McCleskey v. Zant Brief for Petitioner-Appellee
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June 26, 1989

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Brief Collection, LDF Court Filings. McCleskey v. Zant Brief for Petitioner-Appellee, 1989. bef01e66-bc9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/53144d57-0534-4db0-85c5-ea255bc3a9d6/mccleskey-v-zant-brief-for-petitioner-appellee. Accessed April 22, 2025.
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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. 69 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. 70 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. 71 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