178. 

2. One or more officials of the Office 
of the District Attorney with 
knowledge of, and custody over, all 
investigative records and files 
related to the homicide of Officer 
Frank Schlatt, the armed robbery of 
the Dixie Furniture Store and/or the 
indictment of Warren McCleskey for 
armed robbery and murder in 1978. 

3. One or more officials of the Fulton 
County Jail with knowledge of, and 
custody over, all records or files 
maintained by the Fulton County Jail 
that refer, relate or pertain to the 
incarceration of Warren McCleskey, 
Bernard Dupree, and Offie Gene Evans 

during 1978. 

4. One or more officials of the Fulton 
County Jail with direct knowledge of 
all arrangements, understandings, 
conversations and/or other 
transactions respecting the 
incarceration of Offie Gene Evans 
in the Fulton County Jail from 
July 8, - August 14, 1978. 

Proposed 

Date 
  

July 6, 1987 
9:00 A.M. 

July 6, 1987 
10:00 A.M. 

July 6, 1987 
31:00 A.M. 

July 6, 1987 
12:00 P.M, 

Proposed 

Documents 

To Be Produced 

  

  

  

See Schedule B 

See Schedule C 

See Schedule D 

See Schedule D 

 



  

10. 

11. 

W. Roy Mays, III 
Assistant City Attorney 
1110 Omni South 
Atlanta, Georgia 303083 

Detective Welcome Harris, Jr. 

Atlanta Bureau of Police Services 

175 Decatur Street, S.E. 
Atlanta, Georgia 30335 

Detective W. K. Jowers, 

Atlanta Bureau of Police Services 

175 Decatur Street, S.E. 

Atlanta, Georgia 30335 

Detective Sidney Dorsey, 
Atlanta Bureau of Police Services 
175 Decatur Street, S.E. 

Atlanta, Georgia 30335 

Grady Eskew 
Fulton County Courthouse 
136 Pryor Street : 

Atlanta, Georgia 30303 

Russell Parker, Esq. 
Fulton County Courthouse 
136 Pryor Street 

Atlanta, Georgia 

Offie Gene Evans 
897 Sells Avenue, Apt. 62 
Atlanta, Georgia 30310 

July -6,.1987 
2:00 P.M, 

July 8, 1987 
4:00 A.M. 

July. 7, 1987 

9:00 A.M. 

Jaly 7, 1987 

11:30 A.M. 

July 7, 1987 
2:00 P.M. 

July 7, 1987 
4:30 P.M. 

July 8, 1987 
9:00 A.M. 

See Schedules 

B.,.C.D 

See Schedule B,C 

See Schedule B,C 

See Schedule B,C 

See Schedule 

B,C.,D 

See Schedule 

B,C,D 

See Schedule 

B,C.D 

 



  

Schedule B 

Schedule of Documents To Be Produced 
  

"Documents" shall mean all notes, calendars, diaries, 
logs, memoranda, letters, witness statements, 
transcripts, papers, files, records, reports or any 
other documents of any kind whatsoever, whether 
official or unofficial, or any copies thereof. 

* * % 1d * 

The deponent shall produce the following: 

3. All documents which refer, reflect or relate to: 

a. any meeting, conversation or telephone call 
between Offie Gene Evans or his attorneys, and any 
official, employee, representative or agent of 
the State of Georgia, or anv political 
subdivisions thereof, in 1978; 

bh. (i) the murder of Officer Frank Schlatt; (ii) the 
investigation of Warren McCleskey's role in the 
Dixie Furniture Company and/or the murder of. 
Officer Schlatt; (iii) any witnesses to any oral 
or written statements made by Warren McCleskey. 

2. All tape, wire, or other mechanical recordings of any 
post-arrest statements by or involving Warren McCleskey, or any 
transcriptions thereof, or any evidence of any conversation 
between Warren McCleskey and Offie Evans or any officer, 
employee, representative or agent of the State of Georgia, or any 
political subdivision thereof. 

3. All documents which refer, reflect or relate to any 
promise, offer, acceptance, agreement, or any understanding, 
whether formal or informal, bilateral or unilateral, executory or 
executed, between Offie Gene Evans and any officer, emplovee, 
representative or agent of the State of Georgia or any political 
subdivision thereof. 

 



  

Schedule C 
  

Schedule of Documents To Be Produced 
  

"Documents" shall mean all notes, calendars, diaries, 
logs, memoranda, letters, witness statements, 
transcripts, papers, files, records, reports or any 
other documents of any kind whatsoever, whether 
official or unofficial, or any copies thereof. 

* * *% * * 

The deponent shall produce the following: 

8 All documents which refer, reflect or relate to: 

a. any meeting, conversation or telephone call 
between Offie Gene Evans or his attorneys, and any 
official, employee, representative or agent of 
the State of Georgia, or any political 

subdivisions thereof, in 1978; 

b. (i) the murder of Officer Frank Schlatt; (ii) the 

investigation of Warren McCleskey's role in the 
Dixie Furniture Company and/or the murder of 

. Officer Schlatt: (1il) any witnesses to any oral 

or written statements made by Warren McCleskey. 

2. All tape, wire, or other mechanical recordings of any 
post-arrest statements by or involving Warren McCleskey, or any 
transcriptions thereof, or any evidence of any conversation 
between Warren McCleskey and 0Offie Evans or any officer, 
employee, representative or agent of the State of Georgia, or any 
political subdivision thereof. 

3, All documents which refer, reflect or relate to any 
promise, offer, acceptance, agreement, or any understanding, 
whether formal or informal, bilateral or unilateral, executory or 
executed, between Offie Gene Evans and any officer, employee, 
representative or agent of the State of Georgia or any political 
subdivision thereof. 

4. All documents in the District Attorney's files which 
refer, relate or pertain to any effort to obtain, procure, direct 
or support the services of any informant or private agent in the 
investigation of Warren McCleskey's role in the armed robbery of 
the Dixie Furniture Store or the murder of Officer Schlatt. 

 



  

Schedule D   

Schedule of Documents To Be Produced 
  

"Documents" shall mean all notes, calendars, diaries, 
logs, memoranda, letters, witness statements, 
transcripts, papers, files, records, reports or any 
other documents of any kind whatsoever, whether 
official or unofficial, or any copies thereof. 

* * * * 4 

The deponent shall produce all documents which refer, relate or 

pertain to the following: 

i. All meetings or conversations between Offie Gene Evans, 
a prisoner held in the Fulton County Jail from July 7, 1978- 
August 14, 1978, and any official, employee, representative or 
agent of the Fulton County District Attorney's Office, the 
Atlanta Bureau of Police Services, the Fulton County Sheriff or 

the Fulton County Jail. 

2. All telephone calls made by or on behalf of Offie Gene 
Evans from the Fulton County Jail between July 7, 1978 and August 
14, 1978. 

3. All wire, tape recorder, electronic intercept, or other 
remote listening devices of any sort that were installed or 
placed on, in or around Offie Evans, or on, in or around the cell 
either of Offie Evans or of Warren McCleskey or of Bernard Dupree 
at any time between May 31, 1978 and August 14, 1978, or any 
transcription thereof. 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that I am one of the counsel for petitioner 

Warren McCleskey in this action, and that I served the annexed 

document on respondent, by placing copies in the United States 

mail, first class mail, postage prepaid, addressed to his 

attorneys, as follows: 

Mary Beth Westmoreland, Esq. 
Assistant Attorney General 
132 State Judical Building 
40 Capitol Square S.W. 
Atlanta, Georgia 30334 

Done this day of June, 1987. 

  

ROBERT H. STROUP 
Attorney for Petitioner McCleskey 

 



  

IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

WARREN MCCLESKEY, 

Petitioner, 
HABEAS CORPUS NO, 87-V-1028 

Ve. 

RALPH KEMP, WARDEN, 

% 
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* 
* 

¥ 
X*
 

* 
* 

% 

Respondent. 

RETURN AND ANSWER 
  

Comes now Ralph Kemp, Warden, Respondent in the 

above-styled action, and submits the instant return and answer 

to the petition by showing and stating the following: 

1, 

Respondent admits the procedural background of the case set 

forth in paragraphs 1 through 10 of the form habeas corpus 

petition. 

