McCleskey v. Zant Brief for Petitioner-Appellee

    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

BRIEF FOR 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-appellee, Warren McCleskey; the trial attorney, John 
Turner; the present attorneys for Mr. McCleskey, Robert H. 
Stroup, Julius L. Chambers, and John Charles Boger; respondent- 
appellant Walter D. Zant; the attorneys for respondent-appellant 
Zant, William B. Hill, Jr., Susan V. Boleyn, and Mary Beth 
Westmoreland; the trial judge, Hon. Sam McKenzie; and the 
District Court judge, Hon. J. Owen Forrester. The victim was
Frank Schlatt.



STATEMENT REGARDING ORAL ARGUMENT

Petitioner-appellee McCleskey concurs in the request of 
respondent-appellant Walter Zant for oral argument in this case, 
though not in Warden Zant's reasons for seeking argument. Since 
Zant's appeal is, in essence, a multi-faceted attack on the 
factfindings of the District Court, and since the relevant 
factual record is quite large, including the trial transcript, 
the state habeas corpus transcript, the federal habeas corpus 
transcript, several depositions, and numerous exhibits, the Court 
may well be assisted by the opportunity to question counsel 
orally.

ii



TABLE OF CONTENTS

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW..............  1
STATEMENT OF THE CASE.....................................  2
(i) Course Of Prior Proceedings...........................  2
(ii) Statement Of Facts...................................  2

I. The State's Allegations Of Abuse Of The Writ.... 3
A. The Defense Effort To Uncover Written Statements 4

1. The Efforts Of Trial Counsel.............  4
2. The Efforts Of Habeas Counsel............  7
3. The Discovery Of Evans's Written Statement 9

B. The Defense Effort To Locate Massiah Witnesses 10
C. The Findings Of The District Court..........  13

II. Mr. McCleskey's Claim Under Massiah v. United States 13
A. Background Evidence On the Massiah Claim.....  14

1. Of fie Evans's Testimony At Trial..........  14
2. Evans's Testimony During State Habeas

Proceedings..............................  16
B. The Twenty-One Page Statement................. 17
C. The July 8-9, 1987 Federal Hearing............ 19

1. The Testimony Of Prosecutor Russell Parker 19
2. The Testimony Of Police Officers Harris

And Jowers...............................  20
3. The Testimony Of Detective Sidney Dorsey.. 20
4. The Testimony Of Ulysses Worthy....  22
5. Of fie Evans..............................  25

D. The August 10, 1987 Federal Hearing..........  25
1. The Testimony Of Ulysses Worthy....  25
2. The Testimony Of Deputy Jailor Hamilton... 28

E. The Findings Of The District Court...........  29
III. The Harmless Error Issue.........................  3 0

Page

iii



Page
IV. Warden Zant's Rule 60(b) Motion..................  33

A. The Issue Of Warden Zant's "Due Diligence"... 33
B. The Materiality Of Offie Evans's Testimony... 35
C. The Findings Of The District Court..........  3 6

(iii) Statement Of The Standard Of Review................. 37
SUMMARY OF ARGUMENT.......................................  38
ARGUMENT..................................................  42

I. MR. McCLESKEY DID NOT ABUSE THE WRIT OF HABEAS 
CORPUS BY FAILING TO UNCOVER THE MISCONDUCT OF 
ATLANTA POLICE OFFICERS WHICH CAME TO LIGHT
ONLY IN 1987....................................  42
A. Warden Zant's Claim Of Deliberate Abandonment... 44
B. Warden Zant's Suggestions Of Inexcusable Neglect. 48

II. THE DISTRICT COURT PROPERLY FOUND THAT ATLANTA 
POLICE MISCONDUCT VIOLATED WARREN McCLESKEY'S SIXTH 
AMENDMENT RIGHTS UNDER MASSIAH V. UNITED STATES.. 53
A. The District Court's Factual Findings Were Not

Clearly Erroneous Under Rule 52............  53
B. The District Court Applied The Proper Legal

Standards To The Facts......................  60
III. THE DISTRICT COURT CORRECTLY FOUND THAT THE 

MASSIAH VIOLATION PROVEN IN MR. McCLESKEY' CASE
WAS NOT HARMLESS BEYOND A REASONABLE DOUBT......  63

IV. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION
BY DENYING WARDEN ZANT'S RULE 60(b) MOTION FOR 
RELIEF FROM JUDGMENT............................  68

A. Zant,Failed To Show That The Evidence
Is "Newly Discovered"...................  68

B. Zant Failed To Exercise "Due Diligence".. 68
C. There Is No Likelihood That The Proffered 

Evidence Would Produce A Different Result 70
CONCLUSION................................................  72

iv



Cases:
♦Amadeo v. Zant, ___ U.S. ___, 100 L.Ed.2d

249 (1988)   38,42,43,44
♦Anderson v. City of Bessemer City, 470 U.S.

564 (1984)   38,39,43.54
Booker v. Wainwright, 764 F.2d 1371 (11th Cir. 1985) ... 45,48
Brady v. Maryland, 373 U.S. 83 (1963)   4
Brown v. Dugger, 831 F.2d 1547 (11th Cir. 1987)   66
Chapman v. California, 386 U.S. 18 (1967) .............  65
Fay v Noia, 372 U.S. 391 (1963) .......................  45,46
Freeman v. State of Georgia, 599 F.2d 65 (5th Cir. 1979) 44
Giglio v. United States, 405 U.S. 150 (1972)   41,63,64,65
Haley v. Estelle, 632 F.2d 1273 (5th Cir. 1980) .......  48
♦Johnson v. Zerbst, 304 U.S. 458 (1938)   46
Kuhlmann v. Wilson, 477 U.S. 436 (1986)   62
Lightbourne v. Dugger, 829 F.2d 1012 (11th Cir. 1987) .. 61
Maine v. Moulton, 474 U.S. 159 (1985)   62
♦Massiah v. United States, 377 U.S. 201 (1964)   passim
McCleskey v. State, 245 Ga. 108, 263 S.E.2d 146 (1980) . 6
Moore v. Kemp, 824 F.2d 847 (11th Cir. 1987)   47,48
Murray v. Carrier, 477 U.S. 478 (1986) ............... 44
Napper v. Georgia Television Co., 257 Ga. 156, 356 S.E.2d

640 (1987) .......................................  9
Paprskar v. Estelle, 612 F.2d 1003 (5th Cir. 1980) .... 47
Potts v. Zant, 638 F.2d 727 (5th Cir. Unit B 1981) .. 40,45,46,47
Price v. Johnston, 334 U.S. 266 (1948) .............. 40,46

TABLE OF AUTHORITIES
Page

v



Ross v. Kemp, 785 F.2d 1467 (11th Cir. 1986) ..........  44
Sanders v. United States, 373 U.S. 1 (1963) .... 40,44,45,47,48
*Satterwhite v. Texas, ___ U.S. ___, 100 L.Ed.2d

284 (1988)   41,64,66
*Scutieri v. Paige, 808 F.2d 785 (11th Cir. 1987 ........ 42,68
Sockwell v. Maggio, 709 F.2d 341 (5th Cir. 1983)   48
United States v. Anderson, 574 F.2d 1347 (5th Cir. 1978) 64
♦United States v. Henry, 447 U.S. 264 (1980)   2,13,62
Walker v. Lockhart, 763 F.2d 942 (8th Cir. 1985)   48
Wong Doo v. United States, 265 U.S. 239 (1924) ........  47

Statutes:
28 U.S.C. § 2241 ......................................  vii
28 U.S.C. § 2253 ......................................  vii

Rules;
Rule 52, Fed. R. Civ. P............................  1,38,42,54
Rule 60(b), Fed. R. Civ. P......................  32,33,35,37,68,

69,70,71
Rule 9(b), Rules Governing Section 2254 Cases........ .. 37,42
Other Authorities:
O.C.G.A. § 50-18-72(a)   9
Restatement of the Lav, 2d, Agency. § 16 ..............  61

Page

✓

vi



STATEMENT OF JURISDICTION
This is a habeas corpus case filed under 28 U.S.C. 

It has been appealed to this Court under 28 U.S.C. § 2253.

vii

2241.



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

BRIEF FOR PETITIONER-APPELLEE WARREN McCLESKEY

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
1. Are the District Court's factual findings (i) that Mr. 

McCleskey did not deliberately abandon his constitutional claim 
under Massiah v. United States. 377 U.S. 201 (1964), (ii) that 
his failure to have uncovered evidence of the Massiah violation 
earlier was not a result of "inexcusable neglect," and (iii) that 
he did not otherwise abuse the writ, clearly erroneous under Rule 
52?

2. Are the District Court's factual findings concerning Mr. 
McCleskey's Massiah claim, (i) that Atlanta police officers 
arranged to have an informant moved into an adjacent cell, (ii) 
that they instructed the informant to question McCleskey 
surreptitiously, and (iii) that the informant actively



interrogated McCleskey on behalf of the police, clearly 
erroneous?

3. Do the facts found by the District Court establish a 
violation of Mr. McCleskey's Sixth Amendment rights under Massiah 
v. United States and United States v. Henrv. 447 U.S. 264 (1980)?

4. On the present factual record, did the District Court 
err in concluding that the Massiah violation was not harmless 
beyond a reasonable doubt?

5. When a respondent, here Warden Walter Zant, moves to 
reopen a final judgment under Rule 60(b) in order to submit 
evidence that is not "newly discovered," when his own submissions 
demonstrate that he has exercised no diligence in obtaining that 
evidence earlier, and when the District Court has entered factual 
findings that the proffered evidence would not likely affect the 
judgment, is it an abuse of discretion for the District Court to 
deny motion?

STATEMENT OF THE CASE
(i) Course of Prior Proceedings

Mr. McCleskey accepts the general description of the prior 
proceedings set forth by Warden Zant.

(ii) Statement of Facts
Four legal issues are presented by this appeal: (i) possible

abuse of the writ; (ii) the merits of Mr. McCleskey's Massiah 
claim; (iii) whether the Massiah violation was harmless beyond a 
reasonable doubt; and (iv) whether the District Court properly

2



denied Warden Zant's motion to reopen the judgment under Rule 
60(b) .

Warden Zant's primary contention is that the principal 
factfindings of the District Court were clearly erroneous on each 
issue. To evaluate Zant's contentions, an extensive review of 
the facts is necessary. Our statement will address: (i) the 
circumstances under which the present Massiah claim first came to 
the attention of Mr. McCleskey's counsel; (ii) the evidence of 
the Massiah violation; (iii) a description of the evidence 
presented to Mr. McCleskey's 1978 jury on the murder charge; and 
(iv) the circumstances surrounding Warden Zant's motion to reopen 
the District Court's judgment in 1988.

I. The State1s Allegations Of Abuse Of The Writ
At the heart of the Massiah claim presented by Mr. McCleskey 

in his second federal petition, the District Court noted (R3-22- 
15, 19), are two items of evidence: the testimony of jailor 
Ulysses Worthy, "who was captain of the day watch at the Fulton 
County Jail during the summer of 1978 when petitioner was being 
held there awaiting his trial. . . ." (R3-22-15) ; and a 21-page 
typewritten statement by Offie Evans —  an informant and chief 
witness against Mr. McCleskey —  given to State authorities on 
August 1, 1978. (See Rl-1, Exhibit E; Fed. Exh. 8). 1 To resolve

1 Each reference to an exhibit admitted into evidence by 
the District Court during the July and August, 1987 federal 
hearings will be indicated by the abbreviation "Fed. Exh." 
followed by the exhibit number and, where relevant, the page number of the exhibit.

3



the issue of abuse of the writ, this Court must review when, and 
under what circumstances, those two items came to the attention 
of Mr. McCleskey's counsel.

A. The Defense Effort To Uncover Written Statements 
1. The Efforts of Trial Counsel
Prior to Mr. McCleskey's trial in 1978, Assistant 

District Attorney Russell Parker provided McCleskey's trial 
attorney, John Turner, with access to most of his file (Fed. Exh. 
3, 4-8) —  except for certain grand jury minutes and, unknown to 
Turner, the 21-page statement by Offie Evans at issue here (which 
contained numerous verbatim statements and admissions ostensibly 
made by Mr. McCleskey to Evans while both were incarcerated in 
the Fulton County Jail in July of 1978.)

To assure himself that he had obtained all relevant 
evidence, defense attorney Turner filed one or more pretrial 
motions under Brady v. Maryland. 373 U.S. 83 (1963), seeking all 
written or oral statements made by Mr. McCleskey to anyone, and 
all exculpatory evidence.2

After conducting an in camera review, the trial court denied

2 Although the District Court held that the copies of 
Turner's Brady motions proffered in Mr. McCleskey's federal 
petition (see Rl-1, Exhibit M) had not been properly
authenticated, (R4- 73-81), Warden Zant conceded, and the
District Court found, "that a reguest was made for statements, 
which is necessarily implied from the action of the trial 
court."(Id. 78). Later during the federal hearing, copies of
Turner's Brady motions, which had been signed and received by the 
District Attorney, were discovered in the District Attorney's 
files. Warden Zant stipulated to these facts at the August 10th federal hearing. (R6-118).

4



Mr. Turner's motion, holding without elaboration that any 
evidence withheld by prosecutor Parker was "not now subject to 
discovery." (Fed. Ex. 5). The trial court's order contained 
absolutely nothing to indicate that among the evidence withheld 
was any written statement by Offie Evans. In fact, prosecutor 
Parker later acknowledged that he never informed Turner about 
the nature or content of the items submitted to the trial court 
for in camera inspection. (Fed. Ex. 3, 15).3

At trial, during the State's cross-examination of Mr. 
McCleskey, defense counsel Turner once again sought to determine 
whether any statements implicating his client had been obtained 
by the State:

MR. TURNER: Your Honor, I think that from the
direction of things from what Mr. Parker is saying it 
appears that he must have some other statements from the 
defendant. I asked for all written and oral statements in 
my pre-trial motions. If he has something he hasn't 
furnished me, I would object to getting into it now.

