Correspondence - General Vol. 6 of 6 (Redacted)

    TO: Jack 

FROM: Kaoru 

DATE: June 16, 1987 

RE: McCleskey's Massiah/Henry claim 
  

I have looked at Eleventh Circuit cases interpreting the 
Massiah/Henry rule that post-indictment incriminating statements 
made by an accused to a government informant are inadmissible 
as a violation of the sixth amendment right to counsel. Assuming 
that we can establish some state involvement in the conversation 

between Offie Evans and McCleskey, we should be able to establish 

a reasonable Massiah/Henry claim. 

  

  

Since the Massiah decision, the Supreme Court has focused 

primarily on the involvement of the state in creating a 
situation, whether through a "wired" co-defendant or a cellmate/ 
informant, which was likely to induce an accused to make 
incriminating statements in the absence of his counsel. While 
Massiah emphasized that an accused's incriminating statement 
which was "deliberately elicited" by the informant was 
evidence of impermissible state involvement, both United States v. 

  
  

  

  
  

  

  

Henry, 447 U.S. 264 (1980) and Maine v., Moulton, 474 U.S. , 
88 L. Fd. 2d 481 (1985), adopt a much broader focus. In 

Henry, the Court ignored the fact that the cellmate/informant 

was specifically instructed by the government not to initiate 
conversation with the accused regarding the offense in question; 
instead, the Court found that the accused's incriminating 

statements were inadmissible because, by merely placing an 

informant in the accused's cell, the government had "intentionally 
creat{ed) a situation likely to induce the defendant to 

make incriminating statements without the assistance of counsel." 
Nevertheless, the Court noted that the informant had not 

been a mere "passive listener." (i.e. simply overhearing 
the statements of the accused). The fact that the accused 

was in confinement was noted by the Court as a subtle pressure 
on the accused, and coupled with the deliberate placing of 
an informant in his eell, an impermissible sixth amendment 
violation was found. 

  

    

  

Similarly, in Maine v. Moulton, the mere fact that the state 

arranged a meeting between the accused and a "wired" co- 
defendant (who was instructed not to attempt to question 
the accused) was found to violate the accused's sixth amendment 

right to counsel. Even if the informant does not initiate 
the conversation, the Court found that a "knowing exploitation 

by the state of an opportunity to confront the accused without 

counsel being present is as much a breach of the state's 
obligation not to circumvent the right to the assistance of 

counsel as is the intentional creation of such an opportunity." 

  

>» 

 



0 

  

In Kohlmann v, Wilson, 106 S. Ct. 2616 (1986), however, 
Justice Powell, writing for the majority, shifts the focus 
on the informant's efforts in initiating the conversation 
with the accused. Ruling that the sixth amendment does not forbid 
admission of an accused's statements to an informant who is 
placed in close proximity but makes no effort to stimulate 

conversation, Justice Powell argued that the accused must 
show that the state/informant took some action beyond mere listening, 
that was designed deliberately to elicit incriminating remarks. 
Thus, it is not sufficient that the informant, through prior 
arrangement with the state or voluntarily, reported the 
accused's incriminating statements (cf. Maine v. Moulton, which 

seems to suggest that the state's making of a request 

to an informant to listen passively to the accused may 

be enough to constitute a sixth amendment violation). 

  

  

  

Most of the Elventh Circuit decisions involving Massiah/Henry 
concern the applicability of the Massiah/Henry rule to 
situations in which an accused makes statements evidencing 
a separate offense which is obtained in the absence of 

counsel retained for an original offense. See e.g. 
United States v. Capo, 6937.24 1330 (11th Gir. 1983); 
United States vy, Lisenby, 716 T.2d 13535 (11th Cir. 1983); 
United States v. Badolato, 710 .7.2d4.1509 (11th Cir. 1933); 
United States vy. Darwin, 757 F.24 1193 (11th Cir. 1985). 
These cases are not relevant to McCleskey's case. 

  

  

  

  

  

  

  

The only Eleventh Circuit case which is of interest to 

us is United States v. Hicks, 798 F.24 446 (11th Cir. 1986). 

This was the only Eleventh Circuit interpretation of Kuhlmann 
that 1 found. In Hicks, a cellmate of the accused, who 

was working as a government informant on another unrelated 

case, volunteered information on her conversation with the 

accused. The Eleventh Circuit found that admission of 

these statements at trial did not violate the accused's 
sixth amendment rights because the cellmate/informant 
had not been deliberately planted by the government: "It 
is clear in this case that the government did not deliberately 
place West in detention with appellant. In fact, the 
government agents were not even aware that West was in 

custody until after her conversation with appellant." 
Citing Kuhlmann in support of its decision, the Eleventh 

Circuit argued that both the absence of government 
involvement in arranging the informant to talk with 
the accused, and the "merely listening" of Kuhlmann 
were relevant criteria in finding a sixth amendment 
violation under Massiah/Henry. 

  

  

  

  

  

In order to prevail on a Massiah/Henry claim, therefore, 
  

we must establish that the state did in fact contact Offie 
Evans to act as its informant prior to--or at least during-- 
the time when Evans and McCleskey were engaged in conversation 
in jail. If Evans was contacted by the deputy who overheard 
the two men talking in their cells after the conversation 
took place (a position which Evans maintains in his trial 

testimony), then the state's involvement would be insufficient 

 



  

under Hicks. 

In addition, Kuhlmann requires that Evans be more than a 
  

passive listener. His recorded statement suggests that 

this requirement can be easily satisfied, since Evans seems 

to have lied deliberately to gain the confidence of both 
McCleskey and Dupree (e.g. by stating that he was Ben Wright's 
uncle). The questions which Evans posed to McCleskey and 

Dupree can be characterized as having been designed to 
"deliberately elicit" incriminating statements from them. 

 



    

g2ze7532  P.@2 
JUM-11-1998 @9:4% FROM RyYL SCHOOL OF LA TO 

Anthony G. Amsterdam 
VH 327 

  

John Charle 
NAACP Legal 
99 Hudson 
New York, 

Dear Jac 

 



  

income tax purposes. 

National Office 

  

Suite 1600 

NAACP LEGAL DEFENSE 99 Hudson Street 

AND EDUCATIONAL FUND, INC. New York, N.Y. 10013 (212) 219-1900 Fax: (212) 226-7592 

June 8, 1990 

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

Warren McCleskey v. Walter D. Zant, 
SUP.CT. No. 89-7024 
  

Dear Tony: 

Thanks for initiating the telephone call about Monday's 
cert. grant in McCleskey. I had planned to call you on Thursday - 
- for aid, comfort and advice -- but I found myself swamped with 
some Poverty & Justice matters. I await with gratitude your 
further thoughts, and the research assistance of Dan Abramson 
[sp.?], on this round of Warren McCleskey's long trek through the 
courts. 

  

Enclosed are two copies of the petition for certiorari 
and the Supreme Court's letter of June 4th, and one copy of the 
brief for respondent in Zant v. Moore, No. 87-1104, which, at pages 
20 through 28, recites some of the history of modern federal abuse 
of the writ law, 

  

I look forward to your telephone call next Wednesday, 
June 13th. We had originally scheduled that call for 4:00 P.M., 
but I have since noted I promised to attend a meeting with Julius 
between 5:00 and 5:45 P.M. If it suits your convenience, Tony, 
I'd be grateful if we could reschedule the call for 5:45 P.M. until 
8:00 or 9:00 P.M. 

Best regards. 

Sincerely, 

\ 

"John Charles Boger 

Regional Offices 

The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part Suite 301 Suite 208 
of the National Association for the Advancement of Colored People 1275 K Street, NW 315 West Ninth Street 
(NAACP) although LDF was founded by the NAACP and shares its Washington, DC 20005 Los Angeles, CA 90015 
commitment to equal rights. LDF has had for over 30 years a separate (202) 682-1300 (213) 624-2405 

Board, program, staff, office and budget. Fax: (202) 682-1312 Fax: (213) 624-0075 

 



  

December 2, 1989 

Robert H. Stroup 
141 Walton Street 
Atlanta, Georgia 30303 

Warren McCleskey v. Walter D. Zant, 
No. 88-8085 and 89-8085 
  

Dear Bob: 

Enclosed are the first !! 22 !! pages of our 15-page 
rehearing petition. Moreover, this draft doesn't yet include 
what I would estimate will be a 3-page legal section on harmless 
error. This draft nonetheless represents a half-day to edit this 
monster down to size. What I have concluded, as you have 
doubtless guessed by now, is that we should ask the Court for 
leave to file a petition of 25 pages. It seems to me impossible 
to provide the necessary factual picture without spend 12-13 
pages. Think about it once you've read this through. 

You may also have questions about the draft's tone, 
which gets somewhat blunt at times. If you do (and I've checked 
the most heated sentences with George, who gives them his 
imprimatur), you might call on Mr. Myer, our reliable mutual 
friend and paragon of attorney conduct, to determine whether our 
citiations for contempt are likely ever to be lifted once this 
petition is  flled. (As Warren says in his letters, "Just 
joking.") 

I'll be out of town until Tuesday afternoon after 4:00 
P.M. Why don't you call me at your convenience late Tuesday or 
early Wednesday. Best regards. 

Sincerely, 

Jn Charles Boger 

 



  

DRAFT: 12/02/89 

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

Nos. 88-8085 
89-8085 

  

WARREN McCLESKEY, 

Petitioner-Appellee, 

-against- 

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

Respondent-Appellant. 

  

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

Atlanta Division 

  

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

  

Petitioner-appellant Warren McCleskey, by his undersigned 

counsel, respectfully requests the full Court of Appeals to 

rehear his appeal in banc, pursuant to Rule 35 of the Federal 

Rules of Appellate Procedure. The judgment of the panel was 

rendered on November 22, 1989. This suggestion is being filed 

within 20 days of the date of that judgment. 

A. INTRODUCTION 
  

This appeal centers on a violation of Massiah v. United 
  

States, 377 U.S. 201 (1964) -- the seminal Supreme Court decision 

condemning surreptitious State questioning of a criminal 

defendant already in custody or under indictment. The District 

 



  

Court, after three days of evidentiary hearings, found (i) that 

State officials had clearly violated the rule in Massiah in this 

case, (ii) that the fruits of the violation, an ostensible 

"confession" made by Mr. McCleskey to the State's jailhouse 

informant -- was a critical component of the State's case at 

trial, and (iii) that McCleskey was consequently entitled to 

habeas relief. 

A panel of this Court has reversed that judgment on appeal. 

The panel did not reach the merits of the Massiah claim. 

Instead, it held that Mr. McCleskey's failure to assert the 

Massiah claim in his initial federal petition constituted an 

abuse of the writ of habeas corpus; and (ii) that the State's use 

of the unconstitutional evidence was harmless beyond a reasonable 

doubt. 

Since both of these holdings contravene well-established 

Supreme Court and circuit precedent, Mr. McCleskey suggests that 

the full Court should rehear his appeal in banc. 

B. The Facts Undergirding McCleskey's Massiah Claim 
  

At the heart of this appeal lies evidence of a successful 

scheme by State officials to procure an illegal confession. 

According to the express findings of the District Court, one or 

more officers of the Atlanta, Georgia, Bureau of Police Services 

entered into a conspiracy with a known jailhouse informant, Offie 

 



  

Evans, to secure a confession from Mr. McCleskey.l 

To accomplish their mission, these rogue officers obtained 

the cooperation of a Fulton County, Georgia jailor, who agreed to 

move Offie Evans, the informant, from another portion of the 

Fulton County Jail to the cell directly adjacent to Warren 

McCleskey's. The officer[s] explicitly instructed the informant 

to question McCleskey about the crime. They gave him crucial 

facts about the case not known to the public. 

A remarkable, 21-page written narrative -- hidden by the 

State from 1978, accidentally revealed only during McCleskey's 

1987 habeas proceedings =-- demonstrates that Evans did just as 

State officials requested: he initiated a three-day series of 

conversations with McCleskey about the crime; he repeated lied to 

McCleskey about his own identity, about his knowledge of the 

crime, about his relationship with McCleskey's co-defendant, and 

about details of the police investigation. Evans skillfully 

allayed McCleskey's suspicions and drew him out on the details of 

the crime, especially the identity of the triggerman. 

His mission accomplished, informant Evans then secretly 

notified his State agents, who summoned an Assistant District 

Attorney and other officers for a jailhouse interview. To perfect 

their scheme, the guilty officer[s] conspired to cover up their 

  

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

3 

 



  

misconduct not only from defense counsel, but from other, 

unsuspecting State officials working on the case as well. 

Informant Evans freely cooperated in this coverup, lying 

over and over again =-- first during Mr. McCleskey's trial in 

1978 -- where he told the jury that McCleskey had confessed to 

the police killing and bragged that he would have killed a dozen 

officers if necessary -- then again during his state habeas 

corpus proceedings in 1981, and finally, even after the 

conspiracy had been uncovered, during his federal deposition in 

1988. As the web of deception began to unravel during 

McCleskey's 1987 federal hearing, moreover, one or more of the 

Atlanta police officers committed perjury during the federal 

habeas proceedings in a vain attempt to protect both their 

coverup and the underlying Massiah violation. 

The factual findings of the District Court fully support 

  

each of these basic points.? 

Cc. The Issue of Abuse Of The Writ 

i. Counsel's Investigation Of A Possible Massiah 
  

Violation   

At the outset of state habeas proceedings in 1981, although 

lacking anything more than an unsubstantiated suspicion of a 

  

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

that Officer Schlatt gave his life in protecting and thereby 
tainted the prosecution of his killer." (R3- 31). 

4 

 



  

Massiah violation, counsel for Mr. McCleskey nonetheless included 

a Massiah claim, as a precaution, among the twenty-two 
  

constitutional challenges asserted in the McCleskey's state 

petition. Attorney Robert Stroup followed up his allegation with 

an extensive investigation of the claim. He first met with 

members of the Atlanta police force (whom he had represented in 

unrelated Title VII cases ) for inside advice on the best way to 

uncover evidence of an illegal, jailhouse informant. Armed with 

their advice, he interviewed a number of key jailors at the 

Fulton County Jail. None of these jail officials knew anything 

about possible police misconduct in McCleskey's case. Attorney 

Stroup nonetheless persevered, tracing down a former jail 

official, Bobby Edwards, who had been in charge of all inmate 

cell placements at the time Mr. McCleskey had been incarcerated. 

By 1981, Mr. Edwards had retired and was living over 60 miles 

from Atlanta; Stroup managed to find and interview him, but 

Edwards had no knowledge suggesting evidence to support the claim 

of illegal misconduct.3 

In an additional effort to secure possible evidence, Stroup 

  

3 At the time, the Fulton County Jail was staffed by three 
shifts of 3jailors, each shift comprising over 100 officers. 
[cite **%*%%%*] Mr. Stroup did not personally interview each of 
these 300 jailors, some of them retired by 1981, who had been 
employed by the Fulton County Jail in 1978. He confined his 
investigations on this claim-- one of 22 separate constitutional 
issues which he, a pro bono volunteer attorney was then pursuing 
-- to the employees identified as most likely to have relevant 
information. None of those officers know of any evidence 
suggesting that a Massiah violation might have occurred. 

  

5 

 



  

made a broad request for the contents of the State's files. 2 .In 

response, Stroup received a mass of documents from a Georgia 

Assistant Attorney General, accompanied by a letter assuring 

Stroup that he was receiving "a complete copy of the   

prosecutor's file resulting from the criminal prosecution of 
  

Warren McCleskey." (Fed. Exh. 7) (emphasis added). Informant 

Evans' crucial 21l1-page narrative statement was not included in 

the documents transmitted.® At no point, either then or later, 

did lawyers either for the District Attorney or for the Georgia 

Attorney General's office ever turn over Evans' 2l-page 

  

4 prior to petitioner's trial, his defense attorney had 
filed a written motion seeking all written or oral statements 
made by petitioner to anyone, and all exculpatory evidence. After 
an in camera inspection, the trial court had permitted the State 
to withhold both (i) the 21-page statement made by informant 
Evans and (ii) even the fact that the State possessed such a 
statement. (R1-1, Exh. M; R4-73-81; R6-118). 

  

  

During mid-trial, defense counsel again moved for any 
documents in the State's possession that reflected statements 
made by McCleskey. (R1-1, Exh. O, 830-832; see Fed. Exh. 6). The 
motion was denied, and the trial court inexplicably suggested 
that the State possessed no undisclosed, written statements. 
(Judge: "I don't know that we are talking about any written 
statements.") (Id.) (emphasis added). 

  

  

Defense counsel nonetheless preserved this issue on 
appeal. The Georgia Supreme Court denied relief, holding that 
"(t]he evidence [that the defense counsel] sought to inspect was 
introduced to the jury in its entirety." McCleskey v. State, 245 
Ca. 108, 263 S.F.24 146, 150 (1980). Defense counsel was never 
shown the 2l-page Evans statement; he later testified without 
contradiction that he "was never given any indication that such a 
statement existed." (St Hab. Tr. 77). 

    

5 Mr. Stroup has subsequently testified that, in reliance 
on these written representations of the State of Georgia, it 
simply did not occur to him that this representation was false, 
that a written statement existed, and that he was being misled. 
(R1l-- 7-10). The District Court credited Mr. Stroup's testimony 
on this point. (R1-- 118-119; R3-- 22-25). 

6 

 



  

narrative. 

To complete his investigation, Mr. Stroup deposed the 

Assistant District Attorney who had prosecuted McCleskey. Under 

oath, he questioned the prosecutor about the State's relationship 

with its key witness, Offie Evans: 

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

A. [Assistant District Attorney]: No, sir. 

Q. Let me ask the question another way to make sure we 

are clear. Are you today aware of any understanding 
between any Atlanta police department detectives and 
Offie Evans? 

A. No, sir, I'm not aware of any. 

(Fed. Exh. 3, nS 

On cross-examination, the Assistant District Attorney 

broadened his testimony: 

Q. Do you have any knowledge that Mr. Evans was 
working as an informant for the Atlanta Police or any 
police authorities when he was placed in the Fulton 
County Jail and when he overheard these conversations 
of Mr. McCleskey? 

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

(Fed. Exh. 3, 14-15). 

Mr. Stroup subsequently testified that, following 

  

 



  

McCleskey's state habeas proceedings, he had concluded that the 

Massiah claim could not be substantiated: 

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

(R4- 44). 

2. The Discovery Of The State's Coverup 
  

Offie Evans's 21l-page statement first came to light in June 

of 1987 -- six years after Mr. McCleskey's initial federal habeas 

petition was filed -- following a fortuitous development in an 

unrelated Georgia case.’ Mr. McCleskey immediately made that 

document the centerpiece of a Massiah claim which he included in 

his second federal petition filed in July of 1987. (See R1-9 & 

Exh. E). oid 

Od federal hearing on that cosine McCleskey's 

counsel adventitiously discovered the only witness to the illegal 

police conspiracy -- apart from the co-conspirators themselves. 

This surprise witness, Ulysses Worthy, was a retired jailor who 

  

7 In that case, Napper v. Georgia Television Co., 257 Ga. 
156, 356 S.E.2d 640 (1987), the Supreme Court of Georgia appeared 
to hold, for the first time, that police investigative files 
would be deemed within the compass of the Georgia Open Records 
Act, 0.C.G.A. § 50-18-72(a). Mr. Stroup immediately cited that 
then-recent decision, still pending before the Georgia Supreme 
Court on rehearing, in support of a request directly to the 
Atlanta Bureau of Police Services, seeking the original police 
files in McCleskey's case. (R1-7-6). Because Napper was still 
pending on rehearing, attorneys for the Atlanta Bureau were 
reluctant to disclose the entire police file, but on June 10, 
1987, they agreed to provide Mr. Stroup with one document-- 
which proved to be the 2l1-page statement made by Offie Evans. 
(RA-7-7) . 

  

 



  

Olin haw Def qu 
eke gat fo orld ft apficas nt 

appeared serendipitously during the waning hours of McCleskey's 

  
1987 federal hearing. He appeared in response to one of dozens 

of subpoenas issued to everyone mentioned in every document 

uncovered during the course of the two-day federal hearings. (R4- 

21). 

Mr. Worthy testified that he had been present during a 

meeting at the Fulton County Jail in 1978, between Atlanta Police 

Detective Sidney Dorsey and Offie Evans. (R5-148) Worthy 

recalled that he overheard Detective Dorsey (or perhaps some 

other "officer on the case") request Evans "to engage in 

conversations" with Warren McCleskey, who was being held in 

isolation awaiting trial following his indictment for murder and 

armed robbery. (R5 148-189). 

Jailor Worthy remembered that the police officers had then 

asked him to move Evans to a cell directly adjacent to Warren 

McCleskey's cell: 

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

A. Yes, ma'am. 

(R5-153). As Mr. Worthy later explained to the District Court: 

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

 



  

(R5-155) VE 

3. The Findings Of The District Court On Abuse 
  

After receiving documentary evidence and hearing live 

testimony from attorney Robert Stroup, the Assistant District 

Attorney, and the Atlanta detectives, the District Court made 

comprehensive findings on the issue of abuse of the writ. The 

Court first considered the State's defense of deliberate 

abandonment: 

[PlJetitioner cannot be said to have intentionally 
abandoned this claim. Although petitioner did raise a 
Massiah claim in his first state petition, that claim 
was dropped because it was obvious that it could not 
succeed given the then-known facts. . . Abandoning a 
claim whose supporting facts only later become evident 
is not a abandonment that "for strategic, tactical, or 
any other reasons . . . can fairly be described as the 
deliberate by-passing of state procedures." Fay Vv. 
Noig, 372 -U. 8. 391, 439 (1963), quoted in Potts v. 
Zant, 638 F.24 727, 743 (5th Cir. 1931). . . This is 

not a case where petitioner has reserved his proof or 
deliberately withheld his claim for a second petition. 
C. Sanders Vv, United States, 373 U.S. 1, 18 (1963). 

  

  

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

Court observed that 

  

  

    
   

  

    

   
   
   

   

    

      

y's agccgunt of dn Anitial peeting betWkeen 
le Evans, folX¥owed by Bvans' “wove ,to\ a 

vx, followed \by Eyans' exteghsiv 
>skey, culminating in Evans' pnaeting 

off ficers, helps to explain\ one 
ture and content of Evans' 31- 
Byans was arrested and/taken te 
1578. (R5-/ 101-1), his writte 
coRcerning any \contact wi 
lg July Spd and July 

     

  

      

Although 
all on July 34 

\ ely silent 

  

     

    

partner B ul p \ / J wot until uly 9 
Evans repg¢ ; Nis 
claiming ti 

 



  

s confession. ums (eon O 

Apart from these two witnesses, the State relied on upon 

Lo af vine clusly dl goed lf, cued cad 

circumstantial evidence to place the murder weapon in McCleskey's 

hand. That evidence was gravely flawed: co-defendant Ben 

Wright and Wright's girlfriend testified that McCleskey had been 

carrying a pearl-handled, silver .38 pistol 1linked to the 

homicide. (Tr. T. 649; 727). Yet on cross-examination, Wright 

admitted that he, not McCleskey, had personally been carrying 

the .38 pistol for several weeks prior to the crime. (Tr. T. 

682) . Moreover, while Wright's girlfriend initially testified 

that McCleskey had taken the .38 pistol on the morning of the 

crime, she admitted under cross-examination that she had 
  

informed police, on the day Wright was arrested, that it was 
  

Wright, not McCleskey, who had been carrving the .38 pistol the 
  

day of the furniture store robbery. (Tr. T. 607; 631-634) .° 
  

The District Court, reviewing this evidence, concluded that 

Offie Evans' "testimony about petitioner's incriminating 

statements was critical to the state's case, " and that its 

admission could not be deemed harmless: 

  

9 Both in the panel's initial description of the crime 
(slip op. 2) as well as its analysis of the harmless error issue 
(slip op.24). these record facts, drawn directly from the trial 
transcript, were overlooked or disregarded. (The panel instead 
drew from the initial description of the crime contained in the 
1980 opinion of the Supreme Court of Georgia on Mr. McCleskey's 
direct appeal, written seven years prior to the District Court's 
factfindings, at a time when no Massiah challenge had been 
presented to any court.) 

The panel likewise disregarded the District Court's 
explicit findings, after a factual hearing, that these additional 
facts cast the State's circumstantial evidence case into grave 
doubt. 

12 

 



  

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 
[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). 

E. The Holding of the Panel 
  

1. Abuse Of The Writ 
  

The panel held that Mr. McCleskey's Massiah claim was an 

abuse of the writ because McCleskey had "deliberately abandoned" 

his Massiah claim after the initial state habeas proceedings. 

(Slip op. 14) The panel did not hold that McCleskey's attorneys 

had been guilty of "inexcusable neglect" by McCleskey's 

attorneys, nor did it disagree with the District Court's finding 

that McCleskey and his counsel had not known, in 1981, of the 

State's hidden 21-page statement or the existence of Ulysses 

Worthy. (Id.). 

Instead, the panel held that the District Court had 

"misconstrue[d] the meaning of deliberate abandonment." 