2. 

Respondent concurs with those statements of previous 

counsel set forth the petition in part IV of the form petition. 

 



  

3% 

Respondent admits the procedural history set forth in the 

petition in paragraphs 1 through 9 and would further assert 

that in relation to Petitioner's extraordinary motion for new 

trial, such was withdrawn by the Petitioner and his counsel in 

1982. 

4. 

In response to paragraphs 10 through 12 of the instant 

petition setting forth the statement of facts, Respondent would 

generally deny those paragraphs and would instead refer this 

Court to the statement of facts set forth by the Supreme Court 

of Georgia on direct appeal in McCleskey v., State, 245 Ga. 108, 
  

263 S.E.28 146 (1980). 

JF 

Respondent specifically denies paragraphs 11 and 12 of the 

instant petition. 

Respondent denies paragraphs 13 through 18 of the instant 

petition which allege improper use of peremptory strikes By the 

prosecutor and further asserts that this issue should not be 

considered at this time as it is successive. 

 



  

7. 

Respondent denies paragraphs 19 through 24 of the instant 

petition which assert intentional racial discrimination and 

further asserts that this claim is successive and should not be 

considered at this time. 

8. 

Respondent denies paragraphs 25 through 36 in which 

Petitioner asserts that there was a nondisclosure of "critical 

impeachment evidence" and further asserts that this allegation 

is successive and should not be considered at this time. 

9. 

Respondent denies paragraphs 37 through 42 in which 

Petitioner asserts the trial court improperly denied him access 

to an independent ballistics expert and further asserts that 

this allegation is successive and should not be considered at 

this time, 

10. 

Respondent denies paragraphs 43 through 45 relating to the 

prosecutor's argument at the sentencing phase and further= 

asserts that this allegation is successive and should not be 

considered at this time. 

 



  

11, 

In response to paragraphs 46 through 50 of the instant 

petition, Respondent asserts that there is no new law 

applicable to this case which would justify consideration of a 

claim relating to the prosecutor's use of peremptory strikes at 

this stage of the proceedings. 

12, 

In response to paragraphs 51 through 59 of the instant 

petition, Respondent asserts that Petitioner has always been 

apprised of the need for in showing intentional and purposeful 

discrimination in order to substantiate an equal protection 

violation and has not shown that there is any new law 

applicable to his case to justify reconsideration of this issue. 

13. 

Respondent denies paragraphs 60 and 61 of the instant 

petition in which Petitioner asserts that there is new law to 

Justify reconsideration of an alleged violation of Giglio v. 
  

United States, 405 U.S. 150 (1972). 
  

14. 
BERN 

Respondent further denies paragraphs 62 and 63 of the 

instant petition relating to the Giglio claim and asserts that 

the affidavits of the jurors should not be considered by this 

Court. 

 



  

15, 

In response to paragraph 64, Respondent asserts that 

Petitioner previously asserted a challenge to a denial of an 

independent ballistics expert, but denies that there has been a 

change in the law relating to this claim. Respondent further 

denies that paragraph 65 or 66 set forth a basis for 

reconsidering this issue, particularly when there was no 

specific request for a ballistics expert at trial. 

16. 

Respondent admits that Petitioner previously raised, as 

asserted in paragraph 67, a challenge to the prosecutor's 

argument at the sentencing phase, but denies that there is any 

new law relating to this claim as alleged in paragraphs 68 and 

69, 

17. 

In response to paragraph 70 of the instant petition, 

Respondent asserts that the petition for rehearing has been 

denied by the Supreme Court of the United States. 

18. 

Respondent admits paragraphs 71 through 73 of the instant 

petition, 

 



  

SEPARATE DEFENSE 
  

19, 

Respondent specifically asserts as set forth more fully. in 

the motion to dismiss that the instant petition is successive 

under Georgia law and that based upon the principles of 

O.C.G.A. § 9-14-51 and the principle of res judicata, this 

Court should decline to consider any of the claims presented in 

the instant petition. 

WHEREFORE, Respondent prays that the instant petition be 

dismissed or in the alternative that relief be denied and that 

judgment be entered in favor of the Respondent. 

Respectfully submitted, 

MICHAEL J. BOWERS 071650 
Attorney General 

MARION O. GORDON 302300 
First Assistant Attorney General 

  

. fo. 

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2 ~~ MR ANAN 

ALLIANT B, BILL, i) 354725 
Senior Assistant Attqgfney General 

LAY 0 Wa 
  

MANY fe WESTMORELAND 750150 
Assigtant Attorney General En 

MARY BETH WESTMORELAND 

132 State Judicial Building 
40 Capitol Square, S. W. 
Atlanta, Georgia 30334 
(404) 656-3349 

 



  

CERTIFICATE OF SERVICE 

I do hereby certify that I have this day served 

the within and foregoing return and answer, 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 
99 Hudson Street 
New York, New York 10013 

This AFA day of June 1987. 

  

Ass ant Attorney General 

hos{geant WESTMORELAND / 
t 

 



  

ROBERT H. STROUP 

ATTORNEY AT LAW 

141 WALTON STREET. N.W. 

ATLANTA, GEORGIA 30303 

(404) 522-8500 

June 24, 1987 

Honorable David P. Ridgeway, Sr., Clerk 
Superior Court of Butts County 
P.:0. Box 320 
Jackson, Georgia 30233 

Re: McCleskey v. Kemp, Habeas Corpus No. 87V1028 
  

Dear Mr. Ridgeway: 

Enclosed for filing please find an original and one copy of 
petitioner's Motion for Stay of Execution, with proposed 
order attached. 

Very truly yours, 

Robert H. Stroup 

RHS/1 

Encls. 

cc: Mary Beth Westmoreland, Esq. 
Nan Garrett, Esq. 

 



  

IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

WARREN McCLESKEY, 

Petitioner, 

HABEAS CORPUS 

No. 21 VYioz8 

VS. 

RALPH KEMP, Warden, 

Georgia Diagnostic and 

Classification Center, 

  

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MOTION FOR STAY OF EXECUTION 
  

Comes now Petitioner, WARREN McCLESKEY, by and through his 

undersigned counsel, and prays that an Order be entered staying 

the execution of his sentence of death until further Order of 

this Court, and in support of his application, respectfully 

states as follows: 

Bo That on the 24th day of June, 1987, the Superior Court 

of Fulton County, State of Georgia, set from noon on Tuesday, 

July-14, 1987 through noon on Tuesday, July 21,1987, as the pe- 

riod during which Petitioner's execution would be carried out. 

2. That a stay of execution is justified on the grounds 

that Petitioner's counsel has filed in this Court a Petition for 

Writ of Habeas Corpus, presenting a number of substantial legal 

and constitutional errors which have occurred in connection with 

Petitioner's conviction and sentence of death. 

3. That Petitioner is presently detained at the Georgia 

Diagnostic and Classification Center at Jackson, Georgia, under a 

sentence of death. A Stay of Execution will in no way prejudice 

 



  

the State of Georgia or interfere with Petitioner's custodial 

status. 

4. That a Stay of Execution is necessary to insure that the 

Petitioner is not executed, without benefit of counsel, and be- 

fore this Court is able to hear and determine the matters con- 

tained in the Petition for Writ of Habeas Corpus. The execution 

of Petitioner would obviously inflict irreparable harm. 

WHEREFORE, Petitioner respectfully requests an Order stay- 

ing Petitioner's execution, pending resolution of the proceedings 

and further order of this Court. 

Dated: June 4, 1987 
  

Respectfully submitted, 

Taber X. 3, TO 

ROBERT H. STROUP 

Ga. Bar #: 689175 
141 Walton Street, N.W. 
Atlanta, Georgia 30303 

(404) 522-8500 

  

JOHN CHARLES BOGER 

16th Floor 

5% Hudson Street 

New York, New York 10013 

(212) 219-1900 

ATTORNEYS FOR PETITIONER 

 



  

IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

WARREN McCLESKEY, 

Petitioner, 

HABEAS CORPUS 

No. B1V (028 

VS. 

RALPH KEMP, Warden, 
Georgia Diagnostic and 
Classification Center, 

  

Respondent. 