THE COURT: Well, he has a statement that was furnished
to the Court but it doesn't help your client.

MR. TURNER: I am not dealing with that part of it. Iam saying I asked him —
MR. PARKER: It's not exculpatory.
THE COURT: You are not even entitled to this one.
MR. TURNER: I am entitled to all statements he made.

That is what the motion was filed about.

3 In a deposition taken by Mr. McCleskey's counsel during 
state habeas proceedings, prosecutor Parker testified as follows: 
"[T]he morning of the trial, as I recall, John Turner . . . 
wanted to know what the matters were at that time that the judge 
had made an in camera inspection of. Of course, I told him I 
couldn't tell him; no sense in having an in camera inspection if I was going to do that." (Fed. Exh. 3, at 15).

5



THE COURT: This is not a statement of the defendant.
MR. TURNER: We are not talking about a statement of

the defendant.
THE COURT: I don't know that we are talking about any

written statement.
MR. TURNER: I am saying I filed for oral and written

statements. I asked for all statements of the defendant.
THE COURT: Let the record show I wrote you and made it

of record. It is not admissible and what he is doing is in 
the Court's opinion proper.

(Rl-1, Exhibit 0, 830-832; see Fed. Ex. 6)(emphasis added)).
The trial court thus not only denied this second defense 

request; it affirmatively, and inexplicably, stated, "I don't 
know that we are talking about any written statement," (id. 831), 
suggesting that no written statement existed at all.

On appeal to the Supreme Court of Georgia, Turner contended 
that the State's refusal at trial to turn over Mr. McCleskey's 
statements, contained in what Turner plainly believed to have 
been an oral statement by Offie Evans to police, had violated Mr. 
McCleskey's rights. The Georgia Supreme Court denied the claim 
and upheld the State's position, explicitly stating in its 
opinion that "[t]he evidence [the defense counsel] sought to 
inspect was introduced to the ~iurv in its entirety." McCleskev v. 
State, 245 Ga. 108, 263 S.E.2d 146, 150 (1980) (emphasis added).

Thus, trial counsel, although unaware of the 21-page
typewritten statement of Offie Evans, made at least three
separate attempts to obtain all relevant statements from the 
State: not only were all denied, but the trial court and the

6



Georgia Supreme Court implied that no written statement existed
or that, if one did, it was introduced to the jury in its
entirety. As John Turner testified during state habeas
proceedings, "I was never given any indication that such a
statement existed." (St. Hab. Tr. 77).

2. The Efforts Of Habeas Counsel
Mr. McCleskey's present counsel, Robert Stroup, testified 

that, from his review of the trial and appellate proceedings, he 
drew the inference that no written statement of Offie Evans 
existed, but only an "oral statement . . . introduced in its 
entirety through Evans' testimony at trial." (Rl-7-2; Fed. Exh. 
1; see also id., at 8; R4-45) . Nevertheless, Mr. Stroup sought 
to review again the prosecutor's investigative file. During the 
prosecutor's deposition, he obtained an agreement for production 
of "the entire file" made available to defense counsel (Fed. Exh. 
3, 4-6), unaware that any written document had been withheld from 
trial counsel. (Rl-7- 8-9).

Subsequently the Assistant Attorney General handling the 
case mailed to Mr. Stroup and the court reporter a large number 
of documents, reciting in his transmittal letter that he was 
"felnclosfinal ... a complete copy of the prosecutor's file 
resulting from the criminal prosecution of Warren McCleskey in 
Fulton County." (Fed. Exh. 7) (emphasis added). The 21-page 
written statement of Offie Evans was not included. (Rl-7-3; Fed. 
Ex. 2) . Relying on that representation, Mr. Stroup has since 
testified, it did not occur to him that any written statement

7



existed. (Rl-7-10).
Prosecutor Parker did make one oblique reference to such an

item during his state habeas deposition. The exchange in
question began with a question by Mr. Stroup, obviously premised
on the assumption that Evans had given police only an oral
statement: "Okay. Now, I want to direct your attention to a
statement from Offie Evans that was introduced at Warren
McCleskey's trial." (Pet. Ex. 3, at 8). The prosecutor
responded, "Okay. When you referred to a statement, Offie Evans
gave his statement but it was not introduced at the trial. It
was part of that matter that was made in camera inspection by the
judge prior to trial." (Id.) Mr. Stroup immediately replied.
"All right. Let me make clear what my question was, then. Offie
Evans did in fact give testimony at the trial —  let me rephrase
it. When did you learn that Offie Evans had testimony that you
might want to use at trial?" (Id.)

Mr. Stroup has subsequently averred that
Parker's comment, at page 8 of the deposition, ... was 
not directly responsive to my question, and I thought 
he misunderstood my question. I do not believe I 
actually understood what he said in response to my 
question, and I rephrased the question to make certain 
that he understood me. When the deposition transcript 
became available to me for review, I already had 
[Assistant Attorney General] Nick Dumich's letter 
reflecting his understanding that what we were dealing 
with was a complete copy of the prosecutor's file. It 
never occurred to me at this stage in the proceedings 
that there was a written statement from Offie Evans 
that the State had not produced.

(Rl-7, 9-10).
After reviewing the sequence of events, the District Court

8



found:
The statement was clearly important. It arguably has 
favorable information. It wasn't turned over. I don't 
think that there's anything —  the only thing frankly 
that clearly indicates that Mr. Stroup should have 
known there was a statement is Russ Parker's one 
comment in the habeas, and it is clear to me that Mr. 
Stroup didn't understand what was told him.
The question gets to be maybe in a rereading of the 
deposition maybe he should have seen it or that sort, 
but I don't think that it would be proper to let this 
case go forward with such suggestions [as] ... are 
raised by that statement ... So I will allow the 
statement to be admitted into evidence on the merits.

(Rl, 118-19). In its subsequent written order, the District
Court explicitly reaffirmed that "petitioner's counsel's failure
to discover Evans' written statement was not inexcusable
neglect." (R3-22-25).

3. The Discovery Of Evans's Written Statement 
Offie Evans's 21-page statement first came to light in June 

of 1987, following a fortuitous development on May 6, 1987, in
an unrelated Georgia case, Napper v. Georgia Television Co.. 257 
Ga. 156, 356 S.E.2d 640 (1987), which 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 to the Atlanta Bureau of 
Police Services for the police files in McCleskey's case. (Rl-7- 
6) . Because of the pending rehearing, attorneys for the Atlanta 
Bureau were reluctant to disclose the police file, but on June

9



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). Mr. McCleskey subsequently made that document the 
centerpiece of the Massiah claim included in his second federal 
petition. (See Rl-9 & Exh. E).

B. The Defense Effort To Locate Massiah Witnesses
Mr. Stroup has acknowledged that, at the outset of Mr. 

McCleskey's initial state habeas proceedings, he had an 
unverified suspicion that Offie Evans may have been a police 
informant. (R4-31). Although Stroup lacked hard evidence to 
support his suspicion, in an abundance of caution, he pled a 
Massiah v. United States claim in an amendment to Mr. McCleskey's 
initial state habeas petition. (R4-36).

Mr. Stroup followed up his suspicions with extensive 
investigations during state habeas corpus proceedings. He first 
spoke with certain "Atlanta Bureau of Police Services officers" 
who had been his clients in earlier Title VII litigation, and 
obtained information from them on how best to pursue the 
prospect of an informant relationship. (R4- 31-32) Following 
their lead, Stroup spoke with "two people [at the Fulton County 
Jail] who were specifically identified to me as people who might 
have information." (R4-33).4 These jailors, however, proved to

4 Stroup elaborated his understanding that he "was 
speaking to people at Fulton County Jail who were directly 
involved with Offie Gene Evans. . . There was a gentleman named 
Bobby Edwards who by that time had left the Fulton County 
Sheriff's Department . . .  He had by that time moved to Helen, 
Georgia or thereabouts . . . and I was able to find him through a

10



have no information "regarding how Evans came to be assigned to 
the jail cell that he was assigned to or of any conversations 
with the . . . detectives regarding Offie Evans' assignment to 
that jail cell." (R4-33).

Mr. Stroup did not conclude his investigation with these
jailor interviews. Instead, he specifically sought to uncover
evidence of a Massiah violation during the deposition of
prosecutor Parker. Mr. Stroup twice asked Parker about
relationships between Offie Evans and the State:

Q. [Mr. Stx*oup] : 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. [Mr. Parker]: 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).5
On cross-examination, prosecutor Parker 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

realtor who I know up in that area." (R4- 48-49).
5 Warden Zant clearly overlooked these questions when he 

asserted that "the only question asked of Mr. Parker relating to 
any type of Massiah claim was asked by the assistant attorney 
general and Mr. Stroup simply failed to ask any questions 
whatsoever concerning this issue." (Resp. Br. 31).

11



County Jail and when he overheard these conversations 
of Mr. McCleskey?
A. I don't know of any instance that Of fie 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). On redirect examination, Mr. Stroup once
again sought, without success, information from Parker on 
possible deals with, or promises made to, Offie Evans. (See Fed. 
Exh. 3, 18-20).

Mr. Stroup subseguently explained that he did not carry Mr.
McCleskey's Massiah claim forward into his initial federal
petition, because he had been unable factually to substantiate
it during state habeas proceedings:

... 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).
As indicated above, when Mr. McCleskey filed his second 

federal petition, he relied primarily upon Offie Evans's 21-page 
statement to support his Massiah claim. (see Rl-1, 7-13).
Petitioner had not yet discovered Ulysses Worthy, who had 
retired from the Fulton County Jail in 1979, and whose appearance 
on July 9, 1987 , during the federal hearings, was the
serendipitous result of a massive, indiscriminate effort during 
to subpoena everyone whose name was mentioned in any document 
uncovered by counsel during the July 8-9th federal hearings. (R4- 
21) .

12



C. The Findings Of The District Court
After receiving the documentary evidence and hearing live

testimony from Robert Stroup, Russell Parker, and the Atlanta
detectives, the District Court made comprehensive findings on the
issue of abuse, excerpted as follows:

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. At the time of his first federal 
petition, petitioner was unaware of Evans' written 
statement. . . This is not a case where petitioner has
reserved his proof or deliberately withheld his claim 
for a second petition. . . . Here, petitioner did not
have Evans' statement or Worthy's testimony at the time 
of his first federal petition; there is therefore 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. . . [C]ounsel 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).

II. Mr. McCleskev's Claim Under Massiah v. United States
Mr. McCleskey's constitutional claim under Massiah and Henry 

is straightforward: that Offie Gene Evans, one of the principal
witnesses employed by the State at McCleskey's 1978 trial, "was 
acting on behalf of the State as an informant in the Fulton 
County Jail" when he secured a series of post-indictment 
admissions from Mr. McCleskey (Rl-1-7), and that the State's use 
of Evans's testimony, detailing those admissions, against Mr.

13



McCleskey at his trial violated his Sixth and Fourteenth 
Amendment rights to the assistance of counsel in post-indictment 
encounters with State authorities or their agents. (Id; see also 
Rl-1- 7-13) .

The principal evidence of the Massiah violation was 
presented during three days of federal habeas corpus hearings in 
July and August of 1987. The cornerstones of McCleskey's case, 
as indicated, were (i) the 21-page, typewritten statement, given 
by Offie Evans to Fulton County prosecutor Russell Parker and two 
Atlanta policemen on August 1, 1978, and (ii) the lxve testimony 
of Ulysses Worthy.

The full significance of these two items, however, appears 
only in light of background evidence that was developed during 
Mr. McCleskey's 1978 trial and during state habeas corpus 
proceedings. That background evidence will be set forth first, 
before turning to the contents of the statement and Worthy's 
testimony.

A. Background Evidence On The Massiah Claim
1. Offie Evans's Testimony At Trial

Although a number of witnesses at Mr. McCleskey's trial 
testified that McCleskey had participated in an armed robbery of 
the Dixie Furniture Store in Atlanta, Georgia, on May 13, 1978, 
the State produce no witnesses to the shooting of Atlanta police 
officer Frank Schlatt, which occurred as Schlatt entered the 
furniture store in response to a silent alarm. The murder weapon 
itself was never recovered.

14



To prove that Mr. McCleskey had personally committed the 
homicide against Officer Schlatt, the State relied on partially 
contradictory testimony about who had been carrying the murder 
weapon.6 The State also relied on two witnesses, both of whom 
claimed that McCleskey had confessed to them, after the crime, 
that he had shot Officer Schlatt. One of the two witnesses was 
the most likely alternative suspect in the shooting —  Ben 
Wright, McCleskey's co-defendant and a dominant actor in planning 
and executing the armed robbery. (See Tr. T. 651-657).

Apart from Wright, the only witness offering direct 
testimony that Mr. McCleskey had been the triggerman was Of fie 
Gene Evans, who told the jury that McCleskey had admitted 
committing the homicide during conversations in the Fulton County 
Jail, where the two were in adjacent cells. Evans in fact gave 
important testimony on three points: (i) he told the jury about 
McCleskey's "confession" (Tr. T. 870-871; Fed. Exh. 4, 870-871); 
(ii) he alleged that McCleskey had "said . . .  he would have 
tried to shoot his way out . . .  if it had been a dozen" police

6 One of the four robbers, Mr. McCleskey's co-defendant Ben 
Wright, and several other witnesses, testified that McCleskey may 
have been carrying a pearl-handled, silver .38 pistol linked to 
the homicide. (Tr. T. 649; 727). Yet on cross-examination, Ben 
Wright admitted that he, not McCleskey, had personally been 
carrying that weapon for several weeks prior to the crime. (Tr. 
T. 682) .

Moreover, Ben Wright's girlfriend admitted that she had 
informed police, on the day Wright was arrested, that Wright, not 
McCleskey, had been carrying the .38 pistol the day of the 
furniture store robbery. During trial, she attempted to change 
that testimony, conforming her story to that of her boyfriend 
Wright, and claiming that McCleskey had taken the .38 pistol on the morning of the crime. (Tr. T. 607; 631-634).

