McCleskey v. Zant Suggestion for Rehearing in Banc on Behalf of Petitioner-Appellee

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Jack Boger Oral History

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

Nos. 88-8085 
89-8085

WARREN McCLESKEY,
Petitioner-Appellee,

-against-
WALTER D. ZANT, Superintendent, 
Georgia Diagnostic & Classification 
Center,

Respondent-Appellant.

On Appeal From The United States District Court 
For The Northern District Of Georgia 

Atlanta Division

SUGGESTION FOR REHEARING IN BANC ON BEHALF OF 
PETITIONER-APPELLEE WARREN McCLESKEY

ROBERT H. STROUP 
141 Walton Street 
Atlanta, Georgia 30303 
(404) 522-8500

JULIUS L. CHAMBERS 
JOHN CHARLES BOGER 

99 Hudson Street 
New York, New York 10013 
(212) 219-1900

ATTORNEYS FOR PETITIONER-APPELLEE 
WARREN McCLESKEY



CERTIFICATE OF INTERESTED PARTIES

• The parties interested in the outcome of this case are the
petitioner-appellant, Warren McCleskey; the trial attorney, John 
Turner; the present and prior appellate attorneys for Mr. 
McCleskey: Robert H. Stroup, Jack Greenberg, James M. Nabrit,
III, John Charles Boger, Timothy K. Ford, Anthony G. Amsterdam, 
Deval L. Patrick, and Vivian Berger; and the attorneys for 
respondent-appellee: Michael J. Bowers, H. Perry Michael,
William B. Hill, Jr., Susan V. Boleyn and Mary Beth Westmoreland. 
The trial judge was the Hon. Sam McKenzie. The District Judge 
was the Hon. J. Owen Forrester, III. The victim of the crime 
was Frank Schlatt, Jr.

1



CERTIFICATE OF COUNSEL PURSUANT TO RULE 35-6fc)
I express a belief, based on a reasoned and studied 

professional judgment, that the panel decision is contrary to the 
following decisions of the Supreme Court of the United States and 
the precedents of this circuit, and that consideration by the 
full court is necessary to secure and maintain uniformity of 
decisions in this court:

Amadeo v. Zant. _U.S.__, 100 L.Ed.2d 249 (1988)
Chapman v. California. 386 U.S. 18 (1967)
Johnson v. Zerbst. 304 U.S. 458 (1938)
Price v. Johnston. 334 U.S. 266 (1948)
Sanders v. United States, 373 U.S. 1 (1963)
Satterwhite v. United States. __.U.S.__, 100

L.Ed.2d 284 (1988)
Smith v. Yeager. 393 U.S. 122 (1968) (per curiam)
* * * ' *  * * * * * *

Moore v. Zant. 885 F.2d 1497 (11th Cir. 1989) (en
banc)

Paprskar v. Estelle. 612 F.2d 1003 (5th Cir. 1980) 
Potts v. Zant, 638 F.2d 727 (5th Cir. Unit B 1981)

- " V 9 )

John Charles Boger i 
Attorney of Record for Petitioner- 

Appellant Warren McCleskey

li



TABLE OF CONTENTS

STATEMENT OF THE ISSUES MERITING IN BANC REVIEW ..........  1
STATEMENT OF PRIOR PROCEEDINGS, AND OF THE FACTS.......... 2
A. Introduction —  Prior Proceedings....................  1
B. The Facts Undergirding McCleskey's Massiah Claim . . .  3
C. The Issue Of Abuse Of The W r i t .......................  5

1. Counsel's Investigation Of A Possible Massiah
Violation ....................................... 6

2. The Discovery Of The State's Coverup............ 9
3. The Findings Of The District Court On Abuse . . .  11

D. The Issue Of Harmless Error...........................  12
E. The Holding Of The Panel.............................  15

1. Abuse Of The W r i t ..............................  15
2. Harmless Error................................... 16

ARGUMENT
I. The Panel's Decision —  Creating A New Rule On 

"Deliberate Abandonment" Under Which Habeas 
Attorneys Will Be Held Strictly Liable For Their 
Failure To Uncover Evidence On An Initial Habeas 
Application, Even If The State Deliberately Hid 
That Evidence —  Is Inconsistent With Every Prior
Decision Of This Court..........................  18

II. The Panel Violated Amadeo v. Zant —  Ignoring Both
The Trial Record And The District Court's Fact­
findings Concerning The Weight Of The State's 
Circumstantial Evidence —  When It Concluded That 
The State's Massiah Violation Was "Harmless Beyond A 
Reasonable Doubt." The Panel Also Inappropriately 
Relied Upon This Court's Harmless Error Analysis Of
A Giglio Violation In Its Assessment Of The 
Significance Of A Massiah Violation .............. 27
A. The Amadeo v. Zant Violation...............  27
B. The Panel's Erroneous Reliance On A Giglio

Analysis..................................  31
CONCLUSION.................................................  3 3



TABLE OF AUTHORITIES

Cases
Amadeo v. Zant, __U.S.__, 100 L.Ed.2d 249 (1988) . . 1,27,28,30
Anderson v. City of Bessemer City, 470 U.S. 564 (1984). . . 27
Antone v. Dugger, 465 U.S. 200 (1984) (en banc)...............25
Booker v. Wainwright, 764 F.2d 1371 (11th Cir. 1985) . . . .  23
Christopher v. State of Florida, 824 F.2d 836 (11th Cir.

1987)............................................... 28,31
Fay v. Noia, 372 U.S. 391 (1963)..........................  12
Felder v. McCotter, 765 F.2d 1245 (5th Cir. 1985)..........  31
Freeman v. State of Georgia, 599 F.2d 65 ((5th Cir. 1979). . 20
Giglio v. United States, 405 U.S. 150 (1972)...........  3,27,31
Green v. Zant, 715 F.2d 551 (11th Cir. 1983)................  14
Guice v. Fortenberry, 661 F.2d 496 (5th Cir. 1981) (en banc) 24
Haley v. Estelle, 632 F.2d 1273 (5th Cir. 1980)............  24
Harris v. Oliver, 645 F.2d 327 (5th Cir. Unit B 1 9 8 1 ) . . . .  14
Johnson v. Zerbst, 304 U.S. 458 (1938)..................  19,24
Jurek v. Estelle, 623 F.2d 929 (5th Cir. 1980)(en banc) . . .  31
Magwood v. Smith, 791 F.2d 1438 (11th Cir. 1986)............  14
Massiah v. United States, 377 U.S. 201 (1964) ..........  passim
McCleskey v. State, 245 Ga. 108, 263 S.E.2d 146 (1980) . . .' . 6
Milton v. Wainwright, 407 U.S. 371 (1972)...................  31
Moore v. Zant (II), 885 F.2d 1497 (11th Cir. 1989) (en banc) 24
Moore v. Zant (I), 824 F.2d 847 (11th Cir. 1987) (en banc)

(vacated)................................................ 24
Napper v. Georgia Television Co., 257 Ga. 156, 356 S.E.2d 640

(1987)   9

IV



Paprskar v. Estelle, 612 F.2d 1003 (5th Cir. 1980)..........  24
Potts v. Zant, 638 F.2d 727 (5th Cir. 1981).......... 12,18,24
Price v. Johnston, 334 U.S. 266 (1948).................  18,23

« Sanders v. United States, 373 U.S. 1 (1963)............  19,23
Satterwhite v. Texas, __U.S.__, 100 L.Ed.2d 284 (1988). . . 33
Smith v. Yeager, 393 U.S. 122 (1968) (per curiam) . . . .  18,19
Townsend v. Sain, 372 U.S. 291 (1963)..................  14,24
United States v. Hernandez, 574 F.2d 1362 (5th Cir. 1978) . 31
Witt v. Wainwright, 755 F.2d 1396 (11th Cir. 1981)........  25
Wong Doo v. United States, 265 U.S. 239 (1924)..........  19,23
Woodard v. Hutchins, 464 U.S. 377 (1984) (per curiam) . . .  25

Statutes
O.C.G.A. § 50-18-72(a) ..................................... 9

ft

V



IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

Nos. 88-8085 
89-8085

WARREN McCLESKEY,
Petitioner-Appellee,

-against-
WALTER D. ZANT, Superintendent, 
Georgia Diagnostic & Classification 
Center,

Respondent-Appellant.