13 

 



  

Pointing out that the legal issue, at least, had been known to 

Mr. McCleskey's attorneys in 1981, (slip op. 15), the panel held 

that it "must assume that . . . counsel had determined that there 

was some factual basis for a Massiah claim." (Id.). Since the 

attorneys, the panel reasoned, knew that Evans had been in the 

adjacent cell and that "some sort of relationship existed between 

Evans and the police" their decision not to go forward with the 

Massiah claim in federal court "constitutes prima facie evidence 

of deliberate abandonment." (Slip op. 16). 

As part of their analysis of "deliberate abandonment," the 

panel went on to fault the investigative efforts by McCleskey's 

counsel during state habeas proceedings as "somewhat lacking." 

The panel stressed that McCleskey's counsel had never interviewed 

the detectives who were ultimately implicated in the coverup or 

another jail official who testified during McCleskey's trial. 10 

After reciting these omissions, the panel held that "[a]bandon- 

ing a claim after initial investigatory efforts prove 

unsuccessful cannot insulate a petitioner from abuse of the 

writ." (Slip op. 18) 

McCleskey has not presented any reason why counsel would 
have been unable to contact Ulysses Worthy back in 1981 when 
the first federal habeas petition was filed. Nor has he 
shown that a more extensive effort at that time to track 

down persons with information as to what transpired in the 

  

10 The panel overlooked the District Court's express 
factual finding that this failure was not inexcusable under all 
the circumstances, and that "[g]iven that all three [State 
officers] denied any knowledge of a request to move Evans next to 
McCleskey, it is difficult to see how conducting such interviews 
would have allowed petitioner to assert this claim any earlier." 
(R3-22- 25). 

14 

 



  

ale 
county jail during the summer of 1978 would not have turned 
up Worthy. A petitioner and his counsel may not circumvent 
the abuse of the writ doctrine by failing to follow through 
with an investigation and then later claiming that the claim 
could not have succeeded earlier on the facts as then known. 
It will only be possible to avoid piecemeal litigation if 
counsel if required to make a thorough investigation of the 
facts at the time of petitioner's first petition for habeas 
corpus. 

{Slip op. 19). 

2. The Panel's Holding On Harmless Error 
  

ARGUMENT 

I 

UNDER THESE CIRCUMSTANCES, THE DISTRICT COURT 
DID NOT ABUSE ITS DISCRETION BY FINDING THAT 

yo PETITIONER'S MASSIAH CLAIM SHOULD BE ENTERTAINED 
S ON ITS MERITS. PETITIONER CANNOT BE HELD TO HAVE 

(eds "DELIBERATELY ABANDONED" A CLAIM WHOSE FACTUAL 
PREMISES WERE DELIBERATELY CONCEALED FROM HIM BY 
AN ELABORATE POLICE COVERUP. THE STATE SHOULD NOT 
PREVAIL SIMPLY BECAUSE THE COVERUP BY STATE 

OFFICIALS AND THEIR CO-CONSPIRATORS REMAINED 
SUCCESSFULLY HIDDEN DURING PETITIONER'S INITIAL 

STATE AND FEDERAL PROCEEDINGS 

The panel's decision completely rewrites the law of abuse of 

the writ. Fifty years of Supreme Court precedent have been 

silently overruled; two decades of precedent in this Circuit are 

swept away with scarcely a trace. Both the will of Congress-- 

expressed in 28 U.S8.C. § 2244 (b) and Rule 9(b) -- and the 

Supreme Court's recent decision in Amadeo Vv. Zant must be 
  

overlooked or disregarded to justify the panel's decision. 

For the past fifty years, at least, the Supreme Court has 

held insisted that a defendant cannot be held to have waived a 

constitutional right absent a finding of "an intentional 

15 

 



  

relinquishment or abandonment of a known right or privilege," 
  

Johnson v. Zerbgt, 304 U.S. 458, xxx (1938), cited in Potts Vv. 
    

Zant, 638 F.28 727, 741 (5th Cir. Unit B-1981). 

This general rule has been faithfully observed by the Court 

in reviewing second federal habeas petitions. The Court's 

decisions in Price v. Johnston, 334 U.S. 266 (1948), Sanders Vv.     

United States, 373 U.S. 1, (1963), and Smith v. Yeager, 393 U.S. 
  

  

122 (1968) (per curiam) all turned upon the presence or absence 

of actually knowledge by the habeas applicant of the facts to 

support his constitutional claims. The claim in Price, for 

example, had not been asserted until the applicant's fourth 

federal petition. Although the trial record had given the 

applicant a strong basis from the outset to suspect State 

misconduct, the Supreme Court overturned the lower courts’ 

dismissal of his claim, distinguishing other cases in which a 

petitioner had full access to "proof [of the claim] which was   

accessible at all times." 334 U.S. at 289.11 

By contrast, McCleskey's panel did not allow its judgment to 

turn on the evidence actually known to McCleskey's counsel in 

1981; instead, it held baldly that counsels' failure to go 

forward into federal court with nothing more than unsubstantiated 

suspicions constituted "prima facie evidence of deliberate 

  

11 The court refused to "assume that petitioner [Price] has 
acquired no new or additional information since the time of the 
trial or the first habeas corpus proceeding that might indicate 
fraudulent conduct on the part of the prosecuting attorneys." 334 

U.S. at 290. 

16 

 



  

abandonment." 

The most definitive Supreme Court statement on this issue 

arguably came in Sanders, where the Court presented, as the 

paradigm of deliberate abandonment, the case of Wong Doo Vv.   

United States 265 U.S. 239 (1924). Wong Doo had a "full   

opportunity. to offer proof" at an initial hearing but 

deliberately "reserve[d] the proof for use in attempting to 

support a later petition.” 373 U.S. at 10. Once again, by 

contrast, the panel had no evidence that McCleskey's counsel 

knew of, or deliberately reserved, proof of the police coverup or 

the secret agreement between Evans and the Atlanta police. 

McCleskey's panel held, however -- contrary to the express 

findings of the : District Court - -- that counsels! 1938] 

investigation had been "somewhat lacking," and that deliberate 

abandonment could be imputed to McCleskey -- even without any 

evidence that he had, in fact, knowingly and intelligently 

abandoned his claim. 

The panel's holding thus re-fashions Johnson v. Zerbst's 
  

venerable rule =-- that waivers must be voluntary, knowing, and 

intelligent -- into a new two-pronged test: if a claim has 

voluntarily abandoned, federal «courts will impute to the 

applicant all knowledge that might have been uncovered by further   

investigation -- whether or not the State has deliberately, 

maliciously even criminally withheld the evidence from defense 

counsel. This novel "objective attorney standard," whatever its 

wisdom, is profoundly at odds with prior precedent. For example, 

17 

 



  

in Smith v. Yeager, the Court reviewed a case in which initial 
  

habeas counsel had orally declined an invitation to conduct a 

federal hearing on a confession claim. After the applicant had 

been denied relief based upon his state court evidence, he later 

sought a full federal hearing in a second federal petition. The 

Supreme Court held that the applicant had not waived his 

opportunity for a federal hearing: 

Whatever the standards for waiver may be in other 
circumstances, the essential question here is whether the 
petitioner "deliberately withheld the newly asserted ground" 
in the prior proceeding, or "otherwise abused the writ." 

. . . Whatever counsel's reasons for this [earlier waiver of 
a federal hearing] . . ., we cannot now examine the state of 
his mind, or presume that he intentionally relinquished a 
known right or privilege, Johnson v. Zerbst, 304 U.S. 458, 
464, when the right or privilege was of doubtful existence 
at the time of the supposed waiver. 

  

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

The panel's new rule simply cannot be squared with Price, 

      Sanders, Wong Doo, or Smith v. Yeager. Nor can it find support 

in the prior decisions of this circuit. On the contrary, it 

flouts two decades of precedent. See, e.dq., Booker v. 
    

Wainwright, 764 F.24 1371, 1376 (11th Cir. 1985)( "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"); 

Haley Vv, Estelle, 632 F.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"); 

18 

 



   
noo 3 

nde! hy (ult, — Rash 
— 

Potts v, Zant, 638 F.24 727, 746 & n. 23 (5th Cir. Unit B 1981) 
  

(noting that even a knowing and intentional waiver does not 

necessarily render a subsequent petition an abuse absent "a 

showing that the prisoner secured some tactical advantage by not 

pressing his claim earlier"); Paprskar v. Estelle, 612 F.2d 1003,   

  1006 (5th Cir. 1980) (approving Johnson v. Zerbst as the proper 

measure of deliberate bypass); see also Guice v. Fortenberry, 661 
  

F.2d 496, 507 (5th Cir. 1981) (en banc) (the failure of defense 

counsel to develop crucial facts in support of their jury 

  challenge did not constitute deliberate abandonment for Townsend 

VY. Sain purposes); Walker v. Ilockhart, 763 F.2d 942, 955 n.26   

(8th Cir. 1985) the discovery of evidence suppressed by the State 

permits consideration of previously asserted «claim in a 

successive petition); Sockwell v. Maggio, 709 F.2d 341, 344 (5th 
  

Cir. 1983) (per curiam) ("[i]f a petitioner's unawareness of facts 

which might support a habeas application is excusable .. the 

! wbsequent filing is not an abuse of the writ") 

These circuit holdings carry out the plain intent of 

Congress which, in 1966, enacted 28 U.S.C. § 2244 (b) to govern 

the disposition of second petitions. In reporting out § 2244 

9(b), the Senate Judiciary Committee stated that §2244 (b) was 

designed to target those "applications . . . predicated upon 

grounds obviously well known to [habeas applicants] when they 
  

filed the preceding application." S. Rep. No. 1797, 89th Cong., 

2d Sess. 2 (1966). By way of contrast, the Advisory Committee 

that framed Rule 9(b) of the Rules Governing Section 2254 Claims 

   



  

emphasized that when "newly discovered evidence" came to light, a 

district court should not dismiss but entertain a second federal 

petition on its merits. 

This new standard also offends against the Supreme Court's 

recent opinion in Amadeo Vv, Zant, U.S. ., 100 1L.Ed.24 249 
  

(1988). There, as here, the District Court found as fact that 

State officials had promoted the selection of an unconstitutional 

jury pool and then hid their misconduct. A panel of this Court, 

however, reread the record, concluding that trial counsel had 

deliberately abandoned any jury challenge, and that their failure 

to uncover and assert the jury fraud amounted to "cause" for 

denying habeas counsel the right to pursue it later. 

On certiorari, the Supreme Court unanimously reversed. It 

faulted the panel for substituting its own factual conclusions 

for those of the District Court without a finding under F.R. Civ. 

P. Rule 52 that the lower court's findings were "clearly 

erroneous." After referring to its prior opinion in Murray v.   

Carrier, 477 U.S. 478, 488 (1986 -- which held that "interference 

by [State] officials" would excuse a defense attorney's to have 

asserted a claim =-- the Court clearly indicated that both 

"deliberate bypass" and "cause" were issues of fact; the Court 

concluded that if there was a factual record before the District 

Court sufficient to permit a conclusion that a claim had not been 
  

deliberately bypassed, "the court of appeals may not reverse it 

even though convinced that had it been sitting as the trier of 

  fact, it would have weighed the evidence differently." Amadeo Vv. 

20 

 



  

Zant, 100 L.Ed. 2d at 260-261. We respectfully suggest that the 

panel in McCleskey's case ran seriously afoul of Amadeo when it 

(I) imputed an objective, "reasonable attorney" standard into the 

consideration of McCleskey's "deliberate abandonment" inquiry and 

(ii) then ignored the District Court's express factual finding 

that counsel's investigation did not amount to inexcusably 

neglect. 

%* * * * * * * * * * * 

As shown above, the panel's opinion jettisons entire bodies 

of law =-- Supreme Court decisions, circuit court holdings, 

Congressional authority. But it does far more than that. It 

turns the equitable foundations of the Great Writ inside out: 12 

a proven, decade-long pattern of State misconduct, capped by 

perjury, merits not a single word of reproach. Forgetting the 

basic insistence that he who seeks equity must do equity-- 

equity's fundamental requirement of "clean hands" -- the panel 

has transmogrified that venerable maxim into its opposite: if 

the State manages successfully to hide its misconduct, it will go 

unpunished. Condemnation is reserved, not for the violator, but 

for the investigator, for the habeas counsel who fails to ferret 

out State misconduct soon enough. 

Henceforth, the sworn testimony of State officials is 

  

Riek "[H]abeas corpus has traditionally been regarded as 
governed by equitably principles. United States ex rel. Smith v. 
Baldi, 344 U.S. 561, 573 . . . 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." Sanders v. United States, 373 U.S. 
at 17. 

21 

 



  

functionally worthless; defense attorneys will rely upon it only 

at their client's peril. Every good faith effort to investigate 

constitutional claims, every good faith decision about whether to 

continue a fruitless investigation, must be guided by the most 

cynical of assumptions: witnesses are perjured, State officials 

all dupes or frauds, every blind alley the goad to further 

effort. Ten depositions cannot suffice where an eleventh might 

uncover fraud; to close a state or federal hearing with a single 

witness left unsummoned is no less than an act of reckless 

lawyering. 13 

In short, this new rule will, without the slightest doubt, 

prompt a fundamental change in the conduct of every responsible 

defense attorney who 1litigates habeas corpus cases in this 

Circuit. If this Court is truly inclined to countenance this new 

rule, it should do so only after a full opportunity to consider 

its full implications on rehearing in banc. 

  

13 This circuit has, in the past, firmly resisted any 
inclination to adopt such a harsh and inequitable rule. See, 
e.g., Freeman v. State of Georgia, 599 F.2d 65, 71-72 (5th Cir. 
1979) (when police officer submitted a false report that 1lied 
about whereabouts and testimony of key witness, habeas 
applicant's failure to locate witness did not constitute a waiver 
of claim); Ross v. Kemp, 785 F.24 1467, 1477 (11th Cir. 1986) 
(when county clerk denied, under oath, having jury records later 
shown to have been in his possession, habeas applicant entitled 
to a further hearing). 

  

  

22 

 



  

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

(R3-22- 24-25). 

D. The Issue Of Harmless Error 
  

There were absolutely no eyewitnesses to the shooting of 

Officer Schlatt. Although Mr. McCleskey initially entered the 

furniture store from the front, and the three co-defendants from 

the rear, the four co-defendants successfully carried out an 

agreed-upon plan to herd all the employees to several offices 

near the back, force them to lie face-down on the floor, and 

carry out the robbery. These plans were well underway when 

Officer Frank Schlatt entered from the front door. No employee 

was able to testify which of the four co-defendants -- all of 

whom were together in the office area -- went forward to engage 

Officer Schlatt. 

The State offered two witnesses, however, who told the jury 

that Warren McCleskey had confessed to the shooting: one was Ben 

Wright, McCleskey's co-defendant. Wright had been the leading 

force in the robbery; he had directed the other participants, and 

was a highly likely suspect in the shooting. The other witness 

the jury heard, however, was Offie Evans, an apparently neutral 

third party who told [the jury of McCleskey's ostensible jailhouse 

11 

aa jie on Yet 

 



    

AA 

Contributions are 
deductible for U.S. 
income tax purposes. 

. National Office 

Suite 1600 

NAACP LEGAL DEFENSE 99 Hudson Street 

AND EDUCATIONAL FUND, INC. New York, N.Y. 10013 (212) 219-1900 Fax: (212) 226-7592 

December 11, 1989 

Robert H. Stroup, Esq. 
141 Walton Street 
Atlanta, Georgia 30303 

Warren McCleskey v. Walter Zant 
  

Dear Bob: 

Enclosed are seventeen copies of the suggestion for 

rehearing in banc. I have included a stamped "Original" together 

with fourteen additional copies for the Court (15 in all), a copy 

for your files, and a copy to be sent to Warren. I have 

separately mailed a copy to Mary Beth Westmoreland, so service is 

complete. 

Thanks for your excellent help on this document. 
Please pass along my thanks as well to your erstwhile suite-mate, 
"Topless Myer." You both helped significantly to turn my late- 
night lament into a more lawyerly argument. Here's hoping it 
suffices to win rehearing in banc. 

Best regards to you and your family for the Holidays. 

Sincerely, 

Charles Boger 

JCB:deh 
Encs. 

Regional Offices 

The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part Suite 301 Suite 800 
of the National Association for the Advancement of Colored People 1275 K Street, NW 634 S. Spring Street 
(NAACP) although LDF was founded by the NAACP and shares its Washington, DC 20005 Los Angeles, CA 90014 
commitment to equal rights. LDF has had for over 30 years a separate (202) 682-1300 (213) 624-2405 
Board, program, staff, office and budget. Fax: (202) 682-1312 Fax: (213) 624-0075 

 



CL I Je AR 501-1909 

DEC-B7-'99 THU 13:21 ID:ROBERT W. CULLEN TEL NO:dB4 S521-192° 

LAW OFFICES 

STROUP & COLEMAN 
14 | WALTON BTREET, N.W 

ROBERT H, ATROU® bigonss Eh y TELESHONE 

ELIZABETH J. COLEMAN ATLANTA, GEORGIA 30303 (404) BER-2B00 
d 404) 822-3000 

TELECOPY COVER SHEET 
  

DATE: J 2. «7-49 

TO1 YALk [ReocEr 

FAX NO. : (2/2) 22¢ 7693 

PHONE NO.: (213) 214 =i10ea 

FROM: [on Crennp 
141 Walton Street, N. W, 
Atlanta, Georgia 30303 

FAX NO.i boy) 6578 - JL? 

PHONE NO, [402 2 «mao 

NUMBER OF PAGES TQ FOLLOW: 

  

  

  

  

  

  

  

  

PLEASE CONTACT [%paay 
  

IF YOU DO NOT RECEIVE ALL PAGES. 

Joc A — 
So MI” Pass ot 

tt Me lsan Janie qou 

Bet 

  Yee 7 am 4rd ROBERT Wo CULLEW  



DEC-B7-'389 THU 13:21 ID:ROBERT W. CULLEN 
  

0. The 1asue of the abuse of the writ 

l. Counsel's investigation 

By the time of the filing of the first federal habeas, 

habeas counsel had conducted an extensive investigation in 

an effort both before and during the course of the state 

habeas proceeding to develop facts ahowing a Maasiah 

violation. However, the facts available at the time 

McCleskey's flrst habeas petition was filed were not 

sufficient to show a Massiah violation. The District Court 

s0 found (slip opinion at 24), and the panel decision does 

not treat that finding as clearly arronacus, 

Habeas counsel contacted jallars, the prosecutor and 

Offie Fvanege himself ragarding Evans's assignment to the call 

adjacent McCleskey. He talked with the Fulton County 

jallers identified as those with Knowledge of any pr 

arranged assignment of 0, Evang to solitary confiname 

adjacent to McCleskey, including the assignments officer 

had since retired and moved out of t - : They had no 

information that was helpful. 

At the state habeas hearing, habeas counsel examinad 

fie Evans, the person sugpectad of being assigned to 

solitary confinement adjacent to McCleskey under suspact 

clrcumstances, regarding the circumstances of hia 

assignment, but gained n¢ helpful information. And, on 

deposition at the state habeas hearing, the prosecuting 

attorney testified that he had no knowledge of Evans' having 

DEC: 7 B93 14:3 i“ ROBERT WW. CLL LEN PAGE . 882  



_DEC-E7-'83 THU 13:22 ID:ROBERT W. CULLEN 

served as an Informant fox the Atlanta Bureau of Police 

Services. 

Three Atlanta Police officers and one jailer ware knowh 

to habeas counsel ag connected to tha investigation but ware 

fiot contacted by him, Contacting these persons, however, 

would not have allowed petitioner to assert this claim 

sooner, ag they all have denied any knowledge of a requast 

to move Evans to the cell next to McCleskey. The district 

court so found, and the finding was not reversed by the 

panel. 

Completely unknown to habeas counsel at the time of the 

filing of the first habeas petition was the existance of a 

2l-page written statement from Offie Evans which strongly 

suggested his informant role. Also unknown to habeas 

counsel was the fact that this statement was firge glven to 

Atlanta police officers in the room of Fulton County Captain 

Ulysses Worthy. Worthy waa naver identified as having any 

role whatsoever in the McClaskey prosscution. 

2, The dlscovery of the State's Coverup 

Not until after tha 2nd atate habeas petition was filed 

did habeas counsel learn of the existence of the 2l-page 

written statement.l Upon learning of its existence, counsel 

  

1 A change in Georgia's interpretation of its Open Records 

Act made pogsibla accass to the police investigative file 
during the pendency of a habeas petition. Napper v, Georgia 

Television Co., 257 Ga, 156, 356 5.,FE,24 640 (1987). Habeas 

counsel filed a request with the City of Atlanta while the 
Napper casa was still pending on petition for rehearing, and 

while the City refused to disclose the entire file while 
Napper was pending on rehearing, did not June 10, 1987 turn 
over one document dealing with Offie Evans, which happened 
to be the Zl=page statemant. 

  

  

2, 

DEC 7 BR 14:33 ROBERT LW, CULLEN FAGE . B@A3  



DEC-B7-'83 THU 13:22 ID:ROBERT WW. CULLEN   

amended tha 2nd state habeas petition to allege a Massiah 

violation and the Masslah violation was raised in his July, 

1987 federal habeas petition. The Alstrict court found, and 

the panel did not disturb the finding (slip opinion, at 14). 

that habaas counsel could not have been expected to discover 

the written statement earlier.2 

It was the written statement by Offle Evans that led to 

the discovery of Captain Ulysses Worthy. Worthy, a retired 

Fulton County jailer, was the only witness to the illegal 

police conduct who has come forward to teatify., Nothing 

prior to the written statement suggested that Worthy had 

anything t¢ d¢ with the matter. He was simply one of the 

hundreds of un-named jailers at the Fulton County Jail. 

  

2 This finding is well-supported in the record. What 

habeas counsel had available to him gave little indication 

of a written statement from Evans. Prior to McClesgkey's 

trial, his trial attorney had requested alal written or oral 

Btatemants made by McCleszkey. None was produced, nor did 

the State even reveal that it had a statement from McCleskey 
net produced. 

In mid-trial, trial counsel again moved for any 

documents that reflected stateamants from McCleskey, and the 

trial court inexplicably suggested that the State possessed 

no undisclosed, written statements. {Judge: 7] dan't kunay 

that we are talking about any written statements.” 
On appeal, the Georgia Supreme Court gava further 

suggestion that no written statement existed, stating: 

"[tlhe evidence [that the defense counsel] sought to inspect 

was introduced to the jury in its entirety." HMcCleskey v. 

State, 245 Qa, 108, 263 8.0.24 146, 150 (1980), Trial 
counsel later testified, without contradiction, that he "was 

never given any indication that such a statement existed." 

(8t, Hah, Pr, 77), 
In this federal) proceeding, the Assistant Attorney 

General advised habeas counsel that he was receiving "a 

complete copy of the prosecutor's file resulting from the 

criminal prosecution of Warren McCleskey." (Fed. Exh, 7}. 
That copy did not include the 2l-page statement, 

3 

*59 r4i07 | EOBERT WL CULLEN  



DEC-@7-'89 THU 13:23 ID:ROBERT W. CULLEN TEL NO:4@4 521-1 
  

During the course ¢f the sxamlination of 

Atlanta Police Qfficers Auring the federal habeas hea: 

July 8, 1987, counsel learned that the statement from Offie 

Evang was taken in the room of retired-Captain Ulysses 

Worthy. That was the vary first time Worthy's name was 

mentioned in all of the proceedings regarding McCleskey's 

role in the Dixie Furniture Store robbery and shooting of 

Prank Schlatt. Even then, Atlanta Police Officers suggastad 

that Worthy would not have information regarding the 

statement, (I, 195-96). Despite this suggestion, counsel 

gubpoanaed Worthy, as part of a massive, indiscriminate 

effort to subpoeana everyone whose name came up during 

hearing, Upon Worthy's appearance, the District Court 

presentad with evidence which, taken togethar with the 21- 

page statement, indicated a Magsiah violation, and a cover- 

up of that wrong-doing. 

Werthy, whe appeared at the federal habeas haaring 

without any prior knowledge of the nature of the proceeding 

or the raleavance of his own testimony, tastified that . . 

e [Blok up at nn, §) 

- vgre raha ROBERT W. CULLEN  



#% TX CONFIRMATION REPORT so 

HARCE LEGAL. DEFEWSE 

DRYE TIME TOSFROM 

12+ 3 17:45 BOBERT i, CULLEN 

17:50 ROBERT WW. AW LEN 

 



  

National Office 

A A 
Suite 1600 

NAACP LEGAL DEFENSE 99 Hudson Street 

: AND EDUCATIONAL FUND, INC. New York, N.Y. 10013 (212) 219-1900 Fax: (212) 226-7592 

Contributions are 

deductible for U.S. 
income tax purposes. 

September 8, 1989 

Dr. Richard Berk 
Department of Sociology 

University of California at Los Angeles 
Haines Hall 
Los Angeles, California 90024 

Dear Dick: 

It was really great to speak with you last week. 1 
enjoyed enormously catching up with what you and Connie were 

doing, and in this New Gilded Age, it's reassuring to hear that 

your work remains so unsullied. 

