Jones v. Caddo Parish School Board Brief for Appellants

    f \ N A : / ' ALA Fv fe { Des of; 
Zod (os: McCleskey (0311-0): Background: ND Go Ny. 87 (S17: Moneys work: es 2 Anno Jul, £ 1927 (asc \ \(Q > VI CA¢ k y AU ) IN LR ry. See 

   



1 £ 
3 

  

Beca 

  

Name: Warren McCleskey MASEL 
Prison Number: D-003935 
Place of Confinement: Georgia Diagnostic & Classification 

Center, Jackson, Georgia 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

  

WARREN McCLESKEY, 

Petitioner, 

vs. HABE CORPUS 

No. ¥7- 1517 
RALPH M. KEMP, Superintendent, 
Georgia Diagnostic and 
Classification Center, 

~ Respondent. 

  

PETITION FOR WRIT OF HABEAS CORPUS 
  

I. HISTORY OF PRIOR PROCEEDINGS 
  

1. The name and location of the court which entered 

the judgment of conviction and sentence under atiack are: 

Superior Court of Fulton County 
Atlanta, Georgia 

2, The date of the judgment and sentence was October 

12,1978. 

3. The sentences were that petitimmor be put to death 

for murder, and that he serve life sentences for two counts 

of armed robbery. (= 

 



  

® * 

2 

4, Petitioner was convicted of one count of murder, in 

violation of 0.C.G.A. §16-5-1(a), and of two counts of armed 

robbery, in violation of 0.C.G.A. §16-8-2. 

5. At his trial, petitioner pled not guilty. 

6. -The trial on the issues of guilt or innocence and 

of sentence was held before a jury. 

7 Petitioner testified during the guilt phase of his 

trial, but he did not testify during the sentencing phase. 

8. Petitioner appealed his convictions and sentence of 

death. 

9. The facts of petitioner’s appeal are as follows: 

(a) The Supreme Court of Georgia affirmed 

: petitioner’s convictions and sentences on January 24, 1980. 

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

(b) On October 6, 1980, the Supreme Court of the 

United States denied a petition for certiorari, with Justices 

Brennan & Marshall dissenting. McCleskey Vv. Georgia, 449 
  

0.85. 891" (19580). 

(C) On December 19, 1980, petitioner filed an 

extraordinary motion for a new trial in the Superior Court of 

Fulton County. No hearing has ever been held on that motion. 

(Ad) On January 35, 1981, petitioner filed a 

petition for writ of habeas corpus in the Superior Court of 

Butts County. (A copy of that petition is annexed as Exhibit 

A). On April 8, 1981, the Superior Court of Butts County 

denied all relief. (A copy of that order is annexed as 

 



    

Exhibit B). 

(e) On June 17, 1981, the Supreme Court of Georgia 

denied petitioner’s application for a certificate of probable 

cause to appeal. (A copy of that order is annexed as Exhibit 

C). 

(£) Petitioner then sought a writ of certiorari in 

the Supreme Court of the United States. On November 30, 

1981, that Court denied his petition, with Justices Brennan & 

  

Marshall dissenting. McCleskey vv. Zant, 454 U.S. 1093 

(1981). | 

(g) On December. 30, 1981, petitioner filed a 

petition for writ of habeas corpus in this Court. After an 

“evidentiary hearing in August. and October of 1983, the Court 

entered an order on February 1, 1984, granting habeas corpus 

relief on one issue. McClegkey vv. Zant, 580 PF, Supp. 338   

(N.D.Ga. 1984). 

(h) On January 29, 1985, the United States Court 

of Appeals for the Eleventh Circuit, sitting en banc, 

announced a judgment reversing the grant of habeas corpus 

relief and denying the habeas petition. McCleskey v. Kemp 
  

753 F.2d 877 (11th Cir. 1935) (en banc). 

(i) The Supreme Court of the United States granted 

certiorari and, on April 22, 1987, affirmed the judgment of 

the Court of Appeals. McCleskey v. Kemp, U.S. 95 —   

1.BEd.24 282. (1987). 

(J) On June 8, 1987, petitioner’s petition for 

 



  

rehearing was denied. 

(k) On June 9, 1987, petitioner filed a petition 

for a writ of habeas corpus in the Superior Court of Butts 

County, and, on June 22, 1987, filed a First Amendment to the 

petition. 

(1) On June 29, 1987, the Superior Court heard 

argument on respondent’s motion to dismiss, and on July 1, 

1987, entered an order granting the motion and dismissing the 

petition. (A copy of that order is annexed as Exhibit D.) 

(m) Petitioner filed - an application for =a 

certificate of probable cause in the Supreme Court of Georgia 

on July 2, 1987. That Court denied the application on July 

ITI. INTRODUCTORY FACTS 

10. Petitioner Warren McCleskey was one of four men who 

robbed the Dixie Furniture Store in Atlanta on May 13, 1978. 

Of the four, he alone was sentenced to death, because the 

State alleged and the jury believed that McCleskey was the 

triggerman who had shot police officer Frank Schlatt during 

the robbery. Prosecutor Russell Parker explicitly argued to 

petitioner’s jury that "the person that ought to get the 

chair, if anybody gets the chair, is the man that pulled the 

trigger ... It is important, ladies and gentlemen, who pulled 

the trigger. I don’t think there should be any doubt in your 

 



  

5 

nind." (Tr. T. 973). .The burden of the State’s entire case 

was to prove beyond a reasonable doubt that petitioner 

McCleskey had pulled the trigger. 

11. Yet at the crucial moments throughout the trial, 

the State acted to deprive petitioner of his federal 

constitutional rights. Although the State’s case rested 

primarily on the testimony of a jailhouse witness, Offie 

Evans, and on ballistics evidence that appears to link 

petitioner to the murder weapon, the jury was never told that 

Evans had entered into a working relationship as an informant 

for Atlanta police and prosecutors, after being placed in a 

Fulton County Jail cell in July of 1978, directly adjacent to 

‘the cell where petitioner McCleskey. was: awaiting trial. 

Evans in fact deliberately lied to McCleskey about his name 

and his relationship to a co-defendant, Ben Wright, in order 

to gain McCleskey'’s, trust. He then elicited from McCleskey 

a series of incriminating statements about which he testified 

at trial (See 9 15-26). 

12. The jury also failed to learn that an Atlanta 

police detective promised to shield Offie Evans from a 

federal prosecution if he would agree to testify against 

McCleskey. (See 99 38-40 infra). Nor was the jury told that 

the ballistics expert =-- who testified at trial that the 

bullets found near the victim could have come only from a 

pistol like that McCleskey carried -- later would acknowledge 

that two other makes of pistol could have produced the 
  

 



  

6 

identical markings on which he based his expert conclusion. 

(See 99 63-65 infra.). 
  

13. Under the Sixth Amendment, the disclosure of Evans’ 

informant relationship with State officials would have 

prevented the State from introducing Evans’ testimony on 

petitioner’s alleged statements. Furthermore, the facts 

about his relationship with the State would have sufficed 

alone to persuade several members of petitioner’s jury, even 

had Shey heard Evans’ testimony, that the State has not met 

its burden beyond a reasonable doubt, and that petitioner 

should not be sentenced to death. (See Exhibits F&G). 

14. Yet the State improved its chances of conviction 

and of. a death sentence, not only by concealing these crucial 

facts. | pak also by engaging in deliberate, Jisdeininatony 

acts to exclude prospective black jurors from McCleskey’s 

jury (see 49 51-52, infra), and by unlawfully reminding the 

jury, Just pefors it retired to deliberate on McCleskey’s 

sentence, that his previous life sentences had been reduced 

by the appellate courts on prior appeals =-- obviously   

implying that only if McCleskey’s jury imposed a death 

sentence could it avoid similar appellate review in this 

case. (See 9 46-48, infra) In all of these ways, the State 

impaired the factfinding ability of petitioner’s trial jury 

and deprived petitioner of the federal constitutional rights 

to which any capital defendant is entitled. 

 



  

v 

III. CONSTITUTIONAL GROUNDS ESTABLISHING THE INVALIDITY OF 
PETITIONER’S CONVICTIONS AND SENTENCES 
  

A. The State’s Use At Trial Of Incriminating Statements Made By 
  

Petitioner To A Jailhouse Informant Acting On Behalf Of The 
  

State 

15. The State’s use at trial of incriminating statements 

allegedly made by petitioner to jail inmate Offie Evans, who-- 

newly uncovered evidence demonstrates =-- was acting on behalf of 

the State as an informant in the Fulton County Jail, violated (i) 

petitioner’s right to be represented by counsel at every eritical 

stage in a criminal proceeding against him, guaranteed by the 

Sixth and Fourteenth Amendments; and (ii) his right to the due 

Lrdisss “of law, guaranteed by the Due: Process Clause of ‘the 

Fourteenth Amendment of the Constitution of the United States. 

FACTS SUPPORTING PETITIONER’S CIAIM THAT 

THE STATE’S USE OF INCRIMINATING STATEMENTS 
ALLEGEDLY MADE BY PETITIONER TO A STATE INFORMANT 

VIOLATED HIS CONSTITUTIONAL RIGHTS 

  

  

  

  

16. Although a number of the State’s witnesses testified 

that petitioner McCleskey participated in the armed robbery of the 

Dixie Furniture Store on May 13, 1978, the State produced no one 

who witnessed the shooting of Atlanta police officer Frank 

Schlatt. The murder weapon itself was never recovered. To prove 

that petitioner had personally committed the homicide which 

ultimately led to his death sentence, the State relied in part 

upon confused and partially contradictory testimony on who had 

 



  

8 

been carrying the likely murder weapon. 1 

17. The State also relied upon two witnesses who claimed 

that petitioner had confessed to them, after the crime, that he 

had shot Officer Schlatt. One of the two witnesses was 

petitioner’s co-defendant Ben Wright, -- a dominant actor in the 

armed robbery (Tr. T. 651-57) and the most likely suspect in the 

shooting. Apart from Wright, the only evidence concerning the 

identity of the triggerman came from a detainee at the Fulton 

County Jail, Offie Evans, who testified that McCleskey had 

admitted the shooting while he was in the Fulton County Jail 

awaiting trial. 

18. Evans in fact gave crucial testimony on three points: 

(1) he told the jury. about = McCleskey’s "confession"; (ii) he 

alleged that McCleskey "said ... he would have tried to shoot his 

way out ... if it had been a dozen" police officers (Tr. T. 87))- 

- a statement which later became a major foundation for the 

prosecutor’s argument to the jury that McCleskey had acted with 

"malice" (see T. Tr. 974): and (iii) he single-handedly clarified 

  

1 petitioner’s co-defendant, Ben Wright, and several other 
witneses testified that petitioner may have been carrying a 
pearl-handled, silver .38 pistol linked to the homicide. Yet Ben 
Wright was forced to acknowledge on cross-examination that he 
himself had personally possessed that weapon for several weeks 
prior to the crime. (Tr. T. 682). Moreover, it was revealed that 
Wright’s girlfriend told police, on the day Wright was arrested, 
that Wright, not McCleskey, had been carrying that .38 pistol on 
the day of the crime, (Tr. T. 631-32). Moreover, the State’s 
ballistics expert, =-- who indicated at trial that the murder 
weapon had been a .38 Rossi -- testified during a deposition 
submitted at the initial state habeas corpus proceedings, that 
there was a chance that the murder weapon was not in fact a .38 
Rossi. (See infra, 99 eeee). 

 



  

@ | ® 

9 

a glaring inconsistency in the identification testimony of one of 

the State’s principal witnesses. (Tr. T. 301-03; 870-71). 

19. Petitioner has recently obtained a 2l1-page statement 

made by Offie Evans on August 1, 1978, to State agents including 

prosecutor Russell Parker. (A copy of the statement is annexed as 

Exhibit E.) This statement describes in great detail a number of 

conversations which Evans claims to have had with petitioner and 

with one of his co-defendants, Bernard Dupree, during Evans’ one- 

month incarceration in a Fulton County jail cell. 

20. According to this statement, on July 9, 1978, shortly 

after he was placed in solitary confinement in the cell directly 

adjacent to that of petitioner, Evans began to elicit 

incriminating statements from petitioner about the Dixie Furniture 

Store crive by falsely claiming that he, Evans, Vas Ben Wright's 

uncle, named "Charles": 

eve IT told Warren McCleskey [sic] "I got a nephew man, 
he in a world of trouble... McCleskey asked me, "What is 
his name." I told him, "Ben Wright." McCleskey said 
You Beens’! ([sic] uncle... 1 said, "Yean.! He said 
"Whats’ [sic] your name?" I told him that my name was 
Charles. McCleskey said, "They got me and Ben on the 
same case." I said, "Oh, Ben was telling me about yawl 
[sic] the last time that I seen him." He said "When you 
see him" I told McCleskey that I had seen him about a 
couple of weeks ago.... I said "Ben said that all of 
yawl [sic] are trying to put the weight on him trying to 
make like he shot the man in the robberty when he did 
not do it."... I told them that "Ben told me that you 
shot the man yourself." McCleskey said "Can’t nobody 
prove that I shot the man, cause the lady can’t identify 
me no way." 

(Exhibit E, 3-4). 

21. Evans also deceived petitioner’s co-defendant, Bernard 

 



  

10 

Dupree =-- who was present in a nearby cell =-- about nis 

relationship with Ben Wright in order to assuage Dupree’s 

suspicion, and thereby permit Evans to interrogate petitioner and 

Dupree further: 

"Dupree asked McCleskey "Is your partner still down 
there? McCleskey said "Yeah, say he’s Bens’ [sic] 
uncle.” Dupree said "I. didn’t no. [sic] nothing abou 
[sic] Ben had no uncle man. You don’t know who the hell 
you talking to, you could be talking to the man." 
McCleskey told Dupree "Naw man, he ain’t no man, cause 
he know a lot of people that I know and I’m just about 
sure that I know him." Than I started talking to Dupree 
about Reidsville. I had just about made Dupree know me 
himself from telling him about Reidsville. I talked 
about a lot of things that happened down there, a lot of 
things Dupree did while he was in Reidsville..., but see 
... Was the one who had told me about that hisself. 
Thats’ [sic] how I knowed about that cause I had seen 
»oe back in 1976 ... Dupreeigot ‘allright then, kind of 
talked a little better. Allright then McCleskey started 
talking about a job." ip, : 

(Exhibit E, 9-10). 

22. According to Evans’ statement, both petitioner and 

Dupree, having been falsely persuaded that Evans was trustworthy, 

discussed in detail the events surrounding the Dixie Furniture 

Store robbery. Petitioner allegedly stated that he visited the 

store before participating in the robbery (Exhibit E, 4) and that 

he had made up his face with pimple-like marks and a scar on the 

day the robbery took place. (Id.) Petitioner allegedly recounted 

how the participants gathered at Ben Wright’s house with a shotgun 

and a pistol, and how they planned to rob the store. The 

statement also claims that petitioner shot Officer Schlatt in a 

panic when the officer entered the store. (Exhibit E, 5-6). 

23. Evans further avers that petitioner and Dupree hoped 

 



  

11 

that Ben Wright would be killed because "it would be better in 

their favor, because he know that Ben was mad about them pointing 

the killing at him, cause they know that Ben would go and tell the 

truth..." (Exhibit E, 12). He also alleges that petitioner told 

Evans that "he didn’t give a damn if it had been a dozen of them 

[police officers] that he would still have tried to shoot his way 

out." (Exhibit ¥,6 16). 

24. All of these incriminatory statements, allegedly made by 

petitioner McCleskey to Offie Evans, were later introduced against 

him, by the State, throush Evans’ testimony at his trial. (See Tr. 

T. 870, 871). These statements were allegedly made by petitioner 

long after defense counsel had been appointed, and at a time when 

counsel obviously was not present to. assist petitioner. No... 

warning or disclosure was given by Evans or any other State agent 

before the statements were elicited. 

25. Evans’ 2l-page statement contains explicit references 

demonstrating that he was acting 1 direct concert with State 

officials during these conversations. At one point, Evans’ noted 

that petitioner asked him to place a telephone call to his 

girlfriend. Petitioner wrote down his girlfriend’s telephone 

number on a piece of paper for Evans. Evans’ statement reveals 

that, after he was led from the cell to another area of the jail, 

he "tried to call [petitioner’s girlfriend] while the D.A. and the 
  

detectives were sitting there but I was unable to get an answer...   

That’s (sic) what I told [McCleskey] when I got back to the cell. 

(Exhibit E, 14) (emphasis added) Additional questioning by Evans 

 



  

® ® 

12 

occurred after his return to the cell. 

26. Petitioner alleges, on information and belief, that the 

State possesses extensive additional evidence, which it has 

refused to disclose, which would further demonstrate that Evans 

served as an active, State-sponsored informant. Evans’ 21l-page 

statement alone is nevertheless sufficient to establish 

petitioner’s claim that his Sixth Amendment right to counsel and 

his due process rights were violated by the State’s resort to 

"indirect and surreptitious interrogations," Massiah v. United 
  

States, 377 U.S. 201, 206 (1964), through Evans. 

27. .The' United States Supreme Court has consistently held 

that use at trial of an accused’s incriminating statements which 

were "deliberately elicited" by a State informant after the 

appointment of defense counsel violate an ‘accused’s Sixth 

Anendient right to counsel. Massiah, 377 U.S. at 206; United 

States v. Henry, 447 U.S. 264, 274 (1980); Maine v. Moulton,   

  

U.S. , 86 L.Ed.2d (1985); Kuhlmann v.Wilson, U.S. 91 
  

L.Ed.24 364 (1986). In Kuhlman, the Court expressed its concern 

about "secret interrogation by investigatory techniques that are 

the equivalent of direct police interrogation." Id. Evans’ 

successful efforts to deceive petitioner and Dupree, gaining their 

trust in order to question them about the robbery, and his 

persistent questioning of petitioner over a period of several days 

for the purpose of obtaining incriminating statements from him, 

demonstrate that "the police and their informant took ... action, 

beyond merely listening, that was designed deliberately to elicit 

 



  

1: 

incriminating remarks." Kuhlmann, 91 L.Ed.2d at 385.   

B. The State’s failure to correct key witness’ misleading 
  

testimony at trial 
  

28. The State’s failure at trial to correct the misleading 

testimony of Offie Evans violated (i) petitioner's right to be 

free of cruel and unusual punishment, guaranteed by the Eighth and 

Fourteenth Amendments; and (ii) his right to the due process of 

law, GuarantBel by the Due Process Clause of the Fourteenth 

Amendment of the Constitution of the United States. 

FACTS SUPPORTING PETITIONER’S CLAIM THAT 
THE STATE’S FAILURE TO CORRECT EVANS’ MISLEADING 

TESTIMONY VIOTIATED HIS CONSTITUTIONAL RIGHTS 

  

  

  

29. Petitioner repeats and réalleges the allegations of 

paragraphs 15-26, supra. 

30. The newly-discovered 21-page statement of Offie Evans 

reveals significant discrepancies between what Offie Evans told 

Atlanta detectives and prosecutors in a sworn statement on August 

1, 1978 and what he subsequently told petitioner’s jury under oath 

at: trial. Evans carefully suggested to petitioner’s jury that 

petitioner, not Evans, had initiated their conversation about the 

crime. (Tr. T. 870). 

i 31. Although Evans’ trial testimony created the impression 

that petitioner had shot Officer Schlatt intentionally and 

maliciously, he failed to disclose that his written statement 

indicates that petitioner had fired his gun in panic: 

"...[McCleskey] said that he did see the police put the 

 



  

14 

hand on his gun. And he said that he knowed right then 
that it was going to have to be him or McCleskey one. 
Cause the police was headed toward where Ben was back 
there. And McCleskey [sic] said that he panicked, he 
just shot." 

(Exhibit EF, 6) 

32. Evans also withheld from the jury the truth concerning 

both the genesis of, and the motives for, his cooperation with the 

State. At trial, Evans suggested that he had informed the State 

about his conversations only after they had been completed, when 

hi{tlhe deputy out there heard us talking." (Tr. T. 872). 

Questioned further by petitioner’s counsel about when he first 

contacted the jailer, Evans answered: 

A. " [The deputy] heard us talking about it and 
everybody in jail knowed about Ben, so that is 
how it come about, and that is why I am here 

- right now." : 

(Tr. T. 880). Yet, in his statement to police, Evans clearly 

indicates that, at least by midway through the month-long series 

of conversations, he was actively cooperating with the State, 

telephoning petitioner’s girlfriend, in the presence of police and 
  

the district attorney, and then returning for further   

interrogation of petitioner. 

33. Evans also lied to petitioner’s jury about his motive 

for cooperating with the State. In his trial testimony, Evans 

indicated that he agreed to speak with the police because he did 

not wish to be considered as a "conspirator": 

Q. What did you tell [the deputy]? 

A. I told him what we was talking about. He said did I 

want him to call Homicide, would I tell them that. I 

 



  

15 

said yeah, so he called them. 

What were expecting to get out of that? 

A, Just like that I had been talking to Ben and something 

like that. 

Q, Had they considered you as a suspect in this? 

A. It could have been led me to one. 

Q. What would have led to you being a suspect? 

a. Laying around talking with a man about something or 

other that went down like that. 

How would that make you a suspect? 

A. It could make me a conspirator, couldn’t it? 

Q. So in short, you were interested in covering up your own 

rear end at that point, is that right? | 

A. Yeahs a | 

Q. So you cooperated with the deputy in order that you 

couldn’t have any hassle in this, is that right? 

A. Yeah, you can say that. 

(Tr. 7... 851), 

34. Yet, as Evans has admitted during petitioner’s state 

habeas proceeding, Evans in fact had a different and much stronger 

interest in acting as the State’s key witness against petitioner. 

He deliberately sought incriminating statements from petitioner in 

exchange for a police detective’s promise to "speak a word" for 

him on his pending federal charges. (St. Hab. Tr. 122). Evans’ 

testimony at trial, however, left petitioner’s jury with the 

erroneous impression that Evans was a disinterested witness, whose 

 



  

16 

only motive for cooperating with the state was to "[tell] it 

straight, whoever it helps, it helps," (Tr. T. 881). 

35. The United States Supreme Court has consistently ruled 

that a criminal conviction may not be obtained by the knowing use 

of perjured testimony, nor may a prosecutor permit false or 

misleading testimony to go uncorrected. Mooney v. Holohan, 294 
  

  

U.S. 103 (1935); Pyle v. XKangas, 317 U.S. 213 (1942); Alcorta v. 

Texas, 355 U.S. 28 (1957); Napue v. Illinois, 360 U.S. 264 (1959). 

A conviction obtained through such means must be set aside if 

there is "any reasonable likelihood" that the false testimony 

could have affected the judgment of the jury. United States v. 
  

Aqurs, 427 U.S. 97, 103 (1976); United States v. Bagley, 105 S. 
  

Ct. 3375, 3352 .(1935). 

36. '"Materially false testimony" includes not only direct 

lies but also statements which convey a false impression to the 

jury. Here, petitioner’s conviction and death sentence rested on 

the jury’s erroneous belief that Evans was a disinterested witness 

to whom petitioner had impulsively confessed. That belief, 

carefully nurtured by the State, was materially false. The 

prosecutor indisputably knew of these misrepresentations, since he 

signed, as a witness, each page of Evans’ 21-page written 

statement. The State’s actions and omissions designed to foster 

the jury’s mistaken trust in Evans constitute a clear violation of 

petitioner’s due process rights, and requires that this Court 

vacate his conviction and death sentence. 

 



  

17 

The State’s Non-Disclosure of Critical Impeachment Evidence 
  

37. The State’s failure to disclose its agreement with 

jail inmate Offie Evans, a key witness against petitioner, 

violated petitioner’s right to the due process of law, 

guaranteed by the Due Process Clause of the Fourteenth 

Amendment to the Constitution of the United States. 

FACTS SUPPORTING PETITIONER’S CIAIM THAT 
THE STATE’S NON-DISCIOSURE OF CRITICAL 

IMPEACHMENT EVIDENCE VIOLATED HIS 
DUE PROCESS RIGHTS 

  

  

  

  

38. Evans was specifically asked at trial, both by the 

prosecutor and by the defense attorney, about any promises 

made in exchange for his testimony. He denied any deals or 's- 

other arrangements. His actual testimony before the trial 

court was: 

Q: [Assistant District Attorney]: Mr. Evans, have I 
promised you anything for testifying today? 

A: No sir, you ain’t. 

x * % 

Q: Have you asked me to try to fix it so you wouldn’t 
get charged with escape? 

A: No, sir. 

Q: Have I told you I would try to fix it for you? 

A: No, sir. 

(Tr T., 868-69). 

39. On cross-examination Evans expanded upon his 

statement regarding promises made by the State: 

 



  

18 

Q: Okay. Now, were you attempting to get your escape 
charges altered or at least worked out, were you 
expecting your testimony to be helpful in that? 

A: I wasn’t worrving about the escape charge. I 
wouldn’t have needed this for that charge, there 
wasn’t no escape charge. 

(Pr. 7. 882), 

40. Evans, however, later gave flatly contradictory 

testimony before the state habeas corpus court, admitting 

that "the [Atlanta police] Detective told me that he would-- 
  

he said he was going to do it himself, speak a word for me. 
  

That was what the Detective told me." (St. "Hab. Tr. 122).   

(emphasis added) . The escape charges were in fact dropped 

with the State’s assistance after McCleskey’s trial. (St. 

atime; 1299. : az | pt 

41. The newly discovered 2l-page written statement of 

Evans made to Atlanta police detectives and to the prosecutor 

in this case demonstrates a substantial and continuing 

relationship between Evans and the State. Petitioner 

proffers that Offie Evans will expand upon and clarify his 

original state habeas testimony in the present proceedings. 

He will testify that Atlanta police detective Sid Dorsey 

discussed the benefits to him of providing testimony against 

petitioner. Evans understood from the detective that if he 

gave testimony implicating petitioner McCleskey in the 

shooting, the state would (i) approach federal officials, 

(ii) explain Evans’ cooperation, and (iii) request that then- 

pending federal escape charges against him -- which carried a 

 



  

18 

potential sentence of $5000 or 5 years imprisonment under 18 

U.S5.C.84082(d4) and §751 ~-- be dropped. Evans agreed to 

testify in exchange for that promise by the Atlanta 

detective. ~ 

42. At least two of the jurors who actually sat during 

petitioner McCleskey’s trial have since given sworn 

affidavits. They affirm that evidence of the understanding 

between Offie Evans and Atlanta police detective Dorsey would 

have crucially affected their assessments of the State’s case 

against wecleshey. 

43. Specifically, Jill Darmer (who served as a juror 

under her married name, Mrs. Marg Darmer), has averred that 

"this was a very close case for me on whether to give life or 

death. (Exhibit PF 47). "The evidence was not clearcut that 

McCleskey had actually been the one who fired the shots at 

the officer." (Exhibit F 43). The State’s evidence on the 

‘murder weapon "was contradictory at several places," which 

"left us with the testimony of Ophie Evans." (Exhibit F qq4- 

5). Ms. Darmer testified that she placed special reliance on 

Evans’ testimony, because "I didn’t think Evans had anything 

to gain.” (Exhibit PF, «5, Ms. Darmer has stated that 

"[w]ithout Evans’ testimony, I definitely would not have 

voted for a death sentence" (Exhibit F 910), and "had I known 

that Ophie Evans had an arrangement with an Atlanta detective 

.. I would never have voted to impose capital punishment." 

(Exhibit F €q11). 

 



  

20 

ir Juror Robert Burnette also agreed that this "wasn’t 

an easy case. We spent a long time discussing the State’s 

evidence." (Exhibit G 92). Like Marg Darmer, juror Burnette 

discounted Ben Wright’s testimony, placing instead great 

weight on what Offie Evans told the jury. After reading 

Evans’ state habeas testimony, Burnette has now averred that 

he "would definitely not have voted to sentence McCleskey to 

death 1f [he] had thought “he might not have ‘been =the 

triggerman,” VY[Rinowing ... that Fvans could have lied to 

cover his deal with the detective definitely could have made 

a big difference to me, and to other jurors, I think -- at 

least in deciding to give the death penalty," Burnette has 

~ stated (Exhibit G 99). 

The State’s Reference To Appellate Review In Closing Argument 
  

45. The prosecutor’s deliberate and misleading 

references to appellate review during his closing argument at 

the penalty phase of petitioner’s trial, and his specific 

invitation to the jury to consider the fact that petitioner’s 

prior life sentences had been reduced by the appellate 

courts, violated (i) petitioner’s right to be free of cruel 

and unusual punishment, guaranteed by the Eighth and 

Fourteenth Amendments; and (ii) his right to the due process 

of law, guaranteed by the Due Process Clause of the 

Fourteenth Amendment of the Constitution of the United 

States. 

 



  

21 

FACTS SUPPORTING PETITIONER’S CIAIM 
THAT THE PROSECUTOR’S CLOSING ARGUMENT 

VIOLATED HIS CONSTITUTIONAL RIGHTS 

  

  

  

46. During the sentencing phase of petitioner’s trial, 

the prosecutor invited the jury to focus its attention upon 

the following considerations in determining the penalty to be 

imposed: 

"Ladies and Gentlemen, this is the sentencing phase 
of this trial, and 1 ewpect the court is going to 
charge you with a couple of points, that you can 
return a. verdict of life in prison or you can 
return‘: verdict. of death '. . . (Tr.T. 1016). . If 
you find a sentence for the man of life for murder, 
if you sentence him to life for armed robbery, and 
to life for armed robbery, and to life for the 
second armed robbery, and if you don’t specify how 
these are to run, they are going to run together . 
oy {TrJP., 1017). 

oie kl 
I would also ask you to consider the prior 
convictions that you have had with you in the jury 
room, and particularly the one where he got three 
convictions. I believe if you look at those papers 
carefully you are going to find, I think, on one of 
those he got three life sentences to begin with, 
and then there is a cover sheet where apparently 
that was reduced to what, eighteen years or fifteen 
years or something, which means, of course, he went 
through the appellate process ‘and somehow got it 
reduced. 

Now, I ask you to consider that in conjunction with 
the life that he has set for himself." (Tr.T. 1019- 
1020) 

(The complete closing argument of the prosecutor appears as 

an appendix to Exhibit B.) 

47. The prosecutor’s explicit request for the jury to 

consider the fact that three 1life sentences previously 

imposed upon petitioner had been reduced "in the appellate 

 



  

22 

process" obviously directed the jury’s attention to the fact 

that its sentence in McCleskey’s case would be reviewed on 

appeal. The remarks strongly implied, moreover, that the 

jury in this case should impose a death sentence on 

petitioner -- rather than one or even three life sentences-- 

to avoid the possibility that any life sentence would somehow 

be reduced to a term of years by the appellate courts, just 

as petitioner’s three prior life Sentences had been. 

48. These references, furthermore, were factually 

misleading, since the Georgia Supreme Court in fact has no 

power to reduce a life sentence to a term of years. 

Petitioner’s prior life sentences had actually been reduced 

by. the trial ‘court, upon the prosecutor’s agreement, after 

cet TLitner’s motion for a new rial had been granted. 

49. In Caldwell, the Supreme Court identified a series 

of grave risks to the integrity of a Jury’s capital 

sentencing decision if there were "state-induced suggestions 

that the sentencing jury may shift its sense of 

responsibility to an appellate court." 86 L.E4d.2d at 240. 

Adopting a very strict standard of review, the Court held 

that reversal of Caldwell’s death sentence was required 

"[b]ecause we cannot say that this [closing argument] had no 

effect on the sentencing decision." 86 L.Ed.2d at 247. 

E. The State’s Systematic Exclusion of Black Jurors 
  

 



  

23 

50. The Fulton County prosecutor’s systematic use of 

his peremptory challenges to. strip prospective black jurors 

from petitioner’s capital trial -- producing a near all-white 

jury of eleven whites and one black -- violated: (1) 

petitioner’s right to a representative jury, guaranteed by 

the Sixth and Fourteenth Amendments; (ii) his right to be 

free from cruel and unusual punishment at the penalty phase 

of his trial, guaranteed by the Eighth and Fourteenth 

Amendments; and (iil) his right to the equal protection of 

the laws, guaranteed by the Equal Protection Clause of the 

Fourteenth Amendment of the Constitution of the United 

  

  

  

  

States. 

FACTS SUPPORTING PETITIONER'S CILATM THAT 

THE SYSTEMATIC EXCLUSION OF PROSPECTIVE 

BIACK JURORS VIOIATED HIS 

CONSTITUTIONAL RIGHTS 

51. Petitioner Warren McCleskey is black. He was 

charged with the 1978 murder of a white police officer, Frank 

Schlatt.: Petitioner’s trial ‘occurred iin Fulton County, 

Georgia, in October of 1978. United States Census figures 

reveal that in 1970, the population of Fulton County was 

60.9% white, 39.1% black. The 1980 census. reveal that the 

Fulton County population had shifted to become 48% white, 52% 

black. 