On Appeal From The United States District Court 
For The Northern District Of Georgia 

Atlanta Division

SUGGESTION FOR REHEARING IN BANC ON BEHALF OF 
PETITIONER-APPELLEE WARREN McCLESKEY

Petitioner-appellee Warren McCleskey, by his undersigned 
counsel, requests the full Court of Appeals to rehear his appeal 
in banc, pursuant to Rule 3 5 of the Federal Rules of Appellate 
Procedure. The judgment of the panel was rendered on November 
22, 1989.

STATEMENT OF THE ISSUES MERITING IN BANC REVIEW
1. What is the proper legal standard for determining 

whether a habeas applicant who asserts a constitutional claim in 
a second habeas petition has "deliberately abandoned" the claim 
on an earlier application?

2. Does Amadeo v. Zant. U.S. , 100 L.Ed.2d 249 (1988)
require an appellate court to accept the District Court's



subsidiary factual findings in determining whether a 
constitutional violation is harmless beyond a reasonable doubt?

STATEMENT OF PRIOR PROCEEDINGS. AND OF THE FACTS
A. Introduction —  Prior Proceedings
This appeal centers on a violation of Massiah v. United 

States. 377 U.S. 201 (1964) —  the seminal Supreme Court decision 
condemning surreptitious State questioning of a criminal 
defendant already in custody or under indictment. Petitioner 
filed a second habeas petition, raising a Massiah claim, among 
others, on July 7, 1987. The District Court, after three days of 
evidentiary hearings, found (i) that State officials had clearly 
violated the rule in Massiah in this case, (ii) that the fruits 
of the violation -- an ostensible "confession" made by Mr. 
McCleskey to the State's jailhouse informant —  had been a 
critical component of the State's case at trial, and (iii) that 
McCleskey was consequently entitled to habeas relief.

After subsequent proceedings which are set forth in full in 
the Brief for Respondent-Appellant, dated May 10, 1989, at 2-8, a 
panel of this Court, on November 22, 1989, has reversed the 
judgment of the District Court. The panel did not reach the 
merits of the claim. Instead, it held that Mr. McCleskey's 
failure to assert the Massiah claim in his initial federal 
petition constituted a "deliberate abandonment," thereby 
rendering his second federal petition an abuse of the writ of 
habeas corpus; and (i i) that the State's use of the 
unconstitutional evidence was harmless beyond a reasonable

2



doubt.
In its holding, the panel fashioned a new rule for the 

"deliberate abandonment" branch of abuse law. This new rule 
implicitly jettisons traditional legal criteria —  whether the 
defendant's abandonment was voluntary, knowing and intelligent—  
and instead imposes a standard of strict liability on habeas 
counsel. If a habeas applicant drops a claim at any point, he 
will conclusively be deemed to have abandoned the claim 
"deliberately", even if evidence later comes to light that was 
deliberately hidden by the State —  and even if counsel's failure 
to uncover that hidden evidence was neither "inexcusable neglect" 
nor "ineffective assistance of counsel."

In addressing the harmless error issue, the panel also 
ignored the trial record and the District Court's factfindings 
about the weakness of the State's circumstantial evidence; 
instead, relying upon an inaccurate summary of that very evidence 
and upon this Court's prior resolution of the harmless error 
issue on McCleskey's very different Giglio v. United States 
claim, it concluded that the Massiah violation was harmless 
beyond a reasonable doubt.

Since both of these holdings contravene well-established 
Supreme Court and circuit precedent, Mr. McCleskey suggests that 
the full Court should rehear his appeal in banc.

B. The Facts Underqirdinq McCleskey's Massiah Claim
At the heart of this appeal lies evidence of a successful 

scheme by State officials to procure an illegal confession.
3



According to the express findings of the District Court, one or 
more officers of the Atlanta, Georgia, Bureau of Police Services 
entered into a conspiracy with a known jailhouse informant, Offie 
Evans, to secure a confession from Mr. McCleskey.1

To accomplish their mission, these rogue officers obtained 
the cooperation of a Fulton County, Georgia jailor, who agreed to 
move Offie Evans, the informant, from another portion of the 
Fulton County Jail to the cell directly adjacent to Warren 
McCleskey's. The officer[s] explicitly instructed the informant 
to question McCleskey about the crime. They gave him crucial 
facts about the case not known to the public.

A remarkable, 21-page written narrative —  hidden by the 
State from 1978 and accidentally revealed only during McCleskey's 
1987 habeas proceedings —  demonstrates that Evans did just as 
State officials requested: he initiated a three-day series of 
conversations with McCleskey about the crime; he repeatedly lied 
to McCleskey about his own identity, about his knowledge of the 
crime, about his own prior relationship with McCleskey's co­
defendants, and about details of the police investigation. Evans 
skillfully allayed McCleskey's suspicions and drew him out on the 
details of the crime, especially the identity of the triggerman.

His mission accomplished, informant Evans then secretly

1 Their motive was to substantiate capital murder charges 
against McCleskey, one of the four co-defendants who had been 
captured by police after an armed robbery. All four defendants 
had clearly been participants in the armed robbery; the police, 
however, possessed no clear evidence to establish which 
defendant had fatally shot policeman Frank Schlatt as he arrived 
at the robbery scene.

4



notified his State agents, who summoned an Assistant District 
Attorney and other officers for a jailhouse interview. To perfect 
their scheme, the guilty officer[s] conspired to cover up their 
misconduct not only from defense counsel, but from other, 
unsuspecting State officials working on the case as well.

Informant Evans freely cooperated in this coverup, lying 
over and over again —  first during Mr. McCleskey's trial in 
1978 —  where he told the jury that McCleskey had confessed to 
the police killing and bragged that he would have killed a dozen 
officers if necessary —  then again during his state habeas 
corpus proceedings in 1981, and finally, even after the 
conspiracy had been uncovered, during his federal deposition in 
1988. As the web of deception began to unravel in 1987,
moreover, one or more of the Atlanta police officers committed 
perjury during the federal habeas proceedings in a vain attempt 
to protect both their coverup and the underlying Massiah 
violation.

The factual findings of the District Court fully support 
each of these basic points.2

C. The Issue of Abuse Of The Writ

2 After extensive findings on the sequence of events and 
the credibility of all the principal witnesses, (see R3 22- 15- 
31), the District Court summarized its findings as follows: 
"Unfortunately, one or more of those investigating Officer 
Schlatt's murder stepped out of line. Determined to avenge his 
death the investigator(s) violated clearly-established case law 
. . . . In so doing, the investigator(s) ignored the rule of law 
that Officer Schlatt gave his life in protecting and thereby 
tainted the prosecution of his killer." (R3- 31).

