11th Circuit, Nos. 88-8085 + 89-8085 - Drafts/Copies

    Case 1&5: Mc Clesk iv (0311-013) : Ba che ro urd : [Hh Cir. Nos. 87-50KS+ E9505 = Draddr We 

   



  

? Nas, 

: IN THE UNITED STATES COURT OF APPEALS 

; FOR THE ELEVENTH CIRCUIT 

  

NOS. 88-8085 
89-8085 

  

WARREN MCCLESKEY, 

Petitioner/Appellee, 
Cross-Appellant, 

V. 

WALTER ZANT, WARDEN, — 

Respondent/Appellant, 
Cross-Appellee. 

  

ON APPEAL FROM 
THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF GEORGIA 
ATLANTA DIVISION 

  

BRIEF FOR RESPONDENT-APPELLANT 

  

HABEAS CORPUS 

  

MICHAEL J. BOWERS 
Attorney General 

H. PERRY MICHAEL 

Executive Assistant 

Attorney General 

WILLIAM B. HILL, JR. 

Deputy 
Attorney General 

SUSAN V. BOLEYN 

Please serve: Senior Assistant 

Attorney General 

MARY BETH WESTMORELAND 

132 State Judicial Bldg. MARY BETH WESTMORELAND 

40 Capitol Square, S.W. Senior Assistant 

Atlanta, Georgia 30334 Attorney General 

(404) 656-3349 

 



  

CERTIFICATE OF INTERESTED PERSONS 
  

The following persons have an interest in the outcome 

of this case as designated in the Rules of this Court: 

Warren McCleskey, Petitioner/Appellee; 

Honorable J. Owen Forrester, United 

States District Judge; 

Robert H. Stroup, Counsel for 

Petitioner/Appellee; 

John Charles Boger, Counsel for 

Petitioner/Appellee; 

Mary Beth Westmoreland, Senior 

Assistant Attorney General, Counsel for 

Respondent/Appellant; 

Frank Schlatt, Victim (deceased); 

Ronald Warren Dukes, Victim; 

George A. Malcolm, Victim. 

£ { 

 



  

STATEMENT REGARDING ORAL ARGUMENT 
  

Respondent specifically requests oral argument in this 

case due to the nature of the issues raised and due to the 

fact that the death sentence was imposed and was 

subsequently reversed by the district court. 

J | 

 



  

TABLE OF CONTENTS 
  

CERTIFICATE OF INTERESTED PERSONS. evo vee ivinis 

STATEMENT REGARDING ORAL ARGUMENT NEI Ra Re 

STATEMENT OF JURISDICTION. .. x ise denies vanaos 

STATEMENT OF THE ISSUERS. . ios vv cs voioic on ois cnn Jun 

ET ATEMENT OF THE CASE, venti vt toe ut es 

(i) Course of Proceedings... ..... ov. uti 

(il) Statement Of Pacts. iu. dove viv iiviisy, 

(iii)Statement of the Standard of Review... 

SUMMARY OF THE ARGUMENT. ec. \s cis cv ets vnannsiins 

I. THE DISTRICT COURT ABUSED ITS 
DISCRETION IN FAILING TO DISMISS THE 
MASSIAH ALLEGATION AS AN ABUSE OF THE 
WRIT AS THE PETITIONER SPECIFICALLY 
ABANDONED THIS CLAIM PRIOR TO HIS FIRST 
FEDERAL HABEAS CORPUS PETITION........ 

II. THE DISTRICT COURT ERRED IN FINDING A 
VIOLATION OF MASSIAH V. UNITED STATES 
AND THE FINDING BY THE DISTRICT COURT 
TO THIS EFFECT IS CLEARLY ERRONEOUS IN 
LIGHT OF THE OVERWHELMING EVIDENCE TO 
THE CONTRARY... ois cteleie vs tags ssdnnnis 

  

III. ANY ALLEGED MASSIAH VIOLATION WAS 
CLEARLY HARMLESS BEYOND A REASONABLE 
DOUBT viele estes vii edn By res Cds arnid  V% 

IV. THE DISTRICT COURT ABUSED ITS 
DISCRETION IN DENYING RESPONDENT'S 
MOTION FOR RELIEF FROM 
JUDGMENT. + wien veils tome sa nsinaie ies anion o 

viii 

13 

15 

15 

37 

73 

79 

 



PAGE (S) 

  

CONCLUSION . det vss ise ses ed Tei aa 9) 

AC OTE 93 

 



  

TABLE OF AUTHORITIES 
  

CASES CITED: 
  

Adams v. Dugger, 816 F.2d 1493 (11th Cir. 
  

Amadeo v. Zant, U.S. 108. 8.Ct., 
  

1773 KAOBBY vvsivce oc cay ss tna a vat resis ees eh 

Anderson v. Bessemer City, 470 U.S. 
  

Antone v. Dugger, 465 U.S. 200 
  

Brown v. Dugger, 831 F.2d 1547 (11th Cir.   

Darden v. Dugger, 825 F.28 287 (11th Cir.   

Demps v. Dugger, F.24 , No. 87-3767 

{1lth Cir. March 28, 
  

Engle v. Isaac, 456 U.S.   

Fleming v. Kemp, 794 F.2d 1478 (11th Cir. 
  

Giglio v. United States, 405 U.S. 
  

Griffin v. Swim-Tech Corp., 722 F.2d 677 

{11th Cir. 
  

  
Klapprott v. United States, 335 U.S. 601 (1949)... 

Kuhlmann v. Wilson, 106 S.Ct. 

ELLE SER Le aR eh RS CV a 
  

829 F.24 1012 
13 3 WO Sa NE og RN PE PRET 

Lightbourne v. Dugger, 
{llth Cir. 

  

Liljeberg v. Health Services Acquisition Corp     

1987)... 

564 (1985), . 

1987)... 

1987). 

1989) cscs initio te rai sat 

107 (1982), i: ct civ veninme 

1986)... 

150 £1972), 4.40 

1984). sh tite tse ase ales 

2616 
e eo 0 oo oo 

eo oo oo oo 

:s./     

  

U.S. 7-108 S.Ct, 2194 (1988)....... 

Maine v. Moulton, 1.8. , "106 S.Ct. 477 
5 ELS En SGI Re © Tn SA RY IR 

Massiah v. United States, 377 U.S. 201 (1964)   

* oo eo oo 

® 0 eo oo 

PAGE(S) 

40 

passim 

89 

39 

passim 

 



CASES CITED: PAGE (S) 
  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

Mavs Vv. Balkcom, 631 F.28 48 (5th Cir. 1980)...... 16 

McCleskey v. Georgia, 449 U.S. 891 (1980)..ccce.n. 3 

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

(ON DANG) var ts Tier iin avn iia vse dar Bais vais GiB 94 

McCleskey v. Kemp, 481 U.S. =107-8.Ct.-:1756, 
reh. den., 107. S.Ct.-3199 (1YB7 cites econ insens 5 

McCleskey v. State, 245 Ga. 108, 263 S.E.2d 146 
Bho id BEE Se NERS a RR ee 0 CE 2,25 

McCleskey v. Zant, 580 F. Supp. 338 (M.D.Ga. 1984) 4 

Sanders v. United States, 373 U.S. 1 (1963).....5. 13 

Scutieri v, Paige, 808 P.28 785 {11th Cir. 1987).. 85, 86 

Shriner, In re, 735 F.28 1236 (11th Cir. 1984)..... 17 

Smith v. Murray, U.S. » 106 8.Ct. 2661 
COBB). vis vs vided oie os ry sr st vr ee a ae 34, 35 

Stephens v. Kemp, 721 F.2d 1300 (11th Cir. 19383).. 17 

Tucker v. Kemp, 818 F.2d:749 (llth Cir. 1987) ..... 17 

United States v. Bagley, 474 U.S. : 
105 8.0L, 337501085) ise ses tetris rue aie 6 

United States v, Henry, 447 U.S. 264 (1980)... cv... 38 

United States v. Morrison, 449 U.S. 361 (1981).... 73 

United States v. Taylor, 800 F.24 1012 

(10ED CAT, T9B7 evens suri Sn BR Ti 41 

United States v. United States Gypsum Co., 

B33. 0.8, 364 (1047) tii sivtn nies ctaerns vastness sen 42 

Witt v. Wainwright, 755 F.2d 1396 (llth Cir. 1985) 17 

Woodard v. Hutchins, 464 U.S. 377 (1984) .......... 16   

vi 

 



    
  

Statues Cited: PAGE (S) 

20 B.C. § 2253 sii Pet cE in se a Be ans viii 

2B UID. CoB 228. iui ene ire hea reds viii 

0.C.G.A B17=10=30(DY{(2) auc sits os as cde Se vn aa . 

2 O.CIG:A. 8 17-10-3000) BY. es ts iris sags ons 

vii 

 



  

STATEMENT OF JURISDICTION 
  

The jurisdiction of this Court is invoked pursuant to 

28 U.S.C. § 2253 insofar as this is appeal from the 

granting of habeas corpus relief under 28 U.S.C. § 2254. 

viii 

 



  

STATEMENT OF THE ISSUES 
  

Did the district court err in failing to find that the 

Petitioner had deliberately abandoned his claim of a 

Massiah violation and had thus abused the writ? 

Did the district court err in finding a Massiah 

violation and is the district court's finding to this 

effect clearly erroneous due to the overwhelming 

evidence presented that Offie Evans was not acting as 

an agent or informer of the state at the time the 

statements were made by the Petitioner? 

Is any alleged Massiah violation harmless beyond a 

reasonable doubt based upon the circumstances of this 

case? 

Did the district court abuse its discretion in denying 

the Respondent's motion for relief from judgment? 

 



  

STATEMENT OF THE CASE 
  

(1) Course of Proceedings. 

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

Georgia, returned a three count indictment against the 

Petitioner, Warren McCleskey, and his three coindictees, 

David Burney, Bernard Depree and Ben Wright, Jr., charging 

said individuals with the offense of murder and with two 

counts of armed robbery. The Petitioner was tried 

separately beginning on October 9, 1978, and was found 

guilty on all three counts. The jury imposed the death 

penalty after a separate sentencing proceeding on the 

murder charge, finding that: (1) the offense of murder 

was committed while the Petitioner was engaged in the 

commission of another capital felony and (2) the offense 

of murder was committed against a peace officer, 

corrections employee or fireman while engaged in the 

performance of his official duties. See 0.C.G.A § 

17-10-30(b) (2) and (b)(8). Consecutive life sentences 

were imposed on the two counts of armed robbery. 

The Petitioner then appealed his convictions and 

sentences to the Supreme Court of Georgia. The Supreme 

Court of Georgia affirmed the convictions and sentences. 

McCleskey v. State, 245 Ga. 108, 263 S.E.2d 146 (1980).   

The Petitioner subsequently filed a petition for a writ of 

 



  

certiorari to the Supreme Court of the United States 

asserting that the trial court improperly admitted 

evidence of other crimes, that the jury's discretion was 

not properly channelled and that there was a deliberate 

withholding of the confession to Offie Evans. Certiorari 

was denied by the Court. McCleskey v. Georgia, 449 U.S. 
  

891 (1980). 

On January 5, 1981, the Petitioner filed a petition 

for habeas corpus relief in the Superior Court of Butts 

County, Georgia as Case No. 4909. In the original 

petition the Petitioner raised numerous allegations 

including the alleged failure to disclose an "arrangement" 
  

with a police agent or informer (Offie Evans) ) and the 
  — 

alleged deliberate withholding of the statement made by 

  
the Petitioner to Evans{™ Petitioner subsequently filed Es 
  

amendment to that petition in which he challenged the 

  introduction into evidence of his statements to "an 
  

informer" land raised a challenge essentially to the 
    

sufficiency of the evidence. (Respondent's Exhibit No. 

3). A hearing was held by the court on January 30, 1980. 

By way of order dated April 8, 1981, the superior court 

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

4). The Supreme Court of Georgia denied the subsequent 

application for a certificate of probable cause to appeal 

on June 7, 1981. A subsequent petition for a writ of 

 



  

certiorari was denied by the Supreme Court of the United 

States on November 30, 1981. 

On December 30, 1981, the Petitioner filed a petition 

for habeas corpus relief in the United States District 

Court for the Northern District of Georgia. Among other 
  

  

allegegionsthe Petitioner asserted the failure to 

(aisciose an "understanding" with witness Evans. 

  

Evidentiary hearings were held before the district 

court in August, 1983, and in October, 1983. An order was 

entered on February 1, 1984, in which the court rejected 

all the issues raised in the petition except for the 

alleged undisclosed deal with witness Evans. The court 

directed that habeas corpus relief be granted as to that 

issue and ordered that the conviction and sentence for 

malice murder be set aside, but affirmed the convictions 

and sentences for armed robbery. McCleskey v. Zant, 580 
  

F. Supp. 338 (M.D.Ga. 1984). 

Both parties appealed the decision of the district 

court to the United States Court of Appeals for the 

Eleventh Circuit. On March 28, 1984, the Eleventh Circuit 

Court of Appeals directed that the case be heard initially 

by the court sitting en banc. On January 29, 1985, the en 

banc court issued an opinion which affirmed all 

convictions and sentences and considered the following 

issues: (1) Giglio claim relating to the testimony of 

 



  

Offie Evans; (2) ineffective asistance of counsel; (3) 

burden-shifting jury charge; (4) discrimination in the 

application of the death penalty; and (5) 

prosecution-prone jury. McCleskey v. Kemp, 753 F.2d 877 
  

(11th Cir. 1985) {en banc). 

The Petitioner then filed a petition for a writ of 

certiorari in the Supreme Court of the United States. In 

that petition, the Petitioner asserted that the death 

penalty was discriminatorily applied, that there was a 

violation of Giglio v. United States, 405 U.S. 150 (1972), 
  

based upon the testimony of Offie Evans, that the charge 

on intent was impermissibly burden-shifting and that the 

jury was impermissibly qualified as to capital 

punishment. (Respondent's Exhibit E). The Supreme Court 

of the United States subsequently granted the petition for 

a writ of certiorari limited to the consideration of the 

application of the death penalty. On April 22, 1987, the 

Court issued an opinion concluding that the Petitioner had 

not shown discrimination in the imposition of the death 

penalty as to his case and affirmed the decision of the 

Eleventh Circuit Court of Appeals. McCleskey v. Kemp, 481   

U.S. y -107:8.Ct. 1756, reh,. den., 107 S.Ct. 3199   

(1987). On or about May 16, 1987, Petitioner filed a 

petition for rehearing by that Court. In that petition, 

Petitioner reasserted his claim of ineffective assistance 

 



  

  

of counsel at the sentencing phase, reasserted his claim 

related to the charge on intent and reasserted his claim 

relating to a violation of Giglio v. United States, 
  

asserting that the decision in United States v. Bagley, 
  

474 U.8. __...,. 105:8,.Ct. 3375 (1985), justified the 

granting of the petition. (Respondent's Exhibit F). On 

June 8, 1987, that Court denied the petition for 

rehearing. 

On June 8, 1987, a successive state habeas corpus 

petition was filed in the Superior Court of Butts County, 

Georgia. That petition raised the following allegations: 

(1) the prosecutor discriminated in the use of peremptory 

strikes; (2) there was intentional discrimination in this 
  — 

case; (3) the state failed to disclose impeaching evidence) 

  

(the alleged "deal" with Offie Evans); K4) the trial court 

  

erred in denying funds for a ballistics expert; and (5) 

the prosecutor improperly referred to appellate review in 

his argument at the sentencing phase. (Respondent's 

Exhibit G). On June 18, 1987, Respondent filed a motion 

to dismiss asserting that the petition was successive. 

(Respondent's Exhibit H). 
      

On June 22, 1987, Petitioner filed an amendment to 

case number 87-V-1028 in Butts County. In that petition 

the Petitioner raised two allegations, that is, that Offie 

Evans was acting as an agent for the State at the time the 

  

 



  

Petitioner made statements to Evans and that the 

prosecutor failed to correct alleged misleading testimony 

by Evans. (Respondent's Exhibit I). 
  

A hearing was held before the Superior Court of Butts 

County, sitting in Henry County. (Respondent's Exhibit 

O). On July 1, 1987, the state habeas corpus court 

entered an order granting Respondent's motion to dismiss 

finding that the issues were either barred from 

reconsideration under the principles of res judicata or   

could reasonably have been raised in the previous 

petition. (Respondent's Exhibit P). 

On July 2, 1987, Petitioner filed an application for a 

certificate of probable cause to appeal in the Supreme 

Court of Georgia. (Respondent's Exhibit Q). On July 7, 

1987, the Supreme Court of Georgia denied the application. 

On July 7, 1987, Petitioner filed the instant federal 

habeas corpus petition in the United States District Court 

for the Northern District of Georgia. After hearings were 

held by the district court on July 8, 1987, July 9, 1987, 

and August 10, 1987, the district court entered an order 

on December 23, 1987, granting habeas corpus relief only 

as to Petitioner's murder conviction and sentence based 

upon the finding of a violation of Massiah v. United   

States, 377 U.S. 201 (1964), 

 



  

On April 12, 1988, the Respondent filed a motion for 

remand in this Court based upon the availability of Offie 

Gene Evans. By order dated May 2, 1988, and received by 

counsel on May 5, 1988, Respondent filed a motion to stay 

the briefing schedule pending the filing of a Rule 60(b) 

motion in the district court. On May 6, 1988, Respondent 

filed the Rule 60(b) motion in the district court. On May 

9, 1988, the briefing scheduled in this Court was stayed. 

Pursuant to the June 17, 1988, order of the district 

court, both parties conducted discovery including taking 
  a 

the deposition of Offie Evans on July 13, 1988. After 
  

additional pleadings were filed, the Court entered an 

order on January 10, 1989, denying the motion for relief 

from judgment. 

On February 23, 1989, this Court granted the 

Respondent's motion to consolidate the original appeal and 

the appeal from the denial of the motion for relief from 

judgment. 

(ii) Statement of Facts. 

The evidence presented at Petitioner's trial showed 

that on May 13, 1978, he and three coindictees committed a 

robbery at the Dixie Furniture Store in Atlanta, Georgia. 

During the course of the robbery, the Petitioner entered 

  

the front of the store while his three coindictees entered 
  

—— 

 



  

the back. Petitioner was positively identified at trial 

P————————— . - + 

as one of the participants in the robbery. (T. 231-232, 

242, 250). 

Following the arrest of the Petitioner, he was taken 

to Atlanta, Georgia. On May 31, 1978, the Petitioner made 

a confession to the police in which he admitted his 

participation in the robbery, but denied that he shot 

Atlanta Police Officer Frank Schlatt. A Jackson v. Denno   

hearing was held at trial and the court determined that 

the confession was freely, intelligently and voluntarily 

made. (T. 426-505). 

Petitioner's coindictee, Ben Wright, testified at 

trial and related the details of the robbery and murder. 

Ben Wright testified that while he carried a sawed-off 

shotgun, the Petitioner carried a .38 caliber 

nickel-plated, white-handled pistol. (T. 654-656, 

648-649). Wright testified that coindictee Burney had a 

blue steel, snub-nosed .32 caliber pistol, while Depree 

had a blue steel .25 caliber pistol. (T. 649-651). 

While Depree, Burney and Wright held several employees 

in the back of the store, the Petitioner was in front. 

Employee Classie Burnwell had activated a silent alarm, 

resulting in the arrival of Officer Frank Schlatt. 

Shortly after Schlatt entered the front of the store, he 

was shot. After hearing two shots, Wright observed the 

 



  

Petitioner running out of the front of the store. Wright, 

Depree and Burney ran out of the back. When they all 

arrived at the car, Petitioner stated that he had shot the 

police officer. (T. 658-9). 

Mr. Everett New and his wife were stopped in their 

automobile at a red light near the Dixie Furniture Store. 