15



officers" (Tr. T. 871; Fed. Exh. 4, 871) ;7 and (iii) he single-
handedly clarified a glaring inconsistency in the identification 
testimony of one of the State's principal witnesses, explaining 
that Mr. McCleskey had acknowledged wearing makeup and a disguise 
during the crime. (Tr. T. 301-303; 870-871; 876-879).

On both direct- and cross-examination, Offie Evans denied 
that his testimony was being given in exchange for any promise or 
other consideration from State officials. (Tr. T. 868-869; 882- 
883) .

2. Evans's Testimony During State Habeas Proceedings
During the course of Mr. McCleskey's 1981 state habeas 

proceedings, Offie Evans took the witness stand a second time. 
Evans acknowledged that he had engaged in several interviews 
with State officers prior to Mr. McCleskey's trial; the first, 
with Atlanta police detectives Welcome Harris and Sidney Dorsey 
(St. H. Tr. 117; Fed. Exh. 16, 117); and a second, with 
prosecutor Russell Parker. (St. H. Tr. 118; Fed. Exh. 16, 118).8

7 This ostensible statement subsequently became a basis for 
the prosecutor's argument to the jury that Mr. McCleskey had 
acted with "malice." (See Tr. T. 974).

8 Offie Evans's testimony unmistakably confirms that there 
were two separate interviews:

Q. All right. You talked with Detective Dorsey —  it
was Dorsey, the Detective you talked to?
A. That's right.
Q. All right. And you talked with Detective Dorsey
first before you talked with Russell Parker from the
D.A.'s Office?
A. That's right.

16



In response to a question by the state habeas court, Evans 
revealed that he had testified against Mr. McCleskey at trial in 
exchange for a offer of assistance with criminal charges pending 
against him in 1978:

THE COURT: Mr. Evans, let me ask you a question. At
the time that you testified in Mr. McCleskey's trial, 
had you been promised anything in exchange for your 
testimony?
THE WITNESS: No, I wasn't. I wasn't promised nothing
about —  I wasn't promised nothing by the D.A. but the 
Detective told me that he would —  he said he was going 
to do it himself, speak a word for me. That was what 
the Detective told me.
BY MR. STROUP: Q. The Detective told you that he
would speak a word for you?
A. Yeah.
Q. That was Detective Dorsey?
A. Yeah.

(St. H. Tr. 122; Fed. Exh. 16, 122).

B. The Twenty-One Page Statement
The 21-page statement of Offie Evans, annexed by Mr. 

McCleskey to his second federal petition, purports to be an 
account of (i) short snippets of conversations, overheard by 
Offie Evans, between McCleskey and a co-defendant, Bernard 
Dupree, and (ii) a long series of direct conversations between 
Evans and McCleskey, initiated on July 9, 1978, while all those 
involved were incarcerated in adjacent cells at the Fulton 
County Jail. (See Fed. Exh. 8; see also Rl-1, Exhibit E).

(St. H. Tr. 119; Fed. Exh. 16, 119).
17



The typewritten statement reveals that, once in an adjacent 
cell, Evans disguised his name, falsely claimed a close 
relationship with McCleskey's co-defendant Ben Wright, lied about 
his own near-involvement in the crime, spoke to McCleskey about 
details of the crime which had not been made public and which 
were known only to Atlanta police and to the participants,9 
established himself with McCleskey as a reliable "insider," and 
then began systematically to press McCleskey for information 
about the crime.10

9 For example, Evans accurately suggested that he knew that 
McCleskey and other co-defendants had told police that co­
defendant Ben Wright was the likely triggerperson (Fed. Exh. 8, 
at 4) although this fact had not been made public in July of 1978.

10 In his typewritten statement to prosecutor Russell 
Parker, Evans frankly confessed to his duplicity in dealing with 
Mr. McCleskey:

"I told Warren McClesky [sic] 'I got a nephew man, he in a 
world of trouble . . . ' McClesky asked me 'What is his name.1 I 
told him 'Ben Wright.' McCleskey said 'You Beens' [sic] uncle.' I 
said 'Yeah.' He said 'What's your name?' I told him that my name 
was Charles." (Fed. Exh. 8, at 3). After Evans falsely assured 
McCleskey that he "used to stick up with Ben," and that "Ben told 
me that you shot the man yourself," ( id. at 4), Evans began to 
pry open the story of the crime. "I said man 'just what's 
happened over there?" (Id.)

Even after McCleskey told him some details of the crime, 
Evans continued his surreptitious interrogation: "And then I 
asked McClesky what kind of evidence did they have on him." ( Id. 
at 6) . In a subsequent conversation, Evans sought to learn the 
location of the missing murder weapon: "Then I said, 'They ain't 
got no guns or nothing man?"' (Id. at 7). When Bernard Dupree, 
Mr. McCleskey's co-defendant, overheard the conversations between 
Evans and McCleskey from his cell upstairs and became 
apprehensive, Evans worked to allay Dupree's suspicions, "talking 
to Dupree about Reidsville [and] just about ma[king] Dupree know me himself." (Id. at 9).

18



C. The July 8-9. 1987 Federal Hearing
1. The Testimony of Prosecutor Russell Parker

During the federal hearing on July 8 and 9, 1987, Russell
Parker and three Atlanta police officers assigned to the Schlatt 
homicide case in 1978 gave testimony concerning the Massiah 
claim. Russell Parker testified that he met with Offie Evans, in 
the presence of Atlanta police officers, on two occasions, first 
at the Fulton County Jail on July 12th, 1978, and then again on
August 1, 1978, when the 21-page statement was transcribed. (R4-
140-141). However, Parker insisted: (i) that Offie Evans had
told them everything eventually reflected in the 21-page, 
typewritten statement during the initial, July 12th interview 
(R4-152) ; (ii) that he had not engaged in conversations with 
Of fie Evans prior to July 12th (R4-140) ; and (iii) that he had 
not asked Evans on July 12th, or prior thereto, to serve as an 
informant. (R4- 166-167).

Russell Parker's testimony seems largely borne out by his 
contemporaneous notes of the July 12th meeting, which include 
several notations consistent with key portions of the 
typewritten statement Evans gave a month later. (See Fed. Exh. 
9) •

Russell Parker testified emphatically that he had neither 
met nor even heard of Evans prior to their July 12th meeting. 
(R4-142; R5- 85-86; R6-109). Indeed, Parker apparently conducted 
an informal investigation into Evans's background after their 
July 12th meeting. Written notes by Parker, dated July 25, 1978,

19



reflect that Parker heard from several independent sources—  
among them Federal Corrections official Frank Kennebrough and FBI 
agent David Kelsey —  that Evans was "a good informant," whose 
evidence was "reliable." (Fed. Exh. Ex. 10; see also R6- 81-82). 
Another federal correctional official, E.W. Geouge, described 
Offie Evans as "[a] professional snitch" whose word, however, had 
to be "take[n] with a grain of salt." (Id.)

2. The Testimony Of Police Officers Harris and Jowers
Two other police officers who had investigated the

McCleskey case, Welcome Harris and W. K. Jowers, testified that 
they likewise had not known Evans prior to July 12, 1978. (R4- 
200) . Officer Jowers, who was not present at the July 12th 
meeting with Evans, testified that he never came into contact 
with Offie Evans during the McCleskey investigation. (R5- 35-36).

Both Harris and Jowers testified that they had never met 
privately with Offie Evans or asked him to serve as an informant 
against Warren McCleskey, and that they had never directed Evans 
to seek admissions from McCleskey. (R6- 98-99, 102-102)

3. The Testimony of Detective Sidney Dorsey
The third police officer on the case, Sidney Dorsey, told a 

different story. Dorsey acknowledged that he had previously 
known Evans (R5-49) , and that he was aware that Evans had 
previously served as an informant. (R5-53). Indeed, Dorsey 
himself had personally used Evans as am informant in other cases.
(Id.) Detective Dorsey testified that

20



Q. ... [H]e was the person over the years that 
would provide occasionally useful information 
to the department?

A. He has —  he has —  he has on occasions that 
I can recall been cooperative with me.

Q. Right. And so when he called you'd come see 
him because it might well be the prospect of 
some information?

A. Yeah, yeah. I'd see him or hear from him 
from time to time. ... [H]e was the kind of 
person that if he called me I'd go see him.

(R5- 53, 52).
Despite this pre-existing special relationship with Offie 

Evans, Detective Dorsey professed a total lack of memory 
concerning his dealings with Evans during the Schlatt 
investigation:

Q. Okay ... [Evans] found himself in the Fulton County 
Jail in July of 1978. Did you go see him at any point 
in July?

A. Counselor, I do not recall going to see Offie Evans at 
the Fulton County Jail during that time or any time.

Q. Do you remember any meetings that might have been held 
between Mr. Evans and yourself and Detective Harris and 
Russell Parker at the jail?

A. Counselor, in all honesty, I do not.
* *  *  *

A. I'm not suggesting that the meeting didn't take place, 
nor am I suggesting that I wasn't there. I just don't 
recall being there and for some reason no one else 
remembers my being there either.

(R5- 57-58, 59-60).
As the excerpt above reveals, Detective Dorsey was unwilling 

to deny categorically during the July and August, 1987 hearings

21



that he had met with Evans during the Schlatt investigation. On 
the contrary, he acknowledged that he "probably did" meet with 
Evans (R5-60) , that it was "very possible" he had done so. (R5- 
66). He simply could not remember.

Detective Dorsey did clearly remember, however, that he had 
not shared knowledge of his special relationship with Evans 
widely, not even with the other Atlanta police officers on the 
Schlatt case. (R5-55; 61-62). Officers Harris and Jowers
confirmed that they had not known of Detective Dorsey's prior 
informant relationship with Offie Evans. (R4-200; R5- 35-38).

Moreover, all of the other participants testified that their 
recollections concerning Officer Dorsey's role in the Schlatt 
investigation were very hazy, at best. Russell Parker testified 
that he had no recollection of Detective Dorsey's role at all 
(R4-131; R6-113), and more specifically, he did not remember
Dorsey's presence at the July 12, 1978 meeting, even though his 
own notes indicate that Dorsey attended that meeting. (R4-131; 
R6-113; Fed. Exh 9, at 4).

Detective Harris likewise testified that he had only a 
"vague recollection" at most of Detective Dorsey's involvement in 
the investigation. (R4-206; id. 195; R6-107). Detective Dorsey 
explained that "generally we all sort of worked on our own. 
There was very seldom, if any, orders ever given." (R5 -48-49).

4. The Testimony Of Ulysses Worthy
Late in the afternoon of the second day of the federal 

hearing in July of 1987, Ulysses Worthy answered one of many
22



subpoenas that had been served by Mr. McCleskey's counsel on a 
wide variety of state, county, and municipal officers during the 
course of the two-day hearing. After a momentary interview with 
counsel for Mr. McCleskey and Warden Zant (R6- 50-52; R6- 118- 
119), Worthy took the stand.

Mr. Worthy testified that he had been the captain of the day 
watch at the Fulton County Jail in 1978. (R5-146) . He recalled
that Offie Evans was in custody during that time. (R5-147). He 
also recalled a meeting, which took place in his presence at the 
Fulton County Jail, between several Atlanta police officers and 
Offie Evans. (R5-147-149).

During this meeting,11 Detective Sidney Dorsey and Offie 
Evans discussed the murder of Officer Schlatt (R5-148), and 
Worthy recalled that Detective Dorsey (or perhaps some other 
"officer on the case") requested Evans "to engage in 
conversations with somebody . . .  in a nearby cell." (R5- 148- 
149) . Mr. Worthy testified that the targeted inmate was Warren 
McCleskey, who was being held in isolation awaiting trial 
following his indictment for murder and armed robbery. Mr. 
Worthy confirmed, upon further questioning, that an Atlanta 
police officer "asked Mr. Evans to engage in conversations with 
McCleskey who was being held in the jail." (R5-150).

Worthy testified that, as captain of the day watch, he had 
occasionally received other requests from Atlanta police

11 Mr. Worthy indicated that the detectives "were out 
several times" to meet with Offie Evans. (R5-151).

23

/



officers, which he would honor, to place one inmate in a cell 
next to another so that police could obtain information on 
pending criminal cases. (R5-152). In the McCleskey case, Worthy 
specifically recalled that "[t]he officer on the case," made such 
a request to him. (R5-153). In response to the police officer's 
request, Offie Evans was moved from another part of the Fulton 
County Jail 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).12

12 Mr. Worthy's account of an initial meeting between 
Detective Dorsey and Offie Evans, followed by Evans' move to a 
cell next to McCleskey, followed by Evans' extensive 
conversations with Mr. McCleskey, culminating in Evans' meeting 
with Parker and Atlanta police officers, helps to explain one 
major puzzle about the basic structure and content of Evans' 21- 
page written statement. Although Evans was arrested and taken to 
the Fulton County Jail on July 3, 1978 (R5- 101-17), his written 
statement is absolutely silent concerning any contact with 
McCleskey during the four-day period between July 3rd and July 
8th. Only beginning on the 8th of July does Evans' statement 
first begin to report any conversations between McCleskey and his 
partner Bernard Dupree. (Pet. 8, at 1). Not until July 9th does 
Evans report that he first introduced himself to McCleskey, 
claiming that he was Ben Wright's uncle "Charles." (Pet. 8, at 3) .

24



5. Offie Evans
During the July 8-9, 1987, hearing, counsel for Mr.

McCleskey submitted both an oral report and affidavits to the 
Court (RlSupp.-35- Aff't of Bryan A. Stevenson and Aff't of T. 
Delaney Bell, both dated July 7, 1987), detailing their efforts
to locate Offie Evans —  who had been recently released from 
state prison, who was on probation to the Fulton County 
Probation Office, who had been seen by two family members, but 
who had declined to make himself available to Mr. McCleskey or 
his counsel. Evans did not appear, and thus he did not testify. 
(R4- 17-21).

D. The August 10, 1987 Federal Hearing
At the close of the July 8-9, 1987 federal hearing, the

District Court allowed Warden Zant a month's recess in order to 
locate any further witnesses he might wish to call to rebut Mr. 
McCleskey's evidence. (R5- 163-166).