5



1. Counsel's Investigation Of A Possible Massiah 
Violation

Prior to Mr. McCleskey's trial, his defense attorney filed a 
written motion seeking all written or oral statements made by 
McCleskey to anyone, and all exculpatory evidence. After an in 
camera inspection, the trial court permitted the State to 
withhold both (i) the 21-page statement made by informant Evans 
and (ii) even the fact that the State possessed such a
statement. (Rl-1, Exh. M; R4-73-81; R6-118).

During mid-trial, defense counsel again moved for any 
documents in the State's possession that reflected statements
made by McCleskey. (Rl-1, Exh. 0, 830-832; see Fed. Exh. 6). The 
motion was denied, and the trial court inexplicably suggested 
that the State possessed no undisclosed, written statements. 
(Judge: "I don't know that we are talking about any written
statements.") (Id.)(emphasis added).

Defense counsel nonetheless preserved this issue on appeal. 
The Georgia Supreme Court denied relief, holding that "[t]he 
evidence [that the defense counsel] sought to inspect was 
introduced to the jury in its entirety." McCleskey v. State, 245 
Ga. 108, 263 S.E.2d 146, 150 (1980) (emphasis added) . Defense
counsel was never shown the 21-page Evans statement; he testified 
without contradiction that he "was never given any indication 
that such a statement existed." (St Hab. Tr. 77).

At the outset of state habeas proceedings in 1981—
although they were aware that trial counsel's efforts to uncover
any written statement had been fruitless, and although they

6



lacked anything more than an unsubstantiated suspicion of a
Massiah violation —  counsel for Mr. McCleskey nonetheless 
included a Massiah claim, as a precaution, among the twenty-two 
constitutional challenges asserted in the McCleskey's state 
petition. Attorney Robert Stroup followed up his allegation with 
an extensive investigation of the claim. He first met with 
members of the Atlanta police force (whom he had represented in 
unrelated Title VII cases) for inside advice on the best way to 
uncover any available evidence of an illegal, jailhouse 
informant relationship. Armed with their advice, he interviewed 
a number of key jailors at the Fulton County Jail. None of these 
jail, officials knew anything about possible police misconduct in 
McCleskey's case. Attorney Stroup nonetheless persevered, 
tracing down a former jail official, Bobby Edwards, who had been 
in charge of all inmate cell placements at the time Mr. McCleskey 
had been incarcerated. By 1981, Mr. Edwards had retired and was 
living over 60 miles from Atlanta; Stroup managed to find and 
interview him, but Edwards had no knowledge suggesting evidence 
to support the claim of illegal misconduct.3

Stroup then sought, and received, a mass of documents from a

3 At the time, the Fulton County Jail was staffed by 
"several shifts of jailors (R6 76); the total cell population was 
between 900-1700; each shift was staffed by literally scores of 
officers. (R6 73). Mr. Stroup did not personally interview each 
of the several hundred jailors, some of them retired by 1981, who 
had been employed by the Fulton County Jail in 1978. He confined 
his investigations on this claim-- one of 22 separate 
constitutional issues which he, a pro bono volunteer attorney was 
then pursuing —  to the employees identified as most likely to 
have relevant information. None of those officers knew of any 
evidence suggesting that a Massiah violation might have occurred.

7



Georgia Assistant Attorney General, accompanied by a letter 
assuring Stroup that he was receiving "a complete copy of the 
prosecutor's file resulting from the criminal prosecution of 
Warren McCleskey." (Fed. Exh. 7) (emphasis added). Informant 
Evans' crucial 21-page narrative statement was not included among 
the documents transmitted.4 At no point, either then or later, 
did lawyers for the District Attorney or for the Georgia 
Attorney General's office ever turn over Evans' 21-page 
narrative.

To complete his investigation, Mr. Stroup questioned Offie 
Evans under oath and deposed the Assistant District Attorney who 
had prosecuted McCleskey. The prosecutor gave no hint that the 
State's relationship with its key witness, Offie Evans might have 
been improper:

Q. [Mr. Stroup] : Okay. Were you aware at the time of the
trial of any understandings between Evans and any Atlanta 
police department detectives regarding favorable 
recommendation [sic] to be made on his federal escape charge 
if he would cooperate with this matter?
A. [Assistant District Attorney]: No, sir.
Q. Let me ask the question another way to make sure we 
are clear. Are you today aware of any understanding 
between any Atlanta police department detectives and 
Offie Evans?
A. No, sir, I'm not aware of any.

(Fed. Exh. 3, 9-10).

4 Mr. Stroup has subsequently testified that, in reliance 
on these written representations of the State of Georgia, it 
simply did not occur to him that this representation was false, 
that a written statement existed, and that he was being misled. 
(Rl- 7-10). The District Court credited Mr. Stroup's testimony 
on this point. (Rl- 118-119; R3—  22-25).

8



On cross-examination, the Assistant District Attorney 
broadened his testimony:

Q. Do you have any knowledge that Mr. Evans was 
working as an informant for the Atlanta Police or any 
police authorities when he was placed in the Fulton 
County Jail and when he overheard these conversations 
of Mr. McCleskey?
A. I don't know of any instance that Offie Evans had 
worked for the Atlanta Police Department as an 
informant prior to his overhearing conversations at the 
Fulton County Jail.

(Fed. Exh. 3, 14-15).
Mr. Stroup subseguently testified that, following

McCleskey's state habeas proceedings, he had concluded that the
Massiah claim could not be substantiated:

... I looked at what we had been able to develop in 
support of the claim factually in the state habeas 
proceeding and made the judgment that we didn't have 
the facts to support the claim and, therefore, did not 
bring it into federal court.

(R4- 44).

2. The Discovery Of The State's Coverup 
Offie Evans's 21-page statement first came to light in June 

of 1987 —  six years after Mr. McCleskey's initial federal habeas 
petition was filed —  following a fortuitous development in an 
unrelated Georgia case.5 Mr. McCleskey immediately made that

5 In that case, Napper v. Georgia Television Co.. 257 Ga. 
156, 356 S.E.2d 640 (1987), the Supreme Court of Georgia appeared 
to hold, for the first time, that police investigative files 
would be deemed within the compass of the Georgia Open Records 
Act, O.C.G.A. § 50-18-72(a). Mr. Stroup immediately cited that
then-recent decision, still pending before the Georgia Supreme 
Court on rehearing, in support of a request directly to the 
Atlanta Bureau of Police Services, seeking the original police 
files in McCleskey's case. (Rl-7-6) . Because Napper was still

9



document the centerpiece of a Massiah claim which he included in 
his second federal petition filed in July of 1987. (See Rl-9 & 
Exh. E).

During federal hearing on that petition, McCleskey's 
attorneys began to uncover the events surrounding Offie Evans' 
delivery of this 21-page statement. In response to an inquiry 
about where the statement had been given, one of the police 
officers, Detective Welcome Harris, mentioned "a room that was 
occupied by a captain, and I don't think —  he's no longer 
employed out there, I think his name is Worthy." (R4 195). 
Asked whether Worthy had been present during the interview, 
Detective Harris replied, "No, sir, I'm .sure he wasn't, you 
know." (R4 196).