They observed Officer Schlatt arrive at the scene, saw him 

draw his pistol and enter the store. (T. 330). Mr. New 

stated that approximately thirty seconds later he heard 

two shots and shortly thereafter observed a black man 

running out of the front door carrying a white-handled 

pistol; however, he could not identify that individual. 

(T. 331-333). 

Petitioner testified in his own behalf at trial and 

stated that he knew Ben Wright and the other coindictees, 

but that he had not participated in the robbery. He 

relied on an alibi defense, stating that Wright had 

borrowed his car and that the Petitioner had spent the day 

at his mother's house and at some apartments in Marietta 

playing cards. Petitioner named several people who had 

been present at the apartments, but did not present any of 

those persons for his defense. {T. 811). 

Petitioner denied that he made a statement to 

Lieutenant Perry that he had participated in the robbery 

and stated that he made a false statement to Detective 

-10- 

 



  

Jowers because of the alleged evidence the police had 

against him (two witnesses who had identified him, the 

description of his car and a statement from David Burney), 

because of his prior convictions and because he did not 

have a good alibi. (T. 823-4). 

Petitioner was also identified at trial by two 

witnesses who had observed him take part in a prior 

similar robbery. Mr. Paul David Ross, manager of the Red 

Dot Grocery Store, had identified the Petitioner 

previously from a set of colored photographs. Ross also 

testified that during the course of the Red Dot Robbery, 

his nickle-plated .38 revolver was taken. 

Ms. Dorothy Umberger also observed the Petitioner 

during the April 1, 1978, robbery of the Red Dot Grocery 

Store. She testified that she was ninety percent certain 

that the Petitioner was one of the men who had robbed 

her. She based her identification on viewing him at the 

scene of that crime. Ms. Umberger had also identified the 

Petitioner from a photographic display. 

In rebuttal to the defense case, the State presented 

the testimony of Arthur Keissling. This witness testified 

that he had observed the Petitioner participating in the 

robbery of Dot's Produce on March 28, 1978. His 

identification of the Petitioner was positive. (T. 

887-889, 896). 

-l)=~ 

 



  

The State also presented the testimony of Offie Gene h 

Evans in rebuttal. Mr. Evans had been incarcerated in 

Fulton County jail in a cell located near the Petitioner 

and Bernard Depree. Evans related that the Petitioner had 

  talked about the robbery while in custody and had ee 

shooting at Officer Schlatt. (T. 869-870). 

Further facts will be developed as necessary to 

examine the issues presented in the instant appeal. 

{113) Statement of the Standard of Review 

The issue concerning abuse of the writ is a question 

of abuse of discretion on the part of the district judge. 

The allegation of a Massiah violation is a mixed question 

of fact and law with the clearly erroneous standard to be 

applied to the factual findings by the district court and 

the remaining legal conclusions to be assessed 

independently by this Court. The issue of the denial of 

the motion for relief from judgment is a question of abuse 

of discretion by the district court. 

op Bo 

 



  

SUMMARY OF THE ARGUMENT 
  

The district court incorrectly reached the merits of 

the allegation of a violation of Massiah v. United States, 14 
    — 

and [abused its discretion Jin finding that this issue was | 

not an abuse of the writ. (Petitioner previously raised 

; he ak 
this issue in his first state habeas corpus pleading and 

deliberately abandoned the claim prior to the filing of 
Po 

    

  

  
be 

his first federal habeas corpus petition. The simple 

  
assertion of new taco! Goss not excuse a deliberate 

abandonment of a claiy, which had previously been asserted 
by 

the 

  
  | in the state court. Yocer these circumstances, 

Mo —— 
district court was incorrect in finding that there was no   H 

abuse of the writ as to this issue and the petition should   have been dismissed in its entirety. = 

The district court was also clearly erroneous in its hoard 

(ag eT BE 
district court was clearly LY 

  
  

  
factual findings. The 

erroneous in crediting one sentence of one witness" 

vn tl the testimony of all the other 

witnesses and all of the other evidence available from all 

of the other proceedings. A consideration of the evidence 

shows that there is overwhelming evidence that Offie Gene 
a. a . 

Evans was not an agent or informer of the state and was 

  

  

    
   

    

  
  

    
   
   

  

  

not placed in the cell next to the Petitioner to overhear 

  

he—district court erred as a 

    

conversations. 

<13- 

 



  

legal matter in finding that the basis for a Massiah 

violation had been shown under the facts of this case. 

Respondent submits that the district court was 

incorrect in finding that any alleged Massiah violation 

was not harmless. Given the facts of this case, any such 

error was harmless beyond a reasonable doubt as there was 

clearly overwhelming evidence of Respondent's guilt of the 

offense of murder. 

Finally, the district court abused its discretion in 
  

denying the motion for relief from tiSchsdeet re wid shown 
LL e————   

       

  

  

that Offie Evans was unavailable, in the sense that he 

could not be located, at the time of the original hearings 
  

in the distract court. It is also clear from the 
  

deposition of Mr. Evans that his testimony bears directly 

    
   

on the key issue of a purported Massiah violation and 

would definitely be material to a resolution of the merits 

\ of the issue. LE     

  

—-14- 

 



  

ARGUMENT AND CITATION OF AUTHORITY 
  

1. THE DISTRICT COURT ABUSED ITS 

DISCRETION IN FAILING TO DISMISS 

THE MASSITAH ALLEGATION AS AN ABUSE 

OF THE WRIT AS THE PETITIONER 

SPECIFICALLY ABANDONED THIS CLAIM 

PRIOR TO HIS FIRST FEDERAL HABEAS 

CORPUS PETITION. 

One allegation raised by the Petitioner in the 

district court was an assertion that the use at trial of 

Petitioner's statement made to Offie Gene Evans, an 

alleged jailhouse informant, violated his Sixth Amendment 

right to counsel as established in Massiah v. United   

States. Respondent submits that the district court abused 

its discretion in finding that this claim was not an abuse 

of the writ. 

The courts of this circuit and the Supreme Court of 

the United States have long fecounized that there are 

several bases for finding an abuse of the writ. If one 
  

ff "deliberately withholds . . . grounds for federal 

collateral relief at the time of filing his first 

application . . . he may be deemed to waive his rights to 

  
a hearing on the second application presenting the 

  

[witnhely ground." Sanders v. United States, 373 U.S. 1, 

-15- 

 



  

18 (1963). In addition, "The same may be true if 
  
  

_ the prisoner deliberately abandons one of his grounds at 
  

the first hearing." Id. These two examples are part of 

the basis for the holding in Sanders that "Nothing in the 

tradition of habeas corpus requires the federal courts to 

tolerate needless piecemeal litigation, or to entertain 

collateral proceedings whose only purpose is to vex, 

harass, or delay." 1d. The Supreme Court of the United 

States has reaffirmed this position noting, "Successive 

petitions for habeas corpus that raise claims deliberately 

withheld from prior petitions constitute an abuse of the 

writ." Woodard v. Hutchins, 464 U.S. 377 (1984). See   

also Antone v. Dugger, 465 U.S. 200, 206 (1984) (noting,   

"As applicant had presented each of these claims to the 

state court before the first petition for habeas was filed 

applicant hardly can contend that these claims were 

unknown to him at that time"). 

The courts of this circuit have also emphasized the 

possibility of a finding of an abuse of the writ when a 

petitioner deliberately withholds or abandons a ground for 

relief. "Thus, a petitioner who fails to include a claim 

of which he was aware in his first petition runs the risk 

of a denial of such claim in a second petition on the 

ground that he has abused the writ of habeas corpus.” 

Mays v. Balkcom, 631 F.28 48, 51 (5th Cir. 1980).   

-16~ 

 



  

Further, the burden is on a petitioner when the State 
————   

alleges abuse of the writ, as was done in this case, to 

rebut the State's contentions. Thus, the petitioner has 

the burden of proving by a preponderance of the evidence 

when a ground was not previously presented in a federal 

habeas corpus petition that "the failure to present the 

ground in the prior proceeding was neither the result of 

an intentional abandonment or withholding nor the product 

of inexcusable neglect." Witt v. Wainwright, 755 F.2d 
  

1396, 1397 (11th Cir. 1985); Adams v. Dugger, 816 F.24   

1493, 1494 (11th Cir. 1987); Stephens v. Kemp, 721 F.2d 
  

1300, 1303 (11th Cir. 1983); Tucker v. Kemp, 818 F.2d 749,   

  750 n. 1 (11th Cir. 1987); In re Shriner, 135 F.28 1236, 

1241 (11th Cir. 1984). Demps v. Dugger, F.2d + Ro.   

87-3767 (11th Cir. March 28, 1989). It is clear from the 

holdings of the Eleventh Circuit Court of Appeals that the 

burden is upon the petitioner and the petitioner "must 

demonstrate the failure to present the ground in the prior 

proceeding was neither the result of an intentional   

    abandonment or withholding nor the product of inexcusable 

neglect.” Fleming v. Kemp, 794 F.2d 1478, 1482 (11th Cir.   

1986) (emphasis added). 

Recently, the Eleventh Circuit Court of Appeals has 

addressed a case under abuse of the writ principles and 

found that a claim in the first petition had been 

-X7- 

 



  

withdrawn and abandoned. The court concluded that the 

burden was then upon the petitioner to rebut the assertion 

of abuse of the writ. This was founded upon the equitable 

nature of the proceedings for a writ of habeas corpus and 

noting that the court could dismiss a petition when it was 

found to be raising grounds which were available at the 

time of filing the prior petition but not relied upon. 

  Darden v. Dugger, 825 F.2d 287,293 (11th. Cir. 1987). In 

Darden, the petitioner had asserted that even if there had 

been abuse of the writ the court should consider the claim 

because it involved a claim of innocence. The pleventh 

Circuit specifically disagreed finding that the issue was 

abandoned. "Intentional abandonment of a claim is 

precisely the context that application of the concept of 

abuse of the writ is intendod to address." -14. at 294. 

The question raised in the instant case in relation to 

the Massiah violation is not one of inexcusable neglect 

but of deliberate abandonment of an issue. Thus, 

different considerations come into play than would be 

considered when faced with an allegation of inexcusable 

neglect. Inexcusable neglect necessarily involves 

questions of information known to a petitioner and whether 

he could have reasonably raised a claim. Deliberate 
— 

abandonment, which is what is present in the instant case, 
———E————— 

involves simply a consideration of whether the issue was 

  

  

-18- 

 



  

known and the petitioner or his counsel made a knowing 

choice not to pursue the claim after having raised it 

previously. : 

A review of the testimony presented to the district 

court at the first hearing shows that there is no question 

but that the issue was abandoned. First of all, a 

reference to exhibits submitted to the district court by 

the Respondent reveals that the issue was raised in the 
  

first state habeas corpus petition and was also asserted 
  

in the amendment to the first state habeas corpus 

petition. See Respondent's Exhibit H and attachments 

thereto. It is also uncontroverted that Petitioner did 
  pa 

not raise the claim in the first federal habeas corpus 
—   

petition. As noted by the district court at the first 

hearing, it was emminently clear that Evans was located in 

a Jail cell near the Petitioner, which situation would 

always raise a possibility of a Massiah issue and there 

was also testimony at the trial that Evans relayed 

information to a deputy. he istrict court was concerned 

S to why there were no previous inquiries as to when 

  

  

Evans might have become an agent of the state, if he did 

at all. (R4-5). The district court further noted that 
  

knowing that Petitioner was located near Evans at the jail 

and that Evans had apparently cooperated with law 

  

  

enforcement officers should have put counsel on notice to 
—   

~19= 

 



  

inquire when the cooperation began. Id. at 19. Counsel 
— 

  Fam 

for the Petitioner never asked either the assistant = 
hou 
  

district attorney or any of the police officers when Mr. 
      

a , is 

Evans began cooperating with them. 
| — 

Further, Mr. Robert Stroup testified before the 
TE 

  

district court that he became counsel in this case in 

April, 1980. He raised more than twenty issues in the 

state habeas corpus proceeding first filed in Butts County 

and it occurred to him that there might be a Massiah 
  

claim. He felt it was suggested just based on the facts. 
AR ~ 

He ainloons minimal efforts to seek information, but 
  4 

those efforts fell short of any kind of in depth inquiry. 
  

p— 

(R4-31-3). He specifically recalled amending the habeas 

corpus petition which he viewed as raising a claim of a 

violation of Massiah. He also knew by the time of the 

state habeas corpus proceeding that Evans had testified in 

another case involving the same assistant district 

attorney. Mr. Stroup's only excuse for why he did not 
  

pursue the claim in the first federal habeas proceeding 

was that he felt that he did not have facts to support the 
om     

claim. This is despite the fact that Mr. Stroup at no 

time talked to Detectives Harris or Dorsey prior to or 

subsequent to the state habeas corpus proceeding and did 

not recall talking to Deputy Hamilton even though Hamilton 

testified at the trial. He did not seek to question 

30 ~ 

 



  

Detective Dorsey even after Evans mentioned his name at 

the state habeas corpus hearing and did not subpoena any 

  
  

ma] 

records regarding the informant claim. 
  

The district court originally specifically found that 
  

there was a deliberate withholding of the issue of an ab 
  

initio Massiah violation because it was clear that Mr.   
  

Stroup thought about the issue at the state habeas corpus 

stage and decided not to pursue it. (R.4-59). 

  

After all the hearings were conducted, the district 

court judge changed his mind and decided, "Petitioner 

  

cannot be said to have intentionally abandoned th 

claim." (R3-22-24). The only basis for this decision by 

the district court was that court's conclusion that 
  

——— — 

counsel was unaware of the written statement of Offie 
  

Evans and that, thus, the factual basis for the claim was 
  

YY sam 

not known. This clearly reflects an abuse of discretion 
  aS 

[on the part of the district court as this holding is 

totally contrary to the original holding of district court 

in which that court had already found that there was 

sufficient information in the record to put counsel on 

notice of a possible Massiah violation even without a copy 

        of a written statement of Offie Evans. p— 
ee 

The question presented to this Court then is whether 

    
the district court abused its discretion in simply 

changing its mind and whether that court should have 
tl. SAD as 
  

-21- 

 



asa 

  

concluded that based upon counsel's conduct, there had 

been an abuse of the writ as to this issue. In this case 
L] 

it is clear that counsel knew of the existence of the 

    

   
   

  

possibility of raising the claim and simply chose as a 
  

mat 
—— 

“er of tactics not to present the claim in the first 
_—_——_     w 

federal habeas corpus petition. The simple assertion that 
  

counsel did not think he had sufficient facts to prove the 
  

k ae F rated» pesciblcd 
 . = Kaniladly: Ghh 

AScet>A 

  
  

claim is insufficient to overcome the barrier of an Ril 

intentional abandonment of an issue. Insofar as the 

district court concluded that counsel did not 

intentionally abandon this claim, this is certainly Fo! 

clearly erroneous finding. The record is clear that 

counsel raised the claim in the state habeas corpus 

proceeding, failed to raise it in the first federal habeas 

corpus proceeding and testified as to the basis for his 

not raising the claim. Counsel obviously felt that he had 
—   

enough information to raise the claim in the state habeas 
— 

corpus proceeding in the first place and also raised other 

  

  

  

claims in the first federal habeas corpus petition which 
-—— 

he had been unable to factually substantiate, including 
— m—— — 

his claim of discrimination. (1: counsel felt that there 

  

  

[JI was any possible merit to the claim, or was even 

£ suspicious, he certainly should have continued to pursue 

ugpiam the claim in the district court to avoid possible   
\ piecemeal litigation. Counsel then could have sought 

-22- 

 



  

  

discovery in the district court, as was done on other 

issues in the first federal habeas corpus proceeding, and 

the issue would have been litigated years earlier rather 

than at this late stage of the proceedings. Under these 

circumstances, Respondent submits that this is ,clearly the 
  

type of needless litigation that is contemplated by Rule 
  

9(b)g The cases contemplate courts not considering issues 
e—— 

that not only were known to counsel at the time of the 

   
   

filing of the first federal habeas corpus petition, but 

which counsel admits he evaluated and chose deliberately 

not to raise, even after having raised them in the state 

courts. 

  

  PatTther, Respondent submits that counsel certainly had 

(reason to know Jthat there was a written statement of Offie 

Gene Evans and certainly should have made some effort to 

  

  

  

obtain that statement prior to this most recent series of 

collateral attacks. 

The trial court conducted an in camera inspection of 
  

certain specified material noting in its order, "The court 

finds that although the documents might become material 

for rebuttal at trial, they are not now subject to 

discovery." (T.R. 46). Thus, at this point, counsel knew 
  ——— 

that there was material which was not disclosed to defense 
wT —— 

counsel but which was the subject of an in camera 

  

inspection. Clearly, trial counsel was free to renew the 

-23- 

  

 



  

  

request at or during tria rther, during 

cross-examination of the Petitioner a% trial, counsel for : 
_— 

the Petitioner objected to cross-examination by the 7 

assistant district attorney indicating that he had asked o! 

for all statements by the Petitioner. The trial court v 
  —— 

stated, "He has a statement which was furnished to the 
  

Court but it doesn't help your client." (T. 830). Again, 

  

this points tc the fact that there is some type of Litton 
  

statement which is part of the material included in the in 

camera inspection which was not disclosed by the trial 

court. [patnoun his does not clearly indicate that it % 

was in fact a statement of Evans, it certainly indicates Hagin 

that it was a statement made by the Petitioner himself to 

someone. dhe only possible conclusion is that it was a 
  

statement made to Offie Evans. The only way for the 

police to get any written information relating to this was 

to either obtain a written statement from Evans or make a 

written report concerning a statement given to them by 

Evans pertaining to the statement made to Evans by the 
      

Petitio Certainly, this puts counsel on notice that 
  

there is a written document which was not seen by defense 

counsel prior to trial pertaining to statements made by 

  
the Petitioner while in jail 
  

24 

 



  

Further on direct ‘appeal trial counsel raised an 
GEE 0 eT   

  

allegation relating to the failure to disclose statements 
——— 

of the Petitioner and the alleged withholding of 

  

impeaching evidence. In the brief counsel stated, "Offie : 

Gene Evans' statement contains substantial impeachment \ 

value." (See Attachment to Respondent's Exhibit H). In 

the opinion on direct appeal, the court held, "The 6p men J 

prosecutor showed the defense counsel his file, but did 

not furnish this witness' [Evans'] statement." McCleskey 
  

v. State, 245 Ga. 108, 112, 263 S.E.24 146 (1980). This 

seems to be a clear indication that the Georgia Supreme 

  

    

  

Court at least assumed there was a statement by Evans ra 
BR   

    

which was part of the in camera _inspection. Certainly, if 
— 

the Supreme Court of Georgia can make that determination 

aM. I... 

from the record then present counsel can also make such a 

determination. 

In addition to the above, a reading of the entire 
    C— 

state habeas gorpus proceeding shows that counsel most 
ARE E—- — a TE ri ...   

  

certainly should have been aware of the fact that there 
EY   

was some type of written statement as of the time of that 
      

pioceeding. ( counses has asserted that he assumed he had 

      
    

    

the entire prosecutor's file. This is clearly not the 

case as the record makes it clear that what was given to 

counsel was the file given to defense counsel. It was 

clear from the trial transcript and the testimony of 

  

25 

oN J 
A, 

 



  

defense counsel at the state habeas corpus hearing that 

  

there were certain matters not included in the information 

; provided to defense counsel / Present counsel never asked 
ot AR 

the prosecutor for the documents which were part of the in 

  

  

  camera inspection and never sought them in the state 

habeas corpus proceeding. 
  