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ORDER STAYING EXECUTION 
  

On application for a stay of execution of the sentence of 

death imposed upon the above-named Petitioner by the Superior 

Court of Fulton County, State of Georgia, and scheduled to be 

carried out at the Georgia Diagnostic and Classification Center 

in Jackson, Georgia between noon on Tuesday, July 14, 1987, and 

noon on Tuesday, July 21, 1987, 

IT IS HEREBY ORDERED that the Application for Stay is here- 

by GRANTED, and Petitioner's execution, presently scheduled to be 

carried out at the Georgia Diagnostic and Classification Center 

in Jackson, Georgia between noon on Tuesday, July 14, 1987, and 

- 
{ noon on Tuesday, July 19, 1987, is hereby STAYED until further 

Order of this Court. 

IT IS FURTHER ORDERED that the Clerk of this Court shall 

give immediate telephonic and telegraphic notice to the Warden of 

the Georgia Diagnostic and Classification Center, and to the At- 

torney General of the State of Georgia, that Petitioner's execu- 

tion is stayed by Order of this Court. 

Dated: 
  

  

JUDGE, BUTTS COUNTY SUPERIOR COURT 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that I have this day prior to filing, 

served a copy of the within "Motion for Stay of Execution" 

upon: 

Mary Beth Westmoreland, 48d. 

Assistant Attorney General 
132 State Judicial Building 
40 Capitol Square, 5. W. 
Atlanta, Georgia 30334 

counsel of record for Respondent, by depositing a copy of same in 

the United States Mail, first-class postage affixed thereto. 

This 24th day of June, 1987. 

“Restser Nop 
  

ROBERT H. STROUP 

 



  

IN THE SUPERIOR COURT OF BUTTS COUNTY 
STATE OF GEORGIA 

WARREN MCCLESKEY, 

Petitioner, 

CIVIL ACTION NO. 87-V-1028 
Ve. 

HABEAS CORPUS 
RALPH KEMP, WARDEN, 

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Respondent. 

AMENDED ANSWER 
  

Comes now Ralph Kemp, Warden, Respondent in the 

above-styled action, by counsel, Michael J. Bowers, Attorney 

General for the State of Georgia, and submits the instant 

amendment to the answer previously submitted to this Court. 

Said amendment is submitted in response to Petitioner's first 

amendment to his petition for a writ of habeas corpus. “In 

response thereto, Respondent states the following: 

3. 

Respondent specifically denies paragraphs 74 through 75 of 

the amendment and denies that said paragraphs state any basis 

for relief, . 

2, 

Respondent denies paragraph 76 of the amendment insofar as 

it alleges that there has been a change in Georgia law. 

 



  

Se 

Respondent denies paragraphs 77 through 81 of the petition 

and denies that said paragraphs provide any basis for relief. 

4, 

Respondent denies paragraph 82, in particular denying that 

there is any evidence showing that Offie Evans acted in direct 

concert with the state authorities and that portion asserting 

that there was "additional questioning" by Evans. 

5. 

Respondent denies paragraph 83 of the petition. 

5. 

Respondent denies paragraph 84 of the petition and denies 

that there was any failure of the state to correct any alleged 

misleading testimony at trial. 

7. 

Respondent denies paragraphs 85 through 89, in particular 

denying that are any significant discrepancies between trial 

2 

testimony and a statement by Offie Evans. 

 



  

8. 

Respondent denies paragraph 90 of the amendment and 

specifically avers that there has been no change in the law in 

Georgia relating to the obtaining of information under the Open 

Records Act such as to justify consideration of the claim at 

this time and further avers that there was no material 

misleading testimony presented to the jury. 

9. 

Respondent denies paragraph 91 of the amendment and denies 

that said paragraph states a constitutional violation as to the 

instant case. 

30: 

Respondent denies paragraphs 92 through 94 of the instant 

petition and asserts that the instant claims could have been 

raised previously and that the information presented by the 

Petitioner at this stage of the proceeding could have been 

obtained earlier. 

11. 

Respondent is without sufficient information or knowledge 

to admit or deny the truth of the allegations set forth in 

paragraphs 95 through 98. 

 



  

12. 

Respondent specifically denies paragraphs 99 and 100. 

WHEREFORE, Respondent prays that the instant petition for a 

writ of habeas corpus be dismissed, or in the alternative that 

relief be denied and that judgment be rendered in favor of the 

Respondent. 

Respectfully submitted, 

MICHAEL J. BOWERS 071650 
Attorney General 

MARION O. GORDON 302300 
First Assistant Attorney General 

    
A200 f Yo 

LIAM B, HILL, JR/ 354725 
Senior Assistant Attorn General 

OWL 
MARY /BETH WESTMORELAND / 750150 
Assifgtant Attorney General 

  

  

MARY BETH WESTMORELAND 

132 State Judicial Building 
40 Capitol Square, S. W. 
Atlanta, Georgia 30334 

(404) 656-3349 

 



  

CERTIFICATE OF SERVICE 

I do hereby certify that I have this day served 

the within and foregoing amended answer, 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 Stree 
Atlanta, Georgia 0303 

John Boger 
99 Hudson Street 
New York, New York 

This J6YLA day of June 1987. 
  

      TH WESTMORELAND 
ant Attorney Generd4l 

 



  

IN THE SUPERIOR COURT OF BUTTS COUNTY 
STATE OF GEORGIA 

WARREN MCCLESKEY, 

Petitioner, 

CIVIL ACTION NO. 87-V-1028 
v. 

HABEAS CORPUS 
RALPH KEMP, WARDEN, 

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Respondent. 

RESPONSE TO MOTION FOR ORDER TO PRESERVE 
ALL INVESTIGATIVE RECORDS, DOCUMENTS AND FILES 
  

  

Comes now Ralph Kemp, Warden, Respondent in the 

above-styled action, by counsel, Michael J. Bowers, and submits 

the instant response to Petitioner's motion for an order to 

preserve all investigative records, documents and files. In 

response to said motion, Respondent will simply note that 

present Respondent has no custody, possession or control over 

any of the files, records or documents listed in the motion, 

nor any authority or control over the Fulton County District 

Attorney, the Atlanta Bureau of Police Services or the Fulton 

County Jail or any personnel thereof. Further, this Court has 

no personal jurisdication over any of the above named parties 

and, thus, would appear to be without the authority to enter 

any order directed to those persons insofar as the manner in 

 



  

which files are kept. On this basis, Respondent would oppose 

the entry of any such order as the court simply does not have 

jurisdiction over the persons in question in order to enter 

such an order. 

Respectfully submitted, 

MICHAEL J. BOWERS 071650 

Attorney General 

MARION O. GORDON 302300 

First Assistant Attorney General 

“WILLIAM B. a 354725 

- 

  

Senion Assistant Attprney General 

  aR ety 750150 
Assistant Attorney Geheral 

MARY BETH WESTMORELAND 

132'8tate Judicial Building 
40 Capitol Square, S. W. 
Atlanta, Georgia 30334 
(404) 656-3349 

 



  

CERTIFICATE OF SERVICE 

I do hereby certify that I have this day served 

the within and foregoing motion, prior to filing the same, 

by depositing a copy thereof, postage prepaid, in the 

United States Mail, properly addressed upon: 

Robert H. A RL 
141 Walton Street 
Atlanta, Georgia 30303 

John Boger 
99 Hudson Street 
New York, New York 

This JAH day of June 1987. 

  

Assisfjant Attorney General 

 



  

IN THE SUPERIOR COURT OF BUTTS COUNTY 
STATE OF GEORGIA i 

WARREN MCCLESKEY, 

Petitioner, 

CIVIL ACTION NO. 87-V-1028 
Ve. 

HABEAS CORPUS 
RALPH KEMP, WARDEN, 

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OF 

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Respondent. 

RESPONSE TO MOTION FOR DISCOVERY 
  

Comes now Ralph Kemp, Warden, Respondent in the instant 

action, by counsel, Michael J, Bowers, Attorney General for the 

State of Georgia and submits the instant response to the motion 

for discovery submitted by the Petitioner in this action, .:In 

response thereto, Respondent will simply take issue with 

Petitioner's assertion that discovery is permitted as of right 

in habeas corpus proceedings. The state habeas corpus statute 

provides for the taking of depositions and affidavits in lieu 

of the presentation of live testimony, not as discovery per 

se. Certainly, under that statute, Petitioner has the right to 

take depositions and does not need leave of court to do so. 