Ulysses Worthy in fact proved to have been a retired jailor; 
and although Detective Harris testified that Worthy had not been 
present during the interview, McCleskey's attorneys nonetheless 
subpoenaed him to appear during the waning hours of McCleskey's 
1987 federal hearing —  one of many subpoenas issued to those 
whose names were first mentioned during the course of the two-day 
federal hearings. (R4-21).

Mr. Worthy's testimony came as a bombshell to McCleskey's 
attorneys, the Attorney General, and everyone else present at the 
hearing. Worthy told the Court that he remembered being present

pending on rehearing, attorneys for the Atlanta Bureau were 
reluctant to disclose the entire police file, but on June 10, 
1987, they agreed to provide Mr. Stroup with one document—  
which proved to be the 21-page statement made by Offie Evans. 
(Rl-7-7).

10



during a meeting at the Fulton County Jail in 1978, between 
Atlanta Police Detective Sidney Dorsey and Offie Evans. (R5-148) 
Worthy recalled that he overheard Detective Dorsey (or perhaps 
some other "officer on the case") request Evans "to engage in 
conversations" with Warren McCleskey, who was being held in 
isolation awaiting trial following his indictment for murder and 
armed robbery, and to draw him out. (R5 148-189).

Jailor Worthy remembered that the police officers had then 
asked him to move Evans to a cell directly adjacent to Warren 
McCleskey's cell:

Q. [By the State]: Mr. Worthy, let me see if I
understand this. Are you saying that someone 
asked you to specifically place Offie Evans 
in a specific location in the Fulton County 
Jail so he could overhear conversations with 
Warren McCleskey?

A. Yes, ma'am.
(R5-153). As Mr. Worthy later explained to the District Court:

Judge, may I clarify that? . . .  in this 
particular case this particular person was 
already incarcerated. They just asked that 
he be moved near where the other gentleman 
was.

(R5-155).
3. The Findings Of The District Court On Abuse 

After receiving documentary evidence and hearing live 
testimony from attorney Robert Stroup, the Assistant District 
Attorney, and the Atlanta detectives, the District Court made 
comprehensive findings on the issue of abuse of the writ. The 
Court first considered the State's defense of deliberate

11



abandonment:
[Petitioner cannot be said to have intentionally- 
abandoned this claim. Although petitioner did raise a 
Massiah claim in his first state petition, that claim 
was dropped because it was obvious that it could not 
succeed given the then-known facts. . . Abandoning a
claim whose supporting facts only later become evident 
is not a abandonment that "for strategic, tactical, or 
any other reasons . . . can fairly be described as the
deliberate by-passing of state procedures." Fay v ♦
Noia. 372 U. S. 391, 439 (1963), quoted in Potts v.
Zant. 638 F.2d 727, 743 (5th Cir. 1981). . . This is 
not a case where petitioner has reserved his proof or 
deliberately withheld his claim for a second petition. 
Sanders v. United States. 373 U.S. 1, 18 (1963).

(R4 118-119). Turning to the issue of "inexcusable neglect," the
Court observed that

there is . . no inexcusable neglect unless "reasonably
competent counsel" would have discovered the evidence prior 
to the first federal petition. This court [has] concluded .

that counsel's failure to discover Evans' written 
statement was not inexcusable neglect. [R4-118-119]. The 
same is true of counsel's failure to discover Worthy's 
testimony. . . [CJounsel did conduct an investigation of a
possible Massiah claim prior to the first federal petition, 
including interviewing "two or three jailers." . . . The
state has made no showing of any reason that petitioner or 
his counsel should have known to interview Worthy 
specifically with regard to the Massiah claim.

(R3-22- 24-25).

D. The Issue Of Harmless Error
There were absolutely no eyewitnesses to the shooting of 

Officer Schlatt. Although Mr. McCleskey initially entered the 
furniture store from the front, and his three co-defendants from 
the rear, the four robbers herded all the employees to several 
offices in the back half of the store and forced them to lie 
face-down on the floor while they carried out the robbery. These 
plans were well underway when Officer Frank Schlatt entered the

12



front door. No employee was able to testify which of the four 
co-defendants fired the shots that killed Officer Schlatt.

The State offered two witnesses, however, who told the jury 
that Warren McCleskey had confessed to the shooting: one was Ben 
Wright, McCleskey's co-defendant. Wright had been the leading 
force in the robbery; he had directed the other participants 
(e.g. . Tr. T. 651, 657) ; and he was a highly likely suspect in 
the shooting. The jury heard another witness, however, an 
apparently neutral third party who told the jury of McCleskey's 
ostensible jailhouse confession: Offie Evans.

Apart from Wright and Evans, the State relied largely upon 
circumstantial evidence to place the murder weapon in McCleskey's 
hand. That evidence, however, was gravely flawed: both co­
defendant Ben Wright and Wright's girlfriend testified that 
McCleskey had been carrying a pearl-handled, silver .38 pistol 
linked to the homicide. (Tr. T. 649; 727). Yet on cross- 
examination, Wright admitted that he, not McCleskey, had 
personally carried the .38 pistol for weeks at a time prior to 
the crime. (Tr. T. 682). Moreover, while Wright's girlfriend 
initially testified that McCleskey had taken the .38 pistol on 
the morning of the crime, she admitted under cross-examination 
that she had informed police, on the day Wright was arrested, 
that it was Wright, not McCleskey, who had been carrying the .38 
pistol the day of the furniture store robbery. (Tr. T. 607; 631-

13



634) . 6
The District Court, after reviewing the trial record, 

concluded that Offie Evans' "testimony about petitioner's 
incriminating statements was critical to the state's case, " and 
that the admission of Evans' testimony could not be deemed 
harmless:

There were no witnesses to the shooting and the murder 
weapon was never found. The bulk of the state's case 
against the petitioner was three pronged: (1) evidence 
that petitioner carried a particular gun on the day of 
the robbery that most likely fired the fatal bullets;
(2) testimony by co-defendant Ben Wright that 
petitioner pulled the trigger; and (3) Evans' testimony 
about petitioner's incriminating statements. As 
petitioner points out, the evidence on petitioner's 
possession of the gun in question was conflicting and 
the testimony of Ben Wright was obviously impeachable.
. . .[T]he chronological placement of Evans testimony 
[as rebuttal evidence] does not dilute its impact—  
"merely" impeaching the statement "I didn't do it" with 
the testimony "He told me he did do it" is the 
functional equivalent of case in chief evidence of 
guilt. . . . Because the court cannot say, beyond a 
reasonable doubt, that the jury would have convicted

6 The panel, both in its initial description of the crime 
(slip op. 2) and its analysis of the harmless error issue (slip 
op. 24) . overlooked or disregarded these record facts, drawn 
directly from the trial transcript. It drew its view of the 
facts, instead, from a summary of the crime contained in the 1980 
opinion of the Supreme Court of Georgia on Mr. McCleskey's 
direct appeal. That opinion had been written seven years prior 
to the District Court's factfindings, at a time when no Massiah 
challenge was before that or any court. Its summary statement of 
facts did not, of course, preclude the more careful findings made 
years later by the District Court on McCleskey's Massiah claim, 
after a full federal hearing, at a time when the significance of 
the State's circumstantial case, weighed against its other 
evidence, had come plainly into view. See, e. g . . Townsend v . 
Sain. 372 U.S. 291, 316 (1963); Magwood v. Smith. 791 F.2d 1438, 
1448-1450 (11th Cir. 1986); Green v. Zant, 715 F.2d 551,557-558 
(11th Cir. 1983); cf. Harris v. Oliver. 645 F.2d 327 (5th Cir. 
Unit B 1981) (State findings need not be accepted when not 
anchored in proper legal standard).