I'm enclosing copies of our most recent briefs in the 
McCleskey and Moore cases, both still before the Eleventh 
  

Circuit in Atlanta -- five years after their first trip there. 
This time, I hope, they can each secure more final, and 
favorable, relief. I've also included some materials on the 
Racial Justice Act, which is an effort spearheaded by the ACLU 
Washington Office to overturn McCleskey v. Kemp in Congress. 

  

Please let me know if either you or Connie or both find 
reason to be in New York. I'd love the chance to see you. Best 
personal regards. 

Sincerely, 

d— 
ohn Charles Boger 

JCB:deh 

Encs. 

Regional Offices 

i i Suite 301 Suite 800 
The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part 

of the National Association for the Advancement of Colored People 1275 K Steet NW oy 5 Spine Tee 

(NAACP) although LDF was founded by the NAACP and shares its hii eh Lo ATA 

commitment to equal rights. LDF has had for over 30 years a separate SI i 

Board, program, staff, office and budget. 

 



il i 

Contributions are 

deductible for U.S. 
income tax purposes. 

    

National Office 

Suite 1600 

NAACP LEGAL DEFENSE 99 Hudson Street 

AND EDUCATIONAL FUND, INC. New York, N.Y. 10013 (212) 219-1900 Fax: (212) 226-7592 

September 6, 1989 

Professor James Liebman 
Columbia University School of Law 
Box B-16 

435 West 116th Street — 

New York, New York 10027 

Dear Jim: 

Many, many thanks for agreeing to participate in a moot 
court on Monday, September 18th, at 10:00 A.M. here at LDF, prior 
to my Eleventh Circuit argument in McCleskey v. Kemp the next 

day, Tuesday, September 19th in Atlanta. 
  

Enclosed are copies of the briefs. I'll look forward 

to your questions. See you a week from Monday. Best regards. 

Sincerely, 

n Charles Boger 

JCB:deh 
Encs. 

’ 

Regional Offices 

The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part Suite 301 Suite 800 
of the National Association for the Advancement of Colored People 1275 K Street, NW 634 S. Spring Street 
(NAACP) although LDF was founded by the NAACP and shares its Washington, DC 20005 Los Angeles, CA 90014 
commitment to equal rights. LDF has had for over 30 years a separate (202) 682-1300 (213) 624-2405 

Fax: (202) 682-1312 Fax: (213) 624-0075 Board, program, staff, office and budget. 

 



    

LAW OFFICES 

STROUP & COLEMAN 
141 WALTON STREET, N.W. TELEPHONE 

(404) 522-8500 
(404) 522-3000 

ROBERT H. STROUP 

ELIZABETH J. COLEMAN ATLANTA, GEORGIA 30303 

March 21, 1989 

John Charles Boger, Esq. 
Legal Defense Fund, Inc. 
99 Hudson Street, 16th Pl. 
New York, New York 10013 

Re: McCleskey v, Kemp 
  

Dear Jack: 

The Clerk's Office told me this morning that they had 
received a letter from the 1lth Circuit on March 13, 
requesting that the record be sent up. They would, 
therefore, be preparing it and sending it on as soon 
as they could gest to it. 

Maybe by Christmas. 

Vey truly vours, 

Bet 
Robert H. Stroup 

RHS/1 

Ale 4, Qo hare a Pre * il Uy rpen 

Wnliy. Plone <durne . 

   

  



  

Memorandum 

to: Jack Boger, Bob Stroup 

from: K. Behan 

re: Remand to District Court for hearing of evidence or supplementation of record 

This memo will discuss whether the Court of Appeals may remand the McCleskey case to the 

district court in order to hear additional evidence or supplement the record with the deposition 

of Offie Evans. 

A. Ross v. Kemp, 785 F.2d 1467 (11th Cir. 1986) and cases cited therein are inapplicable 

to this case because they involve requests for supplementation of the appellate record rather 

than remand to the district court for further factfinding. 

In Ross v. Kemp, 785 F.2d 1467 (1th Cir 1986) the Circuit Court considered whether 

the record on appesl could be supplemented with depositions and affidavits. Rather than simply 

evolving 8 blanket rule to apply to all of the additional evidence, the court considered the 

requests separately. First, the court agreed to supplement the record with & deposition taken 

in connection with the district court proceedings because the attorneys, following 8 rule in effect 

at the time of the taking of the deposition but not at the time of the filing of writien proffers, 

reasonably assumed that such depositions were automatically a part of the record. The omission 

in Ross "was not deliberate” (at 1471) and both parties relied on the deposition in their 

pleadings. The court thus found that the rule of McDaniel v. Travelers Insurance Co., 494 F.2d 

1189 (5th Cir.1974) ( allowing supplementation of the record with a deposition that both 

parties relied upon though for an unexplained reason was not in the lower court record) was 

applicable to this case. The Court noted that it had the authority to supplement the record under 

Fed.R.App.P.10{e) which reads: 

 



  

“If anything material to either party is omitted from the record by error or 

accident... the court of appeals, . of its own initiative, may direct that the 

omission or misstatement be corrected.” 

In the McCleskey case, the request is not to supplement the record on appeal, so this 

analysis is inapplicable, but even if it were, the Evans deposition {or testimony) was not 

omitted by error or accident, was not omited under a reasonable belief that it was already a part 

of the record, was not relied upon by both parties, and in fact was arguably deliberately omitted 

(see prosecutorisl remarks on ease of finding Evans), or at least considered and rejected for 

introduction at the district court level. 

The Circuit court considered a second deposition and decided not to permit supplementation of 

the record with it because they had already considered the evidence, and the claim it was offered 

to support, in 8 previous decision before remand to the panel by the en banc court on a separte 

issue. Id. at 1472. 

Finally, the Ross Court considered whether or not to supplement the record with affidavits 

presenting statistics which the attorneys for appellant had not mistakenly omitted from the 

record, but which the attorneys believed (on the basis of statements by state officials) were 

unavailable at the time of the district court proceedings (and other prior proceedings). The 

attorneys had only discovered the existence of these statistics by chance shortly before the en 

banc Circuit Court argument. The Court found that F.R. App.P.10{e) would be inapplicable to 

such case since the information was not before the district court in any form and the parties had 

not relied on it in prior proceedings. {In so finding such prerequisites necessary to Rule 10{e), 

the 11the Circuit rejected the broder interpretation of 10{e) of the 2nd Circuitin US. v. Aulet, 

618 F.2d 182,187 (1980) that “[w]here anything material to a claim on appeal is omitted from 

the record, this Court, under authority of Rule 10{e) Fed R App.P., may, “on proper suggestion 

or of its own initiative” direct that a supplemental record be certified and transmitted.” 

Thus, the Ross Court conducted a separate analysis to determine whether or not it should 

 



  

exercise its “inherent equitable authority” to supplement the record on appeal. Id at 1474. The 

Court noted it had previously exercised that authority in Dickerson v. Alabama, 667 F.2d 1364 

{Nth Cir.) cert denied 459 U.S. 878 (1982). {In Dickerson, n.5 at 1367, the Court declined to 

decide the Rule 10{e) issue but instead chose to follow the approach of Erkins v. Brysn 663 F.2d 

1048 ( 11th Cir 1981) in relying upon its “inherent equitable powers.” The Court also noted that 

whether the record should be supplemented is 8 matter "left to the discretion” of the courts of 

appeals, citing Singleton v. Wulff, 428 US. 106 (1976) where an issue was raise for the first 

time on appeal.) 

The Ross Court followed factors laid out in Dickerson in deciding whether to supplement the 

record {whether “acceptance of the proffered material into the record would establish beyond 

any doubt the proper resolution of the pending issue,” whether “remanding the case to the 

district court ...would have been contrary to both the interests of justice and the efficient use of 

judicial resources,” and whether the case is governed by "the unique powers that federal 

appellate judges have in the context of habeas corpus actions..”). Ross at 1475 citing Dickerson 

at 1367-68. In applying these standards, the Court found that Townsend v. Sain would apply to 

Ross's case: that he would have to, under Dickerson’s first factor, show, under Townsend v. Sain, 

that "acceptance of the proffered material would establish beyond a reasonable doubt that he is 

entitled to a full evidentiary hearing "on his jury claim. Ross at 1476. {In Townsend, 372 US. 

293 (1963) the Court reversed a dismissal of a habeas petition because the district court had 

failed to hold an evidentiary hearing, noting that because detention in violation of the 

constitution "is intolerable”, "the opportunity to be heard...must never be foreclosed.” Id at 312. 

The Court identified factors on appeal entitling a habeas petitioner a hearing-the alleging of 

facts which, if proven, would entitle relief, that the case falls within the six Townsend 

categories, and that failure to present to state court was not the result of "inexcusable neglect.”) 

The Ross Court specifically remanded on the this issue {rather than supplementation) because 

the lower court had to decide the Townsend issue- -whether inexcusable neglect prevented 

rehearing. Thus the Court in Ross did not remand to hear new facts, but instead decided that the 

district court should determine wheter or not to hear new facts in a Townsend hearing (which 

 



  

decision would obviously been subject to review. Such a Ross situation is inapplicable to 

McCleskey. {There was a hearing, the State is requesting a second hearing, and the evidence was 

available at both the state and the district court stages.) 

The Dickerson case illustrates why it is important to distinguish between cases where a 

party wishes to supplement a record on appeal and cases where a party wishes to remand for an 

entirely new hearing on an already decided issue{such as the McCleskey case). In Dickerson, the 

District Court denied a habeas petition, stating that the state appellate court's opinion was 

adequately supported by the record, even though the district court did not have the state court 

trial transcript before them (instead they had the inadequate coram nobis transcript). The 

Circuit Court thus found, in this extraordinary situation, that the district court could not have 

-made the finding it did and that the State, in urging rejection of supplementation, was asking to 

ignore the facts presented at trial in deciding the case. Still, the Court chose supplementation 

over remand, because “a decision to remand this case for the sole purpose of allowing the district 

court to review several additional significant facts contained in the transcript would be 

contrary to both the interests of justice and the efficient use of judicial resources. " Id at 1367. 

Thus, the 11th Circuit's policies in allowing consideration of additional evidence are 

severalfold: remand or supplementation is not simply a matter of judicial discretion but must 

be considered in light of appropriate factors and "on a case-by-case” basis. Ross at 1474; 

supplementation generally requires an out of the ordinary situation: evidence was omitted by 

error, mistakenly not considered by the district judge, or unavailable for particular reasons; 

and remand, then, because it would require 8 significantly greater use of judicial resources and 

be significantly less efficient than supplementation, would probably require an even higher 

showing of necessity. (Remand in Ross on Townsend was more efficient because it prevented 

later successive petitions by petitoner which would not be available to the state in the McCleskey 

case). Inthe McCleskey case, where the evidence now being offered was probably available at 

every stage of the proceeding, and the prosecutor admitted to the district court that the evidence 

could likely have been made available at that stage of the proceeding, the Court has no plausible 

basis for exercising its discretion. (But see, Erkins v. Bryan, 663 F.2d 1048 (11th Cir) cert 

 



  

denied 459 U.S. 989 (1982) where the Court allowed supplementatioon with documentary 

evidence that had been quoted in part in affidavits but not presented as a whole to the trial court. 

The Ross Court noted that "[t]he only stated justification for granting the motion in that case was 

the fact that the other party had not objected to the motion.” Ross at 1475. Even so, that case 

involved supplementation, not remand). These cases indicate, as well, that for the Circuit Court 

to require the District Court to reconsider evidence, in a sense usurping the right of the trial 

court to determine when to end an evidentiary proceeding, and allowing lawyers to contravene 

the the basic policy underlying a trial-- that they present all of their evidence in the 

appropriate forum at the appropriate time, is not simply 8 matter of appellate discretion, but 

requires some rationale for why they could not present the evidence at the earlier stage. 

B. Appellant's request should have been a F.R.C.P. Rule 60(b) motion to the District Court{or a 

59(b) new trisl motion), and appellant cannot avoid the requirements of that rule, nor avoid the 

jurisdictional conflict, by now requesting remand from the circuit court. 

Rule 60{b) of the Federal Rules of Civil Procedure provides, in relevant part, that "[o]n 

motion and upon terms as are just, the court may relieve a party or his legal representative 

from a final judgement, order, or proceeding for the following reasons: (1) mistake, 

inadvertence, surprise, or excusable neglect...(2) newly discovered evidence which by due 

diligence could not have been discovered in time to move for a new trial under Rule 59(b). 

Rather than request a remand in the appellate court, then, appellant should have made a 

motion in the district court. They likely did not make such a motion because they could not weit 

the “newly discovered evidence” or “due diligence” requirements of 60{b){2). (Furthermore, 

in Roberts v. Rehobeth, 574 F.2d 846 {5th Cir 1978) the Circuit Court wrote, “[d]eciding a 

motion to vacate filed under rule 60(b) is directed to the sound discretion of the district court 

and this Court will not disturb the ruling unless there was an abuse of discretion.” (See also 

 



  

Edwards v. Joyner 566 f.2d 960, 961-62 (1978) (reiterating standard) ) Such an abuse of 

discretion policy demonstrates the circuit court's deference to the district court on whether to 

consider new evidence after a judgement has been rendered, and appellant would be contravening 

this policy by receiving 8 remand.) 

The Fifth Circuit in Johnson Waste Materials v. Marshall, 611 F.2d 593 (1980) stated the 

standard for 60{b){2) motions : 

To prevail on a motion for a new trial based on newly discovered evidence under 

Rule 60(b){ 2), the movant must show that the evidence was discovered 
following the trial, that he used due diligence to discover the evidence at the 

time of the trial, that the evidence is not merely cumulative or impeaching, 

that it is material, and that a new trial in which the evidence was introduced would 
probably produce a different result. ... We have characterized such a motion as 

an extraordinary motion” and have demanded that the requiremnts of the rule 

set forth above be strictly met.” Id at 597. 

The 11th Circuit recently restated the rule in Scutieri v. Paige, 808 F.2d 785, 793 (1th Cir. 
1987): 

For newly discovered evidence to provide a basis for a new trial under 

subsection (b){2) a party must satisfy a five part test: {1) the evidence 
must be newly discovered since the trial; (2) due diligence on the part 

of 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.” {citing Ag Pro, Inc. v. Sakraida, 512 

F.2d 141, 143 (5th Cir.1975) rev'd on other grounds, 425 US. 273(1976)). 
..."# motion for a new trial under Rule 60(b)(2) is an extraordinary 
motion and the requirements of the rule must be strictly met.” Id. 

There is little doubt that appellant would have difficulty meeting the sbove requirements, 

particularly since similar evidence was presented elsewhere, the evidence would be cumulative 

or impeaching, and the prosecutor's own statements show a lack of due diligence in obtaining the 

evidence. Ininterpreting 60(b){2) requirements in finding an abuse of discretion ingranting a 

60(b} motion, the Court in Taylor v. Texgas Corp, 831 F.2d 255, 259 (11th Cir. 1987) wrote: 

"Unexcused failure to produce the relevant evidence at the original trial can be sufficient 

without more to warrant the denial of 8 60(b) motion,” and "Moreover, evidence cannot be 

‘newly discovered’ under Rule 60 if it is in the possession of the moving party or that party's 

attorney prior to the entry of judgement."(citing U.S. v. Potamkin Cadillac Corp. 697 F.2d 491, 

 



  

493 (2d Cir) cert denied 462 US. 1144 (1983). The Court in Scutieri v. Page, 808 F.2d 785, 

794 (11th Cir 1987) held that "Evidence that is contained in the public records at the time of 

trial cannot be considered newly discovered evidence.” If the appellate court took judicial notice 

of the fact that Offie Evan's deposition or testimony in the co-defendant’s case was part of the 

public record at the time of hearing {or in Westmoreland's or the State's possession) [Bob-1 am 

not sure of the specific request in the motion], they could decide as a matter of law that 60(b) 

would not be available in this case. The district Court in Butts v. Curtis Publishing Co 242 

F.Supp 390 (ND Ga 1964) aff'd F.2d- - wrote "[t]he phrase ‘newly discovered evidence’ refers 

to evidence of facts in existence at the time of trial of which the aggrieved party was excusably 

ignorant.” 1d at 392. They would probably need to arque that Evans lied{or withheld info) at 

trial so they were ignorant of his now credible testimony in order to pass this hurdle. Of course, 

then they lose under the impeachment (or cumulative) requirement. 

The jurisdictional problem faced by appellant in this case is similar to that set out in 

Ferrell v. Trailmobile, 223 F.2d 697 (5th Cir 1955). In that case, an appellee argued that on 

appeal consideration was limited to a District Court's original final judgement because the 

district court had been without authority to consider a 60(b) motion since at the time of 

presentation of such motion the appeal had been perfected by filing notice of appesl, thus 

depriving the court of its jurisdiction. Id at 698 . The Court wrote : "The suthority relied upon 

by appellee, Miller v. US. 7Cir 114 F.2d 267, would tend to sustain its position that the 

district court had no authority...[t]hat much may be conceded.” Nevertheless, to promote “just, 

speedy, and inexpensive determination”, the court found that "the district court retains 

jurisdiction to consider and deny such motions, but that, if it indicates that it will grant the 

motion, the appellant should then make a motion in the court of appeals for a remand of the case 

in order that the district court may grant such motion.” 1d. at 699. Despite the availability of a 

60(b) motion under this doctrine, then, the State filed only in the Circuit court, and that motion 

must be dismissed since even if it is seen as a 60(b) motion, appellant is in the wrong court. ¢ 

See also, Wilson v. Thompson, 638 F.2d 801 (11th Cir Unit B) citing Lairsey v. Advanced 

Abrasives Co., 542 F.2d 928 (Sth Cir 1976): "this circuit. has expressly recognized power in 

 



  

the district court to consider the merits, and deny, 8 60(b) motion filed after a notice of appeal, 

because the court's action is in furtherance of the appeal .”) {See also Williams v. McKenzie, 576 

F.2d 566, 570 (4th Cir 1978){60(b){2) motion appropriately considered, but "We caution, 

however , that a Rule 60(b}{2) motion is not a procedural vehicle for an automatic trial de novo 

once a party has lost in the district court below and a notice of appeal has been filed. This is 

especially true when the record does not reflect why the evidence sought to be introduced 

pursuant to Rule 60(b){2) was otherwise unavailable at the first hearing.”) 

In Lairsey v. Advance Abrasives, 542 F.2d 928, 931 (5th Cir.1976), the Sth Circuit set 

out the preferred procedural basis for deciding 60(b) motions {cited in Parks v. U.S» Life and 

Credit Corp., 677 F.2d 838, 840(11th Cir 1982) ): 

Permitting the district court to have the first bite at the issue is a 

direct way of reaching a problem which otherwise can be attacked 

circuitously-if the motion were addressed to this court we could 

remand with directions to the district court to consider it, or we 

could affirm subject to the district court's considering the motion.” 

(citing Aldridge v. Union Bankers Insurance Co. 457 F.2d 501 {5th Cir 1972). 

The Court in Parks, in distinguishing Parks from Lairsey, also wrote that in Lairsey: 

“At the time the 60(b) motion was filed an appeal was pending. Judicial economy and common 

sense dictated filing a 60(b) motion before the trial court rather than arguing the new law 

before the appeals court.” Id at 840. 

The Parks Court could be interpreted a saying two slightly different things: that the 

decision in Lairsey to file in the district rather than the appeals court was discretionary, but 

that this route was most efficient and made the most sense, or that the Parks Court has 

interpreted the discretionary district filing of 8 60{b) motion in Lairsey to now be 

mandantory, required by judicial economy and common sense-the latter interpretation would 

call for dismissal at the appeals level of those cases which “argule] the new law” {or new facts) 

rather than argue 60(b), (but allow for 60(b)s to be remanded), while the former does not. 

While the first interpretation is more likely, it is arquable that the sbove cases mean at least 

that the appeals court cannot hear the 60(b) motion themselves but always must remand to the 

district court to decide the merits of that motion. [Bob-The “dictated” language could be argued 

 



  

to create a binding procedural rule but its doubtful] That the Appellate Court should remand to 

hear the 60{b) motion {if raised) conforms with the Ross interpretation on the non 60(b) 

issue, where the Appeals Court remanded to the district court to allow them to decide whether or 

not under Townsend they wanted to hear additional evidence- - both show the appellate court's 

deference to the district court on whether or not they want to hear new evidence- - and conforms 

with the abuse of discretion review standard for 60(b) motions. Nevertheless, in our case Rule 

60(b) was not even raised, so we may not even want to discuss all of this because it could result 

ina remand to the district court rather than dismissal if the Court of Appeals simply 

interpolated a 60(b) request into the motion. 

The 11th Circuit, in 8 60(b) case, Griffen v. Swim-Tech Corporation 722 F.2d 677 

{11th Clr 1954) recited its policy on finality: “It [Rule 60{b)] should be construed in order to 

do substantial justice,...but this does not mean that final judgements should be lightly reopened. 

The desire for order and predictability in the judicial process speaks for caution in the 

reopening of judgements. The provisions of this rule must be carefully interpreted to preserve 

the delicate balance between the sanctity of final judgements and the ‘incessant command of the 

court's conscience that justice be done in light of #/7the facts." (emphasis in original, citing 

Bankers Mortgage Co.v. US. 423 F.2d 73, 77 (5th Cir) cert denied 399 US. 927 (1970)). 

See also Fackelmanv. Bell S64 F.2d 734 , 736{5th Cir 1977): "Weighing against the grant of a 

60({b) motion is the desirability of finality in judgements. This is particularly true where the 

reopening of & judgement could unfairly prejudice the opposing party. See Carver v. Liberty 

Mutual Insurance CO., 277 F.2d 105 (5th Cir 1960). But even without such prejudice, the 

desirability of orderliness and predictability in the judicial process speaks for caution in the 

reapening of judgements. These are matters addressed to the sound discretion of the trial court, 

and its ruling on a 60(b) motion to set aside judgement will be reversed on appeal only upon & 

showing of abuse of discretion.” 

Importantly, in Fackelman, the appellant arguing the lower courts decison on 60(b) raised a 

new basis for a 60{b}{1) mistake, the Court, in a key footnote, wrote: "Appellant failed to raise 

this issue in his motion for reopening below. Aside from the impropriety of raising this matter 

 



for the first time on appeal, we note the special impropriety of doing so on the basis of 8 60{b) 

  

motion, sine the primery purpose of this motion is lo give the iris? court the opportunity lo 

correct its own mistake. " Fackelman at 736, fn). {emphasis added) 

 



hd SENET 

Lv Th 

ae ju 
Phe decided Fo tonite 

Azan et Grd Leger 

tJ 
a 

Ter prover: 

Cot: nde. nfenp Y 

Od That oF Ls 
® (i. itu t i Fore. 

Geger I Ey oh Hee a  



plea th ond pimeteo (awe) die a SY] 

by pining To Trial Cont Jered When 

Urn alone Lepesant Hiro, oil potusts 

PATI iy kr fren 
(lo 4 tesictt Aid gh i 

and davden dd 1x dea Yl all pels , ag 

v Jp ‘wv pate Loras @nriinie., 

bak Zo Ue Tint Corect boned Pleac don't 

Uandeon Aim, Place Fp Ldll.s its Aon: 

i 

   



7 79 | dln Sect 

Jew Jade dle fo 
foo13) \s \ 

 



 



   
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

efense und 99Hudson Street, New York, N.Y. 10013 ® (212) 219-1900 

  

egal 

  

January 28, 1988 

Professor David C. Baldus 
University of Iowa 
College of Law 
Iowa City, Iowa 52242 

Dear Dave: 

I don't know why LDF and I have a mental block about sending 
you the right volumes of the McCleskey district court hearing, 
but I'm more than willing to try a third (or fourth?) time. 

Enclosed are: 

  

{1) the July 9, 1981, transcript 

(ii) the federal habeas petition, which contains as Exhibit 

E, the Offie Evans statement. 

I hope and trust England was great fun. Best regards to 
both you and Joyce. 

Si > 

Charles Boger 

JCB:deh 

Encs. 

Contributions are deductible for U.S. income tax purposes. 

The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part of the National Association for the Advancement of Colored People (NAACP) although 
LDF was founded by the NAACP and shares its commitment to equal rights. LDF has had for over 30 years a separate Board, program, staff, office and budget. 

 



   The University of lowa 

lowa City, lowa 52242 

College of Law 

  

  

  

1847 

January 20, 1988 

Jack Boger 
NAACP Iegal Defense 

and Education Fund, Inc. 
99 Hudson Street, 16th Floor 
New York, NY 10013 

Dear Jack: 

I am in the process of writing an afterword to our book on the final 
outcome of the McCleskey case. I find that my records are incomplete. 
Would you kindly send me a copy of 

  

* Volume 2 of the July proceeding (the testimony for July 9, 1987) 

* A copy of the McCleskey Habeas Corpus Petition.   

* Officer Evans’ 2l1-page affidavit. 

I know I asked you for two of these items earlier but I received Volume 1, 
the July 8 proceedings, rather than Volume 2, the July 9 proceedings, and 
the successive Habeas Corpus Petition was inadvertently omitted from your 
letter of December 24. TI hate to bother you with these details but I would 
like to have the full record if possible. 

Joyce and I are off for England the day after tomorrow. 

Best of luck in the new year. Regards to Dick. 

Sincerely, 

afarr— 
David C. Baldus 

Professor of law 

 



   
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

efense und 99Hudson Street, New York, N.Y. 10013 o (212) 219-1900 

  

egal 

  

January 5, 1988 

Mr. and Mrs. George Harper 

Dear Mr. and Mrs. Harper: 

Thank you very much for your wonderful letter of December 
30, 1987, asking about Warren McCleskey. At 5:30 p.m. On 
December 23rd, Just hours before Christmas Eve, your prayers and 
those of many, many others were answered when a federal district 
judge in Atlanta overturned Warren's conviction and death 
sentence. The enclosed news article gives you a summary of what 
happened; I have also included a copy of the judge's 38-page 
opinion, granting relief. 

It was the greatest Christmas present Warren McCleskey could 
every receive, and we will always be grateful for your pravers 
and support. The State of Georgia will likely appeal the judge's 
decision to the higher federal courts, but we are reasonably 
confident that his very careful and thorough decision will be 
upheld. 

Thank you once again for your support. 

Sincerely, 

JCB:deh 

Encs. 

Contributions are deductible for U.S. income tax purposes. 

The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part of the National Association for the Advancement of Colored People (NAACP) although 
LDF was founded by the NAACP and shares its commitment to equal rights. LDF has had for over 30 years a separate Board, program, staff, office and budget. 

 



Wea 30/987 
  

  Et ET ET EEE SRNR DASH RS Sa Ne 
      

  

  

re 
Ld 0 be \ = SR a 
    

Sem 
  

    

    Se   

          ris 2k Lies ois 3 
  Ban are {3 Eat eta ea i a OL aa a EN a 

  

  

  

  

=u Hadad Pas ~~ ae pan 3 

i Tl : Rare? 5% 73 DAA vs us 
  a = 4 al a   

    

  RSI L 4 AAN ETT : oT aa 
  a. 

He in   
    

  

AV Yo Was x Jo i. Tr Dlg = 5 
  

  
  

  
  

  

      

  

  

  

  

  
  

  

  

  

  

      

  

  
    
   



We om ) X, Ya 

I oud ery : 
&f,, The? ARE J2 gn ) Ved 

2] Nid uy Sh 

 



 



  

ROBERT H. STROUP 

ATTORNEY AT LAW 

141 WALTON STREET, N.W. 

ATLANTA, GEORGIA 30303 

(404) 522-8500 

November 2, 1987 

John Charles Boger, Esq. 
Legal Defense Fund, Inc. 
99 Hudson Street 
46th Floor 
New York, New York 10013 

Re: McCleskey v. Kemp 
  

Dear Jack: 

I enclose the Legal Defense Fund's Request for Payment 

form setting out expenses to date for which I wish to 

be reimbursed. 

Thank you for your attention to this matter. 

Very truly yours, 

egl— 
Robert H. Stroup 

‘RuUS/1 
Encls. 

Beh = J ce ww... an Hh, loa op fu 

Leper er I SS VY SVE 

{00 

 



  

BISHOP PAUL MOORE, JR 
Chairman 

Members: 
Henry Aaron 
Steve Allen 

Arthur R. Ashe 

Joan Baez 
Birch Bayh 

Vivian J. Beamon 
Harry Belafonte 

Saul Bellow 
John C. Bennett 

Lerone Bennett, Jr. 
Viola W. Bernard 

Leonard Bernstein 
Hans A. Bethe 

Julian Bond 
Henry T. Bourne 

George P. Brockway 
Yvonne Brathwaite Burke 

Helen L. Buttenwieser 
Diahann Carroll 
James E. Cheek 

Shirley Chisholm 
“Ramsey Clark 
Aaron Copland 

Bill Cosby 
Maxwell Dane 

™ Ossie Davis 
Ruby Dee 

Victoria DeLee 
Ralph Ellison 

John Hope Franklin 
Mrs. A. G. Gaston 

Kenneth A. Gibson 
Roland B. Gittelsohn 

Charles E. Goodell 
John Hammond 

Richard G. Hatcher 
Theodore M. Mesburgh 

Marilyn Horne 
John H. Johnson 
Mrs. Percy Julian 
Horace M. Kallen 

Ethel Kennedy 
James Lawrence, Jr. 

Max Lerner 
W. Arthur Lewis 

Sarah Larkin Loening 
John A. Mackay 

Horace S. Manges 
Henry L. Marsh, Ili 

William James McGill 
Linda B. McKean 

Kari Menninger 
Charles Merrill 
Arthur Mitchell 
Paul Newman 

Anthony Newley 
Eleanor Holmes Norton 

Richard L. Ottinger 
Leon E. Panetta 

Gordon A. B. Parks 
Sidney Poitier 

Joseph L. Rauh, Jr. 

Cari T. Rowan 

John L. Saltonstall, Jr 

William H. Scheide 

Arthur Schlesinger, Jr. 

Charies E. Silberman 
John P. Spiegel 
William Styron 
Telford Taylor 

Robert Penn Warren 

Robert C. Weaver 

Tom Wicker 

Myrlie Evers Williams 

JAMES R. ROBINSON 
Secretary 

Contributions to: 
P.O. Box 13,064 
New York 10277 

e 
ommittee 

of 100” ke 
= 

IN SUPPORT OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 
99 HUDSON STREET, NEW YORK, N.Y. 10013 / Telephone (212) 219-1900 

  

December 1, 1987 

Mr. Charlie King 

Dear Mr. King: = 2 

Thank you very much for the note on the clemency 

slip in the Warren McCleskey case. 

I shall be in touch with our capital-punishment 

lawyers to check on whether there could be a useful 

connection between your concert tour in March and 

clemency for Warren McCleskey. 

Sincerely yours, 

James R. Robinson 
Secretary 

JRR: js 

THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND (LDF) is not part of the National Association for the Advancement 
  

of Colored People although LDF was founded by that organization and shares its commitment to equal rights. LDF has had for 
  

over 25 years a separate Board, program, staff, office and budget. A copy of the last financial report of THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC. may be obtained by writing to The New York State Department of State, 162 
Washington Avenue, Albany, New York 12231, or to this office. Please use separate envelope to request report. 

Contributions are deductible for U.S. Income Tax purposes. 

=
~
 

 



    

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

efense und 99 Hudson Street, New York, N.Y. 10013 ® (212) 219-1900 

  

egal 

  

December 24, 1987 

Professor David C. Baldus 
College of Law 
University of Iowa 
Iowa City, Iowa 52242 

Dear Dave: 

Happy New Year to you and Joyce. Enclosed are copies of the 
McCleskey successive habeas corpus petition and the December 23rd 
order of Judge Forrester. The Good Judge's insightful discussion 
of statistical proof can be found on page 12. Best regards. 

  

Sincerely, 

n Charles Boger 

Contributions are deductible for U.S. income tax purposes. 

The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part of the National Association for the Advancement of Colored People (NAACP) although 
LDF was founded by the NAACP and shares its commitment to equal rights. LDF has had for over 30 years a separate Board, program, staff, office and budget. 

 



  

BISHOP PAUL MOORE, JR 

Chairman 

Members: 
Henry Aaron 
Steve Allen 

Arthur R. Ashe 

Joan Baez 
Birch Bayh 

Vivian J. Beamon 
Harry Belafonte 

Saul Bellow 
John C. Bennett 

Lerone Bennett, Jr. 
Viola W. Bernard 

Leonard Bernstein 

Hans A. Bethe 
Julian Bond 

Henry T. Bourne 
George P. Brockway 

Yvonne Brathwaite Burke 
Helen L. Buttenwieser 

Diahann Carroll 
James E. Cheek 

Shirley Chisholm 
Ramsey Clark 

Aaron Copland 
Bill Cosby 

Maxwell Dane 
Ossie Davis 
Ruby Dee 

Victoria Del ee 
Ralph Ellison 

John Hope Franklin 

Mrs. A. G. Gaston 
Kenneth A. Gibson 

Roland B. Gittelsohn 
Charles E. Goodell 

John Hammond 
Richard G. Hatcher 

Theodore M. Hesburgh 
Marilyn Horne 

John H. Johnson 
Mrs. Percy Julian 
Horace M. Kalien 

Ethel Kennedy 
James Lawrence, Jr. 

Max Lerner 

W. Arthur Lewis 
Sarah Larkin Loening 

John A. Mackay 
Horace S. Manges 
Henry L. Marsh, Ili 

William James McGill 

Linda B. McKean 
Karl Menninger 
Charles Merrill 
Arthur Mitchell 

Paul Newman 

Anthony Newley 

Eleanor Holmes Norton 
Richard L. Ottinger 

Leon E. Panetta 
Gordon A. B. Parks 

Sidney Poitier 
Joseph L. Rauh, Jr. 

Carl T. Rowan 
John L. Saltonstall, Jr. 

William H. Scheide 

Arthur Schlesinger, Jr. 
Charles E. Silberman 

John P. Spiegel 

William Styron 
Telford Taylor 

Robert Penn Warren 

Robert C. Weaver 

Tom Wicker 
Myrlie Evers Williams 

JAMES R. ROBINSON 
Secretary 

Contributions to: 

P.O. Box 13,064 
New York 10277 {« € 

omimittee 
of 10 2) 

IN SUPPORT OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 
89 HUDSON STREET, NEW YORK, N.Y. 10013 / Telephone (212) 218-1900 

May 28, 1987 

Mrs. Betty J. Myers 

Dear Mrs. Myers: 

We very much appreciate your supplying that 

photograph of your brother Warren McCleskey. I 
am enclosing two larger photographs made from it, 
as well as the original photo, which was slightly 
damaged in the printing process. 

I am also enclosing copy of the letter we are 
sending out, using the picture at the top, plus the 
reprint from the New York Times, plus the little 

slip appealing for clemency. 
  

Sincerely yours, 

James R. Robinson 

Secretary 

JRR: js : 

Copy to: John C. Boger, vr 

Robert Stroup, Esq. 

141 Walton Street, N.W. 

Atlanta, Georgia 30303 

THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND (LDF) is not part of the National Association for the Advancement 
of Colored People although LDF was founded by that organization and shares its commitment to equal rights. as had ror 
over 25 years a separate Board, program, staff, office and budget. A copy of the last financial report of THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC. may be obtained by writing to The New York State Department of State, 162 
Washington Avenue, Albany, New York 12231, or to this office. Please use separate envelope to request report. 

  

Contributions are deductible for U.S. Income Tax purposes. 

 



June 17, 1987 

  

Dear Helen, 

Praise God for the blessing, and privilege of intercessory 

prayer - and for your sharing the prayer needs of your Brother, 

Warren. 

I want to share with you a little of the response from prisoners 

at NH State Prison, in answer to requests for prayer for Warren. 

Enclosed is a letter to YOU and to Warren, from a Prisoner 

named ERIC at NH SP who has Adopted Warren for daily prayer. 

Also, enclosed is copy of a portion of a letter from another 

Prisoner named Robert (in Maximum) at NH SP. 

We have asked NH Prisoners from County Jails, State Prison, 

Maximum, PC, and Minimum Units to be in prayer as individuals, 

and as a Church body. I praise the Lord for the beautiful 

Church that HE has raised up at NH SP. 

God willing, we will be in prayer for Warren as part of the 

IN Prison Seminar at SP next Wed thru Sunday. 

May our loving, heavenly Father fill you with peace and hope 

and awareness of HIS love and power at work in your heart and 

life - and in Warren's situation. 

Love and prayers. 

    
hit man Fig . 

Suit pty fn tin Hr SE i pe 

 



      

rf 3 
Tne Fales, a (Ipneess 

> T > * / : Wy Aang Ao z LLC, ’ & (iL undly A, art 

Wow Ain wT fag Cl arse J 0 opted LO ate 

ool Gaeadt Con. le NO 
A ecerr tr ip Bl hr gen he, Jas lJ asu “1 4 VIN a 

y Mong Hot ain ok pu able hy zie tlizsng Lot 
vox Ste Lo dy Cay lace ion baile, 88 ot al 
Retedyay, ail Set of Pur Ad Ad unas Garp 

Bilin, of ppd SY, position melon Has 

5 ie a Lege if icin 3 th 4 Mi g Q mila zee aL 

bos Cl pu, 20100 Zens JOKE £720 Hou are dhe 

Lan C 4d na Law) lan el LQ run byeelis. J lotto 

Aad a te L. Se ala MiglsT Arcane tr leroy 

Aor Zhak vos 2129 Ctdone ( lo Rese ude ut 

lasers 2dly pagel bt pan ioe la, ihe 

ara a i we a hog lV Loi Jreacata gq (Ug 

or Joous Andee, oh Ahiy Continiie, Aho BFnidiois 

cls Lis Thnss on Asisidan Lothar forced 7 ce 

Lin soaitg lito pase Ll. Se Ke td A 

Lo ody Yow dia, ich Mon ivat-eivg faich 
nd oii fe Geae lat lL jr-vitn, Jere. balla gor 

ur 
won Cl pet’ lac fac (La 

~~ 

pr 

 



  

10,19, 

Gge 3 os fe Th 

ling Really of ol 7 Ze Mt gy 74 ot, off 

yh led’ Gc \ pleas Yo Rrrtabk Boke in ttf 
ri rogess, ol oi ost a lt frsoe. Fo oo Ye 

re Some, <L Really pl hep & Gellert bless hi “. CL Fans 

Ea iF Rely Mole Spey py Ao fees Sal fl we doe So 

aE A 5 Is. AR o Fol Ly io Aoce ~F vy ~ALT ope pers] | 

fhe Sl poral Li write , elle Ye Lvs en 

Fenn oF Vie anit he se Besos ved I~ owl ole rnd 

Watton & Gop hot Ae cndd oe il for “KL, Vie 

Hone peep je. fhe! Lo Yi, Yh > pelle £1 5 rg oF 

a : is hx Sen fente pital! Lo Sie res Tar 

od States hole (§ Vo 20 years ppd he Could) ore” 
bout ’ a) [rss Yhen IS 7 Carls on Lorde. Bes. oes SE 

Fost bao e Yo. Reedly be pois] A he Mek praelis, Vo —easbe— 

en a [Zin ak. Do lu fhe dane eT Sotes Yo forint 

0 Stee Yo o Ohi sTon, 
2 on 

i =, Roow if ue ree. FACE, os dali A Coan Ls 

| Haley Ve Soricl le ll o Eloy Ye. rrete ia Stn Amb ¥, 

a i Jello Js Foc i FL on i oon 

i La ot cer ( (lose foe Hoe o wef wo fy vor} NEEL 

Hr Soom Se Gg a” Pleose Sorepoc 19 Seas) fbb 

ot DB heoe. @ Le Agh? bond onc il Asc tes To vor 

pe fotely, | 

} Aovie, x Kesllv beleare. Ye! ORE OQ ce ody. Fhowk 

ba Joe « kK Iwes YOu hoot Sewn in) bcd lett oJ : 

Yo OYhats, os V Rles ou nd Je Sol “ SZ 

Li Ly, AP eid XK HY a 

 



Prison Fellowship 

PRAYER ADOPTION MINISTRY 

P.O. Box 984 
Amherst, N.H. 03031   rs    

  

  
"Call unto Me, and I will answer you, 

and I will show you great and mighty 

things that you do not know about.” 

(Teremiah 33:3) 

  

  

  

  
My prayer requests are: Thal he Gvgsfq Fhe ote fs LIC BL Cr 

Low Cosemspnidets Hee J dl N 

I give God thanks for: (coo Fetch loess 20 od ff v/re 2. Geptas 

  

  

  

  
rn ———— .e 

  

My prayer for frient/yeighion Aa RR hd | 1S « ya §orote yA) beotya, He. 
Fellow Prisoner 

< Tal af Tog Cotrce he Cartredee! Sor fle pfs 
our world/Nation 

. State Prison 

))-a;-57 Pp 
My Birthdate My present Address 

Please share my prayer requests with the Prayer Fellowship : Gi = 

Y 

  
  

  

  My prayer for 
  

      

      

  

  

  

Would you like us to prav with you for: : 

: vn have hope to be free. 

PO En prtrant control my temper. / To get some mail. 

To know God's plan for my life. © know that I am forgiven. 

To have a new life in Jesus. fo have my faith in God grow. 

TO mais or keep more friends. Te know that I am loved. 

To be more forgiving toward others. o stop swearing. 

To have more to do. More time to myself . Z To be more thankful. 
To get my GED “High School Diploma . To have a Bible. 

To have a new life in the Lord Jesus Christ. 

0 from addiction. rugs + Alcohol « Other . j 

More confidence in the Lord 

  
  

  

  

I would like to receive a Bible Study«"Steps to Christian Maturity (Free) Se 
  

I do hope to attend the IN PRISON SEMINAR at N.H. State Prison June 24 - 26 « (CHAPEL) | 

June 27 - 28 « (ANNEX) 

To bring a Friend y 

  

  

 



   
Southern Prisoners’ Defense Committee 
  

185 Walton Street, N.W. 

Atlanta, Georgia 30303 

May 26, 1987 (404) 688-1202 

Jack Boger 
Legal Defense Fund 
99 Hudson Street 
New York, New York 10013 

Re: Robert L. Hamilton 

Dear Jack, 

Several weeks have passed since you were in Atlanta and I 
wanted to bring you up to date on my contact with Mr. Hamilton. 

Pursuant to our conversation, I called Mr. Hamilton and 
talked with him for about ten minutes. The conversation while 
pleasant was not helpful. His position is the same; he doesn't 
remember that much and doesn't want to discuss what he does 

remember. 

I regret that I don't have more positive information to 
relay. If you would like me to call him again or stop by his 

house, I am more than willing. 

We all stay so busy in this work that we rarely get to know 
each other. I am glad Mr. Hamilton provided us with an opportu- 

nity to work together and get to know each other better. I only 

wish our interaction with him had been fruitful. 

Take care and don't hesitate to call me. Please give Tanya 

Coke my regards. 

erely, 

Sandra Kay Barnhi 
Attorney at Law , 

   

  

27 soli oC oA 7d 

1 

  

     

   



    0 

% Vac He Send ! 

NS gH. © 

Hang pe, elsy Atlan bd Shem Loans Chek Th 

pn Lit Jamits ¥ AN Oy VR Hanes, Joh Ceol 

Vomnack clo wd Ld) 2 pel. 

A OWS Sade: UvIN DAOCS Jou NLOO™Y Bo ~L Yo JY 

Jct. © n Ne Ry wou 

gssaion QL Ue SUR Wg x UO Sue D5 

Hh villa 

2S own wl 

| Ba AOQ0 Jon 

aha TO 

3 ail 1) 

Sand ik He ad 

Pileadegd. ate. Al Lhncwogh 

dude au 
3. WO | 

Jd SO 

co WANA 

de “ Dols Sihes too o s 9 Say > ni 

Lhe e PUNTERS 0 

  
ESE 

( 

Fe rg A hok 3 ame DRL 
% 

\ 
\ 

In. ret Nw hen ipl nti A 
Jil: Hah UAVS 5 de ee] eosin 5 

a pus, dete amd cal) did ad woldane 

Ql 

weld Lo 
AAR Shod Bond an J 

Se WI | Judy i» Woh o Hold SYM (Lh 

\ ori) Unak oh. He Gk Ey + Sek HVE 

Ul dode on wma, mam ltr 9 ale 1 wk 

ak ou Bi pie \ Q LO 

hen i ian ee se ie 

oo An do RESTS INSTR ua idle Sand 

called lay 0H [ry Bon aac) He ad 2 

| A hide rest 2. Ye. Sa Hon TON 4 AWE > 

QLaen Ar +o iri Sw Wemnans Lane - 

img a Monit, Jacke = oJ 

On 

Hite 7 

k ht o} 

he ae 
ON Wo J AJ Len On 

We Sov: a Lonal. (Gal ao’ : pun Yous Lr | 

Mang TNE! Yao 

| 210 sight & 

Sd wil J + args \neoine 

pda [SE CRPTIN witha 

=~ 
BS Q NLA WX x daa Chat Jo ag == TONS don 

Se and Auge J Sn Rota, Wie deo ASIN afore 

r hen Cn Fein i NDS SAed. a 

S 

A LD wn Chaak 
AW : 

cS SWC 

 



William N. Moore D103403 

BV . 2 al - ES oD fe 

Noo Uo BAX Wms 

 



 



    
Southern Coalition on Jails and Prisons 

POST OFFICE BOX 120044 NASHVILLE, TENNESSEE 37212 

JOSEPH B. INGLE EDGAR A. PORTER 
Director Alternatives to 

Incarceration 

Dori Murphy 
Administrative Assistant 

May 22, 1287 

Dear Warren: 

I returned from traveling to find your letter, IL was really 

good to hear from you. I hope you are well and stump Billy 

Moore with a Bible quae he doesn't recognize just for me. 

When I was in New York last week I stopped by and saw Jack 

Boger. He was finishing your rehearing petition which he 

filed Monday. 

Warren, your letter raised a number of concerns which 1 want 

to deal with directly and honestly. 1 may not always tell 

you what you want to hear or even what I wish I could say, 

but I am honest so you can rely on that. 

As you know, 1 am a minister and not a lawyer. So, the legal 

aspects of your case I'm sure you and Billy and Jack know 

much better than I. However, I do work for guys and will 

be happy tn do 211 in my power fo keep you alive. 1 Just 

want you to remember that I'm not a judge or a member of the 

Pardon Board. I'm just a guy who cares and will do all in 

my capacity to help you. 

I will discuss clemency with Jack and coordinate our ideas 

so we can be most effective. 1 have a couple of notions 

but I am frankly tooexhausted from our efforts to try and save 

Earl Johnson in Mississippi. So, let me rest s bif ang you 

will hear from me in the near future. I will also give Jack 

a call and see what he has in mind. 

Let me hear from you when you get a chance. R€garys to Billy. 

/ Shalom, 
{ 

(615) 383-9610 

 





or —— 

x... nm. ) nf 

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

99 Hudson Street © New York, N.Y. 10013 e (212) 219-1900 

August 18, 1086 

TO: Julius Chambers. 

Tanya arr 

McCleskey v. Kemp 
  

Jack Boger and I have been working 

on a press strategy for the upcoming 

arguments in McCleskey. 
  

We have decided that a necessary 

first step is to update our race and 

the death penalty press kit, which was 

first put- together last year. 

In addition, we would like to 

do a special mailing to leaders and 
media people in the black community, 

as we feel it is important for McCleskey 
to be seen as a major race case. 

  

I have drafted a letter to our 

black contacts that would enclose the 

oublic information kit. If we mail 
such I letter, I believe your signature 

should goon it. Would you please. review 
the draft, and let Jack and I have your 

comments? 1:-will be back in the office 
on September 10. Jack is available to 

discuss this with you before that time, 

if you are able. 

Contributions are deductible for U. S. income tax purposes 

8  



  

August 18, 1986 

Dear 

I write to inform you of an important Georgia case, central 

  

to the concerns of black Americans, that will soon be heard in 
the United States Supreme Court. The name of the case is 
McCleskey v. Kemp; the issue is the racially discriminatory 
application of the sorter penalty in Georgia. 

McCleskey, which will be argued on October 15 by the NAACP 
Legal Defense Fund, represents the culmination of this office's 
20 year fight against the institution of capital punishment in 
the United States. LDF's involvement in the defense of capital 
inmates in the 1960's grew out of a belief that the racial 
discrimination permeating the criminal justice system has worked 
particular evil in the area of capital punishment. Staff 
attorneys at the Fund successfully argued against a death 
sentencing system that was "arbitrary and capricious" (in the 
words of Justice Stewart), resulting in the landmark Furman Vv. 
Georgia decision that in 1972 struck down the death penalty 
statutes then in effect as unconstitutional. 

  

The death penalty has been back with us for a decade now, 
under revised statutes that have substantially changed the death 
sentencing process. But the evidence on the record of the past 
ten vears is in, and its conclusion clear and irrefutable: 

racial discrimination has persisted. Capital punishment in 
America is now characterized by a racial bias that operates most 
egregiously against black defendants accused of crimes against 

white victims. Warren McCleskey, a black man accused of shooting 
a white police officer, bases his claim on the most far-reaching 
study of post-Furman capital sentencing ever produced -- a study 

that has conclusively proven that those who kill white people in 

the state of Georgia are nearly eleven times more likely to 
receive a death sentence than those who kill blacks. Among all 
persons indicted for white victim murder, black suspects receive 
a verdict of death nearly three times as often as do white 
defendants. 

Sociologists explain that this is so because our society 
values black life less than white life. When we reserve our most 
extreme and irrevocable punishment along racial lines, explan- 
ations seem pointless. Whatever one's feelings on the death 
penalty, such gross racial bias in its application is 
intolerable. 

 



  

As the most frequent victims of crime in the United States, 
black people are most vitally preoccupied with the guality of 
justice delivered to the citizens. In many ways we replicate 
the most conservative sectors of society in terms of our anger 
and frustration with violent crime. As an economically 
disadvantaged class we are not always afforded effective means to 
communicate our indignation. Perhaps for this reason the black 
community has not fully lent its voice against the increasing 
popularity of the death penalty as a form of punishment -- a 
system which strikes our troubled youth most often, and most 
unfairly. Professionals who work closely with the judicial 
system and who witness its more sorrowful failings case by case, 
still have many myths to dispel about the real -- the negligible 
—-— impact of capital punishment in deterring crime. 

The black citizens of this country have long been aware that 
racial bias has not disappeared with its legislative prohibition. 
If anything, studies like the one done in Georgia have shown its 
post-civil rights manifestations to be no less pervasive or 
insidious, only more subtle. Warren McCleskey's case becomes sO 
important today because it challenges the presumption of equal 
protection under the law that we, as Americans, feel we should be 
able to make of our judicial system. However, it is a 
presumption that black Americans cannot yet afford, especially in 
these complacent times. 

The lower courts have refused McCleskey's claim, holding 
that he must show evidence of individual discrimination in his 
own case, no matter how powerful the statistical studies. At 
this time, as in the past, it falls to the black community to 
remind the American public of its commitment to the principle of 
equal protection in criminal justice. Leaders like yourself may 
soon be called upon the comment on this important case. We ask 
vou to read the enclosed materials on race and the death penalty, 
and to generate discussion among your own constituency. A 

decision from the Supreme Court is expected in early 1987. 

The NAACP Legal Defense Fund welcomes your comments and 
thoughts on the issue. Please do not hesitate to contact our 
Office if you have any questions or require additional 
information. 

Sincerely, 

Julius Chambers 

Director-Counsel 

Encl. 

 



NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 
99 Hudson Street, New York, N.Y. 10013 ® (212) 219-1900 

  

June 11, 1987 | 

Superintendant Ralph M. Kemp 
Georgia Diagnostic & Classification Center 
Post Office Box 3877 
Jackson, Georgia 30233 

Dear Mr. Kemp: 

I am travelling to Jackson to interview my client, 
Warren McCleskey, on legal matters. This letter requests 
you to permit my legal assistant, Kaoru Umino, to be | 
admitted to assist me in his interview. Ms. Umino is 
a 1987 graduate of Columbia Law School and she is serving 
as a summer paralegal with my law firm. She has been assigned 
to the McCleskey case, and her assistance in the interview 
will be invaluable. [Our visit will occur on June 12, 19387. 

Thank you very much. 

   
Jn Charles Boger 

» 

Contributions are deductible for U.S. income tax purposes : 

The NAACP Legal Defense & Educational Fund, inc. (LDF) is not part of the National Association for the Advancement of Colored People (NAACP) although : 
LDF was founded by the NAACP and shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget. 

 



    

8 8 N28 \(€35 (0) ON) Oi, 
ON * GEORGIA « PRISONS « AND « JAILS 

July 6, 1987 

Jack Boger 
LDF 

99 Hudson St., l6th Floor 
New York, NY 10013 

Dear Jack, 

Enclosed is an article by Joseph Katz re his review of the Baldus 
study. I'm sending it along because Julius Chambers is supposed 

to speak to the Metropolitan Crime Commission forum on July 21 

(who chose that date!) and I thought he might like this summary 
of what I expect Katz will say. 

This forum is being widely publicized, and, coming at the end of 
the week, it's sure to get heavy coverage. Is Julius up to this 

alone, or should he have a cohort? Katz is on with Michael Bowers, 

you know. 

We'll try to pack the audience with our folk, but that's never 

a sure thing and it's going to be a trying week at best. 

Let me know if there's anything I can do on this end. 

  

Pat Koester 

Post Office Box 437 « Atlanta, Georgia 30301 + 404-522-4971 

 



  

  

  

2 INSIDE: [0 Story of Forsyth black exodus draws fire 4C OI Yuppies at 1787 Convention 6C + [0 Gulf plan designed to save Reagan 7C 

A section of opinion 
and news analysis 

  

" SEcTiIoN€ . 

  

asx SUNDAY, JULY 5, 1987 

  

  

  

“By rom L. Katz 
". Special to The Journal-Constitution ~~ 
  

/7EUTE Warren MeCleskey is scheduled to die 
=. <]ater this month in ‘Georgia’s electric chair. 

- For death-penalty opponents nationwide, he 
“has become a symbol of racial discrimina- 
-tion in Georgia's charging and sentencing 
system. 

BE aad - RT WEIR LW yay 
  

of decision sciences at Georgia State Univer- 
- sity. Last month, he was released from a 
provision in his contract with the state attor- 
ney general that had prevented him from 

- discussing his 1983 testimony in the MeCler 
RON CODDINGTON/Staf key case. 

  
PERE £3 rrr ng 

weil gd 

    

Although three federal courts rejected 
paid  McCleskey’ s claim of discrimination, many 

observers have concluded that those judicial 
~.decisions were simply wrong. These observ- 
ers are convinced that a study submitted by 
McCleskey’s attorneys clearly demonstrated 
a pattern of racial bias among Georgia pros- 
ecutors and jurors, a pattern that all three 

courts chose to ignore. 
“Four-years ago, the state of Georgia 

« Joseph L. Katz is an SSSOEle professor asked me to testify on that study, which was 
undertaken by University of Iowa law Pro- 
fessor David Baldus. After analyzing Baldus’ 
work for six months, I submitted testimony 
in federal court that disputed his allegations. 
In fact, using Baldus’ own data, I was able 

to present PE aia that 3 at Pippert 
PS esa sch i AVES TNE 

PY * 

ALG aaiarid 

- the defendants convicted of killing white vic- 
tims--were sentenced to death, as compared * 

ed. ‘the fairness and integrity Georgia’ S 

Because news commentators: have Tatgely 
overlooked the flaws in the Baldus study, I 
believe it is important to share my findings 
with the public. 

~Baldus took a ‘sample of 1,082 cases of 
voluntary manslaughter or murder that oc- 
curred in Georgia between 1973 and 1978. 
When he divided the cases by the race of the 
victim, Baldus concluded that 11 percent of 

with only .1 percent of the defendants who 
killed black victims. ir; i 
+Baldus further- subdivided the cases by 

“every possible defendant-victim racial com- 
His ik RL 

 ianm eI : . * $v THATEEY 4 1a ang TS 

Death penalty data dispute’ racial bias claims 
binatice, He fnid that tte dail penalty 

segiencing system. Shes was imposed on 22 percent of the blacks whe 
killed. whites, 8 percent of the whites who 
killed whites, 1 percent of the blacks who 

“killed blacks, and 3 percent of the whites 
who killed blacks. 
«= It’ is those disparities in desthsentencing : 
rates .— especially the difference in death- 
sentencing rates by race of the victim — 
‘that have been offered as convincing proof of 
“the existence of discrimination in Georgia's 
system. 

Yet my analysis showed that this dispari- 
ty merely reflects the more aggravated na- 
  

See SENTENCING . 6Cw 
 



    

des E20 

Sentencing 
FROM 1c #2 
  

ture of the white-victim cases. - * 

Baldus attempted to collect data 
on more than 500 aggravating and 
mitigating variables that came into 
play in each of the 1,082 cases in 
his sample. I took more than 100 of 
the most important of these vari- 
ables and calculated the percentage 
occurrence of each factor, broken 
down by the race of the victim and 
the race of the defendant. 

My analysis revealed that the 
white-victim homicide cases were 
much more likely to involve other 
offenses, such as armed. robbery, 
kidnapping or rape. They were 
more likely to be brutal, with high- 
er rates of mutilation, torture and 
clubbing or stomping the victim to 
death. And they were more likely to 
be cold-blooded, with the assailant 
‘motivated, for example, by the pur- 
suit of money or the necessity to si- 
lence a witness to a crime. 

© On the other side of the ledger, 
I found that the black-victim homi- 
cides were more likely to be char- 
acterized by mitigating factors than 
were the white-victim homicides. 

‘The black;victim cases were often 

i OE rai r Sin ort. 
pat eg 4 

i 5 entre: over mon- 
_ ey, domestic or lovers’ quarrels, or 
"fights caused by drugs or alcohol. 

The defendant was more likely to 
-- have been enraged before the homi- 

— cide occurred, more likely to have 
. surrendered to authorities after- 
ward, and more likely - to be 
remorseful. «on 

. The accompanying chart is a 
portion of the much larger and 
more detailed exhibit that I present- 
ed to the court. It shows how often 
certain aggravating and mitigating 
features occurred in the 1,082 homi- 
cides in the Baldus sample, broken 
down by defendant-victim racial 

~ combination. 

‘The chart clearly shows that the 
black-kills-white cases are the most 
aggravated and the least mitigated. 
In 67 percent of those cases, for ex-. 
ample, the homicide was committed 
during an armed robbery. And only 

-18 percent of the iilings were of vo 
“cipitated by a dispute. ; 

sor igrens - 

Compare this with the a that 
in only 7 percent of the black-kills- 
black cases does an armed robbery 
occur. And 73 percent of the time, 
the killing is triggered by a dispute. 

I believe that the black-kills- 
white cases are more aggravated 
because the interracial nature of the 
crime precludes the existence of 
such mitigating factors as quanel 
ing between relatives or friends. 

"The white-kills-white homlcioes 
are a mixture of aggravated kill- 
ings, such as those occurring during 
armed robberies, and more mitigat- 
ed cases resulting from domestie 
quarrels. 

I believe that the ily 
higher level of affluence of whites 
during the 1970s made them more 
susceptible to being victims of ag- 
gravated crimes arising from 
armed robberies and other felony 
.offenses, which accounts for the 
“higher death-sentencing Tate Jor 
white-victim cases. 

Only 28 cases in the Baldus 
‘sample were categorized as white- 

~ kills-black. The small number of 
cases makes it difficult to find an 
overall pattern, other than the fact 
that this combination rarely occurs. 

This point, however, is critical. 
More than 95 percent of the black- 
victim cases in Baldus’ sample in- 
--volve black defendants. Therefore, - 
“if the judicial system followed the 
argument advanced by McCleskey’s 
lawyers — that fairness in death 
sentencing can be realized only if 
the death-sentencing rates in white- 
victim and black-victim cases are 
roughly equal — it would have the 
effect of unjustly executing black 
people who have committed miti- 
gated homicides. 

This campaign for “equal oppor- _ : 
~ tunity” or “affirmative action” in 

™ death sentencing, under the guise of 
fairness, has no rational basis. 

There is more evidence in the - 

Baldus study that Georgia’s charg- 
ing and sentencing system is, in 
fact, working properly. I looked at 
the percentage occurrence of sever- 
al aggravating and mitigating fac- 
tors broken down by ultimate 

‘ sentence. 
~~, For example, armed robbery oc- 
“curred in only 3 percent of the 
cases in which the defendant was 
convicted of voluntary manslaugh- 

. ter, compared with 28 percent of 
the life-sentence cases and 56 per- 
cent of the death-sentence cases. 
Kidnapping occurred in 0.4% of the 
manslaughter cases, 6 percent of 
the life-sentence cases and 37 per- 
cent of the death-sentence cases. 

Killings occurred because of a 
dispute in 81 percent of the man- 

_ slaughter cases, 47 percent of the 
- life-sentence cases and only 14 per- 
~ cent of the death cases. 

I hope such figures will dispel 
the notion that death sentences in 
Georgia are meted out in an arbi- 
trary or capricious fashion. As Jus- 
tice Lewis Powell wrote for the ma- 
jority in the U.S. Supreme Court’s 
McCleskey decision, “the Baldus 
study in fact confirms that the 
(Georgia system results in a reason- 
able level of proportionality among 
the class of murderers eligible for 
“the death penalty ” pe 

  

-w— 

  

2% 39 

White.victim herders are more aggravated 
Analysis of 1,082 Georgia cases in Baldus sample Jae 

  

Black White Black * White 

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

WE ‘kills kills kills™= kills 
hi AER white white black - black 

Number of cases” 143 371 477 28 | 

Received death sentence 22% 8% 1% 3% | 

Aggravating variables a : 
Execution-style murder 33% .22% 7%: 12% 

Killing to silence witness 36% 13% 3%% 12% 

Armed robbery 67% 20% 7%" 22% 

Kidnapping 18% 11% 2%. 4% 
Rape 10% 4% 3%: 0% 

Aged victim 13% 5% 1% 0% 

Victim body mutilated 17% 14% 3% 4% 

Victim pleaded for life 58% 31% 21% . 33% 

Money motive for killing 75% 33% 10%... 35% 

Peace officer killing 11% 1% 1% 0% 

Defendant resisted arrest 46% 14% 3%" 12% 

Mitigating variables . : 

Killing due to any dispute 18% 54% 73%. 67% 

Dispute due to drugs/alcohol 5% 27% 31%: 36% 

Dispute between spouses 2% 17% 20% > 4% 

Killing due to jealousy 0% 9% 17% 0% 

Def. enraged before homicide 18% 59% 78% . 68% 
Defendant provoked by victim 31% 56% 70%. 70% 

Defendant remorseful 14% 26% 39% 75% 
  

*In 63 of the 1,082 cases, the race of the victim was unknown As 

    

 



  

July 17, 1987 

TO: JLC 

From: Jack Boger 

The two annexed documents help buttress the position that, no 
matter what sub-categories of capital cases one reviews, Georgia 
homicide cases are resolved in racially discriminatory ways. 

DOCUMENT 1 (by my labelling) looks at all Georgia homicide cases 
including a "b(2)" aggravating circumstance (homicide committed 
with a contemporary felony). In it, Professor Baldus subdivides 
the "b(2)" cases by type of felony, number of victims, whether 
another offense occurred, whether the armed robbery was "less 
aggravated," "typical" or "more aggravated" etc. Racial 
difference unfavorable to killers of white victims (compare 
columns C & D) arise in most subcategories (as reflected in 
column E). 

  

  

DOCUMENT 2 is an affidavit related to an earlier study by Bowers 
& Plerce. 1t is less thorough than that of Professor Baldus, but 
gives the same basic message. Read pp 14-23 for a sense of how 
they refined their analysis to look at subcategories of 
homicides, always finding a racial effect. 

Good luck -- have fun with Attorney General Bowers. I'd love to 
hear you. You'll be great, no doubt. 

 



  

A SF; (2) e oan : ; 
Average White White 

% Death Defendant/ DE Arithmetic Defendant/ Defendant/ Arithmetic 

of all Penalty White Black Difference Ratio White Black Difference Ratio 
B-2 Cases Rate Victim Victim (Col.C-Col.D) (Col.C/Col.D) Victim Victim (Col.G-Col.H) (Col.G/Col.H) 

I. All Cases Death 
Eligible Under ML 7 
Statutory Aggra- 

rin Factor 100% .30 .38 .14 ** «24 *% 2.71 33 .21 12 1.57 
(n=438) (130/438) ' (60/160) (15/104) (52/160) (3/14) 

11. 

A. All Armed 
Robbery 63% .26 .34 .05 **% «29 *% 6.80 o27 «27 0. 

Combined {n=275) (71/275) (42/123) (3/57) (23/84) (3/11) 

B. Armed Robbery 
with Another 
Cffense 

1) with kidnap, 
arson or 7% «70 «92 0 % 92 % - .60 1.0 -4 .60 

burglary (n=30) (21/30) (11/12) (0/2) (9/15) (1/1) 

2) with more 
than 1 2% «63 33 .0 «33 - .80 .0 80 - 

| victim (n=8) (5/8) (1/3) (0/0) (4/5) (0/0) 

: 3) with "other" | 
: contem- 

¥ poraneous 6% «23 «36 0 +36 — 14 1.0 -.86 .14 

| offense (n=26) (6/26) (4/11) (0/7) (1/7) (1/1) 

] 4) with no 
other 
contem- |. — 
poraneous 34% 223 > 37 Ours 15 3x RQ 6.16 .18 .14 .04 1.29 
offense (n=150) (35/150) (25/68) (2/35) (7/40) (1/7) 

  

KIDNAPPING, AGGRAVATED BATTERY, BURGLARY, FIRST DEGREE ARSON) AND RACE OF DEFENDANT 

Table 38B   DB 3b 
RACE OF VICTIM DISPARITIES IN DEATH SENTENCING RATES, CONTROLLING FOR TYPE OF B-2 STATUTORY OFFENSE (MURDER, RAPE, ARMED ROBBERY, 

  

  

  
    
    

  

  

  

  

  

  

  

  

      
  

1/ These include all B-2 death eligible cases from both the Procedural Reform Study and the Charging and Sentencing Study. 

CONTINUED *%x Significant at .01 level (Chi-Squared > 6.63) 
* Significant at .05 level (Chi-Squared > 3.84) 

 



  

PAGE 2 

A B (se) (» 
Average ack Black 

% Death Defendant/ Defendant/ 
of all Penalty White Black 

B-2 Cases Rate Victim Victim 

4 a)less 
aggravated c 
armed vd 
robbery 
with no 
other 10% e313 «25 .10 
offense (n=45) (6/45) (5/20) (1/10) 

armed { 
robbery 

with no 
other 14% .18 i «28 .0 

offense (n=62) (11/62) | (7/25) (0/7) 

4 c)more 
aggravated 

armed 
robbery | 
with no 
other 10% .42 +57 .13 

offense (n=43) (18/43) (13/23) (1/8) 

5 defendant 
not the 
actual 14% .07 .03 .08 

killer (n=61) (4/61) (1/29) (1/13) 

Table 388 Continued 

    

  

5 

  

  

  

  

        

F G H I J 
: White White 

Arithmetic Defendant/ Defendant/ Arithmetic 
Difference Ratio White Black Difference Ratio 

(Col.C-Col.D) (Col.C/Col.D) Victim Victim (Col.G-Col.H) (Col.G/Col.ll) 

pal 15 2.50 .0 0 0 - 

(0/11) (0/4) 

.28 n 22 0 22 He 

(4/19) (0/1) 

.44 4.38 +33 .50 -.17 .66 

(3/10) (1/2) 

-.05 «38 12 .0 12 

(2/17) (0/2) 

SEN     

  

CONTINUED 

 



Table 38B Continued 

  

        

          

PAGE 3 

A B 5 D E F G H 1 J . 
Average Black Black White White : 

% Death Defendant/ Defendant/ Arithmetic Defendant/ Defendant/ Arithmetic \ 
of all Penalty White Black Difference Ratio White Black Difference Ratio x 

Ge ns B-2 Cases Rate Victim Victim (Col.C-Col.D) (Col.C/Col.D) Victim Victim (Col.G-Col.H) (Col.G/Col.H) i} 
"her B- 

III. Contemporaneous 
Of fenses &- 5 ?) 

A. Rape 12% .50 % «50 .44 ( .06 1.14 «59 .0 «59 - 

(n=52) (26/52) (8/16) (8/18) (10/17) (0/1) 

E. Kidnapping 8% .42 } 4.60 200 an lo 2.07 .45 .0 .45 - : 

(n=33) (14/33) i (3/5) (2/7) (9/20) (0/1) 

C. Burglary | | 

and/or 7% .34 E463 .0 .63% - .38 .0 «38 - 

Arson (n=29) (10/29) F (5/8) (0/8) ; (5/13) (0/0) 

D. Another 7% «29 «33 29 .04 1.14 24 0 «2d - 

Murder (n=31) (9/31) (2/6) (2/7) (5/18) (0/0) 

E. Mggravated 4% .0 Priel .0 0 - 0 .0 0 - 

Battery (n=18) (0/18) a o/b Lo oid (0/8) (0/1) 

* Significant at the .05 level 

 



  

    

    

  

es...  —» 
Doe uMenNT co 

IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF GEORGIA 

MACON DIVISION 

  

JOHN ELDON SMITH, or 

ANTHONY ISALLDO MACHETTI, 

Petitioner, 

-against- CIVIL ACTION NO. 79-45- 

MAC 

CHARLES BALKCOM, Warden, 

Georgia State Prison, 
AFFIDAVIT 
  

Respondent. 

  

  
Commonwealth of Massachusetts) , 

County of Suffolk ) 

GLENN L. PIERCE, being duly sworn, states: 

1. I am a research associate and advanced doctoral 

candidate at the Center for Applied Social Research at 

Northeastern University in Boston, Massachusetts. On the 

basis of the extensive social science research and analyses 

  

  

  

detailed below, I make this affidavit in support of petition- 

er John Eldon Smith's constitutional claims that the death, 

penalty in Georgia is being applied in an arbitrary and 

racially discriminatory manner. 

Professional Qualifications 
  

2. I received an undergraduate degree in scciology 

from Bates College in Lewiston, Maine in 1567. I received 

 



  

  

  

    
  

a Master's degree in sociology from Northeastern University 

in Boston, Massachusetts in 1971. I am presently an advanced 

candidate for a Ph.D. I have taught both statistics and 

research methodology in the Department of Sociology and the 

Department of Criminal Justice at Northeastern. 

3. I have been the recipient of a Stearns Center re- 

search grant and have engaged in a number of studies in the 

area of criminal justice. In connection with the Boston Re- 

sponsive Policing Program, for example, I analyzed, at the | 

request of the Boston Police Department, all reported incidents 

of crime within the City of Boston during the years from 1969 

through 1978. 1 subjected the approximately four-and-one-half | 

million criminal incidents to extensive statistical pattern 

analyses to evaluate and report upon the distribution of crime 

and delivery of police services in Boston. I have also en- 

gaged in a major research project on the impact of 

Massachusetts' mandatory gun control law on gun-and non-gun- ! 

related crimes in Massachusetts. 

4. In conducting these studies, I have employed a wide 

range of statistical and social science techniques, including 

the Box and Jenkins time series statistical techniques, arima 

models, multiple regression analyses and contingency table 
| 

analyses. Much of my social science research has involved | 

extensive use of computers and computertechniques. 

 



  

®
 

  

5. I have presented papers at a number of scholarly 

conferences, including a paper at Harvard University on the 

deterrrent effectiveness of legal sanctions, a paper on the 

arbitrary and discriminatory application of the death penalty 

at the National Criminal Justice Statistics Association and a 

| paper on the effectiveness of capital punishment at the 

Southern Economics Association. 

6. I have also published numerous scholarly papers and 

articles, including an article entitled "The Illusion of 

Deterrrence in Isaac Ehrlich's Research on Capital Punishment", 

85 Yale L.J. 187 (1975), co-authored with Professor William 
  

Bowers of Northeastern. 

7. I have appeared as an expert witness in capital cases 

in federal and state courts, including the case of Jack 

Carlton House v. Charles Balkcom, Civ. No. C78-1471A (N.D. 
  

Ga. 1979) and the case of Henry Willis v. State of Georgia, 
  

(Sup. Ct., Bleckley Co,, 1978). 

8. A copy of my complete curriculum vitae is annexed 

to this affidavit as Exhibit A. 

Research on Racial Discrimination in Capital Sentencing 
in Georgia 
  

9. In the fall of 1977, in collaboration with. Dr. William 

J. Bowers of Northeastern University, I undertook a study of 

the relation between occurrences of homicide and the imposition | 

of capital punishment in the State of Georgia in the period 

following the Supreme Court's decision in 1972 in Furman v. 
      
 



  

Georgia, 408 U.S. 238 (1972). Our research posed the question 

whether the imposition of capital punishment would vary sig- 

nificantly depending upon the race or sex of the defendant, 

the race or sex of the victim, the geographical location of 

the crime and other legally irrelevant factors. In short, 

this research aimed at testing empirically the Supreme Court's 

assumption in Gregg v. Georgia, 428 U.S. 153, 207 (1976) that 
  

"the concerns that prompted our decision in Furman are not 

  present to any significant degree in the Georgia procedure | 

applied here." 

10. We began by gathering information on all homicides | 

reported in the State of Georgia from 1973-1977. The data 

from 1973 through 1976 which we employed came from supple- 

mentary homicide reports submitted by Georgia law enforcement 

officials to the Uniform Crime Reporting Division of the Fed- 

eral Bureau of Investigation. These supplementary homicide 

reports ("SHR's") are forms which indicate the race, sex and   age of victims of homicides and briefly indicate the circum- 

stances of the crime. In Georgia during 1973-1976, approx- 

imately sixty to sixty-five per cent of all homicides were 

reported through the SHR system. The SHR data collected by | 

the FBI is published in statistical form, and it was those 

data upon which we relied. (Since the FBI did not have 1977 

data at the time our study was undertaken, we obtained infor-   mation directly from Georgia law enforcement officials through 

the Georgia Crime Information Center.) 

11. To adjust for the failure of Georgia law enforcement 

officials to report 100 per cent of all homicides, we also 

examined mortality statistics for the State of Georgia     
 



    
  

from 1973 through 1977 which are compiled by the Vital | 

Records Services of the Georgia Department of Human Resources. | 

. These statistics include information on all deaths by "willful 

homicide." By employing these statistics, which are complete 

for all Georgia deaths, we were able to adjust the SHR data to : 

obtain an accurate approximation of the total number of homi- | 

cides committed in Georgia during the 1973-1977 period. i 

12. Dr. Bowers and I contacted other data sources, in- | 

cluding the National Prisoner Statistics Program and the 

United States Census Bureau. After my investigation, we 

determined that our adjusted SHR statistics offered the best 

and most accurate data available for our purposes. 