Respondent would oppose granting "leave of court" for the ° 

taking of depositions which are not scheduled until July 6; 

1987. At this stage of the proceedings, such depositions would 

be totally irrelevant. 

 



  

At this time the court has pending before it a motion to 

dismiss filed by the Respondent. Until such time as that 

motion has been ruled upon, any depositions would simply be 

irrelevant as they would relate to the merits of the asserted 

claims and not to the pending motion of Respondent. 

Furthermore, Petitioner has not shown that "discovery" as such 

is necessary. 

WHEREFORE, Respondent would request that this Court not 

grant "leave of court" to take discovery in this proceeding as 

there exists no statutory authorization for discovery and due 

to the pendency of the Respondent's motion to dismiss as a 

successive petition. 

Respectfully submitted, 

MICHAEL J. BOWERS 071650 
Attorney General 

MARION O. GORDON 302300 
First Assistant Attorney General 

~ 

  

  

  

Be BIUL BTR, 354725 
Senior ‘Assistant Attophey General 

  

MARY/ BETH WESTMORELAND 750150 
Assigtant Attorney General $ 

MARY BETH WESTMORELAND 

132 State Judicial Building 
40 Capitol Square, S. W. 

Atlanta, Georgia 30334 
(404) 656-3349 

 



  

CERTIFICATE OF SERVICE 

I do hereby certify that I have this day served 

the within and foregoing response to motion to dismiss, 

prior to filing the same, by depositing a copy thereof, 

postage prepaid, in the United States Mail, properly 

addressed upon: 

Robert H. Stroup bois 
141 Walton StreetV 
Atlanta, Georgia 303 

John Boger 
99 Hudson Street 
New York, New York 

This 4A day of June 1987. 

  

Assiétant Attorney General 

 



  

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HABEAS CORPUS 

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High | 

VI 

TABLE OF CONTENTS 

The Newly Obtained, 21-Page Written Statement Of 
Offie Evans Demonstrates That Alleged Admissions 

Introduced By The State Against Petitioner At Trial Were 
Deliberately Elicited By Evans, Acting As A State 
Informant, In The Absence Of Petitioner's Counsel, In 

Direct Violation Of Petitioner's Sixth and Fourteenth 

Amendment Rights 

The State's Failure To Correct the False And Misleading 
Testimony Of Offie Evans At Trial, And To Disclose Evans' 
21-Page Statement To Petitioner's Trial Counsel, Violated 

Petitioner's Eighth And Fourteenth Amendment Rights 

The Supreme Court's 1986 Decision In Batson v. Kentucky 
Constituted "An Explicit And Substantial Break With Prior 
Precedent" Which Reguires This Court To Address 
Petitioner's Batson Claim On Its Merits 

  

The Supreme Court's 1987 Decision In McCleskey v., Xemp 
Constituted A Major Change In The Law Governing Proof 

Cf Claims Of Racial Discrimination 

The Supreme Court's 1985 Decision In Ake v. Oklahoma 
Established A New Federal Constitutional Right To the 

Assistance Of Defense Experts, Which Reguires 

Reconsideration Of Petitioner's Claim By This Court 

The Supreme Court's 1985 Decision In Caldwell v. 
Mississippi Articulated A New Federal Constitutional 
Standard Which Requires This Court To Reconsider 

Petitioner's Claim That The Prosecutor's Closing Argument 
Improperly Focused The Jury's Attention On Appellate 

Review 

  

CONCLUSION 

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IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

WARREN McCLESKEY 

Petitioner, 

VS. : HABEAS CORPUS 
NO. 87V1028 

RALPH M. KEMP, Superintendent, 

Georgia Diagnostic and 
Classification Center, 

Respondent. 

PETITIONER'S MEMORANDUM OF LAW IN OPPOSITION 
TO RESPONDENT'S MOTION TO DISMISS 

Petitioner Warren McCleskey submits this memorandum of law 

in opposition to a motion to dismiss, filed by respondent Ralph 

M. Kemp on June 17, 1887. 

At issue is whether the Court should proceed to the merits 

of Mr. McCleskev's successive habeas corpus petition, which was 

jled in this Court on June Sg, 1987. Respondent contends that 

each of petitioner's constitutional claims should be dismissed as 

"successive within the meaning of 0.C.G.A. §9-14-51." (Resp. Br. 

1).4 He alleges that Mr. McCleskey's claim predicated upon 

Batson v. Kentucky -- although not previously raised or 

0 onsidered by this Court -- "could have been raised in the prior 

petition and is not based on new law." (Resp. Br. 1; id., 8-9). 

1 

1 Each reference to respondent's Motion to Dismiss and Br 

ipport, dated June 17, 1987, will be indi Gg 1 
3 

 



  

2 

He also alleges that "the other four claims" which Mr. McCleskey 

presented in his initial successive petition -- a McCleskey V. 

Kemp claim, a Giglio claim, an Ake v. Oklahoma claim, and a 

Caldwell v. Mississippi claim -- "were raised and decided 

adversely to the Petitioner previously and, thus, under the 

principles of res judicata should not be reconsidered by this 

Cont." (Resp. Br. 1) Finally, he has asserted in a 

supplemental brief, served on counsel on Friday afternoon, June 

26th, that Mr. McCleskey's United States v. Henry and Mooney v. 

ct
 

0 Holohan claims, presented in Mr. McCleskey' s First Amendment 

his habeas petition, could also have been asserted earlier. 

These allegations are incorrect. Some are misleading, 

other false. Cne by one, we will examine each of Mr. 

McCleskey's claims. All are predicated either on a substantial 

re of law, or upon newly discovered facts, or both. Th 

Georgia legislature has directed state habeas corpus courts to 

address the merits of any constitutional claims which are 

asserted in a successive petition and "which could not reasonably 

have been raised in the original or amended petition." 0.C.G.A. 

§9-14-57, The Supreme Court of Georgia, interpreting this 

statutory provision, has held that it is not "reasonable" within po
 

the meaning of 0.C.G.A. §9-14-51 to require a habeas petitioner 

either to anticipate major changes in constitutional law, Jarrell 

VY. Zant, 248 Ga. 492,284 S.E. "28 17 (1881), or to uncover facts 

previously concealed by the State. Smith vy, “Zant, 250. Ga. 634, 

301 S.E. 248 32 {319831 Since each of Mr. McCleskey's claims 

 



  

3 

depends upon just such legal or factual developments, 

respondent's motion must be denied. Each of the claims presented 

in the successive petition should be resolved on its merits. 

H 

THE NEWLY-OBTAINED, 21-PAGE WRITTEN STATEMENT OF OFFIE EVANS DEMONSTRATES THAT THE ALLEGED ADMISSIONS INTRODUCED BY THE STTE AGAINST PETITIONER AT TRIAL WERE DELIBERATELY ELICITED BY EVANS, ACTING AS A STATE INFORMANT IN THE ABSENCE OF PETITIONER'S COUNSEL, IN DIRECT VIOLATION OF PETITIONER'S SIXTH AND FOURTEENTH 
AMENDMENT RIGHTS 

The United States Supreme Court has consistently held that 

the State's use, at trial, of statements which were "deliberately 

elicited" from a defendant by a state informant after the 

appointment f defense counsel violates an gCcused's Sixt] 

Amendment right to counsel. Masslah vv, United States, 3770.35. 

201 (1964); United States v. Henry, 447 U.S. 264 (1980); Maine v. 

Moulton, 474 U.S. .. ..7 86 L.E&.2d 481 (1985); Kuhlmann v. Wilson, 

U.S.« "+91 L.Ed.24 364 (1986). Mr. McCleskey maintains that 

Offie Evans, as an informant for the police and the prosecution, 

deliberately initiated conversations with him, after both had 

been placed in adjacent Jall cells, In order to elicit 

incriminating statements to be used against him at trial. Since 

this claim rests upon documentary evidence which has been 

withheld from petitioner until June of 1987, his presentation of 

this issue in a successive petition does not constitute an abuse 

0of the writ, and this Court must address this claim on ‘tL 

 



  

merits. 