14



petitioner without Evans' testimony about petitioner's 
incriminating statements, petitioner's conviction for 
the murder of Officer Schlatt must be reversed pending 
a new trial.

(R3-22- 29-31).

E. The Holding of the Panel 
1. Abuse Of The Writ

The panel held that Mr. McCleskey had "deliberately 
abandoned" his Massiah claim after the initial state habeas 
proceedings. (Slip op. 14) The panel did not disturb the
District Court's findings that McCleskey's attorneys (i) had not 
been guilty of "inexcusable neglect," and (ii) had not known, in 
1981, either of Evans' 21-page statement or of the existence of 
Ulysses Worthy, fid.).

Instead, the panel held that the District Court had 
"misconstrue[d ] the meaning of deliberate abandonment." 
Observing that Mr. McCleskey's attorneys had been aware of the 
legal issue, (slip op. 15) , and that Evans had been in the 
adjacent cell, the panel concluded that counsels' decision not to 
go forward with the Massiah claim into federal court "constitutes 
prima facie evidence of deliberate abandonment." (Slip op. 16).

Developing its new theory of "deliberate abandonment," the 
panel faulted the investigative efforts by McCleskey's attorneys 
as "somewhat lacking," specifying that McCleskey's counsel had 
never interviewed the detectives who were ultimately implicated 
in the coverup or another jail official who testified during 
McCleskey's trial.

15



The panel overlooked the District Court's finding that this 
failure was not inexcusable under all the circumstances, most 
particularly, its finding that, "[g]iven that all three [State 
officers] denied any knowledge of a request to move Evans next to 
McCleskey, it is difficult to see how conducting such interviews 
would have allowed petitioner to assert this claim any earlier." 
(R3-22- 25). After reciting these omissions, the panel held that 
"[abandoning a claim after initial investigatory efforts prove 
unsuccessful cannot insulate a petitioner from abuse of the writ" 
(slip op. 18):

McCleskey has not presented any reason why counsel would 
have been unable to contact Ulysses Worthy back in 1981 when 
the first federal habeas petition was filed. Nor has he 
shown that a more extensive effort at that time to track 
down persons with information as to what transpired in the 
county jail during the summer of 1978 would not have turned 
up Worthy. A petitioner and his counsel may not circumvent 
the abuse of the writ doctrine by failing to follow through 
with an investigation and then later claiming that the claim 
could not have succeeded earlier on the facts as then known. 
It will only be possible to avoid piecemeal litigation if 
counsel is required to make a thorough investigation of the 
facts at the time of petitioner's first petition for habeas 
corpus.

(Slip op. 19) .
2. The Panel1s Holding On Harmless Error 

As indicated above, the panel drew its view of the State's 
case neither from the trial transcript nor from the District 
Court's factfindings, but instead from a brief (and inaccurate) 
summary of the crime contained in a 1980 opinion by the Supreme 
Court of Georgia on McCleskey's direct appeal. In consequence, 
the panel fully credited a view that (i) McCleskey had entered 
the furniture store from the front, carrying a .38 caliber Rossi

16



pistol; (ii) "[t]he officer was killed by the man who entered and
secured the front of the store while the other three men were in
the back," (slip op. 24; id. at 2); and (iii) that "McCleskey had
a .38 caliber Rossi" pistol. (Id. 2). The panel also noted that
the Rossi pistol had a white handle, and that eyewitnesses (who
did not identify McCleskey) testified that the robber who exited
from the front door after the shooting had a white-handled
pistol. Finally, the panel also noted that "Ben Wright, also
testified that McCleskey was the triggerman." (Id. 23).

Relying on this "substantial amount of circumstantial
evidence" (id. 24), the panel concluded that the

evidence other than Evans' testimony presented in the case 
presents such clear indication of McCleskey's guilt, [that] 
this court finds beyond a reasonable doubt that the jury 
would have convicted and sentenced McCleskey as it did even 
without Evans' testimony.

(Slip op. 26).

17



ARGUMENT
I

THE PANEL'S DECISION —  CREATING A NEW RULE ON 
"DELIBERATE ABANDONMENT" UNDER WHICH HABEAS 
ATTORNEYS WILL BE HELD STRICTLY LIABLE FOR THEIR 
FAILURE TO UNCOVER EVIDENCE ON AN INITIAL HABEAS 
APPLICATION, EVEN IF THE STATE DELIBERATELY HID THAT 
EVIDENCE —  IS INCONSISTENT WITH EVERY PRIOR DECISION 
OF THIS COURT

The panel's decision completely rewrites the law of abuse of 
the writ. It silently overrules half a century of Supreme Court 
teaching and two decades of precedent in this Circuit. Both the 
will of Congress -- expressed in 28 U.S.C. § 2244 (b) and Rule
9(b) —  and the Supreme Court's recent decision in Amadeo v. Zant 
must be overlooked or disregarded to justify the panel's 
decision.

For the past fifty years, at least, the Supreme Court has 
insisted that a defendant cannot * be held to have deliberately 
waived a constitutional right absent proof of "an intentional 
relinquishment or abandonment of a known right or privilege," 
Johnson v. Zerbst. 304 U.S. 458 (1938), cited in Potts v. Zant,
638 F.2d 727, 741 (5th Cir. Unit B 1981).

This general rule, which requires not only an intentional, 
but a knowing and intelligent abandonment, has been repeatedly 
applied in the habeas context. The Court's decisions in Price v. 
Johnston. 334 U.S. 266 (1948), Sanders v. United States, 373 U.S. 
1, (1963), and Smith v. Yeager. 393 U.S. 122 (1968) (per curiam),
for example, each turned upon whether a habeas applicants 
possessed actual knowledge of the facts necessary to support his

18



constitutional claims.7
In Sanders v. United States, the Supreme Court cited Wong 

Poo v. United States 265 U.S. 239 (1924) as the paradigm case of 
deliberate abandonment. Wong Doo had been afforded a "full
opportunity to offer proof" at his initial federal hearing but 
deliberately "reserve[d] the proof for use in attempting to 
support a later petition." 373 U.S. at 10. His only purpose in 
withholding this evidence had been "to vex, harass, or delay." 
373 U.S. at 18.

7 The claim in Price. for example, was not asserted until 
the applicant's fourth federal petition. Although the trial 
record had given the applicant a strong basis from the outset to 
suspect State misconduct, the Supreme Court overturned the lower 
courts' dismissal of his claim, distinguishing other cases in 
which a petitioner had full access to "proof [of the claim] which 
was accessible at all times." 334 U.S. at 289. The Court refused 
to "assume that petitioner [Price] has acquired no new or 
additional information since the time of the trial or the first 
habeas corpus proceeding that might indicate fraudulent conduct 
on the part of the prosecuting attorneys." 334 U.S. at 290.