1. The Testimony Of Ulysses Worthy
At the adjourned hearing on August 10th, Warden Zant re­

called Ulysses Worthy. Mr. Worthy's August testimony accorded in 
most fundamental respects with his July 9th account.13 Worthy 
agreed, after some initial confusing testimony concerning Carter 
Hamilton (a deputy jailor), that "an officer on the case ... made

13 On cross-examination, Mr. Worthy expressly reconfirmed 
every important feature of his July 9, 1987 testimony, point-by­
point. (R6- 25-35).

25



[a] request for [Evans] to be moved," (R6-50).14 In response to 
questioning from the District Court, Worthy specifically 
confirmed the following facts about the role of the Atlanta 
police officers:

THE COURT: But you're satisfied that those three 
things happened, that they asked to 
have him put next to McCleskey, that 
they asked him to overhear McCleskey, and 
that they asked him to question McCleskey.

THE WITNESS: I was asked can —  to be placed 
near McCleskey's cell, I was asked.

THE COURT: And you're satisfied that Evans was
asked to overhear McCleskey talk about 
this case?

THE WITNESS: Yes, sir.
THE COURT: And that he was asked to kind of try

to draw him out a little bit about it?
THE WITNESS: Get some information from him.

(R6- 64-65; accord. R6- 26-28).
It is only on two related points —  exactly when Evans' move 

was requested, and the number of (and participants in) various 
meetings —  that Worthy's August 10th testimony varies from his 
July 9th testimony. Worthy's most noteworthy change was his 
suggestion that the police request to move Evans did not come 
until the close of the July 12, 1978, meeting between Evans,
Russell Parker, and Atlanta police officers. (R6- 16-19; id. 36- 
38) . Worthy attempted on August 10th to explain that his

14 Worthy specifically testified that he did not consider 
the jailor, Fulton County Deputy Sheriff Carter Hamilton, to have 
been "an officer on the case." (R6-49, 65).

26



earlier testimony on this point had been misunderstood, and that 
his first and only meeting with investigators had been the July 
12, 1978, meeting attended by Russell Parker. (R6- 15-17; id. 
36-37).

Yet on cross-examination, Worthy acknowledged that his 
earlier, July 9th testimony made distinct references to (i) an 
initial meeting, attended by Detective Dorsey, Offie Evans, and 
Worthy (R5- 148), and (ii) a "subsequent meeting" with Mr. Evans 
which occurred on a "later occasion" when "those detectives ... 
came back out." (R5-151) . In his July 9th testimony, Worthy 
testified that it was only at this "later" meeting that Russell 
Parker was present. (Id.). Indeed, Worthy had not been able to 
recall on July 9th whether Detective Dorsey had attended this 
second meeting, although Worthy testified unequivocally that 
Dorsey had been present at the first meeting. (Id.).

Moreover, Mr. Worthy was unable on cross-examination to 
explain how Offie Evans could have; (i) overheard conversations 
between McCleskey and Dupree on July 8-11, 1978; (ii) engaged in 
extensive conversations with McCleskey on July 9-10, 1978; and 
(iii) received a written note from McCleskey (which he passed 
directly to Russell Parker during their July 12, 1978 meeting), 
if Evans had been moved to a nearby cell only after July 12th. 
(R6 -40-44). Nor could Worthy explain why Atlanta investigators 
would have sought on July 12, 1978, to move Offie Evans to a 
cell next to Warren McCleskey if Evans had already been in that 
cell for at least four days prior to July 12th, gathering the

27



very fruits offered by Evans on July 12th. (R6- 39-44).
Mr. Worthy acknowledged that, at the time of the initial 

federal hearing on July 9, 1987, he did not know the lawyers for 
the parties, and that he knew nothing about the legal issues in 
the McCleskey case or what other witnesses had said in their 
testimony. (R6- 52-53). Between his first and his second court 
appearances, however, Mr. Worthy had read a newspaper article 
about the first hearing (R6- 55-56) and had met twice with
counsel for Warden Zant to discuss his earlier testimony. (R6- 
53-54).

2. The Testimony Of Deputy Jailor Hamilton 
At the August 10th hearing, in addition to re-calling 

Ulysses Worthy, Warden Zant also re-called the Atlanta prosecutor 
and police, who reiterated their denials of involvement with 
Of fie Evans as an informant. Zant also called Carter Hamilton, 
who had been a floor deputy at the Fulton County Jail in 1978. 
(R4-176). Hamilton testified that he did not recall anyone 
coming to the jail to speak with Offie Evans about the Schlatt 
case until July 12, 1978, when he sat in on the meeting among
Evans, prosecutor Parker, and Atlanta police officers. (R6-68).

Deputy Hamilton testified that he had no knowledge of Evans 
ever being moved while in jail. (R6-68). Although Hamilton was 
present throughout the July 12, 1978 meeting between Evans,
Russell Parker and the Atlanta police officers, he heard no 
requests during that meeting for Evans to be moved, or for Evans 
to engage in conversations with Mr. McCleskey. (R6- 69-72).

28

/



On cross-examination, Deputy Hamilton admitted that he could 
not say affirmatively whether Evans might have been held in 
another part of the Fulton County Jail prior to July 8, 1978. 
There were some 700 to 900 prisoners being held in July of 1978; 
they were held on two separate floors in three different wings. 
(R6-73) . Had Of fie Evans been held on the second floor or in a 
different part of the Fulton County Jail between his initial 
incarceration on July 3, 1978 and July 8, 1978, —  or if a 
movement had occurred during a different shift than the one 
Deputy Hamilton worked —  he admitted that he would have had no 
knowledge of it. (R6- 72-76). Hamilton also acknowledged that he 
had no specific memory of when Offie Evans first was placed in 
the first-floor cell next to Mr. McCleskey. (R6-75).

E. The Findings Of The District Court
The District Court, after summarizing the testimony and the 

documentary evidence (R3-22- 15-18, 19-21) and analyzing the 
discrepancies in Worthy's testimony (R3-22- 16-18), found the 
following:

After carefully considering the substance of Worthy's 
testimony, his demeanor, and the other relevant 
evidence in this case, the court concludes that it 
cannot reject Worth's testimony about the fact of a 
request to move Offie Evans. The fact that someone, at 
some point, requested his permission to move Evans is 
the one fact from which Worthy never wavered in his two 
days of direct and cross-examination. The State has 
introduced no affirmative evidence that Worthy is 
either lying or mistaken. The lack of corroboration by 
other witnesses is not surprising; the other witnesses, 
like Assistant District Attorney Parker, had no reason 
to know of a request to move Evans or, like Detective 
Dorsey, had an obvious interest in concealing any such 
arrangement. Worthy, by contrast, had no apparent

29



interest or bias that would explain any conscious 
deception. Worthy's testimony that he was asked to 
move Evans is further bolstered by Evans' [state 
habeas corpus] testimony that he talked to Detective 
Dorsey before he talked to Assistant District Attorney 
Parker and by Evans' apparent knowledge of details of 
the robbery and homicide known only to the police and 
the perpetrators.

* * * *

[T]he court concludes that petitioner has established 
by a preponderance of the evidence the following 
sequence of events: Evans was not originally in the
cell adjoining McCleskey's; prior to July 9, 1978, he
was moved, pursuant to a request approved by Worthy, to 
the adjoining cell for the purpose of gathering 
incriminating information; Evans was probably coached 
in how to approach McCleskey and given critical facts 
unknown to the general public; Evans engaged McCleskey 
in conversation and eavesdropped on McCleskey's 
conversations with DuPree [McCleskey's co-defendant]; 
and Evans reported what he had heard between July 9 and 
July 12, 1978 to Assistant District Attorney Parker on
July 12.

(R3-22- 21-22, 23; accord. RlSupp.-40- 9-10). In a subsequent
paragraph, the District Court summarized the likely motivation 
for the scheme:

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, however 
artificial or ill-conceived it might have appeared. 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.

(R3-22-31).

Ill. The Harmless Error Issue
Mr. McCleskey was tried by the Fulton County Superior Court 

on one count of murder, and two counts of armed robbery. (Tr. T. 
987). As indicated above, the State's evidence that McCleskey

30



was the actual perpetrator of the Schlatt homicide was limited to 
some conflicting evidence on who was carrying the murder weapon, 
the allegations of McCleskey's co-defendant Ben Wright, and the 
testimony of Offie Evans. (See pages 14-16 supra).

At the close of the guilt phase, the Superior Court 
instructed the jury on theories of malice murder (Tr. T. 998-999) 
and of felony murder. (Tr. T. 999-1000). In its charge on malice 
murder, the trial court instructed the jury that "a person 
commits murder when he unlawfully and with malice aforethought, 
either express or implied, causes the death of another human 
being." (Tr. T. 1000). In its charge on felony murder, the trial 
court informed the jury that "[t]he homicide is committed in the 
perpetration of a felony when it is committed by the accused 
while he is engaged in the performance of an act required for the 
full execution of such a felony." (Tr. T. 1000) (emphasis added), 
and that the jury should convict "if you believe and find beyond 
a reasonable doubt that the homicide alleged in this indictment 
was caused by the defendant while he, the said accused, was in 
the commission of an armed robbery . . . ." (Id.).15

15 The court had earlier charged the jury, in a general 
section, on the doctrine of "parties to a crime," as follows:

That statute says that every person concerned in the 
commission of a crime is a party thereto and may be 
charged with and convicted of commission of the crime, 
and then it has several subsections. It says that a 
person is concerned in the commission of a crime only 
if he directly commits the crime, intentionally aides 
or abets in the commission of the crime, or 
intentionally advises, encourages, hires, counsels or 
procures another to commit the crime.

31



During its deliberations, the jury sought further
instructions on the issue of malice murder. The Superior Court
repeated its instructions. (Tr. T. 1007-1009). Ten minutes
later, the jury returned, finding Mr. McCleskey guilty of malice
murder and two counts of armed robbery. (Tr. T. 1010).

During federal habeas proceedings, after determining that
Offie Evans' testimony was the product of unconstitutional
Massiah violations, the District Court addressed the possible
harmlessness of the violation. The court concluded that Offie
Evans' "testimony about petitioner's incriminating statements was
critical to the state's case" (R3-22-30):

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 
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).

(Tr. T. 994).
32



IV. Warden Zant's Rule 60(b) Motion
In April of 1988, while this case was pending on appeal, 

Warden Zant moved this Court to remand the case to the District 
Court or to supplement the record, based upon the availability of 
Of fie Evans, who had then been recently re-jailed on further 
charges. After responsive papers were filed, the Court, on May 
2, 1988, granted leave for Warden Zant to file a motion to reopen 
the judgment in the District Court, pursuant to Rule 60(b).

Warden Zant filed such a motion on May 6, 1988. (RISupp.- 
31). After receiving responsive papers (RISupp.-32), the 
District Court found that Warden Zant had "fail[ed] to satisfy 
the requirements for the relief sought. There is neither a 
showing of due diligence nor a showing as to what Offie Evans 
would say.” (RISupp.-34-1). Instead of dismissing the motion, 
however, the District Court granted Warden Zant six weeks to 
conduct additional discovery. (RISupp.-34-2).

A. The Issue Of Warden Zant's "Due Diligence”
During that discovery period, Warden Zant acknowledged, in 

responses to written interrogatories: (i) that neither he nor 
anyone under his direction ever sought to locate Offie Evans at 
any point during or after the 1987 federal hearings (RISupp.-35- 
Resp. Answer To First Interrog.-1-2) ; (ii) that he never 
indicated, either to the District Court or to counsel for Mr. 
McCleskey, his desire to call Offie Evans as a witness in 1987

33



(id. at 2)?16 and (iii) that he never attempted to follow up the 
direct leads to Evans' whereabouts that had been revealed by Mr. 
McCleskey's counsel during the initial July 8-9, 1987 hearing. 
(Id.).17

Counsel for Mr. McCleskey also discovered, and presented the 
District Court, documentary evidence that Offie Evans's 
deposition had been taken in another case in October of 1981, 
that the deposition had addressed the issue of Evans's contacts 
with Atlanta police while in jail in 1978, and that Warden Zant's 
present counsel had been aware of that deposition —  indeed, had 
offered it in another federal habeas case in 1985 —  and had 
obviously chosen not to offer it during Mr. McCleskey's 1987

16 The District Court specifically instructed Warden Zant, 
during the one-month interval between the initial July, 1987 
federal hearing and the August 10, 1987 rebuttal hearing, to 
provide formal notice to Mr. McCleskey of any witnesses Zant 
might call during the August 10th hearing. (R5-168). In neither 
of two letters, dated July 24 and July 29, 1987, did counsel for 
Warden Zant express any desire to call Offie Evans, nor did he 
seek additional time or assistance to locate Evans.

17 During that hearing, counsel for Mr. McCleskey detailed, 
in affidavits proffered to Warden Zant's counsel, the efforts 
they had made to locate Offie Evans in May and June of 1987, just 
prior to the hearing. (See R4-17; RlSupp.-35, Aff'ts of Bryon A. 
Stevenson and T. Delaney Bell). Those affidavits reveal that, at 
various times during May and June of 1987, Mr. Stevenson and/or 
Mr. Bell had spoken with Offie Evans's sisters, who reported that 
Evans was in and out of the two homes every few days.

Assistant District Attorney Parker was questioned under 
oath, during the July 8th hearing, about Offie Evans's whereabouts. He responded:
"I understand he's just gotten out of jail, You Honor, but I do 
not know where he is. I assume he's in the Atlanta area 
somewhere. . . I could probably find him. I have spent enough 
time with him." (R4-174) (emphasis added).

34



proceedings. (RISupp.-38-2, 18-19).

B. The Materiality Of Offie Evans's Testimony
During the discovery period, on July 13, 1988, Warden Zant

took the deposition of Offie Evans. That deposition was 
thereafter submitted to the District Court in support of Warden 
Zant's Rule 60(b) motion. (RISupp.-37).18 During his deposition, 
Evans denied ever having been moved while in the Fulton County 
Jail in 1978, or ever having been asked to serve as an informant 
against Warren McCleskey. (RISupp.-37- 15-21).

Evans' deposition testimony contained a number of internal 
contradictions, as well as contradictions with his own former 
testimony and the testimony of other officers. For example, 
Evans testified that he began speaking with McCleskey on July 3, 
1978, the first day he was incarcerated, while the two were in 
adjacent cells. (RISupp.-37-15, 54). In 21-page typewritten
statement to Russell Parker, however, Evans states that he did 
not begin speaking with McCleskey until five days after his 
incarceration, on July 9th. (Fed. Exh. 8). During his July 13th 
deposition, Evans denied ever meeting with Russell Parker prior 
to August 1, 1987 (RISupp.-37-21); Parker and other witnesses 
testified that the two met on July 12, 1978.

Evans also maintained during his 1988 deposition that 
Detective Dorsey had never promised to "speak a word for him" in

18 Although the court subsequently contacted counsel for 
both parties, inquiring whether either sought an evidentiary 
hearing on the Rule 60(b) motion, Warden Zant did not request an 
opportunity to present Evans' live testimony.

35



exchange for his testimony against Mr. McCleskey (RISupp.-37-92). 
His sworn testimony in state habeas corpus proceedings in 1981 
was directly to the contrary. Evans denied that he had ever 
served as an informant prior to 1978, and specifically denied any 
prior acquaintance with Detective Dorsey. (RISupp.-37-46, 75).
This testimony contradicted Dorsey's testimony during the 1987 
federal hearings, as well as the information about Evans's 
informant activities which Russell Parker obtained from the FBI 
and from Federal Corrections officials. Evans also denied that 
he had spoken with Russell Parker in 1988 prior to his 
deposition. (RISupp.-37-33) . Warden Zant's 1988 Answers to 
Interrogatories revealed that Offie Evans had participated in a 
telephone conversation with Russell Parker after his re­
incarceration in the spring of 1988. (RISupp.-35-Resp. Answer to 
First Interrog. at 3).19

C. The Findings Of The District Court
In its order denying Rule 60(b) relief, the District Court 

found that "Evans' testimony is not truly newly discovered but 
rather is merely newly produced. . . The fact that the essential 
substance of this testimony was in a previous deposition filed in 
the public records and known to respondent's counsel also 
indicates it is not newly discovered." (RISupp.-40-6).

Turning to the issue of due diligence, the District Court

19 A review of 19 inconsistencies and contradictions in 
Offie Evans's deposition is set forth at pages 8 through 17 of 
Petitioner's Brief In Response To Respondent's Supplement To Rule 
60(b) Motion. (RISupp.-38).

36



found that "respondent made no efforts to locate Evans during the 
summer of 1987." (RISupp.-40-8). "[T]he Atlanta Bureau of Police 
Services has enjoyed a special relationship with Mr. Evans over 
the years, and . . .  if the department had been looking for him, 
Mr. Evans might have made himself available" to Warden Zant. 
(Id.-7). The court concluded that "petitioner's efforts did not 
relieve respondent of any obligation to utilize his own resources 
to locate Evans. Movant has not demonstrated the due diligence 
prong of the 60(b)(2) standard." (Id.).

Finally, addressing the impact of Evans's testimony, the 
District Court found that

[i]t is unlikely Evans' testimony would produce a 
different result. The credibility or believability 
problems with his testimony are evident. He has a 
strong motivation for saying he was not an informant, 
not only because of recriminations from his 
associates, but also in order to stay in favor with the 
police and prosecutors who have used him to testify in 
the past. The numerous contradictions within his 
deposition also lead the court to the conclusion that 
his testimony would not be believable.

(Id. at 9). The court closed its analysis by noting that it had
already credited the word of Ulysses Worthy against the sworn
testimony of Atlanta law enforcement personnel: "Evans testimony
is not likely to change the credibility of Worthy's testimony or
the fact that petitioner showed by a preponderance of the
evidence that a Massiah violation occurred. (Id. at 10).

(iii) Statement of the Standard of Review
Mr. McCleskey agrees with Warden Zant that the appropriate 

standard to be applied to the Rule 9(b) issue and the Rule 60(b)

37



issue on this appeal is whether the District Court abused its
discretion. Mr. McCleskey's constitutional claim under Massiah 
v. United States presents mixed questions of fact and law. The 
ultimate legal questions presented by that claim should be 
independently reviewed by this Court.

Under Rule 52 of the Fed. R. Civ. P. , the District Court's 
factual findings on all issues —  Zant's Rule 9(b) allegations, 
the merits of the Massiah claim, harmless error, and Rule 60(b) 
—  should not be disturbed unless they are clearly erroneous.

SUMMARY OF ARGUMENT
The gravamen of Warden Zant's appeal is that this Court 

should overturn virtually every major fact found by the District 
Court. Zant's appeal should be denied, since the District 
Court's factual findings are not "clearly erroneous."

The governing standard, Rule 52 of the Fed. R. Civ. P. does 
not permit this Court independently to reweigh the extensive 
factual record. "'Where there are two permissible views of the 
evidence, the factfinder's choice between them cannot be clearly
erroneous.'" Amadeo v. Zant. U.S. , 100 L.Ed.2d 249, 262
(1988), citing Anderson v. Bessemer City. 470 U.S. 564, 574 
(1984). Only if Zant could demonstrate that only one view of the 
evidence exists would his appeal have merit.

Zant's burden is insurmountable on this record. The 
District Court heard extensive live testimony and carefully 
sifted hundreds of pages of documentary evidence before reaching 
its decision. The lower court's judgment, embodied in two

38



thorough opinions, expressly considers the alternative views of 
the evidence and clarifies, with great care, the court's choices 
among them.

The Massiah claim plainly turns on the District Court's 
credibility assessment of three key witnesses, two of whom 
testified before the court —  jailor Ulysses Worthy and Detective 
Sidney Dorsey —  and one of whom —  Of fie Evans —  appeared via 
two hearing transcripts and an 100-page deposition. The Supreme 
Court has stressed that "[w]hen findings are based on 
determinations regarding the credibility of witnesses, Rule 52(a) 
demands even greater deference to the trial court's findings; for 
only the trial judge can be aware of the variations in demeanor 
and tone of voice that bear so heavily on the listener's 
understanding of and belief in what is said." Anderson v. City 
of Bessemer City. 470 U.S. 574, 575 (1985).

The District Court's factual determinations are not only 
defensible; they are by far the most plausible reading of the 
evidence. The various threads of Offie Evans's testimony —  his 
admission during state habeas proceedings about a jailhouse 
meeting with Detective Dorsey, his remarkably unguarded 21-page 
statement to Atlanta law enforcement personnel (during which he 
brags repeatedly about the extensive web of lies by which he 
gradually won Warren McCleskey's confidence) —  were tied tightly 
together by Ulysses Worthy's unrehearsed account of the jailhouse 
meeting at which Atlanta police officers recruited Offie Evans to 
serve as an active informant. This testimony meshes into a

39



coherent fabric of deceit and constitutional misconduct, 
concealed for nearly a decade.

The District Court*s basic conclusions thus find consistent 
support in the record; they are fully supported and not "clearly 
erroneous."

Warden Zant's additional contentions also founder on the 
District Court's factfindings. Although Zant argues that Mr. 
McCleskey "deliberately abandoned" his Massiah claim, the 
District Court found that the essential facts had been concealed 
from McCleskey during his initial state habeas proceedings. The 
court properly held that an applicant may not be held 
"deliberately" to have abandoned a constitutional claim when the 
supporting facts were not reasonably available to him. See e.q.. 
Potts v. Zant. 638 F. 2d 727, 741-743 (5th Cir. Unit B 1981);
accord: Price v. Johnston. 334 U.S. 266 (1948).

Zant also argues that Mr. McCleskey should have discovered 
the evidence hidden by State authorities. Zant's position 
ignores basic equitable principles: a court should not permit a
party seeking equity to take advantage of his own misconduct. 
Sanders v. United States. 373 U.S. 1, 17-18 (1963). The State
cannot be heard to cry "waiver," when its own secret misdeeds 
explain why McCleskey failed to uncover the constitutional 
violation prior to 1987. Furthermore, the District Court 
determined factually that the conduct of Mr. McCleskey's counsel, 
on this record, did not amount to "inexcusable neglect."

Warden Zant alternatively contends that Mr. McCleskey

40



Massiah claim was harmless error, citing as his prooftext this 
Court's rejection of Mr. McCleskey's claim under Giglio v. 
United States. 405 U.S. 150 (1972), which was litigated in his 
first federal petition. The two violations, however, are quite 
different, and the Giglio analysis is clearly inapt. A Massiah 
violation requires the exclusion on retrial of any mention of 
Offie Evans's conversations with Mr. McCleskey. A Giglio 
violation, by contrast, allows the State to use Offie Evans's 
testimony in full; Evans would simply be required to divulge, as 
possible impeachment evidence, that Detective Dorsey made some 
kind of assurances to Evans in exchange for his testimony. The 
significance of this impeachment evidence under Giglio. 
especially for a witness like Evans, already highly impeachable, 
is of far less gravity than the exclusion, under Massiah. of 
Evans's testimony altogether.

In Satterwhite v. Texas.__U.S.__, 100 L.Ed.2d 284 (1988),
the Supreme Court recently clarified that evidence far less 
central than McCleskey's jailhouse "confessions," especially if 
obtained by the State through exploitation of a Sixth Amendment 
violation, cannot be harmless. Only if the State can prove that 
"the error complained of did not contribute to the verdict 
obtained," 100 L.Ed.2d at 295, may a court find it harmless 
beyond a reasonable doubt.

Warden Zant's last-ditch argument seeks to reopen the 
District Court's judgment. Zant belatedly offers additional 
testimony from informant Offie Evans. Zant's motion runs afoul

41



of virtually every requirement established by Rule 60(b). See 
Scutieri v. Paige. 808 F.2d 785 (11th Cir. 1987). The proffered 
testimony is not "newly discovered" but redundant and previously 
available to the State. Warden Zant expended not one hour of 
diligence to obtain it during the 1987 federal hearings, even 
after receiving from the District Court a full month's 
adjournment expressly to permit him to locate additional 
witnesses. Evans's 1988 deposition, taken and proffered to 
buttress Zant's motion, suffices thoroughly to defeat it: as the
District Court found, Offie Evans's latest version of his 
familiar story is a welter of internal contradictions, lies, and 
gaping holes. It could not possibly affect the careful judgment 
already rendered by the District Court.

ARGUMENT
I.

MR. McCLESKEY DID NOT ABUSE THE WRIT OF HABEAS CORPUS 
BY FAILING TO UNCOVER THE MISCONDUCT OF ATLANTA POLICE 
OFFICERS WHICH CAME TO LIGHT ONLY IN 1987

Warden Zant's argument under Rule 9(b), like his argument on 
the merits, appeals to this Court to overturn factfindings made 
after a full evidentiary hearing. Warden Zant's burden is 
enormous. Factfindings on abuse of the writ are subject to the 
same strict Rule 52 standards as are determinations on merits
issues. See, e.g.. Amadeo v. Zant.__U.S.__, 100 L.Ed.2d 249, 261
(1988) (holding that District Court's findings on whether 
secreted evidence was "reasonably available" or "readily 
discoverable" by counsel is subject to Rule 52) ; id. at 2 62

42



(holding that District Court's findings on "deliberate bypass" 
are subject to Rule 52).

As the Supreme Court stressed in Amadeo. "a federal 
appellate court may set aside a trial court's findings of fact 
only if they are 'clearly erroneous,"' 100 L.Ed.2d at 261. 
"'Where there are two permissible views of the evidence," the 
Supreme Court has held, "the factfinder's choice between them 
cannot be clearly erroneous.' Anderson v. Bessemer City, 470 U.S. 
[564 (1984)] at 574." Amadeo v. Zant. 100 L.Ed.2d at 262.
"[T]he court of appeals may not reverse . . .even though
convinced that had it been sitting as the trier of fact, it would 
have weighed the evidence differently." Anderson v.City of 
Bessemer Citv. 470 U.S. 564, 574 (1985).

The District Court here found that certain Atlanta police 
officers perpetrated a deliberate, covert conspiracy to violate 
Mr. McCleskey's Sixth Amendment rights in 1978. Those officers 
did everything within their power to hide that misconduct from 
everyone —  fellow officers, the District Attorney, Mr. 
McCleskey's jury, even the Georgia Attorney General's Office. 
Their wrongdoing came to light, through the sheerest chance, only 
on the eve of Mr. McCleskey's execution in 1987.

Warden Zant now has the impossible task of arguing that Mr. 
McCleskey and his counsel "abused the writ of habeas corpus" by 
failing to uncover misconduct whose very aim was to remain hidden 
—  misconduct that escaped the attention of everyone connected 
with this case until Ulysses Worthy, an apparently peripheral

43



player in the overall Schlatt investigation, fortuitously stepped 
forward to describe the jailhouse deal struck by Detective Dorsey 
and Offie Evans.

Even if Warden Zant's arguments were otherwise persuasive—
and we will show momentarily that they are not —  the equitable
foundations of habeas corpus law would forbid the State to profit
by its own proven misconduct. As the Supreme Court observed in
Sanders v. United States. 373 U.S. 1, 17-18 (1963):

To say that it is open to the respondent to show that a 
second or successive application is abusive is simply 
to recognize that 'habeas corpus has traditionally been 
regarded as governed by equitable principles. . . Among 
them is the principle that a suitor's conduct in 
relation to the matter at hand may disentitle him to 
the relief he seeks.
Equity simply cannot permit a State to hide a constitutional 

violation and then, when caught, to fault a habeas applicant for 
not detecting the misconduct sooner. See generally. Amadeo v .
Zant.__U.S.__, 100 L.Ed.2d at 260; Murray v. Carrier. 477 U.S.
478, 488 (1986); Ross v . Kemp. 785 F.2d 1467, 1477 (11th Cir. 
1986). Freeman v. State of Georgia. 599 F.2d 65, 71-72 (5th Cir. 
1979).

A. Warden Zant's Argument of "Deliberate Abandonment"
Warden Zant's principal argument on abuse is that Mr. 

McCleskey "deliberately abandoned the [Massiah] claim prior to 
the filing of his first federal petition." (Resp. Br. 13; id. at 
15). According to Warden Zant, "[d]eliberate abandonment . . .
involves simply a consideration of whether the issue was known 
and the petitioner or his counsel made a knowing choice not to

44



pursue the claim after having raised it previously." (Resp. Br. 
18-19) (emphasis in original). Since Mr. McCleskey raised a 
Massiah claim in his original state habeas corpus petition, Zant 
reasons, and since he failed to assert it in his first federal 
petition, the claim, Zant concludes, was irrevocably abandoned.

Zant dismisses the testimony of Mr. McCleskey's counsel that 
he did not plead the Massiah claim in his initial federal habeas 
petition because he had failed to uncover sufficient evidence to 
support it:

In this case it is clear that counsel knew of the 
existence of the possibility of raising the claim and 
simply chose as a matter of tactics not to present the 
claim in the first federal habeas corpus petition. The 
simple assertion that counsel did not think he had 
sufficient facts to prove the claim is insufficient to 
overcome the barrier of an intentional abandonment of 
an issue. . . If counsel felt that there was any 
possible merit to the claim, or was even suspicious, he 
certainly should have continued to pursue the claim in 
the district court to avoid possible piecemeal 
litigation.

(Resp. Br. 22) (emphasis added).
Warden Zant's legal contentions have no support in the law 

of this Circuit, or of any other. As the District Court properly 
held:

Abandoning a claim whose supporting facts only later 
become evident is not an abandonment that "for 
strategic, tactical, or any other reasons ... can 
fairly be described as the deliberate by-passing of 
state - procedures." Fav 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. Cf. Sanders v. United 
States. 373 U.S. 1, 18 (1963). Nor is the petitioner
now raising an issue identical to one he earlier 
considered without merit. Cf. Booker v. Wainwriaht. 764
F.2d 1371, 1377 (11th Cir. 1985).

45



(R3-22-24).
Deliberately to abandon a claim, Warden Zant himself 

concedes, requires a "knowing choice." (Resp. Br. 19). The 
Supreme Court emphasized in Fav v. Noia. 372 U.S. at 439, that 
"the classic definition of waiver enunciated in Johnson v. 
Zerbst, 304 U.S. 458, 464 [1938] —  'an intentional
relinquishment or abandonment of a known right or privilege'—  
furnishes the controlling standard." 20

The former Fifth Circuit, in Potts v. Zant. 638 F.2d 727 
(5th Cir. Unit B 1981) firmly adhered to Fav on this point, 
holding that "the definition of waiver enunciated in Johnson v. 
Zerbst. 304 U.S. 458 —  i.e.. the intentional relinquishment or
abandonment of a known right or privilege —  [is] one necessary

20 The most celebrated successive habeas case on this 
point is Price v. Johnston. 334 U.S. 266 (1948). The petitioner 
in Price had filed an initial federal petition in which he had 
raised a challenge to certain evidence on Fourth Amendment 
grounds. In passing, he also called the court's attention to two
different and contrary statements 
prosecution's chief witness.

made at trial by the

Subsequently, on an amendment 
petition, the petitioner alleged for

to
the

his
first

fourth
time

federal 
that the

prosecution had knowingly induced the key witness, during a break 
in the trial, to change his story and give false testimony. 334 
U.S. at 287. Although the record gave the petitioner from the 
outset a strong basis to suspect misconduct, the Supreme Court 
rejected the dismissal of his claim as an abuse.

The Court distinguished cases in which a petitioner had full 
access to "proof [of the claim] which was accessible at all 
times." 334 U.S. at 289, and refused in Price to "assume that 
petitioner [Price] has acquired no new or additional information 
since the time of the trial or the first habeas corpus proceeding 
that might indicate fraudulent conduct on the part of the 
prosecuting attorneys." 334 U.S. at 290.

46



element inter alia in finding a deliberate bypass." Potts v.
Zant. 638 F.2d at 741 (emphasis added). Accord: Paprskar v.
Estelle. 612 F.2d 1003, 1006 (5th Cir. 1980). Deliberate
abandonment, in short, must be "knowing and intelligent" as well 
as "deliberate" in order to constitute an abuse. Potts v. Zant. 
638 F.2d at 743-744.

The Potts majority pointed to the case of Wong Poo v. United
States. 265 U.S. 239 (1924) , cited by the Supreme Court in
Sanders. in support of its analysis:

(I]n the Sanders opinion, the Court characterized Wong 
Doo's ... actions as being in bad faith. The Supreme 
Court stated: 'The petitioner had full opportunity to
offer proof of [the ground] at the hearing on the first 
petition; and if he was intending to rely on that 
ground, good faith required that he produce the proof 
then. To reserve the proof for use in attempting to 
support a later petition, if the first failed, was to 
make an abuse of the writ of habeas corpus. No reason 
for not presenting the proof at the outset is offered.
265 U.S at 241 (emphasis added). This passage, read in 
its entirety, indicates that Supreme Court's conviction 
of the bad faith of the petitioner in Wong Poo.

Potts v. Zant. 638 F.2d at 745 (emphasis added).
Mr. McCleskey, as the District Court found, did not

"reserve the proof" of a Massiah violation during his initial
state habeas hearings for later use in a second federal petition.
Unlike Wong Doo, Mr. McCleskey revealed everything he had
uncovered: it was simply not enough to make out a violation.

This Court, sitting in banc, has recently held that, "the
inquiry into whether a petitioner has abused the writ .. . must
consider the petitioner's conduct and knowledge at the time of
the preceding federal application." Moore v . Kemp. 824 F.2d 847,

47



851 (11th Cir. 1987). Moore's holding is consistent with
earlier treatment of claims predicated on newly discovered facts:

The petitioner may avoid dismissal if he proves by a 
preponderance of the evidence that he was ignorant of 
facts necessary to support the new ground when he filed 
his prior habeas corpus petition.

Booker v. Wainwriqht. 764 F.2d 1371, 1376 (11th Cir. 1985); Haley
v. Estelle. 632 F.2d 1273, 1275 (5th Cir. 1980) ("it is clear
that a petitioner cannot be charged with having abused the writ
of habeas corpus if, at the time of his earlier petition, he was
unaware of the facts on which his earlier claims are based"); see
also Walker v. Lockhart. 763 F.2d 942, 955 n.26 (8th Cir. 1985)
(discovery of evidence suppressed by the State permits
consideration of previously asserted claim in a successive
petition); Sockwell v. Maggio. 709 F.2d 341, 344 (5th Cir.
1983) (per curiam) ("[i]f a petitioner's unawareness of facts
which might support a habeas application is excusable . . the
subsequent filing is not an abuse of the writ")

Applying this well-established line of reasoning to Mr.
McCleskey's case, it is plain that his counsel did not
"deliberately abandon" his Massiah claim. McCleskey acted
neither "in bad faith" nor with a purpose "to vex, harass, or
delay," Sanders v. United States. 373 U.S. at 18. Instead, his
counsel was simply unable, even after a substantial
investigation, to uncover the State's well-concealed facts.

B. Warden Zant's Allegations of "Inexcusable Neglect" 
Warden Zant's alternative argument is advanced only

48



intermittently: at one point, Zant admits that " [t]he question 
raised in the instant case . . .  is not one of inexcusable 
neglect but of deliberate abandonment of an issue." (Resp. Br. 
18). Yet throughout his argument on abuse, Zant enumerates 
ostensible "failures" and "oversights" that appear to amount to 
an indictment of inexcusable neglect.

Warden Zant contends, for example, that Mr. McCleskey's 
counsel "never asked either the assistant district attorney or 
any of the police officers when Mr. Evans began cooperating with 
them." (Resp. Br. 20). He alleges that counsel's investigation 
"fell short of any kind of in depth inquiry." (Id.). Counsel 
allegedly "did not subpoena any records regarding the informant 
claim." (Resp. Br. 21). He argues that "counsel certainly had 
reason to know that there was a written statement of Offie Gene 
Evans and certainly should have made some effort to obtain that 
statement." (Resp. Br. 23).

Warden Zant also rehearses the multiple attempts by John 
Turner, Mr. McCleskey's trial attorney, to obtain all statements 
made by McCleskey and concludes that they should have "put 
counsel on notice," (Resp. Br. 24) or been "a clear indication" 
that some kind of written statement existed. (Resp. Br. 25).21

21 Warden Zant also proffers a bizarre reading from a state 
habeas corpus finding addressing an unrelated issue, which 
mentions in passing "that defense counsel had access to the 
prosecutions' discovery file which included statements from all 
witnesses (except Evans) and investigative reports." (St. H. T. 
38) (emphasis added). In this quotation, Zant detects "a clear 
factual finding . . . that there was actually a written statement 
from Offie Evans." (Resp. Br. 32).

49



Finally, he asserts that "Petitioner had a legal basis for 
obtaining a copy of this statement in the first state habeas 
corpus proceeding," and that, conseguently, there was "no valid 
reason why Petitioner could not have obtained this statement 
earlier." (Resp. Br. 33).

None of these charges hold water. In this case, Mr. 
McCleskey's counsel admittedly had some basis for a suspicion 
that Offie Evans might have been acting under State authority. 
Far from neglecting his suspicions, however, Mr. Stroup, 
McCleskey's counsel, began a wide-ranging inquiry, first 
questioning officers of the Atlanta Bureau of Police Services 
about the possible use of informants, then speaking with two or 
three jailors at the Fulton County Jail to learn what they might 
know of Offie Evans' incarceration, then deposing Assistant 
District Attorney Russell Parker about a possible relationship 
between Evans and Atlanta police officers, and finally

from Offie Evans." (Resp. Br. 32).
Warden Zant's interpretation is faulty on two grounds. 

First, considering the plain meaning of the court's language, it 
is far more reasonable to read the court as saying (i) that the 
prosecutor's file included statements from all other trial 
witnesses except Offie Evans (since no written statement by 
Evans existed), rather than (ii) that the file contained 
statements from all witnesses (including Evans) and that defense 
counsel received all statements (except Evans').

Second. the state habeas court, to our knowledge, never 
received Evans' 21-page statement. The statement is not part of 
the public record, and the State did not file any documents under 
seal in the state habeas proceeding. Consequently, Warden Zant's 
assertion that "the state habeas court itself also specifically 
realized that there was a written statement from Offie Evans" 
(Resp. Br. 33) has no foundation at all.

50



questioning Evans directly about the issue during state habeas 
corpus proceedings.

None of the Fulton County jailors knew anything about such a 
relationship. District Attorney Parker testified: "I don't know 
of any instance that Offie Evans had worked for the Atlanta 
Police Department as an informant prior to his overhearing 
conversations at the Fulton County Jail." Having thus been 
assured by the prosecutor —  on behalf of himself and the Atlanta 
police —  and by the suspected informant, under oath in a state 
habeas hearing, that no informant relationship ever existed, it 
was hardly "inexcusable" of Mr. McCleskey's counsel, who was 
pursuing over twenty additional constitutional claims on his 
client's behalf, to conclude that Evans, appearances to the 
contrary notwithstanding, had not served as a State informant.22 

* * * * *
The State's alternative theory of "inexcusable neglect" 

depends on its argument that defense counsel should have obtained 
Evans' 21-page written statement prior to 1987. Yet Mr. 
McCleskey demonstrated to the District Court during the July, 
1987 hearing that Mr. McCleskey's trial and habeas attorneys

22 The State in its brief faulted Mr. Stroup for not 
speaking directly with Detectives Harris and Dorsey. Even were 
an attorney normally required to interview every police officer 
in a case to overcome a finding of "inexcusable neglect" —  
something the law uniformly rejects -- it was plainly 
demonstrated during the July and August, 1987 hearings that, had 
Stroup contacted these detectives, they would not have given him 
evidence that would have led to disclosure of the Massiah 
violation. Both repeatedly disclaimed all knowledge of the 
violation, even under oath.

51



repeatedly sought all such statements, but were denied access to 
them, and were even misled by State actors, perhaps 
inadvertently, about their existence. The Superior Court's 
observation during McCleskey's trial, for example, that "I don't 
know that we are talking about any written statement" obviously 
leads a reasonable counsel away from, not toward, the conclusion 
that some written statement existed.23

Most inexplicable of all, if there was in truth "no valid 
reason why Petitioner could not have obtained this statement 
earlier," why was it not produced? Why did the State repeatedly 
refuse to turn over Evans's statement, in response to (i) John 
Turner's pretrial motions,, (ii) Turner's oral request in mid­
trial, (iii) Turner's demand on direct appeal, (iv) Robert 
Stroup's sweeping request of Russell Parker during state habeas 
corpus proceedings, or (v) questioning of Parker and Evans during 
state habeas proceedings?

The question answers itself: the State sought for a decade 
to hide the existence of the statement and avoid its production 
to defense counsel. The record fully justifies the District 
Court's conclusion "that petitioner's counsel's failure to 
discover Evans' written statement was not inexcusable neglect." 
(R3-22-25, citing R4- 118-119).

23 The trial court's follow-up remark that "[t]his is not 
a statement of the defendant," was doubly misleading. Although 
the remark was literally true —  in retrospect, the court 
apparently was referring to the typewritten statement by Offie 
Evans, which was not a direct statement by McCleskey —  Evans's 
statement in fact contained Evans's account of numerous verbatim 
exchanges with, and purported admissions by, Mr. McCleskey.

52



II.
THE DISTRICT COURT PROPERLY FOUND THAT ATLANTA 
POLICE MISCONDUCT VIOLATED WARREN McCLESKEY'S SIXTH 
AMENDMENT RIGHTS UNDER MASSIAH v. UNITED STATES

Warden Zant contends both that the District Court erred in 
its factfindings on Massiah and that it applied an incorrect 
legal standard. Examination of the District Court's order 
reveals no error.

A. The District Court's Factual Findings Were Not Clearly 
Erroneous Under Rule 52_______________________________

As noted above, the District Court decided this case after a 
meticulous weighing of the evidence. The court first heard 
testimony from witnesses on July 8 and 9, 1987, and then allowed 
Warden Zant over a month to assemble additional evidence for an 
August 10, 1987 rebuttal hearing. (R5-163-165).

At the conclusion of Zant's rebuttal, the District Court 
invited the parties to submit briefs on the logic and import of 
the testimony presented to the court. (R6-120-121). Only after 
carefully considering the parties' alternative views of the 
evidence did the court reject Warden Zant's contentions, finding 
Mr. McCleskey's view of the facts was the more plausible.

The key factual issue, the District Court concluded, was 
whether or not some state agent had arranged to move Evans to the 
cell adjoining McCleskey's in an effort to obtain incriminating 
evidence, and whether some police office had recruited Evans to 
serve as the State's agent. (R3-22- 20-21). The court observed 
that there was some evidence in the record which might support

53



both sides of the issue, but "after carefully considering the
substance of [Ulysses] Worthy's testimony, his demeanor, and the
other relevant evidence in the case," the court concluded that
Atlanta police authorities had arranged for the move of Evans to
the cell adjacent to McCleskey. (R3-22-21).

The court weighed, but rejected, two alternative hypotheses
advanced by Zant, (R3-22-23), finding

that petitioner has established by a preponderance of 
the evidence the following sequence of events: Evans
was not originally in the cell adjoining McCleskey's; 
prior to July 9, 1978 he was moved, pursuant to a
request approved by Worthy, to the adjoining cell for 
the purpose of gathering incriminating information;
Evans was probably coached in how to approach McCleskey 
and given critical facts unknown to the general 
public; Evans engaged McCleskey in conversation and 
eavesdropped on McCleskey's conversations with DuPree; 
and Evans reported what he had heard between July 9 and 
July 23, 1978 to Assistant District Attorney Parker on 
July 12.

(R3-22-23). Zant now contends that the District Court's finding 
that Evans was moved is clearly erroneous. (Resp. Br. 70-71).

The evidence before the District Court has been summarized 
in our Statement of Facts at pages 14-29 supra. On this record, 
Zant simply does not meet his heavy burden of showing clear error 
under Rule 52. The Supreme Court's decision in Anderson v. City 
of Bessemer City. 470 U.S. 564, 574 (1985), states the applicable 
rule:

If the district court's account of the evidence is 
plausible in light of the record viewed in its 
entirety, the court of appeals may not reverse it even 
though convinced that had it been sitting as the trier 
of fact, it would have weighed the evidence 
differently. Where there are two permissible views of 
the evidence, the fact-finder's choice between them 
cannot be clearly erroneous. United States v. Yellow

54



Cab Co.. 338 U.S. 338, 342, 70 S.Ct. 177, 179, 94 L.Ed.
150 (1949).... This is so even when the district
court's findings do not rest on credibility 
determinations, but are based instead on physical or 
documentary evidence or inferences from other facts. .
. . When findings are based on determinations
regarding the credibility of witnesses, Rule 52(a) 
demands even greater deference to the trial court's 
findings? for only the trial judge can be aware of the 
variations in demeanor and tone of voice that bear so 
heavily on the listener's understanding of and belief 
in what is said.
Here, the District Court did make factual findings based 

upon its assessment of the credibility of the witnesses appearing 
before it —  primarily Captain Worthy of the Fulton County 
Sheriff's Department and detective Dorsey of the Atlanta Bureau 
of Police Services —  and upon the documentary evidence 
introduced. On that basis, the court made a choice among the 
alternate theories of the evidence. The court credited the 
testimony of Captain Worthy, that an "officer on the case" had 
directed Worthy to move Of fie Evans to the cell adjacent to Mr. 
McCleskey's. Where Detective Dorsey's testimony was in conflict, 
the District Court rejected Dorsey's testimony, concluding that 
Dorsey had "an obvious interest" in concealing his arrangement 
with Evans. (R3-22-22). By contrast, Worthy "had no apparent
i-ntssTsst or tlici.t wcnXci. 0X]p3-cii.n sny conscious cl0cs]ptcicn* **

This is precisely the sort of credibility choice that the 
Supreme Court has held cannot be clearly erroneous.

The District Court's determination to believe Worthy and to 
reject the testimony of Dorsey, moreover, is supported by far 
more than its assessment of the demeanor of these witnesses. The 
District Court's confidence in Worthy's unrehearsed testimony of

55



July 9 is buttressed by the remarkable consistency of that 
testimony with other important items of evidence before the 
court.

(1) In his July 9, 1987, testimony, Worthy singled out 
Sidney Dorsey as one of the officers who had met with Offie 
Evans. (R5-148). This identification meshed perfectly with 
Evans's own account, during his 1981 state habeas testimony, of 
an initial meeting between himself and Detective Dorsey, in the 
Fulton County Jail, prior to Evans' first meeting with prosecutor 
Parker.

(2) Worthy's testimony that Evans had been recruited as an
informant by Detective Dorsey or another Atlanta officer was
consistent with evidence that Evans had in fact served as an
informant in the past, not only for federal agents, but
specifically for Sidney Dorsey as well. (R5-52, 53 ; R6-81, 82) .

(3) The only police officer who Worthy recalled by name was
Sidney Dorsey. This recollection is consistent with Dorsey's
testimony that he alone, among Atlanta police officers assigned 
to the Schlatt case, had previously known Evans and used him as 
an informant. (R5-49, 53).

(4) Worthy's July 9th account of an initial meeting with 
Evans, followed by a move of Evans to the cell adjacent to 
McCleskey, explains an apparently oddity in Evans' 21-page 
written statement. Although that statement recites that Evans 
has been in a cell next to Mr. McCleskey "since July 3, 1978" —  
the day Evans was first taken into custody —  it is absolutely

56



silent concerning any contacts with McCleskey prior to July 8. 
Only on July 9th, as the statement indicates, did Evans first 
introduce himself to McCleskey. This five-day period of silence 
by the voluble Mr. Evans seems highly implausible; it is fully 
explained, however, if Evans was not moved until several days 
after his initial incarceration —  just as Ulysses Worthy 
recalled in his federal testimony.24

There are substantial grounds, moreover, for the District 
Court's rejection of Detective Dorsey's contrary testimony—  
apart from Dorsey's demeanor. It defies common sense to believe 
that Detective Dorsey, who had been assigned to investigate the 
shooting death of a fellow officer, who had a prior informant 
relationship with Offie Evans (R5-53), and who had relied on that 
relationship in other cases (R5- 49-53), would not remember 
speaking to his special informant —  whom he knew to be in Fulton 
County Jail and who ultimately provided the critical testimony 
that pinned the death of Officer Schlatt squarely on Warren 
McCleskey.

Offie Evans himself unwittingly undercut Dorsey's story in 
1981, when he testified during state habeas proceedings that he

As to the State's heavy reliance upon inconsistencies 
between Worthy's initial testimony on July 9 and his subsequent 
statements on August 10, 1987, the court noted the likely 
motivation for Worthy's change in certain portions of his 
testimony —  in the interim, he had seen newspaper accounts 
detailing the legal significance of his testimony and he had been 
twice interviewed by the Attorney General. The District Court 
cannot, as a principle of law, be faulted for finding more 
reliable Worthy's initial testimony, which was untainted by these intervening influences.

57



had met with Dorsey, to discuss the Schlatt case, prior to his
later meeting with Russell Parker. At this initial meeting, 
Evans revealed that Dorsey had promised to "speak a word for him" 
with federal officers investigating the pending criminal charges 
against Evans. When confronted with this testimony, Dorsey's 
only response was to deny the meeting and accuse Evans of lying. 
(R6-87).

On this record, the court's findings, which accept Worthy's 
unrehearsed testimony of July 9 and reject Dorsey's denials, are 
unimpeachable.

Warden Zant's has also argued that the District Court's 
entire opinion rests only upon the testimony of Ulysses Worthy. 
(Resp. Br. 43) . As we have shown, the charge simply isn't so. 
The District Court carefully drew upon documentary evidence, 
looking not only to Of fie Evans's 1981 testimony but to his 21- 
page typewritten statement to Atlanta authorities. That 
statement, as we have shown, provides strong internal support for 
the conclusion that Evans was acting as an agent of the Atlanta 
police. In it, Offie Evans brags about the deception through 
which he gradually gained the trust of Mr. McCleskey. As the 
District Court found:

Evans repeatedly lied to McCleskey, telling him that 
McCleskey's co-defendant, Ben Wright, was Evans' 
nephew; that Evans' name was Charles; that Ben had told 
Evans about McCleskey; that Evans had seen Ben 
recently; that Ben was accusing McCleskey of falsely 
identifying Ben as the "trigger man" in the robbery; 
that Evans "used to stick up with Ben, too;" that Ben 
told Evans that McCleskey shot Officer Schlatt; and 
that Evans was supposed to have been in on the robbery himself.

58



(R3-22-20). 25
Adopting another tack, Zant stresses that the State's 

witnesses testified "consistently" that Evans was not moved, and 
that they had no knowledge that Evans was an informant when 
placed in the cell. (Resp. Br. 60). Yet the District Court's 
decision, after carefully considering the opportunity each 
witness had to know the relevant events, properly discounted 
their ignorance of the unconstitutional arrangement. (R3-22-22). 
For example, the District Court did not reject prosecutor Russell 
Parker's testimony; it found instead that Parker had no reason to 
know about the move, making his testimony on the point 
irrelevant. (R3-22-22).

Fulton County Deputy Carter Hamilton's testimony was 
assessed in a similar light. Because Hamilton's knowledge was 
limited to persons and events on the first floor of the jail 
(R6-72, 76), he had no basis to know whether Offie Evans had been 
initially housed in another part of the jail. (R4-177; R6-74,

25 Zant contends that the finding that Evans was "given 
critical facts unknown to the general public" was clearly 
erroneous. The District Court's conclusion is, however, a proper 
inference from the facts before the court, most notably, that 
Evans knew and asserted to McCleskey that he and his co­
defendants had been telling Atlanta police that Ben Wright was the triggerman.

Even were the foundation for this inference more shaky, it 
is not critical to the court's ultimate decision. The State does 
not contest the court's finding that Evans was probably coached 
in how to approach McCleskey; whether or not he was at the same 
time given information not generally known to the public is 
surplusage. That coaching itself is strong evidence of police 
involvement in Evans' interrogation of McCleskey.

59



75). Hamilton's lack of knowledge proves nothing about whether a 
secret deal was made; it only proves he was not a party to it.

The denials of other Atlanta police officers, save Dorsey, 
are similarly irrelevant. Dorsey testified that he had not 
shared a word of his informant relationship with other Atlanta 
police officers; it was a one-on-one relationship. (R5-49, 53) . 
As a result, other police officers simply had no knowledge of the 
arrangement.2 6

The unanimous testimony by State's witnesses that they had 
no knowledge of a move is, on close scrutiny, unsurprising and 
beside the point. Zant cannot disprove the secret deal between 
Offie Evans and Detective Dorsey by proffering a series of 
witnesses who were not privy to it. Warden Zant's "numbers game" 
is a fallacious one, and the District Court's carefully 
considered factfindings are not clearly erroneous.

B. The District Court's Applied The Proper Legal 
Standards To The Facts

Warden Zant's alternative argument is that the District 
Court's judgment is "incorrect legally as well as factually," 26

26 Detective Welcome Harris' testimony presents one point 
of conflict with the other evidence. Office Evans testified in 
1981 that he met with both Detective Harris and Detective Dorsey 
prior to meeting with Russell Parker, and that it was on this 
occasion that Dorsey said he would put in a good word for Evans 
on his federal escape charge. (Fed. Ex. 16, at 119-22.) Whether 
Harris as well as Dorsey was lying about this meeting is 
irrelevant to Mr. McCleskey's constitutional claim. If Harris 
was not present at the initial meeting between Dorsey and Evans, 
this is at most a minor failure of recollection on Evans' part; 
if Harris was present and declined to recall that fact, it 
indicates simply a cover-up by two police officers rather than 
one.

60



since "there is no evidence of any bargain for the assistance of
Mr. Evans and no evidence of an agreement." (Resp. Br. 71).
Zant's contention rests on the premise that a Massiah violation
requires a showing of "consideration" as a necessary element in
proving an agency relationship.

There is simply no basis in law for such an assertion.27 As
his only authority, Zant points to this Circuit's decision in
Liqhtbourne v. Dugger. 829 F.2d 1012 (11th Cir. 1987), which, he
contends, "actually implies" this requirement. (Resp. Br. 42) .
Liqhtbourne implies no such thing.

Liqhtbourne does cite with approval the Florida Supreme
Court's characterization of the requisites of a Massiah claim:

Without some promise or guarantee of compensation, some 
overt scheme in which the state took part, or some 
other evidence of prearrangement aimed at discovering 
incriminating information we are unwilling to elevate 
the state's actions in this case to an agency 
relationship with the informant Chavers.

829 F.2d at 1019 (emphasis added). This list of disjunctive
criteria stands for nothing more than the proposition that one or
another of several possible indices of agency —  a promise of
compensation, an overt scheme, or evidence of prearrangement—
must be shown. It holds consideration to be sufficient proof of
agency, but not necessary proof.

Liqhtbourne aside, a review of Supreme Court precedent on
Massiah shows no requirement of a "bargain" as a part of a

27 It is, of course, black letter law that consideration 
is not required to establish an agency relationship. 
Restatement of the Law, 2d, Agency. 2nd § 16.

61



showing of an informant relationship. See United States v. Henry. 
447 U.S. 264 (1980); Maine v. Moulton. 474 U.S. 159 (1985). 
Massiah itself makes no mention whatsoever of consideration. 
While a number of the cases, such as Henry, did involve a paid 
agent, nothing in the cases indicates that agency can only be 
shown by proof of a payment to the informant.

Warden Zant's collateral argument, that there was no overt 
"agreement" between Offie Evans and Detective Dorsey, is likewise 
without merit. While it is, of course, necessary that an 
informant cooperate with the scheme, the District Court's 
findings in this case amply support that element. Indeed, Offie 
Evans' agreement to participate in Detective Dorsey's scheme is 
fully supported by the extraordinary series of lies he told to 
gain McCleskey's confidence, and the persistence of his 
questioning —  all starkly revealed in his 21-page statement to 
Atlanta authorities. Evans' agreement, in short, is manifest in 
his own typewritten account of his active participation in the 
enterprise.

The secret investigative techniques employed here are 
precisely what the Supreme Court has condemned as recently 
Kuhlmann v. Wilson. 477 U.S. 436 (1986). Offie Evans, as his own 
dramatic account demonstrates, "took some action, beyond merely 
listening, that was designed deliberately to elicit incriminating 
remarks." Kuhlmann v. Wilson, supra. 477 U.S. at 459. Detective 
Dorsey and Evans carried out a scheme ignored the "vast 
difference between placing an 'ear' in the suspect's cell and

62



placing a voice in the cell to encourage conversation for the 
'ear' to record." Id. at 461 (Burger, Ch.J., concurring). His 
relentless execution of Detective Dorsey's illegal plan of action 
plainly violated Warren McCleskey's Sixth Amendment rights.

III.
THE DISTRICT COURT CORRECTLY FOUND THAT
THE MASSIAH VIOLATION PROVEN IN MR. McCLESKEY'S
CASE WAS NOT HARMLESS BEYOND A REASONABLE DOUBT

Warden Zant also maintains that the Massiah violation, on 
this record, was harmless beyond a reasonable doubt.

The essence of Zant's argument is an appeal to "precedent:" 
because this Court previously found that a violation of Giglio v. 
United States —  in which Offie Evans was earlier implicated—  
was harmless error, the Massiah violation subsequently uncovered 
by Mr. McCleskey likewise must be harmless error.

The fallacy of this argument is plain. Testimony tainted by 
a Massiah violation is excluded entirely from jury deliberation; 
a Giglio violation implicates nothing more than improper 
exclusion of impeachment evidence. The "materiality" analysis 
which this Court applied to Mr. McCleskey's Giglio violation is 
inapplicable to his Massiah claim.

Here, Massiah dictates consequences that are dramatically 
different from any consequences under Giglio. It is one thing 
for McCleskey's jury to learn of one additional motive Evans 
might have for testifying thar McCleskey had admitted shooting 
Officer Schlatt —  that a detective would "speak a word for him."

63



It is quite another thing for the jury never to have heard 
Evans's testimony at all. This distinction alone undermines 
Warden Zant's argument.

Moreover, in analyzing the "harmlessness" of Mr. 
McCleskey's Giqlio violation, this Court focused upon the 
independent impeachment evidence available to the jury, and upon 
the independent circumstantial evidence of guilt.28 This 
Court's explicitly cited United States v. Anderson. 574 F.2d 
1347 (5th Cir. 1978), which discusses the materiality standard 
applicable to a Giqlio claim.

An intervening Supreme Court case, however, illustrates that 
a "materiality" analysis is not an appropriate inquiry as part of 
assessing the harmlessness of a Sixth Amendment Massiah claim.
In Satterwhite v. Texas. ___ U.S. __, 100 L.Ed.2d 284 (1988),
the Supreme Court reversed a lower court's finding of harmless 
error in the context of a Sixth Amendment violation. The Supreme 
Court held that it was not harmless error for a jury to have 
heard the testimony of a psychologist who interviewed the

28 This Court's prior decision only considered the 
materiality of the additional impeachment evidence:

Thus, although Evans' testimony might well be 
regarded as important in certain respects, 
the corroboration of that testimony was such 
that the revelation of the Giqlio promise 
would not reasonably affect the jury's 
assessment of his credibility and therefore 
would have had no effect on the jury's 
decision.

64



defendant in violation of a defendant's Sixth Amendment right to 
counsel.

The Court rejected a focus upon the independent evidence of 
impeachment and guilt which are a part of the Giglio 
"materiality" analysis, and instead followed Chapman v. 
California. 386 U.S. 18 (1967), reasoning that the relevant
inquiry is not

whether the legally admitted evidence was such that the 
minds of an average jury would have found the State's 
case [on future dangerousness] sufficient . . . even if 
Dr. Grigson's testimony had not been admitted, 
[citation omitted] The question . . .  is not whether 
the legally admitted evidence was sufficient to
support the death sentence. we assume it was. but
rather. whether the State has proved "bevond a
reasonable doubt that the error complained of did not
contribute to the verdict obtained."Chapman. 386 U.S.
at 24, 87 S.Ct. at 828 (emphasis added).

100 L.Ed.2d at 295.
The Satterwhite Court noted a wealth of other, legally- 

admitted evidence that supported the State's verdict in that 
case:

The evidence introduced at sentencing showed that, in 
addition to his conviction in this case, Satterwhite 
had four prior convictions of crime ranging from 
aggravated assault to armed robbery. Eight police 
officers testified that Satterwhite's reputation for 
being a peaceful and law abiding citizen was bad, and 
Satterwhite's mother's former husband testified that 
Satterwhite once shot him during an argument. The 
State also introduced the testimony of Bexar County 
psychologist Betty Lou Schroeder. Dr. Schroeder 
testified that she found Satterwhite to be a "cunning 
individual" and a "user of people," with an inability 
to feel empathy or guilt. She testified that in her 
opinion, Satterwhite would be a continuing threat to 
society through acts of criminal violence.

Id.. 295-296.

65



Despite this powerful cumulative evidence of the defendant's
violent character, the Supreme Court held that, because Dr.
Grigson was the last witness, because Grigson was the only
licensed physician to testify, and because the district attorney
relied upon his testimony and conclusions in closing argument, it
was impossible to say beyond a reasonable doubt that his
testimony did not influence the jury. Id. at 296.

As with the witness in Satterwhite. Evans's testimony at
Mr. McCleskey's trial made certain unique contributions to the
State's case. Evans was one of the last of the State's
witnesses, and, unlike co-defendant Ben Wright, he had no
apparent motive to lie. The prosecutor used Evans' testimony as
the final element in his "malice" argument to the jury:

... and just like Offie Evans says, it doesn't make any 
difference if there had been a dozen policemen come in 
there, he was going to shoot his way out. He didn't 
have to do that, he could have run out the side 
entrance, he could have given up, he could have 
concealed himself like he said he tried to do under one 
of the couches and just hid there. He could have done 
that and let them find him, here I am, peekaboo. He 
deliberately killed that officer on purpose. I can 
guess what his purpose was, I am sure you can guess 
what it was, too. He is going to be a big man and kill 
a police officer and get away with it. That is malice.

(Tr. T. 974-975).
This Circuit has recently applied a Satterwhite/Chapman

analysis to a Sixth Amendment Massiah violation in Brown v .
Dugger, 831 F.2d 1547 (11th Cir. 1987). As the Court noted
therein, the applicable harmless error standard

presumes prejudice, and places the burden on 
respondent to prove beyond a reasonable doubt that the 
errors did not contribute to the verdict. [citations

66



omitted] If there remains a possibility that the 
constitutionally-proscribed evidence impacted on the 
ultimate decisional process of the jury, if the 
beneficiary of the error cannot refute that possibility 
beyond all reasonable doubt, constitutional errors can 
never be deemed harmless.

831 F.2d at 1554.
Thus, in Mr. McCleskey's case, the proper harmless error 

analysis looks less to the adequacy of the independent evidence 
which was a part of the State's case than to whether it can be 
said, beyond a reasonable doubt, that Evans' testimony itself did 
not contribute to the jury's verdict.

Even if the appropriate analysis called for a weighing of 
the State's independent evidence on the murder charge, because of 
the very flimsiness of that other evidence —  (i) the 
inconclusive testimony of Ben Wright's girlfriend about who was 
carrying the murder weapon and (ii) the inherently compromised 
testimony of co-defendant Ben Wright —  it cannot be said that 
the State has met its burden, beyond a reasonable doubt, of 
showing that Offie Evans' testimony was harmless.

67



IV.

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION 
IN DENYING WARDEN ZANT'S RULE 60(b) MOTION FOR 
RELIEF FROM JUDGMENT

Warden Zant's last-ditch defense is his argument under Rule 
60(b) that the District Court abused its discretion by denying 
his motion to alter or amend the judgment. When the District 
Court's factual findings are properly considered, no abuse of 
discretion can be found.

A. Zant Failed To Show The Evidence Is "Newly Discovered11
The District Court found that Offie Evans' testimony, the 

evidence which Zant seeks to present, is not newly discovered. 
(RlSupp-40-5.) Zant concedes that the District Court is correct, 
according to the "traditional definition." (Resp. Br. 85). Under 
the law of this Circuit, no further inquiry need be made. 
Scutieri v. Paige. 808 F.2d 785 (11th Cir. 1987).

B. Zant Failed To Exercise "Due Diligence11
Zant has no better response to the District Court's finding 

that he "did not make any efforts to track down Offie Evans 
during the summer of 1987." (RISupp.-40-7). Warden Zant's only 
excuse is to claim that he relied on the efforts made by Mr. 
McCleskey and his counsel to locate Evans in June and early July 
of 1987. If anything, however, those efforts demonstrated that 
Offie Evans had been in the Atlanta area and had been in direct 
contact with two of his sisters (whose addresses and telephone 
numbers were provided to Zant by McCleskey) . If Zant truly had

68



wanted to present Offie Evans's testimony in 1987, why didn't he 
take a single step —  even a telephone call —  to attempt to 
contact him?

The District Court granted Zant a month between the July and 
August federal hearings precisely for such a purpose —  to give 
Zant time to locate all those witnesses whose testimony Zant 
believed critical to his case. According to his own admission, 
Zant did absolutely nothing in that month to determine whether 
Evans might be available for the August hearing.

Zant now tries to deflect attention from his own failure by 
pointing out the resources made available to Mr. McCleskey by 
the District Court. Zant fails to clarify for this Court, 
however, that those resources were made available for a single 
day only, while counsel for Mr. McCleskey were on trial. (Rl-13- 
1) . Zant, by contrast, had nearly a month not only to look 
himself, but to mobilize the investigative and law enforcement 
resources of Fulton County and the State of Georgia, including 
Russell Parker and Detective Dorsey —  both of whom had "special 
relationships" with Offie Evans.

The chief reason Warden Zant didn't find Offie Evans, we 
submit, is that he never looked. His strategy in 1987 plainly 
did not include the use of Of fie Evans' testimony. Only after 
his initial strategy failed did Zant seize upon Rule 60(b). That 
rule however, does not exist merely to give unsuccessful 
litigants a second try. It should be available only to those who 
meet its stringent conditions. Zant has met none of them.

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c. There Is No Likelihood That The Proffered 
Evidence Would Produce A Different Result
The most fundamental flaw in Zant's Rule 60(b) motion, is

not his lack of diligence but the manifest untrustworthiness of
Offie Evans's testimony. Evans's lack of credibility is clearly
revealed in his deposition, proffered by Zant in support of his
Rule 60(b) motion. After reviewing that deposition, the
District Court correctly found that

[t]he credibility or believability problems with his 
testimony are evident. He has a strong motivation for 
saying he was not an informant, not only because of 
recriminations from his associates, but also in order 
to stay in favor with the police and prosecutors who 
have used him to testify in the past. The numerous 
contradictions within his deposition also lead the 
court to the conclusion that his testimony would not be 
believable. See Petitioner's Brief in Response to 
Respondent's Supplement to Rule 60(b) Motion.2y
... Therefore, Evans' testimony is not likely to change 
the credibility of Worthy's testimony or the fact that 
petitioner showed by a preponderance of the evidence 
that a Massiah violation had occurred.

(RISupp.-40-9). This Court should not disturb that finding.
The District Court likewise ruled that Warden Zant had shown 

no exceptional circumstances outside those discussed in the Rule

Evans' 1988 deposition testimony showed at least 15 
substantial inconsistencies between statements therein and either 
other statements in the same deposition, earlier statements of 
Evans, or statement of the other witnesses at this habeas 
proceeding. (Supp.R. 1-38-8 through 14) That deposition 
testimony also showed Evans in at least four other miscellaneous 
lies (Supp.R.1-38-14 through 16), and a remarkable ability to 
recall what it was convenient to recall, but not recall other 
substantial details. (Supp.R.1-38-16 through 17) A review of 
that testimony makes evident that Evans is unable to distinguish 
truth from fiction.

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60(b)(2) motion that would justify relief under Rule 60(b)(6). 
No other finding could have been justified on the factual record 
presented by Zant. Had Offie Evans been a credible witness with 
a convincing explanation of all the contrary evidence, perhaps 
the District Court might have exercised its discretion to hear 
him. As it was, he is a well-worn and all-too-predictable 
quantity, eager to mitigate the new criminal charges he faced in 
1988 by, once again, telling the police or prosecutors anything 
they wanted to hear.

Evans had already told his story three different ways—  
first to Russell Parker in August of 1978; then later, during Mr. 
McCleskey's trial; still later, during state habeas corpus 
proceedings. By the time he tried out a fourth version of the 
facts during his 1988 deposition, Evans found himself caught in a 
mesh of lies and contradictions.

The District Court's order denying Rule 60(b) relief is 
fully warranted on this record.

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CONCLUSION
For all of the reasons set forth above, the judgment of the 

District Court should be affirmed on both appeals.

Dated: June 26, 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-APPELLEE 
WARREN MCCLESKEY

BY:

«

72



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 Brief
for Petitioner-Appellee on respondent-appellant Walter D. Zant by
placing copies in the United States mail, first class mail,
postage prepaid, addressed as follows:

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

All parties required to be served have been served. Done 
this __ day of June, 1989.

John Charles Boger

73