Mr. McCleskey's claim is based on a newly-obtained 21-page 

written statement by 0Offie Evans which describes in detail a 

series of alleged conversations between Evans and McCleskey in 

July of 1918. Although petitioner's trial counsel made timely, 

good faith efforts to obtain all written and oral statements of 

the prosecution's witnesses, this statement was withheld until 

recently, when, pursuant to a change in Georgia state law, see 

Napper v. Georgia Television Co., No. 44381, (Ga. Sup. Ct. April 

6, 1987), the City Attorney of Atlanta permitted counsel for Mr. 

McCleskey to gain access to it. 

The State served on Friday, June 26th, a supplemental brief 

which the attorney drafting this brief has not yet seen (and to 

which, therefore, this memorandum cannot purport to respond in 

ull.) Counsel understands from an oral, capsule description of 

the supplemental brief that the State has argued: (i) +h a = 

petitioner's counsel should have surmised, from certain allusions 

by the trial judge and the prosecutor, that the 21-page statement 

existed; (ii) that the trial counsel, who moved to obtain any 

such statements, should have done so repeatedly; and (iii) that 

since Mr. McCleskey obviously knew of any statements that he made 

to Evans, no further disclosure 1s necessary. 

None of these arguments is on point. None justify the 

State's failure to reveal its relationship with Evans or to turn 

over the statement. None suffice to defeat petitioner's right to 

a full litigation of Mr. McCleskey's claims on their merits. 

 



  

5 

Under clear Georgia precedent, a constitutional claim based 

on evidence which was unobtainable during the first habeas 

proceeding, due to no fault of petitioner, must be addressed on 

the merits. In Smith v, Zant, 250 Ga. 634, 301 S.E.24 3° {1083}, 

the Supreme Court of Georgia considered and explicitly rejected 

an argument by the State that a similar claim, based upon newly 

available evidence and presented in a successive petition, should 

be procedurally barred, because, the State argued the ’ 

petitioner "with due diligence ... could have ascertained the 

necessary information," in his first habeas corpus proceeding. 

301 S.E.2d at 37. The Georgia Supreme Court reasoned that 

"[slince the prosecution has the constitutional duty 
reveal at trial that false testimony has been given 
its witness, it cannot,.by failing ‘in this duty, 
the burden to discover the misrepresentation a 
trial to the defense. The defendant has a righ 

] the accuracy of the trial testimony of t 
witness where the, truth or falsity of hi 

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than he did to protect himself. We find that the state should 

have done more than it did to protect the defendant's rights."): 

cf. Ford v. Strickland. 734 F.2d 538 (1984) rev'd on other 

grounds sub. nom. Ford, Vv. Weinwrjght, ~~ U.S." . 91 L.Bd.2d 

335 (1986) (habeas corpus petitioner did not abuse the writ by 

raising in second petition the issue of insanity, which was not 

raised in first petition, absent evidence in the record to 

suggest that incompetency issue was available when the f 

 



  

petition was filed). 

Here, neither the prosecutor's remarks at trial nor the 

trial court's cryptic order after in camera inspection ever 

indicated that a written statement by Offie Evans even existed. 

It is plain from defense counsel's conduct, furthermore, that he 

reasonably assumed that any statements by Evans to investigating 

officers had been oral. More importantly, trial counsel had the 

right, which Smith v. Zant underscores, to rely on the integrity 

of a prosecutor, as well as upon the finding of the trial court 

that nothing revealed by Offie Evans to the police, whether oral 

or written, was exculpatory. In sum, he had neither notice of 

the statement, nor any obligation to assume that the State was 

concealing evidence of its illegal arrangement with Evans, or of 

written statements in conflict with Evans' trial testimony. 

Respondent simply cannot be heard to say, once the 

suppressed statement has come to light, that petitioner should 

have suspected foul play al Since Mr. McCleskey could yo
 

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not have reasonably obtained this evidence in his first habeas 

corpus proceeding, his claim must be addressed on the merits. 

See Smith v, Zant, 250 Ga. 834, 301 S.E.2d 32 (1983). 

On the merits, the rule forbidding a State informant to 

sol [5
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 cit post-indictment, incriminating statements from an accused 

in the absence of counsel is based on the Constitution's 

prohibition of "indirect and surreptitious interrogations" of the 

accused. Massiah, 377 U.S. at 206; Kuhlmann, 91 L.Ed.2d4 at 384. 

Since an accused's confinement in jail already operates as a 

 



 
 
 
 

 
 

 
 

 
 

 
 

 
  
 
 
 

 
 
 
 

 
 

 
 

 
  
 

 
 

 
 

 
 

 
 

 
 
 

 
 

 
 
 
  
 

 
 

 
 

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"reasonable likelihood" standard, Resp. Br. 16). Bagley imposes a (0
 

stricter burden, requiring a petitioner to demonstrate, not only 4 

— + - 3 + ~ en! + = ~My 1A Wer — F £ + 3 ] = sv ey "y+ Ff That a witness testimony coulc have affected the judgment oF 

the new Bagley standard, demonstrating that the "result of the 

proceeding would have been different" had the prosecution made 

avallable to the defense the impeachment evidence on its central 

3 d= ~ 2 oi ~ J “ + | ~ - - + + nN ~~ + a “ - TN a ~ 
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stancdarg. ra@acilionery. 1g We.ii aware of ne. general spollicy oarring 

oe a 3 we Ho tT ron he on le +1 v 3 any Fn SLA ~ ~ use Of jury testimony. He seeks 10 introduce them in this case 

n ‘ay J mn a —- T —x 4 — ar pnd —~ + — + Tv ¥ 1 4 3. cy / ~ my = 5 under Georgle law nd contrary. to pupnilc policy { Resp.» Br, 

yy mi A — a ~~ - - Lo 2 7 em ~ + ~ WN o- ~~ ~r oy Am ~ e~ — 4 12 has rgunent fails TO reCogn.Zze That an exceplion 10 'state 

~~ Ty = ~~ - ~~ » ot zu - Nm yy = \ ~~ - qe 4 <r = + < — Cg i 3 mn evidentiary rules panning juror testimony exisis. in ceses. 11 

5 TE. 1. — " 4 - tv hE 5 4 " -— MEE MA ss RE A —: 1 oo - which ar pefitioner's constitutional rights are at stake, See 

TY J — A - 3 i. “NA amy pm AD ry Cy ry 9 ih BR NERS Lp BT | bhilted States eX... rel, Owen Vv. McMann, 435 F.2¢ 813, Bl3-20 {2nc 

Cir. 1975) (federal courts will disregard state 

against jurors' ‘impeachment Of thelr verdicts, 1f they prevent 

the only method of proving that the defendant had been denied due 

process “by jury consideration of prejudicial extrarecord facts). 

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U.S. 68 (1985), held that 

"when a defendant demonstrates that his sanity at the 

time of the offense is to be a significant factor at 

trial, the State must... at a: minimum, assure the 

defendant access to a competent psychiatrist who will 

conduct an appropriate examination and assist in 

evaluation, preparation and presentation of tne 

defense." 

$700.5. at ‘83, Such assistance, the Ake majority made clear, is 

constitutiocanlly required; it does not Turn upon the discretion 

standard, cannot be res judicata of a subsequent claim founded 

upon & federal constitutional right only announced four years 

later. 

Respondent -- implicitly aware that Ake constitutes & major 

development in constitutional law -- has opposed petitioner's 

claim on. two additional grounds: (i) thei Ake is limited 

gtrictly to. a request for psychiatric examination” (Resp. Br. 