In Smith v. Yeager. initial habeas counsel had orally 
declined an invitation to conduct a federal hearing on a 
confession claim. After the applicant had been denied relief 
based upon the state court record, he later sought a full 
federal hearing in a second federal petition. The Supreme Court 
held that the applicant had not deliberately waived his 
opportunity for a federal hearing:

Whatever the standards for waiver may be in other 
circumstances, the essential question here is whether the 
petitioner "deliberately withheld the newly asserted ground" 
in the prior proceeding, or "otherwise abused the writ."
. . . Whatever counsel's reasons for this [earlier waiver of 
a federal hearing] . . ., we cannot now examine the state of 
his mind, or presume that he intentionally relinquished a 
known right or privilege, Johnson v. Zerbst. 304 U.S. 458, 
464, when the right or privilege was of doubtful existence 
at the time of the supposed waiver.

Smith v. Yeager. 393 U.S. 122, 125-126 (1968) (per curiam).
19



The record here, by contrast, discloses without any 
contradiction that attorneys for Mr. McCleskey conducted a 
wideranging investigation which did not turn up evidence of 
informant Evans' 21-page statement or of Ulysses Worthy's 
existence. Indeed, State attorneys deliberately refused to give 
McCleskey's attorneys access to Offie Evans' 21-page statement, 
despite repeated oral and written requests for all such 
statements. This 21-page narrative, whether or not conclusive 
evidence of a Massiah violation, plainly was a "smoking gun" (or 
as the panel acknowledged, a "catalyst") (slip op. 18): it 
pointed directly to the basic outlines of the conspiracy—  
demonstrating that Evans had been provided with information known 
only to the police, not to the public; that he engaged in a 
three-day effort to pry McCleskey's story from him; that he had 
lied about his own identity, his relation to McCleskey's .co­
defendant, and his own knowledge of the crime; and that he had 
bragged to police about his efforts.

The highly unusual and suggestive quality of this statement 
raised damning questions about the conduct of the police: that 
is precisely why State officials hid all evidence of its 
existence for nine years.® Defense counsel could not reasonably

8 The Atlanta police detectives hid the underlying Massiah 
violation from the outset, not only from defense attorneys, but 
from other state officials as well. This circuit has long 
followed the Supreme Court's lead in Giglio v. United States, 
supra. 405 U.S. at 154, holding the State as a whole to be 
responsible, in criminal cases, for the misconduct of any of its 
representatives. See, e.a., Freeman v. State of Georgia, 599 
F. 2d 65, 69-70 (5th Cir. 1979). In addition, whatever their 
precise knowledge of the Massiah violation, the prosecutor and

20



have been expected to investigate the statement —  to inquire 
when, where, and how it had been given to the police —  until 
they knew it existed. Defense counsel did make those inquiries, 
promptly, once the statement had been turned over to them. 
Ulysses Worthy proved to be connected with McCleskev's case by a 
single thread: Detective Harris's offhand statement that the 21- 
page statement had been taken in Ulysses Worthy's office at the 
jail.

The panel's holding that counsel "has not presented any 
reason why [they] would have been unable to contact Ulysses 
Worthy back in 1981," or that "a more extensive effort at that 
time. . . would not have turned up Worthy" is a triumph of 
judicial hindsight. With literally hundreds of jailors on duty 
at the Fulton County Jail in 1978, with no leads connecting 
Worthy to the case, the panel's opinion, in effect, holds 
McCleskey's habeas counsel strictly liable for their failure to 
interview every employee of each public institution —  the 
police department, the prosecutor's office, the Fulton County 
jail —  connected with his case.9

lawyers for the Attorney General's office willfully failed to 
turn over Evans' damning 21-page statement at any time.

9 The panel specifically faulted counsel for failing to 
interview the police detectives and another jailor, Carter 
Hamilton. Yet, as the District Court expressly found, and as the 
record of the federal habeas hearing indisputably reveals, 
"[g]iven that all three [State officers] denied any knowledge of 
a request to move Evans next to McCleskey [when directly asked 
under oath in a federal district court], it is difficult to see 
how conducting such interviews would have allowed petitioner to 
assert this claim any earlier." (R3-22- 25).

21



If the conduct of McCleskey's counsel in pursuing this claim 
had been less diligent, that is,

o jLf trial counsel had never formally moved to obtain all 
written statements from the State, 

o if trial counsel had never renewed his request for 
such statements,

o if habeas counsel, despite their suspicions, had never 
raised a Massiah claim,

o if habeas counsel, having raised the claim, had never 
investigated it at all, 

o if during their investigation, they had
failed to talk with Fulton County jailors, 

o if having learned about a retired jail official who had 
been responsible for cell placement in 197 8, they had 
failed to track that jailor down, 

o if counsel had failed to ask the prosecutor and the 
informant, under oath, whether there had been an 
improper relationship,

o if any of their investigations —  of the jailors, the 
chief jailor, the prosecutor, the informant —  had 
confirmed their suspicions or pointed to additional 
leads,

o if having uncovered the 21-page statement, counsel had 
failed to question police officers about how it had 
been taken from Evans,

o if having learned that it had been taken in jailor

22



Worthy's office, they had failed to subpoena Worthy on 
the off chance that he might have relevant knowledge, 

then. a series of such failures might constitute a legal basis, 
short of strict liability, for faulting counsel's performance.

Yet here, on these facts, there is none. Counsel's 
investigation was "reasonably competent," and by no means 
"inexcusably neglectful." Ulysses Worthy was truly a needle in a 
haystack; he was the only witness, in all of the world, capable 
of laying bare the carefully hidden secret of informant Offie 
Evans and his police accomplices. Yet Worthy's connection to the 
case rested on a single conversation he had overheard in his 
office, a conversation known to no one but Worthy and the co­
conspirators themselves.

The panel's holding thus re-fashions the "deliberate 
abandonment" rule into a new test: if a legal claim has been
voluntarily abandoned, a federal court will impute to the 
applicant all knowledge that might have been uncovered by further 
investigation -- whether or not available leads to that evidence 
were remote or nonexistent, whether or not the State has 
deliberately, maliciously, even criminally withheld the evidence 
from defense counsel.

This strict liability standard, whatever its wisdom, is 
profoundly at odds, not only with Price. Sanders. Wong Poo, and 
other Supreme Court precedent, but with the prior decisions of 
this circuit as well. See, e.g.. Booker v. Wainwright. 764 F.2d 
1371, 1376 (11th Cir. 1985)( "The petitioner may avoid dismissal

23



if he proves by a preponderance of the evidence that he was 
ignorant of facts necessary to support the new ground when he 
filed his prior habeas corpus petition"); Potts v. Zant, 638 F.2d 
727, 746 & n. 23 (5th Cir. Unit B 1981) (noting that even a 
knowing and intentional waiver does not necessarily render a 
subsequent petition an abuse absent "a showing that the prisoner 
secured some tactical advantage by not pressing his claim 
earlier"); Halev v. Estelle. 632 F.2d 1273, 1275 (5th Cir. 1980) 
("it is clear that a petitioner cannot be charged with having 
abused the writ of habeas corpus if, at the time of his earlier 
petition, he was unaware of the facts on which his earlier claims 
are based"); Paprskar v. Estelle. 612 F.2d 1003, 1006 (5th Cir. 
1980) (approving Johnson v. Zerbst as the proper measure of 
deliberate bypass); see also Moore v. Zant (II), 885 F.2d 1497, 
1506 (11th Cir. 1989) (plurality opinion) (key inquiry in 
assessing whether to entertain new legal claims on a second 
application is whether "reasonably competent counsel, at the time 
of filing of the first petition, should have anticipated" the 
claims) (emphasis added); Moore v. Zant (I), 824 F.2d 847, 851 
(11th Cir. 1987) (en banc) (vacated) (habeas applicant chargeable 
with "counsel's actual awareness of the factual and legal bases 
'of the claim at the time of the first petition and with the 
knowledge that would have been possessed by reasonably competent 
counsel") (emphasis added); Guice v. Fortenberry, 661 F.2d 496, 
507 (5th Cir. 1981)(en banc) (the failure of defense attorneys to 
develop crucial facts in support of their jury challenge did not

24



constitute "deliberate abandonment" for Townsend____ v. Sain
purposes).