13: We then collected data on all defendants in Georgia 

who received capital sentences during 1973 through 1977, in-   cluding each defendant's race and sex. 

14. Employing the adjusted SHR data on all homicides 

and the data on defendants who received capital sentences, we 

were able to calculate the probability of receiving a death 

sentence for homicide in Georgia during 1973-1977 based upon 

the race of the defendant. Those calculations, which are set 

forth below in Table A, reflect a statistically significant 

variation, with white defendants twice as likely as black. ..   defendants to receive a death sentence. 

    
 



      

TABLE A 

Georgia, 1973-1977 
  

: 

Probability of Receiving a Death Sentence for Criminal Homocide! 
By Race of Offender | 
  

  

Race of Number of Death Sentences Probability of a 
Of fender Of fenders Imposed Death Sentence 

White 1082 41 +038 
Black 2115 49 .018     

| 
15. We also calculated the probability of receiving | 

a death sentence for homicide in Georgia during 1973-1977 based| 

on the race eZ the victim. Our calculations were even more | 

dramatic. Proportionately eight times as many persons who 

killed white persons received a death sentence as did those 

defendants who killed black persons, as Table B, below, 

indicates. 

TABLE B 

Georgia, 1973-1977 
    Probability of Receiving a Death Sentence for Criminal Homicide 

By Race of Victim 
  

  

  

Race of Number of Death Sentences Probability of a | 
Victim Victims Imposed Death Sentence 

White 1609 73 : . 045 

Black 2586 16 .006 

16. When we examined the figures on race of both 

defendants and victims simultaneously, we concluded on statis- 

tical grounds that the primary causal factor in the imposition 

of a death sentence is the race of the victim, as Table C   
indicates. Since more white defendants killed white victims, 

more white defendants received capital sentences. 

 



    

TABLE C 

  

Georgia, 1973-1977 ; 
. { 

Probability of Receiving a Death Sentence for Criminal Homicide 
By Race of Offender and Victim : 
  

  

  

Victim/Of fender Number of Death Sentences Probability 

Racial Combinations Offenders Imposed of a Death | 
Sentence 

Black kills White 258 37 .143 
White kills White 1006 39 «039 
Black kills Black 2458 12 .005 i 
White kills Black 71 : +025 

All of these variations are "statistically significant," that 

is, there are variations between the sentences imposed upon 

murderers of black and of white victims and between the sen- 

tences insoged upon black and white offenders of such magni- 

tude as to make it highly unlikely that the variations 

occurred by chance. 

17. However, we were not altogether satisfied with 

these data as an answer to our initial research question -- 

whether Georgia was imposing capital sentences during this 

period in a racially discriminatory manner -- because 

we recognized the possibility that black and white victims | 

may have been in the main involved in different general 

types of homicides and that, as a result, crimes against 

white victims might have been, as a rule, more heinous, and. 

for that reason incurring a higher proportion of capital 

sentences. For example, it could have been that more black 

victims had been involved in domestic quarrels or other 

homicides for which a death sentence is infrequently imposed.     | | | 
 



    

18. To determine whether such extra-racial factors 

were at work, we used our adjusted SHR data to calculate the 

probability of imBestE iin of capital punishment in Georgia 

during 1973 through 1977, restricting our data solely to homi- | 

cides in which there had been an accompanying felony. Our | 

reasoning was that homicides accompanied by a felony would be 

homicides of comparable seriousness, and that by comparing only 

such crimes we could reduce the effect of possible extra-racial, 

variables postulated above. (In classifying all homicides | 

as "felony-type," we relied on SHR data which normally makes | 

this distinction.) : | 

19. Our calculations revealed that the disparity in 

imposition of capital sentences based upon the race of the 

defendant and the race of the victim persisted in Georgia, 

type homicides were considered. 

TABLE D 

Georgia, 1973-1977 
  

| 
| 

| 
to a statistically significant degree, even when only felony- | 

| 
| 

| 
| 
| 

Probability of Receiving a Death Sentence For Felony-Type 
Homicide By Race of Offender and Victim 
  

| 

| 

f 

| 

  

Victim/Of fender Number of Death Sentences Probability 
Combination Offenders Imposed of a Death 

Sentence 

Black kills White 134 34 .254 
White kills White 183 35 «19k 

Black kills Black 205 8 +039 
white kills Black 13 2 .154 .     
 



  

  

    

As Table D indicates, nearly six times as many black defendants 

who killed white victims in felony-type murders received a 

death sentence as did lacks who killed other blacks. | 

20. We then refined these data even further, restricting 

our examination, not simply to the total number of homicides 

reported by the SHR system as felony-type homicides, but only | 

to those in which a defendant has been charged and convicted | 
  

of a homicide. The purpose of that restriction was to see 

whether the disparities crept into the sentencing process at 

the law enforcement apprehension or prosecutorial charging 

stages, or instead whether Georgia juries, asked to impose 

sentence on defendants convicted of capital crimes, were re- 

sponding in a manner similar to that reflected in our earlier 

statistics. We therefore gathered statistics from the Georgia : 

Department of Corrections on all persons imprisoned during 1973 

through 1977, who had been convicted of first degree murder.   
We also learned from the Department which of these inmates had | 

| 
been given death sentences and were on Death Row. As Table E | 

| 

reveals, over three times as many convicted defendants who had | 

| killed white victims received a death sentence as did those who 

had killed black victims. 

TABLE E 

Georgia, 1973-1977 
  

Proportion of Convicted and Imprisoned First Degree Homicide 
Offenders on Death Row By Race of Victim 
  

  
  

  

Capital Murder Race of Victim 

Convicted Offenders White Black | 

Total Number Convicted 159 109 

Total Number on Death Row 26 3 

Proportion on Death Row 164 .028 

 



        
  

21. Similar racially-related disparities, of important 

statistical significance, persisted even when our categories 

were further refined to encompass only such defendants who, 

like petitioner Smith, had killed a woman. We wondered, in 

short, whether the racial disparities reflected a possible 

sexual difference in rate of imposition. Instead, we found 

that those defendants who killed white women were dispropor- 

tionately given capital sentences, as indicated by Table F. 

Race of victim, controlling for the victim's sex, continued | 

to be a determining factor. 

TABLE FP 

Georgia, 1973-1977 
  

Probability of Receiving a Death Sentence for Felony-Type 
Homicide by Sex of Victim 
  

    

  

Sex of Number of Death Sentences Probability of a 
Victim Victims Imposed Death Sentence 

Male | 
White 323 44 +136 
Black 17) 7 .041 | 

Female 
White 74 20 «270 | 
Black 29 4 +133 

22. After reviewing these figures and the analyses we 

have done on them, I have no hesitation in concluding that 

racial factors, involving both the race of the offender and that 

  of the victim, played a significant, unchecked role in the 

imposition of death sentences in Georgia during the period 

from 1973 through 1977. This statistical evidence, which 1 

-10 = 

 



    

have conveyed to officials representing the Department of 

Corrections of the State of Georgia for their examination and 

review, has not been otherwise explained by the State or by | 

anyone else on any other grounds than race. 

23. Speaking as a social scientist, I believe this data 

constitutes compelling evidence of racial discrimination at 

work during this period in Georgia's capital sentencing system. 

Research on Arbitrariness in Capital Sentencing in Georgia 
Based Upon Racial and Geographical Factors 
  

24. If "arbitrariness" in capital sentencing is defined 

as the imposition of dissimilar sentences on defendants in 

similar cases, the data I have described above would consti- 

tute evidence not only of racial discrimination but of arbi- 

  trariness, for those convicted of similar, felony-type homi- 

cides were shown, to a statistically significant degree, to . 

receive dissimilar punishments depending upon factors which, 

25. In our research, we focused on a further question   | 

| 

I am told, should be legally irrelevant. | 

} 

| 

| as well, one which we hoped might reveal another aspect of | 

| 

capital sentencing in Georgia: whether there are significant 

geographical disparities in the imposition of capital sentences 

| 
during the period from 1973 through 1977. Our data base in | 

ee 

this study was comprised, as were our racial studies, of 

SHR data adjusted by mortality figures compiled by the Georgia 

Department of Human Resources. | 

    
 



  

26. To develop gecoraphical figures we divided the 

State of Georgia into five separate geographical regions 

for purposes of examination. The boundaries of each region | 

were determined by and corresponded to divisions established | 

by the State as Superior Court circuits. By comparing the 

total number of criminal homicides within each region with 

the number of capital sentences imposed in each region, 

statistical probabilities for the imposition of capital 

sentences were determined. These calculations, as Table G 

demonstrates, indicate that the central region of Georgia, 

in which petitioner Smith was sentenced, imposes capital = 

sentences proportionately four times as often as does the - 

Atlanta or the Northern regions. ER pe The 

TABLE G 

Georgia, 1973-1977 
  

Probability of Receiving a Death Sentence for Criminal 
Homicide by Superior Court Circuits Grouped Regionally   
    
  

Regional Grouping of Number of Death Sentences Probabil- 
Superior Court Circuits Victims Imposed ity of a 

Death 

Sentence! 

Northern 292 : 3 «010 
Atlanta Area 1103 10 .009 
Central 995. 39 «039 
Southwest 975 20 021 
Southeast 830 18 022 
  

  

    
 



    

27. When these data were refined to include only felony- 

type homicides, a significant disparity continued to be re- | 

flected, as Table H shows. 

TABLE H REALL 

Georgia, 1973-1977 
  

Homicide by Superior Court Circuits Grouped Regionally 
  

Probability of Receiving a Death Sentence for Felony-Type i 

  

  

Regional Grouping of Number of Death Sentences Probabil- 
Superior Court Circuits Victims Imposed ity of a 

Death 

| Sentence | 

Northern 4 38 3 .079 
Atlanta Area 152 6 «039 
Central 161 31 .193 
Southwest 110 20 «182 

Southeast 124 15 «330 
  

28. We then tried to determine the persistence of this 

  geographical disparity by holding the racial factor constant: 

that is, we speculated that tavial composition of the popula- | 

tion might vary by region and that race of victim, not geogra- 

phy, might account for the perceived geographical differences. 

However, even when, as in Table I, race was held constant,   
| significant geographical differences remained, especially 

comparing Central Georgia to other regions. (Conversely, 

holding geographical variations constant, we noted that the 

data demonstrated that racial factors continued to play a . _ 

major role.) | 

  

- 13 i 

    
 



      

TABLE I | 

Georgia, 1973-1977 | 
  

Probability of Receiving a Death Sentence for Felony-Type ! 
Homicide by Race of Victim for Superior Court Circuits 

Grouped Geographically | 
  

  

  

  

Regional Grouping of Number of Death Sentences Probabil- 
Superior Court Circuits Victims Imposed ity of. a 

Death 

Sentence] 

Northern 

White 31 3 . 097 
Black 7 0 .000 

Atlanta Area : | 
White ! 77 3 .065 
Black 75 : 3 «013 

| 
Central : 

White 122 24 «197 

Black 39 7 «179 

Southwest : 
White 88 18 .205 

Black 22 2 +091 

Southeast : 
White 75 14 187 

Black 49 1 .020 

  

29. We considered the possibility that police practices, 

| 

! 
1 

| 
| 
| 

| 

or prosecutorial practices in rural and urban areas might be 

different, permitting easier apprehension of offenders and | 

development of proof in rural areas. However, Northern Georgia 

which is rural, and Central Georgia, also rural, were two of | 

the most disparate areas in sentencing rates, while rural | 

Northern Georgia and metropolitan Atlanta shared goTparative ly 
| 

lower rates than the rest of the State. | 

| 

=-14 =~ 

 



  

  
30. Our conclusion was that the impositicn of capital 

sentences in the State of Georgia during the period from 1973 

through 1977 varied by geographical region to a statistically 

significant degree. In other words, within the State of 

Georgia, the geographical region where a felony-type murder 

takes place is a statistically significant factor in predict- 

ing whether a capital sentence will be imposed. In areas 

such as Central Georgia, where petitioner Smith was tried 

and sentenced to death, the odds are significantly greater 

in a felony-type murder that a death sentence will be imposed. 

Ne ele 
Glenn R{. Pierce 
  

Subscribed and sworn to this 

  
day of October, 1979. Commonwealth of rh 9 

gutfolk, S.S. Date—~ 

Then personally pre fe the/a 
7 3 : 

oo { Y/ named Glen 2 5 <A 

ro / 1 mn and acknowiedzed the foreg ein : | 

a Fe : / LAL Pe st trument to ke tis fren ac an 

befcre me, 

isd a i Mutien, Motary pukiig 

My Comm ission EXPISS Sepisfnb el | 

20-1933. 
| 

  

   
       

  

Notary Pullic     
   



  

May 15, 1987 

TO: Jack Boger 

(1) Robert Stroup says McCleskey's sister will send 
a photo of him to my attention here. 

(2) Remember that we must have a 

written release 
  

from Warren McCleskey. Will you get it as soon as you can? 
On this point, I fully agree with Mr. Nabrit that a written 
release is essential. Should we have several signed 
as originals? 

(3) To meet objections, I have re-drafted (and somewhat 
dehydrated) the appeal letter. Copy is attached. In the 
re-drafting, have I introdueed any inaccuracies? 

   



PAGE 1 

  

(In script) 
- 

"For a long time, I travelled the wrong road, and I 
  

fully accept the life sentence I received for armed robbery. 
  

But I didn't shoot Officer Schlatt, and 1 don't deserve to 
  

die." =-- Warren McCleskey, Death Row, Jackson Diagnostic 

and Classification Center, Jackson, Georgia. 

Dear Friend: 

We urgently need your help. A black man's life is 

hanging in the balance and, in the words of Supreme Court 

Justice Brennan, "We ignore him. at our peril, for we re- 

main imprisoned by the past as long as we deny its influence 

in the present." 

Warren McCleskey and three other men robbed an Atlanta 

furniture store in 1978. A police officer was shot and 

killed. Warren claims he didn't pull the trigger, but a 

  

  

jury -- deprived of crucial evidence withheld from them by 

the State of Georgia -- decided otherwise, and sentenced him 

to death. 

When McCleskey's case reached the appeal stage, LDF 

(the NAACHLEGAL DEFENSE FUND) took his case and commissioned 

an exhaustive study which turned up overwhelming evidence 

that racial feelings play a role in deciding who gets death 

in Georgia. 

Despite this evidence, on April 22, 1987, the Supreme 

Court refused to grant relief. Justice Powell, writing for 

the five-member majority, concedes that discrepancies in 
  

death sentencing in Georgia correlate closely with race, 
  

but says such discrepancies "are an inevitable part of our 

criminal justice system." 

Julius L. Chambers, head of LDF, condemned the ruling 

as ranking in infamy with Dred Scott -- 
  

Dred Scott, a pre-Civil War Supreme Court 
decision, sent an escaped black man back 
into slavery; 

  

But this case, in the enlightened 1980s, 
is sending a black man to the electric 
chair. 

Con 
  

 



PAGE 2 

  

No one claims that Warren McCleskey is innocent of rh 

While in prison, he has become a religious man and accepts the 

justice of his life sentence for armed robbery. But we don't 

believe he deserves to die as the victim of Georgia's racial 

roulette: Out of 16 Atlanta holdups in a seven-year period 
  

where a policeman was killed, McCleskey is the only man con- 
  

demned to die. 
  

If he had been white -- or if the victim had beep black -- 

mln. if 
he almost certainly would have been given prison{ not death. 

  

You don't have to be a lawyer or a statistics expert to 

know that there's something wrong in Georgia: An authoritative 

study documents that killers of whites in that State are four 

times more likely to get the death sentence than killers of 
  

blacks. Not only that, but blacks charged with killing whites 

are sentenced to death at seven times the rate of whites 
  

charged with killing blacks. 

To the NAACP Legal Defense Fund, this study proves 

that the death sentence was imposed on Warren McCleskey in 

a highly capricious application of Georgia law. 

Cruel and unusual punishment? Certainly. 

Yet the Court's response was chilling. As the enclosed 

New York Times editorial puts it, they voted "Yes" to 
  

"Hiscrimination in Death.” 

SV 

Crates 

 



  

© 
Draft 2 -- Page 3 

The decision is nothing less than frightening. Maybe 

it suits the mood of this country right now. But 1 hope 
  

you don't endorse it. Neo-matter-what-you-feei-abount-ecapitat 
  

punishments In the words of Monsignor Daniel F. Hoye, General 

Secretary of the U.S. Catholic Conference, "The evidence 

submitted in the McCleskey case strengthens our conviction 

that the death penalty is frequently applied in an irrational 

and discriminatory fashion....We believe that capital punishment 

under these conditions is surely 'cruel and unusual punishment'." 

a: hope you'll help the Legal Defense Fund attempt to 

save Warren McCleskey's life despite the Supreme Court decision. 

By signing the enclosed Memorandum for Color-Blind Justice, 
  

you'll send a clear message to Georgia's State Board of Pardons 

and Paroles, the officials who still have the power to grant 

clemency to Warren. You'll tell them that as long as there is 

a strong possibility that racial feelings played a role in his 

sentencing, basic human decency demands that his life be spared. 

If you sign the Memorandum and put it in the enclosed 
  

envelope, I'll see to it that it is delivered to the State 

Board, along with the memos of other Americans who steadfastly 

oppose blatant injustice. 

As Justice Brennan put it in his memorable dissent: 

"The way in which we choose those who will die reveals the 

depth of moral commitment among the living." 

Won't you proclaim your own asses commitment by signing 

the Memorandum? And, of equal importance, won't you help 
  

the NAACP Legal Defense Fund continue to struggle against 

the lingering -- but deadly -- racial prejudice that put 

Warren on death row? 

We're defending NN death row inmates who/QX. 

sentences wexe tainted Sie Enlisting in the 

cause of Warren McCleskey should aril wove some 

lives whether or not we succeed in saving his. 

And we hope to redeem the blacks who are at the 

bottom of American society from the hopelessness and 

rnd] 

 



Draft 2 -- Page 4 

Jibs. Tvamren'a, 
cynicism which can lead to a life ef—Tc=sme, That is why 

  

so much of the Legal Defense Fund program jis—emtiTolyv owt- 

side "the=ePrminail. law=a#nd-concentrates on opening channels 

for equal education, decent housing, and employment and 

upgrading on the job. 

But we're a non-profit organization, and we can't do 

this vital work without the help of concerned citizens like 

you. 

Won't you take two steps towards creating a society 

in which all people are treated equally? Please sign the 

Memorandum for Color-Blind Justice. And please enclose a 
  

tax-deductible check (payable to NAACP Legal Defense Fund) 
  

for 825, $50, $75, S100, S250, $500 —-— whatever you can 

spare. 

ne, Warren McCleskey d thousands of 

others who—zely—ep fhe Legal Defense Por Yooepronos tha 

from the brutal racism that still exists in this country?, 

   
   

  

  

Yours: truly, 

Paul Moore, Jr. 

Chairman 

P. S. A man's life is at stake. Please take a moment to 

fill out the Memorandum for Color-Blind Justice and 
  

send it with your tax-deductible check in the enclosed 

reply envelope. Thank you. 

 



  
Waren ras Ue Rasy Wey et Trani a 

hank SU 

([1detd yn 

 



   
Southern Prisoners’ Defense Committee 
  

185 Walton Street, N.W. 

Atlanta, Georgia 30303 

(404) 688-1202 

May 21, 1687 

John Boger 
NAACP Legal Defense Fund 
99 Hudson Street 
New York, New York 10013 

Dear Jack, 

Here is the affidavit. I hope it is helpful, should 

it turn out that you need to use it. 

I hope all is going well with you. Once again, I 

enjoyed meeting you, and having the opportunity to work 

with you, brief as it was. 

Take care. 

Yours truly, 

  

ulie Edelson 

 



  

COUNTY OF FULTON 

STATE OF GEORGIA 

AFFIDAVIT OF JULIE EDELSON 

COMES NOW, JULIE EDELSON, being duly sworn, deposes and 

states as follows: 

I currently reside at 611 Hardendorf Ave., N.E., Atlanta, 

Georgia, 30307. 

On May 8, 1987, I accompanied attorney John Boger on an 

interview with Robert Nagle, the proprieter of Nagle Jewelers. 

Mr. Nagle had served as a jury at the capital trial of Warren 

McClesky in Atlanta, Georgia in October, 1978. 

We approached Mr. Nagle at his place of business, and intro- 

duced ourselves and explained that we wished to speak with him 

about the Mr. McClesky's trial. Mr. Nagle agreed to talk with 

us. 

Mr. Boger explained that some evidence was discovered 

after the trial to have been improperly withheld from defense 

counsel, and thus had not been presented to the jury. He said 

that we would like to know if knowledge of that evidence would 

have affected the jurors' deliberations. 

Mr. Nagle had a vivid memory of the trial, and recounted 

details about the evidence presented. 

Mr. Nagle said that he was sure about the correctness of the 

verdict. He added that racial prejudice was not a factor (refer- 

ring to the recent Supreme Court decision); that the jurors were 

 



  

careful, that they didn't rush to convict and sentence Mr. 

McClesky, and had been sure about what they were doing. He also 

mentioned that there was "that little black girl" on the jury, 

and asked whether we had talked to her yet. 

He emphasized that he was not racially prejudiced nor was he 

anti-semitic. By way of proof, he said, "Look at where I am 

going this Saturday," showing us an invitation to a bar mitzvah, 

which had been sitting on the counter where we were standing. 

He said that he was from Pennsylvania, and had moved to 

Atlanta a long time ago. He then said that things were different 

now; that years ago, everybody got along fine, contrary to 

Northerner's views of people in the South. He added that things 

are different these days, and that "they" are all "animals". 

He said to me, "You're a little Jewish girl, aren't you?" 1 

said yes, and he said, "You know what I mean about all those 

'shvatzas' in the projects. You can't even walk through them 

anymore." 

He asked us some other questions, like whether we were 

opposed to the death penalty. He also asked if we were from New 

York, to which I answered that I was. He said he knew how we 

felt about these things -- his son was a liberal thinker too. He 

told us about his son, who is a lawyer. His son used to work for 

the state government, but had to leave there because he had been 

accused of being racially insensitive by the Black Caucus. His 

son now works for a large investment firm. 

 



  

He then referred to the trial, saying that McClesky deserved 

what he got, and that he (Mr. Nagle) would pull the switch 

himself. He said that he (McClesky) and his whole gang deserved 

the electric chair; that they were all life-long criminals. He 

also referred to "that whole gang of Black Panthers" who watched 

the trial. 

The foregoing is a true and accurate account of our conver- 

sation with Juror Nagle, to the best of my knowledge. 

duel or 
  

Sworn to and subscribed 
before me this the day 
of May, 1987. 

BS 
Mo¥ary Public 

My commission expires 5/5/90 : 

  

  

Notary Public, Fulton County, Georgia 

Evnirac Mav 5. 199¢ 
My Commission Expires May 5, 1980 

 







  

For a long timo, J travellod Ha won 

road, md J fully accept tho lite senteucy J 
received fpr armed rlbery. But I didut shot 
Officer Schiff, amd J dou deserve fp die. 

-- Warren McCleskey, Death Row, 

Jackson Diagnostic and Classification 

Center, Jackson, Georgia.     
  

PAUL MOORE, JR. 

May-June 1987 

Dear Friend: 

We urgently need your help. A black man's life is hanging in the 

balance and, in the words of Supreme Court Justice Brennan, "We ignore 

him at our peril, for we remain imprisoned by the past as long as we 

deny its influence in the present." 

Warren McCleskey and three other men robbed an Atlanta furniture 

store in 1978. A police officer was shot and killed. Warren claims he 

didn't pull the trigger, but a jury -- deprived of crucial evidence 

withheld from them by the State of Georgia -- decided otherwise, and 

sentenced him to death. While in prison, he has become a religious man 

and accepts the justice of his life sentence for armed robbery. But he 

continues to insist that he did not shoot the police officer. 

  

  

When McCleskey's case reached the appeal stage, LDF (the NAACP 

LEGAL DEFENSE FUND) took his case and commissioned an exhaustive study 

which turned up overwhelming evidence that race plays a role in deciding 

who gets death in Georgia. 

Despite this evidence, on April 22, 1987, the Supreme Court 

refused to grant relief. Justice Powell, writing for the five-member 
majority, concedes that discrepancies in death sentencing in Georgia 
  

(continued)  



De 

  

correlate closely with race, but says such discrepancies "are an 

inevitable part of our criminal justice system." 
  

Julius L. Chambers, head of LDF, condemned the ruling as ranking 

in infamy with Dred Scott -- 

Dred Scott, a pre-Civil War Supreme Court decision, 

sent an escaped black man back into slavery; 
  

But this case, in the enlightened 1980s, is sending 

a black man to the electric chair. 

No one claims that Warren McCleskey is innocent: he participated 

with others in an armed robbery. But we don't believe he deserves to 

die as the victim of Georgia's racial roulette: Out of 16 Atlanta 

holdups in a seven-year period where a policeman was killed, McCleskey 

is the only man condemned to die. 

  

  

  

Statistics indicate that, if he had been white -- or if the 

victim had been black -- Warren McCleskey would almost certainly have 

faced a long prison sentence, not death in the electric chair. 