  

AT 4 1A +“ “= . + - 2 en —~ = ~YY WEC ES on a vy = 3 —- RPE BP + 
Nelther OX these con rentions, ofl course, pIYOViIGcEe & DhasSlsS TO 

Ja ~ N 3 1 y i T nn >» -~ J 3 wv A my yt } - Gismiss Mr. McClesiXey ss claim On: procecural grouncs as 

= C Pol ih Bh + +4 ER Te al NA +a MN 2h & WA +H Rccessive oO7 Tes Jus lcala., Nl Tne Contax ’ oh J Y 

  

petitioner's Ake claim. Those issues, however, are not properily 

§ PER po yy PY pion yy py + Tv on + 4 1 Taide +A a rh er 4 . fee TY MT +- 1 
pefore tne Court at This Tame. Yet on the merits, responaents 

      

 



  

defense request for an expert psychiatrist, neither the language 

to psychiatric assistance. The critical concern in AXKe, rather, 

3 on I I £ RAR Re ~ % ~ " 3 bs - TY a SR fy is the risk . of inaccurate: resclution of a disputed issue 

rv ® = TR oy 4 3 1 - ~ 3 3 PRL 4 absent expert defense assistance 470° U.S. at 872 an the 

a subsequent case, ultimately decided on an alternative ground, 

the Supreme Court has indicated its willingness to consider the 

s€:n.l (1985) ,. See also Moore v, 1} 
— - - ER . po 

ry oa oa “ a = ng - - yy ~ PLN py NG Ni. — rr NY eS Ty —~ + 
02.,.7331=32 {11th Cir. 19817) len banc) (the court asgumes - That 

"the due process clause could require the [state] government 

to provide nonpsychiatric expert assistance to an indigent 

defendant upon a sufficient showing of neecd.") 

Respondent's second contention, premised on the inadeguacy 

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ense counsel John Turner about the extent of 

 



  

—-
y + ) THE SUPREME COURT'S 1985 DECISION IN CALDWELL V. 

MISSISSIPPI ARTICULATED A NEW FEDERAL CONSTITUTIONAL 
STANDARD WHICH REQUIRES THIS COURT TO RECONSIDER 
PETITIONER'S CLAIM THAT THE PROSECUTOR'S CLOSING 
ARGUMENT IMPROPERLY FOCUSED THE JURY'S ATTENTION 
ON APPELLATE REVIEW 

In his closing argument at petitioner's -trlal, ithe 

prosecutor explicitly urged Mr. McCleskey's jury to consider the 

fact that three life sentences, previously imposed upon him, had 

been reduced 

the “Jury's attention to the’ fact that its own sentence in 

o 
McCleskevy's case would be reviewed, and possibly reduced, on 

appeal. Citing Georgia state precedents, McCleskey asserted in 

his first state habeas corpus petition that these prosecutorial 

remarks directed toward appellate review were impermissible. 

In 1985, however, the United States Supreme Court for the 

jrst time recognized z federal constitutional basis for Mr. Fg 

McCleskey's claim. In Caldwell v. Mississippi, £272 U.S. +: BG 

L.EG.2C 231 (19858) the Court held thet it is "constitutionally 

impermissible to rest a death sentence on a determination made by 

a sentencer who has been led to believe that the responsibility 

or determining the appropriateness of the defendant's death 

rests algsewhere.® Id. 8% L.Ed.24 at 239. The Supreme Court 

 



  

"OO 

Zz O 

McCleskey's trial, which deemphasize the jury's role in capital 

sentencing, reasoning that such comments substantially impair tne 

reliability of the jury determinations. Id. at 241 (Marshall, J. 

expressing concern for “the spectre of the imposition of death 

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applied by the Eleventh Circuit. See e.g., Mann v. Dugger. No. 

86-3182 (May 14, 1987) (prosecutorial reference to jury override 

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distinction between a Georgia state law principle, bereft: of 

constitutional underpinnings, and the new federal constitutional 

principle announced in Caldwell The Eleventh Circuit has 

already held that Caldwell represents "a significant change I; 

the law." Adams v. Wainwright 804 F.2¢8 1526, 1630 111th Clix 

1886) Under the new constitutional analysis in Calcdwe based 

specific case," Woodson v. North Carolina 425 UeB 230 305 

{19376) Mr. McCleskey is entitled to reassert his previously- 

raised claim. The Court should therefore address this issue on 

its merits 

 



  

Since 1981, the law and the facts governing Warren 

McCleskey's case have shifted radically. Prosecutorial conduct 

@ series of significant Supreme Court opinions -- Batson 

McCleskey, Ake and Caldwell -- that directly implicate the 

justice of McCleskey's conviction and death sentence. Moreover, 

unconstitutional acts -- carried. out in secrecy by the State's 

Key witness, Offie Evans, and by certain State officials -- have 

now come to light, casting a long shadow over the integrity, and 

the accuracy, of the ‘entire trial process. Under these 

circumstances, 0.C.G.A. §9-14-51 leaves this Court no choice: it 

hearing on the merits of Mr. McCleskey's claims 

Dated June 27.7987 Respectfully submitted 

ROBERT H. STROUP 

141 Walton Street 

Atlanta, Georgia 30303 

(404) 522-8500 

ole 

ES M., NABRIT. 

N CHARLES BOGER 

9 Hudson Street 

New York, New York 30013 

a 

ATTORNEYS FOR PETITIONER 

a 
4 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that I have his day served a copy of 

the within and foregoing pleading upon counsel for the 

respondent by delivering a copy of same, in person, to Ms. 

Mary Beth Westmoreland. 

This 29th day of June, 1987. 

2! UT H- Fgecy . 
  

ROBERT H. STROUP [/ =~ 

 



  

IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

WARREN MCCLESKEY, 

Petitioner, 

HABEAS CORPUS NO. 87-Vv-1028 
Ve. 

RALPH KEMP, WARDEN, 

* 
% 

¥ 
% 

oF 
OF 

ok 
* 

oF 

Respondent, 

RETURN AND ANSWER 
  

Comes now Ralph Kemp, Warden, Respondent in the 

above-styled action, and submits the instant return and answer 

to the petition by showing and stating the following: 

: 15% 

Respondent admits the procedural background of the case set 

forth in paragraphs 1 through 10 of the form habeas corpus 

petition. 

Ze 

Respondent concurs with those statements of previous 

counsel set forth the petition in part IV of the form petition. 

 



  

3. 

Respondent admits the procedural history set forth in the 

petition in paragraphs 1 through 9 and would further assert 

that in relation to Petitioner's extraordinary motion for new 

trial, such was withdrawn by the Petitioner and his counsel in 

1982. 

4, 

In response to paragraphs 10 through 12 of the instant 

petition setting forth the statement of facts, Respondent would 

generally deny those paragraphs and would instead refer this 

Court to the statement of facts set forth by the Supreme Court 

of Georgia on direct appeal in McCleskey v. State, 245 Ga. 108 r   

263 S5.B,24 146 (1980). 

5. 

Respondent specifically denies paragraphs 11 and 12 of the 

instant petition. 

6. 

Respondent denies paragraphs 13 through 18 of the instant 

petition which allege improper use of peremptory strikes By the 

prosecutor and further asserts that this issue should not be 

considered at this time as it is successive. 

 



  

7. 

Respondent denies paragraphs 19 through 24 of the instant 

petition which assert intentional racial discrimination and 

further asserts that this claim is successive and should not be 

considered at this time. 

8. 

Respondent denies paragraphs 25 through 36 in which 

Petitioner asserts that there was a nondisclosure of "critical 

impeachment evidence" and further asserts that this allegation 

is successive and should not be considered at this time. 

9. 

Respondent denies paragraphs 37 through 42 in which 

Petitioner asserts the trial court improperly denied him access 

to an independent ballistics expert and further asserts that 

this allegation is successive and should not be considered at 

this time, 

10, 

Respondent denies paragraphs 43 through 45 relating to the 

prosecutor's argument at the sentencing phase and furthers 

asserts that this allegation is successive and should not be 

considered at this time. 

 



  

11. 

In response to paragraphs 46 through 50 of the instant 

petition, Respondent asserts that there is no new law 

applicable to this case which would justify consideration of a 

claim relating to the prosecutor's use of peremptory strikes at 

this stage of the proceedings. 

12. 

In response to paragraphs 51 through 59 of the instant 

petition, Respondent asserts that Petitioner has always been 

apprised of the need for in showing intentional and purposeful 

discrimination in order to substantiate an equal protection 

violation and has not shown that there is any new law 

applicable to his case to justify reconsideration of this issue. 

13. 

Respondent denies paragraphs 60 and 61 of the instant 

petition in which Petitioner asserts that there is new law to 

justify reconsideration of an alleged violation of Giglio v. 
  