52. A total of 52 jurors were questioned in McCleskey’s 

case. Of the 50 whose race has been confirmed, 40 were 

white, and 10 were black. After voir dire was complete, the 

 



  

24 

prosecutor, Russell Parker, and the defense attorney each 

exercised their respective peremptory challenges, on the 

record. As a portion of the trial transcript indicates, (see 

Exhibit H) prosecutor Parker exercised a total of 11 strikes; 

at least 6 of those peremptorily excused by Parker were black 

jurors. (The race of each of these prospective jurors has 

been confirmed not only by a comparison of juror lists with 

voter registration lists (see Exhibit I), but also by direct 

contact with 5 excluded jurors. Attached as Exhibit J are 

affidavits from these five prospective jurors, confirming 

their race and their exclusion from Warren McCleskey’s 

trial.) The voir dire transcripts of these excluded black 

aE jurors reveals absolutely no racially neutral grounds on. 

which to distinguish them as prospective jurors from white 

jurors who were not struck. 

53. This stark pattern of racial exclusions establishes 

a prima facie violation of the Equal Protection Clause of the   

  

Fourteenth Amendment. Batson v. Kentucky, 476 U.S. rl 90 

L.Ed.2d 69, 87-88 (1986); United States v. Gordon, 817 F.2d 
  

1538, 1541 (11th Cir. 1987) ("under Batson, the striking of a 

single black juror for a racial reason violates the Equal 

protestion Clause, even where other black jurors are 

seated. ") 

54. While Batson has been held non-retroactive to those 

non-capital cases beyond direct appeal, see Allen v. Hardy,   

  

U.S. +. 22 L.E3.24 199 (1986); Griffith v. Kentucky, 
  

 



  

25 

U.S. , 93 L.Ed.2d 649 (1987), petitioner alleges that the 

constitutional requirement of special reliability in capital 

cases, see, e.d9., Woodson v. North Carolina, 428 U.S. 280,   
  

304-05 (1976); .Gardner v. Florida, 430 U.S. 349, 357-58 
  

(1277); Beck v. Alabama, 447 U.S. 625, 637 (1980), mandates   

that Batson be applied retroactively to capital cases. At a 

minimum, because of the "unique opportunity for racial 

prejudice to operate but remain undetected" in capital 

sentencing proceedings, Turner v. Murray, U.S. 90   ————   

L.Ed.2d 27, 35 (1986), Batson is applicable, petitioner 

submits, to the penalty phase of his capital trial. But cf. 

  

High v. Kemp, No.85-8989 (11th Cir., June 11, 1987) (holding 

Batson non-retroactive to capital cases) 

The State’s Intentional Racial Discrimination Against 
Petitioner McCleskev 
  

  

55. The death penalty has been imposed on petitioner 

McCleskey pursuant to a pattern and practice of Georgia 

prosecutors, courts, judges, and juries, both statewide and 

in Fulton County, to discriminate against black defendants 

and against those whose homicide victims are white. 

Moreover, the decision-makers in petitioner McCleskey’s own 

case acted with discriminatory purpose and intent, and their 

actions created a "constitutionally significant risk of 

racial bias" affecting his capital sentence, all in violation 

of the Eighth Amendment and of the Equal Protection Clause of 

 



  

26 

the Fourteenth Amendment to the Constitution of the Onited 

States. 

FACTS SUPPORTING PETITIONER’S CIAIM 

THAT HIS CAPITAL SENTENCE WAS THE 
PRODUCT OF RACIALLY DISCRIMINATION 

  

  

  

56. Petitioner repeats and realleges the allegations of 

paragraphs 51 through 52, supra. 

57. In his prior federal habeas corpus proceeding, 

McCleskey Vv. Zant, No. C81-2434A (N.D.Ga.), petitioner   

presented extensive statistical evidence, through exhibits 

and live testimony, to establish striking patterns of 

disparate racial treatment in Georgia capital cases. 

Petitioner proffers to this Court, and will produce at an 

evidentiary hearing, that body of evidence, 

58. While the Supreme Court has held that such 

evidence, standing alone, is insufficient to make out a 

violation of the Eighth or Fourteenth Amendments, see 

McCleskey v. Kemp, U.S. ry 9% L.PA.24 .2682, 291-92   

(1987), the Court also held that a habeas petitioner could 

prevail under the Fourteenth Amendment by proving "that the 

decisionmakers in his «case acted with discriminatory 

purpose,” Id. at 278. 

59. The Supreme Court noted its own "’‘unceasing 

efforts’ to eradicate racial prejudice from our criminal 

justice system," id. at 289; prominent among the procedural 

protections cited by the Court was its "condemn[ation of] 

state efforts to exclude blacks from grand and petit juries," 

 



  

27 

id. n.30, including any attempts by "a prosecutor [to] 

exercise peremptory challenge on the basis of race." Id. 

60. Prosecutor Parker’s deliberate and repeated 

exercise of his peremptory challenges to remove at least six 

black jurors from petitioner’s trial jury --especially seen 

in combination with petitioner’s powerful statistical showing 

of racial discrimination in Fulton County and the State of 

Georgia since 1973 -- establishes precisely the kind of 

Eighth Amendment and Equal Protection Clause violations which 

the Sirens Court held are cognizable under the rule of 

McCleskevy v. Kemp. 
  

  

Petitioner’s Ake v. Oklahoma Claim. 

61. The state trial ‘court’s denial of petitioner’s 

motion for funds for the employment, jinter alia, of a 
  

ballistics expert violated his right to the due process of 

law guaranteed by the Due Process Clause of the Fourteenth 

Amendment to the Cosntitution of the United States. 

FACTS SUPPORTING PETITIONER'S 
AKE v. OKIAHOMA CIAIM 
  

62.. Prior to his trial, petitioner moved in the trial 

court to "proceed in forma pauperis and for funds for expert p   

witnesses." (Exhibit K). Defense counsel specifically noted 

that the State intended to rely at trial upon "numerous 

experts, including [a] pathologist, criminologist, criminal 

 



  

28 

investigators, ballistics experts, and others," (id) and he 

stated that . "[s]laid ‘experts veo have: contributed 

significantly to the State’s case against the defendant." Id. 

Petitioner’s motion explained that petitioner was without 

money to pay for his defense, and moved the court for leave 

to proceed in forma pauperis. 
  

63. The trial court did not grant petitioner’s motion, 

and no defense ballistics expert was appointed. During 

trial, the State used the testimony of Kelly Fite, an agent 

of the Georgia Bureau of Investigation, to link the purported 

murder weapon to petitioner. Fite testified that he had" 

examined microscopically the markings on the two bullets 

recovered from the homicide scene. (Tr. T. 413-14)... Of the: 

"several hundred makes of weapons, .38 caliber," (Tr.T.414), 

Fite testified -- apparently without doubt -- that the .38 

Rossi was "the only one that has [the] type of twist[s] and 

lands and grooves" observed on the bullets taken from the 

gcene.  (I4.) The State then sought to establish that 

petitioner Warren McCleskey had been carrying a .38 Rossi on 

the day of the crime, and that, therefore, it was he who had 

shot Officer Schlatt. 

64. However, during a subsequent post-trial deposition, 

arranged by volunteer counsel, Fite admitted that the 

markings left on the bullet taken from Officer Schlatt could 

also have come either from a Taurus revolver (Exhibit L, 6) 

or from a Charter Arms revolver. (Id., 7). 

 



  

29 

65. An independent ballistics expert would have 

provided defense counsel with these alternative hypotheses, 

as did Fite himself during his post-trial deposition. Armed 

with evidence that two other pistols, apart from the .38 

Rossi, might have been the murder weapon, petitioner’s 

defense attorney would have been able to counter the one- 

sided impression left with petitioner’s jury by Fite’s 

damning and apparently unequivocal testimony, which pointed 

directly at McCleskey as the triggerman. 

66. Apart £60 the testimony of ‘Ben Wright and Ophie 

Evans, Fite’s testimony about the .38 Rossi was the most 

critical evidence 1linking McCleskey to Officer Schlatt’s 

murder. At least two jurors “have now revealed. that the 

central issue facing the Juvyiin this case, both at the guilt 

and at the sentencing phases of the trial, was whether 

petitioner McCleskey was the triggerman. 

IV. PETITIONER’S EXPLANATION FOR WHY THESE CIAIMS ARE NOT 
  

BARRED UNDER RULE 9 
  

é%. PP. Petitioner’s Massiah and Mooney Claims 
  

Petitioner’s claims (i) that the State’s use at trial of 

incriminating statements made by him to Offie Evans violated 

his Sixth Amendment and Due Process Clause rights, and (ii) 

that the State failed to correct Evans’ misleading testimony 

at trial, are based on a written statement given by Offie 

Evans to the police, describing in detail certain alleged 

 



  

30 

conversations between Evans and petitioner in July of 1978. 

68. Before petitioner’s trial, defense counsel 

requested from the State all exculpatory and impeaching 

information, including "[a]ll written statements of witnesses 

in the possession of the prosecutor relating to the charge 

against ... defendant.” (See Exhibit WM, VMotion for 

Information Necessary to Receive a Fair Trial, and Motion for 
  

  

Disclosure of Impeaching Information.) Yet Offie Evans’ 
  

statement to the police was not made available to 

petitioner’s counsel. (St... Hab, Tr, 77). Instead the 

prosecutor submitted certain items to the trial court for in 

camera inspection. According to prosecutor Russell Parker, 

defense attorney Turner was never informed about the nature 

of the teens submitted to the trial court for in camera 

inspection in response to his motion. (Parker Deposition, 8). 

In a one-paragraph order the trial court denied petitioner’s 

request, giving no hint what items had been reviewed. (A copy 

of the order is annexed as Exhibit N.) 

69. Midway during the cross-examination of petitioner 

McCleskey by the State, defense attorney Turner orally 

renewed his requests for any relevant statements made by 

defendant. (Tr... T. 330-31). The trial court denied the 

request, observing that "I don’t know that we are talking 

about any written statement." (Tr. T. 831) In short, the 

trial court, after implying that no written statement existed 

at all, denied petitioner ACCess, a second time, to any 

 



  

31 

witness statements, whether written or oral. (A copy of the 

transcript of the full interchange between counsel and the 

Court is annexed as Exhibit 0.) 

70. On direct appeal, Turner urged that the State’s 

refusal to turn over what counsel plainly believed was an 

oral statement by Evans violated petitioner’s rights. The 

Georgia Supreme Court upheld the denial of access to 

petitioner without intimating that any written, signed 

statement existed. McCleskey v. State, 245 Ga. 108, 263   

S.E.2d 146, 150 (1980). On the contrary, perhaps misled 

itself, the Georgia Court explicitly stated in its opinion 

that "[t]he evidence [the defense counsel] sought to inspect 

  

was introduced to the jury in its entirety," id. (emphasis: 

added) -- obviously referring to the oral testimony of Evans. 

71. In state habeas corpus proceedings, volunteer 

counsel for petitioner once again sought discovery from the 

prosecutor. After a deposition of the prosecutor, in a post- 

deposition letter to the official court reporter (a copy of 

which was forwarded to petitioner’s counsel), an Assistant 

Attorney General explicitly represented: "[E]lnclosed is a 

complete copy of the prosecutor’s file resulting from the 

criminal prosecution of Warren McCleskey in Fulton County. 

As agreed by counsel for both parties who attended the 

deposition of Mr. Russell Parker ... the enclosed file ... is 

to be attached to Mr. Parker’s deposition as joint Exhibit 

A." (A copy of the letter is annexed as Exhibit P). No copy 

 



  

32 

of the 21l-page statement by Evans was included among the 

documents sent to the court reporter for inclusion as an 

official exhibit in state habeas proceedings. 

72. Petitioner’s counsel, having thus been repeatedly 

misled even as to the existence of a written statement, and 

denied access to it after numerous categorical requests for 

any such documents, only learned of Evans’ statement 

inadvertently, on June 10, 1987, when it was forwarded to 

them by an Atlanta City Attorney in response to a request 

seeking altogether different documents. (An Sitaneive proffer 

of the chain of events leading to the statement’s discovery 

is reflected at pages - of the official transcript of   

the June 29, 1387 hearing on respondent’s motion to dismiss, 

held in the Superior Court of Butts county. See also the 

exchange of letters annexed as Exhibit Q.) 

73. Federal law is clear that when evidence in support 

of a claim has been withheld from a petitioner by the State, 

with no inexcusable neglect by petitioner’s counsel, it is 

not an abuse of the writ, once the evidence comes to light, 

‘to present the new claim in a successive petition. See, 

€:0., Price wv. Johnston, 334 U.S. 266, 291 (1948) (where 

State prosecutor introduced false testimony at trial, a 

successive petitioner was appropriate once the falsehood was 

discovered, since the petitioner "was previously unable to 

assert the rights or was unaware of the significance of 

relevant facts"); cf. Freeman v. Georgia, 599 F.2d 65, 71-72   

 



  

33 

(5th Cir. 1979) (where defense counsel was misled to believe 

that witness would be unfavorable, defendant was not 

responsible for failure to attempt to locate witness); Barbee 

¥Y. Warden, Marvland Penitentiary, 331 F.2d 842, 845 (4th Cir.   

1964) (same). See generally Advisory Committee Note to Rule   

9: "There are instances in which a petitioner’s failure to 

assert a ground in a prior petition is excusable... newly 

discovered evidence [is an]... exampl[e]." 

74. Petitioner’s efforts to obtain Evans’ 2l1-page 

statement have been timely and in good faith. Petitioner 

could not have reasonably obtained this evidence in his first 

habeas corpus proceeding, and he is not abusing the writ by 

presenting it here. 

75. .C. Petitioner’s Giglio Claim. Petitioner did   

raise a challenge, in his initial state petition, to the 

State’s failure to disclose its arrangement with Offie Evans 

in exchange for his testimony, citing Giglio v. United 
  

States, 405 U.S. 150 (1972). (Exhibit A, 920). This Court 

granted relief on the Giglio claim, 580 F.Supp. at 380-84, 

but a majority of the Court of Appeals reversed, concluding 

that the understanding with the detective was not a "promise" 

under Giglio, and was harmless error. McCleskey v. Kemp, 753 
  

F.24 at 884. 

76. The 2l1-page statement of Offie Evans which has just 

come to light constitutes newly available evidence, not 

reasonably discoverable by petitioner, which further 

 



  

@ @® 

34 

clarifies the substantial nature of the relationship between 

Evans and State officials. 

77. Moreover, the constitutional principles applicable 

to this issue have been. clarified in a number of relevant 

cases since this Court’s 1983 opinion. Seg, e.9., United 
  

States v. Bagley, 474 U.S. (1985) ; Brown v. Wainwright, 785   

  

F.2d 1457 (11th Cir. 1986); Haber v. Wainwright, 756 F.2d   

1520 (11th Cir. 1933), These cases constitute a change in 

applicable law that require this Court to redetermine the 

validity of petitioner’s claim. 

| 78. Alternatively, the affidavits of the trial jurors 

who actually determined petitioner’s sentence reveal that, 

had the State’s SFvengemonts with Offie Evans been relly 

disclosed at trial, petitioner. would not have been Sevterced ¢ 

to death and would 1ikelv not have been convicted of malice   

murder. He has thus been the victim of "a fundamental 

miscarriage of justice" within the meaning of Murray v. 
  

Carrier, Dp..." 81 1.74.24 397, 413 (1986), since he is 

"actually innocent" of the malice murder of Officer Schlatt 

and "innocent" of a death-worthy crime. 

79. The State’s arrangement with Evans -- concealed by 

a web of lies, misrepresentations and half-truths by Evans 

concerning the escape charges =-- clearly gave the jury a 

"false" and "misleading" impression under Smith v. Murray, 
  

U.S. / 21. L.BA.24 4834, 447 (1936). These 

  

misrepresentations served, as the attached juror affidavits 

 



  

35 

show, "to pervert the jury’s deliberations concerning the 

ultimate question" of petitioner’s sentence. Id. Under such 

circumstances, the merits of petitioner’s Giglio claim are 

appropriately before this Court for decision. 

80. FE. Petitioner’s Caldwell vv. Mississippi Claim- 
  

Petitioner did raise, in his initial state habeas corpus petition 

filed in 1980, a constitutional challenge under the Due Process 

Clause to the State’s closing argument to his jury, during which 

the prosecutor stressed that an appellate court had reduced 

petitioner’s previous life sentences. (Exhibit a, 925). 

8l. Citing exclusively state law precedents, the state 

courts rejected the claim, concluding that "[s]ince the words 

referred to a past conviction, the Court cannot conclude that the 

words had the inevitable effect of encouraging the jury to attach 

diminished consequence to their verdict and take less than full 

responsibility for determining life or death." (Exhibit B, 25). 

This Court likewise analyzed the claim under available due process 

precedents, concluding that "[r]eferences to the appellate process 

are not per se unconstitutional unless on the record as a whole it 

can be said that it rendered the entire trial fundamentally 

unfair." McCleskey v. Zant, 580 F.Supp.at 387-88.   

82. It was only in 1985, in Caldwell Vv. Mississippi, that 

the Supreme Court first announced a new Eighth Amendment 

principle, to be applied to capital sentencing-phase arguments 

under a standard far more strict than that which governs due 

process claims. The Court of Appeals in this Circuit has recently 

 



  

36 

held . that a Caldwell claim "was not available” +o a habeas 
  

petitioner who filed his initial petition as late as September of 

  

1984. Adame v, Ducaer, 816: F.24 1493. (211th Cir. 1987) (on 

rehearing). The Adams court expressly rejected arguments by the 

Florida Attorney General, similar to those advanced by the 

respondent in this case, that state and federal due process claims 

had been available to petitioner Adams. "The mere fact that a 

practice may be condemned as a matter of state law ... does not 

indicate that the same practice constitutes an Eighth Amendment 

violation... [Moreover,] it is clear that not every claim that 

implicates the fundamental fairness standards embodied in the due 

process clause necessarily implicates the Eighth Amendment as 

well." 816 F.2d at 1496 n.2. = Petitioner McCleskey’s Caldwell 
  

claim, as Adams demonstrates, must be addressed and decided on its 

merits. 

83. Xx. Petitioner’s Batson v. Kentucky Claim Prior to 
  

the United States Supreme Court’s 1986 decision in Batson v. 
  

  

Kentucky, e.s. ry. 90 L.PA.24 69 (1986), a pattern of 

prosecutorial exclusions of prospective jurors -- even a pattern 

as strong as that presented by petitioner’s case -- gave a habeas 

petitioner no basis for an Equal Protection Clause challenge. 

Under the then-controlling authority of Swain v. Alabama, 380 U.S. 
  

202 (1965), a habeas petitioner was required to "show the 

prosecutor’s systematic use of peremptory challenges against 

Negroes" not simply in one case, but "over a period of time," 380 

U.S. at 227 (emphasis added), in order to make out a prima facie 
  

 



  

37 

Clain. 

834. The Supreme Court in 1986, recognizing that the Swain 

standard imposed "a crippling burden of proof" on a habeas 

petitioner, Batson Vv, Rentucky, 90 L.E4.24 at 83, adopted a. new   

standard, under which "a defendant may make out a prima facie 

showing ... by relying solely on the facts concerning [jury] 

selection in his case." Id. at 87 (emphasis in original).   

85. Petitioner’s claim in this case is brought under the new 

constitutional standard announced in 1986 in Batson. This new 

Batson rule, the Supreme Cour: has held, "is an explicit and 

substantial break with prior precedent’" which has " ‘overruled 

23 
  

[a] portion of Swain.’" Griffith v. Kentucky, U.S. 

L.Ed.2d - 649, 660. (1987). This new rule was not announced until 

1986, nearly eight years after petitioner’s 1978 trial, and over 

five years after his initial state habeas corpus proceedings. 

Under Rule 9(b) and Sanders v. United States, 373 U.S. 1 (1963), a   

new claim may be asserted in a successive petition if "the 

applicant ... show[s] that the ends of justice would be served." 

373r U.S, at. 1s, The courts have long agreed that the ends of 

Justice are served if "the applicant ... show[s] an intervening 

change in the law," id. at 17. provides a justification for the 

applicant’s failure to have included the claim in his initial 

petition. See Adams v. Dugger, 816 F.2d 1493, 1495-96 (llth Cir.   

1987) ; 

86. TF. Petitioner’s Claim of Intentional Discrimination. 
  

The standard of proof necessary to make out a claim of racial 

 



  

38 

discrimination in a State’s application of its capital statutes 

was not clarified until the Supreme Court decided McCleskevy v. 
  

Bemp, on April 22, 1587. Prior to that time, noi definitive 

guidance had ever been provided to habeas litigants on the 

elements of such a claim. It was in order to provide such 

guidance that the United States Court of Appeals initially agreed 

in 1984 to address the issue en banc and the Supreme Court agreed 

to grant certiorari in 19836. 

87." A majority of the Bupreme Court in  MaClaeskey 
  

acknowledged that "the nature of the capital sentencing decision, 

and «the relationship of ... statisticl{al evidence] to ‘that 

decision are fundamentally different from the corresponding 

~ elements in" other Equal Protection claims. McCleskey v. Kemp, 95 
  

L.Ed.2d at 279. Ordinary principles of statistical inference and 

proof "simply [are] ... not comparable", id., to those the Court 

has now announced will henceforth be applicable in capital cases. 

88. The new McCleskey requirement -- that a habeas   

petitioner, even one armed with statistical evidence, must 

demonstrate that "the decisionmakers in his case acted with 

discriminatory purpose," id., and that such proof must include 

specific acts directly attributable to such actors --constitutes 

"new law". Moreover, the conduct petitioner now proffers as proof 

of discrimination =-- the prosecutor’s systematic exclusion of 

black jurors in hiw own case -- was not deemed either a violation 

of: the Equal Protection Clause or evidence of unlawful 

discrimination under the controlling standard of Swain v. Alabama 
  

 



  

39 

at the time his initial petition was filed. 

839, Petitioner, in addition, "did "attempt ‘in his first 

federal habeas proceeding to adduce some evidence that the 

prosecutor in his case had acted with discriminatory intent in the 

selection of petitioner’s jury. During the course of federal 

habeas corpus proceedings, petitioner formally moved for 

discovery, inter alia, of "[a]ll documents, whether official or   

unofficial, and whether for internal or external use or for 

publication, which discuss, refer to or otherwise concern, in 

whole or in part the issue of ... racial discrimination in any and 

all aspects of Jury :selection [or] jury composition." 

Petitioner’s First Request for Production of Documents, dated 

April- 8, 1983, at 4 94. On June 3, 1983, this Court entered an 

order denying this request "as irrelevant." Order at 2. 

90. During the federal evidentiary hearing, petitioner 

offered the testimony of his sister to establish the racial 

composition of his actual jury -- eleven whites and one black. 

{Fed. Tr. 1316). When he sought to demonstrate the unlikelihood 

that such a jury composition could have S codtned in Fulton County 

by chance (Fed. Tr. 1772), this Court asked whether petitioner was 

offering the evidence in support of an ordinary jury challenge. 

(Id.). After some colloquy, counsel for petitioner responded: 

I think we’re in a different realm, Your Honor. I think 
we’re in an Eighth Amendment realm where the question is 
was Warren McCleskey struck by lightning or was he 
discriminated against. And I think this evidence goes 
to that question, even if it doesn’t make out a Sixth 
Amendment issue. 

(Fed Tr. 1776). The Court ultimately admitted petitioner’s expert 

 



  

40 

testimony which established that, in Fulton County, the 

probability of an 1l1-to-1 white jury was .03, or three-in-one 

thousand. (Fed Tr. 1777). 

Sl. In. his post-hearing brief to the District. Court, 

petitioner specifically called attention to "the racial 

composition of his jury panel -- 11 whites and one black" and 

urged the Court to "consider this fact insofar as it finds events 

in the individual case relevant to the overall discrimination 

issue here." Petitioner’s Post-Hearing Memorandum of Law in 

Support of His Claims of Arbitrariness and Racial Discrimination, 

dated September 26, 1983, at 89 n.39. 

92. Petitioner later noted for the Court: that his 

  

statistical case of racial discrimination "need not stand alone," 

recalling that "(hile has attenpted to obtain and offered to 

present other evidence of racial discrimination in Georgia’s 

criminal justice system," which "the Court denied ... holding it 

irrelevant." Petitioner’s Memorandum at 102. 

93. Subsequently, in his brief to the Court of Appeals, 

petitioner argued that 

in denying as ‘irrelevant’ petitioner’s discovery 
requests related to prior discriminatory conduct in the 
criminal justice system in Fulton County ... the 
District Corut erred ... for such anecdotal evidence is 
plainly relevant to an Equal Protection Claim." 

The District Court’s insistence that prior discriminatory 
conduct =-- especially by actors integrally involved in the 
administration of the criminal justice system -- was 
firrelevant! to petitioner’s Tqual Protection claim 
constitute clear legal error. 

En Banc Brief for Petitioner McCleskey as Appellee and Cross- 

 



  

41 

Appellant, dated May 8, 1984, at 26 & n.17. 

94. Thus, while petitioner was not apprised prior to the 

April 22, 1987 opinion in McCleskey of the legal necessity of 
  

  

proffering evidence of specific discriminatory acts, or of the 

factual significance under Batson of the prosecutor’s peremptory   

strikes, he nevertheless had attempted in good faith to proffer 

such evidence. 

95, GG. Petitioner’s Ake v. Oklahoma Claim. Petitioner did 
  

raise, . in his initial state habeas corpus petition, a 

constitutional challenge to the trial court’s refusal to provide 

him an independerit ballistics expert. (Exhibit A, ¢ 22). The 

state court, following well-established precedent, held that 

n[tihe appointment of expert witnesses lies within ‘the discretion 

ot the trial Cott" ond that Wratental of the notion , will not 

be reversed in the absence of an abuse of that discretion." 

(Exhibit B, 10). This Court, citing the state-law abuse of 

discretion standard, agreed. McClegkey v. Zant, 530 F.Supp. at   

387. 

96. Several years thereafter, in Ake v. Oklahoma, 470 U.S. 
  

68, 83 (1985), the Supreme Court held for the first time that the 

provision of expert assistance is not solely a matter of state 

trial court discretion. Instead, a state is required by the 

federal Due Process Clause to provide an indigent with an expert 

if the matter at issue "is to be a significant factor at trial." 

gee, €.9., Moore v. Kemp, 809 ¥F.24 702, 711-12 (11th Cir. 1987)   

(en banc) (assumes "that the due process clause could require the 

 



  

\ 

42 

government , both state and federal, to provide nonpsychiatric 

expert assistance to an indigent defendant upon a sufficient 

showing of need.") 

97. Ake and subsequent cases thus have wrought a change in 

law that requires this Court to consider the merits of this 

successive claim. See Tucker v. Hemp, 818: P.24 749. (11th Cir.   

1987) . 

* * * * * 

98. Other than a petition for rehearing presently pending in 

the Supreme Court of the United States, petitioner has no other 

motions, petitions or appeals now pending in any court, state or 

federal, as to the judgment under attack. 

99. Petitioner was represented by the following attorneys: - 

(a) et the preliminary hearing, at trial and on appeal 

to Georgia Supreme Court: John Turner, Esq., now with the Fulton 

County District Attorney’s Office, Fulton County Courthouse, 

Atlanta, Georgia; 

(b) on petition for certiorari: Robert H. Stroup, Esq., 

141 Walton Street, Atlanta, Georgia 30303; Jack Greenberg, James 

M. Nabrit, III, John Charles Boger, 99 Hudson Street, New York, 

New York 10013; 

(c) in state habeas corpus proceedings, on application 

for certificate of probable cause to appeal to Georgia Supreme 

Court, and on petition for writ of certiorari to United States 

Supreme Court; Stroup, Greenberg, Nabrit and Boger. 

(d) in federal habeas proceedings, by Timothy K. Ford, 

 



  

43 

600 Pioneer Building, Seattle, Washington 98103; Anthony G. 

Amsterdam, New York University Law School, 40 Washington Square 

South, New York, New York 10012; Julius L.. Chambers, 99 Hudson 

Street, New York, New York 10013; and by Stroup, Nabrit & Boger. 

(e) in successive state habeas corpus proceedings, by 

Stroup, Chambers, Nabrit and Boger. 

100. Petitioner was convicted on one count of malice murder 

and two counts of armed robbery. 

101. Petitioner has no future sentence to serve after 

completion of the sentences imposed by the judgments under attack. 

WHEREFORE petitioner Warren McCleskey prays that this court: 

1. Issue a writ of habeas corpus to have petitioner brought 

before it. to. the end that he may be ‘discharged from his 

unconstitutional confinement and restraint and/or be relieved of 

his unconstitutional sentence of death; 

2. Conduct a hearing at which proof may be offered 

concerning the allegations of his petition; 

3 Permit petitioner, who is indigent, to proceed without 

prepayment of costs or fees; 

4. Grant petitioner, who is indigent, sufficient funds to 

secure expert testimony necessary to prove the facts as alleged in 

his petition; 

Be Grant petitioner the authority to obtain subpoenas in 

forma pauperis for witnesses and documents necessary to prove the 

facts as alleged in his petition; 

6. Allow petitioner a reasonable period of time subsequent 

 



  

gh! 

to any hearing this Court determines to conduct, in which to brief 

the issues of law raised by this petition; 

7. Stay petitioner’s execution pending final disposition of 

this petition; and 

8. Grant such other relief as may be appropriate. 

Dated: July 6, 1987 Respectfully submitted, 

ROBERT H. STROUP 

141 Walton Street 
Atlanta, Georgia 30303 
(404) 522-8500 
Georgia Bar Number 689175 

JULIUS L. CHAMBERS 

JAMES M. NABRIT, III 
JOHN CHARLES BOGER 

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

Attorneys for Petitioner 

By: 
  

 



  
EXHIBIT A 

 



A 2 ® 

  

IN TEE SUPERICR COURT QF BUTTS COUNTY 

STATE OF GEORGIA 

  

WARREN MCCLESKrY, 

Petitioner, 

B.C. No. 490 9 
Ve.   

WALTFR ZANT, Warden, 

Georgia Diagonistic and 
Classification Center, 

Pesoondent. 

  

PRTITION FOR A WRIT OF HABEAS CORPUS, 

FOR A STAY OF EXFCUTION, AND FOR 

LEAVE TC PRCCEED IN FORM? PAUPERIRS 

  

I. Introduction   

(1) . This is a petitfon for. a writ of habeas corous 

to relieve the petitioner of restraint under a conviction 

and sentence of death imrosed upon him by the State of 

Georgia in violation of his rights under the Constitution 

of the United States and of the State of Georgia. 

| II. Parties 
J (2) Petitioner Warren McCleskey is a citizen of the 

i United States and a resident of the State of Georgia. He 

i 1s presently imprisoned under sentence of death at the Georgia 

i Diagonistic and Classification Center in Jackson, Georgia. 

(3) Petitioner is a pauper. Because of his poverty, 

he is unable to pav the fees and costs of this action or to 

give security therefor. Petitioner believes that he is entitle 

to redress. 

; (4) Pespondent alter Zant is the Warden of the Georgia 

Diagonistic and Clacsification Center, Jackson, Georgia, 

and has custodv of the petitioner in his official capacity. 

Respondent is currently confining retitioner for the 

  3 | 
  BE EE a a ia tl A — ro mr ——_ 948 =e" mit ge on Teme we   
 



    NECA 1   
: Swen - 

» i BUNA ———e——. fore yeh ar SL oe 15.500 1 4 + An on are Vane 7 5 nr * . i oxpigm rons, fw res wages pupae 3-3 wwe: Hin 

Co
n S 

ultimate execution of his death sentence at the Diagnostic 

and Classification Center, 

III. Prior Proceedings 
  

(55) Or October 12, 1978, petitioner was convicted 

in the Superior Court of Fulton County of the murder of 

Atlanta police officer Frank Schlatt and was sentenced to 

death. He was also convicted on two counts of armed robbery, 

and given two consecutive life sentences. 

(6) On January 24, 1980, the Supreme Court of 

Georgia affirmed petitioner's convictions and sentences. 

McClesky v. The State, 245 Ga. 103 (1980). 
  

(7) On June 23, 1980, petitioner filed a petition for 

certiorari in the Supreme Court of the United States (Mo. 79- 

6830). On October 6, 1980, that court declined certiorari, 

McClesky v. Georgia, 0.8. , 249: 0.8.L.V. 3231 (1980) . 
  

(8) On December 19, 1280, the Superior Court for Fult 

County set January. 8, 1981, as the date for execution of 

petitioner's Keath sentehos on Decatiber 19,1980, petitioner 

filed an extraordinary motion for a new trial and asked tue t: 

court to delay re-sentencing pending disposition of said 

motion, but the trial court denied petitioner's request. 

IV. Respects in Which Petitioner's 

Richts Were Violated 
  

  

(9) Petitioner is in custody in violation of the 

Constitution of the United States and of the State of Georgie 

for the reasons set forth herein. 

(10) The death penalty is in fact administered and 

applied arbitrarily, capriciously, and whimsically in the 

State of Georgia and petitioner was sentenced to die, and wi: 

be executed, pursuant to a pattern and practice of wholly 

arbitrary and capricious infliction of that penalty in viola 

of his rights guaranteed by the Fighth and Fourteenth 

Amendments to the Constitution of the United States, and 

“De 

ow eregp— oo r—r 

 



D 9 

  

Sections 2-101 and 2-114 of the 1°76 Constition of the State 

of Georgia, 

(11) Petitioner's death is being exacted pursuant 

to a pattern and practice of Georgia prosecuting authorities, 

courts, juries and Covernors to discriminate intentionally 

and purposefully on grounds of race, sex and poverty in the 

administration of capital punishment. For this reason, the 

impositon and execution of petitioner's death sentence under 

Georgia law and practice violate the Fighth Amendment and the 

Equal Protection Clause of the Fourteenth Amendment to the 

Constitution of the United States, and Sections 2-101 and 

2-114 of the 1276 Constitution of the State of Georgia. 

(12) The theoretical justifications for capital 

punishment are groundless and irrational in fact, and death 

is thus an excessive penalty which fails factuallv to serve 

any rational and legitimate social interests that can justify 

its unique harshnass, in violation of petitioner's rights 

guaranteed by the Eighth and Fourteenth Amendments to the 

Constitution of the United States, and sections 2-101 and 

2-114 of the 1976 Constitution of the State of Georgia. 

(13) Petitioner's punishment is cruel and unusual in 

consideration of all factors relating to the offense and 

the offender, including mitigating circumstances. For this 

reason, the imposition and execution of his death sentence 

violates petitioner's rights guaranteed by the Eighth and 

Fourteenth Amendments to the Constitution of the United States, 

and Sections 2-101 and 2-114 of the 192976 Constitution of the 

State of Georgia. 

(14) The penalty of death was assessed against peti- 

sioner on the basis of fundamentally unfair proceedings in which 

he was not afforded adecuate notice and an ovportunity to 

present evidence and argument directed to specific issues 

determinative of the question of life and death. The impositior 

3 

  — BE Eni cosmene wr ——— -  — — ur ; my ea   
 



    

+ 3 

and” execution of the sentence of death under such circumstances 

violates petitioner's rights guaranteed by the Pourteenth 

Amendment to the Constitution of the United States, and fections 

2-101, 2-111 and2-114 of the 1976 Constitution of the State of 

Georgia. 

{195) Petitioner's trial jury did not constitute a 

representative cross-section of the community and was incapable 

of reflecting contemporary community attitudes regarding the 

appropriateness of the venaltv of death in petitioner's case, 

because all persons with conscientious or religious scruples 

Sauainet capital punishment were systematically excluded in 

violation of petitioner's rights guaranteed by the Sixth, Fighth 

,and Fourteenth Amendments to the Constitution of the United State 

and Sections 2-101, 2-111 and 2-114 of the 127¢ Constitution of 

J 
the State of Georgia. A copy of the relevant portions of the 

b 

trial transcrint are attached hereto as Ezihibkit A, 

; (16) Petitioner's trial jury was unrepresentative 
1} 

‘and biased in favor of the prosecution on the issue of petitioner 

i 

.guilt or innocence of the crime with which he was charged, in 

'violation of his rights guaranteed by the Sixth and Fourteenth 

‘Amendments to the Constitution of the United States, and 

‘Sections 2-101, 2-111 and 2-114 of the 1976 Constitution of the 

| State of Georgia. 
i 

£17) The Court's failure to adequately instruct 

‘jurors with conscientious and/or religious scruples against 

| capital punishment of their duty to subordinate their personal 

views and to abide by their oath as jurors, and to inquire 

further into their beliefs prior to excusing said jurors 

contravened petitioner's rights guaranteed by the Sixth and 

"Fourteenth Amendments to the Constitution of the United States 

and Sections 2-101, 2-111 and 2-114 of the 1976 Constitution of 

| the state of Georgia. 

: (18) The introduction into evidence of vetitioner's 

post-arrest statement to police obtained after and as a direct 

-d 

  

  FE iy rm Ewes =m ——————————" A TEV ——y r ne — i 

 



3 “ll yn” 

  

result of his arrest without a valid warraht and without 

probable cause, violated petitioner's rights guaranteed by the 

Fourth, Fifth, Sixth and Fourteenth Amendments to the Constitutic 

of the United States, and Sections 2-101, 2-111 and 2-113 of 

the Constitution of the State of Georgia. 

(19) Petitioner's post-arrest statement to 

Atlanta police was involutarily extracted from petititioner 

by promises and threats made to petitioner after Atlanta police 

had made him aware of the highly emotional context within which 

they were conducting the investigation into the death of one of 

their fellow police officers. In this context, petititioner 

was incapable of either maintaining his right to silence or of 

making a Voluntary, knowing and intentional waiver of his rights 

Introduction of his statement into evidence under such circum- 

| stances violated netitioner's rights guaranteed by the Fifth, 

Sixth and Fourteenth Amendments to the Constitution of the Unite 

States and Sections 2-101, 2-111, and 2-113 of the 1°76 

x Constitution of the State of Georgia. 

(20) The State's failure to disclose its arrangement 

made with a police agent or informer, who testified at trial anc 

who was not prosecuted for an outstanding escape charge Lecause 

" of his cooperation and testimony, violated petititicner's rights 

guaranteed by the due process clause of the Fourteenth Amendment 

and Sections 2-101 of the 1976 Constitution of the State of 

{ Georgia. 

(21) The deliberate withholding from petititioner 

of a statement by defendant, allegedly made to a government 

agent or informer while petitioner was incarcarated and awaitinc 

trial, denied petitioner due process rights guaranteed hy the 

due process clause of the Fourteenth 2Zmendment to the United 

: tates Constitution and Section 2-101 of the 1976 Constitution 

of the State of Georgia. 

(22) Prior to trial, the petitioner filed a motion 

to proceed in forma pauperis and to have benefit of appointed 

“Be 

  Nee = mpl CURES ew mscprems 1S en —ge = . -r .—— - = d > mr — —1 - TIE (3 W— Tre = ee   
 



: 8 , 

  

experts to prepare his defense, including an investigator to 

contact potential witnesses. Less than three weeks prior to 

trial, the State listed 96 additional witnesses which ir night 

call at the trial. The Court's failure to permit petitioner to 

proceed in forma pauperis and to appoint experts and an investi- 

gator contravened the petitioner's Fighth and Fourteenth 

Amendment rights and Section 2-101 and 2-114 of the 1276 

Constitution of the State of Georgia. 

(23) Prior to the commencement of the petitioner's 

trial, the State exhibited petitioner and co-defendants, along 

with one other person,in a highly suggestive display in the 

jury box surrounded by Sheriff's marshals. State witnesses who 

had not previously identified petitioner by photograph or in 

persondid so during their observation of petitioner (the only 

light-skinned person) in the jury box. This display of 

: petitioner, without advice of counsel, and the subsequent 

introduction of witness identification testimony tainted by 

the procedure, violated petitioner's Tights guaranteed by the 

Sixth Amendment to the United States Constitution and Sections 

2-101 and 2-111 of the 1976 Constitution of the State of Georgi 

(24) The trial court's instructions to the jury on 

presumptions of mental states which were elements of the offens 

at the guilt-innocence phase of petitioner's trial violated his 

rights against conviction except upon proof beyond a reasonakrle 

doubt of elements of the offense and shifted to him the hurden 

of persuasion upon issues relating to his mental state in 

violation of his rights under the the Fifth and Fourteenth 

Amendments to the Constitution of the United States, and 

Sections 2-101 and 2-113 of the 1276 Constitution of the State 

I
n
n
 

a 
vs 

of Georgia. A copy of the Court's instructions at both the gu: 

and sentencing phase are attached hereto as Exhibit B. 

{2%} The Assistant District Attorney's knowing, 

calculated and intentional direction to the jury during the 

closing argument at the sentencing phase of petitioner's trial 

Bw 

  BT a iP  —T——— Tr ———— se = ® CC = een ———e— It CS ———— = ——— TE SG = p———- =   
 



    

® 

that, in reaching their decisicon, they should pay particular 

regard te the fact that the aprellate courts had reduced 

petitioner's life sentence on a prior conviction, violated 

petitioner's rights under the due process clause of the Fourteen 

Amendment to the Constitution of the United States, and Section 

2-101 and 2-111 of the 1976 Constitution of the State of Georgia 

A copy of the trial transcript felevant hereto is attached as 

Exhibit C. 

(26) At the trial of the defendant for the murder 

of Officer Schlatt, the State introduced into evidence, over 

defense counsel's objection, testimony from several witnesses 

regarding defendant's alleged participation in other rokberies 

not closely connected in time or manner to the Dixie Furniture 

Store robbery, and for which defendant had been neither indictec 

nor tried. The trial court permitted the State to introduce 

such evidence without prior showing of the probative value of 

the evidence, and without recuiring adequate proof that petitior 

had "engaged -in such independent acts. Further, the trial court 

gave the jury no instructions with respect to the State's burder 

of showing defendant actually participated in the other acts, ar 

gave the jury an overly-broad instruction as to the use the 

jury could make of such evidence. The admission of such 

evidence of independent acts, and the failure to give proper 

limiting instuctions when admitted, contravened petitioner's 

due process rights under the Fourteenth Amendment and Sections 

2-101 and 2-111 of the 1276 Constitution of the State of Georgi. 

‘a copy of the Court's instructions to the jury are attached 

hereto as Exhibit D. 

(27) At the guilt phase of the jury's delibera- 

tions, the trial court gave the jury overly-broad instructions 

with respect to the use which the jury could make of the eviden 

of independent acts of crime, and those instructions contravene 

the petitioner's rights guaranteed bv the due process clause 

of the Fourteenth Amendment and Section 2-101 of the 1976 

on 

  
  

 



° SERENE 0 Shes 

  

Constitution of the State of Georgia. 

(29) Georgia statutory privisons and actual 

practices governing appellate review of death sentences: 

(A.) deny petitione the effective assistance of counse: 

(B.) deny petitioner a fundamentally fair hearing and 

a reliable determination of the issue of life or 

death; and 

(C.) deny petitioner the effective assistance of couns: 

and the basic tools of an adequate defense and 

appeal because of his indigency, 

all in violation of his rights guaranteed by the Sixth, Eighth 

and Fourteenth Amendments to the Constitution of the United 

States and Sections 2-101, 2-109, 2-111 and 2-114 of the 1976 

Constitution of the State of Georgia. 

(30) The means by which the death penalty will : 

administered to petitioner inflict wanton and unnecessary 

torture and torment upon him, in violation of his rights 

Pay guaranteed by the Eighth and Fourteenth Amendments to the 

i Constitution of the United States, and Sections 2-101 and 2-1: 

of the 1976 Constitution of the State of Georgia. 

(31) Petitioner's conviction and the impositio: 

upon him of a sentence of death violate the Sixth and Fourtee: 

Amendments to the Constitution of the United States and Secti 

2-101 and 2-111 of the 1976 Constitution of the State of Ceor 

because petitioner was denied the effective assistance of 

counsel at his trial. Counsel failed to contact witnesses, 

failed to seek a continuance when necessary to adequately 

prepare for trial, failed to object to improper instructions 

to the jury, failed to object to improper arguments to the 

jury, and failed to adequately prepare and present evidence 

at the sentencing phase. 

Vi Previous Proceedings That 

: - Petitioner =as uvndertaken 

rT To Secure Pelief rrom Conviction 

  

  

  

{32) Except as set forth in paragraphs 5-8 of 

om 

  yor -- i bin P-— —— TRO FISD © i TT — WIT) | ST —\ Ty © © ii Fp Sy ————   
 



    

2 Q 

this petition, petitioner has undertaken no other proceedinr 

to secure relief from his convictions and sentences. 

VI. Necessity for a Stay of Fxecution 
  

{33) Petitioner was sentenced to death, and on 

December 19, 1980, the Superior Court of Fulton County set the 

date for his execution for January 8, 1981. Petitioner faces 

irreparable injury if his execution is not stayed. 

Vil. Prayer 

(34) WHEREFORE, PETITIONER RESPECTFULLY REQUESTS 

(A.) that this Court forthwith issue an order staying 

petitioner's execution pending final disposition of this matter 

(B.). that a writ of habeas corpus be directed to respor 

dents; 

(C.) that respondents be reguired to appear and answer 

the allegations of this petititn; 

(E.) that, after a full and complete hearing, petition 

be relieved of the unconstitutional convictions and sentences 

"of death imposed on him; 

(F.) that petitioner be allowed such other, further an 

alternative relief as may seem just, equitable and proper unde 

the circumstances, and 

{s.) that petitioner be allowed to file this petition 

without prepayment of costs, and to proceed in forma pauperis. 
  

Respectfully Submitted, 

[ent Frrpsp 
ROBERT E. STROUP 

1515 Healey Building 
57 Forsyth St. N.W. 
Atlanta, Georgia 30303 

  

JACK GRFENBERG 
JAMES M, NABRIT III 

JOEM CEARLES BOGER 

10 Columbus Circle 
New York, New York 100 

YITORNEYS FOR. THE PETITIC 

  
  

—~ron 
— - —— - 

: —~—vo——w rr y— , . PP (1 TRG pu, tmp © Wm =P pp = 

 



  
EXHIBIT B 

 



  

IN THE SUPERIOR COURT OF BUTTS:COUNTY 

STATE OF GEORGIA 

WARREN MCCLESKEY, 

: HABEAS CORPUS 
¥S. : CASE NO. 4909 

WALTER ZANT, 
SUPERINTENDENT : 
GEORGIA DIAGNOSTIC : 
& CLASSIFICATION : 
CENTER, : 

RESPONDENT 2 

QRDEDR 
  

This habeas corpus challenges the constitutionality 

of Petitioner's destedine Bnd tis imposition of the | 

death sentence By the Superior Court of Fulton County. 

McCleskey was convicted of Murder and two Armed 

Robberies. He was sentenced to death for Murder and 

to life imprisonment for each Armed Robbery. His 

convictions and sentences were affirmed by the Supreme 

Court. McClesky v. State, 245 Ga. 108 (1980). 
  

Certiorari was denied by the Supreme Court of the 

United States. 

The Petition, as amended, contains 36 numbered 

paragraphs, 23 of which allege substantive claims for 

relief (10-27; 29-31; 36-36). The Court will rule on those 

paragraphs containing claims for relief by paragraphs 

corresponding numerically to the paragraphs in the Petition. 

 



  

The record in this hakeas case consists oi the 

transcript of proceedings before this Court on January 30, 

1981; the affidavits of Mrs. Emma Owens, Marie Lamar, 

Thomas Adger, Mrs. Thomas Adger, Myrtle Bates, Dr. 

"William J. Bowers, Kelly Fite, and Russell Parker; 

the discovery file of the prosecution; and the 

transcript and record of Petitioner's trial in Fulton 

County Superior Court commencing on October 9, 1978. 

30. 

In Paragraph 10, Petitioner claims that the 

death penalty is applied arbitrarily, capriciously, 

and whimsically in the State of Georgia and thus 

violates his constitutional rights. 

In support of his contention, Petitioner has 

submitted ihe aZSidavie of winLion. 7: Bevery 

sociologist and co-author of a study on the 

administration of capital punishment in Georgia. 

The Court has considered the evidence but declines to 

adopt Dr. Bowers' conclusion that the death penalty 

is applied in an arbitrary and discriminatory fashion. 

The proffered study does not take into account the 

myriad circumstances and unique characteristics of 

both offenses and defendants which provide impetus 

for sentences imposed. 

The Georgia capital statute has been declared 

constitutional. Gregg v. Georgia, 428 U.S. 153, 96 
  

S.Ct. 2909, 49 L.Ed. 2d 859 (1976). The Georgia Supreme 

Court has already reviewed Petitioner's death sentence 

 



  

and found it was not imposed under the influence of 

passion, prejudice or any other arbitrary factor. 

McClesky v. State, supra at 115. Purther, the Court 
  

found the sentence was not disproportionate considering 

the crime and the defendant. Id. 

Accordingly, the allegation in Paragraph 10 is 

found to be without merit. 

31. 

In Paragraph 11, Petitioner complains that the 

death sentence in Georgia is being exacted pursuant to 

a pattern and practice of Georgia officials to 

discriminate on the grounds of race, sex, and poverty 

in violation of Petitioner's constitutional rights. 

The Court is not persuaded by the report of Dr. 

Bowers. Accordingly, hs raitogart on in Savanah LI 

is found to be without merit. 

32. 

In Paragraph 12, Petitioner alleges that the death 

penalty is an excessive penalty which fails to serve 

any rational and legitimate social interests. 

The Court is not persuaded by the report of Dr. 

Bowers. Accordingly, this allegation is found to 

be without merit. 

13. 

In Paragraph 13, Petitioner contends the death 

sentence is cruel and unusual punishment in light of 

all factors relating to the offense and the offender. 

The Supreme Court has already decided this point 

 



  

4 

adversely to Petitioner. McClesky v. State, supra, at 
  

115. Accordingly, the allegation in Paragraph 13 

is found to be without merit. 

14. 

In Paragraph 14, Petitioner complains of 

constitutional deprivation due to imposition of the 

death sentence stemming from allegedly unfair proceedings. 

The Georgia capital sentencing structure has been 

declared constitutional. Gregg v. Georgia, supra. 
  

Accordingly, this allegation is found to be without merit. 

15. 

In Paragraph 15, Petitioner claims he was denied 

his Sixth, Eighth, and Fourteenth Amendment rights 

because the jury that convicted him did not constitute 

a representative, crosi-santion of ‘the community: 

Specifically, Petitioner contends that two jurors were 

excused without cause because of their opposition to 

the death penalty. 

The Court has examined the voir dire examination 

of jurors Weston (T. 96-99) and Cason (T. 128-130). 

The relevant portions are as follows: 

"QO Now, Miss Weston, are 
you conscientiously 
opposed to capital 

punishment? 

A Yes. 

Q Your opposition towards 
capital punishment, would 
that cause you to vote 
against it regardless of 
what the facts of the case 
might be? 

 



  

A* Yes, I would say so, 
because of the doctrine 

of our church. We have 

a manual that we go by. 

Q Does your church doctrine 
oppose capital punishment? 

A Yes. 

Q So you would oppose the 
imposition of capital 
punishment regardless 
of what the facts would be? 

A Yes. 

Q You would not even consider 

that as one of the alternatives? 

A No, I'wouldn't. 

(Tr. 97-98). 

Q Mrs. Cason, are you conscientiously 
opposed to capital punishment? 

a Yes. 

20 You are? # 

A Yes. 

Q If you had two alternatives 
in a case as far as penalties 
go, that is, impose the 
death sentence or life 
penalty, could you at 
least consider the 
"imposition of the death 
penalty? 

A lI don't think so, no. 1 
would have to say no. 

Q Under any circumstances 

would you consider it? 

2 .No.™ 

{?. 129-130). 

Both jurors indicated they could not impose the 

- death penalty, regardless of what facts might emerge 

 



  

in the course of tne trial. Thus, they were properly 

excluded under Witherspoon v. Illinois, 391 U.S. 
  

510, 88 S.Ct. 1770,:20 L.BEd.2¢ 776 (1968). 

The allegation in Paragraph 15 is found to be 

without merit. 

16. 

The pais ttonen in Paragraph 16 charges that the 

jury which convicted and sentenced him was biased in 

favor of the prosecution. 

The Supreme Court of the United States has 

already rejected this "prosectuion prone" argument 

in Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 
  

  

17838, 20 L.Ed.24 797 (1968). See also Douthlit v. 

  

State, 239 Ga. 81, 87 (1977) ; Hawes v. State, 240 

gsi WIBYLSINR LS Ts sold 

Accordingly, this allegation is found to be without 

merit. 

7. 

In Paragraph 17, Petitioner claims harm from the 

trial court's failure to instruct jurors with 

conscientious and/or religious scruples against 

capital punishment to subordinate their personal views 

rather than said jurors being excused. 

The Court has concluded that said jurors were 

properly excused. (See Paragraph 15). Accordingly, 

this allegation is found to be meritless. 

 



  

18. 

In Paragraph 18, Petitioner contends his 

constitutional rights were violated by the intoduction 

Of his post-arrest statement ver after an allegedly 

illegal arrest. 

There is no evidence to suggest Petitioner's 

arrest was illegal. Additionally, the Supreme 

Court has already decided Petitioner's statement 

was properly admitted. McClesky v. State, supra, 
  

at 112(3). Accordingly, this allegation is found to 

be without merit. 

19, 

See Paragraph 18. 

20. 

his constitutional rights because of the State's 

failure to disclose its arrangement with an informer 

who testified at Petitioner's trial. More specifically, 

Petitioner claims that the testimony of Offie Evans 

was given in exchange for a promise from an Atlanta 

Police Bureau detective that he would give a favorable 

recommendation for Evans who had federal escape charges 

pending. 

Mr. Evans at the habeas hearing denied that he 

was promised anything for his testimony. (H.T. 122). 

He did state that he was told by Detective Dorsey 

that Dorsey would "speak a word" for him. (H.T. 122). 

The detective's ex parte recommendation alone is 

not sufficient to trigger the applicability of Giglio 

v. United States, :405 U.S. 150, 92 8.Ct. 763, 31 L.P&.2é 
  

- a em Pm am em oem 

 



The prosecutor at Petitioner's trial, Russell J. 

  

Parker, stated that he was unaware of any understandings 

between Evans and any Atlanta Police Department 

detectives regarding a favorable recommendation to be 

made on Evans' federal escape charge. (Parker Deposition, 

p. 9). Mr. Parker admitted that there was SerorEunity 

for Atlanta detectives to put in a good word for Evans 

with federal authorities. {1d., p. 19). However, he 

further stated that when any police officer has been 

killed and someone ends up testifying for the State, 

putting his life in danger, it is not surprising that 

charges, like those against Evans, will be dropped. (Id.). 

In the absence of any other evidence, the Court 

cannot conclude an agreement existed merely because 

of the subsaquent disposition of criminal charges. 

against a witness for the State. See Fleming v. 
  

State, 236 Ga. 434, 438 (1976). 

Accordingly, the allegation in paragraph 20 is 

found to be without merit. 

2. 

In Paragraph 21, Petitioner alleges that his 

Fourteenth amendment rights were violated by the State's 

deliberate withholding of a statement made by Petitioner 

to Offie Evans. 

This claim has already been decided adversely to 

Petitioner. McClesky v. State, supra,at 112 (4). 
  

Therefore, the allegation is found to be without merit. 

 



22. 

  

In Paragraph 22, Petitioner claims he was denied 

his Sixth and Fourteenth Amendment rights by the 

trial court's failure to grant his Motion to proceed 

in forma pauperis and for funds to employ experts 

to aid in his defense. Specifically, Petitioner 

complains of harm from the lack of an investigator 

and of a ballistics expert. 

Petitioner charges that the need for an investigator 

became more critical when the State served him with an 

additional list of 96. "may call" witnesses approximately 

three weeks prior to trial. Defense Counsel Turner 

testified at the habeas hearing that the list was for 

all three defendants (H.T. 31) and the State did not 

call all of them. (H.T. 40). Further, Counsel went. 

over the list with Pevisiohir tolieatn whether ver Lions: 

knew any of the witnesses or what their testimony could 

be. (H.T. 34). 

It is clear that defense counsel had access to the 

prosecution's discovery file which included statements 

from all witnesses (except Evans) and investigative 

reports (H.T. 38; Parker Deposition, p. 4) and Georgia 

State Crime Laboratory reports (see Discovery File). 

While an investigator may have been helpful, the 

Court cannot conclude Petitioner was harmed by the 

failure of the trial court to appoint an investigator, 

especially in light of Petitioner's defense that he 

was not even present at the robbery. (H.T. 57; 58). 

 



  

As to a ballistics expert, the State's witness, 

Kelly Fite, testified that the murder weapon was 

probably a .38 Rossi, but no weapon was ever 

recovered or introduced at trial. (H.T. 44-45). 

Mr. Fite stated that his opinion was based on an 

accumulation of data for several years plus a check 

with the F.B.I. record file in Washington. (Fite 

Deposition, p.. 4). Mr. Fite also stated that only 

two other type weapons were possibilities. (1d., Bai 7), 

Even if another expert had testified, it is doubtful 

that such testimony ua have sufficiently refuted 

the totality of evidence against Petitioner. 

The appointment of expert witnesses lies within 

  

the discretion of the trial court. Westbrook v. State, 

242 Ga. 151 (1978); Crenshaw Vv. Stat=z, 244 Ga. 430 o
f
 

  

(1979). Denial of the Motion for the appointment 

of experts will not be reversed in the absence of an 

  

abuse of that discretion. Patterson v. State, 239 Ga. 

409 (1977); Westbrook v. State, supra. 
  

Here, Petitioner demonstrated no special need 

for the appointment of an investigator, nor did 

Petitioner request the appointment of a ballistics 

expert. In the absence of any evidence of abuse, 

the trial court's decision not to grant Petitioner's 

Motion appears to be a proper one. 

Accordingly, the allegation in Paragraph 22 is 

found to be without merit. 

23. 
  

In Paragraph 23, Petitioner claims that a highly 

 



suggestive line-up occurred prior to the commencement 

  

of his trial which violated his Sixth Amendment 

rights. 

This issue has already been decided adversely 

to Petitioner. McClesky v. State, supra, at 110(2). 
  

Petitioner has presented no new evidence to indicate 

that the Supreme Court's conclusion was in error. 

Accordingly, this allegation is found to be 

without merit. 

24. 
In Paragraph 24, Petitioner argues that the Jury 

instructions concerning intent impermissibly shifted 

the burden of persuasion to Petitions in violation 

of his Fifth and Fourteenth Amendment rights. 

| mes velevant portion of the jury charge is as 

follows: 

"Now, in every criminal 
prosecution, ladies and 

- gentlemen, criminal intent 
is a necessary and material 
ingredient thereof. To 
put it differently, a 
criminal intent is a material 
and necessary ingredient 
in any criminal prosecution. 

I will now try to explain 
what the law means by 
criminal intent by reading 
you two sections of the 
criminal code dealing with 
intent, and I will tell you 
how the last section applies 
to you, the jury. 

One section of our law says 
that the acts of a person 
of sound mind and discretion 

are presumed to be the 
product of the person’s 

will, and a person of sound 

 



  

mind and discretion is 
presumed to intend the 
natural and probable 

consequences of his acts, 

but “both:of these 
presumptions may be 
rebutted. 

I charge you, however, 
that a person will not 
be presumed to act 

with criminal intention, 
but the second code 

section says that the trier 

of facts may find such 

intention upon consideration 

of the words, conduct, 

demeanor, motive and all 

other circumstances 

connected with the act for 

which the accused is prosecuted. 

Now, that second code section 

I have read you has the 

term the trier of facts. In 

this case, ladies and gentlemen, 

you are the trier of facts, 

and therefore it is for you, 

the jury, to determine the 

guestion of facts solely irom 

your determination as to 

whether there was a criminal 

intention on the part of the 

defendant, considering the 

facts and circumstances 

as disclosed by the evidence 

and deductions which might 

reasonably be drawn from those 

facts and circumstances. " 

(T. 996-997). 

The jury instruction in this case clearly indicates 

that the presumption could be rebutted so that the 

presumption created was merely a permissive one. Such 

permissive presumptions have been held valid. Skine v. 
  

State, 244 Ga. 520 (1978); Moses v. State, 245 Ga. 180 
  

(1980). Sandstrom v. Montana, 442 U.S. 510, 959'S8.Ct. 2450, 
  

61 L.Ed.2d 39 (1979), is readily distinguished on the 

 



ground that the jury "were not told that the presumption 

  

could berrebutted....” 61 .1L.Fd.28 at 46. 

Accordingly, the allegation in Paragraph 24 is found 

to be without merit. 

25 

Petitioner charges in Paragraph 25 that the 

prosecution impermissibly referred to the appellate 

process in his argument during the sentencing phase 

in contravention of Petitioner's constitutional rights. 

The relevant portion of the prosecutor's argument 

is set out in the Appendix. (See Appendix). 

Ga. Code Ann. 827-2206 prohibits counsel in a 
  

criminal case from arguing before a jury that a 

defendant, if convicted, may not be required to suffer 

the full penalty imposed because of the possibility : 

of executive clensncy. Hote, ihe prosecution Sol. 

the talismanic words "appellate process”, but it was in 

reference to a prior life sentence Petitioner had 

gotten reduced, not to the possibility that a life sentence 

could be reduced if the jury decided to impose such a 

sentence. Since the words referred to a past conviction, 

the Court cannot conclude that the words had the 

inevitable effect of encouraging the jury to attach 

diminished consequence to their verdict and take less 

than full responsibility for determining life or death, 

an effect found improper in Prevatte v. State, 233 Ga. 
  

929(6) (1973). 

“l3= 

 



The prosecution may argue for a death sentence 

  

and offer plausible reasons for his position. Chenault 
  

v. State, 234 Ca, 216 4{7)41975); Street v. State, 
    

237 Ga. 307, 315 (1976); Cates vy. State, 244 Ga. 587, 595 
  

(1979). Here, the remarks of the prosecutor appear 

to be within the bounds of proper argument. 

Accordingly, the allegation in Paragraph 25 is 

found to be without merit. 

26. 

In Paragraph 26, Petitioner alleges that the trial 

court improperly admitted evidence of other robberies 

of which Petitioner had not been convicted and without 

adequate jury instructions which violated Petitioner's 

rights to due gtocels of law. 

‘The Supreme Court has alrezdy decided the 18dne of : 

admissibility adversely to Petitioner. McClesky v. State, 
  

supra, at 114(b). In deciding that issue, the Court 

also noted that the trial court had charged the jury 

as to the limited purpose for which the similar crimes 

were admitted. In that the trial court cautioned the 

jury as to the limited purpose for which the acts were 

admitted at the time of admission (T. 673-674; 885) and 

repeated the same cautionary instruction in the jury 

charge at the end of the guilt/innocence phase (T. 992-993), 

the Court does not find Petitioner's rights were 

contravened in any way. 

Accordingly, this allegation is found to be without 

merit. 

 



  

27. 

In Paragraph 27, Petitioner claims violation of his 

rights guaranteed by the due process clause by the 

alleged overivibicad instructions regarding the use 

which the jury could make of the evidence of 

Petitioner's other acts in the guilt phase. 

See Paragraph 26. 

This allegation is found to be without merit. 

29, (sig) 
  

In Paragraph 29, Petitioner charges that the 

Georgia appellate caviey process denies him effective 

assistance of counsel, a fundamentally fair hearing 

and reliable determination of life or death, and the 

basic tools to prepare an adequate defense because of 

its tndlighrey.. inlet Sindee Lo | 
The Georgia capital sentencing structure has been 

declared constitutional. Gregg v. Georgia, supra. 
  

Accordingly, this allegation is found to be 

without merit. 

30. 

Petitioner claims in Paragraph 30 that the means by 

which the death penalty will be administered will inflict 

wanton and unnecessary torture upon him in violation 

of his Eighth and Fourteenth Amendment rights. 

The Georgia death statute has been declared 

constitutional. Gregg v. Georgia, supra. 
  

Accordingly, this allegation is found to be without 

merit. 

wl Sw 

 



  

3%: 

In Paragraph 31, Petitioner claims that he was 

denied effective assistance of counsel in violation 

of his constitutional rights. 

At trial and on appeal, Petitioner was represented 

by Jchn M. Turner. Mr. Turner has been serving as 

Assistant District Attorney in Fulton County since 

January 8, 1981, (H.T. 24). Prior to joining that 

staff, Mr. Turner was in private practice for 

appoximately five years (H.T. 24), a practice which 

consisted of roughly 80% criminal work wherein he 

tried approximately 30 murder cases (H.T. 82). 

Prior to entering private practice, Mr. Turner served 

as Assistant United States Attorney in the Northern 

District of Georgia for two years. (H.T. 24). He was 

retained to represent Petitioner a few days after 

Petitioner was initially arrested, about one week before 

Petitioner's preliminary hearing. (H.T. 26). 

The Court has reviewed the evidence and found the 

following allegations to be without merit: 

1. Counsel failed to contact witnesses. Mr. Turner 

testified at the habeas hearing that he had had fairly 

extensive pretrial conversations with the prosecutor and 

had discussed a good bit of the information contained 

in the prosecutor's discovery file. (H.T. 29-30). 

He also had access to the discovery file which contained 

the statements of all witnesses except Offie Evans (H.T. 34) 

and had an agreement with the prosecution to obtain copies 

vf actual statements of witnesses for cross-examination 

ER [i ~p. 

 



  

purposes. {H.T. 38). Mr. Turner testified that he 

did not interview any employees of the Dixie Furniture 

Store prior to trial because he had opportunity to 

cross-examine the three employees who testified at the 

preliminary hearing (H.T. 35) and that the other 

employees who testified at trial gave testimony periphereal 

to the main issue and Petitioner's defense at that point 

was that he was not at the store during the robbery. 

(H.T. 37). Counsel did not interview investigative 

officers because he had full access to their 

investigative reports contained in the prosecution's 

discovery file.  (H.T. 37). Purther, Counsel went 

over the witness list with Petitioner to see whether 

Petitioner knew any of the people .or .the type testimony 

they could give.’ (H.T. 34). Finally. Counsel asked 

Petitioner for the names of alibi witnesses, and 

Petitioner responded with one nickname of a person 

with whom he had been unable to get in touch. (H.T. 89). 

Decisions on which witnesses to call, whether and how 

to conduct cross—examinations, and all other strategies 

and tactical decisions are the exclusive province of the 

lawyer after consultation with his client. Reid v. 

State, 235 Ga. 378 (0975). In light of all the above 

factors, the Court cannot conclude Counsel was 

ineffective merely because he did not physically 

pursue witnesses. Accordingly, this allegation is 

without merit. 

-l7= 

 



  

2. Counsel failed to seek a continuance when 

necessary to prepare adequately for trial. 

Counsel testified that he had "fairly extensive" 

contact with Petitioner prior to both the preliminary 

hearing and trial, meeting with Petitioner well over 

a dozen times, three times prior to the preliminary 

hearing. {(H.T. 27). He also stated that from his 

extensive discussions with the prosecution, he had 

a "pretty good grasp of the facts.” (H.T. 43). He 

also said that although he looked at the prosecution's 

discovery file only once, he got everything he needed. 

Effectiveness is not measured by how another 

lawyer might have handled the case. Estes v. Perkins, 
  

  

225 Ga. 268 (1968); Jones v. State, 243 Ga. 820. (1979). 

In addition, the issue of whether dounsel should have 

moved for a continuance and for mistrial after an alleged 

suggestive line-up occurred on the morning Petitioner's 

trial began constitutes the kind of hindsight which has 

never provided the basis for ineffective assistance 

claids. MacRenna v. Elliz, 290 F.2d 582 (Sth Cir. 1960); 
  

Pitts v. Glass, 231 Ga. 638 (1974). 
  

3. Counsel failed to object to improper 

instructions to she jury. 

The Court has concluded that the jury instructions 

were neither burden-shifting (see Paragraph 24) nor 

overly-broad (see Paragraph 27). Petitioner's claim 

is meritless. 

-18- 

 



evidence that did not exist. 

  

The Sixth Amendment right to counsel means 

". ..not errorless counsel, and not counsel judged 

ineffective by hindsight, but counsel reasonably 

likely to render and rendering effective assistance. 

MacKenna v. Ellis, supra; Pitts v. Glass, supra. 
  

  

Petitioner's trial counsel easily meets this 

test. He was experienced in the trial of criminal 

cases. He prepared for and advocated Petitioner's 

cause in a reasonably effective manner. Counsel's 

testimony shows him to have been an intelligent and 

concerned defense lawyer. The effort he put forth 

for Petitioner was certainly reasonably effective within 

the meaning of the standard. | 

5 Accordingly, the allegations in Paragraph 31 

are found to be without merit. 

25. 

In Paragraph 35, Petitioner complains that the 

introduction of his statements made to Offie Evans 

were elicited in a situation created to induce 

Petitioner to make incriminating statements in 

violation of his Sixth Amendment right to counsel. 

The Supreme Court has already decided that the 

testimony of Evans was properly admitted. McClesky v. 
  

State, supra, at 11214). This Court has concluded 

that there was no arrangement made for the testimony 

of Evans. (See Paragraph 20). Petitioner has presented 

no evidence tending to show that his statements were 

elicited in violation of his Sixth Amendment rights. 

Accordingly, this allegation is found to be without 

 



4. Counsel failed to object to improper arguments 

  

to the jury. 

The Court has concluded that the prosecutor's 

remarks were not improper (see Paragraph 25). Petitioner's 

claim is meritless. 

5. Counsel failed to prepare adequately and 

present evidence at the sentencing phase. 

Counsel testified that prior to A he went 

over Petitioner's background with him, schools he had 

attended, who he knew. (H.T. 80). He also asked 

Petitioner if he had any witnesses or anyone to 

testify as to his character. He also discussed 

the same matters with Petitioner's sister, who 

declined to testify and told Counsel that her mother was 

not able to testify... (H.T. 80). Counsel alsa . 

testified that Petitioner refused to testify in 

his own behalf during the sentencing phase. (H.T. 94). 

Petitioner presented conflicting evidence to the 

extent that Petitioner's sister testified she was 

not asked to testify or to provide the names of potential 

character witnesses (H.T.136-137). Petitioner also 

presented the affidavits of five persons who indicated 

they would have testified for Petitioner had they been 

asked. 

Despite the conflicting evidence on this point, 

however, the Court is authorized in its role as fact 

finder to conclude that Counsel made all inquiries 

necessary to present an adequate defense during the 

sentencing phase. Indeed, Counsel could not present 

=1G 

 



  

- 

36... 

Petitioner claims in Paragraph 36 that the 

evidence upon which he was convicted was Lneurictiens 

to show his guilt beyond a reasonable doubt in 

violation of his constitutional rights. 

The Supreme Court has already decided that the 

evidence supports the finding of aggravating 

circumstances, the finding of guilt, and the 

sentence of death beyond a reasonable doubt. McClesky 
  

  

v. State, supra, at 115, 

Accordingly, this allegation is found to be without 

merit. 

WHEREFORE, all allegations in the Petition 

having been found without merit, the Petition is denied. - 

this PP day of april, 1981. 

Ge Gide.   
  

ALEX CRUMBLEY 
JUDGE SUPERIOR COURTS 
FLINT JUDICIAL CIRCUIT 

 



  

APPENDIX 
  

Now, what should you consider as you are 

deliberating the second time here, and I don't 

know what you are going to consider. 

I would ask you, however, to consider several 

things. Have you observed any remorse being exhibited 

during this trial by Mr. McClesky? Have you observed 

any remorse exhibited while he was testifying? 

Have you observed any repentence by Mr. McClesky, 

either visually as you look at him now or during the 

trial or during the time that he testified? Has he 

exhibited to you any sorrow, both visually or during the 

time that he was testifying? 

Have you seen any tears in his eyes for this 

act that he has Sons’ a A | 

I would also ask you to consider the prior 

convictions that you have had with your in the jury room, 

and particularly the one where he got three convictions. 

I believe if you look at those papers carefully you 

are going to find, I think, on one of those he got three 

life sentences to begin with, and then there is a cover 

sheet where apparently that was reduced to what, eighteen 

years or fifteen years or something, which means, of 

course, he went through the appellate process and 

somehow it got reduced. 

Now, I ask you to consider that in conjunction 

with the life that he has set for himself. 

You know, I haven't set his goals, you haven't 

 



  

set his goals, he set his own goals, and here is a 

man that's served considerable periods of time in 

prison for armed robbery, just like Ben Wright said, 

you know, that 1s his profession and he gets in 

safely, takes care of the victims, although he may 

threaten them, and gets out safely, that is what he 

considers doing a good job, but of course you 

may not agree with him, but that is job safety. 

I don't know what the Health, Education and 

Welfare or whatever organization it is that checks on 

job safety would say, but that is what Mr. Ben Wright 

considers his responsibility. 

Now, apparently Mr. McClesky does not consider 

that his responsibility, so consider that. The life 

that he has set for himself, the direction that he has 

set his sails, and thinking down the road are we going 

to have to have another trial sometime for another peace 

officer, another corrections officer, or some innocent 

bystander who happens to walk into a store, or some 

innocent person who happens to be working in the store 

who makes the wrong move, who makes the wrong turn, that 

makes the wrong gesture, that moves suddently and ends 

up with a bullet in their head? 

(2. 1019-1020). 

ii. 

 



  
EXHIBIT C 

 



    

    

  

  

  

      

Aoplizstion No,"  —hacS 

3 p : THN - 7 Bi - i - 5 il TT =r en 

5 AR, hig - E> gh go 
: — ah 3 - 

2 — 4 — 
—. - 

. ”; : - -—" - .  ~ “zy J - = 

4 Sr atem 1 Sy S PREME L€ URT OF CEORGIA : < - 

= 1 3 r= 3 = 1a z 

- - - mi VIL aNT A une 17, 1581 

TW F The bl real. Spero © ure nee ITER gh EY li be - 
: F i 

4 

- - 3 - 

Tag aii The ful ovr 2 onder was esis 

gh 2 WARMER McCLISKEY ¥ wal TER CANT, SUPT. ; 

Yo onle ’ : : - - 

- N, 

ae : # - 5 ah ; 9? 

ag ab , : 
pti Ee 4 3 - 

-»32 3 _ toon ceoms:derzzion of tha application for 2 certificazs—of 

: : =" 
- 

- ® - . - . 
- - - if - 

Rerws. probanlie cause vo zzp2al filed in Lois 35%, Lt is orderac tlzt 1t 

i = 3 - Sk i : J - 

£1 Se nerzly ¢znisd ye. ; i 

-— - 
A -— - 

- 4 : — ) Ee - . L -~ 1d 
ps 

’ 
= = - ® 

: 
4 

* 50 a : SUPREME COURT OF THE STATE OF GEGRGIA. 2 

- EF - - : CLERn’s OFFIC. ATLANTA. 7 

- 

- - 

wits f eelid : : : > 1 certify thar the above i: i Irie exirall TIM ihe MINUIES 

A rer Ci : 3 g oi the Supreme Cour: oi GeorZin is 

ed na TE - : : : 
: oo . - < 

- - 

p nin 3 : 
2 . - .“ N Pap + 

. 3 . } ; Witness my sicniiure and the sea: of SAIC cow neretc allixed 

: bY § the dav ané veur last - 

: halal gr ; - 4 ) J y * Cleri 

- .- Shi : ay inkl SJ Yad 2 2 RORY - 

PE : he 
A Pl <'™ : = - : - 

> : - pr gn ae Tm = eT a an Sp Vi 7 prt ioe 1 SNE Si Gaps EET TL 2 - 

% 5 RI: aT i, a7 Gao > 2 : we . gh . . i = %     - . - -. . - - -



  
EXHIBIT D 

 



| 
P
E
 

[ #4 

| 
fg 

“
o
n
a
n
 

go 
sn 

5
0
 

; 
p
o
 

Howie 
F
o
o
d
 

W
w
 

9 
o
t
a
.
 

0 
4 

nm 
0 

oH. 
0 

Bh 
5 

h
o
w
 

rd” 
J
 

ro 
Ay 

cd) 
O 

u 
0 

Ie 
m 

Oo 
O 

! 
| 

Tl 
| 

| 
' 

; 
NY) 

a
 

; 
°
«
3
 

4
)
 

0
 

! 
[a 

W) 
E
 

wl 
W
A
T
E
 

ho 
lr 

SEE 
a
 

ae 
| 

| 
[ 

Tlie 
a 

a 
oo. 

W 
oa 

4 
° 

5 
vr 

: 
@ 

> 
SE 

o> 
fi 

3 
Ls 

l
h
 

o
t
 

X 
| 

' 
: 

: 
) 

,- 
: 

%, 
t" 

yy 
; 

| 
fh: 

9 
ph 

(37) 
* 

ui 
6 

TE 
a 
x 

mn 
6 

=
 

' 
1 

= 
Te) 

oO 
I 

&
 

o
 

) 
TR 

P
Y
 

| 
QQ 

un 
| 

H
e
 

=
 

: 
\ 

. 
0 

' 
LJ 

1 

J 
A 

bb, 
W
A
 

0 
O 

T
E
R
 

LT 
| 

To 
Tg 

8: 
6 

go 
3 

4 
8. 

8 
9
0
 

B
e
 

4 
>
 

: 
i 

(& 
3 

e
d
 

'
 

[1 
[5 

ia 
R
E
 

. 
h
a
 

v
 

0 
y 

] 
4
 

O
 

: 
| 

a
 

>
 

$4 
qa 

0
 

! 
9% 

* 
4
J
 

(7) 
#
4
 

o
t
 

; 

J 
, 

= 
w 

a4 
OO 

O 
Pv... 

o 
al 

vw 
EB 

Ve 
py: 

i
P
 

as 
A
G
.
 

M
8
 

Te 
! 

O 
Ai 

' 
B
a
 

; 
Ww 

e
r
 

ed 
oo 

(1 
9) 

An 
yi 

.
 

oJ 
OQ 

bo, 
| 

| 
et 

rE 
PYRE 

TRE 
H
l
 

LE 
et 

N
o
g
 

O 
i 

; 
3 

a 
0: 
O
0
0
 

A 
"
2
 

R
E
 

; 
[7)) 

Ee 
0
 

Oo 
[ 

R
o
 

oo 
3
 

0
 
3
0
 

O 
i o- 

[$6] 
4
 

(0) 
44 

'S. 
[g] 

O
 

is 
3 

) 
‘3 

t
T
 

eA) 
0 

1a 
hE 

0. 
OL 

[7] 
= 

O 
4 

2 
4 

: 
a» 

wT, 
QO 

Hong 
«lt 

, 
T
H
)
 

1) 
a
 

>
,
 

O 
-y 

4
 

a 
| 

f 
' 

p
o
}
 

0
M
 

Pa 
| 

e
t
 

w
n
 

x 
SO 

v] 
: 

w
o
o
 

Gf 
0 

oa 
uly 

<
n
 

(in 
e
e
)
 

. 
e
e
 

Ey 
g
i
 

O
Y
 

; 
>
t
 

4
 

S
e
 

I
a
 

' 
+
 

+
 

-o 
pr 

43.3 
|
 

Q
 

«
 

; 
% 

, 
$4 

ta 
SEI 

a 
0 

wu 
+ 

3 
: 

he 
id 

p
o
d
 

o
m
 

bh 
e
a
r
s
)
 

D
p
 

Bi 
R
a
 

Ba 
TREE 

Vv 
) 

| 
O
 

[ 
4 

! 
—
 

r
-
 

o
 

' 
o
 

0
 

| 
0
 

- 
3 

e
d
 

Q
 

¥ 
w
 

3
4
 

e
d
 

i" 
UD» 

CQ) 

| 
y 

(
 

Q
 

o
o
 

! 
th) 

n
 

a
 

3
 

[a 
| 

i 
d
v
 

! 
4
 

' 
4
)
 

13] 
O
 

} 

2 
i 

[A 
29] 

w
 

oO 
L
e
 

r 
3 

[ 
’ 

3 
1Y] 

| 
’ 

(2) 
" 

' 
i) 

ry 
| 

5
 

{[¥) 
+
 

L
A
 

J
 

4 

Ee 
EE, 

bi! 
: 

a 
c 

n
o
o
 

® 
o
a
 

"4 
O 

i 
ah 

O 
i 

5 
| 

=
 

fry 
| 

By 
as 

| 
| 

3
 

ot 
4d 

0’ 
Ly 

P
a
 

q 
v) 

i“ 
: 

y 
3
4
 

3
 

by 
> 

; 
O 

Oo 
x 
K
w
 

W
E
R
 

K
R
 

O 
o 

: 
& 

i 
3 

> 
i
 

Ss 
e
'
.
3
 

o 
a
a
n
 

Cob! 
ig: 

a
a
y
 
m
y
.
 

ES 
wl 

a
8
 

| 
(x) 

w) 
| ® 

- 
on 

ay 
Por 

0 
\ 

x
.
 

F
4
 

A 
Q
 

O
 

° 
od 

HH 
a
 

+4 
Br 

o
 

R
g
 

e
T
 

L
o
a
 

j 
oe. 

S
e
 

By 
a
g
i
n
g
 

0 
Te 

O
u
t
,
 

B 
; 

4 
~ 

j 
O 

ot 
+ 

4
 
a
0
 

0 
0 

0 
Oo 

wm 
4 

J
 

L2 
" 

o. 
: 

- 
2 

om 
a
 

134 
0 

rol 
ts) 

ut 
J 

: 
: 

i 
al 

73) 
. 

| 
i 

qa) 
[79] 

. 
0
 

“
3
 

Q
 

f 
oe 

0
 

LO) 
0
,
 

o
r
d
 

~- 
o
 

: 

: 
AY 

o
H
 

ER 
T
e
 

a 
De 

TH 
TE 

SR 
oh... 

9 
; 

2 
| 

“
X
U
 

OF 
0. 

¥ 
EB 

.. 
a 

Mh 
Ao 

x 
orf 

od) 
PD 

|
)
 

i
y
 

n 
i) 

7 J
 

0 
“ 

vl 
fly 

wt 
oe 

MH 
(&] 

: 

i
 

a
n
 

® 
oO 

£2 
eel. 

Me 
ye 

LY 
I
.
 

L 
iE 

A 
o
d
 

a) 
: 

"
a
 

M
E
 

n
a
e
 

hg 
TS 

Rey 
LE 

boa 
lie 

! 
‘ 

| 
| 

: 
MJ 

| 
iy 

4
)
 

0
 

o
O
 

Py) 
' 

0
 

a
 

P
N
 

F
i
 

:
 

F
Y
)
 

«
 

|
 

nm 
a
b
 

fe 
i 

D
u
 

O
n
 

-t 
W
E
 

o
e
.
 

8 
OO: 

££. 
0 

O
D
 

NM 
~~ 

Q
U
 

“
o
f
 

(1) 
Ty 

y 
t
y
 

, 
0
 

w
v
 

y
 

t
s
 

x 
. 

r
f
 

' 
Q
 

@
)
 

1
,
 

| 
zi 

| 
2 

~ 
M
U
L
 

JS 
EY 

Nn 
19 

= 
te, 

$4 
a 

+ 
U 

B
G
 

w
i
 

| 
: 

4 
(] 

A 
H
O
M
 

"
 

"
 

Yi 
fo 

4
.
 

8] 
ced 

eed 
Q 

+1 
re 

TR 
* 

3 
o
a
 

R
O
R
 

NLS 
v
l
 

wt 
To) 

P
 

£
 

Ie 
0) 

o 
$$ 

I 
Oo 

LX SR 
S
E
 

i» 
SS 
c
o
0
 

Ke 
Oo 

“@ 
; 

3 
- 

IY) 
iB 

| 
wy 

13 
& 

L
O
 

6 
U 

0 
4 

3 
oO 

3 
o
.
o
o
 

Mm 
HO. 

.6 
o
t
 

Prey 
hy 

po 
pb 

A
.
B
 

ne 
Mm 

a
 

| 
o
r
t
 

I 
A
 

@ 
: 

; 
0
 

0 
oo 

-
 

43 
' 

CE 
¥ | 

4 
3 

w
o
 

L
o
,
 

4
)
 

N
y
 

r
d
 

n
 

Q
 

' 
o
r
d
 

a
j
 

| 
$
+
 

[
9
 

0
 

e
e
d
 

4
 

4 
-
 

' 
o
r
d
 

. 
0
 

Hi 
£ 

U
)
 

1
)
 

! 

0 
> 

0 
Oa 

4 
@O' 

O 
pol 

Oo 
43 

0 
oo 

«
a
 

o
S
.
 

i 
[ 

' 
=
u
 

fe 
ge 

”, 
& 

‘hm 
W
D
 

a 
MD 

~
~
.
 

43 
& 

(o] 
' 

| 
| 

a 
s 

M
a
w
 

a 
oN. 

ua 
QO 

9 
W
n
 

>» 
on 

OO 
Ww 

[o 
ot 

| 
‘ 

| 
w
o
t
 

D> 
l
t
 

"
 

' 
o
 

Y
 

3
 

ot 
S
d
 

e
t
 

«A 
O 

@ 
+
 

od 
+
 

1 
I 

| 
(a) 

te 
4 

I 
t
s
 

in 
: 

L
 

Iv 
D
 

a
 

' 
ro 

EY) 
' 

w
 

[®) 
C
G
.
 

w
d
 

| 
5 

f
f
 

RE 
Ll 

GE 
o
n
a
 

rg. 
meogle 

of 
2
 

bg 
fy 

v
e
 

'
Q
 

D
e
t
 

H
W
 

a 
y
d
 

1
8
.
0
0
0
 

0 
’ 

ww 
W
O
 

Ls, 
Pr 

SE 
I 

SY: 
¥ 

OO. 
vw 

>
'
e
d
 

0 
0
4
 

| 
i 

| 
. 

‘ 

 



  

- or of this State otherwise reguires or unless any J 

= - the petition is assigned, on considering a sud ubsequant petition, = 

Ar ginie ‘grounds. fox relief asserted therein which could not 

reasonably have been raised in the original or amended petition.” 

OCGA 9-14-51. In considering a successive petitd O bo
 | or
 

oy
 

] 

ty
 om
 vl
 

0 nv 7) 

  

court must determine, as a threshold matter, whether esi el TE 

petit tioner is entitled to a hearing on the merits of his belated 

  

  

iG Smith v. Zant, 350 Ga." 645, 647 (2) (1983), citing Dix v. 

  Zant, 24% Ga. BIO, 811 (1382), and Smith v. Garner, 236 Ga. 81 
  

(1876). In order to be so entitled +thz petitioner must raise 

grounds which are either constitutionally nonwaivable or which 3 

could no* reasonably have been raised in the orig 

Fuller v. Ricketts, 234 Ga. 104 (1975). Ta eo is od 
  

3 _ petitioner -is now before this Court raising seven claims 

which } he contends violate his rights as gusrantess by the Georgia 

Constitut ien and by the Sixth, Eighth, and Fourteen nth zmendments 

to the United States Constitution. First, Petitioner alleges 

- that the Fulton County rosecut ors - systematic use of his 

on
 0 

‘n
N Le
) 9 4
 
-
 

< [1M
] 

(o
x 

r 
py 

J 

on
 

)
 

m
e
 

WR
 x ) 

tf
 

[1]
 

14 
)] 

4]
 

QO
 

= per eRptory challenges to strike 

sentative jury, guarantzed by the Sixth and Fourteenth Amendments 

ho thé United Stas es Const} tution; and that this action by the™ 

 



  

rosacutor also violated hig right to sgual protection of the 

laws, guaraniead by the Fourteenth Amandient to the United States 

-tern and practice of Georgia pr csecutors; courts, Judges, and - 

juries, both statew yids and in Fulton County, to disecr -iminate 

against black defendants and against these whose homicide victims 

are white, ard that this imposition is in violation of the Eighth 

and Fourt epnth Amendments to the United States Constitution. In’ 

his third claim, Petiticner al 

guafanteed by the Fourteenth Amendment to the United States Con- 

titution, Petitioner alleges in his fourth clzim that the 

trial court's denial of Petitioner's motion for funds for the 

employment of a ballistics expert Yiciages wi process rights’ 

guaran teed ‘by the Fourteenth Amendment to the United States Con- 

Prosecutor's deliberate references to appellate review during the 

closing argument at the penalty phase of Fetitioner's trial and 

his specific invitation to the jury to consider the fact that - 

Petitioner's prior life sentence had been reduced by the gppel~ 

late courts, violated his right tc be free of cruel and unusual 

sunizhnent and hi s right to due process of law, guaranteed by the 

Eighth and Fodrtesnth dherdments. ot © the United States Constitu- 

 



ad - by counsel at 

10 ner to - 
- citd do ze 

  

every 1 

an xing as y. WOEX I 
K - 
ac ced 

8 inlation © * Novi 

enément ss. Lae 
at nd Fourteenth Ar fli 

b] ly have been ~ = reaso: ous petition or could not i . WV 

ich rd y Ta 1 ‘ ' Was y % ; o 

- viously since they are founded on "rew law" or on cases wh 

bd 
ne 

Ipus w since Petitioner's first state habeas co - 
“de have changed the 

£ 
- 

petition. 

the doctrine © that 

ma rpus hakezs co ble to Ca ta is appl ica 
» 

eS 

ms are based on a change in the 

u 

ed ¢ 

ud   

the reassert 

phi 

D
h
 

“ 
=f, 

: 
J
i
n
g
l
e
 

ha 
pod 

“
i
 0
 

[7)] 
0 

=~ 
0 

Li 
: 

po 
3 ns 

4
3
 

v4 
uw 

2 

lai 

ep   

  

Ken- Batson Vv. en   

 



  

50 jurors, 40 were whit te and 10 were black. ~Fetitioner al 

< Ta . ey = XN = d y _ hb 

Taclally neutral grounds on which to distinguish tiem 2s proszecs 

tive jurors from white jurors who were not struck. Finally, 

“Petition er alleges-that "(tihis -stark.pattern of racial exclu- 

  

  

Respondent argues that, since this claim has never been 

raised before, and the claim was available prior to Batson, this 

claim could have been raised previously and, therefore, should 

‘not be considered. on its merits. Respondent further alleges tha 

Batson merely changes the stand rd by which to prove thi .S claim. 

  

Petitioner alleges that he should be 2ble to raise this 

claim in his present petition since Batson, supra, represents a 

  

significant change in the Law, citing Jarrell v. Zant, 348 Ca. 

  

  

492 (1581) and Tucker Vv. Kemp . 236 Ga. 5731 {3387%, Pet itioner . 

  
also asserts that the holding in Allen v. Face, ond BeBe oy $2 

  

Me. E%.24 12 9 J158E0, on the guestion of retrospective application 

‘and state courts have considered this issue in capital cases, and 

these courts have found wm not to apply retrscactively. High 

 



kad A 

Sel 
~<e wien v, F 

202 

a, 
‘ 

0 U.S. 380   

- 

srior court 
dw 

SRP, 

a a rE 

claim to ba 

  

iolation Of the 

r Clause of the Fou an 
- [3 Rn co+acti io, va 

- and of the Eguau 

the United § he Const 

4d of ion isus o 
- to 

leges that he In suppert of this claim, Peti 
- 

ang stical evidence, through exhibits 

test live imOny, 

a capital cases, eorgi ”~ 
hd 

er 
4 

£i0 preme Court has held that a habeas peti 
RA 

d States Su 

= - 

. could prevail under the Fourteenth Amendn ng. that thé. id 
| 

DS ent by prov 
PCsSe., 

siosn-nikers 
tory - 

se 

ort 

5s case ac anni 
[] 

[1 

Rd 

pur 
- 

ts to the prosecutor's deliberate and 
~oin 
i. Finally, Petitioner 

his peremptery ¢ha £ 
rs exXarc ise Oo 

¢ and ed 
N 

oenam J 
Ft ighth E y the kind of cisel 

ila | ARSE violas 
cl 

 



  

statutes. was hot clarified-until %he United States Supreme Court 
- 

  

and Cecided adversely to Fstitioner, and, therefore, that ft & 

now res 3udicata. Respondent alleges that there is no new law 
  

taxe this issue cutside the principles of res iudicata. This 
  

Course egraes. : 

< ; | : an 

. Petitioner allages that the State's failure to disclose i 

[ 
po
de
 

decided-¥cCleskay, supra, on April 22, 1987. Patitionar contands 

to 

ts 

_agreenent with jail inmate "Ophie" Evans, a Xey witness against 

- Petitioner, violated Petitioner's right to the due process of 

- law, guaranteed by the Fourteenth Amendment to the United States 

Constitution, Petitioner alleges that the State produced no © 

who witnessed the shooting of Officer Schlatt and the murder 

weapon was naver recovered, Petiticner's co-defendant Ben Wright 

testified that Petitioner may have been carrying the pistol 

likely to have been useé in the crime, Further, this same wit 

ness, Ben Wright, and Ophie Evans both testified that Petition 

admitted to them that he shot Officer Schlatt. 

 



  

pl
 

FE Se VEE Roa mdm dm iB a SI ro) lead States Constitution and the law of 

  

  

  

  - raised and decidad advarsely to Fetitionar, Order, MeCleskey v. 

Zant, Butts County Superior Court Case Neo. 4303, april 8,-1381,. 
  

  

ages 7-8: see also, McCleskey v, Kamp, 753 P.2d 877, at 884 
J : 2¢ wl 

~ an lileh civ, 13e8iicfen banal, os 

Therefore, the court finds this claim to be barred by the 

doctrine of res judicata. 
  

: Paha fi 

Petitioner alleges that the trial court's denial of his me- 

tion for funds for the employment of a ballistics expert violated 

> "his right to due process of law guaranteed by the Fourteenth 

Amendment to the United States Constitution. Petitioner alleges 

that prior to trial he moved the court for funds for expert wit- 

nesses, that the motion was not granted and that no dslense bal- 

listics expert was appeinted. "Petitioner alleges that the State 

used an expert to link the purported murder wzapon to Petitioner. 

- er ue ww wo tr EF OO FU AL II SE) SE WE SIR THE WD am = 

‘1. Petitioner has also proffered affidavits of two members OF 

Petitioner's trial Jury. (See Petitiocrer'’s Puhibits P &.G). - The 

Court has examined these affidavits and finds them toc Ze Inadmis- 

sible, OCGA Section 8-10-93. : s : Se Ta 

 



.38 Rossi 12 fact carried in 
» 

jeionez had 

  

180 t could a 

4) 

+he olicwed £ 
= Ss Court as corpus ac 2 

iver, evo pe 
-~ 

state han 

witnessas ment of expert oint: 

[971 

§70 U.S. 

Fetitioner-alle 

o be pr 

  

Yaim po, 
vr o> 

law. S$ naw 
= 

$85), dhe 

 } 

( 

Yies within the discretion of the court. 

s issue can now be raised because Ake Vv. 0 Chi 

i
 t ec es this -_~ 

ec 

|
 

Citing this 

£ 
~- “for writ o 1 petition 

= de 
he 

  

s origina 

ent points out tha 

Court's Créer on Petiticner' 

habeas co x 

| 3 Cou his > 
= 
~ 
od pus, Respon hod 

shen 

"Butts County 

im. y ton [] 
dr 

Zant, 

Hy 

rse 

uy V.   MeCleskey   OrSar, 
4809, NC. 

and that it was decided adve 

Case course, 

fore, this Court 

issue, 

 



950 oa. 518 Stata, 

er could not shcw that he ad 

- 

- 

. 

io 

  Tavior Vv. 

etit 

2 of 

nat.» 

= 

[<4 

bl 

in) 

dhe 

he 

“. 
- 

-e88l a 

ral Dring 

  
  

it is . 

{€ aka were considersé n 

nt. factor at trial,...” ic 

es are applicable to reg iter 

n 

Dl 
- prince 

signif 

Eve 

  

a 

  

stics 
[J 

3 
Rs ssue-of ball 

orf demonstrated to the trial court 

<«® 

never 

a.. ho 
- 

he as 

he closing ar- 

  

al, 

+he prosecu~er's 

1] 
- 
do 

dm 
te 

+r 

es of res sudica 

at 

uring 

in his 

é ew 

wo 
a 

& 

4 
oe 

to 1 % 4 a 
- 341 

= 

Ld 

significant facto 

ty phase of Petitioner's 

ntment of a ballisti -appeil 

s barred under the 

he penal 

nces to appellate rev 

n 

ation to the wit 

dence was to be =z avi 

requested the 

gumnent at t 

~al is rights 2s cua 

4
 

 



  

-~ tot: x x a 4 - - ion oh ok 2% a ~Y . - . = - 

BN Tetitioner NAS DIEVIOUSLY 23.584 LALS JLAD ADR 1% was 

XR - . ~~ - 3 4 4 . ET FS J - “a= a a : dacisad advarsely to him in his original pa*itlion for haba3s oor~ - 

z — b, of ys Pili. 3 a 3 ena iets ' —- ze im 2 2a a A cS raiiaf, Alter teviewing the Prosecutor's argunent and Jpcid- 

ing that the language of which Petitioner complained was in BES, 

re
 

[11
] 

’ 
1 

| 

{1
3 

[4
1 

[{1
] 

ie
 

(
9
3
 

(1
) 

eo
 

Ol
 ny
 

[14
] 

‘
a
 

| 
at

l 

ct
 

b
o
 

  

oner's previous conviction, tha Court found 

this claim to have nc merit and -specifically relied on Prevatte % 

Ny, Stats, 233.22, 330 48) (i975). Crler, MocClsshey v, Ishi, ab - 
    

  

  

ling on this point. Caldwell concerns the undermining of the 
  

jury's sense of responsibility by the prosecutor commenting upon 

“the alleged lack of finality of the jury's verdict due to the ap- 

  

pellate process: The Court in Caldwell recognized that this type 

  

‘of argument has been condemned since Furman v. Georcia, 408 U.S. 

228, 33 L.EA.2¢& 246 (1972), citing Eawes v. State, 240 Ga, 327, ~~ 
  

  

335 (10) (1577). and Fleming V. State, 240 Ga. 142, 146 (1977). 

- Caldwell, 86 L.Ed.2d4, at 242, n;- 4, Eawes and Fleming specifi- 

  

  

  

cally relied on Prevatte, supra. Therefore, the Court finds that’ 

  

the holding in Caldwell, supra, is not new law, sufficient to 

  

free this claim from the doctrine of res judicata. -. 

4 
| 

In Petitioner's amendment, he alleges that the State's use 

oF
 

tr
 

I'S 
3 

Q
 on
 

o te
 

a’
 

1 
J r

 J
 

8]
 

(} 
1] 

"wn
 

Ww
 

bt 
J 

o
r
 

(})
] 

Ne
 

v3
 

4]
 

O (v)
 

oi
 

7]
 

1]
 

po
nd
 

- to. inmate Evans violated his righ 

-at every critical stage, as Evans was allegedly working as an - N > 
2 

 



  

~. 7 Respondent alleges that this is merely an extansion of £n 

  

Petitioner cites RaooLz ve Caosele Talivision Co., NO. 44381 
  

(supreme Court of Georgia, decid ed May 6 1987), as new Iaw in 

oR this area, and, therefore, why te coud not ‘have reasonably 

  raised this claim previously. “Rivaver, it is clear since Houston 

yok, Rutledge, 237 Ga. 764 (1576), that Petitioner would have access 
  

to the document at issue. _ hid . 

Peti ioner, in paragraph 20 cf his first habeas petition, £ 

z alleged that the State had fal led to disclcse an arrangement with 

."Offie" Evans. This Court, in its order of tf April’ 8, 1381, found - 

. nc merit tc this cont sgntion,. Orisr, MoCleskey vy. Zant, supra, 
  

In paragraph 21 of his-first habe2s petition, FPatitioner al-. 

leced that a statement made by him to Evans, a government agent 

._ or informant, was deliberately withh -~
 eld. This Court found that =~ 

+his {ssue nad Feen decided adversely to Petitioner en h 
— Ey a Bd Haga, sey 

1 

 



  

ji | 

| ni
 i] 

it
e Fd

 

\7}
 

+
-
 

vt
 

"
o
s
 

A
e
 

hat
} 

(1
6)
 

vr
 

Af
 3 

({"
] C 

*
 [1
] i
 

vr
 

$
e
 

Y/
 

od
 < r
n
!
 

ve
 

re
 

[1
 | lg I w
 

or
 

or
 €. ry
 

pr
e LL v
r
 

ry
 

Ww
 

~ Fr
e 

ou
} *
 

tr
 

if
 

‘ar Tr» Aa 

  

  
  

  

  

    

statement, and finds nothing therein to support his-allesgation of 
" - = { 

es a - 5 : : soll Ply 

© "a2wly uncovered evidence! of an arrangement betwaam Zvans and ofr, 

= the State, = - ri 

- Therefore, this zlzaim is barred by the doctrine of rss - 

: judicata. - Ey ¥ 1 ; = 
  

Petitionar allages that the State’ g failure at trial to cor-- 

t rect the misleading testimony of Ivans violated Petitioner's 

- 
|] ght to be free from cruel and unusual -punishment and his right, | 

TH
 

| 
E
a
 

[S to due process of law; ih violation of the Eighth and Fourteenth 

Amendments, 

Petitioner. statés that there aie significant discrepancies ] 

i between Evans' 2l-page statement and Evans’ testimony at trial, 

both factually in reference +c what Petitioner allegedly stated 

about the. crime and further as to Evans’ motivation for testi fy- 

“ing.” . : % a : : = 

As shown above, there is Iegal authority giving him the 

d ] - [ L] 

right to access to this éocument. Eouston v, Rut.e 
  

gh Both trial counsel and inmate Evans testified before £his Court 

There is no valid reason why Petitioner could not have obtained 

this statément earlier, Therefore, the Court finds that 

 



  

fr 
  . EAL CRAIG / 

E, SUPLRICR COURTS 
FLINT JUDICIRL CIRCUIT 

 



  
EXHIBIT E 

 



  

    

  
    

  

  

  
  

ATLANTA PULLILL UirPARY NX | VARIG Yih re LAE tm 

STATEMENT OF OFFIE GENE EVANS RACE SF, SEX pog 8-15-35 

HOME ADDRESS 2905 SPRINGDALE RD. APTTP3 CITY/STATE ATLANTA, GA. 

BUSINESS ADDRESS UNEMPLOYED PHONES N/A 768-0723 
BUSINESS / HOME 

DETAILS: 

I AM IN THE FULTON COUNTY JAIL CELL # 1 NORTH 14 WHERE I HAVE BEEN SINCE JULY 3,1978 

FOR ESCAPE. WARREN MCCLESKY WAS IN CELL # 15, WHICE IS RIGHT NEXT TO MY CELL. BERN 

DUPKEE WAS IN CELL 2 NORTH 15 WHICH IS RIGHT ABOVE MY CELL AND MCCLESKY'S. RIGHT B 

EACH ONE OF THE CELLS ARE TWO VENT HOLES. YOU CAN TALK THROUGH THESE VENT HOLES. 

ON JULY 8, 1978 DUPREE CALLED. MCCLESKY AND HE WAS GETTING ON MCCLESKY ABOUT PUTTING 

| HIS NAME IN THE CONFESSION. BUPREE TOLD MCCLESKY "WEY DID YOU PUT MY NAME IN THAT 

CONFESSION, WHEN YOU KNOW THAT THE PEOPLE CAN'T IDENTIFY iE?" DUPREE TOLD MCCLESKY 

"SUPPOSE THAT I GO AHEAD ON AND TELL THAT YOU WERE THE TRIGGER MAN." MCCLESKY TOLD 

DUPREE THAT HE DID NOT HAVE ANY OTHER CHOICE BECAUSE THEY HAD MADE HIM CONFESS TO T: 

DUPREE. TOLD MCCLESKY "IE YOU WAS GOING TO CONFESS THEN WHY DID YOU TELL THE TRUTH A 

IT, YOU TOLD TOO MUCH OF THE TRUTH ABOUT IT. "wecL ESKY TOLD DUPREE THAT "SOME OFT 

PEOPLE AT THE FURNITURE STORE PROBABLY TOLD IT AND THEY JUST MADE ME REPEAT WHAT SC 

OF TEE PEOPLE HAD TOLD." DUPREE TOLD MCCLESKY THAT "YOU ARE A CRAZY SON OF A BITCH 

DGPREE TOLD MCCLESKY "EVERYTHING YOU TOLD THEM WAS THE TRUTH MAN, ITS' CLOSE TO 

EXACTLY WHAT HAPPENED, IT IS GOING TO BE HARD TO GET THAT CONFESSION OFF, YOU MADE 

SO PLAIN, SO CLOSE TO EXACTLY WHAT HAPPENED." "YOU KNOW THAT THE WOMAN AND AT THE 

FURNITURE STORE COULDN'T IDENTIFY YOU AT THE PRELIMINARY HEARING." MCCLESKY SAID 

HATS' THE REASON THAT I AM THINKING THAT I AM GOING TO GET MY LAWYER TO CHANGE 

I HAVE READ/HAVE HAD READ TO ME/THE ABOVE STATZHENT AND IT IS TRUE TO THE BEST OF 
MY BELIEF AND KNOWLEDGE AND HAS BEEN GIVEN FREELY AND VOLUNTARILY BY .HE.. 

  

  

  
  

  
  

LT 
or © kh : 

PAE | SIGHATURE ~ + 

WITNESS Lr re at DATE_Y ol, /, ZF zu 
, -~ sh = or = i a > rv on yw pm —— 

WITNESS oer AAR ye VICTIM SOE ATT, FRANK RR. (OFF. 

WITNESSE A TL fee COMPLAINT # 463348 TN 
  

  

a he See 
 



  

  

  

  
  

  

  

ATLANTA BUREAU ‘0K OLICE SERVICE DATE_ 7s TIE 
STATERENT CF OFFIE Covr ruawe RACE SEX LOB 

HOME ADDRESS PT___ crTv/sTate 
SUSINESS ADDRESS PHONES 3 | 

: rr 
DETAILS: 

| 
CONFESSION. DUPREE TOLD MCCLESKY TEAT WAS GOINGTO BE REAL HARD TO DO. MCCLESKY 

SAID "THE FIRST STATEMENT I MADE IN COBB COUNTY WHEN THEY PICKED ME UP, I TOLD THE 

MAN UP THERE THAT I DID NOT KNOW NOTHING ABOUT IT PERIOD." "LATER ON THREE MEN 

FROM ATLANTA HOMICIDE CAME UP HHERE AND GOT ME." MCCLESKY TOLD DUPREE "ON THE 

WAY BACK DOWN HERE, HOMICIDE HEN SAID THAT "YOU ARE GOIN G TO TELL US THE TRUTH WHEX 

WE GET BACK TO ATLANTA, CAUSE WE BUST HEADS DOWN THERE. MCCLESKY SAID THAT THE 

POLICE OFEICER THAT THE OFFICER" SAID THAT HE FELT LIXE STOPPING THE CAR AND BUSTING 

HIS HEAD THEN. MCCLESKY TOLD DUPREEL THAT HE WAS SCARED. DUPREE TOLD MCCLESKY, 

"YoU SCARED, DON'T YOU KNOW THAT FOR MURDERING A POLICE, YOU GET THE ELECTRIC CHAIR. 

MCCLESKY. TOLD DUPREE" 17 THEY: CAN. TRY ME ON THE ONE I MADE IN ATLANTS, . THEY: CAN- TRY 

ME ONTHE ONE I MADE IN MARTETTA, TOO." MCCLESKY SAID "HE THOUGHT THAT EE COULD GET 

THE ONE IN ATLANTA, PULLED BECAUSE HE SIGNED TO, ONE: IN ATLANTA AND ONE IN MARIETT: 

AND THAT HIS LAWYER THOUGHT TEERE HAD TO BE SOME PRESSURE PUT ON EIM IN ORDER FOR 

HIM TO SIGN TWO STATEMENTS, THE FIRST ONE SAYING THAT HE DID NOT KNOW ANYTHING ABOU" 

IT, AND THE OTHER SAYING THAT HE WAS THERE. THEN THE DEPUTY WAS FIXING TO COME AR! 

AND COUNT, SO THEY STOPPED TALKING. MCCLESKY COULD HEAR THE DEPUTY PUT THE KEYS IN 

: DOOR, SO HE JUMPED DOWN OFF THE SINK THAT HE STANDS ON TO TALK THROUGH THE VIst T 

DEPUTY WENT ON THROUGH MADE THE COUNT AND THEN WENT ON BACK OUT. ABOUT 10 MINUTE! 

I HAVE RZAD/HAVE HAG READ TT MZ/THE ABOVE STATEMENT AND IT 
i ATEME! 7 IS TRUE ‘THE BEST OF MY BELIEF AND KNOWLEDGE AND HAS EEZN GIVEN FREZLY AND. VOLUNTARILY BY ME, 

col al 7 pi STATURE 
wo THESS vd 

z/, ia 

  

  

  

  

  

  

  

; 2 Zar DATE TINE 
WITNESS = he Bru OT ot VICTIM SCHLATT. FRANK R.u(oFrr.) 

WIviiess 7 io Col “3 COMPLAINT ¢ Wir a83558 

M32 3 § by XQ 

 



  

    

    

  
  

ATLANTA BUREAU XX 0fICE SERVICES pare, & ~7° TiUE 

STATZHENT OF OFTIE GENE EVANS RACE SEX COB 

HOME ADDRESS APT CITY/STATE 

BUSINESS ADDRESS PHONES 
    

: : : 
BUSINESS 

DETAILS: 
: 

LATER DUPREE CALLED MCCLE SKY BACK AGAIN. 

rue 

DUPREE TOLD MCCLESKY THAT “Jia STARTED 

ALL THAT SHIT UP BECAUSE 49%, ANTS TO GET BEN MESSED UP BECAUSE 4SSH AND SOME DUDE 

  

ROBBED A PLACE IN BENS' CAR AND THE TAG NUMBER OFF TEE CAR WAS GOT OFF." MCCLESKY 

TOLD DUPREE "I DON'T THANK THATS' WHAT IT WAS ABOUT THAT." "THAT THUNDERBIRD BEEN 

IN A WHOLE LOTS OF ROBBERIES AFTER THEN DUPREE TOLD MCCLESKY “WE PULLED MORE 

SHIT THAN BEN DO CAUSE SHE ALWAYS, YOU KNOW SHE PUTS ON MENS' CLOTHES ON AND YOU CA 

TELL HER FROM A MAN AND SHE ALWAYS SITTING AROUND BRAGGING ABOUT IT." THEY GOT 

QUIET THEN. 

THE NEXT DAY, JLY 9, 1978 AFTER BREAKFAST I TOLD WARREN MCCLESKY "I GOT A NEPHEW 

MAN, HE IN A {ORLD OF TROUBLE." MCCLESLY SAID YEAR, WHAT THEY GOT EM Toman I 

SAID THEY GOT EIM ACCUSED OF MURDER AND ROBBERS. BUT I SAID I DON'T THINK THEY Got 

HIM YET. MCCLESKY SAID " I MIGHT KNOW HIM, IS HE BEENI THE PENITENTARY BEFORE?" 

1 SAID "YEAH, HE DID A PRETTY GOOD WHILE IR REIDSVILLE." MCCLESKT ASKED ME "WHAT 

. BIS NAME." 1 TOLD HIM "BEN WRIGHT". MCCLESKY SAID "you BEENS' UNCLE." I SAID 

7 TOLD EIM THAT MY NAME WAS CHARLES. MCCLE! 

"YEAH." HE SAID "WHETS' YOUR NAME?" 

SAID "THEY GOT ME AND BEN ON THE SAME CASE." I SAID "OE, BEN WAS TELLING ME ABOU 

I TOLDMCCLESKY 

VAWL THE LAST TIME THAT I SEEN BEIM." HE SAID "WHEN YOU SEE HTM. i 

I HAD SZEX EIM ABOUT A COUPLE OF WEEKS AGO. I TOLL HIM "BEN WAS TELLING 'vE ABOUT 

I HAYE READ/HAVE HAD READ TO ME/THE & 7 TRUE I Re D READ TU BOVE STATEMENT AND IT E 
IY BELIEE AND KiGHLECES AND HAS SREH GIVEN FREELY AND VOLUNTARILY Ri, po 

A \ 

  

  
  

  

/iv, ; Sin” 
/ enn 

~~ / Am DATE aE MoD TINE 

‘News / / a J= 

ester VICTIN great, TRAYE BR. (0 
    

COMPLAINT $ 
    

 



  

    

    

    

ATLANTA BUREAU OL 'OLICE ‘SERVICES DATE 1-78 TINE / 

STAT! OF OFFTIEZ GENE ZVANS RACE SEX COB 

HOME ADDRESS APT CITY/STATE 

BUSINESS ADDRESS PHONES 
    

DETAILS: SF 

TRYING TO PUT HIM IN THE SET 4. HE SAID "WHAT YOU MEAN BY THAT?" I SAID "BEN SAID 

THAT ALL OF YAWL ARE TRYING TO PUT THE WEIGHT ON HIM, TRYING TO MAKE LIKE HE SHOT 

TYEMAN IN THE ROBBERY WHEN HE DID NOT DO IT." MCCLESKY SAID "TT MIGHT BE ONE OF 

THOSE OTEER oR Cesvse I AIN'T TRYING TO PUT BEN IN NOTHING." 1 SAID "MAN I KNOW 

YOU LYING BECAUSE I USED TO STICK UP WITH BEN TOO, AND BEN AIN'T FAST ABOUT SHOOTING 

NOBODY." I ‘TOLD THEM THAT "BEN TOLD ME THAT YOU SHOT THE MAN YOURSELF." MCCLESKY 

SAID "CAN'T NOBODY PROVE THAT ‘I SHOT THE MAN, CAUSE THE LADY CHN'T IDENTIFY ME NO W! 

I TOLD MCCLESKY "I WAS. SUPPOSE TO BEEN IN ON TEE ROBBERY MYSELF, BUT IF YOU WASN'T ¢ 

GREEDY, ALL OF THAT WOULD NOT HAVE HAPPENE \ED, EHAT I COULD PLAN THINGS OUT BETTER TE 

: THEN MCCLESKY cas ON vp AND TOLD. ME ABOUT IT. I SalD MAN "JUST WHATS’ RAPPINED oy 

THERE." MCCLE SKY CONE 0 TELL ME " i OVER 10 re PLACE ABOUT A WEEK BEFORE | 

ROBBERY, MESSING AROUND. = CHECKED TEE PLACE orT TO SEE WHERE THE MONEY DRAWER 

AND ALL LIKE THAT, = 1AID IT OUT-TO ~TM ABOUT HOW MUCH YOU HAVE TO WATCH IN T= 

STORE WHEN YOU GO IN. MCCLESKY SAID THAT EE DOUBLE CHECKED THE PLACE TEE SAME DAY 

THEY ROBBED THE PLACE. MCCLESKY SAID THAT =P HAD A MAKE-UP KIT AND MADE HIS FACE 

THE DAY EE ROBBED THE PLACE. HE SAID SHE PUT SOME PIMPLES LIKE ON HIS TACE AND SE: 

PUT A SCAR SOMEWHERE ON HIS FACE, BUT HE DID NOT SAY WHERE BOUTS. MCCLESKY SAID TI: 

EE WENT TO THE STCRE AND TALKED TO A LADY ABOUT BUYING SOME MERCHANDISE AND LOOKED 

I HAV READ/HAVE HAD READ TG ME/THE ABOVE STA 
MY BELIEF AND RNCWLEZSE AMD HAS BEEN GIVEN ally a IL ™ Hii AHD VOLUNTARILY BY RE. 

  Shndely 

WITNESS / = = g THES CA on, pate ZS STE <r -— 

      

i ’ . 3 ; 
- 

Ra 
- 2 anda fieg move 1 rr —— 4 ve 

- — ‘ YIZCTIN AG Fie a ay TOSI, Pu 
    

” mn a, CCHMPLAINT ¢ 463548 Viv 
  

  

 



  

    

  
  

  
  

  

ATLANTA BUREAU ox OLICE SEBVILCTS bates /E | ded 

STATEMENT OF ATTTE AVE TUANG RACE SEX CoB 

HOME ADDRESS APT CITY/STATE 
BUSINESS ADDRESS PHONES 

  BITHESS 7 FE 
DETAILS: 

THE MERCHANDISE AND EVERYTHING, AND LEFT AND WENT BACK TO BENS' HOUSE, BUT BEN WASN'T 

AT HOME BECAUSE THE POLICE WAS ALREADY LOOKING FOR BEN, SO BEX WASN'T STAYING AT HOME 

MCCLESKY SAID " HE WENT AND PICKED UP DUPREE AND THIS OTHER GUY AND COME BACK TO BE 

HOUSE." WHEN THEY COME BACK TO BENS' HOUSE THATS' WHEN THEY GOT SHOTGUN, A PISTOL A 

A LEATHER JACKET- A SHORT LEATHER JACKET. HE SAID THAT THE LEATHER JACKET BELONGED 

TO ANOTHER DUDE AND THE GUY LET REX USE THE JACKET. MCCLESKY SAID "THATS' WHEN THEY 

ALL ¥OBSED UP AND WENT TO GOTO THE PLACE. HE SAID HE STOPPED SOMEWHERE AND ‘BOUGHT 

TWO PAIR OF STOCRINGS., mr SHE WAS DRIVING HER CAR DURING THAT TIME. WHEN THEY GC 

TO THE PLACE MCCLESKY WENT BACK TO "TALK TO THE LADY ABOUT THE STUFF THAT HE WAS SUPT 

TR BUY. MCCLESRY SAID "ER SHE STOOD RIGHT BY THE SHOWCASE WHERE YOU GOT INTO THE 

FURNITURE STORE, OUTSIDE THE DOOR, ONTHE STREET’ SIDE LIE, (FOR ER.10 NOTIFY HIM > 

IT LOOKED LIKE THERE WAS ANY HEAT COMING ON , OR SOMETHING LIKE THAT." AND HE TOLD 

HER IT "YOU SEE ANYTHING THAT LOOKS SUSPICIOUS, YOU. STE? RIGHT INSIDE THE DOOR, DON 

SAY ANYTHING, JUST WALK RIGET ON OUT." MCCLESKY SAID THAT EE WENT RIGHT IN FRONT A 

THROWED DOWN ON TEE LADY AND SAID BEX AND TWO oR THREE OTHER DUDES COME INTHE BACK. 

MCCLESKY SAID THAT HE WAS TRY ING TO WATCH var AND THE LADY TOO AND THE LADY THAT 

HAD TEROWED DOWN ON. AND THAT A LITTLE WHILE AFTER HE WAS IN THE STORE THAT HE SEZ 

& 
MEY STZ® INSIDE THE DOOR AND WALK RIGET BACK OUT. MCCLESKY SAID THAT ABOUT THAT ~ 

RAVE READ/HAVE HAD READ TG ME/THE 480 : RE VE STATTHEHT AND IT ; BELIEF AND RNCWLEDSE AND HAS BEZH GIVEN FRECLY AD ES he 
- 

BET tal 
oa z 

  

WITNESS 
  

  
  

KW]THeeS 
-—ere 

  

  

  

  

  

 



y A 3 
i 

4 r— AT ho Sb Ape rnd 2 h ; ® > r~ rm - . - 

ATOANCA SUREAD ¥ LICE SERVICE wn: @ S10 I Lids 
a i 

  

  

      

  
  

  
  

STATEZHAINT OF QFTIT GENT EVANS RACE SEX COB 

HOME ADDRESS APT | SITVISTAYE 

SUSINESS ADDRESS | PHONES 
SE a 

DETAILS: A 

THE POLICE WALKED IN THE STORE. BUT THE POLICE DIDN'T ACT LIKE HE WAS COMING IN FOR 

NO ROBBERY. BUT HE SAID THAT RE DID SEE THE POLICE PUT THE HAND ONEIS GUN. AND HE 

SAID THAT EE KNOWED RIGHT THEN THAT IT WAS GOING TO HAVE TO BE HIM OR MCCLESKY ONE. 

CAUSE THE POLICE WAS HEADED TOWARD WHERE BEN WAS BACK THERE. AND MCCLESKY SAID THAT 

HE PANICKED, HE JUST SHOT. MCCLESKY DID NOT SAY HOW MANY TIMES HE SHOT OR NOTHING. 

MCCLESKY SAID WHEN THEY GOT TOTHE CAR, WHEE WAS UNDER THE WHEEL AND DUPREEE PUSHED 

HER OVER. THEY WAY HE TALKED SOMEBODY WAS LATE GETTING TO THE CAR, I DON'T KNOW WHI 

ONE IT WAS. MCCLESKY SAID iii we 3, IT WAS A GOOD TEING THAT DUPREE TOOK TH 

WHEEL CAUSE THAT BITCH WOULD HAVE RUN OFF AND LEFT SOMEBODY." AND THEN I TOLDMCCLESK 

“DID YOU ,. IS TEIS THE WAY YOU TOLD THIS CONFESSION?" MCCLESKY SAID "SOME OF IT IN 

THERE I TOLD, AND SOME OF IT 1 DIDN'T." ABOUT 2-3 MINUTES LATER DUPREE CALLEC MC 

CLESKY UP TO THE VENT. DUPREE SAID "WHATS' GOING ON."  MCCLESKY SAID "AWL, WE AIN'T 

DOING NOTEING BUT JUST TALEING." DUPREZ TOLD MCCLESKY TOLD "I'M GOING BACK TO SLEE: 

YOU KNOW I STAY UP ALL KIGET." DUPREE TOLD ME, WELL HE DONE GONE BACK TO SLEEP. A 

THEN ME ANDMCCLESKY STARTED TALKING .BACK AGAIN. AND THEN I ASKED MCCLESKY WHAT KIN 

FVTDENCE DID THEY HAVE ON HIM. MCCLESKY SAID "THEY AIN'T GOT NO EVIDENCE, NO MORE 

WHAT I TOLD THEM DOWN THEFE, AND I AIN'T GONE TO PLEAD GUILTY TO THAT." MCCLESKY TC 

ve "QB NER COULDN'T HAVE TOLD THEM TOO MUCH, CAUSE IF SHE DID, SEE WOULD HAVE EI 

I HAVe RIAD/HAYE HAD READ TU ME/THE ABOVE STATCMENT : =! Tos ning F me/ihe I STATEMERT AD 17 IS 7 : 5 F PY BELIEF AND KNCHLETEZ AND HAS BESH GIVEN FREZLY AND RE a JasTpy 
. [ 

' 7 
& Ag ar &. AAD 

E 2 Ia SIGHATURE +, 
Yer ST Shr; ne LS 

  

  
  

  

  
  

  

  

—- rT 2, DATE Ss al, TN 

(T=ne,ee A ~~ 2 ~~ / / oy Li Ses -— 

e blaes J bh - g 2, "er Itty SCEL sr. Takk RR. {OFF ) 
RS Fg 

-'s 2 - hl a 0, 
. » . '. - " C55 

4 = COMPLAINT # Adasac 

FTMITD 
* ®t 

 



  

ATLANTA BUREAU OF. JLICE SERVICES ur J w78 T1H4E 
—   

      
STATEMENT OF  OFFTIr GENE EVANS RACE SEX DOB 

HOME ADDRESS APT CITY/STATE 
  

  

BUSINESS ADDRESS PHONES 
  

  

DETAILS: 

IN JAIL HERSELF. MCCLESKY SAID "4IN'T NOBODY COULD HAVE PUT THE HEAT ON THEM BUI 

vo 8 SHE WAS THE ONLY ONE WHO COULD HAVE TOLD THEM THE NAMES OUT AND TELL THEM ABOU” 

THE GUNS THAT THEY HAD PICKED UP AT HER HOUSE, CAUSE SHE WAS TRYING TO CLEAR HERSELF 

FOR SOME REASON. THE MAN CAME AROUND TO MAKE A COUNT UP AGAIN. WE STOPPED TALKING. 

I WENT ON TO SLEEP. -- 

THE NEXT DAY » JULY 10,1978 AROUND 9:00 A.M. WE STARTED Touring AGAIN. MCCLESKY 

SAID THAT THE MAN WHO OWNED THE JACKET SHOULD BAVE BEEN IN JAIL, HE DIDN'T KNOW WEY 

THEY PICKED EIM UP AND QUESTIONED KIM AND TURNED HIM ALOOSE. THEN I TOLD WogLgenY 

"THAT MAN MUST HAVE KNOWN SOMETHING, 700." MCCLESKY SAID "THE MAN WHO OWNED THE 

JACKET COUL LDN'T HAVE" KNOWN NOTHING ABOUT IT UNLESS: _— TOLD HIM. " THEN 1 SAID "TEE 

AIN'T GOT NO GINS OR NOTHING MAN?" MCCLESKY SAID "wo." MCCLESKY SAID id T KNOW TREY 

NEVER WILL FINI THE GUNS THAT I HAD, BECAUSE WHEN HE WAS ON HIS WAY BACK TO 

MARIETTA, FROM DUPREES' OLD LADY HOUSE, HE THROWED THE PISTOL: OVER TET BRIDGE OVER 

THE CHATTAHOOCHE." MCCLESKY SAID TEAT HE DIDN'T SEE BEN NO MORE AFTER THEN UNTIL 

MAY 28, 1578. MCCLESKY SAID THAT BEN COME TO MARIETTA AND CALLED HIM FROM A SERVI 

STATION AND EE WENT TO THE SERVICE STATION AND PICKED BEN UP. MCCLESKY SAID THAT B 

TOLD EIM THAT HE THOUGHT THERE WAS GOING TO BE SOME SHIT ABOUT THAT LATER ON, BECAU 

WF THOUGHT THAT THEY HAD BURNT SOME OFF THE MONEY OFF SOMEWHERE AND THAT HE AND & 

I HAVE READ/HAVE HAD READ TG ME/THE ABOVE STATEMENT AND IT IS TRUE TO ‘THE BEST OF 
MY BELIEF AND KNOWLEDGES AND HAS BEEN GIVEN FREZLY AND VCLUNTARILY BY ES 

  

  

  
  

  
  

LI —- 7 &. ~ ie 

yi 07 STGRATURE /,/ 

WiTNESS Cf, | OV ty DATE ESS mi TIME 

——_ » — / 04 
: 

“enor RRR ey VICTIM SCELATT, FRANK R. (OF 

HITHELSL AL 2 i a COMPLAINT # 463548 
  

  

M13 : 

 



  

K 4 -~ / ( 

  

    

  
  

  
  

ATLANTA BUREAU OF. OLICE SERVICES DATE 8-:-78 TIME 
STATEMENT OF OFFIE GENE EVAwe RACE SEX DOB : 

HOME ADDRESS APT CITY/STATE 
BUSINESS ADDRESS PHONES 

~ BUSINESS] moe 
DETAILS: : 

HAD BEEN HAVING AN ARGUMENT ABOUT THAT. MCCLESKY SAID THAT HE TOOK BEN 10 A FRIENDS' 

OF EIS HOUSE, BUT BEN DECIDED TO GO TO A MOTEL AND STAY THAT NIGHT. MCCLESKY SAID 

THAT HE WENT TO THE MOTEL THE NEXT MORNING AND PICKED BEN UP, AND BROUGHT BEN OVER TC 

EIS HOUSE. AND KIM AND BEN PAINTED THE KITCHEN AND DUG THE YARD UP AND HIS BROTHER-. 

LAW WENT AND BOUGET SOME SEER, AND THEY SAT DOWN AND DRUNK THAT. MCCLESKY SAID THAT 

HE HADN'T SEEN BEN SINCE THEN, NO MORE THAN TALK TO HIM ON THE TELEPHONE . DUPREE CALL: 

MCCLESKY. HIM AND DUPREE WAS TALKING. THEY WASN' T TALKING ABOUT THIS ROBBERY. DU 

WAS SAYING THAT HE NEVER COULD UNDERSTAND WHY HIS OLD LADY DIDN'T NEVER COME UP THER 

AND SEF KIM. DUPREE TOLD MCCLESKY THAT SHE MIGHT BE SCARED CAUSE WEN COULD HAVE IC 

THE POLICE ABOUT TEE MONEY BEING SPLIT UP AT HER HOUSE. ME AND MCCLESKY DIDN'T TAI 
S— 

NO MORE FOR A COUPLE OF DAYS. BUT DURING THIS COUPLE OF DAYS DUPREE AND MCCLESKY T= 

. TO EACZ OTHER. 

DURING TZIS COUPLE OF DAYS THAT ME AND MCCLESKY DIDN'T TALK, MCCLESKY AND DUPREE WA! 
-be 

TALKING ABOUT THE LAWYER. DUPREE ASKED MCCLESKY "HOW DID HE THANK THAT THE LAWYER 

FTLT ABOUT HIS CONFESSION?" MCCLESKY SAID THAT "THE LAWYER WAS FILING SOME MOTIONS 

TO TRY AND GET THAT CONFESSION PULLED." DUPREE TOLD MCCLESKY THAT HE HAD TOLD HIM T 

bod ae ¥ ¢ 

WAS GOING TO BE HARD TO DO. MCCLESKY SAID " I TOLD MY LAWYER THAT I WOULD GIVE H 

I HAVE READ/HAVE HAD READ TG ME/T PSY TRUE TO THE BEST Eins AD READ TO ME/THE ABOVE STATEMENT AND IT I 
bY > v ) pup : i Mt BELIEF AND KNGHLEDGE AND HAS BEEN GIVEN FREELY AND VOLUNTARILY BY to mes Bn 

: = ~ 

at zeit CF ei 

A Zz SIGNATURE 
WITNESS Ll Ae, DATE = i dee Te , 

  

  
  

  

ja
d}
 

~
~
 

oO
 

ny
 it]
 

  

  

. — 

“1 - — 7 WITHDSS. TC £5 Eg hi el a pr: 
- Cid lh dm VICTIM SCHLATT, TRANK 

» 
ry / 

ili TRS ART ni NESS RY LSE COMPLAINT 6 462548 
  

  

 



ATLANTA BUREAU OF JLICE SERVICES DATE @ ih TIHE ? 
  

  

  

STATZHENT OF OFTITZ GENE EVANS RACE 
    

    

  
  

SEX DOB 

HOME ADDRESS APT CITY/STATE 

BUSINESS ADDRESS PHONES 

DETAILS: 

$2,000.00 IF HE COULD GET THAT CONFESSION PULLED @UT. MCCLESKY SAID THAT THEY WOULDY 

KNOW NOTHING UNTIL AFTER THEY GO TO THE ARRAIGNMENT. MCCLESKY SAID THAT THE WAY THE 

LAWYER TALKED, THEY HAD A GOOD CHANCE OF BULLING THAT CONFESSION OUT, BECAUSE HE MADE 

TWO. THEN DUPREE ASKED MCCLESKY "WHAT DID HE THANK ABOUT THAT CONFESSION THAT THE 

OTHER GUY MADE?" MCCLESKY SAID "IT WOULD HAVE TO GO FOR THE SAME THING, BECAUSE 

THE OTHER GUY WAS YORCED INTO TELLING THE CONFESSION TOO." MCCLESKY SAID THAT THE 

OTHER GUYS' CONFESSION RESEMBLED THE SAME THANG. DUPREE SAID " IF THEM TWO CONFESSIC 

RESEMBLE THE SAME THANG AND YOULL WASN'T IN THE SAME ROOM GIVING THEM OUT, THEN IT 

IS GOING TO BE HARD GETTING THEM PULLED, CAUSE YEWL TOLD TOO MUCH OF THE SAME THING. 

Pu A og MCCLESKY SAID THAT IT WOULD JUST HAVE TO BE A CHANCE HE WOULD HAVE TO TAKE.DUPREE AS: 

MCCLESKY "IS YOUR PARTNER STILL DOWN THERE?" MCCLESKY SAID NYEAR, SAY HE'S BENS' UN 

DUPREE SAID "I DIDN'T NO NOTHING ABOU BEN HAD NO UNCLE MAN, YOU DON'T KNOW WHO THE X 

YOU TALKING TO, Y0U COULD BE TALKING TO THE MAN." MCCLESKY TOLD DUPREE "NAW MAX, E: 

aiid MAN, CAUSE HE KNOW A LOT OF PEOPLE THAT IKNOW AND I'M JUST ABOUT SURE THAT 

K NOW HIM." THEN I STARTED TALKING TO DUPREE ABOUT REIDSVILLE. I HAD JUST ABOUT M: 

DUPREE KNOW ME HIMSELF FROM TELLING EIM ABOUT REIDSVILLE. I TALKED ABOUT A LOT OF 

THINGS THAT HAPPENED DOWN THERE, 4 LOT OF THINGS DUPREE DID WHILE HE WAS IN REIDSYVI 

AND WHO EE WAS RUNNING WITH, AND ABOUT A SAWED OFF SHOTGUN TEAT HE AND A GUY NAMED 

  

      

  
  

  

  
  

oA 2 ec 
SiGAAIURE 

‘Wi TNZS3 
eo 

CATE “ Al of zo TIME 

J Wirnmes 

: 
VICTIM SCELaTT, FRANK R. (OFF. 

nIT4eSS 
2 

: 
COMPLAINT # L6354L8 vig 

M373 

8 L$ 2 

 



  

[St No ‘ 
hs ¢ 

  

    

    

      

ATLANTA BUREAU 2 LICE SERVICES BATE 8-10-78 TIME 

STATERENT OF __ oTrrr GENT FVANS RACED. Sgy po 

HOME ADDRESS APT CITY/STATE 

SUSIRESS ADDRESS PHONES 
: BUSINESS / HORE 

DETAILS: 
| 

SEES HAD GOT CAUG HT WITH BACK IN 1973 , BUT SEE SNEEEESRS WAS THE ONE WHO 

| HAD TOLD ME ABOUT THAT HISSELFT. THATS' HOW I KNOWED ABOUT THAT CAUSE I HAD SEEN $= 

BACK IN 1976, DOWNTOWN, ONE DAY AND WSSWERS WAS TELLING ME ABOUT HE AND DUPREE GOT 

BUSTED TOGETHER. DUPREE GOT ALLRIGHT THEN, KIND OF TALKED A LITTLE BETTER. ALLRIGH" 

THEN MCCLESKY STARTED TALKING ABOUT A JOB. MCCLESKY SAID "YOU KNOW WHAT, THEY MIGET 

END UP WITH ANOTHERROBBERY ON ME?" I ASKED MCCLESKY WHY. MCCLESKY SAID "WE TOOK OF 

A PLACE ox MCDANIEL ST., A LIQUOR STORE AND HE SAID THAT HE BELIEVED THAT SOMEBODY W. 

GOING TO TELL THAT, CAUSE HE KNEW ONE OR TWO GUYS WHO KNEW. I SAID MAN, COULD YOU 

IDENTIFY YOU FROM THE LIQUOR STORE. MCCLESKY SAID THAT HE DID NOT KNOW. BUT MCCLES 

SAID THA T HE WAS SCARED THAT IT WIGHT COME AT ANY TIME. MCCLESKY ‘GOT BACK ON #EERY.. 

MCCLESKY SAID THAT THEY WAS ALL SITTING OVER TO BENS' HOUSE ONE DAY SMOKING REEFERS 

AND DRINKING BEER AND WB TOOK THE CAR AND WAS SUPPOSED TO BEEN GOING TO THE STO: 

SAID SHE STAYED GONE SO LONG TEEY STARTED WORRYING ABOUT HER. AND SAID THEY DIDN'T 

KNOW WHERE SEE WAS AT, BUT LATER ON SHE COME BACK HOME AND TOLD THEM THAT THE POLIC 

aD STOPPED THE CAR AND BROUGET HER TO JAIL AND TOLD THEM THAT THE POLICE SAID TE 

CAR HAD BEEN IN A ROBBERY. MECLESKY SAID THAT THEY DAMX NEAR HAD HER BUT BETWEEN 

  

      

  
  

  

3 oem — - 

: / SIGHATURE 7% 7 

wi1NESS 
7 rd ; 

AL pe Ff Tr rap 
- ~ y ~ 

. - VICTIM SCRLaTT. FRAME R. (OFF, 

wi hess ? 
an SL IER 2 FP COMPLAINT § A038LEE iy 
  

  

 



  

  

  

  

  

  

  

ATLANTA BUREAU 07 ‘'OLICE SERVICES DATE | 1-78 TIME { 
STATEMENT OF QFFIT GZINE EVANS RACE SEX COR 

HOME ADDRESS APT CITY/STATE 
BUSINESS ADDRESS PHONES 

| n 7 Hoe > 
DETAILS: 

HER COMING IN LOOKING LIKE A OMAN, PULLING THE WIG OFF LOOKING LIKE A VAN, SHE BLIPP: 

THROUGETHOSE SUCKERS' HANDS. AND SAID THAT BEN ASKED HER WHAT DID SHE TELL. MCCLESKY 

SAID THAT #%8 DIDN'T TELL THEM NOTHING, BUT SHE DIDN'T. KNOW NOTHING ABOUT IT. MCCLE: 

SAID THAT HIM AND DUPREE TRIED TO FIGURE OUT WHAT ROBBERY IT COULD HAVE BEEN HHERE TE 

GOT THE TAG NUMBER OFF THE CAR. MCCLESKY SAID THAT THE ONLY THING HE COULD THINK OF 

WAS WHERE . AND » THEM HAD PROBABLY TOOK THAT CAR AND DID SOMETHING IN. IT. 

WARREN SAID BUT " I DON®T KNOW, THAT JOB THAT I WAS TELING YOU ABOUT THE LIQUOR STORE 

PETERS ST., SAID THAT THEY MIGHT EAVE GOT IT FROM THERE. : DUPREE CALLED MCCLESKY 

AND HIM AND MCCLESKY WAS TALKING ABOUT " . HAD TWO DIFFERENT KINDS ‘OF MONEY ORDERS 

AND SAY THAT THE ONE TREAT THEY HAD GOT FROM OUT. TO BOLTON: RD. VERE TWO DIFFERENT KINDS 

or MONEY ORDERS AND HE DIDN'T EVER FIND OUT WHERE THEM OTHERS COME FROM, WHERE THEY C 

OUT CF A ROBBERY OR WHAT, BUT HE KNOWED TEE ONES THAT THEY HaD THAT HE a He 

TEEM WAS SUPPOSED*TO BEEN DONE AWAY WITE, SAY EF CALLED THEM ABOUT 5 : 004-6: :00a "on 

SATURDAY MORNING AND ASKED THEM TO RIDE HER AROUND SO THAT SHE COULD CASE SOME OF TH: 

MONEY ORDERS AND HE TURNED HER DOWN. MCCLESKY SAID THAT HIM AND HER "wil GETTING 

! H 
ALONG TOO GOOD, THAT COULD BE ONE REASON WHY THAT SEE TOLD THAT ON E=X. MCCLESKY SA: 

THAT THE REASON THAT SHE HAD TOLD IT WAS THAT SHE WAKTED TO GET SOME OF TEE PRESSURE 

HER CAUSE SEE HAD DONE A WHOLE LOTS OF ROBBERIES HERSELF., AND THAT SHE AND JRSHISCSIE 

! HAVE READ/HAVE HAD READ TG MS/THE ABOVE STATEMENT AND IT I 
AD 13 z S TRUE T0 TH MY BELIEF AND KNOMLELEE AND HAS BEEN GIVEN FREELY AND VOLUNTARILY £To Tie ph 

  

  

    

  

  

A od ' in, ~> i : 
a TERE 

ACTNESS ; i fre DATE = So TIME 
AIenass vi A 4 rl oo VICTIM. gos-oo7, TRANNO EB, (OFF) 

WIRES And. Cola. COMPLAINT § A LAI858 TIN   

  

nn S bg 2 
 



  

  

Z a ( 1-78 { 

ATLANTA BUREAU Qn 20LICE SERVICES DATE TIME 

    

  
  

  
  

ST ATS SHENT OF OFTIF GENE EVANS RACE SEX cog 

HOME ADDRESS APT CITY/STATE 
BUSINESS ADDRESS PHONES 

TTR 
DETAILS: | 

WHO WAS SUPPOSED TO HAVE BEEN HER EUSBAND, HAD DONE 4 LOT OF ROBBERIES TOGETHER. AND 
THEX-MCCLESKY ASKED ME IF I EVERY KNOWED A GUY BY THE NAME OF , ANYWAY HE GOT KILLED 
NAMED LEGS, SAID THAT HE AND GEN AND JCESMERNNWEW® USED TO DO A LOTS' OF ROBBERIES. 
MCCLESKY SAID THAT BECAUSE "RNR AND USENENNSNNR AND SNM HAD PULLED A ROBBERVON 
GORDON RD. AT A LIQUOR STORE WHERE SOME MAN WAS KILLED, SAID #38 DID THE KILLING, 
BUT WER WAS IN ON IT. MCCLESKY SAID THEY LOCKED @EP UP AND @B¥ ESCAPED OUT OF THE 
BIG ROCK JAIL AND WENT TO A DUDE'S HOUSE, I THINK THEY SAID EIS NAME FAS GEGEESZEN, AND 

HE SAID THAT REP WAS ONE OF THE PEOPLE WHO KNEW THAT {NB WAS AT ASENEGS HOUSE AND T 
POLICE SURROUNDED THE HOUSE AND KILLED GENB IN A SHOOTOUT. AND HE SAID THAT 1S XHE 

| PROBABLY THE REASON THAT QP KEEP RUNNING BACK AND FORTH.  DUPREEZ END MCCLESKY STA 

TALKING AGAIN SAVING "THAT THEY HOPED THAT ENOUGH HEAT WAS ON BEN, SO THAT TEEY WOULD 

BEN WHEN THEY RAN DOWN ON IT, AND IF THEY DOKILL KIM, IT WOULD BE BETTER IN TEEIR FAV 

BECAUSE HE KNOW THAT BEN WAS nd ABOUT THEM POINTING THE KILLING AT HIM, CAUSE THEY 

KNOW THAT BEN WOULD GO AND TELL THE TRUTH TO KEEP FROM GETTING TIED UP IN THAT MURDEF 

DUPREE TOLD MCCLESKY § TIMES OUT OF 1@, THEY ARE GOING TO KILL KIM ANYWAY BECAUSE BEN 

WASN'T AS SMART AS. HE THOUGHT THAT HE WAS, CAUSE HE BET THAT BEN WASN'T 200 MILES FR 

| ATLANTA, AND COMING IN AND OUT OF ATLANTA, CAUSE HE SAID THAT THE NIGGER DON'T KNOW 

NOBODY BUT SOMEBODY EIEN IX AND OUT OF THE PENIIENTARY, CAUSE EE BEEN IN JAIL JUST AE 
AD ! HAVE READ/HAVE H AC READ TO ME/THE ABOVE STATEMENT AND IT IS TRUE TO -THE BEST OF MY BELIEF AND KNOWLEDSE A AND HAS BEZX GIVEN FREZLY AND VOLUNTARILY BY HE.. 

. , { 

ATE . I Ra, 
  

  
    

  

  

gi STCRATORE 7 
ALTNESS tin px Ly DATE 5~ pi Vilv TIME 

KITNEce ~ Ky oy i 2] VICTIM SCELATT. [FRANK T, (CFF. 

br fe A a SA copy alters 463548 TLV 
  

  

TMI » 

Sie | | | LE 13 -a) 
 



  

® @ 
L 
  

    

  
  

  
  

Eth TU vg 

ATLANTA BUREAU OF .OLICE SERVICES DATE i=78 TIME ! 
STATEMENT OF OFT =F GENE EVANS RACE SEX DOB 

HOME ADDRESS APT CITY/STATE 

BUSINESS ADDRESS PHONES 
BUS HESS 7 Tee 

- DETAILS: | 

HIS LIFE. MCCLESKY SAID THAT "NO HE AIN'T HARDLY AROUND NONE OF THEM PEOPLE WHO 

BEEN AROUND THE PENITENTARY, CAUSE THEY WOULD HAVE BEEZIN TURNED HIM IN AND GOT THAT 

REWARD OFF HIM. DURREE ALWAYS SAY ''YOU GET IN TROUBLE, YOU CAN GO TO HARLEM AND 

STAY 20 YEARS, JUST DON'T GET IN NO TROUBLE. MCCLESKY SAID "I GUESS YOU RIGHT ON 

THAT, BUT THAT BEN AIN'T GO STAY OUT OF TROUBLE, CAUSE BEN DON'T KNOW HOW TO DO 

NOTHING BUT STICK UP. MCCLESKY SAID "YOU BETTER SHOW HOPE THAT HE GET KNOCKED OFF 

AND TEEY DO CATCE HIM CAUSE HE WILL DO ANYTHING TO KEEP FROM GETTING THAT ELECTRIC 

CHAIR CAUSE HE KNOW THATS' WHAT CRIMES LIKE THAT RUN TO. ABOUT THAT TIME SOMEBODY 

ELSE CAME IN, I DON'T KNOW WHO IT WAS, AND THEN MCCLESKY STOPPED TALKING. 

SOME or fi OTHER THINGS TEAT MCCLESKY AND DUPREE SAID DURING THEIR CONVERSATIONS 

WERE: 

A) MCCLESKY SAID THAT HE HAD A GIRL FRIEND NAMED go} HE SAID THAT HE HAD 

A GIRL FRIEND FOR A WITNESS, HIS SISTER, AND KE SAID THAT HE HAD ANOTEZR ONE, 

BUT I CAN'T TEINK OF THE NAME, BUT HE SAID THEY WERE GOING TO TESTIFY THAT 

DURING THI DAY WHEN THE ROBBERY JUMPED OFT, THAT HE WAS IN MARIETTA THAT DAY 

AND THAT EE DIDN'T COME TO ATLANTA UNTIL ABOUT 3:30 P.M.-4:00 P.M. AND SAY 

THAT HE HAD ALREADY GOT A MAN IN MARIETTA TO WRITE A LETTER SAYING THAT ON 

ANOTEER ROBBERY UP THERE, THAT HE WAS AT TEE PLACE WORKING WHEN THAT ONE CAME 

I KRAVE READ/HAVE HAD EAS os /THE ABOVE STATEMENT AKD IT IS TRUE 0 ‘THE BEST OF 
c DV 

  

  
  

  

  

  

  

  

Me - a em 

My ! > 1369.51 =) : : i BELIEF AND KNOWL_EDS D HAS BEEN GIVEN FREZLY AND VOLUNTARILY BY MNEs. 
Fin 

: Sl Po rn 
Aa 7/ SiGHAIORE y 

wa NESS : ov A wy INESS 7 J Fv DATE i TIME 

Sree _— ly Si Rd j 2 Tt i oR” IT ea VICTIH SCHLATT, FRANKUR, {OFF 
ZN 

(REE FT XS - ’ v ho 
WIihzSS Pca Li COMPLAINT # at A548 VLE 

FM: 73 

 



  

  

    

    

ATLANTA BUREAU O JSOLICE SERVICES pate LL 157%. yom Le 
STATZHENT OF QFTIT GENE EVANS RACE Sey DOB 

HOME ADDRESS APT CITY/STATE 
BUSINESS ADDRESS PHONES 
  

  

: BUSTRESS / Pome 

DETAILS: 
. 

OFF IN MARIETTA. THAT HE WAS GOING TO TRY AND GET THXT SAME MAN WHO GAVE KEIM 

ALIBI IN MARIETTA, TO GIVE HIM AN ALIBI FOR THE ROBBERY THAT HAPPENED IN ATLANT: 

THAT HE HAD SEEN HIM THAT DAY THAT THE ROBBERY CAME OFF. MCCLESKY SAID "NOW TH: 

AIN'T GO LET ME MAKE NO PHONE CALL, BLT THEY WILL LET YOU MAKE ONE, NOW I WANT 

YOU TO CALL Tham, ASK BER IT EVERY THING WAS ALLRIGHT AND CHECK WITH THE PECP. 

AND FOR HER TO CHECK WITH THE PEOPLE AND COME OUT THERE SUNDAY AND ‘LET HIM KNOW 

SUNDAY WHEN SEE CAME TO VISIT HIM, AND LET HIM KNOW WHAT WAS GOING ON. MCCLISK 

WROTE THE NUMBER ON A PIECE OF PAPER AND TEROWED THE NUMBER OUT ON- THE HALLWAY 

AND PUT THE BLANKET OVER THE PIECE OF PAPER UNTIL I GOT Zi. THIS IS THE SAME 

prECE OF PAPER THAT ‘I GAVE TO DET. HARRIS, .DET. "DORSEY AND DIST. ATTORNEY. PARK: 

WHEN THEY CAME TO INTERVIEW ME. THERE WAS TWO PIECES OF PAPER WITH SI Ne 

ON IT. I TRIED TO CALL @E=mus® WHILE THE D. A. AND THE DETECTIVES WERE SITTING 

TESRE BUT I WAS UNABLE TO GET AN ANSWER, THE PHONE JUST, RANGED. THATS' WHAT 1 

TOLD MAC WHEN I GOT BACK TO THE CELL. HE SAID "OK, SHE'LL PROBABLY BE OUT BER 

(MCCLESKY) 
bs sa ha uiag 

SUNDAY. THEN MCCLESKY SAID THAT "WHEN THE POLICE COME TO KIS HOUSE IN MARIZTT 
dnd bo 

HE SAID THAT THEY JUST DID OVE VERLOOK SOME MONEY ORDERS, THAT THEY LOOKED IN 

rd ~~ 

WEEEEEEP POCKETBOOK AND FOUND TWO OR THREE REEFERS, AND OVERLOOKED A GUN, I T 

I HAVE READ/HAVE HAC READ TO MS/T : 
HY BELIEF U ME/THE ABOVE STATEMENT AND IT ; 

BELIEF AND KNOWLEDGE AND HAS BEEX G7 IVEN FREZLY AND CLONTARILY BY HE i 

  

  
    

  

  

, - 

ll ~ sg Ye” la, LA 

STGAATURE /, 
~.TMESS ih 

/ 

og oo ex 
/ — 

~ . DAT: TSS i TIME 

4 17 =ynre . 0 
-~ 

Nat 12% S 4s Ly ir, 21 1 Let n er a 

ps YICT IM SCELATT, TRAIAN IDF 

RITi2ss =u. 2 TU WE 
= DE a COMPLAINT # L§3548 VLIW 
  

  

FM229 

Mn ey 
 



  

  

      

  

  

  

  

ATLANTA BUREAU ‘OLICE SERVICES DATE \-1o7s TINE : 
STATZHENT OF OFFIE GENE EVANS RACE: sey DOB 

HOME ADDRESS APT CITY/STATE 
SUSINESS ADDRESS PHONES 

DETAILS: 

  

BUSIRESS  / nOME 

THAT EE SAID IT WAS A 25 AUTOMATIC THAT BELONGED TO HIS OLD LADY, THAT IT WAS 

— IX THE REFRIGERATOR. HE SAID THAT ZS HAD GOT $500.00 BOND FOR THE REEFERS 

THAT WERE FOUND IN HER POCKETBOOK. MCCLESKY SAID .THAT HE WASN'T TOO MUCH 

WORRIED ABOUT THOSE CASES CAUSE TEE D. A. WAS TRYING TO GET SOMEBODY TO TURN 

STATES' EVIDENCE, THAT THERE WASN'T NOBODY TO TESTIFY BUT JE AND SHE WAS IN 

ON IT HERSELF TOO. LATER OK MCCLESKY SAID THAT HE WENT TO COURT TO BE INDIC TFT he eh nd 

ON A RUBBERY, MURDER CHARGE AND HE BE GOT DAMN IF THE D. A DIDN'T COME UP WITE 

A SECRET INDICTMENT ON HIM. TI TOLD HIM "YOU KNOW YOU CAN'T GET NO TIME FOR NOT 

LIKE TBAT." MCCLESKY SAID THAT HE DIDN'T KNOW THAT HE THOUGHT THAT HE SEEN SOX 

BODY IN THE COURTROOM THAT HE KNOWED THAT COULD HAVE PINPOINTED HIM ON THE SCEY 

h] 

**x%x% DUPREE SAID THAT HE HAD A SHOTGUN CASE OUT IN DEKALB COUNTY, A SAWED OFF SHOTGL 

AND TEAT SHOTGUN HAD BEEN IN ON SOME ROBBERIES, TOO. 

*** MCCLESKY TOLD ME "MAN THE SHERIFF IN COBB COUNTY TOLD ME THAT HE DIDN'T LIKE K( 

THEY WAS DOING HIM, THE ONES WHO HAD WENT TO PICK HIM UP, AND THAT ON HIS WAY ! 

3 
EE FIBURSD THAT IT WAS GOING TO BE SOME SHIT WHEN TEEY GOT HERE IN ATLANTA & 

WHEN THEY GOT HERE IN ATLANTA, AND STARTED QUESTIONING. THAT HE WAS INTENDED ° 

MAKE THE SAME CONFESSION THAT HE HAD MADE IN MARIETTA. HE SAID THAT THEY -QUES 
- am -bbaw 

l 1A\000 and 3 a = pep gow HAVE READ/HAVE HAD READ TG ME/THE ABOVE STATEMENT AND IT IS TRUE TO ‘THE BEST OF RY BELIEF AND KHOWLEDSZ AND HAS SEEX GIVEN 

wa THESS 1 7! er ay 
py cL - il a) A 

- 4 gs i 

  

!1ur : 
ia roses . < 

  

vl - 

WIThESS AM. 3 fea 
  

FREELY AND VCLUNTARILY BY ME.. 
Sr Ae =. ve." : 

SIGRATURE / , 

DATE © Pf Sa TINE 

  

  

  

  

VICTIM SCHILTT. TRANR. RP. rave 

COMPLAINT # . 4623548 yo. 
  

 



  

»  ) 
oF 
  

    

  
  

ATLANTA BUREAU 3 JLICE SERVICES DATE (Fore TINE : 
STATEMENT OF OFFIE GENE EVANS RACE SEX DOB : 

HOME ADDRESS APT . CTTY/STATE 
SUSINESS ADDRESS PHONES 
  

  TRIES WE 
DETAILS: 

HIM A WHILE. MCCLESKY SAID THAT THIS GREAT BIG SON OF A BITCH GRABBED IE BY 

MY COLLAR AND SNATCHED ME OUT OF THE CHAIR, SNATCHED ME OUT OF THE CHAIR, 

AND HIT HIM UP SIDE HIS HEAD, AND SAID "YOU KNOW YOU SHOT THAT MAN, DIDN'T 

YOU DO IT.? MCCLESKY SAID THAT HE SAID "NAW." MCCLESKY THAT THE DETECTIVE 

KEPT ON. MCCLESKY SAID THAT HE TOLD THE DETECTIVE THAT ANYTHING THAT YAWL 

WANT ME TO SAY, I'LL SAY IT. MCCLESKY SAID THAT THE DETECTIVE WENT ON TO TELLINC 

HIM ALL THAT HE WANTED KIM TO SAY AND THAT ALL HE DID WAS SAY YEAH. I TOLD 

HIM THAT HE WAS JUST A FOOL, THAT IF I DIDN'T KILL A POLICE, I WOULDN'T SAY IT. 

MCCLESKY SAID THAT HE THOUGHT THAT EE WOULD HAVE A BETTER CHANCE IF HE WOULD. 

GO AHEAD AND SAY IT THE WAY THEY WANTED HIM TO SAY IT, AND .GONE AND TELL HIS 

LAWYER ABOUT IT, AND SEE COULDN'T HIS LAWYER DO SOMETHING ABOUT THAT." MCCLESK 

SATD THAT THE LAWYER SAID THAT HE THOUGHT THAT HE COULD HANDLE IT, BECXUSE TE 

DIDN'T HAVE 'NO SMART D. A.'S OVER THERE NO WAY. 

*** MCCLESKY TOLD DUPREE AND TOLD ME LATER ON. THAT WHEN HE WAS GOINGTO ROB THAT 

HE WAS LOOKING FOR LIFE AND DEATH, THAT HE WOULD RATHER LIVE ALL HIS LIFE IN 

THE PENITENTARY THAN TO BE DEAD. THAT HE DIDN'T GIVE A DAMN IF IT HAD BEEN A 

DOZEN OF THEM SON OF A BITCHES THAT HE WOULD STILL EAVE TRIED TO SHOOT EIS WAY 

DUPREE SAID THAT WHEN IT COME DOWN TG KILLING, THAT'S IT. DUPREE "YOU DAMN SU: 
Sd Pia 

I HAVE KZXD/HAYE HAG READ TO ME/THE A30vs } HAVE READ/FAVE HAD READ TO ME/THE AS0VE STATEMENT AND A BELIEF AMD KNOWLEDGE AND HAS EEN GIVEN FREELY AND VOLUNTARILY Evi ooo! OF 
- . 

\ <2 — 

el) & 7 ~~ Me - SE arr in YL 

S$ iGIATURE 2.4 
  

WITNESS Adu 
DATE SS TINE   

  : -o 
HITHDSS 

3 \mww 

ii} VICTIM SCuLATT, TRANK R. (OFF.   

  

  

COMPLAINT # 463348 od   

  

 



@ 
( 

  

  
  

  
  

  
  

  
  

23 oF : 
ATLANTA BUREAU OF ~OLICE SERVICES DATE  %-1-78  TImt : 
STATEMENT OF ATTTIT ATUT TITANS RACE SEX DOB 

HOME ADDRESS APT CITY/STATE 
BUSINESS ADDRESS PHONES 

ST 
DETAILS: 

RIGHT. 

x*%* 1 OVERHEARD MCCLESKY AND DUPREE TALKING ABOUT ANOTHER GUY WHO HAD BEEN 

ARRESTED. THEY CALLED HIM SES OR BR, I DON'T REMEMBER WHICH ONE. TEEY 

WERE TRYING TO FIGURE OUT HOW THEY COULD GET TO HIM AND TALK TO HIM AND 

TELL HIM TO GET HIM SOME WITNESSES AND NOT TO MAKE A DEAL WITH THE D. A. 

BECAUSE THEY NOT GOING TO DO NOTHING BUT TRICK HIM. ALL THE D. A. IS GOING 

TO DO IS TELL EIM WHAT HE GOING TO RECOMMEND AND SAY AFTER HE RECOMMEND, THE 

JUDGE NOT GOING TO GO ALONG WITH THE RECOMMENDATIONN. MCCLESKY AND DUPREE 

| SAID THEY HOPED THAT THIS OTHER MAN feo Ri: GET WEAK AND STICK TO HIS 

STATEMENT. TEEY SAID THAT THE OTHER MAN HAD A PLATE IN HIS HEAD AND THEY WERE 

GOING TO TELL HIM THE REASON HE PLEAD GUILTY WAS BECAUSE HE DID NOT WANT TO GET 

BEAT BECAUSE OF THE PLATE IN HIS HEAD. MCCLESKY SAID THAT HIS LAWYER, JOHN 

TURNER TOLD HIM THAT THE D. A. WAS GOING TO TRY AND GET ONE OF THEM, © Z | 

0) Z TO TURN STATES' EVIDENCE SO HE WANTED TO GET IN TOUCH WITH THIS OTHER 

MAN SO HE WOULDN'T FALL FOR TEIS. DUPREE SAID THEY DIDN'T THANK THEY COULD 

BE PUT IN THE PENITENTARY OFF OF WHAT {We SAID BECAUSE IF SHE KNOW TOO MUCH 

IT WOULD SHOW THAT SHE WAS ON THE SCENE, OR WAS A CONSPIRACY TO WHAT HAPPENED. 

!H DUPREE SAID THAT &SE® TOLD EIS LAWYER THAT TEEY DID NOT HAVE NOTHING TO DO WIZE 

AVE READ/HAVE H - I (1 HAVE RERD/HAVE HAD READ TC ME/THE ABOVE STATEMENT AND IT IS TRUE TO ‘THE BEST OF dey} dog MY BELIEF AND XNOMLEDGE AND HAS BEEN GIVEN FREZLY AND VOLUNTARILY BY NE.. 
> 

od 2 ents 
2 foe SIGAATURE // 

Wi TNESS / An DATE [9% We, Ao - 
~ ab 

  

  
  

WiTHoes TS = ; mete | "4 A, 
3 aI" VICTIM SCELATT, FRAME BR. (QOFF.) 

  

  

i thesS Baa = « oo COMPLAINT 4 4€3548 Vie 
  

  

T™ITY 
Aan / 

 



( 

  

  
  

  
  

    

    

ATTANTA BUREAU OF'.OLICE SERVICES DATE b- 1-7 TIME d 

STATEMENT OF SALA RACE SEX DOB 

HOME ADDRESS APT CITY/STATE 

BUSINESS ADDRESS PHONES 
: 7 roe 

DETAILS: | 

THE ROBBERY. THAT WAS THE FIRST LAWYER THAT DUPREE SAID. THE LAWYER SAID 

_. THAT HE COULD NOT TESTIFY U0 THAT AND REPRESENT THEM TOO, SO HE WOULD JUST 

GET OFF THE CASE. SO THATS' WHAT HAPPENED TO THE FIRST LAWYER. 

x% ONE DAY DUPREE TOLD MCCLESKY "YOU KNOW I ALWAYS BEEN DOING YOU RIGHT, BUI 

YoU PUT MY NAME IN THE CONFESSION AND YOU KNOW THEY COULDN'T IDENTIFY ME 

OR NOTHING. AND WHAT WOULD YOU THINK IF I JUST GO ON LATER AND COME OUT 

AND TELL THEM THAT YOU WERE TE TRIGGER MAN. THEN MCCLESKY TOLD DUPREE 

"gor KNOW THAT I DIDN'T HAVE A CHOICE BUT TO PUT YOUR NAME IN IT, CAUSE = 

~ TOLD THEM ALL OF OUR NAME ANYWAY." DUPREE SAID "EE HAD A BAD RECORD AND 

WHEX SHE GET ON THE STAND, SEE GOING TO INDICATE HERSELF BEGAUSE SHE KNOWS | 

TOO MDCH, THAT SHE WOULD HAVE TO BE IN ON IT TO KNOW THAT MUCH, THAT A MAN 

WOULDN'T GO AND TELL HER ALL OF WHAT SHE IS GOING TO TELL, THE WAY SHE IS GOING 

T0 TELL IT. MCCLESKY SAID THAT "WITNESSES CAN GET YOU IN THE PENITENTARY aD 

WITNESSES CAN GET YOU OUT, CAUSE HE HAD THREE WHO WERE GOING TO TESTIFY WHERE 

HE WAS AT DURINGTHE TIME THAT THE ROBBERY HAPPENED. MCCLESKY TOLD DUPREE THAT 

WISHED THAT HE KNOWED SOMEBODY IN THE STREET THAT HE COULD MAKE SOME ARRANGEME 

FOR o—>0 COME TO COURT. THAT HE DIDN'T BELIEVE THAT SHE WAS COMING ANYWAY 
/ ~ 

. 

z 
I HAVE READ/HAVE HAD READ TO ME/T . wh 
MY BELIEF oid } ME/THE ABOVE STATEMENT AND I 

BELIEF AND KNOWLEDGE AMD HAS BEEN GIVEN FREELY AND DARL uRg rae BEST OF 

  

      

Pri, 
kiln “i “ he 

SIGNATURE L/ ——- 

Wi TNESS - 7a gives Hr oes, 

Tobe cnt Mer TGa ie VUE " NR 
> = VICTIM SCELATT, FRA RR. AQF 

  
  

SITHEESE al Te Bn 1biy — >A COMPLAINT 6 SCHRLATT., TRANK R. 10 Tiida ay 

  
  

 



Se1-78 

  

  

  

  
  

  
  

ATLANTA BUREAU oF SOLE FE SERVICES DATE =1-78% TIME 

STATEMENT OF NE RACE” . ‘soy DOB 2 

HOMZ ADDRESS APT CITY/STATE 

BUSINESS ADDRESS PHONES : 
[ RoR 

DETAILS: 

x** DUPREE TOLD MCCLESKY "IT MIGHT HAVE BEEN A BETTER THANG IF BEN, HAD GON: ON AND 

— KILL YOU WHEN WE WAS OVER IN TECHWOOD. I ASKED MCCLESKY LATER ON WHAT DUPREE 

WAS TALKING ABOUT. AND HE SAID "YEAH ME AND BEN HAD A LITTLE RUN IN, I THANK 

sald WAS THE CAUSE OF BEN JUMPING ON ME " MCCLESKY SAID THAT HE WAS SAVING 

6 f 
BENS' LIFE #AS WELL AS HE WAS SAVING HIS OWN. MCCLESKY SAID THAT BEN HAD JUMPED 

~ON HIM ,THAT HE CAME UP TO HIM AND SNATCHED HIM OUT OF THE CAR AND TOLD HIM 

"MAN WHAT THE HELL YOU DO THAT FOR, DON'T YOU KNOW THAT YOU DONE GOT ALL OF TS 

FUCKED UP CAUSE YOU SHOT THE GOT DAMN POLICE." 

k*% MCCLESKY SAID THAT WHEN THEY WENT TO THE PRELIMINARY HEARING THEY TALKED TO 
' 7, £E . . 

THE DUDE, ag OR ¥E8R AND TOLD HIM NOT TO FALL FOR Ses OF THAT SHIT. 

zo 

ARATHE FOLLOWING QUESTIONS ARE BEING ASKED OF MR. EVANS BY DET. W. HARRIS, - 

OF THE ATLANTA POLICE DEPARTMENT HOMICIDE SQUAD AND BEING WITNESSED BY 

RUSS PARKER AND INV. GRADY ESKEW OF THE FULTON COUNTY DISTRICT ATTORNEYS 

OFFICE: 

Qs EARLIER IN YOUR STATEMENT YOU TOLD US ABOUT . LENGTHY CONVERSATIONS YOU HAD 

: WITE WARREN MCCLESKY, HOW WERE YOU ABLE TO CARRY ON THESE CONVERSATIONS WITHOUT 

Dore SEAS ABLE TOC EEAR? HOW COTLD YOU HEAR TEE CONVERSATIONS BETWEEN MCCLES 

As TET ONLY WAY THAT DUPREE COULD HEAR US T "TNC WAS THAT HE WOULD HAVE TO BE UP 

! HAVE READ/HAVE HAD READ TO MS ; 
k ‘ TC MZ/THE aBOVS STATEMENT AN e 

MY RELIES ' ERA = ¥Z SIATEMERT AND IT IS TRUE TO ‘THE BEST OF AND RNOWLEDSZ AND HAS BEEN GIVEN FREELY AND VCLUNTARILY BY ME.. 
gi -— 

LY 

oh Bd : ig y 
ELA ol Fs Pie J ar 0 2 7 STGHATORE 

WITNESS ls x 2 oars S 0 STS Tee 
r=ugee NN — gb Sr OE rr SL VICTIM SCHLATT, FRANK R. (0 

  

    
  

  

  

WETHESS Ad 0 Re TRESS ol id ol fai COMPLAINT # 463548 VLIW 
  

  

 



  

kA (SE 

fae) ; 
-t ' 

ey 

  

  

    

    

ATTANTA BUREAU OF JOLICE SERVICES DATE &-.-78 TINE 
STATEMENT OF OFFIE GENE EVANS RACE sey DOB 

HOME ADDRESS APT CITY/STATE 

BUSINESS ADDRESS PHONES 
: STRESS 7 ot 

DETAILS: 

TO THE VENT CAUSE HE WAS OVER US, SO WE LAID DOWN ON TEE FLOCR, MCCLESKY WAS ON 

__ THE FLOOR AND I WAS ON MY BED, AND WE TALKED AROUND THE BARS FROM THE FRONT PART 

OF THE CELLS. THE BACK PART OF THE CELLS HAVE VENTS TO IT ABOUT 9 FEET HIGH ANI 

THRE IS A SINK RIGHT UNDER THE VENT FOR MCCLESKY AND DUPREE X . Y E TO UNDERSTAND ONE 

ANGTEER AND TALK TO ONE -ANOTHEREASH ONE OF THEM WOULD HAVE TO STAND UP ON THE 8: 

AND TALK AND LISTEN. AND THEN I COULD STAND UP ON MY SINK IN MY CELL AND I COU 

EEAR EVERYTHING THEY SAY.. 

Q: DID YOU OVERHEAR MCCLESKY OR DUPREE SAY ANYTHING THAT WAS TAKEN IN THE ROBBERY 

OF THE FURNITURE STORE? | 

A: MGCLESKY SAID THAT THEY GOT ABOUT ‘$2,200.00 SOME OF THAT WAS CHECKS. AND THAT 

THEY WENT TO DUPREES' OLD LADYS' HOUSE AND SPLIT THE MONEE UP. AND EE SAID TE 
blo 

HE DIDN'T TEINK THAT @SE® WAS SATISFIED BECAUSE SHE THOUGHT THAT IT WAS SUPPOS 

TO BE MORE THAN THAT. 

THE PEOPLE MENTIONED IN YOUR STATEMENT, WHICH ONES DID YOlL KNOW PRIOR TO 

ed
 

Q: 0 

BEING ARRESTED AND SENT TO THE FULTON COUNTY JAIL? 

A: BEN WRIGHT AND BERNARD DUPREL ARE THE ONLY TWO THAT I KNOW. I DON'T RNOW MCC 

SUT T KNOW EDM BY SIGHT BECAUSE HE PASSED MZ CELL ONE DAY WHER HE WAS TAREN 

oT XZ TO TAKE A SHOWER 

I HAVZ READ/HAYE HAD READ TO ME n 
"AVE READ/HAYE HAD READ TO ME/THE ABOVE STATEMENT AND IT IS 

AND KNOMLEDGE AND HAS BEEN GIVEN FREELY AND VOL Is TRUE TO THE BEST OF 

Sr, i aly lm 

Li 7) SIGHATY URE a 

or a I A ; 
DATE Pr So Tae 

  

      

  
  

- Lz — - 

HITHEOS: J ie) —t Rh VI an TRAN (0 
Mild aio z : CTIM SCELLTT, TRANK .R. rr. 

3 
pit, PY 

3 

Sl Ry 
bey 48 3 v2 2 

Soltis COMPLAINT 6 463848 Ly 
  

  

 



  

  

  

  

  

  

  

      

    

  

  
  

  

  

, PAGE 27 ® Jr “OLICE szpvrces DATE & .-75 TIME 1657 HRs! 
STATDHENT OF___ OFr1r ory + 

hy 4 
sxe 

RAL: eo ITY Dog 
HOME ADDRESS 

Fon i SUSINESS ADDRESS 

PRONES 
: 

: 

BUSTRESS / FOE 

DETAILS: 

: Q? IS TH: ABOVE STATEMENT TRUTEFUL TO THE BEST OF YOUR KNOWLEDGE AND GIVEN FREELY 
— WITHOUT Any PROMISES RENDERED TOWARD you? 

A: YES. S— & 
Fd 

END or STATEMENT a 

LJ 

» 

he 

! Hay: READ/HAVE pap READ TG ME/THE anus ce 
ue 

MY Briers \ Eas S/ i Hg ABOVE STATEMENT AND IT IS TRUE TO -THE BEST of 

7 AND KNOWLEDG: AND BEEN arvey FREZLY np VOLUNTARILY By ME. 
zs 2 & 8 oy 

iy oe 
“STGHATURE | 

~iTNE S 
A 

— 

i otal ger 
DATE =" 10 

2b 4 ut Ns Tr, 
WITNESS.   

  

  

1 SCEIATT, TRANR RS (OFF.) | 
CCHPLAINT £ £63548 ¥L 

Ala   

 



  
EXHIBIT F 

 



  

STATE OF GEORGIA ) ; 
COUNTY OF FULTON |) SS° 

JILL DARMER, being duly sworn, states: 

l. I am a citizen of the State of Georgia. I reside at 1445 

Monroe Drive, N.E., in Atlanta, Georgia. In 1978, under my former 

married name, Marg Darmer, I served as a juror in the trial of Warren 

McCleskey. 

2. Our jury had a hard struggle with the evidence in this 

case. We discussed the issue of guilt or innocence for a long time. 

We were able to agree without alot of difficulty that all four men, 

including Warren McCleskey, had at least participated in the armed 

robbery. But the issue of tesionsinlitty for the shooting was 

different. 

3. The evidence about who fired at Officer Schlatt struck 

me as far too pat. ‘The Atlanta Police Department was obviously disturbed 

that one of its officers had been killed. I had the feeling, however, 

and other jurors did as well, that the State had decided to pin the 

shooting on Warren McCleskey, even though the evidence was not 

clearcut that McCleskey had actually been the che who fired the shots 

at the officer. 

4. The testimony from Ben Wright, the other co-defendant, 

didn't impress us much, since he obviously could have committed the 

shooting himself and had everything to gain by blaming McCleskey. 

The evidence on who was carrying the silver gun seemed to point to 

McCleskey, but it was contradictory at several places. Several 

witnesses stressed McCleskey had been the one to come into the front 

of the store, but three of the robbers gathered all the store personnel 

together in the middle of the store, and nobody even saw which one of 

 



  

the three ran toward the front when Officer Schlatt arrived. 

5. That left us with the testimony of Offie Evans, who had 

been in the cell next to McCleskey. Evans told us that McCleskey had 

admitted to him that he had shot Schlatt; McCleskey even said he would 

have shot his way out no matter how many police had been there. This 

testimony made a real difference in my opinion. Unlike Ben Wright, I 

didn't think Evans had anything to gain. I knew Evans had a prior 

criminal record -- they brought that out during the trial -- but, 

despite that, I didn't see any reason why he would deliberately tell 

a lie to get McCleskey into trouble. 

6. We finally decided to convict McCleskey of malice 

murder, even though some of us continued to have some doubts about 

the evidence. 

7. I was surprised after we gave our verdict when they told 

us we wold have to SEA Ting Shad sentences I thought the Sudgs would 

do that; so did some of the other jurors, I remember. During the 

penalty phase, some of us talked alot about our doubts on who did the 

shooting. This was a very close case for me on whether to give life 

or death. If we had found any valid reason not to give death, I am 

certain that I, and a number of other jurors, would never haven given . 

McCleskey a capital sentence. But the defense attorney, honestly, just 

wasn't nearly as good as the prosecutor. We weren't given any real 

reasons we could stand by, except our doubts about who did it, to vote 

for a life sentence. On the evidence we had, even though it was 

very, very close, I think we did the right thing. 

8. Earlier this week, two persons involved with McCleskey's 

defense came to see me at my apartment. They asked me what I remembered 

and I told them. I was very disturbed when I learned that a police 

 



  

detective had promised Offie Evans in 1978 to speak with federal 

authorities on his pending escape charge. 

9. My own vote depended alot on Evans' testimony. The 

idea that Evans might have testified hoping to avoid conviction on 

federal escape charges changes my view of the whole trial. It gave 

Evans a strong motive to lie that we didn't recognize at the time. 

10. As I said, this was for me a very close case. It took 

Evans' testimony for the State to prove to me, beyond a reasonable 

doubt, that McCleskey was the triggerman. Without Evans' testimony 

I definitely would not have voted for a death sentence, and I believe 

at least a few other jurors would have agreed. 

ll. Let me go further. I knew then that it only takes one 

juror to hold out against the rest. I am certain that had I wrloim 

that Ofsie Evans had an SvTanggmens with an Atlanta detective -- if 

I ‘had Heard Evans testimony in the state Habeas corpus procseaitis ei 

I would never have voted to impose capital punishment. I believe I 

could have remained firm in my vote no matter what other jurors may 

have decided. It would have been enough to leave a big question in 

my mind about who actually killed Officer Schlatt. 

12. The crime McCleskey and his three friends were involved 

was very serious, but so is a death sentence. Our Surry 

tried hard to do the right thing in a very difficult case. I think 

we were entitled to all the evidence. It ii we didn't get it. 

  

3 : ot TE 
AAA Aria = 

Ji11 Darmer 

  

Sworn to and subscribed before me 

FZ 

this. i1"” day of May, 1987 

FIle ui 

  

Notary Public. Fulton Ccunty. Georgia 
My Commission Expires May 30, 1950 

 



  
EXHIBIT G 

 



  

STATE OF GEORGIA ) 
COUNTY OF GWINNETT ) 

SS: 

ROBERT F. BURNETTE, being duly sworn, states: 

1. II am a citizen of the State of Georgia. I reside 

at 213 Kenvilla Drive, Tucker, Georgia 30084. In 1978, I served 

as a juror during the trial of Warren McCleskey in the Superior 

Court of Fulton.County, Georgia. If I had known during the trial 

what I have recently learned about one of the State's key witnesses, 

Offie Evans, I believe it could have made a difference in whether I 

voted for a death sentence, and I believe it would have affected 

some of the other jurors too. 

2. It wasn't an easy case. We spent a long time 

discussing the State's evidence. All of the jurors in our case 

were very responsible and concerned to be fair. It did seem clear 

thet, from she evidence we HORE, McClesiey Hadibess one of the four 

men who robbed the Dixie Furniture Store. The hard question for us 

was whether he was actually the one who shot the police officer, 

and whether it had been with malice. 

3. Ben Wright, the other robber who testified for the 

State, said that Warren McCleskey had admitted the shooting. I 

honestly never trusted Wright and I don't think the other jurors did 

either. He seemed like a man without a conscience. He was very 

cool and arrogant when he testified. I had the feeling that if he 

had done the shooting himself, he wouldn't have had any remorse at all. 

4, I also remember Offie Evans, who had been in jail, and 

who testified that McCleskey had admitted to him that he had done it. 

Evans also said, I remember, that McCleskey told him he would have 

shot other policemen to get out of there. That was important 

 



  

evidence to us. It looked like Evans had nothing to gain from what 

he said. 

5. We finally decided that whoever shot the policeman 

had deliberately tried to take his life. TI was not 100 percent sure 

that McCleskey was the triggerman since there was nothing that 

absolutely proved he was the one -- but on the evidence we were given 

he seened to be the one. 

6. When we started to discuss the sentence, our decision 

got even harder. It seemed we took a very long time, and some of us 

were looking for a good reason, any reason, to give McCleskey a life 

sentence. I come from a broken home myself; I was passed around from 

relative to relative coming up, and I spent a year and a half in the 

Methodist Orphanage. I know that what a person's been through can 

affect his view of life. But no one in this case gave us any real 

reason to yoke Pr 14s, | | wy 

7. Even without any background on McCleskey, it was a 

very hard thing to vote for death. I remember I did so only because 

I thought, based on the evidence we had, that McCleskey had 

deliberately taken that officer's life. 

8. On May 7, 1987, two people representing McCleskey came 

to ask me about the case. After I told them what I remembered, they 

told me about the Atlanta police detective who had promised to speak 

to federal people about Offie Evans' escape charge that he had at 

the time of the trial. Nobody ever told us about that during the 

trial. It puts a very different light on Evans' testimony. It 

sounds like he was probably hoping to get off of his escape case by 

testifying against McCleskey. The jury should have known that, I 

 



  

think. It changes the State's whole case. 

9. Like I said, we had a hard time deciding who did the 

shooting, and a hard time deciding to impose the death sentence. I've 

read the part of the trial transcript where Evans testified, and 

I've also read what Evans said in the state hearing in Butts County. 

I would definitely not have voted to sentence McCleskey to death if 

I had thought he might not have been the triggerman. Even without 

Offie Evans' testimony, I've naturally wondered alot if I did the right 

thing. Knowing now that Evans could have lied to cover his deal with 

the detective definitely could have made a big difference to me, and to 

other jurors, I think -- at least in deciding to give the death 

penalty. It keeps me from being sure, and I don't see how you can 

impose the death penalty if you're not very sure. 

10. Apart from Ben Wright, who might have done it himself, 

and thon so.8 evidence po who had the aurdsy weapon; which NEvets 

quite added up, the whole case against McCleskey for shooting the 

policeman came down to Offie Evans. If he was just testifying to 

save his own skin, I couldn't have trusted that. No one can always be 

certain, but I honestly do think knowing about his deal with the 

detective could have made the difference to me. It doesn't seem 

fair that we weren't told about it. 

  

Robert F. Burnette 

Sworn to before me this 3-* day 
of May, 1937 

  

oy - EN 2 TN i. a Sn emi ee The Notary Pantie Fotnme fms 00 TS 

My Commigsich Dusirns 0, $2. 15850 

 



  
EXHIBIT H 

 



  

name, please stand and rexain standing until both sides 

heve an opportunity tc pass upon you, 

Phili: 35. 

CLERNS 

PAXKEK? 

TURLLRS 

CLLERN? 

PARKLX: 

CLERK: 

MNOYTis, 

Tlie State will sccert Hr. Morris, 

Excusea by the defendant, 

Fe. walters, 

The State will excuse Mrs, rnalters, 

vie Eo wie Marehall, 

The State will accept Mr. Marshall. 

Excused by the defendant, 

Mrs. Lucile Shively. 

The State will accept irs. Shively, 

Excused by the defendant. 

Leonard Larson. 

The State will accept Kr. Larson. 

CLxcused by the defendant. 

cna walls. 

Ti.e State will excuse FHrs., walls. 

Mrs, Marguerite P. Bohler. 

-168~- 

 



« PARKER: The Ctate will accept Hrs. Bohler. 

  

fF. TULLER: Acceptable to the defendant. 

Ronalo CG. Hudelns, 

hide PARFLE: Tne State will accept Mr. budc ins, 

#FRe TURKER: Acceptable to the derendant. 

“EE CLLRhs Mis. Hildreé Glover. 

Re PARKER: The State will accept lirs., Glover. 

FE. TUshIR: Lxcused¢ by the defendant. 

“UE CLEAL: Paul J. Reale. 

Mil. PARRER: The Stete will accent Hr. keale, 

nike TURLEEK: Acceptable to the defendant, 

8 CLERK: John KH. Holder. 

Elke PARKER: The State will accent kr, Helder, 

MR. TURNEM: Lxcused by the defendant. 

TuE CLLRh: Wayne F, martin. 

Mho PARRER: The State will accept Br. Martin, 

MPR, TURLER: Excused bv the dufendant. 

TRE CLLRK: Fobert iL, Hamilton, 

Hk. PARKER: The State will accept ¥r. Hamilton, 

-16%- 

 



  

UsERt Acceptable to the defendant, 

THESCLERN: Hrs. Carolyn J. Bzlliard, 

YK. PAFKKER: Tue State will accept Krs. ballard. 

ME, TURNER: Mrs. Ballard 1s acceptable to the 

TEL CLL#R: MNrs., Hildred Moore, 

MR, PARKEE: The State will accept ¥rs. ore. 

¥Re TURIFR: Excused by tne defendant, 

muE CLEAN  Pobert FE. Smith, 

Fe: BAREDRY. "he State will accept Rr. Smith, 

¥R. TURKEl: Excused by the defendant, 

HL CLIRR: Mrs. Florence R. #olley. 

YR, PARKLCR: The State will excuse irs, lcbley. 

TEE CLERK: Janes L. Rimbell, 

MR. PARRECP: The State will accept Mr. Kimball. 

- MR. TUERILiER: Excused by the defendant. 

Hi CLERK: Fopert L. lLagle, 

. }iR. PARKER: The State will accept Kr. kagle, 

#“R TURNER: Acceptable to the defendant. 

-17C- 

 



  

CLER 

PAFREXLAS 

TURLER 

CLLRK: 

Donald Ge Gosden. 

‘he State will accent Mr, Losden, 

AcCcep tan 

Robert CC, 

le to the 

tears, 

defendant, 

The (tate will accept Mr. Scarc, 

xcused uy the defendant. 

iss Jessie Rorne ° 

The State will excuse Kiss Horne, 

Hrs, Aghne 

Te Stat 

[3] 
[~4 Ce. 

will accept Mr 

Awtrey, 

wn
 

Acceptable to the defendant, 

Krs. Marianne i. Hasher 

The State will accept 

Ed 

XLS, hasher. 

Acceptable to the defendant, 

Ocell Watkins, Jr. 

The State will accept Mr. Watkins, 

Excused by the defendant. 

rollin CC. sha Cpe. 

 



  

{Rs PARKELR:t The State will accept Fr. Sharpe. 

Ke LURKER: Excused by the defendant. 

THE CLERK: Miss Carol A. dares, 

MRe PARKLK: The State will accept Hiss Cames, 

MRe TURNKNZR: EXcused by the defencant., 

“hi. CLERRs John FF, ¥doCadlan, 

BR. PARERER: Zhe Ltate will excuse Mr, McCadden, 

HE CLERF:  PoLert FP. hurnette, 

HR. PARKLR: The State will accei.t Mr. Burnette, 

MR. TURUL:: Acceptable to the defendant. 

THE QLZkE: Erec. Clifford Le ilutton, Jr. 

Mi, PAEKEN®: The State will excuse Mrs. Lutton. 

THE CLIRR?  Nrs. Dorothy Smith, 

KK. FPARKER: The State will accept Mrs. Smith. 

MR. TURKER: Excused by the defendant, 

THE CLERK: Mrs, Mary G. Darmer. 

MRe PARKER: The State will accept Mrs. Darmer. 

MR. TURNER: Acceptable tc the defendant, 

-172= 

 



  

Pt IE RE 

- eaANER $ 

CLERK: 

PARKER: 

CLERK: The following four jurors will be called 

MIPS. waldtrsut I. Lavroff. 

TLe State will excuse Mrs 

Joseph C, League, Jr, 

Tue Late will sccerpt Mr. 

Lxcused by tae cefendent. 

Pd 

HIS. fuzenne He, Filgc, 

The State will excuse ars. 

Juscyh Lene. 

The rete will excuse Mr. 

%illiei 2: Lane. 

The Stete will accept Er, 

Excused Liv the defencant, 

cohLasecn BF. Mason, 

Ed 

The State will accerst rr, 

Excused by the deferncant. 

¥rs. He. H, Eickey. 

cane, 

Mason. 

. The: State will accept Mrs. Eickey. 

Acceptable by the defendant, 

-173~- 

 



  

for the purpose of selection of the first alternate. 

Patricia 

CLEIUG 

PARLE: 

TUKLLES 

CLK: 

first. alternata. 

of selecting the second 

- 

The next four jurors: will be called for 

~ s 

=a 5, Thaetls Juror Lumber 107. 

tate will excuse 7, 
-ri scm ® 

Villard E. Beavers. 

hie State will accept Hr. Beavers, 

by the defendent. 

t:illier J. Greene, Jr. 

“he State will accept lir. Greene, 

defendant, 

cohn 4, Abernathy, Jr., will be the 

the purpose 

alternate, 

¥rs. Mary J. Cox, 

CLERK: 

PARKER: 

COURT: 

twelve jurors and 

names and you are 

The State will excuse Krs. COX. 

Ordney C. Eeldwin, 

The State will accept Fr. Baldwin, 

Acceptable to the defendant. 

All rignt, gentlemen, we have our 

We cidn't reach your 
- oh 

excused until in the morning at S:30. 

twC alternates. 

-174- 

 



  

Report hack to the jory assembly room at 9:30 in the 

morning, 

YE, 

proceed 

&nd 1 need 

THE COURT: let's 

I guess sc 

acconr lish 

either way 

Thank you 

PARARERS 

this evening? 

very much for vour petience, 

‘ 

Does Your Honoy rnow how late we will 

I have releasec soe witnesses 

to start getting therm Lack down here, 

have the opening statements, and 

jurcrs won't feel thet thev didn't 

anything, let's plan to go until 5:08 or 5130, 

you want to. 1 will let vou decide how Rany 

vitnesses you need. 

211 rioht, gentlencen, 

the rule, 

jn 

THE COURT: 

FAPKL X3 

the Court is going to imnose 

. 
3 Are Vou Treacy? 

Yes, Your Honor, 

All richt, will 211 the witnesses in 

the courtroom who expect tc testify in this case please 

with 3C 

ty testify 

the sheriffs tC the witness roor. If vou expect 

at all for the State or the defendant, please 

leave the courtroon. 

Gentlemen, do vou cibject to tle sheriff goine in and - - 3 

finding out if anybody is coing to need him to go vet their 

clothes or =~ we know we have one juror that wants his 

blood pressure vills, Do you mind the sheriff voing into 

‘the jury roox and asking those quections so he can get a 

nurter on how many people ae will need? 

HR, TURNER: ko objection from us. 

-175~ 

 



  
EXHIBIT I 

 



  

STATE OF GEORGIA 
COUNTY OF FULTON 

AFFIDAVIT 
  

1a My name is Harriet P. Morris. I reside at 4655 Jett 

Road, N.W., Atlanta, Georgia 30327. 

24 On Wednesday, May 20, 1987, I visited the Fulton County 

Voter Registration Office, Room 106, 165 Central Avenue, S.W., 

Atlanta, Georgia 30335 to view the Master Voter Registration List 

in use at the time of Warren McCleskey's trial in Fulton County 

in October, 1973. The Voter Registration List is preserved on 

microfiche, and is available for public viewing in the 

Registrar's office. The List which I viewed was current as of 

July: 28, 1978, 

3. The Voter Registration List contains the following in-.. 

formation: Name of Voter, Current Address, Voting Precinct, Con- 

gressional District, State Senate District, State House District, 

City Council District, Year of Birth, Race, Sex, and Date of 

Oath. 

4, By reviewing the Voter Registration List, I was able to 

determmine the race of sixty-nine (69) of the seventy-two (72) 

jurors who comprised the six (6) panels from which Warren 

McCleskey's jury was chosen. See, Exhibit A. 

Be The names of three (3) jurors whose names appear on the 

jury list which is a part of the McCleskey record and who were 
  

voir dired prior to the selection of the jury which heard the 

case do not appear on the Voter Registration List which I viewed. 

Jessie D., Horne, Panel No 8, Juror #85; Mary J. Cox, Panel 10, 

Juror #111; Autry A. Dennis, Panel 11, Juror #127. 

 



  

6. In an attempt to determine the race of these persons, I 

viewed the Master Voter Registration List which immediately 

preceded the July 28, 1978 list. This list, dated September 17, 

1977, did not contain the names of these persons. 

Tw I reviewed the Trial Transcript of the Voir Dire and 

Jury Selection to determine which prospective jurors had been 

excused, which had been peremptorily stricken by the State and 

the Defense, and which had ultimately been seated as jurors. 

Further Affiant saith no more. 

' — FS 3 

I #5 a8 oi, 0 tly” 3.2% nile 
  

Harriet P. Morris 

Sworn to and subscribed before me, 

this the. NV. day of Nays 1987. 

Notary Public 
  

My Commission expires: ¢/i5/77 

 



  

SA-# 

DA-# 

Alt. i 

KEY 7c JURY rIsT 
  

Defendant's Peremptory Strikes 

State's Peremptory Strikes 

Jurors Seated To Hear Case 

Jurors Excused From Case 

Jurors Who Were Voir Dired But Omitted From 
The Striking Process; Trial Transcript Silent 
As To Reason 

State's Peremptory Strikes for Alternate 
Jurors 

Defendant's Peremptory Strikes for Alternate 
Jurors 

Alternate Juror 

EXHIBIT A 
  

 



JURORS IMPANELED FOR STATE v. McCLESKEY, A-40553 

  

  

  
  

    

    

    

JUROR RACE JURY JUROR RACE JURY 

PANEL NO 6 PANEL NO 9 

Philip S. Morris W D-1 Darmer, Mary G. Ww #11 

Walters, Doris S. B S-1 Lavroff, Waldtraut Ww S-7 

Marshall, W. B., Ire W D-2 League, Joseph C. W D-16 

Thompson, W.M. Ww Exc. Kilgo, Suzanne BH. W S-8 

Hurd, Windle W. Ww Exc. Dane, Joseph R. Ww S=9 

Shively, Lucille T. W D-3 Lane, William A. Ww D-17 

Larson, Leonard J. Ww D-4 Mason, Johnson B. W D-18 

Walls, Edna B S-2 Hickey, Mrs. H.H. ¥W #12 

Bohler, MargueriteP. W #1 Montgomery, BruceE.W 7? 

Hudgins, Ronald O. Ww #2 Kirbo, Margaret L. W 2 

Glover, Mildred F. Ww D-5 Dukes, Patricia J. B SA-1 

Reale, Paul J. Ww #3 Beavers, WillardE. W DA-1 

PANEL NO 7 : PANEL NO 10 

Holder, John M. Ww D-6 Greene, William J. W DA-2 

Martin, Wayne F. Ww D-7 Abernathy, John M. W Alt.1 

Hamilton, Robert L. B #4 Cox, Mary J. SA-2 : 

Ballard, Carolyn Jo Wie 45 - Baldwin, Rodney CO, -B.: . Alt.2 - 

Moore, Mildred. R. Ww D-8 Johnson, Wiley r. B 

Smith, Robert E. Ww D-9 Williams, Clarence W 

Mobley, Florence R. B S-3 Conner, Robert L. W 

Kimball, James L. Ww D-10 Turner, Marian D. W 

Nagle, Robert L. Ww #6 Ross, Marian C. B 

Gosden, Donald G. Ww #7 Underwood, Jean Ww 

Weston, Barbara J. B Exc. McKibben, Mary W. B 

Sears, Robert C. Ww D-11 Parrish, Judy K. B 

PANEL NO 8 PANEL NO 11 

Horne, Jessie D. S-4 Vaughn, Agnes C. B 

Awtrey, Agnes C. Ww #8 Alvarado, David Ww 

Nahser, Marianne W. W #9 Blackmon, Thomas F.W 

Watkins, Odel, Jr. B D-12 Grove, Samille T. W 

Sharpe, Rollin C. Ww D-13 Guthrie, Nancy R. W 

James, Carol A. Ww D-14 Becker, Cornelia V.W 

McCadden, John F. B S-5 Dennis, Autry A. 

Hiles, Joseph W. Ww Exc. Walker, Leda L. Ww 

Burnette, Robert F. W #10 Young, Margaret E. W 

Lutton, Jeannette Ww S-6 Buchanan, James F. W 

Cason, Emma T. Ww Exc. Stansberry, Jeanne W 

Smith, Dorothy W. B D-15 Jeter, Betty G. Ww 

 



  
EXHIBIT J 

 



  

AFFIDAVIT OF DORIS F. WALTERS 
  

STATE OF GEORGIA) 
}SS: 

COUNTY OF FULTON) 

Personally before the undersigned officer duly authorized 

by law to administer oaths, appeared DORIS F. WALTERS, who, 

after being duly sworn, deposed and stated as follows: 

1. My name is DORIS F. WALTERS. I am more than eighteen 

years of age, and am under no legal disability of any kind. 

This affidavit is given voluntarily and without coercion of 

any kind. 

2. I was a resident of Fulton edunty during 1978, and 

was called for jury duty during the week of October 9, 1978. 

I recall being questioned individually as one of a number of 

jurors called as a potential juror in the trial of a man 

[Warren McCleskey] accused of shooting a City of Atlanta 

police officer. 

- -— 

le Iwas not chosen 48 & juror ln that case. 

4, My race is Black. 

3 SI fri / 7 

This ~: l GAY of. lyre cai , 1986, 
  

  

or L 

, Ea Fo J : Shee’ 

Lil 5 yu 2 {Zh. 8.) 
DORIS F. WALTERS 
  

Sworn to and subscribed 

before me, this AG 

  

  

  

NOTARY PUBLIC: =) 
< - sia yay ; AI 

3p amma S Sion LA HES JUIN Way Wit tat : x 

 



  

AFFIDAVIT OF EDNA WALLS 
  

STATE OF GEORGIA) 

}§8: 
COUNTY OF FULTON) 

Personally before the undersigned officer duly authorized 

by law to administer oaths, appeared EDNA WALLS, who, after 

being duly sworn, deposed and stated as follows: 

1. My name is EDNA WALLS. I am more than eighteen years 

of age, and am under no legal disability of any kind. This 

affidavit is given voluntarily and without coercion of any 

kind. 

2... I was a resident of Fulton County during 1878, and 

was Jailed tor jury duty during che week of October 9,-1978. 

I recall being questioned individually as one of a number of 

jurors called as a potential juror in the trial of a man 

[Warren McCleskey] accused of shooting a City of Atlanta 

police officer. 

3. ‘1 was not chosen as o juror in that case. 

4. My race ls Black. 

; Y nl 
This Lin, 3), day of [7 5% , 1986. 
  

  

chi Ale w-blr (LL. Gq) 

EDNA WALLS 
  

Sworn to and subscribed 

= 3 a 

before me, this 

  

$6. 7 ow 

  

NOTARY PUBLIC i 

 



  

AFFIDAVIT OF FLORENCE MOBLEY 
  

STATE OF GEORGIA) 

}§S3 
COUNTY OF FULTON) 

Personnally before the undersigned officer duly authorized 

by law to administer ocaths, appeared FLORENCE MOBLEY, who, after 

being duly sworn, deposed and stated as follows: 

1. My name is FLORENCE MOBLEY. I am more than eighteen 

years of age, and am under no legal disability of any kind. 

This affidavit is given voluntarily and without coercion of any 

kind. 

2. I was a resident of Fulton County during 1978, and was 

called for jury duty during the week of October 9, 19787 I 

recall being questioned individually as one of a number of jurors 

called as a potential juror in the trial of a man [Warren 

McCleskey] accused of shooting an City of Atlanta police officer. 

3. I was not chosen as a juror in that case. 

4, My race is Black. 

This...  daviof. .! 5195864 
  

  

FLORENCE MOBLEY 

Sworn to and subscribed before me, 
this ro vday of ; 1986. 

  

  

Notary Public 

tas only, Leorg1a. 

cLNIR TN on pa Pi 

 



» i 

  

AFFIDAVIT OF JESSIE D. HORNE 
  

STATE OF GEORGIA) 

) $8: 
- COUNTY OF FULTON) 

Personally before the undersigned officer duly authorized 

by law to administer oaths, appeared JESSIE D. HORNE, who, 

after being duly sworn, deposed and stated as follows: 

l. My name is JESSIE D. HORNE. I am more than eighteen 

years of age, and am under no legal disability of any kind. 

This affidavit is given voluntarily and without coercion of 

any kind. 

2. 1 was a resident of Fulton County during 1978, and 

was called for jury duty during the week of October 9, 1978. 

I recall being questioned individually as one of a number of 

jurors. called: as a. potential juror in the trial of a man 

[Warren McCleskey] accused of. shooting a City of Atlanta 

police officer. : ew 

3. I was not chosen as a juror in that case. 

4, My race is Black. 

This 254 day of “Mice TED r= 1984, 

Nn £ Ng. S.) 
als D. HORNE 

  
  

  

Sworn to and subscribed 

before me, this 

  

day of ,. 1987. 

notary Public, Georgia, State st Largs 
5, 1987 

  

NOTARY PUBLIC 'ssian Expires Seat. 

 



  

AFFIDAVIT OF PATRICIA DUKES 
  

STATE OF GEORGIA) 

}SS; 
COUNTY OF FULTON) 

Personnally before the undersigned officer duly authorized 

by law to administer oaths, appeared PATRICIA DUKES, who, after 

being duly sworn, deposed and stated as follows: 

1. My name is PATRICIA DUKES. I am more than eighteen 

years of age, and am under no legal disability of any kind. 

This affidavit is given voluntarily and without coercion of any 

kind. 

2. I was a resident of Fulton County during 1978, and was 

called for jury duty during thé week of October g. 1978... .1T- 

recall being questioned individually as one of a number of jurors 

called as a potential juror in the trial of a man [Warren 

McCleskey] accused of shooting an City of Atlanta police officer. 

3. I was not chosen as a juror in that case. I was excused 

by the prosecutor. 

  This 5 day of ers , 1986. 

PATRICIA DUKES 

Sworn to and subscribed before me, 

this ¢ "any of an ; 1986,   

—— pm * 
  

Notary Public Notary Pubiic. Georgia State ar WUfEE 
My Commission Expires March 1 16987 

 



  
EXHIBIT K 

 



   

  
  

IN THE SUPERIOR COURT OF FULTON COUNTY 

STATE OF GEORGIA 

STATE OF GEORGIA 

versus INDICTMENT NO. A-40553 
i 

WARREN MCCLESKY, et:al 

  

MOTION AND BRIEF TO PROCEED IN FORMA PAUPERIS 

AND FOR FUNDS FOR EXPERT WITNESSES 
  | 

! Comes Now the defendant and moves the court to allow the 

defendant to proceed in forma pauperis and to require the state to 

) roids the defendant with reasonable funds to employ experts, as 

set out below, to enable him to have an adequate defense, due 

Vorooess of law, and a fair trial under the Fifth, Sixth, and Four- 

Me centn Amendments to the United States Constitution. 

&s grounds for this motion, defendant shows the court | 

las follows: 

Defendant is a black man who stands indicted for the 

crimes of murder. and robbery, potentially darsying the death. pen-- 

alty. : 

-2- 

Defendant is without money to pay for his defense and 

moves the court for leave to proceed in forma pauperis. 

“3 

The State has used the services of numerous experts, 

including pathologist, criminologist, criminal investigators, ball- 

isticic experts, and others, in the investigation and preparation   
lof this case for trial. Said experts, many of whom will be sub- 

poenaed by the State Wh as witnesses against the defendant, 

were paid by the State and have contributed significantly to the 

State's case against the defendant. 

-4- 

The defendant is in dire need of the services of a pro- 

fessional criminal investigator to assist his counsel in the   
i'development of exculpatory and impeaching evidence in this case. 

FILED IN OFFICE 

| SEP 61978 0 oo “ 
PRY AVY sok (OS { praed 70 

QEPUTY CLERK SUPERIOR COURZ 

BULTON COUNTY GEGRGIA   
  

 



    
  

- Sse 

n addition to the above, defendant is also in need of 

nds to secure the services of a trained psychologist or psychia- 

ist to testify on and scientifically demonstrate the manner in 

which statements were coerced from the defendant by law enforce- 

ment officials against his will. 

-6= 

Defendant is also in need of funds to pay for the costs 

| 
of court transcripts previously incurred in this case. 

: WHEREFORE, defendant prays..the Court for the relief re- 
i 

quested above. 

a Respectfully submitted, 

: ‘JOHN M. TURNER, 1I/% 
: (3 tarney for Warren McClesky 

  

  
wet 187 55:371 

4 

     

 



  
EXHIBIT L 

 



  
  

IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

    
| ie ee re -X 

| : 

WARREN McCLESKEY, : 

| : | 

Petitioner 2 

| : 
| 

vs. : Civil Action No. #4509 | 

WALTER ZANT, Warden, : HABEAS CORPUS | 

Georgia Diagnostic and : 

classification Center, : 

Respcendent : 

sR a cual Ron me meer SO 

The devosition of RELLY PITE, Devonent, taken 

at the instance of the petitioner: all formalities, 

includina the readina and signina of the deposition, 

waived refore Cdward H. Lieberman, Certified Court         
Reporter, at 959 East Confederate Avenue, Atlanta, 

Tulton Countv, Georaia, commencing at annroximately 

14:20 a.m., Faprvary 20, 1331. 

-00o0- 

    
  

a nn mm ez mat a an mt an a sa 3 mit | | | | | | | | | | | 

CorpBIN & LIEBERMAN 

CERTIFIED COURT REPORTERS   TESS, 1293 PEACHTREE STREET. N.E. 
ATLANTA. GEORGIA 

(404) 892-3699 

30309 

 



  

  

    

  

APPEARANCES OF COUNSEL: 

For the Petitioner: 

. ROBERT H. STROUP, Esquire 
1515 Healey Building 

57 Forsyth Street, N.W. 
So ~ ~~ 

Atlanta, TSeorgiz 37253 

Tor the Resnondent: 

NICHOLAS G. DUMICH, Esquire 
112 State Judicial Building 

- 40 Capitol Square, S.VW. 
Atlanta, Georgia 37334 

CONTRNDS 

WITNESS. a 0 on Vl eyrpwems ll aetunne 

KELLY FPITE 

Bv Mr. Stroup 3 

(9
2)
 By Mr. Dumich 

. REDIRECT - RECROSS 

  

  
  

 



  

          

Ca
) 

        

Whereunon, 

was called as a witness ang, having heen first duly 

sworn, was examined and deposed as follows: | 

MR. STROUP: All right. This is tha deposition of 

Kelly Fite, taken by the petitioner by agreement of the 

parties, for use in lieu of Mr. Fite's testimony at the   
hearing. Mr. Fite has waived signature, and you have sworn | 

the witness, so let me begin. 

DIRECT EXAMINATION 

BY ‘Mm, STROUP 

4. Would you. lor the record State your full Ans, 

please? | 

a Kelly Fite. 

Q And whereas are you amploved? 

A. I work for the State Crime Laboratory, Department 

of Torensic Science. 

Q Okay. How long have you worked for the State Crime 

Lab? 

A Almost thirteen years. 

Q All right. Did you have occasion to testify at the 

trial of warren “cClesky related 4c the shooting of Atlanta               Police officer Frank Schlatt? | 

A. Yes, I.414, 
| 

 



  

  

  

4 

1 | Q Was vour testimonv in that trial based on your 

2 inspection of two bullets or bullet fraoments that were 

3 recovered from the scene of the shooting? 

4 A, That's correct, 

5 | 0 And wag vour testimony that based on vour inspection 

§ of bullets or hullet fragments that the murder weapon was 

7 | probably a .38 Rossi? 

8 A, That's correct. 

9 Q Whan vou testified that it was probably a .38 Rossi| 

10 | what did you mean bv prohablr? 

1 a, 'e11l, based on the land and groove structure of the 

12 | bullet, six aroovr=s with a right-hand twist, the groove width 

13 being somewhere around .Jiheh, the diameter of the groove. = 

14 | and the bullet and the slippage pattern oh. the bullet as it 

15 | nassed through the hore of this weanon indicated oe ne-- 

16 | these measurements plus the slippage indicated to me that 

17 | the weapon was probably a Rossi. This is also based on my 

18 | accumulation of data over the past several yeare, plus a 

19 | check with the PBI record file in Washington.   20 a Nkav. Put when vou say probably, can you put that 

21 | in terms of some percentage chances? Over 50 per cent? | 

22 A, T would savy between 51 and 9°. | 

23 0 All richt. Somewhere over 51 per cent is what vou're 

24.1 £=lking abont.   
28 A, Vaa, 

— 5 Se——————— wae a IRL . - a —t——————— — ——+ —— ce —— eo ———— en — —— — a — ——— St ———t: 0. Sn]   
 



    

general practice in talking with defense counsel who would be 

    
  

        

  

  
| 

  

¢ All right. Is it also nossible that the murder 

Weapon was some weanon other than a .38 Rossi? 

A That's possible, ves. 

Q Okay. And then let me ask vou just about vour 

interested in talking to vou about vour anticinated testimony 

prior to that testimony. Is it your usual practice to talk 

with defense counsel who call vou un and want to discuss the 

case with you and your testimony? 

A Yes. T usually ask them to get the ckay from the 

D.A., but I have no objections to ever talking to a defense 

attorney. 

- MR. STROUP: All right. That's all I have, Nick: - 

| CROSS EXAMINATION 

BY MR. DUMICH: 

0} You indicated that there was some possibility that 

the murder weaobon may have bean something other than a-- 

what 1a /ie7.- .38 Poses! special? Is thae how it's tarmed? 

A Uh-huh (affirmative). 

4 If you can recall, based on your examination of 

those bullets, could you nut any kind of percentage on what 

you believe the possibility might have baen it was something 

A. Well, it would be less than 50 per cent. There are 

2 counle more quns that have the same groove gtructure as a     
  

  

  

 



    

  

  

  

rossi. one being a Taurus revolver. The grooves are identical, 

but the slippage pattern in all I've ever examined is a 

1ittle hit different from a Rossi, and that's why I say it 

wa3 nrobably a Rossi rather than a Taurus, but I'Z put a 

Taurus in the realm of a possibility. 

A oid you have any reascon-- well, I'll withdéraw that. 

nid vou use a computer in your analysis of these bullets? Do 

vou recall using a computer on that? 

A. It's standard procedur= to run the results through 

mY {nf ovriation bank, and also on the computer through the 

TBT's information bank. I don't know whether I did it in thisg 

case. I probably aid. 

0 -.0kavy. 2ased on the information that vou had. in 

regard to these two bullet fragments, if the defense counsel 

would have coma out and sooken to you, ¢ould you have told 

him anvthing different than that these bullets were nrobably 

both fired from he same Rossi? 

A, T wouldn't think so. I usually testifv what my 

TaInork gays, ECV EO. 

efx I don't have anvthing else. 

MR. 3TPOT: That's all I have. 

BY MR: DUMICTH: 

0 Can I zsover just one other thing. Okav. You have 

indicated that the percentage that it was not a Rosai would 

ha somawhere less than 50 per cent. Within that range of zerg   
  

 



    24 

25 

    
      

| 

H 

  

            

to 50 per cent, can you narrow that down anv better, as far 

as would it be closer to zero or would it be closer to S50 

per cent, based on the information that vou had? 

A Well, I'd state {t was probably a Rossi, and that 

leaves another weavon as being a posgibility only. I don't 

think I can narrow it down anymor= than that. 

0 Okay. Do you know of any other weapons that have 

six grooves with a right-hand twist that have .1125 inches 

that you testified at trial? 

A That's the groove width of the bullet. 

ol Do vou know of any other weavons that have that 

¥ind of configuration? 

L Yes. Some Tauruses are similar to this; some. early 

Charter Arms are similar to this. 

YR. DUOMICB: Okay. That's all I have. 

MR. STROUP: I don't have anything further. 

[Whereaupon, the above-entitled matter was concluded.] 

-ofo- 

30 RG TIA ) 
) 

FULTON COUNTY ) 

I, BEdward H. Lieberman, Certified Court Reporter, 

do hereby certify that ZZLLY FITE, Deponent, was by me first     

          

 



  

  

  
      
          

  

  

      

  

    

wn 
duly sworn and the above, pages 1 through 8, inclusive, is = 

true and complete transcription of my stenographic notes 

taken at the said proceedings and was reduced to typewritinc 

by me personally. 

I further certify that I am neither of kin nor 

counsel to any of the parties, nor am T financially interest 

in the matter. 

WITNESS my hand and official seal at Atlanta, Fult 

County, Georgia, this the 20th day of February, 1981. 

EDWARD H. LIEBERMAN 

[SEAL] 

  

  

  

    

 



  
EXHIBIT M 

 



  

  
IN THE SUPERIOR COURT OF FULTON COUNTY 

STATE OF GEORGIA 

STATE OF GEORGIA   | ) 
) 

versus 
) INDICTMENT NO. A-40553 

) 

WARREN MCOLISKY, ‘et: al 

    
MOTICN FOR INFORMATION NECESSARY TO 

RECEIVE A PAIR TRIAL 
  

  

Now Comes the defendant in the above-stated case, without 

waiving formal arraignment and moves the Court to require the 

State through the District Attorney of this Circuit to produces 

at the trial of the above-styled case, and at any and all non- 

jury hearings of the abova-styled case, the following documents, 

pictures and articles: 

Fi, 

Copies of all reports and memoranda connected with the sai 

charge against the named defendant. 

mr £ -2- 

‘All written statements 62 witnssses in the poszession 
  

of the prosecutor relating to the charges against thas named 
np——   

defendant in the above-atyled cass, as wall as all statements 

relating to any other defendants in the above-styled case. 

l= 

Mamas, addresses and telephone numbers and whereabouts 

  
of all witnesses to be called by the State in the trial of the 

named defendant and any other dsfendants named in the above 

styled case, 

-don 

Statepents of all persons including memoranda, summaries « 
——, 

  

recordings of such statements of any person, made to any law 
Nye   

{ 

enforcement officer or the investigative staff of any prosecut 
ny 

  

in any way connected with the abova-stylad casa. 

-—F- 

All memoranda, documents and reports to all law eniorceme 

officars connacted with subject matter of the indictment refer 

to above as well as the same of the investigative staff of all 

prosecutors.       
 



  

  

      

& . nA ae nat nseeih a 

oe 

Names and addresses of all persons who may have some knowle: 

or facts of the present case in addition to names and addresses 

given to the attorney for the named defendant. 

-7= 

The criminal racoxds and any list or summary reflecting 

criminal records of all persons whom the State intends to call a 

a witness in the trial of tha named defendant. 

=f 

All written or recorded statements and all summaries or 
a ———— 

mamoranda of any oral (6=\writton statements made by the named 
——, a 

  

  

  

defendant and all other defendants named in the above-styled cas 

Dw 

Regults of all reports of any scientific teats or axperimer 

or studies made in connsction with ths above-styled case and all 

copies of such reports. 

| Li Seles a 
All racords of the rEOseRusor Showing or tending to show hc 

the persons named on the jury panels sent to the courtroom for 

the trial of this defendant hava voted in the past on criminal : 

civil cases. 

lle 

All diagrams, sketches and pictures which have been made b: 

or shown to any witness or prospective witness in the above- 

styled case. 

-13- 

A detailed description of all physical items other than 

documents and pictures which the prosecutor anticipates using i: 

the trial of the named defendant and the exact place where and 

under whose custody such items are being held. 

This motion is made under the authority of Brady v. Marvla: 
  

37.3 v.83, 38), 10 L.28, 248 215, Gilaos v. Morvland, 336 C.S. 65, 
  

17 L.EA 22 737; and Williams wv, Dutton, 400 F.28 7927 (5¢h Cir, , 
  

1968). In support of his motion, defendant states: 

The aforesaid documents are in the possession of the State 

are available to the District Attorney. 

 



  

  

      

‘A : i AN bes ae 

All of said documents, pictures and articles are relevant, 

significant and constitute substantial material evidence and will 

be useful to and favorable to the namad defendant as evidenca 

upon his trial. 

The named defsandant cannot safely go to trial in this case 

without the production of said documents and in their absence wil 

be denied due process of law as guaranteed by Article I, Section 

Paragraph III, of the Constitution of the State of Georgia (Ga. 

Code §2-103) and the Fourteenth Amendment to the Constitution of 

the United States, 

Without tha production of the documants referred above, the 

defendant's counsel will not be able to effectively represent hic 

in the above-styled casa; and thus the defendant will be denied 

the right of counsel which is guaranteed to him under the provisi 

of Article I, Section I, Paragraph V of the Georgia Constitution 

(Ga. Code §2-105) and the Sixth and Fourteenth Anendrent to the 

United States Constitution. : ic 

ye WHEREFORE, the defendant prays: 

(a) That the State ba required to produce all documents anc 

other evidence refarrad to abova, 

(b) Without waiving his right to have his counsel examine 

siad documents, pictures and articles, if the Court does not per: 

this to be done, that tha Court conduct an in camera examination 

of said documents, pictures and articles and his counsel ba 

permitted to sea and copy of reproduce any of said documants, 

picturas and articles favorable to the namad defendant as to the 

question of quilt or punishment or for the purzose of impeaching 

any of the witnesses to be called by the State in the trial of © 

named defendant, 

(c¢) That if any part of said documentary evidence isn't mac 

available to the named defendant Prior to tha commencement of hi: 

trial, then without waiving his right to the production of said 

evidence prior to his trial, he respectfully moves the Court for 

an order directing the Distirct Attorney to produce all statemen- 

and other impeaching evidence of each witness testifying for +he 

State at the conclusion of the diract examination of that partic 

 



  

  

      

ular witness and in sufficient time so that sald material will be 

available to counsel for defendant to use while cross—-examining 

the particular witness. 

(d) Without in any way waiving the right of this defendant 

to have his counsel examine said documents, pictures, and articl: 

prior to trial and to have his counsel examine all of said 

documents relating to the impeachment of cach witness before cro. 

examining that particular witness, this defendant without waivin 

his right to hava said Aatorial produced earlier, moves the Cour 

for an order directing the District Attorney to produce all such 

documents and evidence and to submit the same to his counsel at 

the close of the Stata's evidence. 

Respectfully submitted, 

SILVER, ZEVIN, SEWELL & TURNER 

  ~ JOEBW M. TURNER, II 
Attorney for Defendant 

 



    

p
—
—
—
—
 

IN THE SUPERIOR COURT OF FULTON COUNTY 

STATE OF GEORGIA 

STATE OF GEORGIA 

INDICTMENT NO. A-40553 
versus 

WARREN MCCLESKY, et al 

  

MOTION FOR DISCLOSURE 
OF I!PEACHING INFORMATION 
  

The defendant respectfully coves this Court for entry of   

    

an order dirscting the State to investigate and disclose all of 

the following within the possession, custody, control, or the 

existence of which is known or by the exercise of due diligenca 

could become known to the State. 

1. Any and all consideration or promises of consideratior 

given to or made on behalf of government witnesses. By "consic 

ation”, defendant refers to absolutely anything of value or us: 

including but not limitad to immunity grants, witness fees, 3p¢ 

witness fees, transportation fgeissance assistance to. ‘mexbers 

witness’ family or assoclates of withesss assistance or favor 

treatment with respect to any criminal, civil or adninistrativ 

dispute with +he State or the United States, and anything else 

which could arguably create an interest or bias in the witness 

Sai favor of the State or against the defense or acts as an inc 

nent to testify or to color testimony; 

2. any and all prosecutions, investigations or possible 

prosacutions pending or waich could be brought against the wi: 

and any probationary, parole or deferred prosecution status o: 

the witness; 

3. Any and all records ané information revealing felony 

convictions attributed to tnis witness. 

4. Any and all records and inforzation showing prior mi 

or bad acts committed by the witness. 

5. Any and all personnel filss for the witness, 

Respectfully submitted, 

SILVER, ZEVIYM¥, SZWELL & TURNZR 

  

JOHN M. TURNER, 11 
Attorney for Defendant   
 



  

  

      

impeaching nature. United States v. Deutsch, 475 F.2d 55, 58 
  

(Sth Cir. 1973). This duty of disclosure and production should 

obviously extend to any personnel files of a witness which the 

State itself has access to. 

Respectfully submitted, 

SILVER, ZEVIN, SEWELL & TURNER 

  

JOHN 4, TURNER, II 

Attorney for Defendant 

 



  
EXHIBIT N 

 



  

IN THE SUPERIOR COURT FOR THE COUNTY OF FULTON 

STATE OF GEORGIA 

STATE OF GEORGIA INDICTMENT NO. A-40553 

Vs. H 

DAVID BURNEY, JR., : 

BERNARD DEPREE, 

alias Bernard Dupree, s 
WARREN McCLESKY, MURDER and 

and BEN WRIGHT, JR. : ARMED ROBBERY (2 CTS.) 

: ORDER 

The above-captioned matter came before this Court on 

September 25, 1978. 

After conducting an in camera inspection of certain items 

of evidence in the State's possession, the Court finds that 

although the documents might become material for rebuttal at 

trial, they are not.now subject to discovery. 

It is further ordered that counsel may, at the proper 

time, ask the Court for a further ruling if the circumstances 

make it appropriate to do so. 

IT Is SO ORDERED. 

This 27 day of September, 1978. 
/ 
  

  . SAM PHILLIPS MCKENZIE i 
pita JUDGE, SUPERIOR COURT : 

: ATLANTA JUDICIAL CIRCUIT 

eA i Ti Ze   FILED IN OFFICE 
I 

UF CLERK sy ng 
FULTON hii 58 i / : 

= Respondent's Exhibit YG i bs i733 nt263 nh 

ZIRE case NO. E08     
  

  

. 

 



  
EXHIBIT O 

 



  

sirply told you he was a cousin of Ben lrigL 

officer? 

  

A daha 

Br 

  

zN
 

r
y
 

he
 

fo
 

y GO
 

5.
 

2 Specifically, lr. HeClezky, have you ever nad a 
  4 

rsaticn when you were in that Jail cell, cne north fiftece 

A 10, sir, I have. noc. 

TUR{ILER: Your donor, Lefors ve GO eny further, 

could we approach the Lench for a minute, ole: 

  

t recall anyone telling me he is a cousin cf 

Rer with Or. Cupree, who was over above YCUy Or with the man 
= 3 > (ny Ts Li - “rr ste oo Ny he . ” - ., - bY 

“aE in the Cell rezt to Fou, ztatln that vou shet the Foilce 

Sanioaing LORENA a ER TE ERP SPRL As LBS STR BS SP WL ARERR SRR Sets BFE CRSA SL LAR i 

Court and counsel at tie £eNRCa, Aut Of the nearing of the 

Jury.) - 

“Re TURNER: | Your ilonor, I think that from the 
  

a fe
 i [f
 G (a
d 

[™
 en of things from what Nr, Parber is saving it 
  

- - iy, ~ 40d rym eae, - . = en SRN REars hat Lio ngst havo: gory DLT grtakenc 

  

dafendant., i asked for all written and oral statements 

  in % LUTLICHG. Il BE Las soretbing he hagn't 
Siggy re: 3 . 

> ™ i re s vu N Y 4 Tyee 
Burnished 14 CLject to gettin; inte it now. 

> 

  

  

Sut it Soosn't helr vour Cliont, 1S ow 

  
  — 

  

  

mating 
  ; rast ow hd ls I a S&LYINY 1 awokey Lin =e 

not dealing wit that part of ir, 

 



    

nat As ckdowet 

  

  

It's not sxculgiatory. 

Tae COURY: You are not even =2ntitlec to this one. 

  

    

  

    

  

3 ain statements he nade, 
g— 

That is enat the motion was £ilaC about, 

This is not a statement of the defendant. 
TE 

like TURLLLk: We are not talking about a statement of 

tlie defendant. 

         

  

st "THE COULT: J I don't know that we ‘are talking about 

-any written statecent,  - 

Nhe I an saving I filed for coral and written 

  

Statements, I asked for all statcrents tne delendant, 

You and nade 

it of record, what he is doing is 

  

    

  

in the Court's opinion pruer. 

HR, PARAELX: I would like tc lace in the record at 

this tire, IE Hr. Turaer doesn't mind, that I have furnished 

hii corplete coplas Or evervtniag except hat we are about 

LC yet inte, pilus sone Grand Jury testinen:, and he has had 

ad of jerduring this trisli. 

HR. TUREZR: 1 don't object or argue about chat, I 

Am singly saving == 

Pike PANEER: JT want the reeord to reflect Shar, 

tie TUiskiiz I am saying he <éidn't furnish ne winn 

evaerctulng, and that in one of the voqulireonente of tre law 

1a teres of furnishing all statements that a Jufomiant makes 

m331= 

 



  

  

THE COURT: well, that will be a defense that you 

Can use in the fppellate Courts if he has viclated the law. 

oi. “Re TURNEN: 1 would object at this tiie on that 
  —_——— 

rary Pur. C T: I will let the record show ac has not 

He DUREER: I will let tne recora show ue nes 

furnished me everytning, and for the first tice here today 

om eval oY Shen at trial he may have scone oral or written statement fon 

my client that Le has never furnished n —c 

    

  

) e * | a
] 7 GC c ¥ c 0 c E
L
 

[i
a]
 A 8 

  
  

frm ny Je X to any introduction or adnicsion Cf those statements, 

THz CCUR%Y: I will overrule the cojection, 

tRe PANZER: This would be within Lefendant 

MeClesky'!s oun rnowledye, s6 there is nething exculpatory 

anpous ir, 

: I understand that. La2t's proceed. 

(whereureon, the following sroceedinus continuen in 

L$ {Ju lr. Parker) fir. BeClesky, have YCu ever had a 

fendant Dupree out at the jail while You wero 

in cell one north fifteen, oritc tha Sen In tha cull next to vou ’ 
? 

Pe
 

that © SET AR voit: . ie ‘TN tin ERR v 2 wbdte couldn't grove that vou killed that officer ; 

: a TE Tye - x - ra - PEE Yn . womeal fi 3a Bib, NOL Lo Lnet oxtont, no, sir, qd OoVEanX a 

Conversation With moevinsru Lunfee, but 1t wasn't aaviiin:, Of that by EO — “se 

 



  
EXHIBIT P 

 



    

The Hepartment af Urata 

State of Georgia 

Atlanta 
30334 > 

ARTHUR K. BOLTON 132 STATE JUDICIAL BUILDING 

ATTORNEY GENERAL 

  

TELEPHONE 656-3300 

February 17, 1981 

Mr. Foster Corbin 
Certified Court Reporter 
1293 Peachtree Street, N. E. 

Suite 828 
Atlanta, Georgia 30309 

Re: Warren McClesky v. Zant, habeas corpus - 

deposition of Russell Parker. 
  

Dear Foster:    

  

Enclosed is a complete copy of the prosecutor's file resulting 
from. the criminal prosecution of Warren McClesky in Fulton 
county. | As agreed by counsel for both parties who attended 
the deposition of Mr. Russell Parker on February 16, 1981, 
the enclosed file (including cover sheet) is to be attached 
to Mr. Parker's deposition as joint Exhibit A and forwarded 
along with the deposition to the Superior Court of Butts 

County. 

  

  

  

If you have any questions concerning the aforesaid, please 

contact me at 656-3499. 

Sincerely, 4 
Vi 

oe Hies 1 9 0 fn AP 

NICHOLAS G. DUMICH 

Assistant Attorney General 

NGD/cab 

cc: Mr. Robert Stroup 
Attorney at Law 
1515 Healey Building 
Atlanta, Georgia 30303 

 



  
EXHIBIT Q 

 



  

ROBERT H. STROUP 

ATTORNEY AT LAW 

141 WALTON STREET N.W. 

ATLANTA, GEORGIA 30303 

(404) 522-8500 

June 1, 1987 COPY 

Chief Morris Redding 

Atlanta Bureau of Police Services 

175 Decatur: St.; S.E. 

Atlanta, Georgia 30335 

Dear Chief Redding: 

Pursuant to 0.C.G.A. §50-18-70, et seq., this is to request 

the opportunity to inspect and copy all records in the 

possession and/or control of the Atlanta Bureau of Police 

Services related to the investigation into the slaying of 

Officer Frank Schlatt in May, 1978. This request is 

designed to include not only all investigative files, but 

also all records in the Bureau's possession related to the 

prosecution of persons for that crime, in the event those 

records are maintained separate from the investigation files 

themselves. 

I would like to inspect those documents at the earliest 

possible time, but no later than June 8, 1987. 

I appreciate very much your cooperation in this matter. 

Very truly yours, 

Robert H. Stroup 

RHS/1 

cc: Marva Jones Brooks, Esq. 

DELIVERY BY HAND 
  

 



   
CITY OF ATLANTA 

ANDREW YOUNG 
1100 SOUTH TOWER 

MAYOR 
ONE CNN CENTER 

ATLANTA, GEORGIA 30303-2705 DEPARTMENT OF LAV 

404 - 658-1150 MARVA JONES BROOK: 
City Attorney 

June 4, 1987 

Mr. Robert H. Stroup 
Attorney at Law 
1417 Walton Street, N. W. 
Atlanta, Georgia 30303 

RE: Your June 3, 1987 letter to City of 
Atlanta Police Chief Morris Redding 

Dear Bob: 

This is to confirm our conversation of this morning 
regarding the referenced letter, in which you request an oppor- 
tunity to review investigatory files on the slaying of Officer 
Frank Schlatt, pursuant to the Open Records Act, 0.C.G.A. §50-18-70 
et. seq. As I stated this morning, the Supreme Court's ruling 
of yesterday, June 3, 1987 on the motion for reconsideration 
in Napper v. Georgia Television Company, et al., No. 44831 will 
have some impact upon your Open Records Act request. Accordingly, 
we have requested, and you have agreed to, an extension on the 

time for us to respond to your request. 

  

  

Thank you for your cooperation in this regard. 1 
anticipate being able to begin reviewing the file tomorrow morning 

and hope to be able to formally respond to your request by Monday, 

June:8, 1987. 

Sincerely, 

nl Ly, aN “Nexon Vinge 
Deborah McIver Floyd 
Associate City Attorney 

DMF / sw 

CC: Marva Jones Brooks 

Chief Morris Redding 
Beverly Harvard 
Major Neikirk 

 



  

“is 
si=: 

® » 
ROBERT H. STROUP 

ATTORNEY AT LAW 

141 WALTON STREET, N.W, 

ATLANTA, GEORGIA 30303 

(404) B22-83< 

June 10,1987 

W. Roy Mays, III, Esq. 

City Attorney's Office 

1100 Omni South 
Atlanta, Georgia 30303 

Dear Roy: 

This will confirm our telephone conversation of this morning 

regarding my request to inspect the files related to the 

police investigation of the Officer Frank Schlatt killing. 

You advised me that the plaintiffs in Napper v. Georgia 

Television Co. have filed a petition for rehearing in the 

Georgia Supreme Court, and you wish to hold my request in 

abeyance pending a ruling from that Court. 

  

  

As a courtesy to me, in light of the severe time pressures I 

am under, you agreed to provide me with one memorandum which 

Debra Floyd happened to recall was in the file and fell 

within the category of items which are the first priority of 

my search. I understand that there may or may not be other 

such documents; this happened to be one which she recalled 

without doing an exhaustive review. The memorandum you are 

providing will, I understand, have certain names deleted in 

accord with your understanding of current law. 

We agreed that my request to inspect the entire file remains 

pending before you; you advised that you would be back in 

touch after a ruling from the Georgia Supreme Court on the 

plaintiffs' motion for rehearing. 

Very truly yours, 

Boo oun — 

Robert H. Stroup 

RHS/1