  

A review of John Turner's testimony.in-the—state 
  

habeas corpus court shows that counsel clearly should have 
  g— 

been aware that there was a statement. : During the 
      

questioning of Mr. Turner, he was asked about the 

testimony of Offie Evans and whether that was a surprise 

to him. Mr. Turner responded as follows: 

Well, yes and no. And the reason I 

qualify that is because one of the 

first things I said to Mr. McCleskey 

when I interviewed him at the Atlanta 

Jail prior to the preliminary hearing 

was not to make any statements to 

anybody about the incident. In fact, I 

went so far as to say to give him the 

  

lThe state habeas corpus transcript was included as 
an Exhibit to the first federal habeas corpus case in the 
district court in No. C81-2434A. The district court 
stated it would take judicial notice of those records. 

~The Respondent requests that this Court do the same. 

~26~ 

 



  

analogy that a fish can't get caught 

unless it opens its mouth to bite the 

hook. I had talked with him constantly 

about that in terms of have you said 

anything to anybody. The bottom line 

was when I got the witness list, I 

noticed that at some st age some 

  

  

Deputy's names were on there. The only 
  

thing I could conclude that something 

had been said or possibly had been 

said. And I asked Mr. McCleskey if he 

had discussed the facts with anyone 

there at the jail and his Co-Defendant 

and he said, "No." 

(First state habeas corpus transcript at 76, hereinafter 

referred to as S.H.T.) The court then went on to state, 
gm   

  

"Well, I think the question should be why they did not 

give you a copy of the statement he made if you made a 

motion for it.” Id. It is clear from this that the state 
  

habeas corpus court felt thet there was a statement in 
  AS 

  

writing referring to what Mr. McCleskey had told Qffie 

      

Mr. Turner responded, "Well, I can't answer that 
  

question even up to this point in time. That was one of 

the issues I raised on appeal, the fact that I was never 

given any indication that the statement existed." Id. 
—— OS. 

— 5 —— 

  

  

————— 

“37 

 



  

The court went on to inquire of Mr. Turner as to 

whether he and the prosecutor discussed the matter at 

all. Mr. Turner responded the following: 

We went over the motions, all of the 

motions and the only thing he said to 
  

a 

me about his file was that there were 
  

two things which were not included in 

the file. One was the Grand Jury 

  

  

    

: wil ' / 5, 
testimony of a witness and his logic 
  

there was that that was—mot—__ 
— Si ok = discoverablé. And the other was just a 

_— — 

  

[(Esensnt he had and he didn't disclose 

/ what it was or who the person was in 

that context. 

They clearly understood and they knew 

that the motion had been filed. So my 

thinking on the matter was that I had 

everything, particularly relating to 

the statements of the Defendant. 

(S.H.T.77). The court then inquired in detail as to the 

right of a defendant to obtain a copy of his own statement 

under state law. It was also reiterated that Mr. 

«28s 

Turner 

 



  

did not contact Deputy Hamilton prior to trial even though 

his name was on the list due to the fact that "Mr. 

McCleskey was quite adamant to the fact that he hadn't 

said anything incriminating or even mentioned the case or 

discussed it with anyone.” Id, at 79-80, 

During cross-examination Mr. Turner further testified 
  

that he went over the names on the witness list with the 
    A—— 

Petitioner, "Particularly with criminal records like Offie 

Evans. That was the one I can recall specifically asking 

him abouk." 14. at 86. The Petitioner £014 Mr. Turner 
ser 3 

    

that he did not know who Offie Evans was. Id. 
yp—   

From a review of all of the above at least from the ES = 

ime of the state habeas corpus hearing, it was the 

general understanding that there was a statement by the 

    

  

  
  

Petitioner which was not disclosed to trial counsel prior 
  

  

  

  
  

to 0 trial. hel ony logical conclusion is that this is in 

reality a statement of Offie Evans relating a statement by 

the Petitioner or at least a report setting forth the 

  | information related by Offie Evans concerning what the 

  

  
  

  

Petitioner told him] This is further emphasized during 
  

the deposition of the assistant district attorney, Russell 

Parker. This deposition was taken by Mr. Stroup on 
—— 

  

February 16, 1981. During that deposition, Mr. Parker was 

asked, "Prior to the trial of Warren McCleskey did you 
——] 

  

  
  

have a file which you made available to defense counsel 
      

  

“20. 

  

 



  

representing Warren McCleskey?" (Parker deposition at 

4). Mr. Parker responded, "I had a file I made available 
  

  

to all the defense counsel in this case." Id. (emphasis 

added) It was again reiterated this was a file made 

available to defense counsel prior to and during trial. 

Thus, the file identified at the deposition was the file 

"that was made available back at pre-trial and trial." 
    

Id. at 5. (emphasis added). At no time is there any 
  

indication that this file included the matter which was 
    2 ri— 

  

the subject of the in camera inspection, but it was 
Ra 

aaa 

clearly stated that this was the matter given to defense 

  

  

counsel. 

Further during the deposition, Mr. Stroup refers to a 

"statement" from Offie Evans. In response to a question 

concerning the statement, Mr. Parker clarified so that 

counsel would be fully aware of the circumstances and 

stated, "When you refer to a statement, Offie Evans gave 
  

his statment but it was not introduced at the trial. It 
  

was part of that matter which was made in camera 

inspection (sic) by the Judge prior to trial." Id. at 8. 

Petitioner has asserted previously that this simply was 

unresponsive to the question. This does not undermine the 

fact that Mr. Parker specifically told counsel for the 
aE 

Petitioner in his deposition taken in the first state 

  

  

  
  

habeas corpus proceeding that there was a statement given 
  

30 

orl 
Ad 
wile 

 



  

by Offie Evans, and it was the statement which was the 

subject of the in camera inspection by the trial judge and 

it was clearly not a part of the file being turned over to 

Mr. Stroup at that point in time. To not understand that 
—— —— 
  

  

  

inexcusable neglect because the only way not to understand 

that 1s to not listen to Mr. Parker in the deposition or 
  

not go back and read the deposition after it has been 

prepared. At the end of the deposition, it was reiterated 

that there would be a copy provided of "the entire 

investigative file that was made available to counsel." 
  

Id. at 13 (emphasis added). It should be noted that 

during this deposition 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. In fact, the only testimony given by Mr. Parker. on 
a   

this point was, "I don't know of any instance where Offie EE an 
  — 

Evans worked for the Atlanta Police Department as an 
  

informant prior to his overhearing conversations at the 
- 

Fulton County Jail." Id. at 15. Mr. Stroup never pursued 

  

  gom— 

this question except to ask Mr. Parker concerning a 
aa 

  

    

possible deal with one of the police officers. Mr. Parker 

related that he did not see how anything such as that 

could have occurred. 1d. at 18. 

=31- 

 



  

    

  

  

  

  

  

   Counsel has asserted that all of the above specific 

references to written statements and to a written 

statement of Offie Evans was insufficient to put him on 

notice that there actually was a written statement. This 

is virtually incredible in light of the fact that the 

Georgia Supreme Court felt that there was some type of 

written statement and the fact that the state habeas 
R——————————— hl   

corpus court in its order in the first state habeas corpus 
CN _—— 

proceeding made the following specific factual findings: 
_— I STG a Tr —— BE .. 

—_——— 

  
  

    

  

  

It is clear that defense counsel had 

access to the prosecution's discovery 

file which included statements from all 
  

witnesses (except Evans) and 
  

investigative reports. (H.T.38; Parker 

deposition, p. 4). 

First state habeas corpus order at 9. (emphasis added). 

2 This is a clear factual finding by the state court 
  

p— 

that there was actually a written statement from Offie 
  

    —— — - a 

Evans and this is a clear indication of the state habeas 

corpus court finding that all statements from all 

  

2This order is included as an attachment to Exhibit 
H submitted to the district court and as Respondent's 
Exhibit No. 4 in the second state habeas corpus proceeding. 

-32= 

  

 



  

witnesses except for that statement given by Offie Evans 

were given to John Turner. Thus, the state habeas corpus 

court itself also specifically realized that there was a 

written statement from Offie Evans. m— 

  

——————— 

"311 of the above overwhelming indications of the \ 

existence a written statement by Evans and the clear \ 

statement by the Georgia Supreme Court that there was some 

| 
type of written statement and the even clearer statement   

  

by Mr. Parker and the state habeas corpus court that there 

was a written statement, certainly belies any assertion / 

that counsel had no basis for knowing of such a 2 

statement. CC —————————— 

It is also clear that Petitioner had a legal basis for 

  
  

  sem a 
  Cm —. ei 

obtaining a copy of this statement in the first state 
Se a——— 

  

  

  
ET —————— ’ 

mm 

habeas corpus proceeding or in the first federal habeas 

corpus proceeding. As was found in the second habeas 
le 
  

    

  

corpus proceeding by that court "There is legal authority 

giving him the right to access to this document." Second 
  

state habeas corpus order at 13. That court found as 
| 
  

fact, "There is no valid reason why Petitioner could not 
      — 

  

have obtained this statement earlier." Id. at 13. 
es EE PN gl     

Certainly, Petitioner could have sought the statement 
  

    

earlier under the Georgia Open Records Act, could have 
—— 
  Pw" 

(Dsubpoenaed the statement from Mr. Parker, could have asked 

for the state habeas corpus court to reopen the record so 

“33 

 



  

      

that he could subpoena the statement to a hearing before 

that court, could have asked for discovery from the 

district court in order to obtain that statement or could 

have requested this Court to issue a subpoena for that 

statement. Petitioner simply failed to do anything to 
. i. 

obtain the statement even though there are numerous legal 
ae She 

avenues which he could have taken to obtain the statement 

  

  

Sia 

at that time. 

Based upon the above, it is clear that this is an 

issue which has been abandoned by the Petitioner and the 

district court Abused 118 discretion in reaching the 

Massiah allegation at all. As noted by the previous 

cases, an abandoned issue clearly falls within the context 

of the issues which would be deemed to be an abuse of the 

writ. In an analogous circumstance dealing with 

procedural default, the Supreme Court of the United States 

has ruled that "a deliberate, tactical decision not to 

pursue a particular claim is the very antithesis of the 

kind of circumstance that would warrant excusing the 

defendant's failure to adhere to a state's legitimate 

rules for the fair and orderly disposition of its criminal 

cases.” Smith v. Murray, U.s. 1-106 S.Ct. 2661,   

2666 (1988). In that case, counsel had objected to 

testimony at trial and then chose consciously not to 

pursue the claim before the state supreme court based on 

-34- 

 



  

counsel's perception that the claim had little chance of 

success. The Court ruled that even a state's subsequent 

acceptance of an argument which had been deliberately 

abandoned on direct appeal would not be relevant as to 

whether a default can be excused in federal habeas. The 

court ruled that this was the very point that "undergirds 

the established rule that 'perceived futility alone cannot 
  

  

  

  

  

  
  

constitute cause.'"™ Id., guoting Engle v. Isaac, 456 U.S. 

“107, 130 (1982) . Although Smith v, pay an Lit 

issue Ap a orocedicor default sontontf wertainty Jobe Same OL. 

principles would apply to the abandonment of-a claim in ’ ba. 
    

  ot - (2) GF JT federal court. A deliberate tactical decision by counsel 

to abandon a claim even when counsel assumes that an issue 

cannot be proved is certainly a basis for finding abuse of 

the writ, and the district court in this case clearly 

abused its discretion in first finding an abuse of the 

writ and then changing its mind and finding that there was 

no abuse of the writ as to an abandoned claim. 

35. 

 



  

Based upon all of the above, Respondent submits that 

this Court should find that the district court abused its 

discretion in declining to find an abuse of the writ as to 

the Massiah issue and should conclude that the Petitioner 

deliberately abandoned the claim and should now be barred 

from litigating the issue. 3 

  

3Respondent further submits that there has been 
inexcusable neglect in not presenting this claim in the 
first federal habeas corpus petition, but does not rely 
exclusively on that principle due to the deliberate 
abandonment of the claim. 

~36- 

 



  

II. THE DISTRICT COURT ERRED IN 

FINDING A VIOLATION OF MASSIAH V. 
  

UNITED STATES AND THE FINDING BY 
  

THE DISTRICT COURT TO THIS EFFECT 

IS CLEARLY ERRONEOUS IN LIGHT OF 

THE OVERWHELMING EVIDENCE TO THE 

CONTRARY. 

Respondent specifically asserts that the district 

court's conclusion that there was a violation of Massiah 

v. United States, is incorrect and is based upon clearly   

erroneous findings of fact. In order to resolve this 

issue, it is first necessary to examine the legal 

principles applicable to Sixth Amendment violations in the 

context of this case. 

In Massiah v. United States, 377 U.S. 201 (1964), the 
  

Court examined a situation of a federal agent obtaining 

incriminating statements from a defendant who had been 

lreed on bail after he had retained a lawyer. The means 

by which the agent obtained the statements were classified 

as being surreptitious. In that case, the coindictee and 

the petitioner had been released on bail. The coindictee 

decided to cooperate with government agents in conducting 

the investigation and a transmitter was installed under 

the seat of the car. The coindictee engaged in a lengthy 

=37. 

 



  

conversation with the petitioner in the car and an agent 

listened to those incriminatory statements. The Court 

held that the constitutional rights of the petitioner had 

been violated by the use at trial of evidence of his own 

incriminating statements which were deliberately elicted 

by agents after indictment absent counsel. This was true 

even though the petitioner was out on bail at the time. 

The Court reaffirmed this position in United States v.   

Henry, 447 U.S. 264 (1980). The question before the Court 

in Henry was whether the defendant's Sixth Amendment 

rights were violated by the admission of incriminatory 

statements made to a cellmate who was an undisclosed 

government agent. The statements were made after 

indictment and while in custody. Under the circumstances 

of that case, after counsel was appointed, government 

agents contacted an inmate by the name of Nichols who had 
  

previously been engaged as a paid informer. Nichols told 
A — -   

the agents that he was in the same cell block with the 
——     

defendant and Nichols was told to be alert to possible 
= : reer a       

conversations but was told not to initiate any 
fig — —————— —- 

conversation or to question the defendant. After Nichols 

      
  

was released he contacted the agent and told the agent he 

had conversations with the defendant. Nichols was then 

paid by the agent. The jury was also not told that 
sn.   

Nichols was a paid informant when he testified at trial. 

  

~38- 

 



  

obtained by luck or happenstance after the Sixth Amendment 

right had attached. Id. at 487. The violation was the 

knowing exploitation of an opportunity to confront a 

defendant without the presence of counsel. Id. The Court 

noted that proof that the state must have known that the 

"informant" was likely to obtain information was 

sufficient, 14d. at n.l2. 

Most recently in Kuhlmann v. Wilson, U.S. ,. 106 
  

  

S.Ct. 2616 (1986), the Supreme Court found the primary 

concern of the Massiah line of cases was a secret 

interrogation by techniques which would be the equivalent 

of a direct interrogation by the police. A defendant must 
  

show that the police and the informant took some action 
  

  -— 

beyond merely listening and must show that that action was 
  
  

designed to deliberately elicit incriminating statements. 
  

Id. 

More recently, this Court has examined the allegation 

of a violation of Massiah v. United States and noted that 
  

all citizens have a duty to report criminal activities to 

the appropriate authorities. Lightbourne v. Dugger, 829 
  

F.24 1012 (11th Cir. 1987). Further, "Courts should be 

slow to discourage disclosures or to make them useless." 

Id. In addressing the agency requirement of a Sixth 

Amendment violation, this Court acknowledged that "no 

'bright line test for determining whether an individual is 

-40~ 

 



  

a Government agent for purpose of the Sixth Amendment' has 

. emerged.” Id., quoting United States v. Tavlor, 800 F.2d 
  

1012, 1015 {10th Cir. 1987). .In that case, the court 

found that there had vacllrs history that the witness had 
  — 

    
  

  

been a paid ECL i officers did not initiate od 

contact with the witness anicfhore was no promise of 
  hae s—— EE aad 

  

  

compensation to the witness in exchange for obtaining 
oy 

  

statements. The witness was merely advised to listen. 
EAM 

    

  
am LD 

The court further reiterated that speculation about the 
  

motives of a particular individual for assisting the 
-_     

  

police should not be confused "for evidence that police 
    

romised he witness] consideration for his help or, 
. 

- SET mC 

  

eM he 

otherwise, bargained for his active assistance." 

Lightbourne at 1021. Motive alone does not make an 
  

individual an agent. 

From a review of the above authorities, it can be seen 

  

that in order. to-earry-the-burden of proof,/the Petitioner 

had to establish that Offie Gene Evans was acting as an 

agent or informant of the police authorities and 

deliberately elicited statements from the petitioner. fhe 

Petitioner had to prove by a preponderance of the evidence 
  

that Evans was placed in a cell next to the Petitioner 

with the specific intent and direction that Evans obtain 

incriminating evidence from the Petitioner and that Evans 

was so instructed to conduct himself and that there was 

ll 

 



  

actually some agreement between Evans and the authorites   
  

  that this take place. [The decision in Lightbourne 

actually impl 1 SS-thsemtite agreement include some type of 

promise for tonsideration for this assistance. Respondent 
_— 

submits that under the circumstances of this case, 

  

  

  

Petitioner failed to carry his burden of proof and that 

the district court was clearly erroneous in concluding 

otherwise. 

Respondent recognizes that certain findings by the 

district court are questions of fact, but submits that 

certain facts found by the district court are clearly 
  

erroneous under Rule 52(a) of the Federal Rules of Civil 
cay 

Procedure. Clearly, this Court may reverse any such 

  

factual findings where they are deemed to be clearly fatale   

Te AS 

erroneous "A finding is ‘'clearly erroneous' when      

  

although there is evidence to support it, the reviewing 

court on the entire evidence is left with the definite and 

Edom conviction that a mistake has peen committed.” 

United States v. United States Gypsum Co., 333 U.S. 364, 
EAS | 

asm 

395 (1947) .[ Respondent Would further Submit that the 
S— 

  

    
  

district courts view of the evidence is not plausible in 

light of the record viewed in its entirety." Amadeo v.   

Zant, U.S. re 108-865Ct. 1771, 1777 (1988), guoting 

Anderson v. Bessemer City, 470 U.S. 564, 573-4 (1985).   

43. 

  

   



  

Carlen 

The district court essentially resolved the agency 
p——" 

  

gugstion based upon the testimony of one witness, Ulysses 
_. 

  
  

A — 

Worthy, relieving only a small portion of Mr. Worthy's 
  

  

tent inonr Ro raiading that the rest was obviously 
  — 
  

incorrect anP3% srenardin the testimony of the remaining ; dnd bed 

witnesses before the district court. Respondent submits 

  

  

that based upon the entire evidence, the district court 

was clearly erroneous in doing so. 
  

  

| carter Keith namtiton testifiedfat the trial ot this 
  

  

case. According to Mr. Hamilton's testimony at trial, he 

was a floor deputy on the first floor of Fulton County 

jail. Mr. Hamilton was asked, "Do you know what cell he 

[Warren McCleskey] was in in July, the early part of July, 

1978 at the Fulton County Jail." (T. 860). Mr. Hamilton 

responded, "Yes sir, he was in one north fifteen." (1d.) 

Mr. Hamilton did not respond that Petitioner was in that 

cell for a part of that time or for one day, but responded 

that in the early part of July, 1978, Mr. McCleskey was in 

that cell. Mr. Hamilton was then asked if he knew where 

Offie Gene Evans' cell was. Mr. Hamilton responded, "Yes, 

sir, he was in one north fourteen, right next door to 

Warren McCleskey." Id. at 861. Again, no indication was 
  

given by Mr. Hamilton that Mr. Evans had been in more than 

one cell or had been moved or had been in that cell for 

  

  

only a short period of time. Mr. Hamilton did not go into 
—   

=43- 

 



  

any conversations he had with Mr. Evans because an 

  

objection was made by trial counsel that any such 
  

information would be hearsay. Thus, Mr. Hamilton had no 

opportunity to testify whether he was approached by Evans 

or Evans approached him. 

| offie Gene Piendptss testified at /the trial Qf the 

———— 

case. Mr. Evans testified that the Petitioner was in the 

  

  
  

cell next to him at the Fulton County Jail. (T. 869). 