United states, 405 U.S. 150 (1972), 
  

14, 
- on 

Sout 

Respondent further denies paragraphs 62 and 63 of the 

instant petition relating to the Giglio claim and asserts that 

the affidavits of the jurors should not be considered by this 

Court. 

 



  

i5, 

In response to paragraph 64, Respondent asserts that 

Petitioner previously asserted a challenge to a denial of an 

independent ballistics expert, but denies that there has been a 

change in the law relating to this claim. Respondent further 

denies that paragraph 65 or 66 set forth a basis for 

reconsidering this issue, particularly when there was no 

specific request for a ballistics expert at trial. 

16. 

Respondent admits that Petitioner previously raised, as 

asserted in paragraph 67, a challenge to the prosecutor's 

argument at the sentencing phase, but denies that there is any 

new law relating to this claim as alleged in paragraphs 68 and 

69. 

17% 

In response to paragraph 70 of the instant petition, 

Respondent asserts that the petition for rehearing has been 

denied by the Supreme Court of the United States. 

18. 
- 

EA 

Respondent admits paragraphs 71 through 73 of the instant 

petition. 

 



  

SEPARATE DEFENSE 
  

19. 

Respondent specifically asserts as set forth more fully. in 

the motion to dismiss that the instant petition is successive 

under Georgia law and that based upon the principles of 

O0.C.G.A. § 9-14-51 and the principle of res judicata, this 

Court should decline to consider any of the claims presented in 

the instant petition. 

WHEREFORE, Respondent prays that the instant petition be 

dismissed or in the alternative that relief be denied and that 

judgment be entered in favor of the Respondent. 

Respectfully submitted, 

MICHAEL J. BOWERS 071650 
Attorney General 

MARION O. GORDON 302300 
First Assistant Attorney General 

i    
ARAN wv 
  

AfLLIAM B. BILL, JR. 354725 
Senior Assistant AttqQfney General 

LL hrerloscidlha danse fect 
  

Saki WESTMORELAND 750150 
Assigtant Attorney General I. 

MARY BETH WESTMORELAND 

132 State Judicial Building 
40 Capitol Square, S. W. 
Atlanta, Georgia 30334 
(404) 656-3349 

 



  

CERTIFICATE OF SERVICE 

I do hereby certify that I have this day served 

the within and foregoing return and answer, 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 
99 Hudson Street 
New York, New York 10013 

This OHA day of June 1987. 

  

Ass 
hos{geant WESTMORELAND / 

E ant Attorney General 

 



  

ROBERT H. STROUP 

ATTORNEY AT LAW 

141 WALTON STREET, N.W. 

ATLANTA, GEORGIA 30303 

June 30, 1987 

Honorable J. Owen Forrester, Judge 
United States District Court 
Richard Russell Building, Room 2367 
75 Spring St., -S.VW. 
Atlanta, Georgia 30335 

Re:  McCleskey v. Zant, No. 87 V 1023, 
Butts County 

Superior Court 

(404) 522-8500 

of 

  

Dear Judge Forrester: 

I am enclosing, for your information, a copy of a brief of 
the petitioner filed yesterday in the above-referenced 
action. 

Ms. Westmoreland advised me yesterday that she had submitted 
to you all pleadings in the action filed prior to this 
brief. 

If I can be of further assistance to the Court, please do 
not hesitate to contact me. 

Very truly yours, 

Robert H. Stroup 

RHS/1 

Encl. 

cc: Mary Beth Westmoreland, Esq. 
John Charles Boger, Esq. 

 



  

IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

  

WARREN McCLESKEY, 

Petitioner, 

vs. : - HABEAS CORPUS 
2 NO.   

RALPH M. KEMP, Superintendent 
Georgia Diagnostic and 
Classification Center, 

Respondent. 

  

MEMORANDUM OF LAW SUPPORTING 
PETITIONER'S MOTION FOR DISCOVERY 
  

  

"This Court should grant petitioner's motion for the" 

discovery indicated in the annexed notices of deposition. The 

Court's leave to conduct discovery is necessary only because 

petitioner is seeking, in good faith, to expedite this proceeding 

by taking depositions within thirty days of the service of a 

summons and complaint upon the defendant. O0.C.G.A. §§9-14-48(b) 

and 9-11-30(a), requires leave of court under such circumstances. 

After thirty days, discovery is permitted as of right. In his 

amendment to his habeas corpus petition, petitioner has alleged 

substantial constitutional claims based upon newly-discovered 

evidence. These claims allege that incriminating statements were 

deliberately elicited from petitioner by a state informant, while 

petitioner was incarcerated awaiting trial, in the absence of 

petitioner's counsel, thereby violating petitioner's Sixth 

 



  

2 

petitioner's Sixth Amendment right to counsel under Massiah v. 
  

United States, 377 U.S. 201 (1964) and United States v. Henry 447   

  

J.8. 264 (1980). In addition, petitioner has alleged that his 

due process right to a fair trial was violated by the 

prosecution's failure to correct misleading testimony elicited 

from its own witness during petitioner's trial. Petitioner has 

obtained from the state a previously-withheld document which 

substantiates these allegations. The purpose of the proposed 

discovery is to uncover additional evidence which has been 

heretofore withheld by the State. 

In Spith v. Zant, 250 Ga. 645, 301 .S.B. 24 32 (1983) the 
  

Georgia Supreme Court held that a claim, presented in a 

successive petition for a writ of habeas corpus, that the 

prosecution had permitted a witness to give misleading testimony, 

when supported by newly-discovered evidence, is one which "could 

not reasonably have been raised in the original ... petition," 

under 0.C.G.A.§9-14-51. The Court in Smith noted that when the 

new evidence shows "a serious constitutional issue of 

prosecutorial misconduct," 301 S.E. 24 at 36, and when "the truth 

or falsity of [its witness'] testimony is peculiarly within the 

knowledge of the State and the State is under a duty to reveal 

false testimony," 301 S.E.2d at 37, a petitioner is entitled to a 

hearing on the merits of his false testimony claim. Smith 

controls this Court's decision to entertain petitioner's 

constitutional claims in his successive petition. Since these 

claims must be adjudicated on the merits, petitioner is entitled 

 



  

to the benefit of discovery, 

between the State and informant Offie Gene Evans and to uncover 

3 

to clarify in full the relationship 

all evidence previously withheld by the State. 

Accordingly, petitioner's motion for discovery should be 

granted. 

Dated: June 22, 1987 Respectfully submitted, 

ROBERT H. STROUP 
141 Walton Street 
Atlanta, Georgia 30303 

JULIUS L. CHAMBERS 
JAMES M. NABRIT III 
JOHN CHARLES BOGER 

99 Hudson Street 

New York, New York 10013 

ATTORNEY FOR THE PETITIONER 

By 
  

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that I am one of the counsel for petitioner 

Warren McCleskey in this action, and that I served the annexed 

document on respondent, by placing copies in the United States 

mail, first class mail, postage prepaid, addressed to his 

attorneys, as follows: 

Mary Beth Westmoreland, Esq. 
Assistant Attornev General 
132 State Judical Building 
40 Capitol Square S.W. 
Atlanta, Georgia 30334 

Done this day of June, 1987. 

  

ROBERT H. STROUP 

Attorney for Petitioner McCleskey 

 



  

IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

  

WARREN McCLESKEY, 

Petitioner, 

vs. : HABEAS CORPUS 
: NO.   

RALPH M. KEMP, Superintendent 
Georgia Diagnostic and 
Classification Center, 

Respondent. 

  

MEMORANDUM OF LAW SUPPORTING 
PETITIONER'S MOTION FOR DISCOVERY 
  

  

This Court should grant petitioner's motion for the 

discovery indicated in the annexed notices of deposition. The 

Court's leave to conduct discovery is necessary only because 

petitioner is seeking, in good faith, to expedite this proceeding 

by taking depositions within thirty days of the service of a 

Sunnens and complaint upon the defendant. 0.C.G.A. §§9-14-48(b) 

and 9-11-30(a), requires leave of court under such circumstances. 

After thirty days, discovery is permitted as of right. In his 

amendment to his habeas corpus petition, petitioner has alleged 

substantial constitutional claims based upon newly-discovered 

evidence. These claims allege that incriminating statements were 

deliberately elicited from petitioner by a state informant, while 

petitioner was incarcerated awaiting trial, in the absence of 

petitioner's counsel, thereby violating petitioner's Sixth 

 



  

2 

petitioner's Sixth Amendment right to counsel under Massiah v. 
  

United States, 377 U.S. 201 (1964) and United States v. Henry 447   

  

U.S, 264 (1980). In addition, petitioner has alleged that his 

due process right to a fair trial was violated by the 

prosecution's failure to correct misleading testimony elicited 

from its own witness during petitioner's trial. Petitioner has 

obtained from the state a previously-withheld document which 

substantiates these allegations. The purpose of the proposed 

discovery is to uncover additional evidence which has been 

heretofore withheld by the State. 

In Smith v. Zant, 250 Ga, 648, 301 S.E. 2d 32 (1983) the 
  

Georgia Supreme Court held that a claim, presented in a 

successive petition for a writ of habeas corpus, that the 

DA DE had permitted a Withesy to give misleading testimony, 

when supported by newly-discovered evidence, is one which "could 

not reasonably have been raised in the original ... petition," 

under 0.C.G.A.§9-14-51. The Court in Smith noted that when the 

new evidence shows "a serious constitutional issue of 

prosecutorial misconduct," 301 S.E. 24 at 36, and when "the truth 

or falsity of [its witness'] testimony is peculiarly within the 

knowledge of the State and the State is under a duty to reveal 

false testimony," 301 S.E.2d at 37, a petitioner is entitled to a 

hearing on the merits of his false testimony claim. Smith 

controls this Court's decision to entertain petitioner's 

constitutional claims in his successive petition. Since these 

claims must be adjudicated on the merits, petitioner is entitled 

 



  

to the benefit of discovery, 

between the State and informant Offie Gene Evans and to uncover 

3 

to clarify in full the relationship 

all evidence previously withheld by the State. 

Accordingly, 

granted. 

Dated: June 22, 1987 

petitioner's motion for discovery should be 

Respectfully submitted, 

ROBERT H. STROUP 
141 Walton Street 

Atlanta, Georgia 30303 

JULIUS L. CHAMBERS 

JAMES M. NABRIT III 

JOHN CHARLES BOGER 

99 Hudson Street 

New York, New York 10013 

ATTORNEY FOR THE PETITIONER 

By 
  

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that I am one of the counsel for petitioner 

Warren McCleskey in this action, and that I served the annexed 

document on respondent, by placing copies in the United States 

mail, first class mail, postage prepaid, addressed to his 

attorneys, as follows: 

Mary Beth Westmoreland, Esq. 
Assistant Attorney General 
132 State Judical Building 
40 Capitol Square S.W. 
Atlanta, Georgia 30334 

Done this day of June, 1987. 

  

ROBERT H. STROUP 
Attorney for Petitioner McCleskey 

 



  

IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

  

WARREN McCLESKEY, 

Petitioner, 

vs. : HABEAS CORPUS 

: NO. 
  

RALPH M. KEMP, Superintendent 
Georgia Diagnostic and 
Classification Center, 

Respondent. 

  

PETITIONER'S NOTICE OF INTENT 
TO INTRODUCE AFFIDAVITS 
  

  

Petitioner Warren McCleskey, by his undersigned counsel, 

serves this notice, pursuant to 0.C.G.A. § 9-14-48(c), of his 

intent to introduce into evidence the SwiTh affidavits annexed as 

Exhibits/Appendices D, E, F and G to his petition for a writ of 

habeas corpus, filed June 9, 1987, as well as Exhibit I of his 

First Amendment to the Petition, to be filed on June 22, 1987. 

Dated: June 22, 1987 Respectfully Submitted, 

ROBERT H. STROUP 

141 Walton Street 

Atlanta, Georgia 30303 

JULIUS L. CHAMBERS 
JAMES M. NABRIT III 
JOHN CHARLES BOGER 

99 Hudson Street 

New York, New York 10013 

ATTORNEY FOR THE PETITIONER 

By 
  

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that I am one of the counsel for petitioner 

Warren McCleskey in this action, and that I served the annexed 

document on respondent, by placing copies in the United States 

mail, first class mail, postage prepaid, addressed to his 

attorneys, as follows: 

Mary Beth Westmoreland, Esq. 
Assistant Attorney General 
132 State Judical Building 
40 Capitol Square S.W. 
Atlanta, Georgia 30334 

Done this day of June, 1987. 

  

ROBERT H. STROUP 

Attorney for Petitioner McCleskey 

 



  

IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

  

WARREN McCLESKEY, 

Petitioner, 

vs. : HABEAS CORPUS 
: NO.   

RALPH M. KEMP, Superintendent 
Georgia Diagnostic and 
Classification Center, 

Respondent. 

  

MEMORANDUM OF LAW SUPPORTING 
PETITIONER'S MOTION FOR DISCOVERY 
  

  

This Court should grant petitioner's motion for the 

discovery indicated in the annexed Aotives of deposition. The 

Court's leave to conduct discovery is necessary only because 

petitioner is seeking, in good faith, to expedite this proceeding 

by taking depositions within thirty days of the service of a 

summons and complaint upon the defendant. 0.C.G.A. §§9-14-48(b) 

and 9-11-30(a), requires leave of court under such circumstances. 

After thirty days, discovery is permitted as of right. In his 

amendment to his habeas corpus petition, petitioner has alleged 

substantial constitutional claims based upon newly-discovered 

evidence. These claims allege that incriminating statements were 

deliberately elicited from petitioner by a state informant, while 

petitioner was incarcerated awaiting trial, in the absence of 

petitioner's counsel, thereby violating petitioner's Sixth 

 



  

2 

petitioner's Sixth Amendment right to counsel under Massiah v. 
  

United States, 377 U.S. 201 (1964) and United States v. Henry 447   

  

U.S. 264 (1980). In addition, petitioner has alleged that his 

due process right to a fair trial was violated by the 

prosecution's failure to correct misleading testimony elicited 

from its own witness during petitioner's trial. Petitioner has 

obtained from the state a previously-withheld doduient which 

substantiates these allegations. The purpose of the proposed 

discovery is to uncover additional evidence which has been 

heretofore withheld by the State. 

In Smith v. Zant, 250 'Ga. 645, 301 S.B. 24 32 (1983) the   

Georgia Supreme Court held that a claim, presented in a 

successive petition for a writ of habeas corpus, that the 

prosecution had permitted a WItHESE. Lo give misleading testimony, 

when supported by newly-discovered evidence, is one which "could 

not reasonably have been raised in the original Ta petition,” 

under O0.C.G.A.§9-14-51. The Court in Smith noted that when the 

new evidence shows "a serious constitutional issue of 

prosecutorial misconduct,” 301 S.E. 2d at 36, and when "the truth 

or falsity of [its witness'] testimony is peculiarly within the 

knowledge of the State and the State is under a duty to reveal 

false testimony," 301 S.E.2d at 37, a petitioner is entitled to a 

hearing on the merits of his false testimony claim. Smith 

controls this Court's decision to entertain petitioner's 

constitutional claims in his successive petition. Since these 

claims must be adjudicated on the merits, petitioner is entitled 

 



  

to the benefit of discovery, 

between the State and informant Offie Gene Evans and to uncover 

3 

to clarify in full the relationship 

all evidence previously withheld by the State. 

Accordingly, 

granted. 

Dated: June 22, 1987 

petitioner's motion for discovery should be 

Respectfully submitted, 

ROBERT H. STROUP 
141 Walton Street 
Atlanta, Georgia 30303 

JULIUS L. CHAMBERS 

JAMES M. NABRIT III 

JOHN CHARLES BOGER 

99 Hudson Street 

New York, New York 10013 

ATTORNEY FOR THE PETITIONER 

By 
  

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that I am one of the counsel for petitioner 

Warren McCleskey in this action, and that I served the annexed 

document on respondent, by placing copies in the United States 

mail, first class mail, postage prepaid, addressed to his 

attorneys, as follows: 

Mary Beth Westmoreland, Esq. 
Assistant Attorney General 
132 State Judical Building 
40 Capitol Square S.W. 
Atlanta, Georgia 30334 

Done this day of June, 1987. 

  

ROBERT H. STROUP 

Attorney for Petitioner McCleskey