You don't have to be a lawyer or a statistics expert to know that 

there's something wrong in Georgia: An authoritative study documents 

that killers of whites in that State are four times more likely to get 

the death sentence than killers of blacks. Not only that, but blacks 

charged with killing whites are sentenced to death at seven times the 

rate of whites charged with killing blacks. 

  

  

  

  

To the NAACP Legal Defense Fund, this study proves that the 

death sentence was imposed on Warren McCleskey in a highly capricious 

application of Georgia law. 

Cruel and unusual punishment? Certainly. 

Yet the Court's response was chilling. As the enclosed New York 

Times editorial puts it, they voted "Yes" to "Discrimination in Death." 

The decision is nothing less than frightening. Maybe it suits the 

mood of this country right now. But I hope you don't endorse it. In 
  

the words of Monsignor Daniel F. Hoye, General Secretary of the U.S. 

Catholic Conference, "The evidence submitted in the McCleskey case 

strengthens our conviction that the death penalty is frequently applied 

in an irrational and discriminatory fashion....We believe that capital 

  

s 
t 
Y 

p 
1 

Sq
 

MH
 

N
y
 

QQ
) 

FC
. 

vr
s 

 



he 

punishment under these conditions is surely 'cruel and unusual punish- 
ment'." 

I hope you'll help the Legal Defense Fund attempt to save Warren 

McCleskey's life despite the Supreme Court decision. 

By signing the enclosed Memorandum for Color-Blind Justice, you'll 

send a clear message to Georgia's State Board of Pardons and Paroles, 

the officials who still have the power to grant clemency to Warren. 

You'll tell them that as long as there is a strong possibility that race 

played a role in his sentencing, basic human decency demands that his 

life be spared. 

  

If you sign the Memorandum and put it in the enclosed envelope, 

I'll see to it that it is delivered to the State Board, along with the 

memos of other Americans who steadfastly oppose blatant injustice. 

  

As Justice Brennan put it in his memorable dissent: "The way in 

which we choose those who will die reveals the depth of moral commitment 

among the living." 

Won't you proclaim your own commitment by signing the Memorandum? 

And, of equal importance, won't you help the NAACP Legal Defense Fund 

continue the struggle against the lingering -- but deadly -- racial 

prejudice that put Warren on death row? 

  

We're defending dozens of death row inmates whose sentences are 

tainted by racism. When you enlist in LDF's battle in the courts for 

McCleskey and others, surely you will help save lives. 

And we hope to redeem the blacks who are at the bottom of 

American society from the hopelessness and cynicism which can lead to 

a life like Warren's. That is why so much of the Legal Defense Fund 

program concentrates on opening channels for equal education, decent 

housing, and employment and upgrading on the job. 

But we're a non-profit organization, and we can't do this vital 

work without the help of concerned citizens like you. 

Won't you take two steps towards creating a society in which all 

people are treated equally? Please sign the Memorandum for Color-Blind 

Justice and enclose a tax-deductible check (payable to NAACP Legal 
  

(continued)  



Defense Fund) for $25, $50, $75, $100, $250, $500 -- whatever you can spare. 

Help the Legal Defense Fund to protect Warren McCleskey and thousands 

of others from the brutal racism that still exists in this country. 

  

Sincerely yours, 

Paul Moore, Jr. 

Chairman 

P. S. A man's life is at stake. Please take a moment to fill out the 

Memorandum for Color-Blind Justice and send it with your tax- 

deductible check in the enclosed reply envelope. Thank you. 
  

Contributions to: 
P.O. Box 13,064 

e New York, 10277 

“(dm ittee IN SUPPORT OF 
THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

99 HUDSON STREET, NEW YORK, N.Y. 10013/Telephone (212) 219-1900 

“Committee of 100” founded by Dr. William Allan Neilson 

Members: 

of 10 J 

Henry Aaron 

Steve Allen 

Arthur R. Ashe 

Joan Baez 

Birch Bayh 

Vivian J. Beamon 

Harry Belafonte 
Saul Bellow 

John C. Bennett 

Lerone Bennett, Jr. 

Viola W. Bernard 

Leonard Bernstein 

Hans A. Bethe 

Julian Bond 

Henry T. Bourne 
George P. Brockway 

Yvonne Brathwaite Burke 

Helen L. Buttenwieser 

Diahann Carroll 

James E. Cheek 

Shirley Chisholm 
Ramsey Clark 

Aaron Copland 
Bill Cosby 

Maxwell Dane 

Ossie Davis 

Ruby Dee 

Victoria DeLee 

Ralph Ellison 

John Hope Franklin 

Mrs. A. G. Gaston 

Kenneth A. Gibson 

Roland B. Gittelsohn 

Charles E. Goodell 

John Hammond 

Richard G. Hatcher 

Theodore M. Hesburgh 
Marilyn Horne 

BISHOP PAUL MOORE, JR. 
Chairman 

John H. Johnson 

Mrs. Percy Julian 
Horace M. Kallen 

Ethel Kennedy 

James Lawrence, Jr. 

Max Lerner 

W. Arthur Lewis 

Sarah Larkin Loening 
John A. Mackay 

Horace S. Manges 
Henry L. Marsh, III 

William James McGill 

Linda B. McKean 

Karl Menninger 
Charles Merrill 

Arthur Mitchell 

Paul Newman 

Anthony Newley 

JAMES R. ROBINSON 
Secretary 

Eleanor Holmes Norton 

Richard L. Ottinger 
Leon E. Panetta 

Gordon A. B. Parks 

Sidney Poitier 
Joseph L. Rauh, Jr. 

Carl T. Rowan 

John L. Saltonstall, Jr. 

William H. Scheide 

Arthur Schlesinger, Jr. 
Charles E. Silberman 

John P. Spiegel 
William Styron 
Telford Taylor 

Robert Penn Warren 

Robert C. Weaver 

Tom Wicker 

Myrlie Evers Williams 

THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND (LDF) is not part of the National Association for the Advancement of Colored People 

although LDF was founded by that organization and shares its commitment to equal rights. LDF has had for over 30 years a separate Board, program, 
staff, office and budget. A copy of the last financial report of THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. may be obtained by 
writing to The New York State Department of State, 162 Washington Avenue, Albany, New York 12231, or to this office. Please use separate envelope 
to request report. 

  

Contributions are deductible for U.S. Income Tax purposes.  



Dedicated to the Creation of an America of Justice and 

Equality for ALL Our Citizens 
  

THE NAACP LEGAL DEFENSE FUND (LDF) is an entirely independent organiza- 
tion, not part of The National Assdé¢igtion for the Advancement of Colored 
People, or of any other agency. Thorughly integrated in Board and Staff, LDF 
is the major organization using the courts to work toward interracial justice in 
America. The “COMMITTEE OF 100” sponsors LDF’s appeal to men and 
women of good will everywhere. 

IF YOU GAVE 

RECENTLY... Please 

excuse us. We use an 

electronic system which 
eliminates most — but 

not all — duplicates. 

“Committee gf 100 i 
P.O. BOX NO. 13,064 
NEW YORK, N.Y. 10277 

PE 

LDF STAFF HEAD: 

Julius L. Chambers 

First legal intern to train in LDF's 
New York office (1963), Mr. 

Chambers returned to form 
interracial law firm in Charlotte. 
Bumed out of his office by a 
firecbombing in 1971, he went 
on to win landmark Charlotte- 
Mecklenburg School Desegre- 
gation case. Succeeded Jack 
Greenberg as LDF Director- 

4 a 
LDF PRESIDENT: 

Robert H. Preiskel 

Senior Partner, Fried, Frank, 
specializing in tax law. Member, 
Association of the Bar of the 
City of New York. Fellow: Amer- 
ican Bar Foundation; American 

College of Tax Counsel. Lec- 
turer, Yale Law School. Long- 
time LDF Board Member and 
former Treasurer. Elected LDF 

President in 1984. 

   



A « 
N va 
' 

“ ¥ 

FOX 

he" . “i 4 1 v - ' h . ot a : 

ide EB SR dN ae saad eiih TALIT LG aes ar i oe "Re > 4 , oo 
  

I want to help the NAACP Legal Defense Fund ensure that all Americans get fair 
trials, decent homes, employment and educational opportunities, and other basic 
human rights. | enclose: 

cornmmimns $30) cme 325 iin $75 ene $100 

$250 — $500 OTHER: $ 

Please make your check payable to THE NAACP LEGAL DEFENSE FUND (tax-deductible) and 
return it with this card and the Memorandum for Color-Blind Justice in the postage-paid 
envelope. : 

Warren McCleskey, currently on Death Row, 
Jackson, Georgia. THIS MAN MAY BE 
EXECUTED BECAUSE OF THE COLOR OF 
HIS SKIN. Will you help work against this 
injustice? 

(Office address: 99 Hudson Street, NYC 10013) MAKE SURE “COMMITTEE OF 100” ADDRESS (OTHER SIDE) SHOWS THRU WINDOW OF GIFT ENVELOPE 
wy A ET TS (ST Sy 

- pry hail 2 dna che ¥ 

Ad N Sra ah ? 
A ’ 

  
  

RE LL UEP J 
LR i hn se rite DO 

 



  

      
ly 

dDefense Fund) for $25, $50, $75, $100, $250, $500 -- whatever you can spare. 

Help the Legal Defense Fund to protect Warren McCleskey and thousands 

of others from the brutal racism that still exists in this country. 

  

Sincerely yours, 

Paul Moore, Jr. 

Chairman 

.S. A man's life is at stake. Please take a moment to fill out the 

Memorandum for Color-Blind Justice and send it with your tax- 

deductible check in the enclosed reply envelope. Thank you. 
  

Contributions to: 

ie P.O. Box 13,064 
New York, 10277 

{Om 5 oe IN SUPPORT OF 
0 » THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

1 99 HUDSON STREET, NEW YORK, N.Y. 10013/Telephone (212) 219-1900 

“Committee of 100" founded by Dr. William Allan Neilson 

Members: 

  

  

1 For a long imo, J travelled a wionp 

road, Amd J fully occept tha lie sentency J 
£77, received for armed wlbery. But) didut shat 

Officer Schldtt, amd J dot deserve fp dle. 
JILyovETTE 

    -- Warren McCleskey, Death Row, Ey i” 
L Jackson Diagnostic and Classification — Ris 

od Center, Jackson, Georgia. / 
  

Henry Aaron 

Steve Allen 

Arthur R. Ashe 

Joan Baez 

Birch Bayh 

Vivian J. Beamon 

Harry Belafonte 
Saul Bellow 

John C. Bennett 

Lerone Bennett, Jr. 

Viola W. Bernard 

Leonard Bernstein 

Hans A. Bethe 

Julian Bond 

Henry T. Bourne 

George P. Brockway 
ne Brathwaite Burke 

Helen L. Buttenwieser 

Diahann Carroll 

James E. Cheek 

Shirley Chisholm 
Ramsey Clark 

\ Aaron Copland 
Bill Cosby 

Maxwell Dane 

Ossie Davis 
Ruby Dee 

Victoria DeLee 

Ralph Ellison 

John Hope Franklin 

Mrs. A. G. Gaston 

Kenneth A. Gibson 

Roland B. Gittelsohn ' 
Charles E. Goodell ' 

John Hammond 

Richard G. Hatcher 

Theordore M. Hesburgh | 
Marilyn Horne | 

John H. Johnson 

Mrs. Percy Julian 
Horace M. Kallen 

Ethel Kennedy 

James Lawrence, Jr. 

Max Lerner 

W. Arthur Lewis 

Sarah Larkin Loening 
John A. Mackay 

Horace S. Manges 
Henry L. Marsh, Ill ! 

William James McGill | 
Linda B. McKean 

Karl Menninger 
Charles Merrill 

Arthur Mitchell 

Paul Newman 

Anthony Newley 

Eleanor Homes Norton 

Richard L. Ottinger 
Leon E. Panetta 

Gordon A. B. Parks 

Sidney Poitier 
Joseph L. Rauh, Jr. ! 

Carl T. Rowan 

John L. Saltonstall, Jr. 

William H. Scheide 

Arthur Schlesinger, Jr. 
Charles E. Silberman 

John P. Spiegel 
William Styron 
Telford Taylor | 

Robert Penn Warren | 
Robert C. Weaver | 

Tom Wicker | 

Myrlie Evers Williams ! 

—— 

PAUL MOORE, JR. 

May-June 1987 

Dear Friend: 

We urgently need your help. A black man's life is hanging in the 

balance and, in the words of Supreme Court Justice Brennan, "We ignore 

him at our peril, for we remain imprisoned by the past as long as we 

deny its influence in the present." 

Warren McCleskey and three other men robbed an Atlanta furniture 

store in 1978. A police officer was shot and killed. Warren claims he 

didn't pull the trigger, but a jury -- deprived of crucial evidence 

withheld from them by the State of Georgia -- decided otherwise, and 
  

  

BISHOP PAUL MOORE, JR. JAMES R. ROBINSON 
Chairman Secretary 

R THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND (LDF) is not part of the National Association for the Advancement of Colored People 
’ although LDF was founded by that organization and shares its commitment to equal rights. LDF has had for over 30 years a separate Board, program, 

; staff, office and budget. A copy of the last financial report of THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. may be obtained by 
writing to The New York State Department of State, 162 Washington Avenue, Albany, New York 12231, or to this office. Please use separate envelope 
10 request report. | 

| 

  

  

3 
” 

Contributions are deductible for U.S. Income Tax purposes. 

[
S
S
 

@    
  

sentenced him to death. While in prison, he has become a religious man 

and accepts the justice of his life sentence for armed robbery. But he 

continues to insist that he did not shoot the police officer. 

When McCleskey's case reached the appeal stage, LDF (the NAACP 

LEGAL DEFENSE FUND) took his case and commissioned an exhaustive study 
which turned up overwhelming evidence that race plays a role in deciding 

who gets death in Georgia. 

Despite this evidence, on April 22, 1987, the Supreme Court 

refused to grant relief. Justice Powell, writing for the five-member 
majority, concedes that discrepancies in death sentencing in Georgia 
  

  

(continued) 

  

(7) ; 322/8



X 17g EB 

  

correlate closely with race, but says such discrepancies "are an 
  

inevieable part of our criminal justice system." 

ya Julius L. Chambers, head of LDF, condemned the ruling as ranking 

in Ina, with Dred Scott -- 

Dred Scott, a pre-Civil War Supreme Court decision, 

sent an escaped black man back into slavery; 
  

But this case, in the enlightened 1980s, is sending 

a black man to the electric chair. 

No one claims that Warren McCleskey is innocent: he participated 
with others in an armed robbery. But we don't believe he deserves to 

die as the victim of Georgia's racial roulette: Out of 16 Atlanta 
holdups in a seven-year period where a policeman was killed, McCleskey 
is the only mah condemned to die. 

  

  

  

Statistics indicate that, if he had been white -- or if the 
victim had been black -- Warren McCleskey would almost certainly have 

faced along prison sentence, not death in the electric chair. 

You don't have to be a lawyer or a statistics expert to know that 
there's something wrong in Georgia: An authoritative study documents 

that killers of whites in that State are four times more likely to get 
the death sentence than killers of blacks. Not only that, but blacks 
charged with killing whites are sentenced to death at seven times the 

  

  

  

rate of whites charged with killing blacks. 
  

To the NAACP Legal Defense Fund, this study proves that the 
death sentence was imposed on Warren McCleskey in a highly capricious 

application of Georgia law. 

Cruel and unusual punishment? Certainly. 

Yet the Court's response was chilling. 

Times editorial pULS it; 

As the enclosed New York 

they voted "Yes" to "Discrimination in Death," 

  

The decision is nothing less than frightening. Maybe {it suits the 
mood of this country right now. But 1 hope you don't endorse it. In 

  

“the words of Monsignor Daniel F. Hoye, General Secretary of the U.S. 
Catholic Conference, "The evidence submitted in the McCleskey case 

strengthens our conviction that the death penalty is frequently applied 
in an Irrational and discriminatory fashion....We believe that capital 

® 

punishment under these conditions is surely 'cruel and unusual punish- 

ment'." 

I hope you'll help the Legal Defense Fund attempt to save Warren 

McCleskey's life despite the Supreme Court decision. 

By signing the enclosed Memorandum for Color-Blind Justice, you'll 
send a clear message to Georgia's State Board of Pardons and Paroles, 
the officials who still have the power to grant clemency to Warren. 

You'll tell them that as long as there is a strong possibility that race 

played a role in his sentencing, basic human decency demands that his 

life be spared. 

  

If you sign the Memorandum and put it in the enclosed envelope, 

I'll] see to it that it is delivered to the State Board, along with the 

memos of other Americans who steadfastly oppose blatant injustice. 

  

As Justice Brennan put it in his memorable dissent: "The way in 

which we choose those who will die reveals the depth of moral commitment 
among the living." 

Won't you proclaim your own commitment by slgning the Memorandum? 

And, of equal importance, won't you help the NAACP Legal Defense Fund 

continue the struggle against the lingering -- but deadly -- racial 

prejudice that put Warren on death row? 

We're defending dozens of death row inmates whose sentences are 

tainted by racism. When you enlist in LDF's battle in the courts for 

McCleskey and others, surely you will help save lives. 

And we hope to redeem the blacks who are at the bottom of 

American society from the hopelessness and cynicism which can lead to 

a life like Warren's. That is why so much of the Legal Defense Fund 

program concentrates on opening channels for equal education, decent 

housing, and employment and upgrading on the job, 

Fa as gL] Ped ”~ o a. 
hoiaie WES L'X > dal TE “iabiy a We can't 

wie witnout the help of concerned citizens ire you. 

ES 
’ Pave ada + 

4 A Py 
0 Lis vital 

Won't you take two steps towards creating a society in which all 

peuple are treated equally? Please sign the Memorandum for Color-Blind 
  

  

Justice and enclose a tax-deductible check (payable to NAACP Legal 

(continued) 

©, 
| 

Coron RULES | 

Fi 
th oy 

  
    

sz 1 

  

  
 



Wemo from 
JAMES ROBINSON 

May 21, 1987 

To: Jack Boger 

The signed release from Warren McCleskey 
for our mailing should cover the use of his 
photograph as well as the copy. 

When we have that release, I would like 
to retain copies of it in my permissions file 
in case any question is ever raised about it 

in the future. 

 



  

BISHOP PAUL MOORE, JR 
Chairman 

Members: 
Henry Aaron 
Steve Allen 

Arthur R. Ashe 
Joan Baez 
Birch Bayh 

Vivian J. Beamon 
Harry Belafonte 

Saul Bellow 
John C. Bennett 

Lerone Bennett, Jr. 
Viola W. Bernard 

Leonard Bernstein 

Hans A. Bethe 
Julian Bond 

Henry T. Bourne 
George P. Brockway 

Yvonne Brathwaite Burke 
Helen L. Buttenwieser 

Diahann Carroll 
James E. Cheek 
Shirley Chisholm 

Ramsey Clark 
Aaron Copland 

Bill Cosby 
Maxwell Dane 

Ossie Davis 
Ruby Dee 

Victoria DeLee 
Ralph Ellison 

John Hope Franklin 

Mrs. A. G. Gaston 
Kenneth A. Gibson 

Roland B. Gittelsohn 
Charles E. Goodell 

John Hammond 
Richard G. Hatcher 

Theodore M. Hesburgh 
Marilyn Horne 

John H. Johnson 
Mrs. Percy Julian 
Horace M. Kallen 

Ethel Kennedy 
_ James Lawrence, Jr. 

= Max Lerner 
W. Arthur Lewis 

Sarah Larkin Loening 
John A. Mackay 

Horace S. Manges 
Henry L. Marsh, lil 

William James McGill 
Linda B. McKean 

Karl Menninger 
Charles Merrill 
Arthur Mitchell 

Paul Newman 

Anthony Newley 
Eleanor Holmes Norton 

Richard L. Ottinger 

Leon E. Panetta 
Gordon A. B. Parks 

Sidney Poitier 
Joseph L. Rauh, Jr. 

Carl T. Rowan 
John L. Saltonstall, Jr. 

“william H. Scheide 
Arthur Schiesinger, Jr. 
Charles E. Silberman 

John P. Spiegel 
William Styron 

Telford Taylor 
Robert Penn Warren 

Robert C. Weaver 
Tom Wicker 

Myrlie Evers Williams 

JAMES R. ROBINSON 

Secretary 

Contributions to: 
P.O. Box 13,064 
New York 10277 

Ommittee 
of 10 7) 

IN SUPPORT OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 
99 HUDSON STREET, NEW YORK, N.Y. 10013 / Telephone (212) 219-1900 

May 21, 1987 

Mrs. Betty J. Myers 

Dear Mrs. Myers: 

Thank you very much for sending the excellent ; 

photograph of your brother Warren McCleskey. I 
have let Mr. Stroup know that it has arrived, and 

he has reminded me that you will want the photo 
back. : 

Fortunately, when I took the photograph in 

late yesterday, I reminded the printer that the 
picture will need to be returned. 

This must be a very difficult tige for ‘you. 
The lawyers are doing everything possible, of course, 
and we have some hope that our mailing may help too. 

Ah
i 

Sincerely yours, 

James R. Robinson 
Secretary 

JRR: Js 

Copy to: John C. Boger, Esqg.Y 

Robert Stroup, Esq. 
141 Walton Street, N.W. 

Atlanta, Georgia 30303 

THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND (LDF) is not part of the National Association for the Advancement 
of Colored People although LDF was founded by that organization and shares its commitment to equal rights. LDF has had for 

over 25 years a separate Board, program, staff, office and budget. A copy of the last financial report of THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC. may be obtained by writing to The New York State Department of State, 162 
Washington Avenue, Albany, New York 12231, or to this office. Please use separate envelope to request report. 

Contributions are deductible for U.S. Income Tax purposes. 

 



  

May 21, 1987 

To: Jack Boger 

The signed release from Warren McCleskey 
for our mailing should cover the use of his 
photograph as well as the copy. 

When we have that release, I would like 
to retain copies of it in my permissions file 
in aase any question is ever raised about it 

in the future. 

 



    

THE UNIVERSITY OF NORTH CAROLINA 

AT 

CHAPEL HILL 

CB# 3380, Van Hecke-Wettach Hall 

oni The University of North Carolina at Chapel Hill 

L
o
 

Chapel Hill, N.C. 27599-3380 

FAX (919) 962-1277 

November 30, 1990 

Ms. Patsy Morris 
Georgia Appellate Resource Center 
920 Ponce de Leon Street 
Atlanta, Georgia 30301 

Dear Patsy: 

You were good enough to send me payment for telephone 
expenses I incurred in July and August, 1990 in the Billy Moore 
and Warren McCleskey cases. Enclosed is a bill from UNC for my 
telphone calls from September and October, 1990. Most of those 
calls relate either to followup matters on the Moore clemency or 
to reply briefing and preparations for oral argument in 
McCleskey. If the Resource Center could help out on these 
Georgia postconviction expenditures, I would be very grateful. 

  

You will note that I have gone through the bills to spot 
calls that were either personal or related to other matters. 
Those calls, by my calculation, total $34.92, thus reducing the 
$133.21 total bill to $98.29 attributable to my Georgia cases. 
Please arrange to have reimbursement in the amount of $98.29 made 
payable to me. 

Merry Christmas season, and thanks again for your help. 

Sincerely, 

   
ohn Charles Boger 

 



    
THE UNIVERSITY OF NORTH CAROLINA 

AT 
CHAPEL HILL 

November 29, 1990 
SCHOOL OF LAW CB# 3380, Van Hecke-Wettach Hall 

The University of North Carolina at Chapel Hill 

Chapel Hill, N.C. 27599-3380 

Mark Olive, Esq. 
Georgia Appellate Resource Center FAX (919) 962-1277 

920 Ponce de Leon 

Atlanta, Georgia 30301 

Dear Mark: 

Thanks very much for agreeing to look through the Warren 
McCleskey records at some time during the next two months. While 
Bob and I have not spotted any significant new constitutional 
errors, we welcome your more fully informed and always sagacious 
review of the case. I am enclosing the following documents, all 
of which Patsy indicated your office could copy: 

  

(1) the transcript of the original murder trial in the 
Superior Court of Fulton County in October of 1978; 

(ii) the transcript of the initial state habeas proceedings 
in the Superior Court of Butts County in January of 
1981; 

(iii) the first and second federal habeas corpus petitions, 
which include as exhibits the opinions of the Georgia 
habeas courts denying relief on the first and second 
state habeas applications; 

(iv) the transcript of the second federal habeas corpus 
proceedings in July and August of 1987. 

I do not think that you will need, at least initially, the 
transcript of the first federal habeas proceeding, which was 
devoted exclusively to the racial discrimination issue, or the 
second state habeas corpus hearing, which was devoted exclusively 
to argument on whether our assertion of constitutional claims 
constituted an abuse of the writ. Let me know if what we've sent 
you leads you to need either or those two documents, or anything 
else. 

With all the other things you have to do, Mark, it's a real 
kindness to Warren and ourselves for you to volunteer to help us 
with this task. Thanks very, very much. 