Mr. Evans was asked if he had carried on conversations 

with the Petitioner and Bernard Depree and Evans responded 

that he had. He also responded that Bernard Depree was 

upstairs in the cell above Evans. Mr. Evans then 

testified as to the statements made to him by the 

Petitioner.. During cross-examination of Evans, Evans 
_—_—  ———— 

stated that a deputy at the jail heard them talking about 

  

  

the crime. Evans testified that these conversations 

occurred around the 8th or 9th of July. He testified that 

he was placed in solitary "When I first came from the 

streets, they just put me in there straight from the 

street." (T. 873). Mr. Evans described solitary 

confinement as being single cells side by side. Mr. Evans 

was extensively cross-examined about the statements made 

to him by the Petitioner. He was also further asked about 

his conversations with Deputy Hamilton and he stated that 

Deputy Hamilton "said did I want him to call Homicide, 

—-44 

 



  

would I tell them that. I said yeah, so he called them." 
{T. 880), Finally, Offie Evans was asked when he got 
moved. Evans responded that he was moved on August 14th. 

(T.7881). 

At the conclusion of the testimony of Mr. Evans, the 
trial court instructed the jury that the evidence that had 
been presented since the defendant had rested, which 

included the testimony of Hamilton and Evans, was for the 
purposes of impeachment only and for no other purpose. 

{T. 885), 

¢ At the state habeas Corpus hearing, trial counsel, 
John Turner, emphasized that the Petitioner told him that 
he made no statements to anyone at the prison and did not 

talk about the incident at all, (sS.u.rT. 76). He 

reiterated that he asked Petitioner about Evans and 
Petitioner stated that he did not even know who Offie 
Evans was. (S.H.T. 86). 
  W— 

| ottie Evans )also testified before the state habeas 
  

Corpus court. He stated that he was in the Fulton County 
Jail on July, 1978. He stated further that he was taken 
to Fulton County Jail and was placed in solitary 

confinement. (S.H.T. 116). Mr. Evans was in solitary 

confinement "a little bit better than a month.” ‘1d. In 

response to the questions by Mr. Stroup, he responded that 
he was taken out to Fulton County Jail around the first of 

-45- 

 



  

July and the implication from the testimony is that he was 

placed in solitary confinement at that time where he 

remained until about August 14. Id. Mr. Evans stated he 
AE 
  

was not sure as to why he had been placed in solitary 
  

confinement. Mr. Stroup further asked, "While You were in 
  

solitary confinement, you were adjacent to the cell of 

Warren McCleskey. Is that correct?" (S.H.T. 117). Mr. 

Evans responded affirmatively. 

Mr. Evans was then asked if he talked with any Atlanta 

police officers about the Substance of his conversations 

with Warren McCleskey prior to the time of his testimony 

and he responded that he had talked with Officers Harris 
  

and Dorsey. Id. He stated that these conversations 
  

occurred while he was still in solitary confinement. At 

  
i. 

] this time, Evans indicated that(he had fhe deputy have one 

of the police officers come out and talk with him, which 
  

was contrary to his trial testimony in which he indicated 

the deputy suggested the police officers coming out.   

~~ 

\ 

  
(S.H.T. 118). Evans also testified that he had 

conversations with Russell Parker prior to his testimony 

at trial. He said that he had the conversation with 

Parker in July or August. He stated that the detective 

knew he had escape charges and indicated that he talked 

with Detective Dorsey first before talking with Russell 

Parker. Id. at 119. He later indicated. that.Detective 
  

he Fo 

Ms — 

  

 



  

Dorsey said he would speak a word for him. (T. 122). ¢ a 

. Evans was cross-examined concerning his testimony in other 

  

  

cases subsequent to Petitioner's case. 

Petitioner) also testified at the state habeas corpus 

hearing. The Petitioner was asked if he was asserting 

  

that Offie Evans was not telling the truth and did not 

tell the truth at trial. The Petitioner responded, "That 

is correct. Well, now, I would like to clarify that when 

I said the statements had not been made. There were 

conversations that went on, you Anderrtand. But never 

nothing incriminating." (S.H.T. 155). Petitioner further 

stated that he did not tell Mr. Evans what Evans testified 

to at trial. He stated, "There was a guy in there next to 

me that I used to talk to about the law and circumstances 

surrounding the case but never nothing incriminating." 

(S.H.T. 156). Petitioner reiterated that he did not 

remember Evans being in the cell next to him. Id. 
  

| Fussell Parkes) also testified by way of deposition in 
  

  

the state habeas corpus proceeding. Counsel for the 

Petitioner did not ask any questions concerning Evans 272 
  

- 

being an agent or an informant. Mr. Parker indicated that 
  

he first found out about Evans' testimony from either 

Detective Jowers or Harris who apparently had been 

contacted by Deputy Hamilton. Mr. Parker did not recall 

at that time whether he went to the jail and talked to 

-47= 

 



  

Evans or whether they talked to Evans at the Atlanta 

Police Department. He did know that he talked to Evans 

and did talk to him at the Atlanta Police Department at 

some time. (Parker deposition at 9). He further recalled 

Detective Dorsey being involved in the investigation but 

did not know at what point. The only thing he recalled in 

relation to Evans' statement was that Hamilton, Jowers and 

Harris were involved. Id. Mr. Parker testified that he 
  

did not know Evans prior to that time and was not aware of 
  

any understandings concerning any favorable 
—— . 

recommendations between any detective and Evans./ When 
— — 

  
  

    

Shan specifically by the assistant attorney general 

whether he was aware if Evans was working as an informant | 

when he was in the Fulton County Jail, Parker responded, 

"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." 
  

Id. at 15. No other questions were asked by either 

counsel of Mr. Parker concerning a possibility of Evans 

being an informant or agent. 

In addition to this testimony, this Court has the 
——— 

sftatement of (etic Evans | At the very beginning of that 

  

  

  

ent Mr. Evans says, "I'm in the Fulton County Jail 

cell #1 North 14 where I have been since July 3, 1978 for 

escape. Warren McCleskey was in cell #15, which was right 

~48~ 

 



  

next to my cell. Bernard Dupree was in cell #2 North 15 

which was right above my cell and McCleskey's." A clear 

reading of this statement indicates that at the time the 

statement was made, even though the statement was actually 

given at the police department, the Petitioner was 

incarcerated in the Fulton County Jail and was in cell #1 

North 14 and had been in cell #1 North 14 since he was 

incarcerated in the Fulton County Jail, which was since 

July 3, 1978. The point of this statement is that Evans 

had been next to McCleskey from the time he was placed in 

the jail until the time of making the statement and was 

not moved until later in August. 

In addition to the above, the district court had the 

testimony given at two separate hearings. A summary of 

that testimony is essential for reviewing the issues 

presented before the district court. It is important to 

note that the district court at the beginning of the 

hearing found Mr. Evans to be a credible witness simply on 
Ra   

the basis of the extensive statements given. In fact the 
pu   

district court noted that it found the testimony of Evans 
= 

  
EE 

to be true and there was no doubt as to the guilt of the 
pe oo 

———   

Petitioner. (R4-4). 
  

The testimony presented before the district court and 

the records is fairly clear that Offie Evans was arrested 

on or about July 3, 1978. Evans met with Russell Parker 

—49- 

 



    

and two detectives from the Atlanta Police Department at 

the Fulton County Jail on July 12, 1978. Evans gave a 

written statement on August 1, 1978. The district court 
  

was initially concerned with whether an agency 

  

  

relationship arose on July 12, 1978 and, if so, what 
NN —— 

information the authorities received after that date. The 
——— 

Lo 
testimony of Russell Parker) clarifies this point. Mr. 

  

  

  

Parker had taken notes of his meeting with Evans on July 

12, 1978, which were introduced into evidence before the 

  

  

district court as Petitioner's Exhibit No. 9. mr. Parker \ 

  
C1fied that his recollection was that Evans did not 

tell him anything different on August lst than he did on 

    July 12th. (R4-152) / on the pages of Mr. Parker's notes, 

  

  

  

there were two separate references to Evans' making 

statements that if there had been a dozen police officers 

the Petitioner would have shot his way out. Id. [Parker \ 

further testified that he did not know of any information 
  

that Evans obtained between July 12th and August lst and 

  he did not tell Evans to keep his ears open and did not 

tell him to talk with Petitioner any further. (R4-167) 3 

Mr. Parker's notes reveal that on July 12, 1978, Evans 

told the authorities that he was in the cell next to 

McCleskey and that McCleskey relayed information 

concerning Bernard Dupree and specifically provided   information in which the Petitioner said he shot the J 

  

  
50 

 



  

  

police officer. In fact, Evans relayed on that day that 

. Petitioner said it was either going to be the police 

officer or the Petitioner and that he would have shot his 

way out if there had been a dozen policemen. No evidence 

has been introduced to contradict the above facts. 

The other question concerns whether Evans was actually 
  

placed in the cell next to Petitioner and whether Evans 
  

was in essence an agent or informant at the time of the 
— 

original conversations with Petitioner. Respondent 

  

  —— 

(‘submits that a consideration of all of the testimony 

   before the district court shows that the district court's 

finding to this effect is clearly erroneous. 

  (Cony Parker, the Assistant District Attorney, 

  

testified consistently that he had never known Evans prior 
— 
  

to July 12, 1978. Mr. Parker further testified that he 
  

did go to the jail on July 12, 1978, to talk with Offie 

Evans, and he would have guessed originally that Detective 

Dorsey was not there. Mr. Parker assumed based on the 

indication on his notes that Dorsey did go. (R4-130-1). 

Mr. Parker received information on July 12, 1978, that 

there was an inmate at the jail that had information. He 

decided to go to the jail with Detective Harris. He again 

reiterated that he did not remember Dorsey being there 

and, if asked, would have said it was Detective Jowers. 

(R4-147). 

I 

 



  

Mr. Parker also came and testified on the next day at 

the hearing before the district court. During this time, 

the questioning focused on whether Mr. Parker investigated 
  

the possibility that Evans had been an informant for other 
  

agencies. He was also asked about Evans being placed in 

solitary confinement in Fulton County Jail. Mr. Parker 

responded that he did not know specifically but he just 
  
get 

knew that Mr. Evans was an escaped federal prisoner. He 
Wey 

was not aware specifically that the Petitioner was in 
  

solitary confinement, but just knew that the Evans and 
  

Petitioner were in cells next to each other. He further 
  a ip 

reiterated that ‘to his understanding the first time that 

anyone knew the Petitioner had said anything to be 

overheard was on July 11, 1978, when Evans talked to 

Deputy Hamilton. (R5-77). Petitioner's Exhibit No. 10 

consists of further notes from Mr. Parker relating to 

calls he made concerning Offie Evans. These were calls 

during which Mr. Parker was trying to determine in his own 

mind whether to believe Evans. 

Mr. Parker finally testified before the district court 
  — 

at the hearing on August 10, 1988. mr. Parker a 

to affirmatively stated that he had never asked anyone 

  

  

move Offie Evans to overhear any conversations and never 

  suggested to Evans that he overhear any conversations. 

(R6-11). In fact, Parker stated that he specifically did 

52 

 



  

not ask Carter Hamilton or Ulysses Worthy to move Offie 

. Evans and it never came to his attention that any such 

kFequest was made and even as of the date of the hearing he 

had no knowledge of any such request being made. As to 
  

who was present at the July 12, 1978 meeting, he indicated 

the only information he had was his notes in which it was 

indicated that Detective Dorsey was there. Id. at 113. 

He reiterated that the first knowledge he had of Offie 

Evans was the morning of July 12, 1978. He specifically 

stated that he knew of no request to move Evans and 

nothing of that sort occurred in his presence. Id. at 

116. 
  

\o£ ice: Ww. KK; Jowsre) testified before the district 

  

court for the first time on July 9, 1987. Officer Jowers 

testified that he was one of the investigators responsible 

for compiling information and conducting the 

investigation. He testified that he had absolutely no 

contact with Offie Evans. (R5-35). He specifically did 

  

  

not recall talking with Evans at any time, much less prior 

to July, 1978. - 1d. at 38. 

Officer Jowers also testified at the hearing on August 

10, 1978, and reiterated that he did not know Offie 

Evans. He further positively testified that he never 

asked that Offie Evans be moved and never heard of any 

such request. He never asked Worthy or Hamilton to move 

53 

 



  

Evans and there was no reference in any of his files 

_ indicating such a request was made. (R6-97). 
  

[Detective Welcome Harris [began his testimony on July 
  

8, 1987. He was involved in the investigation of the 

murder of Officer Frank Schlatt almost from the 

beginning. He testified that Officer Jowers was his 

partner at the time, but other officers, including 

Detective Dorsey did some work on the case. Detective 

Harris' first contact with Offie Evans was on July 12, 
  

1987. He received information from Deputy Hamilton that 

an inmate had some information about the case. He 

recalled going to the jail on July 12, 1978, with Russell 

Parker and he testified that he thought Detective Dorsey 

was there, but he was not sure. It was apparent that 

Detective Harris based his recollection on who was present 

primarily on the notes of Mr. Parker. Detective Harris 

testified that he thought the interview with Evans 

occurred in Captain Worthy's office, but he was sure 
IE 

Worthy was not there. (R4-196). Harris testified that he 

  

  

did not think he knew that Evans was in the cell next to 

the Petitioner until they got to the jail. 

Harris testified that the first time he had ever seen 

Evans was on July 12, 1978, when he went to interview 

Evans. He did not know that Evans had been an informant 
  l -—. 

prior to that time. The only thing he knew was that his 

54 

 



  

next encounter with Evans was on August 1, 1978. Further, 

to his knowledge no one was in contact with Evans between 

the two time periods. He corroborated Mr. Parker's 

testimony that the information they received on August 1, 

1978, was basically the same as that received on July 12, 

1978. (R4-212). 

Detective Harris resumed his testimony on July 9, 

1987. At that time he reiterated the fact that he had no 
  

previous dealings with Evans. (R5-12). He did think that 
  

he made some contact with the federal penitentiary 

relating to Evans' prior history. He stated that he did 

not hear anyone tell Evans to keep his eyes and ears open 

and he specifically did not tell Evans any such thing. He 

emphasized that he made no suggestions to Evans at all. 

(R5-24). 

Detective Harris testified finally before the district 

court on August 10, 1987. During that testimony, he again 

stated that his first contact with Evans was on July 12, 

1978. He was emphatic that he never asked anyone to move 

Evans, never asked Evans to overhear any conversations and 

never suggested to Evans to overhear conversations. He 

specifically did not make any such request to Mr. Worthy. 

He also did not recall Worthy being in the room during the 

interview on July 12, 1978. (R6-103). He indicated that 

his testimony was still vague as to a recollection of 

-55. 

 



  

Detective Dorsey being present at the interview on July 

¥2, 1978. (When he was cross-examined concerning Mr. \ 
  

   Evans' testimony at the state habeas corpus hearing, he 

was emphatic that Evans was simply inaccurate if there was 
  —— 

any indication of a prior meeting with him. Detective 
  

Harris reiterated the fact that he had absolutely no 

meeting with Evans until July 12, 1978, and did not know 

of Evans until he received the phone call on that date. 
  

(Gorter Hamilton \also testified consistently in this 
  

case. Mr. Hamilton was called to testify on July 8, 

1987. In 1978 Mr. Hamilton was a floor deputy at the 

Fulton County jail. He specifically recalled having 
——   

conversations about this case with Evans on either July 
——— 
  

11th or July 12th. He recalled that Evans came in on an 

escape charge and would have been put in isolation as an 

escape risk. (R4-177). He testified that he would not 
S— 

have had any conversations with Evans regarding the 
  

  

Schlatt killing prior to July 11, 1978. He also did not 
  an 

have any conversations with ony detectives regarding that 

case prior to July 11, 1978. He knew of no one that 

implied to Evans that he should listen to Petitioner or 

talk to Petitioner. On July 11, 1978, Evans indicated to 

Hamilton that he overheard conversations between 

Petitioner and Depree. Hamilton asked Evans if he would 

talk to the officers. (R4-181). On the morning of the 

-56- 

 



  

12th, Hamilton recalled that Detective Harris and Russell 

Parker came to the jail along with another officer. Id. 

at 182. Hamilton took Evans to a room down front where 

they could sit and talk. Hamilton stayed in the room 

until the interview was over. He did not have a clear 

recollection as to who the other detective was that was 

present, although he indicated it could have been 

Detective Dorsey. (R4-183). He indicated that he had no 

other specific conversations about this case with Evans 

during July of 1978. He further testified that he had no 

prior dealings with Evans. (R4-189). 

On August 10, 1987, Carter Hamilton testified 

consistently with his prior testimony. He testified that 

the first time he knew Evans had any information regarding 

the Petitioner's case was on July 11th and to his 

knowledge the first time anyone came to the jail to talk 
— 

  — 

to Evans about this case was on July 12, 1978. (R6-68). 
  

  

He had no knowledge of Evans being moved and he recalled 

Evans being in isolation when he first came in. He 

testified this would have been based on the outstanding 
  

escape charge. He further recalled the Petitioner being 
- 

in isolation when he first came into the Fulton County 

  

jail. Id. at 69. Hamilton testified positively that no 

one asked to have Evans moved to overhear conversations of 

the Petitioner and that he personally never asked Worthy 

-57- 

 



  

to move Evans and he did not tell Worthy that anyone 

wanted Evans moved. Further, during the interview on July 

12, 1978, no one asked Evans to overhear conversations. 

Hamilton reiterated his testimony that he was the one who 
  

suggested to Evans that the detectives be called and that 
  

  

Evans did not mention the detectives and gave no 
  

indication he had talked to police officers previously. 

  

  

(R6-76-7    
   

Detective Sidney Shh Bar before the district 
  

court on July 9, 1987. He first became involved in the 

investigation of a homicide on the Monday after the 

crime. He did not recall specifically who was his partner 

but thought it might have been Harris. He thought that 

Detective Jowers was the lead investigator on the case. 

(R5-48). Dorsey did testify that he knew Evans prior to 
  

this case. His specific recollection was that he had been 

to the federal penitentiary and seen Evans and had also 

seen Evans at a halfway house with another detective. He 

did not know why he had been there in the first place but 

it was specifically not to meet Offie Evans. Id. at 49. 

He saw Evans again at a woman's home and assumed Evans 

either called him there or they just happened to be there 

at the same time. He did not know why. He also had run 

into Evans at city court and spoke to Evans. He thought 

Evans might have called him another time or two but he was 

-58- 

 



  

not sure. He indicated that Evans had on occasion been 
———   

cooperative, but he had never gotten any information from 
  

Evans where Evans ended up testifying. (R3-54). He was 

further not aware that Evans had served as an informant to 
——   

anyone else. His recollection was that at the time of the 

Schlatt investigation, he did not think he knew Evans had 
         

  

escaped or that he was wanted for escape./ He further did 
  

  

  

the time of this case or at any other time. 
  

  
  

(= recall going to see Evans at the Fulton County jail at 

  

recall attending a meeting with Parker and Harris and | 
  

Evans. Jd. at 57 He testified that it was possible he 

  

had met with Evans on occasions during the investigation 

of the case, but testified that if he had made any 

promises to Evans he would have a specific recollection of 

that fact. Id. at 65. He was asked specifically by the 

court if he did anything directly or indirectly to 

encourage Evans to obtain evidence from the Petitioner. 

Dorsey positively responded that he did not. He had 

absolutely no knowledge of anything of the sort and had 

never even heard of it occurring. (R5-68). 