The panel suggests that its holding finds support in two 
prior Supreme Court decisions, Woodard v. Hutchins. 464 U.S. 377 
(1984) (per curiam) and Antone v. Dugger, 465 U.S. 200 (1984)
(per curiam) , and one prior decision of this Circuit, Witt v. 
Wainwriaht. 755 F.2d 1396 (11th Cir. 1981). None of these cases
are analogous to McCleskey's case.10 At most, they stand for the 
proposition that a claim may be deemed "deliberately abandoned,"

10 In Hutchins, habeas counsel, attempted to raise claims 
in a second federal petition concerning Hutchins' sanity, both at 
the time of the crime and subsequent to his conviction. The 
Court noted that counsel had neither claimed that Hutchins' 
insanity was a recent development nor offered any explanation of 
any kind as to why it had been impossible to assert these claim 
earlier. 464 U.S. at 379-380 and n.3.

The Antone case involved habeas claims based upon facts 
which had "twice previously . . . been considered . . . by the 
Florida Supreme Court." 465 U.St. at 204. Habeas counsel 
explained that these claims had not been included in his initial 
federal petition simply because he had not been appointed until 
execution was imminent and "could not have been expected to 
present these claims in his first federal habeas petition." 465 
U.S. at 206 n.4. Counsel did not assert that the relevant facts 
had been unknown to him at the time; moreover, Justice Stevens' 
concurrence noted that the "new" claims were "essentially the 
same as claims that had previously been presented" and 
adjudicated against Antone on an earlier federal application. 
465 U.S. at 207.

In Witt v. Wainwright, a habeas applicant alleged in a 
second petition that his trial counsel had been ineffective for 
failing to develop psychological evidence in mitigation. The 
Court noted that "the record is clear that it was within 
petitioner's power to elicit such evidence" at the time of his 
initial application. 755 F.2d at 1397. The applicant also 
attempted to assert a death-qualification claim which had been 
raised and rejected by other panels in this circuit long prior to 
Witt's second application, 755 F.2d at 1398, based upon 
scientific evidence that had been available for nearly a decade.

25



even if a habeas applicant and his counsel have no actual 
knowledge of the underlying facts, so long as the evidence in 
question reasonably could have been obtained from the habeas 
applicants themselves (e .g., their own prior history or mental 
status) or from facts readily available to their counsel (e.g., 
public information, well-publicized social scientific documents). 
These cases teach that counsel will be deemed to have 
deliberately abandoned such claims, if they know the facts on 
which the claims are predicated, or if, with the facts readily at 
hand, they simply offer no plausible explanation for failing to 
have brought them forward.

The critical facts in this case,, however, were indisputably 
not known to McCleskey or his attorneys, nor were those facts 
"available" or "readily at hand." Counsel did make a 
reasonable, good faith investigation in an attempt to discover a 
Massiah violation, but that investigation proved unavailing, 
thanks in no small measure to the State's deliberate effort to 
hide the facts. The District Court expressly found that this 
investigation was not "inexcusably neglectful," and even in 
retrospect, there simply were no leads that, if followed further, 
would have led inexorably to Ulysses Worthy.

Under these circumstances, counsels' decision not to include 
Mr. McCleskey's unsubstantiated Massiah claim in his 1981 
federal habeas petition cannot be held to be a "knowing" or 
"intelligent" waiver under any prior federal decision we have 
been able to locate. The panel can so describe it only:

26



(i) by imputing to counsel, as "actual knowledge," all 
information possessed by every potential witness connected, 
in the slightest way, with the case; or
(ii) by charging counsel with an obligation to investigate 
every such witness.
The panel's new rule should not become binding precedent in 

this Circuit without full in banc review.

II
THE PANEL VIOLATED AMADEO V. ZANT —  IGNORING BOTH THE 
TRIAL RECORD AND THE DISTRICT COURT'S FACTFINDINGS 
CONCERNING THE WEIGHT OF THE STATE'S CIRCUMSTANTIAL 
EVIDENCE —  WHEN IT CONCLUDED THAT THE STATE'S MASSIAH 
VIOLATION WAS "HARMLESS BEYOND A REASONABLE DOUBT."
THE PANEL ALSO INAPPROPRIATELY RELIED UPON THIS COURT'S 
HARMLESS ERROR ANALYSIS OF A GIGLIO VIOLATION IN ITS 
ASSESSMENT OF THE SIGNIFICANCE OF A MASSIAH VIOLATION

The panel made two critical errors in its harmless error
analysis. First, it borrowed a view of the facts from a 1980
account of the crime that was not faithful to the trial
transcript or to the District Court's subsequent factfindings.
Second, it rested its conclusions on the harmlessness of the
Massiah violation, in large part, upon this Court's 1985
disposition of Mr. McCleskey's very different constitutional
claim predicated on Giqlio v. United States.

A. The Amadeo v. Zant Violaton
The first error directly violates Amadeo v. Zant, __U.S.__,

100 L.Ed.2d 249 (1988), and the Supreme Court's earlier cases 
stressing the need for federal appellate courts to honor the 
factfindings of lower federal courts. See, e.g., Anderson v .

27



City of Bessemer City. 470 U.S. 564 (1984). Here, the error 
makes a profound difference, since in carrying out its analysis 
of whether the Massiah violation was harmless, the panel 
naturally looked to the strength of the other, untainted evidence 
on guilt and/or penalty issues, asking in effect whether "the 
evidence that remains after the unlawful confession is excluded 
not only is sufficient to support the verdict, but overwhelmingly 
establishes the defendant's guilt beyond a reasonable doubt." 
Christopher v. State of Florida, 824 F.2d 836, 846 (11th Cir. 
1987).

Offie Evans' tainted testimony was one of three basic legs 
of the State's case on the identity of the triggerman. 
Discounting Evans' testimony, the panel looked to the State's 
second leg, the testimony of Ben Wright, McCleskey's co­
defendant. That testimony, however, was inherently suspect and 
"obviously impeachable," as the District Court found, since 
Wright himself possessed (i) means, (ii) opportunity, and (iii) 
motive for the shooting that were all fully equal to those of 
McCleskey himself .

The panel relied most heavily, therefore, upon the State's 
third leg, its circumstantial case, which the panel described as 
"substantial." (Slip op. 24). It is precisely here where the 
panel's departure from Amadeo seriously undermined its judgment. 
Reciting its version of the circumstantial evidence, the panel 
reported that (i) the "officer was killed by the man who entered 
and secured the front of the store," and (ii) that death came "by

28



a bullet from a .38 caliber Rossi handgun." (Id.). Accepting, as 
apparently undisputed fact, that McCleskey entered from the front 
door and that he carried the Rossi .38 (slip op. 2, 24), the 
panel easily completed the syllogism: McCleskey was the 
murderer.

If the State's circumstantial case were just that 
straightforward, the harmlessness of Offie Evans' testimony might 
be clear. But the record simply will not support the panel's 
account. For example, although several witnesses did identify 
McCleskey as the robber who entered from the front of the store 
at the robbery's outset, absolutely nothing in the trial 
transcript confirms the panel's conclusion that the robber who 
came in the front door later fired the shots that killed Officer 
Schlatt. At the time Officer Schlatt arrived, all of the store 
employees had been long since herded into the office area at the 
rear of the store, where they were lying, face-down, on the 
floor, unable to distinguish who was guarding them. Some 
testified that they heard footsteps moving forward, then, shots. 
Not a single one could say which of the four robbers had 
confronted Officer Schlatt.

The evidence concerning who carried the .38 Rossi was just 
as problematic. The State's witnesses attempted to place that 
weapon in McCleskey's hands, showing that he had stolen it in an 
earlier robbery. Yet that testimony boomeranged on cross- 
examination when, one by one, the State's witnesses were forced 
to admit that Ben Wright had regularly carried that stolen

29



pistol as well. Even more damaging to the State's theory, 
Wright's girlfriend was forced to confess that, upon her arrest, 
she had initially told the police that it was Ben Wright, not 
McCleskev, who had been carrying the .38 caliber silver Rossi on 
the very day of the crime.

Based upon this contradictory testimony, the District Court 
understandably found that "the evidence on petitioner's 
possession of the gun in question was conflicting." (R3-22- 31.) 
That finding was entitled to deference by the panel under Amadeo. 
Instead, the panel looked to other testimony, ignored the 
District Court's findings, and in so doing, erred.

As we have demonstrated, the State's slender case for the 
harmlessness of Offie Evans' testimony rests almost exclusively 
on its proposition that the circumstantial case was overwhelming. 
Deprived of the principal premises of its syllogism, however—  
that the robber who entered from the front killed Officer Schlatt 
with a .38 Rossi, and that McCleskey was the robber who had 
carried the Rossi —  the State's entire circumstantial case loses 
its force.

Without an airtight circumstantial case, left only with Ben 
Wright's shaky, self-serving account of the crime, the State's 
now-two-legged stool must collapse: it becomes impossible to 
conclude, beyond a reasonable doubt, that Offie Evans' account of 
McCleskey's jailhouse confession "did not contribute to the

30



jury's verdict. ..11

B. The Panel's Erroneous Reliance on a Gialio Analysis 
As alternative support for its reasoning, the panel looked 

to this Court's harmless error analysis conducted on Mr. 
McCleskey's prior federal appeal, where a majority held that the 
State's failure to reveal to the jury a promise made to Of fie 
Evans by a police detective, in exchange for Evans' testimony—  
a possible violation of Gialio v. United States. 405 U.S. 150 
(1972) —  had been harmless error. The panel faulted the 
District Court for "ignoring the Eleventh Circuit's previous 
discussion" of this Gialio issue. (Slip op. 22).

The State has relied upon a superficial resemblance between 
the two issues, since both point to illegal State conduct in

11 The District Court's conclusion on this point is fully 
consistent with the prior holdings in this and other circuits 
concerning the damaging weight of a confession and the rare 
instances in which use of an illegal confession can be held 
harmless:

Because confessions carry "extreme probative weight," 
fUnited Statesl v. Hernandez. 574 F.2d [1362], 1372 [5th 
Cir. 1978], the admission of an unlawfully obtained 
confession rarely is "harmless error." In fact, we have 
ruled the admission of an unlawful confession harmless only 
in limited instances, such as where there was in evidence at 
least one other lawful confession by the defendant.

Christopher v. State of Florida, supra, 824 F.2d at 846. 
See.e.g.. Jurek v. Estelle. 623 F.2d 929 (5th Cir. 1980) (en banc) 
(State's use of a second, coerced confession requires reversal 
even though initial confession was voluntary and untainted); 
Felder v. McCotter. 765 F.2d 1245, 1250 (5th Cir. 1985) ("The 
thesis that two confessions do no more harm than one is 
ingenious, but one we have never adopted") ' cj:. Milton v. 
Wainwriaht. 407 U.S. 371, 373 (1972) (illegal confession harmless 
where record also contained "no less than three full confessions 
that were made by petitioner" to the police).

31



procuring the testimony of a witness. That resemblance is 
compounded because the same tainted witness, Offie Evans, is 
implicated on both appeals. Yet the practical consequences are 
fundamentally different; they far overshadows these superficial 
similarities. The error complained of under Giglio was simply 
the State's failure to reveal the "promise" made to witness 
Evans; Evans' full testimony was otherwise properly before the 
jury. Massiah, by contrast, teaches that not a word of Evans's 
testimony should have been submitted to the jury. That jury 
should have learned nothing at all about McCleskey's ostensible 
jailhouse confession.

The Court reasoned in 1986 that the additional bit of 
impeachment information withheld by the State was harmless, given 
the wealth of other impeaching evidence the jury had heard about 
Of fie Evans. The Court's conclusion on that limited point, 
however, provides an inadequate foundation for the panel's 
conclusion in 1989 that the total exclusion of Evans' account of 
McCleskey's jailhouse confession would similarly have had no 
effect on the jury's deliberations. The panel acknowledged that 
the Court's narrow Giglio holding was not binding authority on 
the Massiah point, but it nonetheless relied on dicta in the 1986 
opinion —  which the panel described as a "separate ground" for 
the earlier court's (slip op. 22) —  which suggested that "Evans' 
testimony could not '" in any reasonable likelihood have affected 
the judgment of the jury."1" (Slip op. 23). With due respect, 
that sweeping remark could not have been the controlling ground

32



of the prior decision (since Evans' testimony was not in fact
subject to exclusion under Giglio). Moreover, even if it were 
properly deemed the holding of the prior Court, it would 
participate in the same error which impaired the judgment of the 
panel: it totally disregards the contrary findings of the
District Court on the strength of the State's circumstantial 
case.

A long line of Supreme Court cases well-known to this Court
—  most recently, Satterwhite v. Texas. __U.S.__, 100 L.Ed.2d 284
(1988) —  counsel great care in assuming the "harmlessness" of
serious constitutional error, especially in a capital case. The 
panel's opinion is inconsistent with those cases, and deserves in 
banc review.

CONCLUSION
For all of the reasons set forth herein, rehearing in banc 

should be granted.

Dated: December 12, 1989 Respectfully submitted,
ROBERT H. STROUP 

141 Walton Street 
Atlanta, Georgia 30303 
(404) 522-8500

JULIUS L. CHAMBERS
JOHN CHARLES BOGER 

99 Hudson Street 
New York, New York 10013 
(212) 219-1900

ATTORNEYS FOR PETITIONER- 
APPHLLEE WARREN McCLESKEY

K  f  j  1) A

33



CERTIFICATE OF SERVICE
I hereby certify that I am one of the attorneys for 

petitioner-appellee Warren McCleskey on this appeal, and that I 
am admitted to the bar of this Court. I served the annexed 
Suggestion of Petitioner-Appellee for Rehearing In Banc on 
respondent-appellant Walter D. Zant by placing copies in the 
United States mail, first class mail, postage prepaid, addressed 
as follows:

All parties required to be served have been served. Done

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

John Charles Boger