Sincerely, 

n Charles Boger 

 



  

THE UNIVERSITY OF NORTH CAROLINA 
AT 

CHAPEL HILL 

SCHOOL OF LAW CB# 3380, Van Hecke-Wettach Hall 
The University of North Carolina at Chapel Hill 

November 14, 1990 Chapel Hill, N.C. 27599-3380 

FAX (919) 962-1277 

Ms. Patsy Morris 
Georgia Appellate Resource Center 
920 Ponce de Leon 
Atlanta, Georgia 30301 

Dear Patsy: 

It was great to find a good excuse to talk with you today. 
I'm glad all is well. Thanks for your kind comments about the 
McCleskey argument; it was good of you to come up, and great fun 
to watch General Westmoreland, with General Bowers in tow, face a 
few hostile questions. 

  

I am enclosing a telephone bill for $199.83, which I 
received recently from the University of North Carolina School of 
Law. It reflects telephone calls made by me from my office 
phone. A total of $196.71 of this bill (all but $3.12) reflects 
telephone calls made by me as part of my legal representation in 
the William Moore and Warren McCleskey cases, both of which were 
being pursued in federal habeas corpus proceedings (and clemency 
proceedings) at that time. 

  

Since both McCleskey and Moore are Georgia capital cases, I 
would be grateful if your office could defray my expenses for 
these calls. Thank you very much. 

Sincerely, 

cek Sep 
n Charles Boger 

 



   
THE UNIVERSITY OF NORTH CAROLINA 

AT 

CHAPEL HILL 

SCHOOL OF LAW CB# 3380, Van Hecke-Wettach Hall 

The University of North Carolina at Chapel Hill 

Chapel Hill, N.C. 27599-3380 

November 2, 1990 FAX (919) 962-1277 

Richard H, Bury, 111, Esc. 
NAACP Legal Defense & Educational Fund, Inc. 
99 Hudson Street 

New York, New York 10013 

Dear Dick: 

Thanks very much for hobbling in to help on my moot last 
Monday. You, Tony, George and the rest did an enormous amount to 
help me prepare for the McCleskey argument, which went far better 
than, in my deepest fears, I had expected. Not to say that we've 
got five votes, necessarily, but it doesn't look foregone against 
us either. 

  

I am enclosing receipts and other indication of expenses I 
have incurred in connection with the oral argument. I do not 
have any LDF expense forms, but I hope this letter, plus the 
receipts, will let Luenda put in a request for me. (McCleskey v. 
Georgia 0311-13): 

10/29 Airfare -- Raleigh/Durham -- NYC $247.07 

Taxi =-- LaGuardia =-- NYU 26.00 

Trainfare -- NYC -- Washington 59.00 

Hotel -— 

10/30 Breakfast (Hotel) 

Dinner (Hotel) 

Telephone Charges 

$ 

$ 

$ 

$ 

Lunch (Hotel) $ 11.44 

$ 

$ 

Hotel $ 

$ Room Tax 

 



  

Richard H. Burr, Il1I, 
November 2, 1990 

Page Two 

Esq. 

  

Hotel $ 159.00 

Room Tax $17.49 

Occ Tay S$ 1.50 

10/31 Breakfast $11.44 

Tips S$ 9.00 

Lanch Self (and cocounsel Stroup) $ 40.35 
{$142.57 bill split 7 wavs, with 
LDF paying 2/7ths) 

Dinner $ 8.40 

Travel home (gas) S 18.00 

TOTAL Ss 642.29 

I also enclose a telephone bill which has $10.47 in McCleskey- 
related calls. 

It would be great if someone could process a check for 
$652.77. Thanks very much. 

Sincerely, 

(Gh 
John Charles Boger 

 



A Harbaugh Hotel 

525 NEW JERSEY AVE., N.W., WASHINGTON, D.C. 20001 202-628-2100 

ACCOUNT 
PAGE 

TICKE EXPLANATION 

NO. 

9 LO PHONE 
FAH ORE 
FHINE 

e
h
 

b
o
t
 

—r
 

u
t
 

. 

Lao
 J

O 
le

 
TE

 c
e
 

bo
k 



  

  
  

  

    

  
      

    

  

  

  

  

  

                  
        

  

  

  

  

  

  

  

    

    

  

  

  

      

  

  

  
  

  

  

  

  
    
            

  

    

  

  

                  
      
  
  

  

  

  

  

  
  

  

  

    

. 

LS 

1 

1] 

» 

en 
vgs pre PASSENGER TICKET AND BAGGAGE CHECK SUBJECT TO CONDITIONS CONTAINED IN THIS TICKET CONJUNCTION TICKETS) See below for Airline ISSUED Ray ~~ i . . FL al fv RL IME | : Form, Serial Number & ENDORSEMENTS/RESTRICTIONS (CARBON) ORIGIN/DESTINATION - «8 

> 90 § [ARC | PASSENGER COUPON | 4 1 1, | 1; {OLE TROVE] = = DATE OF ISSUE =] BOOKING REF ERENCE = . 
ta 3 BT Jhb bid 

i 
2 pA } NAME NOT TRANSFERABLE ~| ISSUED IN’ EXCHANGE FOR —— 3 cE SE TRS TE RS 40) LU : a = 

3 A Zz 

“ ony wf aS =~ XIO ~ FROM NOT GOOD FOR PASSAGE CARRIER = FLIGHT = CLASS + STATUS rie BASIS/TKT. DESIGNATOR NOT VALID BEFORE —— NOT VALID AFTER —r— ALLOW — Liat £0 fad Td HY iia $63 a van Ri tit | Re i z sy. ——tTO E a | ) { ! N 
[TY YTS MA hf 
55 zZ —~—}TO 

a8 : $i 
28 Q 

N 
Zz ——Lt10 

Ez E: | tA 
52 > 

> on =———tTO 
= . PCS WIT PCS WT. PCS. WT. PCS. wi = < [ £8 4 WE BAGGAGE CHECKED UNCHECKED | UNCHECKED | UNCHECKED UNCHECKED 2 “ FARE <4 FARE CALCULATION 

i 2 EL : ENE RE TS SR a a it hts tL Rid ag » ; : : : gE § EQUIV. FARE PD. 
£3 

z 
1H] ga 
32 

- z£ 
2% Lal 4 

ES TAX FORM OF PAYMENT TOUR CODE gx ' ; t JAE Be BE ST ' 4 '. hit =z } eT Br i LE { i tg 25 
5 ToT ries ; CPN. TAIRLINE CODE FORM SERIAL NUMBER I ck ORIGINAL ISSUE: eo i 41 Salt (SRI 1 
= AIL-AGT. INFO 

ETI Mr 7235257147 6 1 ier} | Ah CONTROL NO, — 
hh Dad NASM TW YY) 1 

1 B { be ir, fh" v ag Sil Tl Lea TIE if +3 Xe § Eras I 
2 DO NOT MARK OR WRITE IN THE WHITE AREA ABOVE | 

: 
See below for Ai - ; PASSENGER TICKET AND BAGGAGE CHECK SUBJECT TO CONDITIONS CONTAINED IN THIS TICKET CONJUNCTION TICKET(S) Form, Serial Number ts 

ISSUERSY | dial ORIGINDESTINATION Ta TORR 90 w 
a ENOOPjEMENT RESTRICTIONS (GpRE0N tA TT RIA ARC PASSENGER COUPON i $V 2 REY EERE DE a Lint A Re HE 0 REY : DATE OF ISSUE 800KNG REFERENCE 5 
og if a1 Fi 4 

z I 1 ) . 
I etry {SSUED IN EXCHANGE FOR sms : Pp G Bl 9) 2 gp 3 NAME AT NOY: 2 

I EB LT EPA TA 
= — 

3 ¥ o 

FLIGHT ——T CASS DATE TIME ———- STATUS TFARE BASIS/TKT. DESIGNATOR = - or DBR TOT i SC - X/O + FROM NOT GOOD FOR PASSAGE —— [7 Sangh u ; a a RE a FEEL te LE E ii i x RE H HH] { fy 1 ] a 4 ‘ t ¥ L] hb x 
Z | {4 IN Led y LA 7% ' 
= bial] 
z= 2% or \ i { Vi { i BE if i 28 3 {3d it i LE EH 
ez 

2 —tTO I Ty 

2g = | LO 5 I | 
SE 3 ito 
32 3 "id ti w GS Ww ee 

\ 3 SY wr PCS. A HECKED UNCHECKED 2= & —+T0 1 7c 1 1 BAGGAGE CHECKED | PCS. wr. UNCHECKED | UNCHECKED UNCHEC Eg 2 RA NE ER UNCHECKED A. be BB 9 care 4 FARE CALCULATION 71 a : i ry em eid if > RNPETE MS 2 Se A ra i an E- » 
© SQ EQUIV. FARE PD. y 43 : RZz 

SF 
g TAX : 

E LR 
es TAX 2E 

TOUR CODE 35 RE = JAX FORM OF PAYMENT ——mrmemsrmemerermer raat rf i 25 
#4 rl i A ORIGINAL ISSUE 2 

= TOTAL Tr — | EE TARLINE CODE FORM SERIAL NUMBER | CK 
ll * * 

- —- - - — 
  

 



a 
Ve) 

7 4 / Fe . 

QC Sas ce 
/ 

Sbesiinfin 37 shy 55.7 
Sf  



    
THE UNIVERSITY OF NORTH CAROLINA 

AT 
CHAPEL HILL 

SCHOOL OF LAW CB# 3380, Van Hecke-Wettach Hall 

The University of North Carolina at Chapel Hill 

Chapel Hill, N.C. 27599-3380 

FAX (919) 962-1277 

September 13, 1990 

Michael Barr, Esq. 

Dear Mike: 

Enclosed are copies of respondent's brief and the brief 
amicus curiae of the Criminal Justice Legal Foundation, both of 
which were filed on September 7th in the Supreme Court in 
McCleskey v. Zant. 

  

  

After you have reviewed these briefs, please give me a 
telephone call. I'd be very happy, at your convenience, to muse 
about a possible law review note on some aspect of the research 
you did for Warren McCleskey and our legal team this summer. 

Hope your fall is going well. Best regards. 

Sincerely, 

i 
Charles Boger 

 



  

THE UNIVERSITY OF NORTH CAROLINA 
AT 

CHAPEL HILL 

SCHOOL OF LAW The University of North Carolina at Chapel Hill 

Van Hecke-Wettach Hall 064 A 

Chapel Hill, North Carolina 27514 

September 6, 1990 

Dick Bury, Esq. 
NAACP Legal Defense & 

Educational Fund, Inc. 
99 Hudson Street 
New York, New York 10013 

Dear Dick: 

McCleskey v. Zant 
  

Enclosed is an invoice from the Cockle Printing Co. for 
changes made in the McCleskey v. Zant brief in the Supreme Court. 
As you will see, the changes came to $340.00. Although the case 
is before the Court in forma pauperis, the Supreme Court would 
not readily pay for the printer's efforts to "squeeze" the brief, 
giving us more total textual material in our 56-pages. I thought 
it was imperative that we cut as little text as possible from the 
brief, so I authorized the printer to make the necessary changes. 

  

  

Since LDF is co-counsel on the brief, I hope that you will 
be willing to defray this cost. If so, the case number is 0311- 
13, and you should have Luenda send the check, as soon as 
possible (so there won't be any delay in having our reply brief 
printed by Cockle) directly to the printer. 

Thanks, Dick. 

Sincerely, 

A ol 
John Charles Boger 

 



INVOICE 
COCKLE PRINTING CO. 
PH. 402-342-2831 1-800-225-6964 

2311 DOUGLAS STREET 

OMAHA, NE 68102 

  

FAGE 1 

NORTH CAROLINA UNIVERSITY 
SCHOOL. OF LAW CR #3380 
VAN HECHE-WETTACH HALL 
CHAPEL. HILL, ND 27599 

DATES  JORDER NO. 2: | 7 ORDERDATE Wii v2 sipPEDVIA 00 Tale 

08/13/90 504 2481A 08/01/30 NORETHC NET QOO04537 

ATTN: JOHN CHARLES ROGER 
919-967-8516 
Miz 

O
—
-
 

T
V
—
I
W
 S 

0) 
L 
D 

T 
0       

  

           

    ITEM/DESCRIETION/SERIAL NO. {UNIT PRICE 7    

CHARGE FOR SQUEEZING BRIEF (#89-7024; MICLESKEY 
vs. ZANT Y oan nan anes ina nnn deinen ROE IO 

CHARGE FOR SECOND PRO Sy a vv nsnssnnsannwnsa BO, O0 
Soot bores Benes sree snes Sees Sethe 

$340.00 

THANE YOU. FEDERAL I1.D. #47-0533063 

“I 5 'INVOICENO. “|. INVOICE DATE "| = INVOICE NO. 

COCKLE PRINTING CO. 

PH. 402-342-2831 

PH. 1-800-225-6964 

2311 DOUGLAS STREET 

OMAHA, NE 68102 

FAGE 1 

NORTH CAROLINA 
NORTH 

08/13/90 000045 
  

SF AMOUNT 5 

  "x ta pres ro prem: TE WRITS Terr FX SEB AGP VE SAY RE TERE RATER Di RR You i SOPRA a Vg oR GRR aE ea AED Tr ; ay 
> ERE 2 hy & E ARR potas! 5 HAR 
- 3 : PB ~ a 5 aT ie A i SI h £30 i’ ERE MRR ENN 1 Riehl Medal RES A a ’ INVOICE 

: 4 « Q0 TOTAL 240.00 

PLEASE RETURN THIS PORTIO 
WITH YOUR PAYMENT   S20 PE UINVOICE TOTAL i 

340. 00 
     



    

THE UNIVERSITY OF NORTH CAROLINA 
AT 

CHAPEL HILL 

SCHOOL OF LAW The University of North Carolina at Chapel Hill 

Van Hecke-Wettach Hall 064 A 

el Hill, North Carolina 27514 August 17, 199¢ 

Robert H. Stroup, Esq. 
141 Walton Street 
Atlanta, Georgia 30303 

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

RIchard H. Burr, 111 

George H. Kendall 
NAACP Legal Defense & Educational Fund, Inc. 
99 Hudson Street 
New York, New York 10013 

Dear Folks: 

Enclosed for your files are copies of the printed brief and 
joint appendix in McCleskey v. Zant. The brief, as you will see, 
has profitably tremendously from all of your respective 
contributions and suggestions. Many, many thanks. (I do insist 
on sole credit, however, for the Joint Appendix.) 

  

More quickly than any of us would like, Mary Beth's 
scholarship and advocacy will be on our respective desks and a 
reply brief will have to be framed. I'll speed copies to you as 
soon as her brief arrives (probably the week after Labor Day.) 

Best regards for the waning twilight hours of summer. 

Sincerely, 

   hn Charles Boger 

P.S. Bob, I've sent Warren a copy of the brief; no need for you 
to 40 so. 

 



   
DEBEVOISE & PLIMPTON 

555 13TH STREET, NW, 

WASHINGTON, DC 20004 

(202) 383-8000 

TELEX: 405586 DPDC WUUD 
TELECOPIER: (202) 383-8118 

875 THIRD AVENUE 

NEW YORK, NY 10022 

(212) 909-6000 

333 SOUTH GRAND AVENUE 

LOS ANGELES, CA 90071 

(213) 680-8000 

12 AVENUE D'EYLAU 

75116 PARIS 

(33-1)4704 4604 

1 CREED COURT 

S LUDGATE HILL 

LONDON EC4M 7AA 

(44-71) 329-0779 

August 10, 1990 

Professor John Charles Boger 
The University of North Carolina at Chapel Hill 
CB # 3380, Van Hecke-Wettach Hall 
Chapel Hill, N.C. 27599-3380 

Dear Jack, 

Thank you so much for the copy of the McCleskey 
Brief. But more importantly, thank you for giving me and 
Michael the opportunity to help you and Tony with the 
research. We enjoyed living the David Souter lifestyle 
(if only for a few weeks) surrounding ourselves with 
antique texts and transporting ourselves to earlier eras. 
Had we only known of Souter’s appointment earlier, we 
could have done an additional work-up on New Hampshire’s 
history with the Writ. 

The Brief reads beautifully. Congratulations. 
If there is anything either of us can do for you in the 
future, please do not hesitate to call. We are now rather 
adept at finding obscure materials in the Library of 
congress. 

Best wishes for your new home and career. 

Sincerely, 

= re, Ler — 

Dan ahamson® 

  

ichadl Barr 

* Law Clerk 

cc: Prof. Anthony Amsterdam 

 



    
THE UNIVERSITY OF NORTH CAROLINA 

AT 
CHAPEL HILL 

SCHOOL OF LAW CB# 3380, Van Hecke-Wettach Hall 

The University of North Carolina at Chapel Hill 

July 30 / 1990 Chapel Hill, N.C. 27599-3380 

FAX (919) 962-1277 

Michael Barr, Esq. 
Ginsburg, Feldman and Bress 
1250 Connecticut Avenue, N.w. 
Washington, D.C. 20036 

Dan Abrahamson, Esq. 
Debevoise & Plimpton 
555 13th Street, N.W. 

Washington, D.C. 20004 

Dear Mike and Dan: 

When you page through the enclosed printer’s draft of the 
Brief for Petitioner, you’ll see how deeply I am in your debt for 
your wonderful work in Warren McCleskey’s case. Your historical 
research plays a major role in the brief; in fact, it’s crucial to 
our basic argument that Sanders v. United States wasn’t another 
Warren Court frolic but an accurate restatement of 300 years of 
Anglo-American law and practice. 

  

The unexpected loss of Justice Brennan makes your contribution 
to this brief all the more important. Brennan, as you may know, 
was the one Justice deeply steeped in the history of the Great 
Writ. Without his knowledge and influence, this case will be nip- 
and-tuck. Who knows, though; if Justice Souter proves another John 
Marshall Harlan, your evidence on original intent and traditional 
habeas practice should give him food for thought. 

Thanks very much for your excellent help. I hope you both 
have had good summers. 

Sincerely, 

he Ky ~ 
hn Charles Boger 

P.S. Having overused my copying privileges here at the University, 
1 am enclosing a copy of the brief only with Dan’s letter, I trust 
Debevoise will spring for another copy for Michael. Sorry for the 
inconvenience. 

 



    
THE UNIVERSITY OF NORTH CAROLINA 

AT 
CHAPEL HILL 

SCHOOL OF LAW CB# 3380, Van Hecke-Wettach Hall 

The University of North Carolina at Chapel Hill 

Chapel Hill, N.C. 27599-3380 

FAX (919) 962-1277 

July 30, 1990 

Richard H. Burr, 1It 
NAACP Legal Defense & Educational 

Fund, Inc. 
99 Hudson Street 
New York, New York 10013 

Dear Dick: 

Enclosed is a copy of the printer's draft of the brief in 
Mccleskey v. Zant. Many, many thanks for your help; it was 
especially good of you to stay in the loop despite your other 
pressing matters. 

  

If Luenda doesn't mind, I'd be grateful if you and she 
arranged to distribute copies to Tony, to Tim Ford, and to anyone 
else who might want one -- apart from Warren, Bob Stroup, Mark 
Olive and the Georgia Attorney General, to whom I've already sent 
copies. 

Thanks again for your input. :I doubt I'll ever again 
receive such good advice from anyone at the Flamingo Hotel in Las 
Vegas. 

Sincerely, 

hn Charles Boger 

    

   
Enclosures 

 



  

SUPREME COURT OF THE UNITED STATES 
OFFICE OF THE CLERK 

WASHINGTON, D. C. 20543 

JOSEPH F. SPANIOL, JR, AREA CODE 202 

CLERK OF THE COURT June 4 ’ 1990 479-3011 

John Charles Boger, Esquire 
99 Hudson Street 
New York, New York 10013 

Re: 89-7024 - Warren McCleskey v. Walter D. Zant, 
Superintendent, Georgia Diagnostic and 
Classification Center 

Dear Mr. Boger: 

The Court today entered the following order in the above 
stated case: 

"The motion of petitioner for leave to proceed in for- 
ma pauperis and the petition for a writ of certiorari 
are granted. In addition to the questions presented, 
the parties are requested to brief and argue the fol- 
lowing question: 

"Must the State demonstrate that a claim was deliber- 
ately abandoned in an earlier petition for a writ of 
habeas corpus in order to establish that inclusion of 
that claim in a subsequent habeas petition constitutes 
abuse of the writ?" 

Enclosed are memorandums describing the time requirements 
and procedures under the Rules. Also, enclosed is a copy of the 
Revised Rules of this Court, together with a specification chart 
for your use. This case will probably be scheduled for oral 
argument during the November Session and extensions of time to 
file briefs on the merits are not favored inasmuch as the Court 
prefers to have the briefs in advance of the argument. 

Since the petitioner is proceeding in forma pauperis, we 
will meet the costs of printing the joint appendix and the 
printing of petitioner's brief. However, it is your obligation 
to submit the copy to use in proper form to send to the 
printers. 

  

After you have reached an agreement with opposing counsel 
as to the contents of the joint appendix, you should immediately 

  

prepare a manuscript copy of the joint appendix and submit it to 
this office to be printed. Please number the pages of the joint 
appendix to insure proper order. When submitting xeroxed mate- 
rial, please be sure that it is a clear and legible copy. 
Printed copies will be forwarded to you and opposing counsel as 
soon as they are available. 

 



  

In the meantime, you can be working on your brief. As soon 
as you receive the printed copies of the joint appendix, you may 
then insert in your brief the proper printed page references to 
the joint appendix before forwarding your brief to this office 
to be printed. The typewritten copy of your brief should reach 
this office by July 19, 1990 for printing. You should also 
serve a typewritten copy of your manuscript brief on opposing 
counsel. 

  

The printer will provide you with a galley for proofreading 
and insertion of page citations. When you receive this galley 
from the printer you should begin work on it immediately and 
return it to the printer as soon as possible. The proofreading 
is only to correct any printer errors and no substantive changes 
can be made in your brief. This office will forward you printed 
copies of your brief and serve copies on opposing counsel. 

These are the only expenditures paid by this office, unless 
appointment of counsel is made by this Court. If you desire to 
be considered for appointment by this Court, you should forward 
to this office a typewritten motion for such appointment pur- 
suant to Rule 39. I wish to advise that if you do file the mo- 
tion, the Court may not necessarily appoint counsel who argued 
the case below. 

If no motion for appointment of counsel is filed within two 
weeks after the Court accepts a case for review, this office 
will assume that no such motion will be filed. 

If we can be of any assistance to you in this matter, 
please feel free to call upon us. 

Very truly yours, 

JOSEPH F. SPANIOL, JR., CLERK 

andy 4% When 
Assistant Clerk 

Enclosures 

 



       
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 
99 Hudson Street, New York, N.Y. 10013 (212) 219-1900 

  

egal efense und 

December 30, 1987 

Mr. John P. MacKenzie 

Editorial Board, 10th Floor 

New York Times 

229 West 43rd Street 

New York, New York 10036 

Dear Jack: 

Enclosed, at Jane Cabot's suggestion, are copies of Judge 
Owen Forrester's Christmas Eve gift to Warren McCleskey and his 
attorneys, to wit, his 38-page opinion granting habeas relief to 
McCleskey based upon evidence of a violation of Massiah v. United 
States, 377 U.S. 201 (1964) and United States v. Henry, 447 U.S. 

264 (1980). As you will see, the grant of relief is predicated 

on evidence that police officers acting for the State of Georgia 
deliberately planted an informant in the cell adjacent to the 
cell where McCleskey was awaiting trial in the summer of 1979, 
that they urged the informant to elicit incriminating evidence 
from McCleskey, that they then used the information obtained from 
this devise as central testimony against McCleskey at trial, and 
that they succeeded for nearly a decade in shielding knowledge of 
this constitutional violation from McCleskey and his lawyers. 

  

  

I am enclosing copies of the briefs filed with the District 
Court by LDF and by the State, as well as transcript excerpts 
from Ulysses Worthy, the former Fulton County jailor who 
unwittingly provided the key testimony uncovering the scheme when 
he testified on July 9th at a stay hearing before Judge 
Forrester, some five days before McCleskey was scheduled to be 
executed on July 14th. As you may gather from the briefs, no one 
was more surprised by Worthy's testimony than McCleskey, my co- 
counsel and myself. Although we knew that there had been some 
deal by that time, we were stunned to hear Mr. Worthy come 
forward and spell it out. (I remember leaning over to Warren 
after the cross-examination was over and saying, "I think this 
man may have just saved your 1life.") Yet it took Forrester's 
saying it, of course, to make it so, and under the circumstances, 

the opinion is very much to his credit. 

Best regards to you, and Happy New Year. 

Si oh 3 

(Fer Boger 

Contributions are deductible for U.S. income tax purposes. 

The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part of the National Association for the Advancement of Colored People (NAACP) although 
LDF was founded by the NAACP and shares its commitment to equal rights. LDF has had for over 30 years a separate Board, program, staff, office and budget. 

 



  

P.S. You'll note on page 12 of the opinion that we've made no 
progress at all in persuading Forrester that our race statistics 
make out a constitutional violation.