Officer Dorsey testified consistently with the above 

on August 10, 1987. He was again positive that he did not 

talk to Evans during the investigation of the Schlatt case 

and ask him to attempt to overhear conversations of the 

Petitioner. (R6-80). He was positive that he did not 

-59- 

 



  

direct Evans to engage in conversations and never heard 

anyone else make such a request. He was positive that he 

made no request that Evans be moved and he did not ask 

Carter Hamilton to make such a request. Id. at 81. He 

stated he did not remember seeing Evans in the Fulton 
—————— 

County jail and had no recollection of attending the 

  

  

meeting on July 12, 1978. He further reconfirmed his 
  A — 

prior testimony on cross-examination that if he had made a 

promise to Evans he would have remembered it. The first 

time he heard any information concerning such an 

allegation was back in the 1980's. He remembered being 

asked by Mr. Parker at that time and remembered at that 

point in time that he had the feeling that Evans was 

lying. (R6-87). He was emphatic that if any such request 

to be moved had been made he would have remembered it. 

14. at 94. 

A review of the all of the above testimony shows that 

all of these witnesses testified consistently during both 

sets of hearings. All witnesses emphatically denied ever 

having made any request that Evans be moved, emphatically 

denied ever hearing anyone make such a request and denied 

ever having any knowledge that such a request had been 

made. All witnesses were further consistent in their 

testimony that they were unclear as to whether Detective 
  

Dorsey was present at the meeting on July 12, 1978. The 
— 
  

-60-~ 

 



  

only reason any witness testified that Dorsey was there at 

all was based on the inclusion in the notes of Mr. Parker 

of Dorsey's name. Harris and Parker initially testified 

they did not recall Dorsey being present and Dorsey 

himself simply did not recall being there. Although 

Petitioner has attempted to focus heavily on Detective 

Dorsey's denial of being at the meeting, it appears that 

his recollection concerning his presence at the meeting 

was the same as the other officers, unclear due to the 

length of time that has passed. It is important to note 

that Detective Dorsey had never previously been asked to 

testify concerning the information received by Evans and 

had no reason to have his recollection refreshed at any 

time prior to the testimony before this Court. Contrary 

to this, Deputy Hamilton testified at trial both in this 

case and in the case of Bernard Depree. Detective Harris 

also has testified previously in this case and Mr. Parker 

tried both cases. Thus, they all had specific reasons to 

refresh their recollection, and even they were unclear as 

to Detective Dorsey's presence. 

The only witness who testified inconsistently, both 
  
Lu——— 

with all other witnesses who have testified and with his 

own testimony in this case, is Ulysses Worthy, the witness 
  

on whose testimony the district court relied. Respondent 

submits that Mr. Worthy's testimony when considered as a 

I 

 



  

3.7 
2 ’ 

no 

  

    

     

   

simply so confusing and ambiguous that the 

district court could not have credited any of his 

testimony. Upon reflection, it is clear that Mr. Worthy 

was simply confused as to the events that occurred or was    

  

  

mistaken. \Mr Worthy was first called to testify before 
  

1 the district court on July 9, 1978. He had not even been 

employed with the Fulton County jail for quite a few years 

and had never had an occasion to testify in this matter or 

discuss the Evans situation with anyone prior to his   

  

  

  

    testimony. In fact, Mr. Worthy had no reason to even know 

  
  

(vy he was being brought to court.| Necessarily, his 
  

  

  

memory would have been vague at best. / Mr. Worthy's 

   

    
  

original testimony was ambiguous and confusing. He 
  

testified that he recalled the murder of Officer Schlatt 

being brought up between Dorsey and Evans, but indicated 

he was not a participant in that conversation and 

testified he did not recall Dorsey asking Evans to listen 

for statements by the Petitioner. (R5-148). During 

examination by counsel for the Petitioner, Mr. Worthy was 

asked, "Do you recall whether Mr. Dorsey asked Mr. Evans 

to listen to what he heard in the jail from those who may 

have been near him?" (R5-148). Mr. Worthy responded 

positively, "no, sir, I don't recall that". 14d. Mr. 

Worthy was then asked, "do you recall whether he asked him 

    

to engage in conversations with somebody who might have 

  

  

  

-B2-- 

 



  

been in a nearby cell?" Mr. Worthy responded, "Seems I 

recall something being said to that effect to Mr. Evans 

but I'm not sure that it came from Mr. -- from 

Detective Dorsey or who." Id. at 149. He then responded 

upon further questioning that he was not really sure and 
  

he also was not sure that Evans agreed to that 
EE — 

arrangement. When asked further questions Mr. Worthy 
— 

  

  ———— 

responded with such statements as "I believe so." Thus, 
  

from thigit is clear that Mr. Worthy simply was unsure of 
  

what did transpire, was unsure if anyone actually asked 

Evans to listen, did not specify whose conversations Evans 

was asked to overhear and did not even know who made the 

  

, 

  

  

er Talie such a request was made. 

Y then testified that the detectives were out at 

the jail several times. He did recall Russell Parker and 

Detective Harris coming out to interview Evans but was not 

certain as to whether Dorsey was present on that occasion 

or not. Contrary to the testimony of Hamilton and Harris, 

Mr. Worthy testified that he was in the office during part 

of that meeting. He was finally asked if he recalled a 
ca 

request being made in this case that "someone" be placed 

  

  

in a cell next to "someone else" so that he could overhear 
  

conversations. He responded that he did. (R5-153), He 
o-.   

stated he did not really know who made the request and he 

thought Evans was placed in the cell next to the 

~63- 

 



  

Petitioner. As he could recall, it was a request of some 
———— x GE 

officer on the case. He further testified he did not 
G— Ta ———— 

recall when it was that he might have been asked to move 

  

  

Mr. Evans and he did not know of any conversations that 

Mr. Evans had overheard and he did not recall at that time 

who made the request. Id. at 156. 

A review of Mr. Worthy's testimony from the first 

hearing shows that it is extremely ambiguous, unclear and 

highly suspect. Mr. Worthy continually stated he was 

unsure, only believed that certain things occurred, did 

not recall when or who made requests and so forth. 

Respondent submits that this further corroborates 

Respondent's assertion that Mr. Worthy has simply been 
a 

confused all along as to the occurrence of any request for 
_— 

a move. Mr. Worthy had time to reflect upon his testimony 

  

  

and think about what had occurred some nine years 

previously and testified again on August 10, 1978./ After 

having had the opportunity to think about the case 

further, Mr. Worthy testified before the court on that 

date that the first time he recalled Evans ever being 

brought to his attention was on an occasion when one of 

the deputies informed him that Evans had information to 

pass on to the district attorney or police. Mr. Worthy 
  

was positive that it was deputy Hamilton who brought Evans 
Em —— 

to his attention. (R6-14). Mr. Worthy was certain that 
be 

  

  

54 = 

 



  

that was his first meeting with Offie Evans on that date. 
A — 
  

  

This obviously has to have been the July 11, 1978, date as 

this was the first time that Mr. Hamilton had any 

indication that Evans knew anything about this case 

whatsoever. Mr. Worthy testified he gave Hamilton 
  

permission to call the deputies. Mr. Hamilton did not 
  

corroborate this testimony and did not mention ever 

talking to Mr. Worthy about this matter. Mr. Worthy 

recalled that the investigators came to talk to Evans 

  

within a few days. To his knowledge, that was the first 

time anyone had come to the jail to talk to Evans 
  

regarding the Schlatt murder. He recalled the meeting 

taking place in his office and being in and out. Id. at 

17. Worthy specifically testified that after the meeting 

none of the investigators asked him to do anything. 

(R6-18). 

When asked if someone asked him to move Evans, he was 
  

unclear at first and then remembered that it was actually 
  —— 

Hamilton that allegedly asked him to move Evans. His 
    

uncertainty was as to whom he thought asked Hamilton to 

request that the move be made. Mr. Worthy emphasized that 

the first time he was ever asked to move Evans was on the 

day the officers came out to the jail with Mr. Parker to 

talk with Evans and that was the only time he was ever 

asked to make such a move. Contrary to the testimony of 

5 

 



  

all other witnesses, Mr. Worthy stated that Carter 

Hamilton asked that Evans be placed in a cell near the 
  

        

    

R— 

Petitionerf Mr. Worthy further testified that he did not 

ow for a fact that Evans was ever actually moved. He 

specifically testified he did not hear anyone ask Evans to 

| listen to conversations. He testified positively that 

neither Harris, Dorsey, Jowers nor Parker asked him to 

move Evans so that he could overhear conversations. Id. 

at 24. He testified on this occasion that his 

recollection was that the meeting with Dorsey was at the 

same time the other officers were there. He was not sure 

who the request came from for Evans to overhear 

conversations. Id. at 32. Mr. Worthy then became even   
more confused and did not recall if Dorsey was present 

f with Parker. Mr. Worthy was clear that he was not present 

at the meetings and that he simply understood the officers 
  

came back several times. [It is clear Mr. Worthy had no   
  

knowledge of these facts, but was simply assuming that 

they occurred. He did reiterate that the first time Mr. 

Parker came to the jail was the first time he remembered 

seeing the detectives at the jail to interview Evans in 

| relation to this case. Worthy had not had a meeting with   Dorsey prior to the one in which Parker came to the jail 

and the only encounter he had was the one with the 

officers when they had been called to come out to talk to   
  

    

    
  

506 

 



  

Evans. Id. at 36. Worthy testified that he did not 

recall talking to Dorsey by himself but he believed Parker 

and Harris were there. Id. at 37. Mr. Worthy again 

reiterated that the only encounter he had in which he was 
  

asked that Evans be moved was after the interview occurred 
  

when Dorsey and several other officers were there. He 

stated that Hamilton was the first one to ask that Evans 

moved. He reiterated on redirect examination that there 

was no meeting prior to the time when Parker and the 
  

officers came to the jail when anyone had been there to 
p——— 

talk to Evans about the Schlatt murder. After being 

  

reminded by the district court of the importance of this 

case, Mr. Worthy testified that there may have been other 

meetings when he was not present and did not recall being 

told of any other meetings. He reemphasized the fact that 

when he was asked to place Evans near the Petitioner was 

on the day when Mr. Parker was there. He testified he was 

first approached by Carter Hamilton and he did not know 

who asked Carter Hamilton to make the request. He 

testified that the officer on the case did not directly 

ask him to make any move. (R6-65-6). 

Respondent submits that what the above shows is that 

Mr. Worthy was confused at best during the first time he 

testified before the district court. He did not recall 
— 

specific incidents and appeared to be easily led into 
— 

  

  

-67~ 

 



    

  

agreeing to whatever he was asked. Upon thinking further, 

Mr. Worthy obviously recalled meeting Evans on the day 

that Parker and the detectives came out to talk to Evans 

and also recalled that this was the first time he met 

Evans. By this time Mr. Worthy had already committed 

himself to testifying that someone had asked that Evans be 

moved. As Mr. Worthy was certain that he had not met 

Evans prior to this occasion and only knew of Evans when 

Carter Hamilton brought him to his attention, the only way 

for Mr. Worthy to make his testimony consistent was to say 

that he had been asked to move Evans when the officers 

came out, at which time, Evans had already overheard the 
  — 

conversations of the betisionerf we is important to note 
  

“that the only name ever given by Mr. Worthy as the person 

asking that a move be made was that of Carter Hamilton. 

He did not know who allegedly asked Carter Hamilton to 

make the move. Carter Hamilton completely contradicts the 

testimony of Mr. Worthy saying he never made such a 

request. There is no reason to discredit the testimony of 

Mr. Hamilton. He has testified before regarding this 

  

  

incident and has had better reason to keep his memory 

refreshed than Mr. Worthy. Mr. Worthy was also not sure 

who made any such request and, even though he was 

continually asked whether there was a prior dealing with 

Dorsey, Mr. Worthy seemed to resolve the confusion and 

~068= 

 



    

decided he had not seen Dorsey and Evans together at the 

jail prior to the time that Mr. Parker came to the jail. 
  

The district court, rather than crediting the 

documentary evidence presented before the court and the 

testimony of all witnesses except for Mr. Worthy, took one 

statement of Mr. Worthy's which was consistent between 

both hearings, that is, that someone asked him to move 

Offie Evans, and credited this statement. (R3-23-21). 

The district court never specifically found that any of 
  

the other witnesses were lying or were mistaken, although 
  

the Court noted that Detective Dorsey had an interest in 
  —— 

concealing such an arrangement. The district court dia 

not state why it would conclude that Detective Dorsey 

would acknowledge having prior contact with Offie Evans, 

acknowledge having used Evans as an informant in the past, 

yet go to such purported great lengths to conceal any 

alleged arrangement in this case. The district court 

relied upon the one consistent statement of Mr. Worthy to 

essentially discredit the remaining witnesses and piece 

together a sequence of events which simply is not 
  

supported by any of the testimony in the record and 
| Tee— 
  

particularly is not even supported by the testimony of Mr. 

Worthy himself and is thus clearly erroneous. Mr. Worthy 

was emphatic that the person making the request was Deputy 

Hamilton and was absolutely emphatic that Evans had never 

~50.~ 

  

 



  

  | 

even come to his attention until the first time Hamilton 

mentioned Evans which had to have been on July 11th. 

Pe Loinly, Worthy's assertion that the request to move 
EN —— 
  

Evans came gfter the time that Evans relayed statements 
—— PC — 
a   
  

about the Respondent does cause some confusion; however, 

other logical conclusions to be reached were that Mr. 
——   

Worthy was simply mistaken as to any such request being 

made oO hat it could have actually been a request by Mr. 
  

the Respondent B= could have 

  

Evans to be plac 

  - — 

even occurred at a later time because the record is clear 

that Mr. Evans SUDSEQUERtly was moved so that he wesc) 

next to the Respondent. Mr. Worthy could even be 

  

  

confused to the extent that there could have been some 

request to move Evans away from the Respondent. 

Furthermore, the district court for the first time in 
S——— 
  

its final order determined that Evans had information not 

  
known to the general public. There is absolutely no proof 

    i 

in the record that the facts set forth in Evans’ statement 
  

were unknown to the general public or could not have been 
a 
  

found out by Evans through conversations with other 

inmates at the jail. This is simply a conclusion by the 
  

district court which has absolutely no factual support in 

the record. 

Petitioner submits that a review of all of the above 

evidence shows that the factual finding by the district 

~70~ 

 



  

  

  

court in which the court finds that a request was made to 
—— 

move Offie Evans is clearly erroneou The further 

nclusion by the district court based upon this one 

  

  

  

factual finding that Evans was an agent has absolutely no 

support in the record. The most Mr. Worthy recalls 
BT   

clearly is that someone asked him to move Offie Evans. He 
A   

did not know if Evans was ever actually moved, he was 
S——— 
  

unclear and uncertain as to whether someone told Evans to 

overhear conversations or told Evans to elicit 

conversations. Finally, there was absolutely no testimony 
  

which would support a finding of the agreement 
  a——— 

contemplated by this Court in Lightbourne v. Dugger, . 
  

Although there was some information in the record that Mr. 

Evans had acted as an informant for Detective Dorsey in 

the past, there was no testimony that he had ever acted as 

a paid informant; there was no testimony as to who had 

initiated contact with Evans in the first place, in fact 

all testimony seems to indicate that Evans initiated 

contact with the officers, and there is no evidence of any 
  

promise of compensation or consideration for his 
— 

assistance. In short, there is no evidence of any bargain 

  

  

for the assistance of Mr. Evans and no evidence of an 
  

agreement. Therefore, the district court's conclusion to 
  

the contrary is incorrect legally as well as factually. 

    

Absent such an agreement, there can be no Massiah 

violation because there is no agency as required. 

-71~ 

 



  

Respondent submits that a review of all of the above 

shows that the district court was clearly erroneous in its 

factual finding regarding Mr. Evans and was also legally 

incorrect with regard to its final conclusion of a Massiah 

violation. The record clearly supports Petitioner's 

position that Mr. Evans was not acting as an agent or 

informant on behalf of the state and that no Massiah 

violation occurred by the utilization of Mr. Evans’ 

testimony at trial. Therefore, the finding by the 

district court to the contrary should be reversed. 

-73~ 

 



  

ITI. ANY ALLEGED MASSIAH VIOLATION WAS 

CLEARLY HARMLESS BEYOND A 

REASONABLE DOUBT. 

Even if this Court were to find a Massiah violation in 

relation to Offie Evans, Respondent submits that the 

district court incorrectly found that this evidence would 
    

not be harmless. 

The Supreme Court of the United States has 

  

acknowledged that Sixth Amendment deprivations under 

certain circumstances may be subject to a harmless error 

analysis. United States v. Morrison, 449 U.S. 361   

(1981). In fact, this Court in Lightbourne v. Dugger, 
  

acknowledged in a footnote that any alleged Massiah 

violation could certainly be harmless error under the 

appropriate circumstances. Even the dissent in that case 

found the error was harmless as to guilt or innocence and 

only found harmful error as to sentencing. Id. at 1021 

n.9. In order to establish harmless error, it must be 

shown beyond a reasonable doubt that the evidence 

complained of did not contribute to the verdict. 2 ® | | 

Brown v. Dugger, 831 F.24 1547 (11th Cir. 1987). 
  

The district court erroneously found that any error 

was not harmless by finding that Evans' testimony about 

the Respondent's statement was critical to the state's 

73 

 



  

case. The district court noted that there were no 

witnesses to the shooting and focused on the allegation 

that "the evidence of Respondent's possession of the gun 

in question was conflicting and the testimony of Ben 

Wright was obviously impeachable." (R3-22-30). 

Respondent submits that this finding by the district 
  

court is legally incorrect as the finding of harmless 

error is certainly supported by the record. (In fact, this ) 

Court sitting en banc in the original case specifically 

  

  

found harmless error as to Mr. Evans' testimony in 

relation to an allegation of a violation of Giglio v.   

United States, 405 U.S. 150 (1972). McCleskey v. Kemp,       753 F.24 877, 884 (11th Cir. 1985) {en banc). In so ) 

finding, this Court disagreed with the same district 

court's conclusion in that case that Evans' testimony was 

critical. In so finding, this Court held the following: 

Although we agree that his testimony 

added weight to the prosecutor's case, 

we do not find that it could "in any 

reasonable likelihood have affected the 

judgment of the jury." (cite 

omitted). Evans, who was called only 

in rebuttal, testified that McCleskey 

had told him that he knew he had to 

4 

  

 



  

shoot his way out, and that even if 

there had been twelve policemen he 

would have done the same thing. This 

statement, the prosecutor argued, 

showed malice. In his closing 

argument, however, the prosecutor 

presented the jury three reasons 

. supporting a conviction for malice 

murder. First, he argued that the 

physical evidence showed malicious 

intent because it indicated that 

McCleskey shot the police officer once 

in the head and a second time in the 

chest as he lay dying on the floor. 

Second, the prosecutor asserted that 

McCleskey had a choice, either to 

surrender or to kill the officer. That 

he chose to kill indicated malice. 

Third, the prosecutor contended that 

McCleskey stated to Evans that he still 

would have shot his way out if there 

had been twelve police officers showed 

malice. This statement by McCleskey 

was not developed at length during 

Evans' testimony and was mentioned only 

75 

 



  

14. 

testimony was crucial in relation to the Respondent being 

in passing by the prosecutor in closing 

argument. 

Evans' testimony that McCleskey had 

made up his face corroborated the 

identification testimony of one of the 

eyewitnesses. Nevertheless, this 

evidence was not crucial to the State's 

case. That McCleskey was wearing 

makeup helped establish that he was the 

robber entering the furniture store 

through the front door. This fact had 

already been directly testified to by 

McCleskey's accomplice and two 

eyewitnesses as well as corroborated by 

McCleskey's own confession. That 

Evans' testimony buttresses one of the 

eyewitnesses' identification is 

relatively unimportant. 

at 884-5. 

This Court also examined the question that Evans’ 

the triggerman. 

