General Legal Files

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The Bepartment of Tato 
State of Georgia 

Atlanta 
MICHAEL J. BOWERS 30334 132 STATE JUDICIAL BUILDING 

ATTORNEY GENERAL 

  

TELEPHONE 656-3300 

January 11, 1983 

Honorable J. Owen Forrester 
United States District Judge 
23067 United States Courthouse 
75 Spring Street S, W. 
Atlanta’, Georgia 30335 

RE: Warren McCleskey v. Walter D. Zant 
Civil Action No, C81-2434Aa 
  

Dear Judge Forrester: 

Enclosed please find the supplemental brief that I am 
filing in the above-styled case. This brief addresses 
the decision By the Eighth Circuit Court of Appeals 
in Britton v, Rogereg, 631 P.2&8 572 {8+h Clix. 1980). I 
have also included, solely for the court's information, 
a copy of the state's brief filed for the en banc court 
in Spencer wv. Zant, Case No. 82-8408, as well as the 

state's responses to the questions propounded by the 
Eleventh Circuit Court of Appeals. I have not filed 
these in this action, but am merely presenting them to 
you for your information and use, particularly as Mr. 
Stroup sent you a copy of a petitioner's’ en-banc brief 
in that case, 

  

  

Thank you for your time and consideration, 

Sincerely, 

* 2% Lette 
ETH WESTMOREL 

yf Attorney General 

MBW:en 

cc: Robert H. Stroup 

John Charles Boger 

 



  

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN McCLESKEY, 

Petitioner, CIVIL ACTION NO. C81-2434A 

Vo 

HABEAS CORPUS 
WALTER D. ZANT, WARDEN, 
GEORGIA DIAGNOSTIC AND 
CLASSIFICATION CENTER, 

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Respondent. 

RESPONDEN('S MOTION FOR ENLARGEMENT 
OF TIME FOR DISCOVERY 
  

COMES NOW, Respondent, through counsel and moves this Court 

for a sixty (60) day enlargement of time within which to 

complete discovery in this case. In support of said motion, 

Respondent shows the following: 

1. 

As this Court is aware, Petitioner has indicated that he 

intends to introduce evidence pertaining to two extensive, 

detailed statistical studies on the application of the death 

- penalty in Georgia. 

2 

On January 12, 1983, Respondent received answers to the 

first set of interrogatories which had been forwarded to 

Petitioner; however, because of a question of confidentiality 

 



  

between Professor David C. Baldus and the State Board of 

Pardons and Paroles, Professor Baldus felt he was not authorized 

to specifically release the names of individuals considered in 

his first study. Upon learning of this potential 

confidentiality problem, counsel for the Respondent contacted 

the State of Georgia Pardons and Paroles, and a written 

authorization to release information was forwarded from the 

Board to ProLesso Baldus on January 11, 1983. Counsel for 

Respondent anticipates that the aforesaid list of names will be 

received shortly. 

3. 

As of the date of this motion, Respondent has not yet 

received, and thus has not yet had an opportunity to analyze 

any of the statistical data requested in Respondent's request 

for production of documents and tangible materials. These 

materials include the computer cards and tapes containing 

machine-readable raw data, which Respondent intends to utilize 

to perform an independent analysis of the information and data 

utilized in the studies which Petitioner will offer for this 

Court's consideration. In a letter dotad January 10, 1983, 

Counsel for Petitioner has indicated that the raw data in 

machine-readable form and Professor Baldus's code book for said 

data should be made available within the following two weeks. 

4. 

 



  

Respondent seeks an enlargement so that Respondent's 

statistical expert will have an opportunity to review and 

evaluate the raw data information contained in Professor 

Baldus's studies, and so that Respondent's expert may more 

effectively assist counsel in preparing for the deposition of 

Professor Baldus by formulating specific, material questions 

based upon his independent analysis of said raw data. 

Se 

The instant request for an enlargement of time is not 

imposed for the purpose of delay, but is being requested so 

that Respondent may have an opportunity to adequately review 

the aforesaid raw data prior to deposing Professor Baldus. 

Additionally, in his answer to Respondent's Interrogatory No. 

a 
1, Pec ititney has indicated that besides Professor Baldus and = 

Professor Woodworth, he expects to call as witnesses at least 

two other individuals who apparently are experts in social 

science and psychology. One is Dr. Richard Burke from the 

University of California at Santa Barbara, and the other is 

Robert Mauro from Stanford University, California. Respondent 

also seeks additional time to explore the subject matter of 

these witnesses' potential testimony. 

6. 

Finally, it does not appear that Petitioner will be harmed 

by this requested short enlargement. 

 



  

WHEREFORE, based on the aforesaid Respondent respectfully 

requests that this Court grant Respondent's motion for an 

enlargement of time within which to complete discovery in this 

case. 

Respectfully submitted, 

MICHAEL J. BOWERS 
Attorney General 

ROBERT S. STUBBS II 
Executive Assistant Attorney General 

Ath forte 
  

MARION O. GORDON 
First Assistant Attorney General 

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— 

  

Seni Assistan ey General 

“Uist 2lpo &. Lomi 

¢ Ee emia 
pra 

  

NICHOLAS G. DUMICH 
Assistant Attorney General 

Please serve: 

NICHOLAS G. DUMICH 
132 state Judicial Building 
40 Capitol Square, S. W. 
Atlanta, Georgia 30334 
(404) 656-3499, 

 



  

  

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN McCLESKEY, 

Petitioner, CIVIL ACTION NO. C81-2434A 

v. 
HABEAS CORPUS 

WALTER D. ZANT, WARDEN, 

GEORGIA DIAGNOSTIC AND 
CLASSIFICATION CENTER, 

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Respondent. 

MEMORANDUM IN SUPPORT OF RESPONDENT'S 
REQUEST FOR AN ENLARGEMENT OF DISCOVERY TIME 
  

During a conference held in chambers on November 19, 1982 

this Court intially granted Respondent sixty (60) days to 

pursue discovery pertaining to the issue raised by Petitioner... 

which attacks the application of capital punishment in 

Georgia. Respondent has received responses or oujections to 

the questions in his first set of interrogatories, and expects 

to receive shortly a reponse to Respondent's request for 

production of documents and tangible materials. Included in 

the tangible materials requested are the computer tapes and 

cards containing the raw data which has been utilized in the 

studies which Petitioner relies upon. Respondent has also 

requested the names and specific information pertaing to the 

numerous cases contained in portions of the preliminary 

findings for the studies. 

 



  

Respondent believes that it would be most beneficial and 

economical to depose Professor Baldus after Respondent has an 

an opportunity to review and at least partially analyze the raw 

data which forms the underlying basis for these studies. 

Moreover, as noted in the attached motion, in his answers to 

Respondent's interrogatories, Petitioner has listed at least 

two other witnesses from California who appear to be experts in 

social soiSnce research and psychology. Respondent needs an 

additional period of discovery to explore the potential subject 

TA 0 these witnesses' testimony. 

Of course under Rule 6(b) of the Federal Rules Of Civil 

Procedure, this Court for cause shown may, in ite discretion, 

grant an enlargement of time within which a party is required 

to act. As this Court may surmise from reviewing only the 

preliminary findings of Dr. Baldus, and his June, 1982 

affidavit, the two statistical studies which he has developed 

appear to be quite extensive and detailed. Respondent has 

requested information on other regression analyses which have 

been done in the two studies, other than those listed in the 

preliminary finding, and counsel for Petitioner has indicated 

his objection to listing such information, indicating that 

Professor Baldus has conducted literially hundres of regression 

analyses involving thousand of facts which have been adjusted 

for and considered. In order to intelligently depose Professor 

Baldus on specific areas pertaining to his specific regression 

 



  

analyses, Respondent needs a short additional period of time to 

at least conduct a partial independent analysis of the raw data 

underlying the studies. 

CONCLUSION 
  

For all of the aforesaid reasons, Respondent respectfully 

requests that this Court grant Respondent an additional period 

of dinty (60) days within which to complete discovery in this 

case. 

Respectfully submitted, 

MICHAEL J. BOWERS 
Attorney General 

ROBERT S. STUBBS II 

Executive Assistant Attorney General 

A 

fed 
  

MARION O. GORDON 
First Assistant Attorney General 

  

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B. HILL, /IR. 
Assistant/Attorpey General 

Uihidpo 8 
  

NICHOLAS G. DUMICH °. 
Assistant Attorney General 

Please serve: 

NICHOLAS G. DUMICH 

132 State Judicial Building 
40 Capitol square, S. W. 
Atlanta, Georgia 30334 
(404) 656-3499 

 



  

CERTIFICATE OF SERVICE 

I do hereby certify that I have this day served 

the within and foregoing pleading, prior to filing the 

same, by depositing a copy thereof, postage prepaid, in 

the United States Mail, properly addressed upon: 

Mr. Robert H. Stroup 
Attorney at Law 
1515 Healey Building 
Atlanta, Georgia 30303 

Mr. John Charles Boger 
Attorney at Law 

10 Columbus Circle 
| : New York, NY 10019 

This wes of January, 1983 oe 

  

NICHOLAS G. DUMICH 

 



  

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

of 

WARREN MCCLESKEY, 

Petitioner, CASE NO. (C81-2434A 

Ve 

WALTER D. ZANT, WARDEN, HABEAS CORPUS 

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Respondent. 

MOTION FOR EXTENSION OF TIME IN WHICH TO COMPLETE 

CRITICISMS OF REPORT OF DAVID C. BALDUS 
  

  

Comes now Walter D. Zant, Respondent in the above-styled 

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

State of Georgia, and requests that this Court extend the time 

provided for Respondent to submit all criticisms of the report 

of Professor David C. Baldus, to and including Monday, 

August 8, 1983. In support of said motion, Respondent attaches 

a brief setting forth the reasons which Respondent thinks 

necessitates such an extension. 

THEREFORE, Respondent respectfully requests that this Court 

grant the thishne motion. 

Respectfully submitted, 

MICHAEL J. BOWERS 

Attorney General 

JAMES P. GOOGE, JR. 

Executive Assistant Attorney General 

 



  

/ . “y (7 Wain QO. Bondion, 
MARION O. GORDON — 

Hirst Assistant Attorney General 

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WiLLIAM B. HILL, 
Senior!Assistan 

  

      

   

  

Attgrney General 

Syl. age Te) ; 
SY iives XUAA L400 200 loz aL 
MARY BETH WESTMORELAND 

Assistant Attorney General 

  

MARY BETH WESTMORELAND 

132 State Judicial Building 
40 Capitol Square, S5. 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: 

Mr. Robert H. Stroup 
1515 Healey Building 
Atlanta, Georgia 30303 

Mr. John Charles Boger 
JO Columbus Circle 

New York, New York 10019 

Mr. Anthony G. Amsterdam 
New York University Law School 
40 Washington Square South 

New York, New York 10012 

This 2nd day of August, 1983. 

7 
7 : 7 4 / go / Y 7? LV hire, A LLL rn pre dral   

MARY BETH WESTMORELAND 
of 

 



  

NI oe STATES DISTRICT COURT 

ORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISICN 

Ul 

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WARREN MCCLESKEY, 

Petitioner, CASE NO. C81-2434A 

YY. 

WALTER D. ZANT, WARDEN, HABEAS CORPUS 

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Respondent. 

BRIEF IN SUPPORT OF MOTION FOR 
ADDITIONAL TIME TO PREPARE CRITICISMS 

OF DATA BASE AND REPORT OF PROFESSOR DAVID C. BALDUS 
  

Comes now Walter D. Zant, Warden, Respondent in the 

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

General for the State of Georgia, and makes the instant motion 

for an extension of time in which to complete criticisms of the 

report of Professor David C. Baldus in the above-styled case. 

In support of said motion, Respondent states the following: 

1. 

Initially, in the instant case, Respondent was presented 

with a "preliminary report” from Professor David C. Baldus. 

Subsequently, during the discovery period, Respondent obtained 

certain computer cards and a computer tape containing the data 

base utilized for this study. Repondent proceeded to do an 

 



  

analysis based on this data base and on the preliminary report. 

No
 

. 

On or about June 15, 1983, Respondent received a second 

report from Professor Baldus entitled "a working draft." This 

report, when all tables are included, consists of over three 

hundred pages, plus five separate appendicies. In addition, 

Respondent received a document relating to death sentence 

patterns in Fulton County which consists of approximately 

thirty pages. Respondent then began analysis based on that 

report. In the meantime, Respondent's experts were having to 

prepare for their own depositions and were also providing 

information to counsel for the Respondent for the deposition of 

Professor David C. Baldus. 

3 

At the deposition of Professor Baldus on July 6 and 7, 

1983, it was learned that extensive cleaning efforts were 

underway concerning the original data base and that a final 

report was being prepared. It was indicated that this 

information would be provided to the Respondent as soon as it 

was available. 

 



  

4. 

At the status conference before this Court on July 29, 

1983, Respondent received a computer tape, apparently 

containing an updated data base, but with no explanation as to 

what changes had been made since the original tape was received 

in January, 1983. 

5. 

At said status conference, this Court was made aware that a 

final report had not been provided to the Respondent and 

directed that such report be provided to the Respondent on 

Monday morning, August 1, 1983. It was also provided that 

Respondent would submit all criticisms of the reports Wednesday 

afternoon, August 3, 1983 by Federal Express. 

6. 

The final report was not received by counsel for the 

Respondent until between 1:30 p.m. and 2:00 p.m. on Monday 

afternoon, and was only received at that time because counsel 

for the Respondent had someone pick it up from the office of 

Petitioner's counsel in Atlanta. 

 



  

7- 

This final report is of the same general length as the 

original report, although numerous changes haves been made. 

Furthermore, several appendicies have been added addressing 

pertinent issues. Some of these appendicies are over fifteen 

pages long. 

8. 

Respondent placed a copy of this report in the mail by way 

of express mail tc an expert in Baton Rouge, Louisiana on 

Monday afternoon. Obviously, this expert will not be able to 

even review the report until Tuesday, and could hardly 

formulate all criticisms he might have by Wednesday. 

2 

Respondent has further consulted with the expert in Atlanta 

who has begun review of the final report. The expert has also 

begun work with the computer tape provided to counsel for the 

Respondent on Friday, July 29, 1983. Counsel has been advised 

that substantial changes have been made to the data base 

requiring that most of the tables originally prepared by the 

expert in his report, which is over one hundred and fifty pages 

long, will have to be rerun based on this new tape. 

Furthermore, it is difficult to determine from the tape 

 



  

precisely what changes have been made and whether any changes 

were made to the information received from the first study, 

that is the Procedural Reform Study. The expert is also having 

to review the new issues presented and to make criticisms of 

those issues as well as provide additional information 

emphasizing Fulton County, as this Court indicated in the 

status conference that this would be a primary emphasis of the 

hearing. The expert cannot guarantee that, if it is required 

that these tables be provided by tomorrow afternoon, the tables 

will be totally accurate. The expert has been working 

constantly since this information was obtained, but is having 

difficulty completing the task of providing all criticisms and 
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completing all work by Wednesday afternoon. 

10. 

Counsel for the Respondent has also been advised that the 

expert will only have access to the state's computer facilities 

until 4:30 p.m. this afternoon (Tuesday, August 2nd) and will 

not have access to the computer facilities on Wednesday morning 

due to maintenance procedures that are carried out at the 

computer facilities. The access to the computers on Wednesday 

afternoon will be highly restricted due to the backlog created 

by the maintenance procedures on Wednesday morning. 

 



  

1k. 

Respondent has also received this morning, Tuesday, August 

2nd, an additional report prepared by Samuel R. Gross and 

Robert Mauro concerning an analysis of racial disparity in 

capital sentencing and homicide vicitimization. This report 

consists of eighty-five pages, plus forty five pages of 

footnotes. Respondent has never been informed that any such 

report was to be used, although Petitioner did indicate Mr. 

Mauro as a possible expert witness in an answer to an 

interrogatory. Respondent has not had the opportunity to 

review this document or prepare any critique of this document 

in any manner and needs additional time to do so. 

THEREFORE, Respondent respectfully requests that this Court 

grant additional time for Respondent to prepare criticisms and 

to critique the information provided by Professor Baldus and 

also so that Respondent may have time to adequately review the 

new report provided and to adequately prepare information 

specifically relating to Fulton County cases. It is virtually 

impossible for Respondent to make an adequate response within 

the time limitation set by this Court. In making such a 

request for extension, Respondent also wishes to note to the 

Court that it is conceivable that the deposition of Lewis 

Slaton will be scheduled on Thursday, August 4, 1983 and this 

will necessitate counsel spending some time preparing for this 

 



  

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deposition and participating in the deposition. Therefore, 

Respondent requests that this Court grant the Respondent until 

Monday, August 8, 1983, in order to complete all criticisms and 

review. 

Respectfully submitted, 

MICHAEL J. BOWERS 
Attorney General 

JAMES P. GOOGE, JR. 

Executive Assistant Attorney General 

  

Ys 0 . Cond 
ARION OO. GORDON | meses 

irst Assistant Attorney General 

Li of ail Al    
  

WILLIAM B. HILL, pR.” 
Senior Assistant 7 oiyey General 

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MARY BETH WESTMORELAND 
Assistant Attorney General 

MARY BETH WESTMORELAND 

132 State Judicial Building 
40 Capitol Square, 8S. HW. 
Atlanta, Georgia 30334 
(404) 656-3349 

 



  

CERTIFICATE OF SERVICE 

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: 

Mz. Bobert H. Stroup 
1515 Healey Building 
tlanta, Georgia 30303 

Mr. John Charles Boger 
10 Columbus Circle 
New York, New York 10019 

Mr. Anthony G. Amsterdam 
New York University Law School 
40 Washington Square South 
New York, New York 10012 

This 2nd day of August, 1933. 

Fd 

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Te 4 Yk Va) PL Ff / Vi 2 “y » 4 - 7 7 pieen SHALL (LALS teste aa 
  

MARY BETH WESTMORELAND f 
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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN MCCLESKEY, 

Petitioner, CIVIL ACTION NO. C81-2434A 

Ve 

WALTER D. ZANT, WARDEN, 

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Respondent. 

RESPONDENT'S FOURTH SUPPLEMENTAL RESPONSE 

TO INTERROGATORIES AND SUBMISSION OF CRITICISMS 

PURSUANT TO ORDER OF THE COURT 

  

COMES NOW Walter D. Zant, Warden, Respondent in the 

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

General for the State of Georgia, and submits the following 

additional list of criticisms to the reports of Professor David 

C. Baldus as directed bv the Court, In addition to the 

previous criticisms submitted, Respondent would add the 

following: 

1. 

It appears in reviewing the updated computer tape that the 

updating process has not been completed. Many variables in the 

Z task file appear to be incomplete or incorrect. 

 



  

2 

The most recent computer tape presented is not in a form 

such as to allow a complete analysis, as the master file has 

not been updated. 

3. 

Table 12 relating to prior record is not relevant to every 

stage of the decision-making process as prior record is 

generally not admissible until the penalty phase of the trial. 

4. 

In specific regard to the McCleskey case, it is not 

indicated anywhere that McCleskey was the only one in the room 

where the shooting took place, while the remainder of the 

defendants were in a separate room at the store. 

5 

The factor analysis utilized does not serve the function it 

was intended to serve, that is, producing uncorrelated 

variables. 

5. 

Some of the tables referenced in the final report, in 

particular, the Pulton County report, 40 not appear. to be 

present. 

7. 

The number of penalty trial cases has changed between the 

working draft and the final report. 

 



  

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8. 

The final report includes many numerical changes and 

inconsistences which create problems in preparing a final 

analysis on behalf of the Respondent. 

8. 

It does not appear at any time that the Petitioner's case 

was examined in detail in order to make a complete evaluation 

of it, such as a total review of the transcript in order to 

prepare the data for this case. 

10. 

The inclusion of the following variables in the factor 

analysis as mitigating variables makes it exceedingly difficult 

to determine what is intended to be mitigating and what is 

intended to be aggravating: VBLUSKL, STRANGER, VICCLOSE, 

DVIOLOTH, FELMUR, NOVPROV, VIOLENCE, DTHINK, VDEFENS, VBED, 

VDEFECT. 

Respondent thus submits the above criticisms of the reports 

of Professor David C. Baldus. 

Respectfully submitted, 

MICHAEL J. BOWERS 
Attorney General 

JAMES P. GOOGE, JR. 

Executive Assistant Attorney General 

Tv 2. A allem. 
  

MARION O. GORDON 
First Assistant Aton ae General 

(Signatures continued)



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WFELIAM B. HILL, JR. 1 E 
Senior¥ Assi Letany Abey rney General 

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F Eh ao 3 gg. #3 

Had Bato Ly pebione dad’ 
XY [BETH WESTMORELAND 

Assistant Attorney General 

    

  

MARY BETH WESTMORELAND 

132 State Judicial Building 

40 Capitol Square, 
Atlanta, Georgia 303 
(404) ©56-3349 

 



    

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CERTIFICATE OF SERVICE 

I dc hereby certify that I have this day served 

the within and foregoing pleading, as directed by the 
pw -t - 

court, by having hand delivered a copy of same to: 

This 

Robert H. Stroup 
1515 Healey Building 
57 Forsyth Street, N.W. 

Atlanta, Georgia 30303 

5th day of August, 1983 

Saary Putio Yates dod 
  

MARY BETH WESTMORELAND



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN McCLESKEY, 

Petitioner, CIVIL ACTION FILE 

-Vs-— NO. C81-2434A 

WALTER ZANT, Warden 

Georgia Diagnostic and 
Classification Center, 

Respondent. 

  

PETITIONER'S MOTION TO SUPPLEMENT THE RECORD 

PURSUANT TO RULE 7(b), RULES GOVERNING §2254 

CASES 
  

Comes now the petitioner, WARREN McCLESKEY, and moves the 

Court to supplement the record in this case to include portions 

of the District Attorney's investigative file, which was a part 

of the record before the State habeas court. In support of this 

motion, petitioner attaches the accompanying memorandum of law. 

ROBERT H. STROUP 

1515 Healey Building 
Atlanta, Georgia 30303 

JACK GREENBERG 

JOHN CHARLES BOGER 

10 Columbus Circle 
New York, New York 10019 

TIMOTHY XK. FORD 

600 Pioneer Building 
Seattle, Washinrnaton 98126 

ANTHONY G. AMSTERDAM 

New York Universitv Law School 
40 Washington Square South 
New York, New York 10012 

BY : Gober tN. Xoc 
ROBERT H. STROUP 
  

ATTORNEYS FOR PETITIONER 

 



  

IN THF UNITED. STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN McCLESKEY, 

Petitioner, CIVIL ACTION FILE 

nl NO. C81-2434A 

WALTER ZANT, Warden 
Georgia Diagnostic and 
Classification Center, 

Respondent. 

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PETITIONER'S MEMORANDUM OF LAW IN SUPPORT 

OF MOTION TO SUPPLEMENT THE RECORD 
  

INTRODUCTION. 
  

This Court held an evidentiary hearing on August 8-22, 

1983, on petitioner's claims that the death penalty in Georgia 

was being imposed in an arbitrary and capricious fashion. At 

the close of the evidence, the Court directed petitioner to file 

briefs with respect to issues not previously briefed. Peti- 

tioner has moved the Court to supplement the record to include 

portions of the record before the State habeas court which have 

not previously been made a part of the record before this Court, 

and petitioner files this memorandum in support of that motion. 

I. BECAUSE THE EVIDENCE WAS BEFORE THE STATE HABEAS 

COURT, THIS COURT SHOULD GRANT PETITIONER'S 

MOTION TO SUPPLEMENT TEE RECORD. 
  

Upon preparation of petitioner's motion on the merits 

with respect to certain of his claims, petitioner discovered that 

Exhibit "A" to the Russell Parker deposition, which was a part of 

 



  

the State habeas court record, was not included in the materials 

filed by the Attorney General with the respondent's answer in 

this case. 

Exhibit "A" to the Russell Parker deposition is a copy 

of the District Attorney's investigative file, made available 

to defense counsel for McCleskev, and his co-defendants, 

during the pre-trial period in 1978. 

Petitioner has relied upon portions of Exhibit "A" din 

his briefing with respect to several of the issues now pending 

before the Court. 

In an effort to make the record complete, petitioner 

has filed herewith excerpts from Exhibit ATL tt include 

the relevant portions of the District Attorney's investigative 

file. 

Because these materials were a part of the record before 

the State habeas court, and are relevant to the issues raised 

by the petitioner, they should be made a part of this Court's 

record pursuant to Rule 7(b), Rules governing §2254 Cases. 

  

1/ 
"Recognizing the Court's interest in not burdening the record 

with irrelevant paper, the petitioner has offered only the 

portions of the file relevant to his claim. 

 



  

Respectfully submitted, 

ROBERT H. STROUP 

1515 Healey Building 
Atlanta, Georgia 30303 

JACK GREENBERG 

JOHN CHARLES BOGER 

10 Columbus Circle 
New York, New York 10019 

TIMOTHY RK. FORD 

600 Pioneer Building 
Seattle, Washington 98136 

ANTHONY G. AMSTERDAM 

New York University Law School 
40 Washington Square South 
New York, New York 10019 

BY: Robert Lave, 

ROBERT H. STROUP 
  

ATTORNEYS FOR PETITIONER 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that I have this day served a copy 

of the foregoing pleadings upon counsel for respondent, 

Mary Beth Westmoreland, Esg., by personally delivering a 

copy of same to her at 132 State Judicial Building, 40 

Capitol Square, S. W., Atlanta, Georgia 30334. 

This 20th day of September, 1983. 

[tect XX 
  

ROBERT H. STROUP 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN McCLESKEY, 

CIVIL ACTION FILE 

Petitioner, 
NO. C81-2434A 

VS. 

WALTER ZANT, Warden 

Georgia Diagnostic and 
Classification Center, 

Respondent. 

  

PETITIONER'S MEMORANDUM OF LAW 

SUPPLEMENTING APRIL 8, 1982 

MEMORANDUM IN SUPPORT OF ISSUANCE OF THE WRIT 
  

Introduction.   

On April 8, 1982, pursuant to instruction of the Court, 

petitioner filed a memorandum of law with respect to the merits 

of petitioner's claims for which he did not seek an evidentiary 

hearing. Petitioner comes now and files this supplement to that 

memorandum, outlining any cases of relevance which have been 

decided on those issues since the filing of the first brief in 

April, 1982. 

Claim C. The Unconstitutional Burden-Shifting 
Instruction. 
  

None of the cases decided in the interim period since peti- 

tioner last briefed this issue alter petitioner's view that the 

 



  

instruction given to the jury in this case contravened due process 

1/ rights.= The instruction reads: 

One section of our law says that the acts 
of a person of sound mind and discretion are 
presumed to be the product of the person's 
will, and a person of sound mind and discretion 
is presumed to intend the natural and probable 
consequences of his acts, but both of these 
presumptions may be rebutted. 

I charge you, however, that a person will 

not be presumed to act with criminal intention, 
but the second code section says that the trier 
of facts may find such intention upon considera- 
tion of the words, conduct, demeanor, motive and 

all other circumstances connected with the act 
for which the accused is prosecuted. 

(T.Tr., 996-97) .2%/ 

The instructions are internally inconsistent. The first 

portion states that the law presumes, though it may be rebutted, 

without specifying how. The second states that the law does not 

presume. It is simply impossible, given such a confused, contra- 

dictory statement of the law, to know which of the two contra- 

dictory instructions were followed by the jury. 

None of the cases decided in the interim deal with such a 

situation. 

However, as the District Court noted in McCorquodale v. 
  

Balkcom, 525 F. Supp. 408 at 415-16, n. 10 (N.D. Ga., 1981): 

The Court does note that the charge is 
arguably internally inconsistent. It first 

  

L/ For petitioner's related claim that trial counsel provided 
ineffective assistance when he failed to object to the instruction 
or propose any alternative, see Part F(3), petitioner's September 
21, 1983 Memorandum in Support of Issuance of the Writ. 

2/ References to the Transcript of the State Court Trial are 
referred to as {(T.7r., ) % 

 



  

instructs the jury that intent is presumed 
under certain circumstances but then goes on 
to say that criminal intention cannot be pre- 
sumed. : But ¢f. Kramer v. State, 230 Ga. 855, 

199 S.E.2d 805 (1973) (upholding similar incon- 
sistency), overruled on other grounds in Hosch 
Vv. State, 246 Ga. 417, 271 s.E.28 817 (1980), 
Any ambiguity does not aid the State, however, 
since it cannot be said with any degree of cer- 
tainty which part of the charge the jurors 
deemed controlling. 

The Court also notes that the jury was 
instructed the presumption could be rebutted, 
an element apparently not present in Sandstrom. 
Further, the Georgia Supreme Court has ruled 
that charges on rebuttable presumptions in 
criminal cases do not shift the burden of per- 
suasion. See State v. Moore, 237 Ga. 269, 

270, 227 S.E.24 241, 242 (1976); Washington v. 
State, 142 Ca. App. 651, 236 8.2.24 837 (19277). 
This is consistent with Georgia's approach that 
factual presumptions are evidence for the jury 
to consider, even where evidence opposing the 
presumption has been adduced. See generally, 
Agnor, W. H., Agnor's Georgia Evidence, 8 17-8 
(1976 ed. and 1980 Supp.). However, in the 
Court's opinion, it would be inconsistent with 
the Court of Appeals' decision in Tyler to 
characterize the instant presumption other 
than as burden-shifting presumption. In Tyler, 
the jury was charged that the presumption 
continued until it was "outweighed," otherwise 
the jury was bound to find in accordance with 
the presumption. Tyler, supra, at 1099. The 
Court found this charge shifted the burden of 
persuasion. Leaving aside legal niceties not 
apt to be appreciated by a jury, the Court sees 
the only difference between the Tyler charge 
and that presented here as one of degree. The 
Tyler charge emphatically directed the jury to 
follow the presumption unless it was outweighed 
by other evidence; the instant charge stated 
the same thing less emphatically and with no 
accompanying instruction that the presumption 
was merely evidence for the jury to c. nzider. 
Therefore, since the Tyler charge was held to 

shift the burden of persuasion, the Court con- 
cludes this one did too. 

Even if it is not viewed as altering the 
basic allocation of the burden of persuasion, 

  

  

  

  

  

  

  

  

  

   



  

a charge flatly stating that the "law 
presumes" any fact is objectionable where 
it gives a heavy-handed assist to the 
party favored by the presumption in 
meeting its burden of persuasion. The 
particular presumption involved here is 
nothing more than a statement of what 
any juror would know instinctively any- 
way. ‘Thus, it imparts no helpful legal 
principle to the jury, while lending the 
court's qualified endorsement to the 
prosecutor's case on the element of intent. 

This portion of the District Court's opinion in McCorquodale, 
  

supra, was not appealed by the State, and, therefore, the panel 

decision does not touch upon this portion of the McCorgquodale 
  

charge. McCorquodale v. Balkcom, 705 F.2d 1553 , rehearing 
  

  

en banc granted, F.28 {11th Cir., 1983). 

Further, the precise risk which the court in Sandstrom found   

intolerable is presented herein, where the jury, though told that 

the presumption was rebuttable, was never instructed as to the 

quantum of proof required by the defendant in order to rebut: 

Alternatively, the jury may have 
interpreted the instruction as a direction 
to find intent upon proof of the defendant's 
voluntary actions (and their "ordinary" con- 
sequences), unless the defendant proved the 
contrary by some quantum of proof which may 
well have been considerably greater than 
"some" evidence--thus effectively shifting 
the burden of persuasion on the element of 

intent. 

  

at 2456. 

Neither the instruction in Corn v. Zant, 708 F.24 549 
  

(11th Cir., 1983) nor the one in Lamb v. Jernigan, 683 F.248 
  

1332 (llth Cir., 1982) presents the same kind of instruction as 

presented in this case. In Lamb v. Jernigan, the challenged 
  

instruction was substantially different from herein because the 

 



  

instruction stated in permissive terms that " (intent) may be 

presumed when it would be the natural and necessary consequence 

of the particular acts." 1Id., at 1337, n. 8: . This is. fav 

different from the instruction which twice repeated in directive 

language that the law presumes. . . . 

The challenged instruction in Corn v. Zant, supra, contained 
  

substantial clarifying language not present in this case. In 

Corn, supra, at 569, the instruction indicated that the accused 
  

"may" show circumstances to the jury, "but he is not required to 

do so.” At least twice in Corn, the jury wae told that the 

accused was not required to produce evidence. Id., 568-69. 

Further, the jury was expressly instructed in Corn that "the bur- 

den is not on the Defendant to disprove intention." Id., at 569. 

None of those clarifying instructions appeared in the instructions 

in this case. 

Unlike Lamb or Corn, the language used in this case permitted 

the jury to interpret the instruction as a direction to find intent 

upon proof of petitioner's voluntary actions unless the petitioner 

proved the contrary by some quantum of proof that may well have 

been considerably greater than "some" evidence--thus effectively 

shifting the burden of persuasion on the element of intent. For 

3/ 
this reason, the instruction was contrary to Sandstrom, supra.- 

  

  

3/ The State habeas court held that Sandstrom was distinguishable 

because in Sandstrom the jurors were not told that the presumption 

was rebuttable. While it is true that the jurors in Sandstrom were 

not told the presumption was rebuttable, the same dangers exist, 

particularly in light of the failure to explain anything further as 

to what that meant. Unlike Corn, supra, where the jurors were told 

expressly that the defendant was not required to produce evidence, 

and that the defendant was not required to disprove intention, the 

jurors herein could have viewed petitioner's burden of rebuttal as 

more than a burden of production. 

  

  

  

  

-5 

 



  

Harmless Error.   

The Supreme Court decision in Connecticut v. Johnson, 
  

U.S. , 103 g3.Ct. 969 (1983), held that in some situations, a 

Sandstrom error may be harmless. As briefed in this case earlier, 
  

however, such is not the case herein. 

For these reasons, and others cited in petitioner's memoran- 

dum of April 8, 1982, the Court should grant the writ on this 

issue. 

Claim E. Improper Instructions at Sentencing Phase 
Regarding Use of Non-Statutory Aggravating 
Circumstances. 
  

In his April 8, 1982 memorandum, petitioner relied upon 

Henry v. Wainwright 661 v.28 56 (5th Cir., Unit B, 1931), as 
  

part of his authority for finding impermissible the broad instruc- 

tion given at the sentencing phase that the jury could consider all 

evidence received throughout the trial. Henry, supra, was   

vacated and remanded in light of Engle v. Isaac, U.S. ’ 
  

102 8.Ct. 1558 (1982): judgment was reinstated, 686 F.24 311 

(5th Cir., Unit B, 1982), then vacated and remanded in light of 

Barclay v. Plorida, 463 U.S. {1983), at 51 U.S.L..W. 3937 
  

(1983). 

The vacation in light of Barclay v. Florida, supra, does not, 
  

however, affect the applicability of Henry's rationale to this 

case. In light of the Supreme Court's discussion in Zant v. 

Stephens, U.S%. 7103 s.Cty 2733.(1983) , the instruction   

 



  

to the jury that it could consider all evidence received in 

evidence before it, including non-statutory aggravating evidence, 

was erroneous. 

A. The "Prior Convictions and Sentences" Both 
Tainted by an Unconstitutional Search Set 
Aside On Motion for New Trial. 

In his April 8, 1982 memorandum, petitioner argued that cer- 

tain aggravating evidence had been put before the jury in peti- 

tioner's case without statutory authorization--evidence of convic- 

tion on three armed robbery counts, and imposition of three life 

sentences, all of which had been set aside in 1971. (April 8, 

1982 memorandum, pp. 15-17). 

The evidence now before this Court suggests that those con- 

victions and life sentences were infirm because of a search and 

seizure which contravened the Fourth Amendment. (Exhibit WM-2; 

Testimony of Warren McCleskey). This is precisely the taint 

which the Supreme Court in Zant v. Stephens, supra, found imper-   

missible. Not only is this case unlike Stephens, supra, in that   

the State lacked statutory authority to put before the jury the 

evidence regarding the 1970 Douglas County convictions and sen- 

tences, whereas the prior convictions were properly before the 

jury in Stephens, moreover, in this case, there is a suggestion 
  

that the prior convictions were tainted by unconstitutional con- 

duct. The line of authority distinguished in Stephens, because   

there was no evidence of unconstitutional taint in the aggravating 

circumstances considered {I1d., at 2746: “In .contrasty in this 

case there is no suggestion that any of the aggravating circum- 

stances involved any conduct protected by the First Amendment 

 



  

or by any other provision of the Constitution."), is applicable 

herein. Stromberg v. California, 283.0.S. 359 (1931),   

Thomas v. Collins, 323 0.8. 516 (1945), and Sirset v. New York,     

394 U.S. 576 (1969) stand for the proposition that a conviction 

resting upon unconstitutional taint cannot stand. Accord, United   

States v. Tucker, 404 U.S. 443, 92 8.Ct."589.:(1972).   

The Supreme Court decision in Stephens, supra, makes even   

more clear the applicability of those cases to McCleskey's situa- 

tion. This is because the Court notes the significance of the 

aggravating circumstances in the exercise of discretion by the 

jury in deciding to vote for death: 

"The third plane separates, from all 
cases in which a penalty of death may be 
imposed, those cases in which it shall be 
imposed. There is an absolute discretion 
in the factfinder to place any given case 
below the plane and not impose death. The 
plane itself is established by the fact- 
finder. In establishing the plane, the 
factfinder considers all evidence in exten- 
uation, mitigation and aggravation of 
punishment. Code Ann. 8 27-2503 and 
8 27-2534.1. 

"A case may not pass the second phase 
into that area in which the death penalty 
is authorized unless at least one statutory 
aggravating circumstance is found. However, 
this plane is passed regardless of the 
number of statutory aggravating circumstances 
found, so long as there is at least one. 
Once beyond this plane, the case enters the 
area of the factfinder's discretion, in 
which all the facts and circumstances of 
the case determine, in terms of our meta- 
phor, whether or not the case passes the 
third plane and into the area in which 
the death penalty is imposed." 250 Ga. 97, 
99-100, 297 8.E.24 1, 3-4 (1982). 

Stephens, supra at 2740.   

 



  

Thus, given the nature of the jury's deliberation, there is 

no way of ascertaining whether the exercise of discretion to im- 

pose the sentence of death in this case was tainted by consider- 

ation of the life sentences. Certainly the prosecutor called 

them to the juror's attention at the sentencing phase (T. Tr. 1019-20). 

In light of this evidence and authority, the death sentence should 

be set aside. 

B. The Evidence of Non-Statutory Criminal Conduct. 
A 

Nor does the Supreme Court decision in Stephens, supra, 
  

authorize the jury's reliance upon evidence of aggravating 

circumstances in the form of alleged criminal conduct for which 

petitioner had not been indicted, tried or convicted. 

As briefed earlier, the Court's overly broad instruction 

to the jury at the sentencing phase authorized the jury to con- 

sider, as aggravating circumstances, evidence offered during the 

trial that tended to show that petitioner had participated in two 

robberies (one on March 28, 1978, another, April 1, 1978) for 

which petitioner had not been indicted, tried or convicted 

(T.Tr., 887). Nowhere does the Georgia statute permit a consid- 

eration of such evidence in aggravation. 

In considering a related claim in Proffitt v. Wainwright, 
  

585 F.2d 1227 (1982), the Eleventh Circuit held impermissible the 

imposition of a death sentence based upon reliance upon non-statu- 

tory aggravating circumstances: 

 



  

In Henry, the court held that admission 
of evidence of aggravating factors not listed 
in the statute coupled with an instruction 
allowing the jury to consider nonstatutory 
aggravating factors in rendering an advisory 
sentence was unconstitutional. Unlike Henry, 
appellant does not complain that the jury was 
allowed to consider evidence of nonstatutory 
aggravating circumstances or that the jury's 
advisory sentence was based on such evidence; 
rather, he challenges the trial court's sen- 
tencing decision, which its findings indicate 
was based partly on nonstatutory aggravating 
factors. In our view, the reasoning employed 
by the Henry court, with which we agree, is 
equally applicable to the advisory sentence 
decision of the jury and the ultimate sentence 
determination made by the trial judge. As the 
Henry court noted, Furman v. Georgia 408 U.S. 
238, 92 8.Ct. 2726,-33 L.84.24 346 (1972) held 
unconstitutional under the eighth amendment 
capital sentencing procedures that, by failing 
to limit and guide sentencer discretion, per- 
mitted arbitrary and selective imposition of the 
death penalty. Henry v. Wainwright 661 F.2d at 
58. In Furman's 1976 progency, in which five 
post-Furman capital sentencing statutes were 

challenged, the Court upheld those statutes 
that provided specific and detailed standards 
to guide the sentencer in deciding whether to 
impose the death penalty. See Jurek v. Texas, 
428 U.8.. 262, 96 8.Ct. 2950, 49 L.F4.24.929 
(1976) Proffitt v. Florida, 428 U.S. 242, 96 
S.Ct. 2960, 49 1..Fd.24 913 (1976)... The Court 
specifically approved the Florida statute be- 
cause its aggravating and mitigating provisions 
appeared to provide such guidance. Proffitt v. 
Plorida, 428 U.S. at 248-53, 96 S.Ct. at 2964~ 
2967. In considering appellant's "propensity 
to commit (murder)" and the danger he posed to 
society, the trial court transcended the list 
of aggravating factors set forth i the 
Florida statute and substituted his own judgment 
of what circumstances justify capital punish- 
ment for {hat of the Florida Legislature. In 
so doing, the trial judge not only committed 
error under the state law, see Brown v. State, 

381 So0.24 690, 696 (Fla. 1980); Elledge v. State, 
346 So.2d 998, 1002 (Fla. 1977); he also exceeded 

the federal constitutional limitations imposed 

  

  

  

  

  

  

  

  

  

GAS. oF Jo 

 



  

in an arbitrary and capricious manner. In 
short, we agree with the Henry court that 
because "the limitations of the statute make 
the death penalty constitutional... (i)gnor- 

  

ing those limitations ( ) implicates the 
constitution." Henry v. Wainwright, 661 F.2d 
at 60. For the reasons just stated, we con- 

clude that the trial judge's reliance on non- 
statutory aggravating circumstances renders 

appellant's sentence unconstitutional under 
the eighth and fourteenth amendments. 

Proffitt, supra at 1267-68. 
  

The Eleventh Circuit reached a similar conclusion in its 

recent decision in Goode v. Wainwright, 704 F.2d 593 (llth Cir. 
  

1983). In that case, the Eleventh Circuit set aside a death 

penalty imposed on the basis of non-statutory aggravating cir- 

cumstances. Although that case involved a finding by a state 

trial judge, as opposed to a matter of evidence presented to the 

jury for deliberations, the same constitutional concerns under=- 

lying that decision apply herein. 

Conclusion. 
  

Based upon the foregoing, the Court should grant the writ 

either setting aside petitioner's conviction or, as appropriate, 

setting aside the death penalty. 

Respectfully submitted, 

ROBERT H. STROUP 

1515 Healey bailding 
Atlanta, Georgia 30303 

JACK GREENBERG 

JOHN CHARLES BOGER 

10 Columbus Circle 

New York, New York 10019 

TIMOTHY XK. FOBD 

600 Pioneer Building 
Seattle, Vashington 89136 

Ji] - 

 



  
-12- 

ANTHONY G. AMSTERDAM 

New York University Law School 

40 Washington Square South 

New York, New York 10012 

BY: Lote tb. Seep 
ROBERT H. STROUP 
  

ATTORNEYS FOR PETITIONER 

 



  

CERTIFICATE OF SERVICE   

I hereby certify that I have this day ‘served a copy 

of the foregoing pleadings upon counsel for respondent, 

Mary Beth Westmoreland, Esq., by personally delivering a 

copy of same to her at 132 State Judicial Building, 40 

Capitol Square, 5. W., Atlanta, Georgia 30334, 

This 20th day of September, 1983. 

[Cobo Seeoacy 
  

ROBERT H. STROUP 

 



  

November 1, 1983 

Hon. Ben H. Carter, Clerk 

United States District Court 

2211 United States Courthouse 

75 Spring Street 
Atlanta, Georgia 30335 

Warren McCleskey v. Walter D. Zant 

Civil Action No. C81-2434A 
  

Dear Mr. Carter: 

Enclosed for filing are an original and 

one copy of Petitioner's Supplemental Memorandum 

of Law, together with a certificate of service. 

Thank you very much. 

Sinc i] 

hn Charles Boger 

cc: Mary Beth Westmoreland, Esq. 

Hon. J. Owen Forrester 

  

10 COLUMBUS CIRCLE {212) 586-8397 NEW YORK, N.<¥. 10019 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that I have this day served a copy 

of the within pleading upon: 

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

counsel of record for respondent, by depositing a copy of 

same in the United States Mail, first-class postage prepaid. 

This 1 0a day of December, 1983. 
  

  

ROBERT H. STROUP 

 



   
JOHN R. MYER 

1515 HEALEY BUILDING 

57 FORSYTH ST... N. W. 

ROBERT H. STROUP ATLANTA, GEORGIA 30303 

GARY FLACK 
Se 

404/522-1934 

ATTORNEYS AT LAW 

January 5, 1984 

Honorable J. Owen Forrester 

United States District Judge 
2367 United States Courthouse 

75 Spring Street, S. W. 
Atlanta, Georgia 30335 

Re: Warren McCleskey v. Walter D. Zant 

No. C81-2434A 
  

Dear Judge Forrester: 

Enclosed is a copy of the petitioner's reply brief which 

we are filing with the Clerk of Court today. 

We have received a copy of Ms. Westmoreland's letter of 

December 27, 1983 in this case, informing the Court of the 

action of the United States Court of Appeals for the Eleventh 

Circuit in Spencer v. Zant, No. 82-8408, ordering that case 

to be reheard en banc and directing the parties to respond to 

ten specific questions, most of them related to issues of 

arbitrariness or racial discrimination in the imposition of 

the death penalty in Georgia. Ms. Westmoreland, after 

apprising the Court of these developments, has invited it to 

"consider the possibility of waiting for a final decision 

from the Eleventh Circuit in this case before entering an 

order in the case of McCleskey v. Zant." 

  

  

  

Counsel for petitioner McCleskey do not believe the Court need 

await action by the Eleventh Circuit. The en banc brief for 

Spencer, a copy of which is enclosed for the Court's benefit, 

makes extensive references to the pendency of the McCleskey 

case, encloses an appendix to the Statement of Facts from 

petitioner McCleskey's post-hearing memorandum to this Court, 

and strongly urges that the Eleventh Circuit "defer any decision 

[on the broader legal issues presented] until resolution of 

McCleskey v. Zant, No. C81-2434A (N.D. Ca.) the only case in 

which the relevant facts have been developed on a full record.” 

First Supplemental Brief for Petitioner-Appellant on Rehearing 

En Banc, at 24 (llth Cir., filed December 28, 1983). As 

  

  

  

grounds for its position, Spencer argues that reaching and | 

deciding significant constitutional questions without benefit 

of a full, factual record that would provide a specific context 

 



  

Honorable J. Owen Forrester Page Two 
January 4, 1984 

and focus for its consideration of the constitutional issues 
would be a mistake, (see First Supplemental Brief at 32-35), 
and cases cited), and he urges the Eleventh Circuit to remand 
that case to the District Court on a narrower ground without 
reaching the broader issues. 

As counsel for petitioner McCleskey, we believe that Spencer's 
position is correct, and we think that the Eleventh Circuit 
may be persuaded to defer its resolution of the broader consti- 
tutional issues. We therefore believe it would be appropriate 
for the Court to proceed to judgment in this case without await- 
ing the outcome of the Spencer appeal. 

Thank you very much. 

Very truly yours, 

Robert H. Stroup 

RHS/1 
Encl. 
cc: Mary Beth Westmoreland, Esq. 

 



  

FILED IN CLERK'S OFFICE 
U.8.D.C.- Atlanta 

ORIGINAL UNITED STATES DISTRICT COURT ik 24 1984 
NORTHERN DISTRICT OF GEORGIA 

   

  

Li : 
ATLANTA DIVISION By. a 

oe Clerk 

WARREN MCCLESKEY, * 
%* 

Petitioner, * CIVIL ACTION NO. C81-2434A 
* 

v. * 
* 

WALTER D. ZANT, WARDEN, * 
* 

* Respondent. 

NOTICE OF APPEAL 
  

Notice is hereby given that the above-named Respondent, by 

counsel, hereby appeals to the United States Court of Appeals 

for the Eleventh Circuit from the order and judgment rendered, 

made and entered in the above-styled case on February 2, 1984, 

granting the Petitioner habeas corpus relief as to the 

conviction and sentence imposed by the Superior Court of Fulton 

County, Georgia. 

The Clerk will please prepare and transmit the entire 

record, including all exhibits and transcripts, omitting 

nothing from the record on appeal. 

s JAY day of February, 1984. 

Respectfully submitted, 

  

  

  

  

  

  

TIT - 
MICHAEL J. BOWERS 

Piling Fee Pd. 7% Attorney General 

-Dooket Fos Pd. Ongpy JAMES P. GOOGE, JR. 

Bond Raced. 0 NIA Executive Assistant Attorney General 

Band Form Furn, NA 

er 
ATTEST: A TRUE COPY 

: 
CE] TITIES Tas 

2rpsal Informetieh Bucs, fre A 21 75Y 

hood. % Cartier, I lark 

pid 

Deputy Clerk 
Bys 

 



  

  

MARION O. GORDON 

First Assistant Attorney General 

  

WILLIAM B. HILL, JR. 
Senior Assistant Attorney General 

Ve. Fem TS TAR 
Assistant 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 Notice of Appeal, prior to filing 

the same, by depositing a copy thereof, postage prepaid, 

in the United States Mail, properly addressed upon: 

Mr. Robert H. Stroup 
1515 Healey Building 
Atlanta, Georgia 30303 

Mr. John Charles Boger 

léth Floor 

99 Hudson Street 

New York, New York 10013 

Mr. Timothy R. Ford 
600 Pioneer Building 
Seattle, Washington 98136 

Mr. Anthony G. Amsterdam 

New York University Law School 

40 Washington Square South 
New York, New York 10012 

This 24th day of February, 1984. 

a 
Y TH WESTMOREL 

 



  

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN MCCLESKEY, | 

Petitioner, CIVIL ACTION NO. C81-2434A 

Ve i : Eo 

WALTER D. ZANT, WARDEN, 

 
%
 

4 
¥ 

% 
¥ 

¥ 
% 

¥ 

Respondent. 

- NOTICE OF APPEAL 
  

Notice is hereby given that the above-named Rospoliions, by 

counsel, hereby appeals to the priced States Court of Appeals 

for the Eleventh Circuit from the order and judgment rendered, 

made and entered in the above-styled case on February 2, 1984, 

granting the Pebiticnes habeas corpus relief as to the 

conviction and sentence imposed by the Superior Court of Fulton 

County, Georgia. 
Ia 

on 

‘The Clerk will please prepare and transmit the entire 

Record, including ala exhibits ana ‘transcripts, omthging 

nothing from the ze6ord on Hopes). 

is JU day of Fenruaty; 1984. 

Respectfully submitted, 

MICHAEL J. BOWERS 
Attorney General 

JAMES P. GOOGE, JR. 
Executive Assistant Attorney General 

 



  

| 

t 
! 
i 

H 

3 

i 

  

MARION O. GORDON 
First Assistant Attorney General 

  

WILLIAM B. HILL, JR. 
Senior Assistant 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 Notice of Appeal, prior to filing 

the same, by depositing a copy thereof, postage prepaid, Fr 

in the United States Mail, properly addressed upon: i 

Mr. Robert H. Stroup 
1515 Healey Building 
Atlanta, Georgia 30303 

Mr. John Charles Boger 

loth Floor 

99 Hudson Street 
New York, New York 10013 

Mr. Timothy K. Porad 

600 Pioneer Building 
Seattle, Washington 98136 

Mr. Anthony G. Amsterdam 
New York University Law School 
40 Washington Square South 
New York, New York 10012 

This 24th day of February, 1984. 

V
e
s
 

> 

4 

MARY TH WESTMORELAN 

 



  

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARRREN McCLESKEY, 

Petitioner, 

CIVIL ACTION FILE 

versus 
NO. C81-2434A 

WALTER D. ZANT, Super- 
intendent, Georgia 
Diagnostic and 
Classification 
Center, 

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Respondent. 
  

APPLICATION FOR CERTIFICATE OF PROBABLE CAUSE TO APPEAL 
  

Comes now the petitioner, WARREN McCLESKEY, through his 

undersigned counsel, and applies to the Court for a certificate of 

probable cause to appeal to the United States Court of Appeals for the 

Eleventh Circuit in this action. Petitioner believes that his appeal 

has merit and raises substantial condtitutioanl questions. In support 

of this application, the petitioner submits the accompanying 

memorandum of law, and proposed order. 

eto nN. Feel 
Robert H. Stroup 4 
1515 Healey Bldg. 
57 Forsyth St., N.W. 
Atlanta, Georgia 30303 

  

Jack Greenberg 
James M. Nabrit, I1I 
John Charles Boger 

99 Hudson St. 

New York, N.Y. 10013 

 



  

Anthony G. Amsterdam 
New York University Law 

School 
40 Washington Sq. South 
New York, N.Y. 10012 

Timothy K. Ford 
600 Pioneer Bldg. 
Seattle, Washington 94305 

ATTORNEYS FOR PETITIONER 

 



  

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARRREN McCLESKEY, 

Petitioner, 

CIVIL ACTION FILE 

Versus 

NO. C81-2434A 

WALTER D. ZANT, Super- 
intendent, Georgia 
Diagnostic and 
Classification 
Center, 

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t 

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a
 

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Respondent. 
  

MEMORANDUM IN SUPPORT OF PETITIONER'S APPLICATION 
FOR CERTIFICATE OF PROBABLE CAUSE 
  

  

Petitioner Warren McCleskey has applied to this Court for a 

certificate of probable cause to appeal pursuant to 28 U.S.C. Section 

2253. The respondent has filed a notice of appeal in this action, and 

petitioner, therefore, believes that a number of issues, upon which 

this Court issued a adverse rulings in its decision of February 2, 

1984, are appropriately raised before the Court of Appeals on this 

appeal. Petitioner submits that a number of those issues raise 

substantial constitutional questions which are deserving of appellate 

review. 

For this reason, the petitioner applies to this Court for an 

order pursuant to 28 U.S.C. Section 2253 for an order authorizing his 

cross-appeal. A proposed order is attached herto. 

 



  

Respectfully submitted, 

otter 3 Sonny 
  

Robert H. Stroup 
1515 Healey Bldg. 
57 Forsyth St., N.V. 
Atlanta, Georgia 30303 

Jack Greenberg 
James M. Nabrit, III 

John Charles Boger 
99 Hudson St. 
New York, N.Y. 10013 

Anthony G. Amsterdam 
New York University Law 

School 
40 Washington Sq. South 
New York, N.Y. 10012 

Timothy K. Ford 
600 Pioneer Bldg. 
Seattle, Washington 94305 

ATTORNEYS FOR PETITIONER 

CERTIFICATE OF SERVICE 
  

I hereby certify that I have served the foregoing 

Application for Certificate of Probable Cause to Appeal on respondent 

by placing a copy of the same in the United States mail, first-class 

postage prepaid, addressed to: 

Mary Beth Westmoreland, Esq. 
Assistant Attorney General 
132 State Judicial Bldg. 
Atlanta, Georgia 30334 

This 28th day of February, 1984. 

  

Robert H. Stroup 

 



  

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARRREN McCLESKEY, 

Petitioner, 

CIVIL ACTION FILE 

versus 

NO. C81-2434A 

WALTER D. ZANT, Super- 
intendent, Georgia 
Diagnostic and 
Classification 
Center, 

N
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N
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N
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.
 
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Respondent. 
  

ORDER 

I, J. OWEN FORRESTER, the District Court Judge in the above- 

captioned action, do hereby certify, pursuant to 28 U.S.C. Section 

2253, that there exists probable cause to appeal. 

This day of , 1984, 
  

  

J. OWEN FORRESTER, 
UNITED STATES DISTRICT JUDGE 

 



  

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARRREN McCLESKEY, 

Petitioner, 

CIVIL ACTION FILE 

versus 

NO. C81-2434A 

WALTER D. ZANT, Super- 
intendent, Georgia 
Diagnostic and 
Classification 
Center, 

N
r
 

N
s
 
N
N
 
N
N
 
N
N
N
 

N
N
 
N
N
 

N
S
 

Respondent. 
  

MOTION TO PROCEED IN FORMA PAUPERIS 
  

Comes now the petitioner, WARREN McCLESKEY, pursuant to 

Local Rule 15(c) of the Court of Appeals for the Eleventh Circuit, and 

moves the Court for an order certifying that the petitioner is 

entitled to appeal as a pauper, and that the appeal is taken in good 

faith. 

In support of this motion, the petitioner submits the 

accompanying memorandum, and proposed order. 

Robern). Rott 
Robert H. Stroup 

1515 Healey Bldg. 
57 Forsyth St... N.W. 
Atlanta, Georgia 30303 

  

Jack Greenberg 
James M. Nabrit, III 

John Charles Boger 
99 Hudson St. 
New York, N.Y. 10013 

 



Anthony G. Amsterdam 
New York University Law 

School 
40 Washington Sq. South 
New York, N.Y. 10012 

Timothy K. Ford 
600 Pioneer Bldg. 
Seattle, Washington 94305 

ATTORNEYS FOR PETITIONER 

 



  

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARRREN McCLESKEY, 

Petitioner, 

CIVIL ACTION FILE 

versus 
NO. C81-2434A 

WALTER D. ZANT, Super- 
intendent, Georgia 
Diagnostic and 
Classification 
Center, 

N
a
’
 

N
a
?
 

N
a
 

N
a
 

N
u
 

N
o
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N
o
 

N
o
 

a
 

N
u
 

N
o
 

N
u
 

N
F
 

Respondent. 
  

MEMORANDUM IN SUPPORT OF MOTION TO PROCEED 
IN FORMA PAUPERIS 
  

  

Petitioner, WARREN McCLESKEY, has filed a motion to proceed 

  

on appeal in forma pauperis. In support of this motion, petitioner 

shows the Court that, when this action was initiated, petitioner was 

permitted to proceed in forma pauperis. His financial condition has 
  

not changed since that time--he remains incarcerated in the Georgia 

Diagnostic & Classification Center in Jackson, Georgia, and is without 

funds to prosecute this Appeal 

On the foregoing basis, therefore, this Court should certify 

that the petitioner is entitled to appeal as a pauper and that the 

appeal is taken in good faith. 

Respectfully submitted, 

  

Robert H. Stroup 

1515 Healey Bldg. 
57 Forsyth St... N.W. 
Atlanta, Georgia 30303 

 



  

Jack Greenberg 
James M. Nabrit, III 

John Charles Boger 
99 Hudson St. 
New York, N.Y. 10013 

Anthony G. Amsterdam 
New York University Law 

School 
40 Washington Sq. South 
New York, N.Y. 10012 

Timothy K. Ford 
600 Pioneer Bldg. 
Seattle, Washington 94305 

ATTORNEYS FOR PETITIONER 

CERTIFICATE OF SERVICE   

  

I hereby certify that I have served the foregoing Motion to 

Proceed In Forma Pauperis on respondent by placing a copy of the same 

in the United States mail, first-class postage prepaid, addressed to: 

Mary Beth Westmoreland, Esq. 
Assistant Attorney General 
132 State Judicial Bldg. 
Atlanta, Georgia 30334 

This 28th day of February,:* 

Robo Hamp 
  

Robert H. Stroup 

 



  

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARRREN McCLESKEY, 

Petitioner, 
CIVIL ACTION FILE 

versus 

NO. C81-2434A 

WALTER D. ZANT, Super- 
intendent, Georgia 
Diagnostic and 
Classification 
Center, 

N
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.
 

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at
 

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Respondent. 
  

ORDER 
  

Upon consideration of the Petitioner's Motion to Proceed in 

forma pauperis, and for certificate that the appeal is taken in good   

faith, the motion and certificate are hereby granted. 

  This day of sy 1084, 

  

J. OWEN FORRESTER, 
UNITED STATES DISTRICT JUDGE 

 



  

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN McCLESKEY, 

Petitioner, 

CIVIL ACTION FILE 

NO. C81-2434A versus 

WALTER D. ZANT, Super- 
intendent, Georgia 
Diagnostic & Class- 
ification Center, 

N
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N
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it
 

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Respondent. 
  

NOTICE OF CROSS-APPEAL 
  

Notice is hereby given that WARREN McCLESKEY, Petitioner 

above-named, appeals to the Court of Appeals for the Eleventh Circuit 

from the orders of the District Court entered June 10, 1982, October 

10, 1982, April 1, 1983, June 3, 1933, June 24, 1983, February 2, 

1984, and the judgment entered on oh basis of those orders on 

February 2, 1984. 

ROBERT H. STROUP 
3 1515 Healey Bldg. 

57 Forsyth St., N.W, 
Atlanta, Georgia 30303 

  

JACK GREENBERG 
JAMES M. NABRIT, 111 
JOHN CHARLES BOGER 

99 Hudson St., 
New York, N.Y. 

 



  

ANTHONY G. AMSTERDAM 

New York University Law 
School 

40 Washington Sq. South 
New York, N.Y. 10012 

TIMOTHY K. FORD 

600 Pioneer Bldg. 
Seattle, Washington 

94305 

ATTORNEYS FOR PETITIONER 

 



  

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN MCCLESKEY, 

Petitioner, CIVIL ACTION NO. C8l-2434A 

Vv. i 

WALTER D. ZANT, WARDEN, 

% 
ob
 

% 
% 

% 
% 

¥ 
2%

 
% 

Respondent. 

MOTION TO STAY JUDGMENT OF THE COURT 
  

Comes now Walter Zant, Warden, Respondent in the 

above~-styled action, by the Attorney General for the State of 

Georgia, and makes this his notion to stay the Sonent of his 

Court entered in the above-styled action on February 2, 1984. 

As Respondent is presently pursuing the appellate process in 

this case, Resnoudent would ask this Court, out of an abundance 

of caution, to enter an order staying its Indament to 210m the 

' Respondent to complete the appellate process so that the time 

limitation for ithe retrial of the Petitioner will not begin to 

run until such time as the mandate has been returned to this 

Court. | | | 

Wherefore, Respondent respectfully requests that this Court 

enter an order staying the judgment of the Court until such 

time as the appellate process has been completed and the 

 



  

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mandate has been returned and made a part of the judgment of 

this Court. 

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

(404) 656-3349 

Respectfully submitted, 

MICHAEL J. BOWERS 
Attorney General 

JAMES P. GOOGE, JR. 
Executive Assistant Attorney General 

  

. MARION O. GORDON 
First Assistant Attorney Geugral 

  

WILLIAM B. HILL, JR. 

Senior Assistant Attorney General 

 



CERTIFICATE OF SERVICE 

  

I do hereby certify that I have this day served the within 

and foregoing Motion to Stay Judgment of the Court, prior to 

filing the same, by depositing a copy thereof, postage prepaid, 

in the United States Mail, properly addressed upon: 

Mr. Robert H. Stroup 
1515 Healey Building 
Atlanta, Georgia 30303 

Mr. John Charles Boger 
loth Floor 

99 Hudson Street 

New York, New York 10013 

Mr. Timothy K. Ford 
600 Pioneer Building 
Seattle, Washington 98136 

Mr. Anthony G. Amsterdam 
New York University Law School 

40 Washington Square South 
New York, New York 10012 

NR 

This 24th day of February, 1984. Te ¢ 
[3 

i 
24 

Fed 
* 

2 7. 
Y BETH WESTMORELAN 

 



UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN MCCLESKEY, 

Petitioner,   CIVIL ACTION NO. CSl-2434A 

Ve 

WALTER D. ZANT, WARDEN, 

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Respondent. 

"BRIEF IN SUPPORT OF MOTION TO STAY JUDGMENT OF THE COURT 
  

Comes now Walter Zant, Warden, Respondent in the 

above-styled action and submits the instant brief in support of 

his motion to stay the judgment, showing and stating the - 

following: ri 2 | Ea 

i, 

On February 1, “1984, this Court signed an order cranging 

habeas corpus relief to the Potiticiey in the Instant. action, 
3 

sald order being made ‘the Vodgherit OF the Court on February 2, 

19084. 

2. 

In said order, this Court remanded the case to the Superior 

Court of Fulton County and granted the Superior Court OF Fulton 

County one hundred and twenty days in which to conduct a new 

trial. 

 



  

3. 

On this date, Respondent is filing a notice of appeal to 

the Eleventh Circuit Court of Appeals to 2ppen the decision of 

this Court. 

4. 2 i : 

‘The one hundred and twenty aay time period will Spire 

prior to the completion of the 2prellate process. 
5. : 

. For the Respondent to be able to effectively pursue and 

complete litigation through the appellate process, it is 

necessary that this Court's judgment of February 2, 1984, be 

stayed until completion of the aforementioned litigation. 

6. 
Accordingly, Respondent Yon satS a Stay of this Court's 

judgment of Peprnary 2 1984. Though the notice of appeal 

filed on behalf of the Respondent Warden may act as a stay of 

the afarementicied judgment, this requested stay is sought in 

order to fully protect the tights of all partes. | | 

Wherefore, Respondent requests, that this court issue an 

order staying its judgment of February 2, 1984, entered in the 

above-styled case, until such tine as the Respondent can 

complete litigation through the appellate process. 

Respectfully submitted, 

MICHAEL J. BOWERS 
Attorney General 

 



  

Executive Assistant Attorney General 

  

- MARION O. GORDON : 
~ First Assistant Attorney General 

  

WILLIAM B. HILL, Jr. 

MARY BETH WESTMORELAND 
132 state Judicial Building 
40 Capitol Square, S. W. 
Atlanta, Georgia 30334 
(404) 656-3349 

. Senior Assistant Attorney General 

       

MARY BETH WESTMORELAND 

Assistant Attorney General 

 



  

CERTIFICATE OF SERVICE. 

I do hereby certify that I ‘have this day sexved the within 

and foregoing Brief, prior to filing the . Bans, by depositing a 

Copy thereof, postage prepaid, in the United states Mail, 

properly addressed bday 

Mr. Robert H. Stroup 
1515 Healey Building 
Atlanta, Georgia 30303 

Mr. John Charles Boger 
loth Floor 
99 Hudson Street 

New York, New York 10013 

Mr. Timothy K. Ford 
600 Pioneer Building 
Seattle, Washington 98136 

Mr. Anthony G. Amsterdam : 
New York University Law School 
40 Washington Square South 
New York, New York 10012 

This 24th day of February, 1984. 

p
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September 30, 1983 

Hon. J. Owen Forrester, III 

United States District Judge 
2367 United States Courthouse 

Atlanta, Georgia 30303 

Re: Warren McCleskey v. Walter D. Zant 
No. C81-2434A g 
  

Dear Judge Forrester: 

I am enclosing a proposed pre-trial 

order in the above-captioned case which sets 

forth my understanding of the statistical issues 

on which I understand you solicit further expert 

testimony. My effort at framing these issues, 

hampered by an uncertain footing in the area 

of statistics, may well be unsatisfactory or 

inexact. If so, the experts would undoubtedly 

welcome a more accurate reframing of the precise 

areas of interest. 

Thank you and best regards. 

Sincerely, 

Wi 
      

  

   ohn Charles Boger 

cc: Mary Beth Westmoreland, Esq. 

enc. 

JCB: agf 

  

10 cOlL UMBUS CIRCLE {212) 586-8397 NEW YORK, N.Y. 100189 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

  

WARREN McCLESKEY, 

Petitioner, 

-against- CIVIL ACTION 

NO. C81-2434A 

WALTER D. ZANT, Superintendent, 

Georgia Diagnostic & Classification 

Center, 

Respondent. 

  

PRE-HEARING ORDER 
  

The Court has directed a further, limited hearing in 

the above-captioned case, to be held October 17, 1983. 

IT IS HEREBY ORDERED, that statistical experts for 

petitioner and respondent should be prepared to address the 

following questions propounded by the Court: 

1. What are the mathematical, statistical and 

practical effects of "controlling for variables" or including 

those additional variables in a regression equation, especially 

where the outcome of interest is dichotomous (e.g., life sentence 

or death sentence)? 

2. What does the "u" refer to in the following multiple 

regression formula -- y = a + b, X + D..%. + a we and what is the 

role of the "u" concept in multivariate Znafysis? 

3. What are the mathematical, statistical and practical 

reasons for employment of a "dummy variable" in a regression formua, 

and how does it affect the measurement of the influence of that 

variable? 

4. Do the coefficients reported for the variables in a 

multiple regression analysis reflect an actual difference in the 

cutcome of interest (e.g., do the race of victim coefficients rep- 

resent an actual difference in the death-sentencing rate) or 

 



  

rather. a disparity? 

The evidentiary hearing to be held October 17, 1983 

does not reopen to either party the opportunity to present sub- 

stantive evidence on the merits of petitioner's constitutional 

claims. It will be limited to testimony on the mathematical 

and statistical issues outlined in this order. 

IT:1IS SO ORDERED, this day of October, 1953, 

  

J. OWEN FORRESTER, 111 
UNITED STATES DISTRICT COURT 

 



  

September 30, 1983 

Hon. Ben H. Carter, Clerk 

United States District Court 

2211 United States Courthouse 

75 Spring Street 
Atlanta, Georgia 30335 

Warren McCleskey v. Walter D. Zant 
Civil Action No. C81-2434A 
  

Dear Mr. Carter: 

On September 26, 1983, counsel for peti- 

tioner transmitted to this Court for filing a 

memorandum of law on his claims of arbitrariness 

and discrimination in the above-captioned case. 

Subsequently, counsel have discovered a number of 

typographical errors and other mistakes, not involving 

the substance of the brief, which we have sought 

to correct so that the Court may have a clean version 

of the brief for its use in determination of petition- 

er's claims. I am enclosing a corrected copy of 

this memorandum to be filed on petitioner's behalf, 

together with a certificate of service on counsel 

for respondent. Thank you very much. 

      

  

3incerely, 

“John Charles Boger 

Attorney for Petitioner 

cc: Hon. J. Owen Forrester, III 
Mary Beth Westmoreland, Esq. 

  

COLUMBUS CIRCLE {212) S5S386.83957 NEW YORK, N.Y." "10019 

 



  

September 30, 1983 

Hon. Ben H. Carter, Clerk 

United States District Court 

2211 United States Courthouse 

75 Spring Street 
Atlanta, Georgia 30335 

Warren McCleskey v. Walter D. Zant 
Civil Action No. C81-2434A 
  

Dear Mr. Carter: 

On September 26, 1983, counsel for peti- 

tioner transmitted to this Court for filing a 

memorandum of law on his claims of arbitrariness 

and discrimination in the above-captioned case. 

Subsequently, counsel have discovered a number of 

typographical errors and other mistakes, not involving 

the substance of the brief, which we have sought 

to correct so that the Court may have a clean version 

of the brief for its use in determination of petition- 

er's claims. I am enclosing a corrected copy of 

this memorandum to be filed on petitioner's behalf, 

together with a certificate of service on counsel 

for respondent. Thank you very much. 

incerely, 

  

   

    

ohn Charles Bog®r 
Attorney for Petitioner 

cc: Hon. J. Owen Forrester, III 
Mary Beth Westmoreland, Esq. 
  

0 COLUMBUS . CIRCLE {212} 586.8397 NEW YORK, NOS Y. 110019 

 



  

September 26,1983 

Hon. Ben H. Carter, Clerk 

United States District Court 

2211 United States Courthouse 

75 Spring Street 
Atlanta, Georgia 30335 

Warren McCleskey v. Walter D. Zant 
Civil Action No. C81-2434A 
  

Dear Mr. Carter: 

Enclosed for filing are an original and 

one copy of Petitioner's Memorandum of Law in 

Support of His Claims of Arbitrariness and Racial 

Discrimination, together with a certificate of 

service. 

Thank you very much. 

oC 

(J Ada Clad frm. 

'¥: Charles Boger 
Attorney for Petitioner 

cc: Mary Beth Westmoreland, Esq. 
Hon. J. Owen Forrester 

  

10 COLUMBUS ClRC LE {2'12) 538:8397 NEW WORK, N.Y. 800189