76 

 



  

McCleskey claims that Evans' testimony 

was crucial because the only other 

testimony which indicated that he 

pulled the trigger came from his 

codefendant, Ben Wright. Ben Wright's 

testimony, McCleskey urges, would have 

been insufficient under Georgia law to 

convict him without the corroboration 

provided by Evans. In Georgia, an 

accomplice's testimony alone in felony 

cases 1s insufficient to establish a 

fact. O.C.G.A. § 24-4-8. Wright's 

testimony, however, was corroborated by 

McCleskey's own confession in which 

McCleskey admitted participation in the 

robbery. (cite omitted). 

Corroboration need not extend to every 

material detail. 

The above finding by the district court is totally in 
  

conflict with the finding of this Court set forth above. 
  

testimony to be critical to the outcome of the case, 

The district court has once again found Mr. Evans’ 

contrary to the en banc holding of this Court. 

Weg af 50 

  

Respondent



  

submits that, as in the prior decision of this Court, the 

evidence presented by Offie Gene Evans was certainly not 

critical to the outcome of the case and any alleged 

Massiah violation would have been harmless beyond a 

reasonable doubt based upon the above holding of this 

Court in the en banc decision. Thus, Respondent submits 

that even had there been a Massiah violation, any such 

violation would have been harmless beyond a reasonable 

doubt and the district court's conclusion to the contrary 

is legally incorrect. 

<78~ 

 



  

IV. THE DISTRICT COURT ABUSED ITS 

DISCRETION IN DENYING RESPONDENT'S 

MOTION FOR RELIEF FROM JUDGMENT. 

If this Court concludes that the district court did 

not error in failing to find an abuse of the writ and was 

not clearly erroneous as to its factual findings as set 

forth above, then Respondent submits that this court 

should conclude that the district court did abuse its 

discretion in denying the Respondent's motion for relief 

from judgment and remand the case to the district court 

for further proceedings based upon that motion. 

As has already been noted, the district court found an 

alleged violation of Massiah v. United States, based upon 
  

the utilization of the testimony of Offie Gene Evans. In 

making this determination, the district court had 
  

testimony of all pertinent parties except for Mr. Evans 

himself. Mr. Evans did testify at trial and at the state 
—— . — 

  

    

habeas corpus hearing in this case; however, on neither 
  

occasion were any questions asked of Mr. Evans concerning 

whether he had been an agent of the state at the time of 

any conversation or in particular whether he had been 

moved to a particular cell or placed in a particular cell 

with directions to overhear conversations of the 

Petitioner. Although references have been made by 

-79~ 

 



  

Respondent to a deposition taken in the codefendant's 

case, again, at the time of that deposition, no 

allegations had been made that Mr. Evans had been actually 

been moved so that he was actually placed in the cell next 

to the Petitioner in order to overhear conversations. 

At the hearings held before the district court, 

extensive discussions were had on the record concerning 

the attempts to locate Mr. Evans. Although no direct 
  gm— 

attempts were made by counsel for the Respondent to locate 
  er 

Mr. Evans, this was not done due to the obvious futility 
-— a 
  

of any such efforts based upon the representations by 

counsel for the Petitioner. It should be noted that the 

original hearings held before the district court were 

conducted pursuant to a pending execution date and were 

originally intended to be arguments on the issue of abuse 

of the writ. During those hearings, the district court 

converted the hearings into hearings on the merits and, in 

fact, provided the Petitioner with all assistance possible 

in obtaining witnesses, including appointing the federal 

defenders’ office to assist, providing for service of 

subpoened by the federal marshal and allowing the taking 

of the testimony of one particular witness by way of a 

"telephone deposition.” With even all of this assistance 
pe 

provided by the district court, counsel for the Petitioner 

  

  

could not locate Mr. Evans; therefore, particularly in 
S— 
  I 

~80~ 

 



  

  

  

  yA 

light of the time constraints in which these hearings were 

held in two days, to even suggest that Respondent had some 

burden to make further obviously futile attempts to locate 

  

Mr. Evans is absurd./ Furthermore, based upon the 
  

representations made to the district court by counsel for 

the Petitioner, it is assumed that there was no point in 

engaging in further futile efforts to locate Mr. Evans 

between the time of the first hearings and the second 

scheduled hearing before the district court. 

At the hearings held before the district court, 

discussions were had on the record doncerning the attempts 

to locate Mr. Evans. On July 8, 1987, at the beginning of 

the hearing, the district court noted that the federal 

marshal had tried to serve Mr. Evans at this sister's 

house, but the sister had no idea of Mr. Evans’ 

whereabouts. (R4-3). At that same hearing, counsel for 

the Petitioner, Mr. Boger, noted that two assistants were 

trying £0 locate Mr. Evans. Jd. at 17. Mr. Boat later 

announced that the subpoena for Mr. Evans had been 

returned unserved. Mr. Boger stated that he thought Evans 

was a critical witness and was even considering applying 

for a bench warrant and also observed that Mr. Evans was a 

fugitive from probation in Fulton County at the time. Id. 

at 22. The Fulton County Assistant District Attorney was 

asked if he had information concerning the whereabouts of 

-81- 

 



  

Mr. Evans and he stated that he thought Mr. Evans had just 

gotten out of jail and other than the fact that Mr. Evans’ 

ex-wife used to work for Dobbs House, he had no other 

information concerning Mr. Evans' whereabouts. Id. at 174. 

At the hearing the next day, Mr. Boger noted that he 

had a "modest" lead and was hoping to find Mr. Evans that 

day. (R5-3). On that same day, the district court noted 

that the only witness that was germane to the issue that 

had not been called to testify was Offie Evans. Other 

counsel for the Petitioner, Mr. Stroup, noted that a 

private investigator who was a fothet FBI agent had been 

unable to locate Mr. Evans and Mr. Stroup also noted that 

the Petitioner had not had the opportunity to 

cross-examine Mr. Evans with his prior statement. Id. at 

135, 

    

  

Thus, the Petitioner and the district court obviously 

considered Mr. Evans to be a critical witness at the time 

of the first proceedings in the district court. Once Mr. 

Evans became available to testify, however, the district 

court somehow determined that Mr. Evans’ testimony was not 

essential and even repudiated its earlier statement that 

\ ie Evans was credible. 

As soon as counsel for the Respondent was advised that 

Mr. Evans had been taken into custody by the Fulton County 

authorities, which was on April 11, 1988, Respondent 

-82- 

 



  

promptly filed a motion for remand in this Court on April 

12, 1988, setting forth the facts pertaining to the 

location of Mr. Evans and requesting this Court to take 

some appropriate action due to the fact that the briefing 

schedule was running. This Court denied the motion for a 

limited remand without prejudice to allow the Respondent 

to file a motion under Rule 60(b) of the Federal Rules of 

Civil Procedure. 

Respondent then promptly filed the appropriate motion 

with the district court on May 6, 1988. (Rl Supp.-31). 

After various pleadings were filed in the district court, 

the deposition was taken of Offie Evans and other 
  
——_—— 

documents were submitted to the district court, the 

district court entered an order denying the motion for 

relief from judgment finding that insufficient cause had 

been shown under Rule 60(b) to justify the granting of 

such relief. Respondent submits that this was an abuse of 

the discretion of the district court. 

In filing the motion with the district court, the 

Respondent recognized that the testimony of Mr. Evans did 

. . . . * _—" _- . = — not fit within the traditional definition of newly 

  

  

distovered evidence as Mr. Evans was known to be a 

critical witness previously and there was some indication 

  

from the record that he would testify contrary to what had 

been presented at the district court hearing. The 

83 

 



  

question was simply that Mr. Evans was not available to 

testify before the district court and, under those 

circumstances, it should be deemed to be newly discovered 

under Rule 60(b)(2), or should have justified relief from 

judgment under Rule 60(b)(6) permitting judgment to be set 

aside for "any other reason justifying relief from the 

operation of a judgment." 

This Court has examined a motion filed under Rule 

60(b) (2), treating such motion as an extraordinary motion 

for new trial based on newly discovered evidence. This 

Court thus acknowledged a five-part test as follows: 

(1) the evidence must be newly 

discovered since the trial; (2) due 

diligence on the part of the movant to 

discover the new evidence must be 

shown; (3) the evidence must not be 

merely cumulative or impeaching; (4) 

the evidence must be material; (5) the 

evidence must be such that a new trial 

would probably produce a new result. 

-84-~ 

 



  

- Scutieri v. Paige, 808 F.2d 785, 793 (11th Cir. 1987). In   

filing the motion with the district court, Respondent 
  

acknowledged that the testimony of Mr. Evans would not fit 
CS ————— 

in the traditional definition of newly discovered evidence 
A —————— 

he was not a newly discovered witness, nor were the 

      

  

  

  

    
   contents of his testimony a surprise to the Respondent; 

rather, the location of Mr. Evans and his availability was 

different from the time it was at the time of the original 
    ! hearings. / Respondent suggested to the district court that   

LH3E wns sufficient to satisfy the first prong of the 

requirements set forth above. Furthermore, although 

Respondent did not make independent efforts to locate the 

whereabouts of Mr. Evans, the record is replete with 

efforts by counsel for the Respondent, including utilizing 

the Federal Defender Program, a private investigator, the 

federal marshal and whatever other resources the district 

court could provide, to obtain the presence of Mr. Evans 

at the hearings. When these efforts by the Respondent 

were unavailing, it seems absurd to conclude that the 

Respondent somehow could have obtained the testimony of 

Mr. Evans through further efforts and should have made 

other obviously futile efforts to locate his whereabouts. 

The district court's suggestion that somehow the 

Respondent had more resources is contradicted by review of 

~85= 

 



  

the record which shows the amount of assistance provided 

to the Petitioner by the district court as set forth 

previously. The district court in fact did virtually 

everything it could to provide the Petitioner with the 

opportunity to present any and all witnesses and the 

opportunity to try to find Mr. Evans. 

  As to the third requirement set forth in Scutieri, 

that the evidence not merely be cumulative or impeaching, 

a review of the deposition of Mr. Evans as tendered to the 

district court clearly establishes that the evidence was 

material, the district court even so found, and was simply 

cumulative or impeaching but related directly to the issue 

on point. Mr. Evans testified in his deposition that he 

was housed in cell number fourteen on the first floor in 

the north wing when he was initially placed in the Fulton 
  

County jail. (Evans' deposition at 13-14)./ Mr. Evans 

further testified that he began talking to Mr. McCleskey 

and Mr. Depree from the first day he was incarcerated. 1d 

at 15. Evans stated that the did not talk to any officers 

before talking to the deputy at the jail and relaying to 

the deputy that the had information concerning Mr. 

McCleskey and Mr. Depree. 1d. at 17. Mr. Evans further 

said that he never talked to Ulysses Worthy about this 

particular case. Id. at 19. 

-86- 

 



  

  

Mr. Evans emphatically stated that he was not moved 

from one cell to another in the Fulton County jail, that 

no one asked him go talk with the Petitioner or Depree and 

that he did not talk to them at the direction of anyone. 
ee ——— ” —— 

     

    
   

~23. Thus, just =a short review of the testimony 

  

clearly establishes that Mr. Evans' testimony would have 

directly contradicted that of Mr. Worthy and would have 

corroborated the testimony of the other witnesses 

concerning the possible move and, rather than being 

cumulative or impeaching, it is the testimony of the 

witness in question as to what his actions were and the 

\ reasons for them. 
  

At the deposition of Mr. Evans, he gave testimony 

reflecting on the question of diligence and whether 

further efforts should have been made to obtain his 

testimony earlier. Mr. Evans testifed that the only way 

he heard about the McCleskey case was from being told 

there was an article in the newspaper. He testified that 

he was not even in Atlanta at the time. (Evans 

deposition at 25-27). He had been advised by certain 

members of his family that a man had been to his house on 

numerous occasions trying to locate him. Thus, it appears 

that any further attempts to locate Mr. Evans would very 

likely have been futile. 

87 =~ 

 



  

Finally, Respondent submits that contrary to the 

assertions of the district court, if the evidence was 

properly considered and proper credibility findings were 

made, the evidence is such that a new trial would probably 

produce a new result. The district court chose to ignore 
—   

its own earlier statements that Evans' written statement 
  

  

  

to the authorities were credible and that Mr. Evans would 
  

  

      
  

  

be a credible witness and conclude that Mr. Evans would 
— : a—— 

have some reason for lying due to the fact that he would 

not be want to be known as an informant. This conclusion 

is unwarranted as the mere fact that Mr. Evans testified 

in the trial of the Petitioner's case establishes the 

danger of which Mr. Evans was concerned. With Mr. Evans 

testifying directly contradictory to the only witness 

truly credited by the district court and when that one 

witness gave such an implausible version of events, and 

when Mr. Evans' testimony corroborate the testimony of 

other witnesses and provides a logical chain of events 

that occurred, then it seems quite likely with Mr. Evans’ 

live testimony were even given appropriate or if his 

deposition were appropriately considered, a different 

result should be produced. 

Under these circumstances, Respondent asserts that the 

requirements of Rule 60(b)(2) have clearly been met and 

the district court refused its discretion in not so 

finding. 

~-88- 

 



  

Even if this Court finds that the district court did 

not abuse its discretion in concluding that the 

requirements of Rule 60(b)(2) had not been met, Respondent 

submits that this case then falls squarely within the 

parameter of Rule 60(b)(6), providing for the granting of 

such relief for "any other reason justifying relief from 

the operation of the judgment." Under the unusual 

circumstances of the instant case, the availability of Mr. 

Evans would justify the granting of relief from judgment. 

The United States Supreme Court has recently 

considered Rule 60(b)(6), noting, "the rule does not 

particularize the factors that justify relief, but we have 

previously noted that it provides courts with authority 

‘adequate to enable them to vacate judgments whenever such 

actions are appropriate to accomplish justice,' (cite 

omitted), while also cautioning that it should only be 

  

  

applied in 'extraordinary circumstances.' (Cite 

omitted)." Liljeberg v. Health Services Acquisition 

COrp., U.S. +108 S.Ct, 2194, 2204 (1988). - This   

Court has also examined this particular rule noting, "Rule 

60(b) has vested the district courts with the power to 

vacate judgments whenever such action is appropriate to 

accomplish justice'." Griffin v. Swim-Tech Corp., 722 
  

F.2d 677, 680 (11th Cir. 1984), quoting Klapprott v. 
  

United States, 335 U.S. 601, 615 (1949). Respondent   

-89- 

 



  

submits that under the circumstances of this case, the 

granting of the relief under Rule 60(b) is appropriate. 

The district court seemed to conclude that the granting of 

such relief was not appropriate as there was no conclusion 

that the denial of the motion would result in an extreme 

hardship to the Respondent. This completely ignores the 

fact that the district court had granted habeas corpus 

relief in this action resulting in the necessity of a new 

trial by the state years after the original trial was 

completed, requiring extensive efforts to relocate 

evidence, witnesses, and prepare a case for trial when 

with the granting of the motion, such extreme hardship 

might not result. 

Under the circumstances of this case, Respondent 

submits that justice virtually dictates the granting of 

the motion for relief from judgment in the instant case 

and, therefore, the district court's failure to do so is 

clearly an abuse of discretion. 

~-90- 

 



  

CONCLUSION 
  

For all of the above and foregoing reasons, 

Respondent-Appellant prays that the judgment and verdict 

of the district court insofar as it grants habeas corpus 

relief and finds a Massiah violation be reversed.   

Respondent-Appaellant further prays that should this Court 

not find that the district court erred as to abuse of the 

writ and the alleged Massiah violation, that this Court 

conclude that the district court abused its discretion in 

denying the motion for relief from judgment. Thus, 

Respondent-Appellant prays that this Court either conclude 

that relief should be denied in its entirety or remand the 

case to the district court for further consideration based 

on the Rule 60(b) motion. 

Respectfully submitted, 

MICHAEL J. BOWERS 071650 
Attorney General 

H. PERRY MICHAEL 504000 
Executive Assistant 
Attorney General 

Alt aye” SO rll £2 (hur 
  

WILLIAM B. HILL, JR. ’ 354725 
Deputy Attorney General 

Bit 

 



  

Chien la nr 

  

Please serve: 

MARY BETH WESTMORELAND 

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

  

SUSAN V. BOLEYN (065850 
Senior Assistant Attorney General 

Ve 

MARY/ BETH WESTMORELANB 75015 
Sen¥or Assistant Attorney General 

L,Y 

0 

 



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DO NOT WRITE BELOW THIS LINE 

Total Page Count /() 7 Date </ iE a 
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- Operator _ SR 

  

  
  

   



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH ClRCUIT 

  

NOS. 88-8085 

& 89-8085 

  

WARREN McCLESKEY, 

Petitioner /Appellee, 

Cross-Apellant, 

Vv. 

WALTER ZANT, Warden, 

Respondent/Appellant, 

Cross—-Appellee. 

  

MOTION FOR EXTENSION OF TIME 

AND TO EXCEED PAGE LIMITATION 

FOR BRIEF OF THE APPELLEE 

  

ROBERT H. STROUP 

141 Walton Street 

Atlanta, Georgia 30303 

JOHN CHARLES BOGER 

99 Hudson Street 

i6th PFPloor 

New York, New York 10013 

ATTORNEYS FOR PETITIONER/APPELLEE 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

  

NOS. 88-8085 

& 89-8085 

  

WARREN McCLESKEY, 

Petitioner /Appellee, 

Cross-Apellant, 

Vie 

WALTER ZANT, Warden, 

Respondent /Appellant, 

Cross—-Appellee. 

  

MOTION FOR EXTENSION OF TIME 

AND TO EXCEED PAGE LIMITATION 

FOR BRIEF OF THE APPELLEE 

  

Comes now Warren McCleskey, Appellee in the above- 

styled action, through counsel, and moves this Court for a 

two-week extension of time for the filing of Appellee's 

brief=to and including June 27, 1989. 

Appellee seeks this extension of time because of New 

York counsel's involvement in the en banc proceedings in 

Moore v. Zant No. 84-8423. Counsel learned earlier this 
  

week -- on May 16, 1989 ~~ that the Court would hear oral 

argument on that case on June 5, Counsel also is involved 

in a major education case in Connecticut, where responsive 

 



  

Pleadings will need to be filed during the first week in 

June, 

Appellee also moves this Court for permission to file a 

brief in excess Of the limitation set out in Rule 28-1 of 

the Rules of this Court, showing and stating the following: 

This case 1s an appeal taken by the respondent from the 

granting of habeas corpus relief by the United States 

District Court for the Northern District of Georgia and from 

the denial of a motion for relief from judgment under 

F«R.Clv.P. 60(D). The appellant has filed his initial brief 

consisting of 92 pages. The brief raises four issues, each 

of which is factually intensive. The appellee requests 

permission to file a brief up to and including 80 pages in 

length. 

Appellee makes these requests in the belief that he 

will be better able to brief the issues before the Court if 

the requests are granted. 

Counsel for appellee has been authorized by counsel for 

appellant to advise the Court that appellant has no 

objection to appellee's request to exceed the page 

limitation, and further, that respondent takes no position 

with respect to the request for an extension of time. 

CONCLUSION   

WHEREFORE, based upon all the foregoing, Appellee 

Warren McCleskey requests a two-week extension of time for 

filing his brief - to and including :June™27, 19839 - and 

 



  

requests permission to file a brief 

limit up .to and including 80 pages in length. 

Respectfully submitted, 

in excess of the page 

  

ROBERT H. STROOD? 

141 Walton St., N.¥W. 

Atlanta, Georgia 30303 

JOHN CHARLES BOGER 

93% Hudson St. 

16th Floor 

New York, New York 10013 

ATTORNEYS FOR APPELLEE 

 



  

CERTIFICATE OF SERVICE 

1 40 herepy certify that 1 have this day:served he 

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

depositing a copy thereof, postage prepaid, in the United 

States Mail, properly addressed upon: 

MARY BETH WESTMORELAND 

132 State Judicial Building 

40 Capitol Square, S.W. 

Atlanta, Georgia 30334 

1 
This Ti day of May, 1989. 7 

Ebert. Bes 
  

  ROBERT H. STROUP I 

 



  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

Nos. 88-8085 
89-8085 

  

WARREN McCLESKEY, 

: : Petitioner-Appellee, 

8 -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 
  

STATEMENT OF THE CASE 
  

(i) Course of Prior Proceedings 
  

Mr. McCleskey accepts the 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 

denied Warden Zant's motion to reopen the judgment under Rule 

60 (b). 

All of these claims require an extensive factual statement 

clarifying: (i) the route by which the Massiah claim came to the 

attention of Mr. McCleskey's counsel; (ii) the evidence of the 

Massiah violation; (iii) the evidence on the State's indictment 

of homicide, apart from Offie Evans' testimony, that was 

presented to Mr. McCleskey's jury in 1978; and (iv) the 

circumstances surrounding Warden Zant's motion to reopen the 

judgment in 1988. Each of these areas will be addressed in turn. 

or The State's Allegations Of Abuse Of The Writ 
  

At the heart of Mr. McCleskey's Massiah claim, the District 

Court noted (R3-22-15, 19), are two items of evidence: the 

testimony of 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 

21l-page typewritten statement given by Offie Evans =-- a chi=f 

witness against Mr. McCleskey -- to State authorities on August 

1, 1978. (See R1-1, Exhibit E; Fed. Exh. 8). 1 To resolve the 

issue of abuse of the writ, this Court must review when, and 

under what circumstances, those two items came to the attention 

  

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. 

 



  

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 2l1l-page statement by Offie Evans at issue in this 

case (which itself contained numerous, purportedly verbatim, 

statements and admissions ostensibly made by Mr. McCleskey to 

Evans while both were incarcerated in the Fulton County Jail in 

July of 1978.) 

Defense counsel Turner did not acquiesce in the access 

provided by the prosecution; instead, he filed one or more 

pretrial motions under Brady Vv. Maryland, 373 U.S. 83 (1963), 
  

seeking all written or oral statements made by Mr. McClesKkey to 

anyone, and all exculpatory evidence. 2 

After conducting an in camera review, the trial court denied 
  

Turner's motion, holding without elaboration that any evidence 

withheld by prosecutor Parker was "not now subject to discovery." 
  

4 Although the District Court held that the precise 
documents proffered as in Mr. McCleskey's federal petition (see 
R1-1, Exhibit M) had not been properly authenticated, (R4- 73- 
81), Warden Zant conceded, and the District Court found, "that a 
request was made for statements, which is necessarily implied 
from the action of the trial court."(Id. 78). Subsequently, a 
discovery request of the District Attorney's files disclosed 
copies of Turner's Brady motions, which had been signed and 
received by the District Attorney. Warden Zant stipulated to 
these facts at the August 10th federal hearing. (R6-118). 

3 

 



  

(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 

freely 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, 1 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. 1I 
am 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. 

THE COURT: This is not a statement of the defendant. 

MR. TURNER: We are not talking about a statement of 
  

3:Ina deposition taken by Mr. McCleskey's counsel during 
state habeas proceedings, prosecutor Parker testified as follows: 
"[Tihe 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). 

% 

 



  

the defendant. 

THE COURT: I don't know that we are talking about anv 
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. 

(R1-1, Exhibit O, 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), 

obviously 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 jury in its entirety." McCleskevy Vv. 
  

State, 245 Ga. 108, 263 S.E.2d 146, 150 (1980) (emphasis added). 

Thus, trial counsel, although unaware of the 2l-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 

Georgia Supreme Court implied that no written statement existed 

Or that, if one 4ld4, it was introduced +o 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, throughout state habeas corpus proceedings, he was guided 

by his review of the trial and appellate proceedings, from which 

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." (R1-7-2; Fed. Exh. 

l; see. also id., at 8; R4-45). Nevertheless, Mr. Stroup sought 
  

himself to review the prosecutor's investigative file and 

obtained, during the prosecutor's deposition, an agreement for 

production of "the entire file" made available to defense 

counsel. (Fed. Exh. 3, 4-6). 

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 

"[e]lnclos[ing] ... a complete copy of the prosecutor's file 

resulting from the criminal prosecution of Warren McCleskey in 

Fulton County." (Fed. Exh. 7). The 2l-page written statement of 

Offie Evans was not included. (R1-7-3; Fed. Ex. 2). Relying on 

that representation, it did not occur to Mr. Stroup that any 

written statement existed. (R1-7-10). 

Prosecutor Parker did make one oblique reference to such an 

item during his deposition during state habeas proceedings. 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. 

(R1-7, 9-10). 

After reviewing the sequence of events, the District Court 

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 

7 

 



  

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 this finding. (R3-22-25). 

3. The Discovery Of Evans's Written Statement 
  

Offie Evans's 2l-page statement first came to light in June 

of 1987, because of a fortuitous development on May 6, 1987, in 

an unrelated Georgia case, Napper Vv. Georgia Television Co., 257 
  

Ga. 156, 356 S.E.2d 640 (1987), which appeared to bring police 

investigative files, for the first time, within the compass of 

the Georgia Open Records Act, 0.C.G.A. § 50-18-72(a). Mr. Stroup 

immediately used that then-recent decision, still pending before 

the Georgia Supreme Court on rehearing, as a basis for requesting 

the police files in McCleskey's case from the Atlanta Bureau of 

Police Services. (R1-7-6). Because of the pending rehearing, 

attorneys for the Atlanta Bureau were reluctant to disclose the 

documents requested, but on June 10, 1987, they agreed to provide 

Mr. Stroup with one document -- which proved to be the 2l1-page 

statement made by Offie Evans. (R1-7-7). 

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 

8 

 



  

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 

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 

  

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 
realtor who I know up in that area." (R4- 48-49). 

2 

 



  

relationships between Offie Evans and the State: 

Q. [Mr. Stroup]: Okay. Were you aware at the time of 
the trial of any understandings between Evans and any 
Atlanta police department detectives regarding 
favorable recommendation [sic] to be made on his 
federal escape charge if he would cooperate with this 
matter? 

A, [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).° 

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 
County Jail and when he overheard these conversations 
of Mr. McCleskey? 

A. I don't know of any instance that Offie Evans had 
worked for the Atlanta Police Department as an 
informant prior to his overhearing conversations at the 
Fulton County Jail. 

(Fed. Exh. 3, 14-15). On redirect examination, Mr. Stroup once 

again sought, without success, information Parker on possible 

deals with, or promise made to, Offie Evans. (See Fed. Exh. 3, 

18-20). 

Mr. Stroup subsequently explained that he did not carry Mr. 

  

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). 

10 

 



  

McCleskey's Massiah claim forward into his initial federal 

petition, because he had been unable factually to substantiate 

it: 

... 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). 

In 1984, when he filed his second federal petition, Mr. 

McCleskey's Massiah claim relied primarily upon Offie Evans's 

2l-page statement, not Ulysses Worthy (see R1l-1, 7-13), since 

Worthy, who had retired from the Fulton County Jail in 1979, had 

not been identified by McCleskey or anyone on his defense tean. 

Worthy's appearance at the hearing was the serendipitous result 

of a massive, indiscriminate effort by McCleskey's counsel, 

during the July 8-9th federal habeas corpus hearings, to subpoena 

everyone mentioned in any document uncovered by counsel during 

the hearing. (R4-21). Neither counsel for Mr. McCleskey nor 

counsel for Warden Zant had ever spoken with Mr. Worthy until 

moments before he took the stand on July 9, 1987. (R6- 50-52). 

C. The Findings Of The District Court 
  

After receiving all of the documents and hearing 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- 

11 

 



  

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]Jounsel 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. McCleskey's Claim Under Massiah v. United States 
  

Mr. McCleskey's constitutional claim at issue on this 

appeal 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 

statements from Mr. McCleskey (R1-1-7), and that the State's use 

of Evans's testimony, and those statements, against Mr. 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 R1-1- 7-13). 
  

The principal evidence on which McCleskey has relied was 

presented during three days of federal habeas corpus hearings in 

July and August of 1987. The cornerstones of McCleskey's case 

12 

 



  

are, as indicated, are (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 live 

testimony of Ulysses Worthy. 

The full significance of these two items 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 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. 

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. © The State also relied on two witnesses, both of whom 
  

© 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. 

1s 

 



  

claimed that McCleskey had confessed to them, after the crime, 

that he had shot Officer Schlatt. One of the two witnesses was 

Ben Wright -- a co-defendant and dominant actor in the armed 

robbery (see Tr. T. 651-657) who was himself the other most 

likely suspect in the shooting. 

Apart from Wright, the only witness offering direct 

testimony that Mr. McCleskey had been the triggerman was Offie 

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 

officer" (Tr. T. 871; Ped. 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). 

  

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, although she recanted her statement at 
trial, instead conforming her testimony to that of her boyfriend 
Wright, that McCleskey had taken the .38 pistol the morning of 
the crime. (Tr. T. 607; 631-634). z 

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

14 

 



  

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 Mr. McCleskey's 1981 state habeas hearing, Offie 

Evans took the witness stand a second time. During his 

testimony, Evans revealed that he had engaged in at least two 

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; Ped. Exh. 16, 117); and the 

second, with prosecutor Russell Parker. (St. H. Tr. 118; Fed. 

Exh. 16, 118).8 

In response to a question by the state habeas court, Evans 

revealed that his trial testimony had come in exchange for a 

promise of assistance with criminal charges pending against him 

in 1978: 

THE COURT: Mr. Evans, let me ask you a question. At 

  

8 Ooffie 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 rignt. 

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

15 

 



  

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 
  

Subsequently, during Mr. McCleskey's second habeas corpus 

proceedings in June of 1987, a 2l-page, typewritten statement 

made by Offie Evans came to light. Evans's 21-page statement 

purports to be an account of a series of conversations between 

Evans and Warren McCleskey, initiated on July 9, 1978, while both 

were incarcerated in adjacent cells at the Fulton County Jail. 

(See Fed. Exh. 8; see also R1l-1, Exhibit E).   

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 

  

9 ©The circumstances that ultimately led counsel for Mr. 
McCleskey to the statement are recounted at pages xxxx infra. 

16 

 



  

were known only to Atlanta police and to the participants, 10 

established himself with McCleskey as a reliable "insider," and 

then began systematically to press McCleskey for information 

about the crime.ll 

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. Russell Parker testified 

that he met with Offie Evans, in the presence of Atlanta police 
  

10 por 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. 

11 1n 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.' 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). 

17 

 



  

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 Offie Evans prior to July 12th (R4- 

140); and (iii) that Evans had not been asked on July 12th 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 of Evans that after their July 12th 

meeting. Written notes by Parker, dated July 25, 1978, reflect 

that Parker learned 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.” (Id.) 

2. The Testimony Of Police Officers Harris and Jowers 
  

18 

 



  

Two other police officers investigating the McCleskey case, 

Welcome Harris and W. K. Jowers testified that they had likewise 

not known Evans prior to July 12, 1978. (R4-200). Officer 

Jowers, who was not present at the July 12th meeting, 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 informer in other cases. (1d.) 

Detective Dorsey testified that 

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). 

19 

 



  

Despite this prior existing informant relationship with 

Offie Evans, Detective Dorsey professed a total lack of memory 

concerning his dealings with Evans in this case: 

Qo. 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 hearings that he 

had met with Evans during the McCleskey 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 made it clear, 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). 

20 

 



  

Moreover, all of the other participants testified that their 

recollections concerning Officer Dorsey's role in the McCleskey 

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 

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 was 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 Atlanta Detective Sidney Dorsey and 

21 

 



  

Offie Evans. (R5-147-149). 

During this meeting, Detective 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).12 | 

As captain of the day watch, Worthy acknowledged that he 

had occasionally received other requests from Atlanta police 

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 the 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 

  

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

22 

 



  

in a specific location in the Fulton County 
Jalil 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? . +.  .iin this 
particular case this particular person was 
already incarcerated. They just asked that 
he be moved near where the other gentleman 
was. 

(R5-155) .13 

5. Offie Evans 
  

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

McCleskey submitted affidavits (R1Supp.-35- Aff't of Bryan A. 

Stevenson and Aff't of T. Delaney Bell, both dated July 7, 1987), 

and recounted to the Court 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. (R4- 17-21). 

  

13 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). 

323 

 



  

D. The Auqust 10th Hearing 
  

At the close of the July 8-9, 1987 federal hearing, the 

District Court allowed Warden Zant a ménth's recess in order to 

locate any further witness it 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, the State re-called 

Ulysses Worthy. Mr. Worthy's August testimony accorded in most 

fundamental respects with his July 9th account. 14 Worthy 

agreed, after some initial confusing testimony concerning Carter 

Hamilton, another deputy jailor, that "an officer on the case 

made [a] request for [Evans] to be moved," (R6-50) .15 Moreover, 

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 

  

14 Moreover, on cross-examination, Mr. Worthy specifically, 
reconfirmed every important feature of his July 9, 1987, 
testimony, point-by-point. (R6- 25-35). 

15 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). 

24 

 



  

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 on August 

10th was his suggestion that the police request to move Evans 

came only on July 12th, 1978, at the close of the meeting between 

Evans, Russell Parker, and Atlanta police officers. (R6- 16-19; 

id. 36-38). Worthy attempted on August 10th to explain that his 

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; 14d. 

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 even attended this 

25 

 



  

second meeting. (Id.). 

Moreover, Mr. Worthy was unable on cross-examination to 

explain how Offie Evans could have: (1) overheard conversations 

between McCleskey and Dupree on July 8-11, 1978; (ii) engaged in 

extensive conversations with McCleskey on July 9th and 10th; and 

(iii) have received a written note from McCleskey (which he 

passed directly to Russell Parker during their July 12, 1978 

meeting), if Evans was moved to a nearby cell only after July 
  

12th. (R6 =40-44). Nor could Evans explain why Atlanta 

investigators would have requested 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 very fruits offered by Evans on July 12th. 

(R6- 39-44). 

Mr. Worthy did acknowledge that, at the time of his initial 

federal testimony on July 9th, he did not know anything 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). 

In addition to Ulysses Worthy, Warden Zant also re-called 

the Atlanta prosecutor and police, who reiterated their denials 

of involvement with Offie Evans as an informant. 

2. The Testimony Of Deputy Jailor Hamilton 
  

26 

 



  

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 between 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), and although 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). 

On cross-examination, Deputy Hamilton admitted that he could 

not say affirmatively whether Offie Evans had been held prior to 

July 8, 1978, in another part of the Fulton County Jail. There 

were some 700 to 900 prisoners being held in July of 1978; that 

they were held on two separate floors in three different wings; 

and that, had Offie 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 that the one 

Deputy Hamilton worked on the first floor -- Hamilton 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 
  

27 

 



  

The District Court, after reciting the testimony and 

documentary evidence (R3-22- 15-18, 19-21) and analyzing 

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 
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. 

* de ok ok 

[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, R1lSupp.-40- 9-10). In a subsequent 

paragraph, the District Court summarized the likely motivation 

28 

 



  

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). 

ITY. The Harmless Error Issue 
  

Mr. McCleskey was indicted and tried by the Fulton County 

Superior Court on one count of murder, and two counts of armed 

robbery. (Tr. T. 987). At the close of the guilt phase, the 

Superior Court instructed the jury on theories of malice murder 

(Tr. T. 9298-999) 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...." 

29 

 



  

(1g-3.46 

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. 
. « .[Tlhe chronological placement of Evans testimony 

  

16 The court had earlier charged the jury, in a general 
section, on 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 corime, or 
intentionally advises, encourages, hires, counsels or 
procures another to commit the crime. 

(Tr. T. 994). 

30 

 



  

[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). 

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

In April of 1988, while the 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 

Offie 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 (R1lSupp.-31). 

After receiving responsive papers (R1Supp.-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." 

(R1Supp.-34-1). Instead of dismissing the motion, however, the 

District Court granted Warden Zant six weeks to conduct 

additional discovery. (R1lSupp.-34-2). 

A. The Issue Of Warden Zant's "Due Diligence" 
  

During that discovery period, Warden Zant acknowledged, in 

responses to written interrogatories: (1) that neither he nor 

Si 

 



  

anyone under his direction had sought to locate Offie Evans at 

any point during or after the 1987 federal hearings (R1Supp.-35- 

Resp. Answer To First Interrog.-1-2); (ii) that his office never 

indicated, either to the District Court or counsel for Mr. 

McCleskey, any intention or desire to call Offie Evans in 1987 

(id. at 2); 17 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. 

(1d.) 18 

Counsel for Mr. McCleskey also discovered, and presented the 

District Court, documentary evidence that Offie Evans's 

  

Phe 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 counsel for Mr. McCleskey of any 
witnesses he anticipated calling at 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. 

18 puring that hearing, counsel for Mr. McCleskey detailed, 
in affidavits proffered to Warden Zant's counsel, the hurried 
efforts they had made to locate Offie Evans in June of 1987, just 
prior to the hearing. (See R4-17; R1lSupp.-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 that he did not know precisely where 
Evans was: 
"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). 
  

32 

 



  

deposition had been taken in another case in October of 1981, 

that the deposition had covered issues 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 -- although 

Zant had obviously chosen not to offer it during Mr. McCleskey's 

1987 proceedings. (R1lSupp.-38-2, 18-19). 

B. The Materiality Of Offie Evans' 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. (R1lSupp.-37). 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. 

During his July 13th deposition, Evans denied ever being 

moved while in the Fulton County Jail in 1978, or ever being 

asked to serve as an informant against Warren McCleskey. 

(R1Supp.-37- 15-21). 

Evans' 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. (R1Supp.~37-15, 54). In his August 1, 1978, 

33 

 



  

typewritten statement to Russell Parker, Evans states that he did 

not begin speaking with McCleskey until July 9th. (Fed. Exh. 8). 

During his July 13th deposition, Evans denied ever meeting with 

Russell Parker prior to August 1, 1987 (R1lSupp.-37-21); Parker 

and other witnesses have testified that the two met on July 12, 

1978. 

Evans also maintained during his deposition that Detective 

Dorsey had never promised to "speak a word for him" in exchange 

for his testimony against Mr. McCleskey (R1Supp.-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. (R1lSupp.-37-46, 75). This 

testimony contradicted Dorsey's own testimony given during the 

1987 federal hearings, as well as the information about Evans's 

activities as an informant which Russell Parker testified he had 

obtained from the FBI and from Federal Corrections officials. 

Evans also denied that he had spoken with Russell Parker at any 

point prior to his 1988 deposition. R1Supp.-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. (R1lSupp.-35- 

Resp. Answer to First Interrog. at 3).1° 

  

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. (R1lSupp.-38). 

34 

 



  

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." (R1Supp.-40-6). 

Turning to the issue of due diligence, the District Court 

found that "respondent made no efforts to locate Evans during the 

summer of 1987." (R1lSupp.-40-8). "[T]lhe 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.” (I4d.). 

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 that of 

35 

 



  

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). 

SUMMARY OF ARGUMENT 
  

ARGUMENT 
  

YX. 

MR. McCLESKEY DID NOT ABUSE THE WRIT OF HABEAS CORPUS 

BY FAILING TO UNCOVER MISCONDUCT BY ATLANTA POLICE 

OFFICERS THAT ONLY CAME TO LIGHT IN 1987 

Warden Zant's argument under Rule 9(b), like his argument on 

the merits, rests on an appeal to this Court to overturn the 

factfindings of the District Court, made after a full evidentiary 

hearing. Warden Zant's burden is enormous. The District Court's 

factfindings on abuse of the writ are subject to the same strict 

    

Rule 52 standards as are determinations on merits issues. See, 

e.dg., Amadeo V. Zant, U.S. , 100 L.E4A.24 249, 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 262 (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. 

36 

 



  

"'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 0 

prevail, then, Warden Zant must persuade this Court that only one 

view of the evidence is possible: "the 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 City, 470 U.S. 564, 574 
  

(1985). 

The record in Mr. McCleskey's case, however, does more than 

permit the careful findings of the District Court: it amply 

supports those Sudomente on every particular. 

The central flaw undercutting Warden Zant's entire argument 

on abuse is one intractable fact: the District Court has 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 -- for nearly a decade. 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. 

Mdcleskey and his counsel "abused the writ of habeas corpus" by 

failing to uncover misconduct whose very aim was to remain hidden 

37 

 



  

-- misconduct that escaped the attention of Assistant District 

Attorney Parker, Warden Zant and his counsel, and everyone else 

connected with this case, until Ulysses Worthy, an apparently 

peripheral 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 utterly forbid the State to rely 

on its own proven misconduct as a basis for barring Mr. McCleskey 

from relief. As the Supreme Court insisted 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 its misdeeds 

and then, when caught, to fault a habeas applicant for not 

detecting the misconduct sooner. 

A. Warden Zant's Arqument of "Deliberate Abandonment" 
  

Warden Zant's principal argument is that Mr. McCleskey 

"deliberately abandoned the [Massiah] claim prior to the filing 

of his first federal petition." (Resp. Br. 13; id. at as). 

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 

38 

 



  

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, and 

since failed to assert it in his first federal petition, Warden 

Zant concludes that the claim was irrevocably abandoned. 

Zant dismisses the testimony of Mr. McCleskey's counsel that 

he did not pursue the Massiah claim in his initial feforal habeas 

petition because he had failed to uncover any evidence to support 

his suspicion of a possible informant relationship: 

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). 

Warden Zant's legal contentions here have absolutely 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 1s not an abandonment that "for 
strategic, tactical, or any other reasons ... can 
fairly be described as the deliberate by-passing of 
state procedures.” Fay Vv. Noia, 372 U.S. 391, 439 
(1963), quoted in Potts v,. Zant, 638 .F.24 727, 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. Wainwright, 764 
F.24:1371, 1377 (11th Cir. 19385). 

  

  

  

  

39 

 



  

(R3-22-24). 

Deliberately to abandon a claim, Warden Zant himself 

concedes, requires a "knowing choice." (Resp. Br. 19). Indeed, 

the Supreme Court emphasized in Fay 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.24 727 
  

(5th Cir. Unit B 1981) firmly adhered to Fay 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 

element inter alia in finding a deliberate bypass." Potts v. 

Zant, 638 F.2d at 741 (emphasis added). Accord: Paprskar v. 

20 The most celebrated case on this point is Price wv. 
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 made at trial by the prosecution's chief witness. 
Subsequently, on an amendment to his fourth federal petition, the 
petitioner alleged 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 petitioner 
had 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. 

40 

 



  

Estelle, 612 F.24 1003, 1006 (5th Cir. 1980). Deliberate 

abandonment, in other words, must be "knowing and intelligent" as 

well as "deliberate" in order to constitute an abuse. Potts wv. 
  

Zant, 638 F.2d at 743-744. 

The Potts majority pointed to the case of Wong Doo 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 Doo. 

  

  

  

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. 

He supplied a good and sufficient reason to the District Court 

for his failure to present all the proof in his initial state 

habeas proceeding. 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 

41 

 



  

the preceding federal application." Moore v. Kemp, 824 F.2d 847, 
  

851- 411th Cir. 1987). That holding is fully 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. Wainwright, 764 F.2d 1371, 1376 (11th Cir. 1985); Haley 
  

Y. Estelle, 632 P.24 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 vv, 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 Vv. Maggio, 709 P.24 341, 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, 1it 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 state 

investigation, to uncover the well-concealed facts that now 

prove Evans' informant relationship. 

42 

 



  

B. Warden Zant's Allegations of "Inexcusable Neglect" 
  

Warden Zant's alternative argument is advanced only 

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" by Mr. McCleskey and his 

counsel that 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 inguirv." (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 which, addressing an unrelated issues, 
mentioned 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. 
  

  

43 

 



  

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 there was thus "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 possessed a basis for suspecting 

that Offie Evans might have been acting under State authority. 

Far from neglecting these circumstances, 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 

  

38)." In this quotation, Zant detects "a clear factual finding 
. . . that there was actually a written statement from Offie 
Evans." (Resp. Br. 32). 

Warden Zant's interpretation is faulty on two grounds. 
First, turning to the plain meaning of the sentence, it is more 
reasonable to read the state habeas court to be 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, it is 
not at all clear that the state habeas court ever received Evans' 
21-page statement. The State did not file any documents under 
seal 1in the state habeas proceeding, to our knowledge. 
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. 

Sth 

 



  

questioning Evans directly about the issue during state habeas 

corpus proceedings. 

None of the Fulton County jailors know 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' 2l-page written statement prior to 1987. Yet evidence 

presented to the District Court during the July, 1987 hearing 

demonstrates 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. 

45 

 



  

repeatedly sought all such statements, but were denied access to 

then, and were even misled by State actors, perhaps 

inadvertently, about their very 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 

would lead a reasonable counsel away from, not toward, the 
  

conclusion that some written statement existed. 

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' statement, in response to (i) John 

Turner's pretrial motions, , (11) 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). 

IX. 

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

46 

 



  

In response to the District Court's grant of Massiah relief, 

Warden Zant's principal contentions on this appeal are that the 

District Court erred in its factfinding 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 
  

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 

both sides of the issue, but concluded, "after carefully 

considering the substance of [Ulysses] Worthy's testimony, his 

47 

 



  

demeanor, and the other relevant evidence in the case," that 

Atlanta police authorities had arranged for the move of Evans to 

the cell adjacent to McCleskey. (R3-22-21). The court 

considered, 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 xxxx, supra. On this record, 

Zant simply cannot carry his heavy burden of showing error under 

Rule 52 of the Federal Rules of Civil Procedure. The Supreme 

Court's decision in Anderson v. City of Bessemer City, 470 U.S. 
  

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, 1t 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 
Cab Co., 338 U.s. 3398, 342, 70 's.cT. 177,5179, 94 1.eD. 
150 (19439).... This is so even when the district 
court's findings do not rest. on credibility 
determinations, but are based instead on physical or 

  

48 

 



  

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 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 Offie 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 interest or bias 

that would explain any conscious deception.” 

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 

reject the testimony of Dorsey, moreover, 1is supported by far 

more than its assessment of witness demeanor. The District 

Court's confidence in Worthy's unrehearsed testimony of July 9 is 

buttressed by the remarkable consistency of that testimony with 

other evidence before the court. (1) In his July 9, 19387, 

49 

 



  

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' 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 July 9th testimony that Evans had been 

recruited as an informant by Detective Dorsey or another Atlanta 

officer was consistent with other 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. (R3=82 83: Ré=81, 

32). 

(3) Worthy's identification was also consistent with 

Dorsey's testimony that he alone among the Atlanta police 

officers 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' 21l-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 

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 Serica of silence 

by the voluble Mr. Evans seems highly implausible; it is fully 

50 

 



  

explained, however, if Evans was not moved to the cell adjacent 

to Mr. McCleskey until several days after his initial 

incarceration, just as Ulysses Worthy recalled in his federal 

testimony. 23 

There are substantial grounds, apart from Dorsey's demeanor, 

upon the District Court rested its finding that Detective 

Dorsey's testimony could not be credited. Dorsey was ostensibly 

unable to recall meeting with Offie Evans during the course of 

the investigation, even when his attendance was confirmed by 

contemporaneous notes. As the court obviously concluded, 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. 

Even Offie Evans, Dorsey's reliable tnformant, censitbingly 

undercut Dorsey's story by his 1981 testimony that he had met 
  

23 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 the initial testimony untainted by these intervening 
influences. 

51 

 



  

with Dorsey to discuss the Schlatt case prior to the July 12, 

1978, meeting with Russell Parker, and that, in this initial 

meeting, 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 alternatively argued that the District 

Court's entire opinion rests only upon the testimony of Ulysses 

Worthy. (Resp. Br. 43). The charge simply isn't so. As 

indicated, the District Court carefully drew upon documentary 

evidence, looking for example, to Office Evans' 1981 testimony 

about his meeting with Atlanta detectives and Evans' August 1, 

1978, 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 

52 

 



  

that Evans was supposed to have been in on the robbery 
himself. 

(R3-22-20). 24 

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 actual knowledge each 
  

State's witness had of relevant events, properly discounted their 

ignorance of the unconstitutional arrangement. (R3-22-22). The 

District Court, for example, did not reject prosecutor Russell 

Parker's testimony -- it rather found that Parker had no reason 

to know about the move, thereby making his testimony on the point 

irrelevant. (R3-22-22). 

Fulton County Deputy Carter Hamilton's testimony was 

appropriately reviewed in a similar light. Because Hamilton's 

knowledge of jail activities was limited to event occurring 

during his own shift on the first floor of the jail (R6-72, 76), 

  

24 gzant 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. 

53 

 



  

he had no basis to know whether Offie Evans had been initially 

housed in another part of the jail. (R4-177; R6-74, 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 himself 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- 

40, -83Y. As a result, other police officers simply would not 

have had knowledge of the arrangement. 22 

In sum, the unanimity of the testimony by State's witnesses 

that they had no knowledge of a move is, on close scrutiny, 

irrelevant. Zant cannot disprove the secret deal between Offie 

Evans and Detective Dorsey simply by proffering a series of 

  

witnesses who were not privy to it. Warden Zant's "numbers 

game" 1s a fallacious one. The District Court's carefully 

considered factfindings are not clearly erroneous. This Court 

25 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. : 

54 

 



DE 9 Joke wn 1 SEE I WX YT Se a 2 

  

should decline Zant's invitation to reengage in a fact- 

determination process that is legally foreclosed to it. 

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

Warden Zant also argues that the District Court's judgment 

is "incorrect legally as well as factually," 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.?2® As 

his only authority, Zant points to this Circuit's decision in 

Lightbourne v. Dugger, 829 F.2d 1012 (11th Cir. 1987), which, he 
  

contends, "actually implies" this requirement. (Resp. Br. 42). 

Lightbourne implies no such thing.   

Lightbourne does cite with approval the Florida Supreme 
  

Court's characterization of Massiah requisites: 

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 passage stands for 

nothing more than the proposition that one or another of several 
  

  

26 It is, of course, black letter law that consideration 
is not a required element for proof of agency. Restatement of 
the Law, 2d, Agency, 2nd §16. 

  

  

55 

 



  

possible indices of agency -- a promise of compensation, an overt 

scheme, or evidence of prearrangement -- must be shown. It makes 

proof of consideration a sufficient, but not a necessary, element 

in a Massiah case. 

Lightbourne aside, a review of Supreme Court precedent on 
  

Massiah shows no requirement of a "bargain" as a part of a 

showing of agency. See United States v. Henry, 447 U.S. 264 
  

(1980); Maine wv. 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 

unconstitutional scheme is fully supported by the extraordinary 

series of lies he engaged in to gain McCleskey's confidence, and 

the persistence of his questioning =-- all starkly revealed in his 

2l-page statement to Atlanta authorities. Evans' agreement, in 

short, is manifest in his own account of his active participation 

in the enterprise. 

Furthermore, the secret interrogation here, conducted by use 

of investigatory techniques that are the legal equivalent of 

56 

 



ry Tem aE $7 ds bn or = th ot 

  

direct police interrogation, is precisely what the Supreme Court 

has condemned as recently Kuhlmann v. Wilson, 477 U.S. 436 
  

(1986). Offie Evans, as his own dramatic account to Atlanta 

police demonstrates, "took some action, beyond merely listening, 

that was designed deliberately to elicit incriminating remarks." 

Kuhlmann wv. Wilson, supra, 477 U.S. at 459. His relentless 
  

participation in that course of action plainly demonstrated his 

agreement to participate as an informant, violating Warren 

McCleskey's Sixth Amendment rights. 

111. 

THE DISTRICT COURT CORRECTLY FOUND THAT 

THE MASSTAH VIOLATION PROVEN IN MR/ McCLESKEY'S 

CASE WAS NOT HARMLESS BEYOND A REASONABLE DOUBT 

Warden Zant also takes issue with the District Court's 

conclusion that the Massiah violation, on this record, could not 

be found harmless beyond a reasonable doubt. 

The essence of Zant's argument is an appeal to "precedent:" 

because this Court previously found that the Giglio v. United 
  

States violation 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 

57 

 



  

which this Court applied to Mr. McCleskey's Giglio violation is 

inapplicable to his Massiah claim. 

Here, the legal consequence of a Massiah violation, as noted 

by the District Court, would be the exclusion of all of Offie 

Evans' testimony. The impact of such an exclusion differs 

dramatically from any consequences under Giglio, which might have 

permitted McCleskey's jury to be informed of an additional piece 

of impeachment testimony -- Officer Dorsey's promise to speak a 

word with the federal agents on Offie Evans' behalf. It is one 

thing for McCleskey's jury to know another unsavory piece of 

information casting some doubt on Evans's motives for testifying. 

It is quite another thing for Evans's testimony never to have 

been heard at all. 

The legal analysis applicable to a Massiah violation also 

differs from that of Giglio. One element of a Giglio violation 

is a showing of materiality. This Court's focus upon the 

independent impeachment evidence available to the jury, and upon 

the independent circumstantial evidence of guilt was consistent 

with the "materiality" assessment required as an element of the 

  

Giglio claim.2” This Court's explicit citation to United States 

  

27 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 Giglio promise 
would not reasonably affect the jury's 
assessment of his credibility and therefore 
would have had no effect on the jury's 
decision. 

58 

 



  

  

Vv. Anderson, which discusses the materiality standard applicable 

to a Giglio claim, the Court's reliance on that analysis. 

An intervening Supreme Court case demonstrates that this 

"materiality" analysis is not applicable to a Sixth Amendment 

Massiah claim. Rather, as the Supreme Court indicated in 

Satterwhite vv. Texas, U.S. + 100 L.E4A.24 284 (1988), 
  

indicates that the District Court's Massiah harmless error 

analysis was proper. 

In Satterwhite, the Supreme Court reversed a lower court's 
  

treatment 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 defendant in contravention of the defendant's 

Sixth Amendment right to counsel. 

The Supreme Court rejected the focus upon the independent 

evidence of impeachment and guilt which are a part of the Giglio 

"materiality" analysis. The Supreme Court stated that, under 

Chapman v. California, 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, however, 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 '"beyond 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.24 at 295. 

  

59 

 



  

The Supreme Court then noted some of the other legally- 

admitted evidence that would have supported the State's case in 

Satterwhite: 
  

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. 

Despite this 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. 

‘This Sixth Amendment standard of harmless error applicable 

to a Massiah violation has been recently applied by this Circuit 

in Brown v. Dugger, 831 P.24 1547 {(1ith Cir. 1987). As this 
  

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 
omitted] If there remains a possibility that the 
constitutionally-proscribed evidence impacted on the 
ultimate decisional process of the jury, if the 

60 

 



  

beneficiary of the error cannot refute that possibility 
beyond all reasonable doubt, constitutional errors can 
never be deemed harmless. 

Here, then, the court's harmless error analysis does not 

turn upon the adequacy of the independent evidence which was a 

part of the State's case; rather, the test is whether it can be 

said beyond a reasonable doubt that Evans' testimony itself did 

not contribute to the jury's verdict. Yet under any standard of 

harmless error, given the flimsy quality of the evidence against 

McCleskey on the homicide charge and the impeachability of co- 

defendant Ben Wright's testimony, it cannot be said that the 

State has met its burden, beyond a reasonable doubt, of showing 

that Offie Evans' testimony did not contribute to the jury's 

verdict. 

As with the witness in Satterwhite, Evans' testimony at the 
  

petitioner's trial made certain unique contributions to the 

State's case. He was one of the last of the State's witnesses, 

and, unlike co-defendant Ben Wright, 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. YT 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). 

61 

 



  

In conclusion, the foregoing shows that the District 

Court's analysis of the harmless error matter was correct, and 

the judgment of the court should be affirmed. 

Iv. ~ 

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION 

IN DENYING THE RESPONDENT'S RULE 60(b) MOTION FOR 
‘ RELIEF FROM JUDGMENT 

Warden Zant's last-ditch defense is its argument under Rule 

60(b) that the District Court abused its discretion in 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. 

Contrary to the Zant's assertion, the July, 1987, hearings 

were not "originally intended to be arguments on the issue of 

abuse of the writ." (Resp. Br. 80). Rather, the court advised 

Mr. McCleskey prior to the start of the hearings to have all" 

potential witnesses on the merits under subpoena. (R4-2). Nor is 

it correct to suggest that it was Warden Zant who operated under 

a "two day time constraint" in the July, 1987, hearings. (Resp. 

Br. 381). It was Mr. McCleskey who was required to present his 

case under threat of an imminent execution date. By contrast, 

at the close of Mr. McCleskey's direct case, Warden Zant was 

given an entire month to gather rebuttal evidence. 

A. Rule 60(b) (2) 
  

1. 2Zant's Failure To Show The Evidence Is 
"Newly Discovered" 
  

62 

 



  

The District Court found that Offie Evans' testimony, the 

evidence which Zant seeks to present, is not newly discovered. 

(R1Supp-40-5.) Zant concedes that it is not, according to the 

"traditional definition." (Resp. Br. 85). Under the law of this 

Circuit, no further inquiry need be made. Scutieri v. Paige, 808 
  

P.24 785 (llth Cir. 1937). 

2. Zant's Failure To Exercise "Due Diligence" 
  

Nor does Zant have any credible response to the 

District Court's finding that he "did not make any efforts to 

track down Offie Evans during the summer of 1987." (R1Supp.-40- 

7) Warden 2Zant's only excuse is to claim reliance on the 

efforts made by Mr. McCleskey and his counsel to locate Evans in 

June and early July of 1987. If anything, those efforts 

demonstrated that 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). There 

was absolutely no reason for Zant, if he truly wanted to present 

Offie Evans in 1987, not even to lift a finger to make contact 

with him. The District Court had, after all, 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 not make a single 

telephone call, or take any other step, to determine whether 

Evans might be available for the August hearing. Warden Zant 

tries to deflect attention from this utter failure to seek out 

63 

 



  

Evans by referring to the resources made available to Mr. 

McCleskey by the District Court. Zant failed to clarify for 

this Court, however, that those resources were made available for 

a single day of only, while counsel for Mr. McCleskey were on 
  

trial. (R1-13-1). Zant, by contrast, had nearly an entire month 

following the July 9th hearing 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 by that time. 

Obviously Warden Zant didn't find Offie Evans in 1987 for 

one main reason: because he didn't look. His strategy at that 

time plainly did not include the use of Offie Evans' testimony. 

Once that strategy failed, however, Zant seized upon Rule 60 (b) 

to re-group and try another approach. That is not the purpose of 

Rule 60(b). 

3. The Unlikelihood Of Producing A Different Result 
  

The most fundamental deficiency in Zant's entire approach, 

however, 1s not his own lack of diligence but the manifest 

untrustworthiness of Offie Evans's testimony, Evans' obvious 

self-contradiction and lack of credibility, all reflected in his 

deposition testimony which Zant presented to the District Court 

in support of his Rule 60(b) motion. The District Court found, 

quite correctly, that 

[tlhe 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 

64 

 



  

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.?2 

... 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. 

(R1Supp.-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 

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 was 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 

  

28 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. 

65 

 



  

they wanted to hear. Unfortunately, Evans had already told the 

same 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 his fourth version of the facts, 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. 

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: