Brief for Petitioner-Appellee
Public Court Documents
June 30, 1989
83 pages
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Case Files, McCleskey Legal Records. Brief for Petitioner-Appellee, 1989. a1bd1ee3-62a7-ef11-8a69-6045bdd6d628. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/6f9c6fe9-8541-421d-a167-ec502fe5a737/brief-for-petitioner-appellee. Accessed June 06, 2025.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Nos. 88-8085
89-8085
WARREN McCLESKEY,
Petitioner-Appellee,
-against-
WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent-Appellant.
On Appeal From The United States District Court
For The Northern District Of Georgia
Atlanta Division
BRIEF FOR PETITIONER-APPELLEE WARREN McCLESKEY
ROBERT H. STROUP
141 Walton Street
Atlanta, Georgia 30303
(404) 522-8500
JULIUS L. CHAMBERS
JOHN CHARLES BOGER
99 Hudson Street
New York, New York 10013
(212) 219-1900
ATTORNEYS FOR PETITIONER-APPELLEE
WARREN McCLESKEY
CERTIFICATE OF INTERESTED PARTIES
The parties interested in the outcome of this case are the
petitioner-appellee, Warren McCleskey; the trial attorney, John
Turner; the present attorneys for Mr. McCleskey, Robert H.
Stroup, Julius L. Chambers, and John Charles Boger; respondent-
appellant Walter D. Zant; the attorneys for respondent-appellant
Zant, William B. Hill, Jr., Susan V. Boleyn, and Mary Beth
Westmoreland; the trial judge, Hon. Sam McKenzie; and the
District Court judge, Hon. J. Owen Forrester. The victim was
Frank Schlatt.
STATEMENT REGARDING ORAL ARGUMENT
Petitioner-appellee McCleskey concurs in the request of
respondent-appellant Walter Zant for oral argument in this case,
though not in Warden Zant's reasons for seeking argument. Since
Zant's appeal is, in essence, a multi-faceted attack on the
factfindings of the District Court, and since the relevant
factual record is quite large, including the trial transcript,
the state habeas corpus transcript, the federal habeas corpus
transcript, several depositions, and numerous exhibits, the Court
may well be assisted by the opportunity to question counsel
orally.
ii
p TABLE OF CONTENTS
Page
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW. ...ccceeeceees ‘
STATEMENT OF THE CASE ret rerorsenrsnnsesnvene Shwe ve Eves nee 2
(1) Course OF Prior Proceedings. .ccvsssessinceseseessnons nh 2
(il) Statement OF FACES. cere evrsvrcnneee ER EE gi EE RIN NG 2
I. The State's Allegations Of Abuse Of The Writ..... 3
A. The Defense Effort To Uncover Written Statements 4
1. The Efforts Of Trial CounSel. vives civ nesses 4
2. The Efforts Of Habeas Counsel. .cs eves novos 7
3. The Discovery Of Evans's Written Statement 9
B. The Defense Effort To Locate Massiah Witnesses 10
C. The Findings Of The District Court....cv.ee.ee 13
II. Mr. McCleskey's Claim Under Massiah v. United States 13
A. Background Evidence On the Massiah Claim...... 14
1. Offie Evans's Testimony At Trial.......... 14
2. Evans's Testimony During State Habeas
ProceedingS..cooveeeves vin v en vine «vives vive 16
B. The Twenty-One Page Statement....... tenn nene .o };
~ C. The July 8-9, 1987 Federal Hearing.......... oa 19
1. The Testimony Of Prosecutor Russell Parker 19
2. The Testimony Of Police Officers Harris
ANA JOWBES sv vie vs vnvs ses none sivs viisinmemnine ss 20
3. The Testimony Of Detective Sidney Dorsey.. 20
4. The Testimony Of Ulysses Worthy......... -e 22
By Offic EVANS, cst covsvsvniivvevesive CA 25
D. The August 10, 1987 Federal Hearing........ 25
1. The Testimony Of Ulysses Worthy........... 25
2. The Testimony Of Deputy Jailor Hamilton... 28
E. The Findings Of The District Court...ceveve... 29
JI1. The Harmless Error ISSUG. css tvsnvrtnenvnvssvoens 30
iii
IV. Warden Zant's Rule 60(b) Motion. cscs ceevacaanene 33
A. The Issue Of Warden Zant's "Due Diligence"... 33
B. The Materiality Of Offie Evans's Testimony... 35
C. The Findings Of The District Court..ccecececas 36
(iii) Statement Of The Standard Of Review. ....oeeeeeeeecan 37
SUMMARY OF ARCUMENT eu vsesosvsrssnonense PE IR I 38
ARGUMENT..... someone Sess ses vsees ses rensines Fees sen einnine een 42
I. MR. McCLESKEY DID NOT ABUSE THE WRIT OF HABEAS
CORPUS BY FAILING TO UNCOVER THE MISCONDUCT OF
ATLANTA POLICE OFFICERS WHICH CAME TO LIGHT
ONLY .IN 1987 .ceccvevrsscsnnenns See rsesecsrsneersnee 42
A. Warden Zant's Claim Of Deliberate Abandonment... 44
B. Warden Zant's Suggestions Of Inexcusable Neglect. 48
II. THE DISTRICT COURT PROPERLY FOUND THAT ATLANTA
POLICE MISCONDUCT VIOLATED WARREN McCLESKEY'S SIXTH
AMENDMENT RIGHTS UNDER MASSIAH V. UNITED STATES.. 53
A. The District Court's Factual Findings Were Not
Clearly Erroneous Under Rule 52....ccccceeees 83
B. The District Court Applied The Proper Legal
Standards To The Facts. cvcrerenrvvens EI PC 60
III. THE DISTRICT COURT CORRECTLY FOUND THAT THE
MASSIAH VIOLATION PROVEN IN MR. McCLESKEY' CASE
WAS NOT HARMLESS BEYOND A REASONABLE DOUBT....... 63
IV. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION
BY DENYING WARDEN ZANT'S RULE 60(b) MOTION FOR
RELIEF FROM JUDGMENT.» sv veseoven tresses ennries oie 68
A. Zant Failed To Show That The Evidence
Is "Newly DiscoveredM, .... ccevvvrevnoses 68
B. Zant Failed To Exercise "Due Diligence".. 68
C. There Is No Likelihood That The Proffered
Evidence Would Produce A Different Result 70
= CONCLUSION vais oh vias viein + casa, A, tle sieeve AN ORD SR CN 72
TABLE OF AUTHORITIES
Cases:
*Amadeo Vv. Zant, U.S. , 100 L.Ed.2d
SHO 1088Y Hei rent eek 3842
*Anderson v. City of Bessemer City, 470 U.S.
BBE HIOBA) reise soso nstieen een A lk TER 38,39
Booker v. Wainwright, 764 F.2d 1371 (11th Cir. 1985) ...
Brady v. Maryland, 373 U.S. 83 (1963) +¢:+.. sts nialenen arene
Brown v. Dugger, 831 F.2d 1547 {11th Cir. 1987) cece vas
Chapman v. California, 386 U.S. 18 (1967) a Ge enieien
Fay v Nola, 372 0.8. 391 (10683) cvuneinrcsvnnsinsonsase
Freeman v. State of Georgia, 599 F.2d 65 (5th Cir. 1979)
Giglio v. United States, 405 U.S. 150 (1972) cecscss 41,63
Haley Vv. Estelle, 632 F.2d 1273 (5th Cir. 1980) ....vces
*Jonnson v. Zerbst, 304 U.S, 4588 (1938) sevveececes seinen
Kahlmann v. Wilson, 477 U.S. 436 (1986) ..u.icevevavecss
Lightbourne v. Dugger, 829 F.2d 1012 (11th Cir. 1987) ..
Maine v, Moulton, 474 U.S. 189 (1985) ceecrceninnnn claw ae
*Massiah v. United States, 377 U.S. 201 (1964) .........
McCleskey v. State, 245 Ga. 108, 263 S.E.2d 146 (1980) .
Moore v. Kemp, 824 F.2d 847 (11th Cir. 1987) ceceecee vee
Murray v. Carrier, 477 U.S. 478 (1986) ..cceeo.o. vsiniwiny ace
Napper v. Georgia Television Co., 257 Ga. 156, 356 S.E.2d
640; (1987) ooviiiis os Consus Wika ELC i SI
Paprskar v. Estelle, 612 F.2d 1003 (5th Cir. 1980) ec...
Ports v. Zant, 638 F.24 727 (5th Cir. Unit B 1981) .. 40,45
Price v. Johnston, 334 U.S. 266 (1948) «cicero vns reine tae
Page
,43,44
,43.54
45,48
,64,65
48
46
62
61
62
passim
6
47,48
47
,46,47
40,46
Ross v. Kemp, 785 F.2d 1467 (11th Cir, 1986) ves sar reves 44
Sanders v. United States, 373 U.S. 1 (1963) ..... 40,44,45,47,48
*Satterwhite v. Texas, U.S. , 100 L.E4.24
284 (1988) uicvis canon a SPR. Dn or SI ER Me a 41,64,66
*Scutieri v. Paige, 808 F.24 785 (11th - Cir. 1987 ..sseen 42,68
Sockwell v. Maggio, 709 F.2d 341 (5th Cir. 1983) saves 48
United States v. Anderson, 574 F.2d 1347 (5th Cir. 1978) 64
*United States v. Henry, 447 U.S. 264 (1980) ses essenses 2,13,62
Walker v. Lockhart, 763 F.2d 942 (8th Cir. 1985) ..... . 48
Wong Doo Vv. United States, 265 U.S. 239 (1924) evenness 47
Statutes:
28 U.8.Cu. § 2241 su vvvvnrre ne sive seine oie trv eas rire ane vii
28 U.Sil iB 228%, uri dade instars na EE re weil
Rules:
RULE 782, Pad RB. CIV. Pv vreerssonutensnss sone tunes 71,38,42,54
Rule 04D), Fed, R. Civ. P. volves viiivnnevsriien 32,33,35,37,68,
69,70,71
Rule 9(b), Rules Governing Section 2254 Cas€S....ceeeese 37,42
Other Authorities:
O.C.C AE 5 BOIB=TI(ARY +urvesrniners Ate ee eh rain ne ee 9
Restatement of the law, 24, Agency, § 16 ..cvvvvssenves . 61
vi
® STATEMENT OF JURISDICTION
This is a habeas corpus case filed under 28 U.S.C. § 2241.
It has been appealed to this Court under 28 U.S.C. § 2253.
vii
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Nos. 88-8085
89-8085
WARREN McCLESKEY,
Petitioner-Appellee,
-against-
WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent-Appellant.
On Appeal From The United States District Court
For The Northern District Of Georgia
Atlanta Division
BRIEF FOR PETITIONER-APPELLEE WARREN McCLESKEY
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
l. Are the District Court's factual findings (i) that Mr.
McCleskey did not deliberately abandon his constitutional claim
under Massiah v. United States, 377 U.S. 201 (1964), (ii) that
his failure to have uncovered evidence of the Massiah violation
earlier was not a result of "inexcusable neglect," and (iii) that
he did not otherwise abuse the writ, clearly erroneous under Rule
527
2. Are the District Court's factual findings concerning Mr.
McCleskey's Massiah claim, (i) that Atlanta police officers
arranged to have an informant moved into an adjacent cell, (ii)
that they instructed the informant to question McCleskey
surreptitiously, and (iii) that the informant actively
interrogated McCleskey on behalf of the police, clearly
erroneous?
3. Do the facts found by the District Court establish a
violation of Mr. McCleskey's Sixth Amendment rights under Massiah
v. United States and United States wv. Henry, 447 U.S. 264 (1980)?
4. On the present factual record, did the District Court
err in concluding that the Massiah violation was not harmless
beyond a reasonable doubt?
5. When a respondent, here Warden Walter Zant, moves to
reopen a final judgment under Rule 6C(b) in order to submit
evidence that is not "newly discovered," when his own submissions
demonstrate that he has exercised no diligence in obtaining that
evidence earlier, and when the District Court has entered factual
findings that the proffered evidence would not likely affect the
judgment, is it an abuse of discretion for the District Court to
deny motion?
STATEMENT OF THE CASE
(1) Course of Prior Proceedings
Mr. McCleskey accepts the general description of the prior
proceedings set forth by Warden Zant.
(ii) Statement of Facts
Four legal issues are presented by this appeal: (i) possible
abuse of the writ; (ii) the merits of Mr. McCleskey's Massiah
claim; (iii) whether the Massiah violation was harmless beyond a
reasonable doubt; and (iv) whether the District Court properly
denied Warden Zant's motion to reopen the judgment under Rule
60 (b) .
Warden Zant's primary contention is that the principal
factfindings of the District Court were clearly erroneous on each
issue. To evaluate Zant's contentions, an extensive review of
the facts is necessary. Our statement will address: (i) the
circumstances under which the present Massiah claim first came to
the attention of Mr. McCleskey's counsel; (ii) the evidence of
the Massiah violation; (iii) a description of the evidence
presented to Mr. McCleskey's 1978 jury on the murder charge; and
(iv) the circumstances surrounding Warden Zant's motion to reopen
the District Court's judgment in 1988.
I. The State's Allegations Of Abuse Of The Writ
At the heart of the Massiah claim presented by Mr. McCleskey
in his second federal petition, the District Court noted (R3-22-
15, 19), are two items of evidence: the testimony of jailor
Ulysses Worthy, "who was captain of the day watch at the Fulton
County Jail during the summer of 1978 when petitioner was being
held there awaiting his trial. . . ."™ (R3-22-15); and a 21-page
typewritten statement by Offie Evans =-- an informant and chief
witness against Mr. McCleskey =-- given to State authorities on
August 1, 1978. (See R1l-1, Exhibit E; Fed. Exh. 8). 1 To resolve
1 Each reference to an exhibit admitted into evidence by
the District Court during the July and August, 1987 federal
hearings will be indicated by the abbreviation "Fed. Exh."
followed by the exhibit number and, where relevant, the page
number of the exhibit.
the issue of abuse of the writ, this Court must review when, and
under what circumstances, those two items came to the attention
of Mr. McCleskey's counsel.
A. The Defense Effort To Uncover Written Statements
1. The Efforts of Trial Counsel
Prior to Mr. McCleskey's trial in 1978, Assistant
District Attorney Russell Parker provided McCleskey's trial
attorney, John Turner, with access to most of his file (Fed. Exh.
3, 4-8) -- excepts for certain grand jury minutes and, unknown to
Turner, the 2l1-page statement by Offie Evans at issue here (which
contained numerous verbatim statements and admissions ostensibly
made by Mr. McCleskey to Evans while both were incarcerated in
the Fulton County Jail in July of 1978.)
To assure himself that he had obtained all relevant
evidence, defense attorney Turner filed one or more pretrial
motions under Brady v. Maryland, 373 U.S. 83 (1963), seeking all
written or oral statements made by Mr. McCleskey to anyone, and
all exculpatory evidence. ?
After conducting an in camera review, the trial court denied
2 Although the District Court held that the copies of
Turner's Brady motions proffered in Mr. McCleskey's federal
petition (see R1l-1, Exhibit M) had not been properly
authenticated, (R4- 73-81), Warden Zant conceded, and the
District Court found, "that a request was made for statements,
which is necessarily implied from the action of the trial
court."(1d. 78). Later during the federal hearing, copies of
Turner's Brady motions, which had been signed and received by the
District Attorney, were discovered in the District Attorney's
files. Warden Zant stipulated to these facts at the August 10th
federal hearing. (R6-118).
Mr. Turner's motion, holding without elaboration that any
evidence withheld by prosecutor Parker was "not now subject to
discovery." (Fed. Ex. 5). The trial court's order contained
absolutely nothing to indicate that among the evidence withheld
was any written statement by Offie Evans. In fact, prosecutor
Parker later acknowledged that he never informed Turner about
the nature or content of the items submitted to the trial court
for in camera inspection. (Fed. Ex. 3, 15).3
At trial, during the State's cross-examination of Mr.
McCleskey, defense counsel Turner once again sought to determine
whether any statements implicating his client had been obtained
by the State:
MR. TURNER: Your Honor, I think that from the
direction of things from what Mr. Parker is saying it
appears that he must have some other statements from the
defendant. I asked for all written and oral statements in
my pre-trial motions. If he has something he hasn't
furnished me, I would object to getting into it now.
THE COURT: Well, he has a statement that was furnished
to the Court but it doesn't help your client.
MR. TURNER: I am not dealing with that part of it. I
am saying I asked him --
MR. PARKER: It's not exculpatory.
THE COURT: You are not even entitled to this one.
MR. TURNER: I am entitled to all statements he made.
That is what the motion was filed about.
3 In a deposition taken by Mr. McCleskey's counsel during
state habeas proceedings, prosecutor Parker testified as follows:
"[Tlhe morning of the trial, as I recall, John Turner Rp
wanted to know what the matters were at that time that the judge
had made an in camera inspection of. Of course, I told him I
couldn't tell him; no sense in having an in camera inspection if
I was going to do that." (Fed. Exh. 3, at 15).
5
THE COURT: This is not a statement of the defendant.
MR. TURNER: We are not talking about a statement of
the defendant.
THE COURT: I don't know that we are talking about any
written statement.
MR. TURNER: I am saying I filed for oral and written
statements. I asked for all statements of the defendant.
THE COURT: Let the record show I wrote you and made it
of record. It is not admissible and what he is doing is in
the Court's opinion proper.
(R1-1, Exhibit O, 830-832; see Fed. Ex. 6) (emphasis added)).
The trial court thus not only denied this second defense
request; it affirmatively, and inexplicably, stated, "I don't
know that we are talking about any written statement," (id. 831),
suggesting that no written statement existed at all.
On appeal to the Supreme Court of Georgia, Turner contended
that the State's refusal at trial to turn over Mr. McCleskey's
statements, contained in what Turner plainly believed to have
been an oral statement by Offie Evans to police, had violated Mr.
McCleskey's rights. The Georgia Supreme Court denied the claim
and upheld the State's position, explicitly stating in its
opinion that "[t]he evidence [the defense counsel] sought to
inspect was introduced to the jury in its entirety." McCleskey Vv.
State, 245 Ga. 108, 263 S.E.2d 146, 150 (1980) (emphasis added).
Thus, trial counsel, although unaware of the 21-page
typewritten statement of Offie Evans, made at least three
separate attempts to obtain all relevant statements from the
State: not only were all denied, but the trial court and the
Georgia Supreme Court implied that no written statement existed
or that, if one did, it was introduced to the jury in its
entirety. As John Turner testified during state habeas
proceedings, "I was never given any indication that such a
statement existed." (St. Hab. Tr. 77).
2. The Efforts Of Habeas Counsel
Mr. McCleskey's present counsel, Robert Stroup, testified
that, from his review of the trial and appellate proceedings, he
drew the inference that no written statement of Offie Evans
existed, but only an "oral statement ... introduced in its
entirety through Evans' testimony at trial." (R1-7-2; Fed. Exh.
l; see also id., at 8; R4-45). Nevertheless, Mr. Stroup sought
to review again the prosecutor's investigative file. During the
prosecutor's deposition, he obtained an agreement for production
of "the entire file" made available to defense counsel (Fed. Exh.
3, 4-6), unaware that any written document had been withheld from
trial counsel. (R1-7- 8-9).
Subsequently the Assistant Attorney General handling the
case mailed to Mr. Stroup and the court reporter a large number
of documents, reciting in his transmittal letter that he was
"felnclos(ing] ... a complete copy of the prosecutor's file
resulting from the criminal prosecution of Warren McCleskey in
Fulton County." (Fed. Exh. 7) (emphasis added). The 2l-page
written statement of Offie Evans was not included. (R1-7-3; Fed.
Ex. 2). Relying on that representation, Mr. Stroup has since
testified, it did not occur to him that any written statement
existed. (R1-7-10).
Prosecutor Parker did make one oblique reference to such an
item during his state habeas deposition. The exchange in
question began with a question by Mr. Stroup, obviously premised
on the assumption that Evans had given police only an oral
statement: "Okay. Now, I want to direct your attention to a
statement from Offie Evans that was introduced at Warren
McCleskey's trial." (Pet. Ex. 3, at 8). The prosecutor
responded, "Okay. When you referred to a statement, Offie Evans
gave his statement but it was not introduced at the trial. It
was part of that matter that was made in camera inspection by the
Judge prior to trial." (Id.) Mr. Stroup immediately replied.
"All right. Let me make clear what my question was, then. Offie
Evans did in fact give testimony at the trial -- let me rephrase
it. When did you learn that Offie Evans had testimony that you
might want to use at trial?" (Id.)
Mr. Stroup has subsequently averred that
Parker's comment, at page 8 of the deposition, ... was
not directly responsive to my question, and I thought
he misunderstood my question. I do not believe I
actually understood what he said in response to my
question, and I rephrased the question to make certain
that he understood me. When the deposition transcript
became available to me for review, I already had
[Assistant Attorney General] Nick Dumich's letter
reflecting his understanding that what we were dealing
with was a complete copy of the prosecutor's file. It
never occurred to me at this stage in the proceedings
that there was a written statement from Offie Evans
that the State had not produced.
(R1-7, 9-10).
After reviewing the sequence of events, the District Court
found:
The statement was clearly important. It arguably has
favorable information. It wasn't turned over. I don't
think that there's anything -- the only thing frankly
that clearly indicates that Mr. Stroup should have
known there was a statement 1s Russ Parker's one
comment in the habeas, and it is clear to me that Mr.
Stroup didn't understand what was told him.
The question gets to be maybe in a rereading of the
deposition maybe he should have seen it or that sort,
but I don't think that it would be proper to let this
case go forward with such suggestions [as] ... are
raised by that statement ... So I will allow the
statement to be admitted into evidence on the merits.
(R1, 118-19). In its subsequent written order, the District
Court explicitly reaffirmed that "petitioner's counsel's failure
to discover Evans' written statement was not inexcusable
neglect." (R3-22-25).
3. The Discovery Of Evans's Written Statement
Offie Evans's 2l1l-page statement first came to light in June
of 1987, following a fortuitous development on May 6, 1987, in
an unrelated Georgia case, Napper Vv. Georgia Television Co., 257
Ga. 156, 356 S.E.2d 640 (1987), which appeared to hold, for the
first time, that police investigative files would be deemed
within the compass of the Georgia Open Records Act, 0.C.G.A. §
50-18-72 (a). Mr. Stroup immediately cited that then-recent
decision, still pending before the Georgia Supreme Court on
rehearing, in support of a request to the Atlanta Bureau of
Police Services for the police files in McCleskey's case. (R1-7-
6). Because of the pending rehearing, attorneys for the Atlanta
Bureau were reluctant to disclose the police file, but on June
10, 1987, they agreed to provide Mr. Stroup with one document--
which proved to be the 21-page statement made by Offie Evans.
(R1-7-7). Mr. McCleskey subsequently made that document the
centerpiece of the Massiah claim included in his second federal
petition. (See R1-9 & Exh. E).
B. The Defense Effort To Locate Massiah Witnesses
Mr. Stroup has acknowledged that, at the outset of Mr.
McCleskey's initial state habeas proceedings, he had an
unverified suspicion that Offie Evans may have been a police
informant. (R4-31). Although Stroup lacked hard evidence to
support his suspicion, in an abundance of caution, he pled a
Massiah v. United States claim in an amendment to Mr. McCleskey's
initial state habeas petition. (R4-36).
Mr. Stroup followed up his suspicions with extensive
investigations during state habeas corpus proceedings. He first
spoke with certain "Atlanta Bureau of Police Services officers"
who had been his clients in earlier Title VII litigation, and
obtained information from them on how best to pursue the
prospect of an informant relationship. (R4- 31-32) Following
their lead, Stroup spoke with "two people [at the Fulton County
Jail] who were specifically identified to me as people who might
have information." (R4-33).%4 These jailors, however, proved to
4 Stroup elaborated his understanding that he "was
speaking to people at Fulton County Jail who were directly
involved with Offie Gene Evans. . . There was a gentleman named
Bobby Edwards who by that time had left the Fulton County
Sheriff's Department . . . He had by that time moved to Helen,
Georgia or thereabouts . . . and I was able to find him through a
10
have no information "regarding how Evans came to be assigned to
the jail cell that he was assigned to or of any conversations
with the . . . detectives regarding Offie Evans' assignment to
that jail cell." (R4-33).
Mr. Stroup did not conclude his investigation with these
jailor interviews. Instead, he specifically sought to uncover
evidence of a Massiah violation during the deposition of
prosecutor Parker. Mr. Stroup twice asked Parker about
relationships between Offie Evans and the State:
Q. [Mr. Stroup]: Okay. Were you aware at the time of
the trial of any understandings between Evans and any
Atlanta police department detectives regarding
favorable recommendation [sic] to be made on his
federal escape charge if he would cooperate with this
matter?
A. [Mr. Parker]: No, sir.
Q. Let me ask the question another way to make sure we
are clear. Are you today aware of any understanding
between any Atlanta police department detectives and
Offie Evans?
A. No, sir, I'm not aware of any.
(Fed. Exh. 3, 9-10).°
On cross-examination, prosecutor Parker broadened his
testimony:
Q. Do you have any knowledge that Mr. Evans was
working as an informant for the Atlanta Police or any
police authorities when he was placed in the Fulton
realtor who I know up in that area." (R4- 48-49).
5 Warden Zant clearly overlooked these questions when he
asserted that "the only question asked of Mr. Parker relating to
any type of Massiah claim was asked by the assistant attorney
general and Mr. Stroup simply failed to ask any questions
whatsoever concerning this issue." (Resp. Br. 31).
11
County Jail and when he overheard these conversations
of Mr. McCleskey?
A. I don't know of any instance that Offie Evans had
worked for the Atlanta Police Department as an
informant prior to his overhearing conversations at the
Fulton County Jail.
(Fed. Exh. 3, 14-15). On redirect examination, Mr. Stroup once
again sought, without success, information from Parker on
possible deals with, or promises made to, Offie Evans. (See Fed.
Exh. 3, 18-20).
Mr. Stroup subsequently explained that he did not carry Mr.
McCleskey's Massiah claim forward into his initial federal
petition, because he had been unable factually to substantiate
it during state habeas proceedings:
... I looked at what we had been able to develop in
support of the claim factually in the state habeas
proceeding and made the judgment that we didn't have
the facts to support the claim and, therefore, did not
bring it into federal court.
(R4- 44).
As indicated above, when Mr. McCleskey filed his second
federal petition, he relied primarily upon Offie Evans's 21l-page
statement to support his Massiah claim. (see R1-1, 7-13).
Petitioner had not yet discovered Ulysses Worthy, who had
retired from the Fulton County Jail in 1979, and whose appearance
on July 9, 1987, during the federal hearings, was the
serendipitous result of a massive, indiscriminate effort during
to subpoena everyone whose name was mentioned in any document
uncovered by counsel during the July 8-9th federal hearings. (R4-
21);
12
»
C. The Findings Of The District Court
After receiving the documentary evidence and hearing live
testimony from Robert Stroup, Russell Parker, and the Atlanta
detectives, the District Court made comprehensive findings on the
issue of abuse, excerpted as follows:
Although petitioner did raise a Massiah claim in his
first state petition, that claim was dropped because it
was obvious that it could not succeed given the then-
known facts. At the time of his first federal
petition, petitioner was unaware of Evans' written
statement. . . This is not a case where petitioner has
reserved his proof or deliberately withheld his claim
for a second petition. . . . Here, petitioner did not
have Evans' statement or Worthy's testimony at the time
of his first federal petition; there is therefore no
inexcusable neglect unless "reasonably competent
counsel" would have discovered the evidence prior to
the first federal petition. This court [has] concluded
. «. « that counsel's failure to discover Evans' written
statement was not inexcusable neglect. [R4-118-119].
The same is true of counsel's failure to discover
. Worthy's testimony. . . [C]Jounsel did conduct an
investigation of a possible Massiah claim prior to the
first federal petition, including interviewing "two or
three jailers." . . . The state has made no showing of
any reason that petitioner or his counsel should have
known to interview Worthy specifically with regard to
the Massiah claim.
(R3-22- 24-25).
II. Mr. McCleskey's Claim Under Massiah v. United States
Mr. McCleskey's constitutional claim under Massiah and Henry
is straightforward: that Offie Gene Evans, one of the principal
witnesses employed by the State at McCleskey's 1978 trial, "was
acting on behalf of the State as an informant in the Fulton
County Jail" when he secured a series of post-indictment
admissions from Mr. McCleskey (R1l-1-7), and that the State's use
of Evans's testimony, detailing those admissions, against Mr.
13
McCleskey at his trial violated his Sixth and Fourteenth
Amendment rights to the assistance of counsel in post-indictment
encounters with State authorities or their agents. (Id; see also
R1-1- 7-13).
The principal evidence of the Massiah violation was
presented during three days of federal habeas corpus hearings in
July and August of 1987. The cornerstones of McCleskey's case,
as indicated, were (i) the 2l-page, typewritten statement, given
by Offie Evans to Fulton County prosecutor Russell Parker and two
Atlanta policemen on August 1, 1978, and (ii) the live testimony
of Ulysses Worthy.
The full significance of these two items, however, appears
only in light of background evidence that was developed during
Mr. McCleskey's 1978 trial and during state habeas corpus
proceedings. That background evidence will be set forth first,
before turning to the contents of the statement and Worthy's
testimony.
A. Background Evidence On The Massiah Claim
1. Offie Evans's Testimony At Trial
Although a number of witnesses at Mr. McCleskey's trial
testified that McCleskey had participated in an armed robbery of
the Dixie Furniture Store in Atlanta, Georgia, on May 13, 1978,
the State produce no witnesses to the shooting of Atlanta police
- officer Frank Schlatt, which occurred as Schlatt entered the
furniture store in response to a silent alarm. The murder weapon
itself was never recovered.
14
To prove that Mr. McCleskey had personally committed the
homicide against Officer Schlatt, the State relied on partially
contradictory testimony about who had been carrying the murder
weapon.® The State also relied on two witnesses, both of whom
claimed that McCleskey had confessed to them, after the crime,
that he had shot Officer Schlatt. One of the two witnesses was
the most likely alternative suspect in the shooting -- Ben
Wright, McCleskey's co-defendant and a dominant actor in planning
and executing the armed robbery. (See Tr. T. 651-657).
Apart from Wright, the only witness offering direct
testimony that Mr. McCleskey had been the triggerman was Offie
Gene Evans, who told the jury that McCleskey had admitted
committing the homicide during conversations in the Fulton County
Jail, where the two were in adjacent cells. Evans in fact gave
important testimony on three points: (i) he told the jury about
McCleskey's "confession" (Tr. T. 870-871; Fed. Exh. 4, 870-871);
(ii) he alleged that McCleskey had "said . . . he would have
tried to shoot his way out . . . if it had been a dozen" police
® One of the four robbers, Mr. McCleskey's co-defendant Ben
Wright, and several other witnesses, testified that McCleskey may
have been carrying a pearl-handled, silver .38 pistol linked to
the homicide. (Tr. T. 649; 727). Yet on cross-examination, Ben
Wright admitted that he, not McCleskey, had personally been
carrying that weapon for several weeks prior to the crime. (Tr.
T. 682).
Moreover, Ben Wright's girlfriend admitted that she had
informed police, on the day Wright was arrested, that Wright, not
McCleskey, had been carrying the .38 pistol the day of the
furniture store robbery. During trial, she attempted to change
that testimony, conforming her story to that of her boyfriend
Wright, and claiming that McCleskey had taken the .38 pistol on
the morning of the crime. (Tr. T. 607; 631-634).
15
officers" (Tr. T. 871; Fed. Exh. 4, 871);’ and (iii) he single-
handedly clarified a glaring inconsistency in the identification
testimony of one of the State's principal witnesses, explaining
that Mr. McCleskey had acknowledged wearing makeup and a disguise
during the crime. (Tr. T. 301-303; 870-871; 876-879).
On both direct- and cross-examination, Offie Evans denied
that his testimony was being given in exchange for any promise or
other consideration from State officials. (Tr. T. 868-869; 882-
883).
2. Evans's Testimony During State Habeas Proceedings
During the course of Mr. McCleskey's 1981 state habeas
proceedings, Offie Evans took the witness stand a second time.
Evans acknowledged that he had engaged in several interviews
with State officers prior to Mr. McCleskey's trial: the first,
with Atlanta police detectives Welcome Harris and Sidney Dorsey
(St. H. Tr. 117: Fed. Exh. 16, 117): and a second, with
prosecutor Russell Parker. (St. H. Tr. 118; Fed. Exh. 16, 118) .8
7 This ostensible statement subsequently became a basis for
the prosecutor's argument to the jury that Mr. McCleskey had
acted with "malice." (See Tr. T. 974).
8 Offie Evans's testimony unmistakably confirms that there
were two separate interviews:
Q. All right. You talked with Detective Dorsey -- it
was Dorsey, the Detective you talked to?
A. That's right.
Q. All right. And you talked with Detective Dorsey
first before you talked with Russell Parker from the
D.A.'s Office?
A. That's right.
16
In response to a question by the state habeas court, Evans
revealed that he had testified against Mr. McCleskey at trial in
exchange for a offer of assistance with criminal charges pending
against him in 1978:
THE COURT: Mr. Evans, let me ask you a question. At
the time that you testified in Mr. McCleskey's trial,
had you been promised anything in exchange for your
testimony?
THE WITNESS: No, I wasn't. I wasn't promised nothing
about =-- I wasn't promised nothing by the D.A. but the
Detective told me that he would -- he said he was going
to do it himself, speak a word for me. That was what
the Detective told me.
BY MR. STROUP: Qs The Detective told you that he
would speak a word for you?
A. Yeah.
Q. That was Detective Dorsey?
A. Yeah.
(St. H. Tr.. 122::Fed., Bxzh. 16, 122).
B. The Twenty-One Page Statement
The 2l1-page statement of Offie Evans, annexed by Mr.
McCleskey to his second federal petition, purports to be an
account of (i) short snippets of conversations, overheard by
Offie Evans, between McCleskey and a co-defendant, Bernard
Dupree, and (ii) a long series of direct conversations between
Evans and McCleskey, initiated on July 9, 1978, while all those
involved were incarcerated in adjacent cells at the Fulton
County Jail. (See Fed. Exh. 8; see also R1l-1, Exhibit E).
(SC. H. Tr. 119: Fed. Exh. 16, 119).
7
The typewritten statement reveals that, once in an adjacent
cell, Evans disguised his name, falsely claimed a close
relationship with McCleskey's co-defendant Ben Wright, lied about
his own near-involvement in the crime, spoke to McCleskey about
details of the crime which had not been made public and which
were known only to Atlanta police and to the participants,?
established himself with McCleskey as a reliable "insider," and
then began systematically to press McCleskey for information
about the crime.l10
9 For example, Evans accurately suggested that he knew that
McCleskey and other co-defendants had told police that co-
defendant Ben Wright was the likely triggerperson (Fed. Exh. 8,
at 4) although this fact had not been made public in July of 1978.
10 1n his typewritten = statement to prosecutor Russell
Parker, Evans frankly confessed to his duplicity in dealing with
Mr. McCleskey:
"TI told Warren McClesky [sic] 'I got a nephew man, he in a
world of trouble ...' McClesky asked me 'What is his name.' I
told him 'Ben Wright.' McCleskey said 'You Beens' [sic] uncle.' I
said 'Yeah.' He said 'What's your name?' I told him that my name
was Charles." (Fed. Exh. 8, at 3). After Evans falsely assured
McCleskey that he "used to stick up with Ben," and that "Ben told
me that you shot the man yourself," ( id. at 4), Evans began to
pry open the story of the crime. "I said man 'just what's
happened over there?" (Id.)
Even after McCleskey told him some details of the crime,
Evans continued his surreptitious interrogation: "And then I
asked McClesky what kind of evidence did they have on him." ( Id.
at 8). In a subsequent conversation, Evans sought to learn the
location of the missing murder weapon: "Then I said, 'They ain't
got no guns or nothing man?'" (Id. at 7). When Bernard Dupree,
Mr. McCleskey's co-defendant, overheard the conversations between
Evans and McCleskey from his cell upstairs and became
apprehensive, Evans worked to allay Dupree's suspicions, "talking
to Dupree about Reidsville [and] just about ma[king] Dupree know
me himself." (Id. at 9).
18
C. The July 8-9, 1987 Federal Hearing
1. The Testimony of Prosecutor Russell Parker
During the federal hearing on July 8 and 9, 1987, Russell
Parker and three Atlanta police officers assigned to the Schlatt
homicide case in 1978 gave testimony concerning the Massiah
claim. Russell Parker testified that he met with Offie Evans, in
the presence of Atlanta police officers, on two occasions, first
at the Fulton County Jail on July 12th, 1978, and then again on
August 1, 1978, when the 2l1-page statement was transcribed. (R4-
140-141). However, Parker insisted: (i) that Offie Evans had
told them everything eventually reflected in the 21l1-page,
typewritten statement during the initial, July 12th interview
(R4-152); (ii) that he had not engaged in conversations with
Offie Evans prior to July 12th (R4-140); and (iii) that he had
not asked Evans on July 12th, or prior thereto, to serve as an
informant. (R4- 166-167).
Russell Parker's testimony seems largely borne out by his
contemporaneous notes of the July 12th meeting, which include
several notations consistent with key portions of the
typewritten statement Evans gave a month later. (See Fed. Exh.
9).
Russell Parker testified emphatically that he had neither
met nor even heard of Evans prior to their July 12th meeting.
(R4-142; R5- 85-86; R6-109). Indeed, Parker apparently conducted
an informal investigation into Evans's background after their
July 12th meeting. Written notes by Parker, dated July 25, 1978,
19
reflect that Parker heard from several independent sources--
among them Federal Corrections official Frank Kennebrough and FBI
agent David Kelsey -- that Evans was "a good informant," whose
evidence was "reliable." (Fed. Exh. Ex. 10; see also R6- 81-82).
Another federal correctional official, E.W. Geouge, described
Offie Evans as "[a] professional snitch" whose word, however, had
to be "take[n] with a grain of salt." (Id.)
2. The Testimony Of Police Officers Harris and Jowers
Two other police officers who had investigated the
McCleskey case, Welcome Harris and W. K. Jowers, testified that
they likewise had not known Evans prior to July 12, 1978. (R4-
200). Officer Jowers, who was not present at the July 12th
meeting with Evans, testified that he never came into contact
with Offie Evans during the McCleskey investigation. (R5- 35-36).
Both Harris and Jowers testified that they had never met
privately with Offie Evans or asked him to serve as an informant
against Warren McCleskey, and that they had never directed Evans
to seek admissions from McCleskey. (R6- 98-99, 102-102)
3. The Testimony of Detective Sidney Dorsey
The third police officer on the case, Sidney Dorsey, told a
different story. Dorsey acknowledged that he had previously
known Evans (R5-49), and that he was aware that Evans had
previously served as an informant. (R5-53). Indeed, Dorsey
himself had personally used Evans as am informant in other cases.
(Id.) Detective Dorsey testified that
20
Q. ... [H]e was the person over the years that
would provide occasionally useful information
to the department?
A. He has =-- he has -- he has on occasions that
I can recall been cooperative with me.
Q. Right. And so when he called you'd come see
him because it might well be the prospect of
some information?
A. Yeah, yeah. I'd see him or hear from him
from time to time. ... [H]e was the kind of
person that if he called me I'd go see him.
(R5- 53, 52).
Despite this pre-existing special relationship with Offie
Evans, Detective Dorsey professed a total lack of memory
concerning his dealings with Evans during the Schlatt
investigation:
Q. Okay ... [Evans] found himself in the Fulton County
Jail in July of 1978. Did you go see him at any point
in July?
A. Counselor, I do not recall going to see Offie Evans at
the Fulton County Jail during that time or any time.
Q. Do you remember any meetings that might have been held
between Mr. Evans and yourself and Detective Harris and
Russell Parker at the jail?
A. Counselor, in all honesty, I do not.
* * * *
A. I'm not suggesting that the meeting didn't take place,
nor am I suggesting that I wasn't there. I just don't
recall being there and for some reason no one else
remembers my being there either.
(R5- 57-58, 59-60).
As the excerpt above reveals, Detective Dorsey was unwilling
to deny categorically during the July and August, 1987 hearings
21
that he had met with Evans during the Schlatt investigation. On
the contrary, he acknowledged that he "probably did" meet with
Evans (R5-60), that it was "very possible" he had done so. (R5-
66). He simply could not remember.
Detective Dorsey did clearly remember, however, that he had
not shared knowledge of his special relationship with Evans
widely, not even with the other Atlanta police officers on the
Schlatt case. (R5-55; 61-62). Officers Harris and Jowers
confirmed that they had not known of Detective Dorsey's prior
informant relationship with Offie Evans. (R4-200; R5- 35-38).
Moreover, all of the other participants testified that their
recollections concerning Officer Dorsey's role in the Schlatt
investigation were very hazy, at best. Russell Parker testified
that he had no recollection of Detective Dorsey's role at all
(R4-131; R6-113), and more specifically, he did not remember
Dorsey's presence at the July 12, 1978 meeting, even though his
own notes indicate that Dorsey attended that meeting. (R4-131;
R6-113; Fed. Exh 9, at 4).
Detective Harris likewise testified that he had only a
"vague recollection" at most of Detective Dorsey's involvement in
the investigation. (R4-206; id. 195; R6-107). Detective Dorsey
explained that "generally we all sort of worked on our own.
There was very seldom, if any, orders ever given." (R5 -48-49).
4. The Testimony Of Ulysses Worthy
Late in the afternoon of the second day of the federal
hearing in July of 1987, Ulysses Worthy answered one of many
22
subpoenas that had been served by Mr. McCleskey's counsel on a
wide variety of state, county, and municipal officers during the
course of the two-day hearing. After a momentary interview with
counsel for Mr. McCleskey and Warden Zant (R6- 50-52; R6- 118-
119), Worthy took the stand.
Mr. Worthy testified that he had been the captain of the day
watch at the Fulton County Jail in 1978. (R5-146). He recalled
that Offie Evans was in custody during that time. (R5-147). He
also recalled a meeting, which took place in his presence at the
Fulton County Jail, between several Atlanta police officers and
Offie Evans. (R5-147-149).
During this meeting,ll Detective Sidney Dorsey and Offie
Evans discussed the murder of Officer Schlatt (R5-148), and
Worthy recalled that Detective Dorsey (or perhaps some other
"officer on the case") requested Evans "to engage in
conversations with somebody . . . in a nearby cell." (R5- 148-
149). Mr. Worthy testified that the targeted inmate was Warren
McCleskey, who was being held in isolation awaiting trial
following his indictment for murder and armed robbery. Mr.
Worthy confirmed, upon further questioning, that an Atlanta
police officer "asked Mr. Evans to engage in conversations with
McCleskey who was being held in the jail." (R5-150).
Worthy testified that, as captain of the day watch, he had
occasionally received other requests from Atlanta police
11 Mr. Worthy indicated that the detectives "were out
several times" to meet with Offie Evans. (R5-151).
23
officers, which he would honor, to place one inmate in a cell
next to another so that police could obtain information on
pending criminal cases. (R5-152). In the McCleskey case, Worthy
specifically recalled that "[t]lhe officer on the case," made such
a request to him. (R5-153). In response to the police officer's
request, Offie Evans was moved from another part of the Fulton
County Jail to a cell directly adjacent to Warren McCleskey's
cell:
Q. [By the State]: Mr. Worthy, let me see if I
understand this. Are you saying that someone
asked you to specifically place Offie Evans
in a specific location in the Fulton County
Jail so he could overhear conversations with
Warren McCleskey?
A. Yes, ma'am.
(R5-153). As Mr. Worthy later explained to the District Court:
Judge, may I clarify that? . . . In this
particular case this particular person was
already incarcerated. They just asked that
he be moved near where the other gentleman
was.
(R5-155) . 12
12 Mr. Worthy's account of an initial meeting between
Detective Dorsey and Offie Evans, followed by Evans' move to a
cell next to McCleskey, followed by Evans’ extensive
conversations with Mr. McCleskey, culminating in Evans' meeting
with Parker and Atlanta police officers, helps to explain one
major puzzle about the basic structure and content of Evans' 21-
page written statement. Although Evans was arrested and taken to
the Fulton County Jail on July 3, 1978 (R5- 101-17), his written
statement is absolutely silent concerning any contact with
McCleskey during the four-day period between July 3rd and July
8th. Only beginning on the 8th of July does Evans' statement
first begin to report any conversations between McCleskey and his
partner Bernard Dupree. (Pet. 8, at 1). Not until July 9th does
Evans report that he first introduced himself to McCleskey,
claiming that he was Ben Wright's uncle "Charles." (Pet. 8, at 3).
24
5. Offie Evans
During the July 8-9, 1987, hearing, counsel for Mr.
McCleskey submitted both an oral report and affidavits to the
Court (R1lSupp.-35- Aff't of Bryan A. Stevenson and Aff't of T.
Delaney Bell, both dated July 7, 1987), detailing their efforts
to locate Offie Evans -- who had been recently released from
state prison, who was on probation to the Fulton County
Probation Office, who had been seen by two family members, but
who had declined to make himself available to Mr. McCleskey or
his counsel. Evans did not appear, and thus he did not testify.
(R4- 17-21).
D. The Auqust 10, 1987 Federal Hearing
At the close of the July 8-9, 1987 federal hearing, the
District Court allowed Warden Zant a month's recess in order to
locate any further witnesses he might wish to call to rebut Mr.
McCleskey's evidence. (R5- 163-166).
1. The Testimony Of Ulysses Worthy
At the adjourned hearing on August 10th, Warden Zant re-
called Ulysses Worthy. Mr. Worthy's August testimony accorded in
most fundamental respects with his July 9th account.l3 Worthy
agreed, after some initial confusing testimony concerning Carter
Hamilton (a deputy jailor), that "an officer on the case ... made
13 on cross-examination, Mr. Worthy expressly reconfirmed
every important feature of his July 9, 1987 testimony, point-by-
point. (R6- 25-35).
25
[a] request for [Evans] to be moved," (R6-50) . 14 In response to
questioning from the District Court, Worthy specifically
confirmed the following facts about the role of the Atlanta
police officers:
THE COURT: But you're satisfied that those three
things happened, that they asked to
have him put next to McCleskey, that
they asked him to overhear McCleskey, and
that they asked him to question McCleskey.
THE WITNESS: I was asked can -- to be placed
near McCleskey's cell, I was asked.
THE COURT: And you're satisfied that Evans was
asked to overhear McCleskey talk about
this case?
THE WITNESS: Yes, sir.
THE COURT: And that he was asked to kind of try
to draw him out a little bit about it?
THE WITNESS: Get some information from him.
(R6—- 64-65; accord, R6- 26-28).
It is only on two related points -- exactly when Evans' move
was requested, and the number of (and participants in) various
meetings =-- that Worthy's August 10th testimony varies from his
July 9th testimony. Worthy's most noteworthy change was his
suggestion that the police request to move Evans did not come
until the close of the July 12, 1978, meeting between Evans,
Russell Parker, and Atlanta police officers. (R6- 16-19; id. 36-
38). Worthy attempted on August 10th to explain that his
14 worthy specifically testified that he did not consider
the jailor, Fulton County Deputy Sheriff Carter Hamilton, to have
been "an officer on the case." (R6-49, 65).
26
earlier testimony on this point had been misunderstood, and that
his first and only meeting with investigators had been the July
12, 1978, meeting attended by Russell Parker. (R6- 15-17; jd.
36-37).
Yet on cross-examination, Worthy acknowledged that his
earlier, July 9th testimony made distinct references to (i) an
initial meeting, attended by Detective Dorsey, Offie Evans, and
Worthy (R5- 148), and (ii) a "subsequent meeting" with Mr. Evans
which occurred on a "later occasion" when "those detectives -
came back out." (R5-151). In his July 9th testimony, Worthy
testified that it was only at this "later" meeting that Russell
Parker was present. (Id.). Indeed, Worthy had rok been able to
recall on July 9th whether Detective Dorsey had attended this
second meeting, although Worthy testified unequivocally that
Dorsey had been present at the first meeting. (Id.).
Moreover, Mr. Worthy was unable on cross-examination to
explain how Offie Evans could have: (1) overheard conversations
between McCleskey and Dupree on July 8-11, 1978; (ii) engaged in
extensive conversations with McCleskey on July 9-10, 1978; and
(iii) received a written note from McCleskey (which he passed
directly to Russell Parker during their July 12, 1978 meeting),
if Evans had been moved to a nearby cell only after July 12th.
(R6 -40-44). Nor could Worthy explain why Atlanta investigators
would have sought on July 12, 1978, to move Offie Evans to a
cell next to Warren McCleskey if Evans had already been in that
cell for at least four days prior to July 12th, gathering the
27
very fruits offered by Evans on July 12th. (R6- 39-44).
Mr. Worthy acknowledged that, at the time of the initial
federal hearing on July 9, 1987, he did not know the lawyers for
the parties, and that he knew nothing about the legal issues in
the McCleskey case or what other witnesses had said in their
testimony. (R6- 52-53). Between his first and his second court
appearances, however, Mr. Worthy had read a newspaper article
about the first hearing (R6- 55-56) and had met twice with
counsel for Warden Zant to discuss his earlier testimony. (R6-
53-54).
2. The Testimony Of Deputy Jailor Hamilton
At the August 10th hearing, in addition to re-calling
Ulysses Worthy, Warden Zant also re-called the Atlanta prosecutor
and police, who reiterated their denials of involvement with
Offie Evans as an informant. Zant also called Carter Hamilton,
who had been a floor deputy at the Fulton County Jail in 1978.
(R4-176). Hamilton testified that he did not recall anyone
coming to the jail to speak with Offie Evans about the Schlatt
case until July 12, 1978, when he sat in on the meeting among
Evans, prosecutor Parker, and Atlanta police officers. (R6-68).
Deputy Hamilton testified that he had no knowledge of Evans
ever being moved while in jail. (R6-68). Although Hamilton was
present throughout the July 12, 1978 meeting between Evans,
Russell Parker and the Atlanta police officers, he heard no
requests during that meeting for Evans to be moved, or for Evans
to engage in conversations with Mr. McCleskey. (R6- 69-72).
28
On cross-examination, Deputy Hamilton admitted that he could
not say affirmatively whether Evans might have been held in
another part of the Fulton County Jail prior to July 8, 1978.
There were some 700 to 900 prisoners being held in July of 1978;
they were held on two separate floors in three different wings.
(R6-73). Had Offie Evans been held on the second floor or in a
different part of the Fulton County Jail between his initial
incarceration on July 3, 1978 and July 8, 1978, =-- or if a
movement had occurred during a different shift than the one
Deputy Hamilton worked -- he admitted that he would have had no
knowledge of it. (R6- 72-76). Hamilton also acknowledged that he
had no specific memory of when Offie Evans first was placed in
the first-floor cell next to Mr. McCleskey. (R6-75).
E. The Findings Of The District Court
The District Court, after summarizing the testimony and the
documentary evidence (R3-22- 15-18, 19-21) and analyzing the
discrepancies in Worthy's testimony (R3-22- 16-18), found the
following:
After carefully considering the substance of Worthy's
testimony, his demeanor, and the other relevant
evidence in this case, the court concludes that it
cannot reject Worth's testimony about the fact of a
request to move Offie Evans. The fact that someone, at
some point, requested his permission to move Evans is
the one fact from which Worthy never wavered in his two
days of direct and cross-examination. The State has
introduced no affirmative evidence that Worthy is
either lying or mistaken. The lack of corroboration by
other witnesses is not surprising; the other witnesses,
like Assistant District Attorney Parker, had no reason
to know of a request to move Evans or, like Detective
Dorsey, had an obvious interest in concealing any such
arrangement. Worthy, by contrast, had no apparent
29
interest or bias that would explain any conscious
deception. Worthy's testimony that he was asked to
move Evans 1s further bolstered by Evans' [state
habeas corpus] testimony that he talked to Detective
Dorsey before he talked to Assistant District Attorney
Parker and by Evans' apparent knowledge of details of
the robbery and homicide known only to the police and
the perpetrators.
* * * *
[T]he court concludes that petitioner has established
by a preponderance of the evidence the following
sequence of events: Evans was not originally in the
cell adjoining McCleskey's; prior to July 9, 1978, he
was moved, pursuant to a request approved by Worthy, to
the adjoining cell for the purpose of gathering
incriminating information; Evans was probably coached
in how to approach McCleskey and given critical facts
unknown to the general public; Evans engaged McCleskey
in conversation and eavesdropped on McCleskey's
conversations with DuPree [McCleskey's co-defendant];
and Evans reported what he had heard between July 9 and
July 12, 1978 to Assistant District Attorney Parker on
July 12.
{(R3~-22~ 21-22, 23; accord, Rl1iSupp.-40- 9-10). In a subsequent
paragraph, the District Court summarized the likely motivation
for the scheme:
Unfortunately, one or more of those investigating
Officer Schlatt's murder stepped out of line.
Determined to avenge his death the investigator (s)
violated clearly-established case law, however
artificial or ill-conceived it might have appeared. In
so doing, the investigator(s) ignored the rule of law
that Officer Schlatt gave his life in protecting and
thereby tainted the prosecution of his killer.
(R3-22-31).
III. The Harmless Error Issue
Mr. McCleskey was tried by the Fulton County Superior Court
on one count of murder, and two counts of armed robbery. (Tr. T.
987). As indicated above, the State's evidence that McCleskey
30
was the actual perpetrator of the sehlatt homicide was limited to
some conflicting evidence on who was carrying the murder weapon,
the allegations of McCleskey's co-defendant Ben Wright, and the
testimony of Offie Evans. (See pages 14-16 supra).
At the close of the guilt phase, the Superior Court
instructed the jury on theories of malice murder (Tr. T. 998-999)
and of felony murder. (Tr. T. 999-1000). In its charge on malice
murder, the trial court instructed the jury that "a person
commits murder when he unlawfully and with malice aforethought,
either express or implied, causes the death of another human
being." (Tr. Ts 1000). In its charge on felony murder, the trial
court informed the jury that "[t]he homicide is committed in the
perpetration of a felony when it is committed by the accused
while he is engaged in the performance of an act required for the
full execution of such a felony." (Tr. T. 1000) (emphasis added),
and that the jury should convict "if you believe and find beyond
a reasonable doubt that the homicide alleged in this indictment
was caused by the defendant while he, the said accused, was in
the commission of an armed robbery . . . ." (Id.).1l3
15 The court had earlier charged the jury, in a general
section, on the doctrine of "parties to a crime," as follows:
That statute says that every person concerned in the
commission of a crime is a party thereto and may be
charged with and convicted of commission of the crime,
and then it has several subsections. It says that a
person is concerned in the commission of a crime only
if he directly commits the crime, intentionally aides
or abets in the commission of the crime, or
intentionally advises, encourages, hires, counsels or
procures another to commit the crime.
31
During its deliberations, the jury sought further
instructions on the issue of malice murder. The Superior Court
repeated its instructions. (Tr. T. 1007-1009). Ten minutes
later, the jury returned, finding Mr. McCleskey guilty of malice
murder and two counts of armed robbery. (Tr. T. 1010).
During federal habeas proceedings, after determining that
Offie Evans' testimony was the product of unconstitutional
Massiah violations, the District Court addressed the possible
harmlessness of the violation. The court concluded that Offie
Evans' "testimony about petitioner's incriminating statements was
critical to the state's case" (R3-22-30):
There were no witnesses to the shooting and the murder
weapon was never found. The bulk of the state's case
against the petitioner was three pronged: (1) evidence
that petitioner carried a particular gun on the day of
the robbery that most likely fired the fatal bullets;
(2) testimony by co-defendant Ben Wright that
petitioner pulled the trigger; and (3) Evans' testimony
about petitioner's incriminating statements. As
petitioner points out, the evidence on petitioner's
possession of the gun in question was conflicting and
the testimony of Ben Wright was obviously impeachable.
. « [T]he chronological placement of Evans testimony
[as rebuttal evidence] does not dilute its impact--
"merely" impeaching the statement "I didn't do it" with
the testimony "He told me he did do it" is the
functional equivalent of case in chief evidence of
guilt. . . . Because the court cannot say, beyond a
reasonable doubt, that the jury would have convicted
petitioner without Evans' testimony about petitioner's
incriminating statements, petitioner's conviction for
the murder of Officer Schlatt must be reversed pending
a new trial.
kd
(R3-22- 29-31).
(Tr. T. 994).
32
IV. Warden Zant's Rule 60(b) Motion
In April of 1988, while this case was pending on appeal,
Warden Zant moved this Court to remand the case to the District
Court or to supplement the record, based upon the availability of
Offie Evans, who had then been recently re-jailed on further
charges. After responsive papers were filed, the Court, on May
2, 1988, granted leave for Warden Zant to file a motion to reopen
the judgment in the District Court, pursuant to Rule 60(b).
Warden Zant filed such a motion on May 6, 1988. (R1lSupp.-
31). After receiving responsive papers (R1Supp.-32), the
District Court found that Warden Zant had "fail[ed] to satisfy
the requirements for the relief sought. There is neither a
showing of due diligence nor a showing as to what Offie Evans
would say." (RlSupp.-34-1). Instead of dismissing the motion,
however, the District Court granted Warden Zant six weeks to
conduct additional discovery. (R1Supp.-34-2).
A. The Issue Of Warden Zant's "Due Diligence"
During that discovery period, Warden Zant acknowledged, in
responses to written interrogatories: (1) that neither he nor
anyone under his direction ever sought to locate Offie Evans at
any point during or after the 1987 federal hearings (R1lSupp.-35-
Resp. Answer To First Interrog.-1-2); (ii) that he never
indicated, either to the District Court or to counsel for Mr.
McCleskey, his desire to call Offie Evans as a witness in 1987
33
(id. at 2);1® and (iii) that he never attempted to follow up the
direct leads to Evans' whereabouts that had been revealed by Mr.
McCleskey's counsel during the initial July 8-9, 1987 hearing.
td.) 27
Counsel for Mr. McCleskey also discovered, and presented the
"District Court, documentary evidence that Offie Evans's
deposition had been taken in another case in October of 1981,
that the deposition had addressed the issue of Evans's contacts
with Atlanta police while in jail in 1978, and that Warden Zant's
present counsel had been aware of that deposition -- indeed, had
offered it in another federal habeas case in 1985 -- and had
obviously chosen not to offer it during Mr. McCleskey's 1987
16 The District Court specifically instructed Warden Zant,
during the one-month interval between the initial July, 1987
federal hearing and the August 10, 1987 rebuttal hearing, to
provide formal notice to Mr. McCleskey of any witnesses Zant
might call during the August 10th hearing. (R5-168). In neither
of two letters, dated July 24 and July 29, 1987, did counsel for
Warden Zant express any desire to call Offie Evans, nor did he
seek additional time or assistance to locate Evans.
17 puring that hearing, counsel for Mr. McCleskey detailed,
in affidavits proffered to Warden Zant's counsel, the efforts
they had made to locate Offie Evans in May and June of 1987, just
prior to the hearing. (See R4-17; R1Supp.-35, Aff'ts of Bryon A.
Stevenson and T. Delaney Bell). Those affidavits reveal that, at
various times during May and June of 1987, Mr. Stevenson and/or
Mr. Bell had spoken with Offie Evans's sisters, who reported that
Evans was in and out of the two homes every few days.
Assistant District Attorney Parker was questioned under
cath, during the July 8th hearing, about Offie Evans's
whereabouts. He responded:
"I understand he's just gotten out of jail, You Honor, but I do
not know where he is. I assume he's in the Atlanta area
somewhere. . . I could probably find him. I have spent enough
time with him." (R4-174) (emphasis added).
34
proceedings. (R1Supp.-38-2, 18-19).
B. The Materiality Of Offie Evans's Testimony
During the discovery period, on July 13, 1988, Warden Zant
took the deposition of Offie Evans. That deposition was
thereafter submitted to the District Court in support of Warden
Zant's Rule 60(b) motion. (R1Supp.-37).18 During his deposition,
Evans denied ever having been moved while in the Fulton County
Jail in 1978, or ever having been asked to serve as an informant
against Warren McCleskey. (R1lSupp.-37- 15-21).
Evans' deposition testimony contained a number of internal
contradictions, as well as contradictions with his own former
testimony and the testimony of other officers. For example,
Evans testified that he began speaking with McCleskey on July 3,
1978, the first day he was incarcerated, while the two were in
adjacent cells. (R1Supp.=-37-15, 54). In 2l1l-page typewritten
statement to Russell Parker, however, Evans states that he did
not begin speaking with McCleskey until five days after his
incarceration, on July 9th. (Fed. Exh. 8). During his July 13th
deposition, Evans denied ever meeting with Russell Parker prior
to August 1, 1987 (R1Supp.-37-21); Parker and other witnesses
testified that the two met on July 12, 1978.
Evans also maintained during his 1988 deposition that
Detective Dorsey had never promised to "speak a word for him" in
18 Although the court subsequently contacted counsel for
both parties, inquiring whether either sought an evidentiary
hearing on the Rule 60(b) motion, Warden Zant did not request an
opportunity to present Evans' live testimony.
35
exchange for his testimony against Mr. McCleskey (R1Supp.-37-92).
His sworn testimony in state habeas corpus proceedings in 1981
was directly to the contrary. Evans denied that he had ever
served as an informant prior to 1978, and specifically denied any
prior acquaintance with Detective Dorsey. (R1Supp.-37-46, 75).
This testimony contradicted Dorsey's testimony during the 1987
federal hearings, as well as the information about Evans's
informant activities which Russell Parker obtained from the FBI
and from Federal Corrections officials. Evans also denied that
he had spoken with Russell Parker in 1988 prior to his
deposition. (R1Supp.-37-33). Warden Zant's 1988 Answers to
Interrogatories revealed that Offie Evans had participated in a
telephone conversation with Russell Parker after his re-
incarceration in the spring of 1988. (R1lSupp.-35-Resp. Answer to
First Interrog. at 3).1°
C. The Findings Of The District Court
In its order denying Rule 60(b) relief, the District Court
found that "Evans' testimony is not truly newly discovered but
rather is merely newly produced. . . The fact that the essential
substance of this testimony was in a previous deposition filed in
the public records and known to respondent's counsel also
indicates it is not newly discovered." (R1lSupp.-40-6).
Turning to the issue of due diligence, the District Court
19 A review of 19 inconsistencies and contradictions in
Offie Evans's deposition is set forth at .pages 8 through 17 of
Petitioner's Brief In Response To Respondent's Supplement To Rule
60(b) Motion. (R1lSupp.-38).
36
found that "respondent made no efforts to locate Evans during the
summer of 1987." (R1lSupp.-40-8). "[T]lhe Atlanta Bureau of Police
Services has enjoyed a special relationship with Mr. Evans over
the years, and . . . if the department had been looking for him,
Mr. Evans might have made himself available" to Warden Zant.
(Id.-7). The court concluded that "petitioner's efforts did not
relieve respondent of any obligation to utilize his own resources
to locate Evans. Movant has not demonstrated the due diligence
prong of the 60(b) (2) standard." (Id.).
Finally, addressing the impact of Evans's testimony, the
District Court found that
[i]t is unlikely Evans' testimony would produce a
different result. The credibility or believability
problems with his testimony are evident. He has a
strong motivation for saying he was not an informant,
not only because of recriminations from his
associates, but also in order to stay in favor with the
police and prosecutors who have used him to testify in
the past. The numerous contradictions within his
deposition also lead the court to the conclusion that
his testimony would not be believable.
(Id. at 9). The court closed its analysis by noting that it had
already credited the word of Ulysses Worthy against the sworn
testimony of Atlanta law enforcement personnel: "Evans testimony
is not likely to change the credibility of Worthy's testimony or
the fact that petitioner showed by a preponderance of the
evidence that a Massiah violation occurred. (Id. at 10).
(iii) Statement of the Standard of Review
Mr. McCleskey agrees with Warden Zant that the appropriate
standard to be applied to the Rule 9(b) issue and the Rule 60 (b)
37
issue on this appeal is whether the District Court abused its
discretion. Mr. McCleskey's constitutional claim under Massiah
v. United States presents mixed questions of fact and law. The
ultimate legal questions presented by that claim should be
independently reviewed by this Court.
Under Rule 52 of the Fed. R. Civ. P., the District Court's
factual findings on all issues -- Zant's Rule 9(b) allegations,
the merits of the Massiah claim, harmless error, and Rule 60(b)
-- should not be disturbed unless they are clearly erroneous.
SUMMARY OF ARGUMENT
The gravamen of Warden Zant's appeal is that this Court
should overturn virtually every major fact found by the District
Court. { zanc's appeal should be denied, since the District
Court's factual findings are not "clearly erroneous." |
The governing standard, Rule 52 of the Fed. R. Civ. P. does
not permit this Court independently to reweigh the extensive
factual record. "Where there are two permissible views of the
evidence, the factfinder's choice between them cannot be clearly
erroneous. '" Amadeo v. Zant, U.S. , 100 L.E4.24 249, 262
(1988), citing Anderson Vv. Bessemer City, 470 U.S. 564, 574
(1984). (on1y if Zant could demonstrate that only one view of the
evidence exists would his appeal have merit. |
Zant's burden is insurmountable on this record. The
District Court heard extensive live testimony and carefully
sifted Mindreds of pages of documentary evidence before reaching
its decision. The lower court's judgment, embodied in two
38
thorough opinions, expressly considers the alternative views of
the evidence and clarifies, with great care, the court's choices
among them.
The Massiah claim plainly turns on the District Court's
credibility assessment of three key witnesses, two of whom
testified before the court -- jailor Ulysses Worthy and Detective
Sidney Dorsey -- and one of whom -- Offie Evans -- appeared via
two hearing transcripts and an 100-page deposition. The Supreme
Court has stressed that "[w]lhen findings are based on
determinations regarding the credibility of witnesses, Rule 52(a)
demands even greater deference to the trial court's findings; for
only the trial judge can be aware of the variations in demeanor
and tone of voice that bear so heavily on the listener's
understanding of and belief in what is said." Anderson v. City
of Bessemer City, 470 U.S. 574, 575 (1985).
The District Court's factual determinations are not only
defensible; they are by far the most plausible reading of the
evidence. The various threads of Offie Evans's testimony =-- his
admission during state habeas proceedings about a jailhouse
meeting with Detective Dorsey, his remarkably unguarded 21-page
statement to Atlanta law enforcement personnel (during which he
brags repeatedly about the extensive web of lies by which he
gradually won Warren McCleskey's confidence) -- were tied tightly
together by Ulysses Worthy's unrehearsed account of the jailhouse
meeting at which Atlanta police officers recruited Offie Evans to
serve as an active informant. This testimony meshes into a
39
coherent fabric of deceit and constitutional misconduct,
concealed for nearly a decade.
The District Court's basic conclusions thus find consistent
support in the record; they are fully supported and not "clearly
erroneous."
Warden Zant's additional contentions also founder on the
District Court's factfindings. Although Zant argues that Mr.
McCleskey "deliberately abandoned" his Massiah claim, the
District Court found that the essential facts had been concealed
from McCleskey during his initial state habeas proceedings. The
court properly held that an applicant may not be held
"deliberately" to have abandoned a constitutional claim when the
supporting facts were not reasonably available to him. See e.q.,
Potts v. Zant, 638 ¥. 24 727, 741-743 (5th Cir. Unit B 1981):
accord: Price v. Johnston, 334 U.S. 266 (1948).
Zant also argues that Mr. McCleskey should have discovered
the evidence hidden by State authorities. Zant's position
ignores basic equitable principles: a court should not permit a
party seeking equity to take advantage of his own misconduct.
Sanders v. United States, 373 U.S. 1, 17-18 (1963). The State
cannot be heard to cry "waiver," when its own secret misdeeds
explain why McCleskey failed to uncover the constitutional
violation prior :to 19837. Furthermore, the District Court
determined factually that the conduct of Mr. McCleskey's counsel,
on this record, did not amount to "inexcusable neglect."
Warden Zant alternatively contends that Mr. McCleskey
40
Massiah claim was harmless error, citing as his prooftext this
Court's rejection of Mr. McCleskey's claim under Giglio v.
United States, 405 U.S. 150 (1972), which was litigated in his
first federal petition. The two violations, however, are quite
different, and the Giglio analysis is clearly inapt. A Massiah
violation requires the exclusion on retrial of any mention of
Offie Evans's conversations with Mr. McCleskey. A Giglio
violation, by contrast, allows the State to use Offie Evans's
testimony in full; Evans would simply be required to divulge, as
possible impeachment evidence, that Detective Dorsey made some
kind of assurances to Evans in exchange for his testimony. The
significance of this impeachment evidence under Giglio,
especially for a witness like Evans, already highly impeachable,
is of far less gravity than the exclusion, under Massiah, of
Evans's testimony altogether.
In Satterwhite v. Texas, U.S. , 100 L.Ed.2d 284 (1988),
the Supreme Court recently clarified that evidence far less
central than McCleskey's jailhouse "confessions," especially if
obtained by the State through exploitation of a Sixth Amendment
violation, cannot be harmless. Only if the State can prove that
"the error complained of did not contribute to the verdict
obtained," 100 L.Ed.2d at 295, may a court find it harmless
beyond a reasonable doubt.
Warden Zant's last-ditch argument seeks to reopen the
District Court's judgment. Zant belatedly offers additional
testimony from informant Offie Evans. Zant's motion runs afoul
41
of virtually every requirement established by Rule 60(b). See
Scutieri v. Paige, 808 F.2d 785 (11th Cir. 1987). The proffered
testimony is not "newly discovered" but redundant and previously
available to the State. Warden Zant expended not one hour of
diligence to obtain it during the 1987 federal hearings, even
after receiving from the District Court a full month's
adjournment expressly to permit him to locate additional
witnesses. Evans's 1988 deposition, taken and proffered to
buttress Zant's motion, suffices thoroughly to defeat it: as the
District Court found, Offie Evans's latest version of his
familiar story is a welter of internal contradictions, lies, and
gaping holes. It could not possibly affect the careful judgment
already rendered by the District Court.
ARGUMENT
I.
MR. McCLESKEY DID NOT ABUSE THE WRIT OF HABEAS CORPUS
BY FAILING TO UNCOVER THE MISCONDUCT OF ATLANTA POLICE
OFFICERS WHICH CAME TO LIGHT ONLY IN 1987
Warden Zant's argument under Rule 9(b), like his argument on
the merits, appeals to this Court to overturn factfindings made
after a full evidentiary hearing. Warden Zant's burden is
enormous. Factfindings on abuse of the writ are subject to the
same strict Rule 52 standards as are determinations on merits
issues. See, e.q., Amadeo v. Zant, U.S. , 100 L.Ed.2d 249, 261
(1988) (holding that District Court's findings on whether
secreted evidence was "reasonably available" or ‘readily
discoverable" by counsel is subject to Rule 52); id. at 262
42
(holding that District Court's findings on "deliberate bypass"
are subject to Rule 52).
As the Supreme Court stressed in Amadeo, "a federal
appellate court may set aside a trial court's findings of fact
only if they are 'clearly erroneous,'" 100 L.Ed.2d at 261.
"'Where there are two permissible views of the evidence," the
Supreme Court has held, "the factfinder's choice between them
cannot be clearly erroneous.' Anderson v. Bessemer City, 470 U.S.
[564 (1984)] at 574." Amadeo v. Zant, 100 L.Ed.2d at 262.
"[Tlhe court of appeals may not reverse . . .even though
convinced that had it been sitting as the trier of fact, it would
have weighed the evidence differently." Anderson vVv.City of
Bessemer City, 470 U.S. 564, 574 (1985).
The District Court here found that certain Atlanta police
officers perpetrated a deliberate, covert conspiracy to violate
Mr. McCleskey's Sixth Amendment rights in 1978. Those officers
did everything within their power to hide that misconduct from
everyone =-- fellow officers, the District Attorney, Mr.
McCleskey's jury, even the Georgia Attorney General's Office.
Their wrongdoing came to light, through the sheerest chance, only
on the eve of Mr. McCleskey's execution in 1987.
Warden Zant now has the impossible task of arguing that Mr.
McCleskey and his counsel "abused the writ of habeas corpus" by
failing to uncover misconduct whose very aim was to remain hidden
-- misconduct that escaped the attention oi everyone connected
with this case until Ulysses Worthy, an apparently peripheral
43
player in the overall Schlatt investigation, fortuitously stepped
forward to describe the jailhouse deal struck by Detective Dorsey
and Offie Evans.
Even if Warden Zant's arguments were otherwise persuasive--
and we will show momentarily that they are not -- the equitable
foundations of habeas corpus law would forbid the State to profit
by its own proven misconduct. As the Supreme Court observed in
Sanders v. United States, 373 U.S. 1, 17-18 (1963):
To say that it is open to the respondent to show that a
second or successive application is abusive is simply
to recognize that 'habeas corpus has traditionally been
regarded as governed by equitable principles. . . Among
them is the principle that a suitor's conduct in
relation to the matter at hand may disentitle him to
the relief he seeks.
Equity simply cannot permit a State to hide a constitutional
violation and then, when caught, to fault a habeas applicant for
not detecting the misconduct sooner. See generally, Amadeo V.
Zant, U.S. , 100 L.Ed.24 at 2607 Murray vy. Carrier, 477 U.S.
478, 488 (1986); Ross v. Kemp, 785 F.2d 1467, 1477 (11th Cir.
1986). Freeman v. State of Georgia, 599 F.2d 65, 71-72 (5th Cir.
1979).
A. Warden Zant's Arqument of "Deliberate Abandonment"
Warden Zant's principal argument on abuse is that Mr.
McCleskey "deliberately abandoned the [Massiah] claim prior to
the filing of his first federal petition." (Resp. Br. 13; id. at ’
15). According to Warden Zant, "[d]eliberate abandonment . . .
involves simply a consideration of whether the issue was known
and the petitioner or his counsel made a knowing choice not to
44
pursue the claim after having raised it previously." (Resp. Br.
18-19) (emphasis in original). Since Mr. McCleskey raised a
Massiah claim in his original state habeas corpus petition, Zant
reasons, and since he failed to assert it in his first federal
petition, the claim, Zant concludes, was irrevocably abandoned.
Zant disnizses the testimony of Mr. McCleskey's counsel that
he did not plead the Massiah claim in his initial federal habeas
petition because he had failed to uncover sufficient evidence to
support it:
In this case it is clear that counsel knew of the
existence of the possibility of raising the claim and
simply chose as a matter of tactics not to present the
claim in the first federal habeas corpus petition. The
simple assertion that counsel did not think he had
sufficient facts to prove the claim is insufficient to
overcome the barrier of an intentional abandonment of
an issue. . . If counsel felt that there was any
possible merit to the claim, or was even suspicious, he
certainly should have continued to pursue the claim in
the district court to avoid possible piecemeal
litigation. :
(Resp. Br. 22) (emphasis added).
Warden Zant's legal contentions have no support in the law
of this Circuit, or of any other. As the District Court properly
held:
Abandoning a claim whose supporting facts only later
become evident is not an abandonment that "for
strategic, tactical, or any other reasons ... can
fairly be described as the deliberate by-passing of
state procedures." Fay v. Noia, 372 U.S. 391, 439
(1963), quoted in Potts v. Zant, 638 F.2d 727, 743 (5th
Cir. 1981). +. . . This is not a case where petitioner
has reserved his proof or deliberately withheld his
claim for a second petition. Cf. Sanders v. United
States, 373 U.S. 1, 18 (1963). Nor is the petitioner
now raising an issue identical to one he earlier
considered without merit. Cf. Booker v. Wainwright, 764
F.2d 1371, 1377 {11th Cir. 1985).
45
(R3-22-24).
Deliberately to abandon a claim, Warden Zant himself
concedes, requires a "knowing choice." (Resp. Br. 19). The
Supreme Court emphasized in Fay v. Noia, 372 U.S. at 439, that
"the classic definition of waiver enunciated in Johnson Vv.
Zerbst, 304 U.S. 458, 464 .{1938] =- 'an ‘intentional
relinquishment or abandonment of a known right or privilege'--
furnishes the controlling standard." 20
The former Fifth Circuit, in Potts v. Zant, 638 F.24a 727
(5th. Cir. Unit B 1981) firmly adhered to Fay on this point,
holding that "the definition of waiver enunciated in Johnson Vv.
Zerbst, 304 U.S. 458 -- i.e., the intentional relinquishment or
abandonment of a known right or privilege -- [is] one necessary
20 The most celebrated successive habeas case on this
point is Price v. Johnston, 334 U.S. 266 (1948). The petitioner
in Price had filed an initial federal petition in which he had
raised a challenge to certain evidence on Fourth Amendment
grounds. In passing, he also called the court's attention to two
different and contrary statements made at trial by the
prosecution's chief witness.
Subsequently, on an amendment to his fourth federal
petition, the petitioner alleged for the first time that the
prosecution had knowingly induced the key witness, during a break
in the trial, to change his story and give false testimony. 334
U.S. at 287. Although the record gave the petitioner from the
outset a strong basis to suspect misconduct, the Supreme Court
rejected the dismissal of his claim as an abuse.
The Court distinguished cases in which a petitioner had full
access to "proof [of the claim] which was accessible at all
times." 334 U.S. at 289, and refused in Price to "assume that
petitioner [Price] has acquired no new or additional information
since the time of the trial or the first habeas corpus proceeding
that might indicate fraudulent conduct on the part of the.
prosecuting attorneys." 334 U.S. at 290.
46
element inter alia in finding a deliberate bypass." Potts v.
Zant, 638 F.2d at 741 (emphasis added). Accord: Paprskar v.
Estelle, 612 F.24 1003, 1006 (Bth Cir. 1980). Deliberate
abandonment, in short, must be "knowing and intelligent" as well
as "deliberate" in order to constitute an abuse. Potts v. Zant,
638 F.2d at 743-744.
The Potts majority pointed to the case of Wong Doo v. United
States, 265 U.S. 239 (1924), cited by the Supreme Court in
Sanders, in support of its analysis:
{In the Sanders opinion, the Court characterized Wong
Doo's ... actions as being in bad faith. The Supreme
Court stated: 'The petitioner had full opportunity to
offer proof of [the ground] at the hearing on the first
petition; and if he was intending to rely on that
ground, good faith required that he produce the proof
then. To reserve the proof for use in attempting to
support a later petition, if the first failed, was to
make an abuse of the writ of habeas corpus.. No reason
for not presenting the proof at the outset is offered.
265 U.S at 241 (emphasis added). This passage, read in
its entirety, indicates that Supreme Court's conviction
of the bad faith of the petitioner in Wong Doo.
Potts v. Zant, 638 F.2d at 745 (emphasis added).
Mr. McCleskey, as the District Court found, did not
"reserve the proof" of a Massiah violation during his initial
state habeas hearings for later use in a second federal petition.
Unlike Wong Doo, Mr. McCleskey revealed everything he had
uncovered: it was simply not enough to make out a violation.
This Court, sitting in banc, has recently held that, "the
inquiry into whether a petitioner has abused the writ ... must
consider the petitioner's conduct and knowledge at the time of
the preceding federal application." Moore v. Kemp, 824 F.2d 847,
47
851 (llth. Cir, 1987). Moore's holding is consistent with
earlier treatment of claims predicated on newly discovered facts:
The petitioner may avoid dismissal if he proves by a
preponderance of the evidence that he was ignorant of
facts necessary to support the new ground when he filed
his prior habeas corpus petition.
Booker v. Wainwright, 764 F.2d 1371, 1376 (11th Cir. 1985); Haley
Y. Estelle, 632 F.24 1273, 1275 (5th Cir. 1980) ("it is clear
that a petitioner cannot be charged with having abused the writ
of habeas corpus if, at the time of his earlier petition, he was
unaware of the facts on which his earlier claims are based"); see
also Walker v. Lockhart, 763 F.2d 942, 955 n.26 (8th Cir. 1985)
(discovery of evidence suppressed by the State permits
consideration of previously asserted claim in a successive
petition); Sockwell .v. Maggio, 709 F.2d 341, 344 (5th Cir.
1983) (per curiam) ("[i]f a petitioner's unawareness of facts
which might support a habeas application is excusable .. the
subsequent filing is not an abuse of the writ")
Applying this well-established line of reasoning to Mr.
McCleskey's case, it is plain that his counsel did not
"deliberately abandon" his Massiah claim. McCleskey acted
neither "in bad faith" nor with a purpose "to vex, harass, or
delay," Sanders v. United States, 373 U.S. at 18. Instead, his
counsel was simply unable, even after a substantial
investigation, to uncover the State's well-concealed facts.
B. Warden Zant's Allegations of "Inexcusable Neglect"
Warden Zant's alternative argument is advanced only
48
intermittently: at one point, Zant admits that "[t]he question
raised in the instant case . . . is not one of inexcusable
neglect but of deliberate abandonment of an issue." (Resp. Br.
18). Yet throughout his argument on abuse, Zant enumerates
ostensible "failures" and "oversights" that appear to amount to
an indictment of inexcusable neglect.
Warden Zant contends, for example, that Mr. McCleskey's
counsel "never asked either the assistant district attorney or
any of the police officers when Mr. Evans began cooperating with
them." (Resp. Br. 20). He alleges that counsel's investigation
"fell short of any kind of in depth inquirv." (Id.). Counsel
allegedly "did not subpoena any records regarding the informant
claim." (Resp. Br. 21). He argues that "counsel certainly had
reason to know that there was a written statement of Offie Gene
Evans and certainly should have made some effort to obtain that
statement." (Resp. Br. 23).
Warden Zant also rehearses the multiple attempts by John
Turner, Mr. McCleskey's trial attorney, to obtain all statements
made by McCleskey and concludes that they should have "put
counsel on notice," (Resp. Br. 24) or been "a clear indication"
that some kind of written statement existed. (Resp. Br. 25).21
21 warden Zant also proffers a bizarre reading from a state
habeas corpus finding addressing an unrelated issue, which
mentions in passing "that defense counsel had access to the
prosecutions' discovery file which included statements from all
witnesses (except Evans) and investigative reports." (St. H. T.
38) (emphasis added). In this quotation, Zant detects "a clear
factual finding . . . that there was actually a written statement
from Offie Evans." (Resp. Br. 32).
49
PInRLLY he asserts that "Petitioner had a legal basis for
obtaining a copy of this statement in the first state habeas
corpus proceeding," and that, consequently, there was "no valid
reason why Petitioner could not have obtained this statement
earlier." (Resp. Br. 33).
None of these charges hold water. In this case, Mr.
McCleskey's counsel admittedly had some basis for a suspicion
that Offie Evans might have been acting under State authority.
Far from neglecting his suspicions, however, Mr. Stroup,
McCleskey's counsel, began a wide-ranging inquiry, first
questioning officers of the Atlanta Bureau of Police Services
about the possible use of informants, then speaking with two or
three jailors at the Fulton County Jail to learn what they might
know of Offie Evans' incarceration, then deposing Assistant
District Attorney Russell Parker about a possible relationship
between Evans and Atlanta police officers, and finally
from Offie Evans." (Resp. Br. 32).
Warden Zant's interpretation is faulty on two grounds.
First, considering the plain meaning of the court's language, it
is far more reasonable to read the court as saying (i) that the
prosecutor's file included statements from all other trial
witnesses except Offie Evans (since no written statement by
Evans existed), rather than (ii) that the file contained
statements from all witnesses (including Evans) and that defense
counsel received all statements (except Evans').
Second, the state habeas court, to our knowledge, never
received Evans' 2l-page statement. The statement is not part of
the public record, and the State did not file any documents under
seal in the state habeas proceeding. Consequently, Warden Zant's
assertion that "the state habeas court itself also specifically
realized that there was a written statement from Offie Evans"
(Resp. Br. 33) has no foundation at all.
50
questioning Evans directly about the issue during state habeas
corpus proceedings.
None of the Fulton County jailors knew anything about such a
relationship. District Attorney Parker testified: "I don't know
of any instance that Offie Evans had worked for the Atlanta
Police Department as an informant prior to his overhearing
conversations at the Fulton County Jail." Having thus been
assured by the prosecutor -- on behalf of himself and the Atlanta
police =-- and by the suspected informant, under oath in a state
habeas hearing, that no informant relationship ever existed, it
was hardly "inexcusable" of Mr. McCleskey's counsel, who was
pursuing over twenty additional constitutional claims on his
client's behalf, to conclude that Evans, appearances to the
contrary notwithstanding, had not served as a State informant.22
* * * * se
The State's alternative theory of "inexcusable neglect"
depends on its argument that defense counsel should have obtained
Evans' 21l-page written statement prior to 1987. Yet Mr.
McCleskey demonstrated to the District Court during the July,
1987 hearing that Mr. McCleskey's trial and habeas attorneys
22 The State in its brief faulted Mr. Stroup for not
speaking directly with Detectives Harris and Dorsey. Even were
an attorney normally required to interview every police officer
in a case to overcome a finding of "inexcusable neglect" --
something the law uniformly rejects =-- it was plainly
demonstrated during the July and August, 1987 hearings that, had
Stroup contacted tnese detectives, they would not have given him
evidence that would have led to disclosure of the Massiah
violation. Both repeatedly disclaimed all knowledge of the
violation, even under oath.
5)
repeatedly sought all such statements, but were denied access to
them, and were even misled by State actors, perhaps
inadvertently, about their existence. The Superior Court's
observation during McCleskey's trial, for example, that "I don't
know that we are talking about any written statement" obviously
leads a reasonable counsel away from, not toward, the conclusion
that some written statement existed.?3
Most inexplicable of all, if there was in truth "no valid
reason why Petitioner could not have obtained this statement
earlier," why was it not produced? Why did the State repeatedly
refuse to turn over Evans's statement, in response to (i) John
Turner's pretrial motions,, (ii) Turner's oral request in mid-
trial, (iii) Turner's demand on direct appeal, (iv) Robert
Stroup's sweeping request of Russell Parker during state habeas
corpus proceedings, or (v) questioning of Parker and Evans during
state habeas proceedings?
The question answers itself: the State sought for a decade
to hide the existence of the statement and avoid its production
to defense counsel. The record fully justifies the District
Court's conclusion "that petitioner's counsel's failure to
discover Evans' written statement was not inexcusable neglect."
(R3-22-25, citing R4- 118-119).
23 The trial court's follow-up remark that "[t]his is not
a statement of the defendant," was doubly misleading. Although
the remark was literally true =-- in retrospect, the court
apparently was referring to the typewritten statement by Offie
Evans, which was not a direct statement by McCleskey =-- Evans's
statement in fact contained Evans's account of numerous verbatim
exchanges with, and purported admissions by, Mr. McCleskey.
52
11.
THE DISTRICT COURT PROPERLY FOUND THAT ATLANTA
POLICE MISCONDUCT VIOLATED WARREN McCLESKEY'S SIXTH
AMENDMENT RIGHTS UNDER MASSTIAH v. UNITED STATES
Warden Zant contends both that the District Court erred in
its factfindings on Massiah and that it applied an incorrect
legal standard. Examination of the District Court's order
reveals no error.
A. The District Court's Factual Findings Were Not Clearly
Erroneous Under Rule 52
As noted above, the District Court decided this case after a
meticulous weighing of the evidence. The court first heard
testimony from witnesses on July 8 and 9, 1987, and then allowed
Warden Zant over a month to assemble additional evidence for an
August 10, 1987 rebuttal hearing. (R5-163-165).
At the conclusion of Zant's rebuttal, the District Court
invited the parties to submit briefs on the logic and import of
the testimony presented to the court. {(R6-120-121). Only after
carefully considering the parties' alternative views of the
evidence did the court reject Warden Zant's contentions, finding
Mr. McCleskey's view of the facts was the more plausible.
The key factual issue, the District Court concluded, was
whether or not some state agent had arranged to move Evans to the
cell adjoining McCleskey's in an effort to obtain incriminating
evidence, and whether some police office had recruited Evans to
serve as the State's agent. (R3-22- 20-21). The court observed
that there was some evidence in the record which might support
53
both sides of the issue, but "after carefully considering the
substance of [Ulysses] Worthy's testimony, his demeanor, and the
other relevant evidence in the case," the court concluded that
Atlanta police authorities had arranged for the move of Evans to
the cell adjacent to McCleskey. (R3-22-21).
The court weighed, but rejected, two alternative hypotheses
advanced by Zant, (R3-22-23), finding
that petitioner has established by a preponderance of
the evidence the following sequence of events: Evans
was not originally in the cell adjoining McCleskey's;
prior to July 9, 1978 he was moved, pursuant to a
request approved by Worthy, to the adjoining cell tor
the purpose of gathering incriminating information;
Evans was probably coached in how to approach McCleskey
and given critical facts unknown to the general
public; Evans engaged McCleskey in conversation and
eavesdropped on McCleskey's conversations with DuPree;
and Evans reported what he had heard between July 9 and
July 23, 1978 to Assistant District Attorney Parker on
July 12.
(R3-22-23). Zant now contends that the District Court's finding
that Evans was moved is clearly erroneous. (Resp. Br. 70-71).
The evidence before the District Court has been summarized
in our Statement of Facts at pages 14-29 supra. On this record,
Zant simply does not meet his heavy burden of showing clear error
under Rule 52. The Supreme Court's decision in Anderson v. City
of Bessemer City, 470 U.S. 564, 574 (1985), states the applicable
rule:
If the district court's account of the evidence is
plausible in light of the record viewed in its
entirety, the court of appeals may not reverse it even
though convinced that had it been sitting as the trier
of fact, it would have weighed the evidence
differently. Where there are two permissible views of
the evidence, the fact-finder's choice between them
cannot be clearly erroneous. United States v. Yellow
54
cap Co., 3383 U.S. 338, 342, 70. 8.Ct. 177, 179, 94 L.EAQ.
180 (1949) .... This is so even when the district
court's findings do not rest on oredibility
determinations, but are based instead on physical or
documentary evidence or inferences from other facts. .
. «. When findings are based on determinations
regarding the credibility of witnesses, Rule 52(a)
demands even greater deference to the trial court's
findings; for only the trial judge can be aware of the
variations in demeanor and tone of voice that bear so
heavily on the listener's understanding of and belief
in what is said.
Here, the District Court did make factual findings based
upon its assessment of the credibility of the witnesses appearing
before it =-- primarily Captain Worthy of the Fulton County
Sheriff's Department and detective Dorsey of the Atlanta Bureau
of Police Services =-- and upon the documentary evidence
introduced. On that basis, the court made a choice among the
alternate theories of the evidence. The court credited the
testimony of Captain Worthy, that an "officer on the case" had
directed Worthy to move Offie Evans to the cell adjacent to Mr.
McCleskey's. Where Detective Dorsey's testimony was in conflict,
the District Court rejected Dorsey's testimony, concluding that
Dorsey had "an obvious interest" in concealing his arrangement
with Evans. (R3-22-22). By contrast, Worthy "had no apparent
interest or bias that would explain any conscious deception."
This is precisely the sort of credibility choice that the
Supreme Court has held cannot be clearly erroneous.
The District Court's determination to believe Worthy and to
reject the testimony of Dorsey, moreover, is supported by far
more than its assessment of the demeanor of these witnesses. The
District Court's confidence in Worthy's unrehearsed testimony of
55
July 9 is buttressed by the remarkable consistency of that
testimony with other important items of evidence before the
court.
(1) In his July 9, 1987, testimony, Worthy singled out
Sidney Dorsey as one of the officers who had met with Offie
Evans. (R5-148). This identification meshed perfectly with
Evans's own account, during his 1981 state habeas testimony, of
an initial meeting between himself and Detective Dorsey, in the
Fulton County Jail, prior to Evans' first meeting with prosecutor
Parker.
(2) Worthy's testimony that Evans had been recruited as an
informant by Detective Dorsey or another Atlanta officer was
consistent with evidence that Evans had in fact served as an
informant in the past, not only for federal agents, but
specifically for Sidney Dorsey as well. (R5-52, 53; R6-81, 82).
(3) The only police officer who Worthy recalled by name was
Sidney Dorsey. This recollection is consistent with Dorsey's
testimony that he alone, among Atlanta police officers assigned
to the Schlatt case, had previously known Evans and used him as
an informant. (R5-49, 53).
(4) Worthy's July 9th account of an initial meeting with
Evans, followed by a move of Evans to the cell adjacent to
McCleskey, explains an apparently oddity in Evans’ 21-page
written statement. Although that statement recites that Evans
has been in a cell next to Mr. McCleskey "since July 3, 1978"--
the day Evans was first taken into custody =-- it is absolutely
56
silent concerning any contacts with McCleskey prior to July 8.
Only on July 9th, as the statement indicates, did Evans first
introduce himself to McCleskey. This five-day period of silence
by the voluble Mr. Evans seems highly implausible; it is fully
explained, however, if Evans was not moved until several days
after his initial incarceration -- Jjust as Ulysses Worthy
recalled in his federal testimony.2%
There are substantial grounds, moreover, for the District
Court's rejection of Detective Dorsey's contrary testimony--
apart from Dorsey's demeanor. It defies common sense to believe
that Detective Dorsey, who had been assigned to investigate the
shooting death of a fellow officer, who had a prior informant
relationship with Offie Evans (R5-53), and who had relied on that
relationship in other cases (R5- 49-53), would not remember
speaking to his special informant -- whom he knew to be in Fulton
County Jail and who ultimately provided the critical testimony
that pinned the death of Officer Schlatt squarely on Warren
McCleskey.
Offie Evans himself unwittingly undercut Dorsey's story in
1981, when he testified during state habeas proceedings that he
24 As to the State's heavy reliance upon inconsistencies
between Worthy's initial testimony on July 9 and his subsequent
statements on August 10, 1987, the court noted the likely
motivation for Worthy's change in certain portions of his
testimony -- in the interim, he had seen newspaper accounts
detailing the legal significance of his testimony and he had been
twice interviewed by the Attorney General. The District Court
cannot, as a principle of law, be faulted for finding more
reliable Worthy's initial testimony, which was untainted by these
intervening influences.
57
had met with Dorsey, to discuss the Schlatt case, prior to his
later meeting with Russell Parker. At this initial meeting,
Evans revealed that Dorsey had promised to "speak a word for him"
with federal officers investigating the pending criminal charges
against Evans. When confronted with this testimony, Dorsey's
only response was to deny the meeting and accuse Evans of lying.
(R6-87) .
On this record, the court's findings, which accept Worthy's
unrehearsed testimony of July 9 and reject Dorsey's denials, are
unimpeachable.
Warden Zant's has also argued that the District Court's
entire opinion rests only upon the testimony of Ulysses Worthy.
(Resp. Br. 43). As we have shown, the charge simply isn't so.
The District Court carefully drew upon documentary evidence,
looking not only to Offie Evans's 1981 testimony but to his 21-
page typewritten statement to Atlanta authorities. That
statement, as we have shown, provides strong internal support for
the conclusion that Evans was acting as an agent of the Atlanta
police. In it, Offie Evans brags about the deception through
which he gradually gained the trust of Mr. McCleskey. As the
District Court found:
Evans repeatedly lied to McCleskey, telling him that
McCleskey's co-defendant, Ben Wright, was Evans'
nephew; that Evans' name was Charles; that Ben had told
Evans about McCleskey; that Evans had seen Ben
recently; that Ben was accusing McCleskey of falsely
identifying Ben as the "trigger man" in the robbery;
that Evans "used to stick up with Ben, too;" that Ben
told Evans that McCleskey shot Officer Schlatt; and
that Evans was supposed to have been in on the robbery
himself.
58
(R3-22-20). 25
Adopting another tack, Zant stresses that the State's
witnesses testified "consistently" that Evans was not moved, and
that they had no knowledge that Evans was an informant when
placed in the cell. (Resp. Br. 60). Yet the District Court's
decision, after carefully considering the opportunity each
witness had to know the relevant events, properly discounted
their ignorance of the unconstitutional arrangement. (R3-22-22).
For example, the District Court did not reject prosecutor Russell
Parker's testimony; it found instead that Parker had no reason to
know about the move, making his testimony on the point
irrelevant. (R3-22-22).
Fulton County Deputy Carter Hamilton's testimony was
assessed in a similar light. Because Hamilton's knowledge was
limited to persons and events on the first floor of the jail
(R6-72, 76), he had no basis to know whether Offie Evans had been
initially housed in another part of the jail. (R4-177; R6-74,
25 Zant contends that the finding that Evans was "given
critical facts unknown to the general public" was clearly
erroneous. The District Court's conclusion is, however, a proper
inference from the facts before the court, most notably, that
Evans knew and asserted to McCleskey that he and his co-
defendants had been telling Atlanta police that Ben Wright was
the triggerman.
Even were the foundation for this inference more shaky, it
is not critical to the court's ultimate decision. The State does
not contest the court's finding that Evans was probably coached
in how to approach McCleskey; whether or not he was at the same
time given information not generally known to the public is
surplusage. That coaching itself is strong evidence of police
involvement in Evans' interrogation of McCleskey.
59
75). Hamilton's lack of knowledge proves nothing about whether a
secret deal was made; it only proves he was not a party to it.
The denials of other Atlanta police officers, save Dorsey,
are similarly irrelevant. Dorsey testified that he had not
shared a word of his informant relationship with other Atlanta
police officers; it was a one-on-one relationship. (R5-49, 53).
As a result, other police officers simply had no knowledge of the
arrangement. 2°
The unanimous testimony by State's witnesses that they had
no knowledge of a move is, on close scrutiny, unsurprising and
beside the point. Zant cannot disprove the secret deal between
Offie Evans and Detective Dorsey by proffering a series of
witnesses who were not privy to it. Warden Zant's "numbers game"
is a fallacious one, and the District Court's carefully
considered factfindings are not clearly erroneous.
B. The District Court's Applied The Proper Legal
Standards To The Facts
Warden Zant's alternative argument is that the District
Court's judgment is "incorrect legally as well as factually,"
26 Detective Welcome Harris' testimony presents one point
of conflict with the other evidence. Office Evans testified in
1981 that he met with both Detective Harris and Detective Dorsey
prior to meeting with Russell Parker, and that it was on this
occasion that Dorsey said he would put in a good word for Evans
on his federal escape charge. (Fed. Ex. 16, at 119-22.) Whether
Harris as well as Dorsey was lying about this meeting is
irrelevant to Mr. McCleskey's constitutional claim. If Harris
was not present at the initial meeting between Dorsey and Evans,
this is at most a minor failure of recollection on Evans' part;
if Harris was present and declined to recall that fact, it
indicates simply a cover-up by two police officers rather than
one.
since "there is no evidence of any bargain for the assistance of
Mr. Evans and no evidence of an agreement." (Resp. Br. 71).
Zant's contention rests on the premise that a Massiah violation
requires a showing of "consideration" as a necessary element in
proving an agency relationship.
There is simply no basis Po law for such an assertion.?’ As
his only authority, Zant points to this Circuit's decision in
Lightbourne v. Dugger, 829 F.2d 1012 (11th Cir. 1987), which, he
contends, "actually implies" this requirement. (Resp. Br. 42).
Lightbourne implies no such thing.
Lightbourne does cite with approval the Florida Supreme
Court's characterization of the requisites of a Massiah claim:
Without some promise or guarantee of compensation, some
overt scheme in which the state took part, or some
other evidence of prearrangement aimed at discovering
incriminating information we are unwilling to elevate
the state's actions in this case to an agency
relationship with the informant Chavers.
829 F.2d at 1019 (emphasis added). This list of disjunctive
criteria stands for nothing more than the proposition that one or
another of several possible indices of agency =-- a promise of
compensation, an overt scheme, or evidence of prearrangement--
must be shown. It holds consideration to be sufficient proof of
agency, but not necessary proof.
Lightbourne aside, a review of Supreme Court precedent on
Massiah shows no requirement of a "bargain" as a part of a
27 It is, of course, black letter law that consideration
is not required to establish an agency relationship.
Restatement of the Law, 2d, Agency, 2nd §16.
61
showing of an informant relationship. See United States v. Henry,
447 U.S. 264 (1980); Maine v. Moulton, 474 U.S. 159 (1985).
Massiah itself makes no mention whatsoever of consideration.
While a number of the cases, such as Henry, did involve a paid
agent, nothing in the cases indicates that agency can only be
shown by proof of a payment to the informant.
Warden Zant's collateral argument, that there was no overt
"agreement" between Offie Evans and Detective Dorsey, is likewise
without merit. While it is, of course, necessary that an
informant cooperate with the scheme, the District Court's
findings in this case amply support that element. Indeed, Offie
Evans' agreement to participate in Detective Dorsey's scheme is
fully supported by the extraordinary series of lies he told to
gain McCleskey's confidence, and the persistence of his
questioning -- all starkly revealed in his 21-page statement to
Atlanta authorities. Evans' agreement, in short, is manifest ih
his own typewritten account of his active participation in the
enterprise.
The secret investigative techniques employed here are
precisely what the Supreme Court has condemned as recently
Kuhlmann v. Wilson, 477 U.S. 436 (1986). Offie Evans, as his own
dramatic account demonstrates, "took some action, beyond merely
listening, that was designed deliberately to elicit incriminating
remarks." Kuhlmann v. Wilson, supra, 477 U.S. at 459. Detective
Dorsey and Evans carried out a scheme ignored the "vast
difference between placing an 'ear' in the suspect's cell and
62
placing a voice in the cell to encourage conversation for the
gar! to record.” Id. at 461 (Burger, Ch.J., concurring). His
relentless execution of Detective Dorsey's illegal plan of action
plainly violated Warren McCleskey's Sixth Amendment rights.
Jil.
THE DISTRICT COURT CORRECTLY FOUND THAT
THE MASSIAH VIOLATION PROVEN IN MR. McCLESKEY'S
CASE WAS NOT HARMLESS BEYOND A REASONABLE DOUBT
Warden Zant also maintains that the Massiah violation, on
this record, was harmless beyond a reasonable doubt.
The essence of Zant's argument is an appeal to "precedent:"
because this Court previously found that a violation of Giglio v.
United States -- in which Offie Evans was earlier implicated--
was harmless error, the Massiah violation subsequently uncovered
by Mr. McCleskey likewise must be harmless error.
The fallacy of this argument is plain. Testimony tainted by
a Massiah violation is excluded entirely from jury deliberation;
a Giglio violation implicates nothing more than improper
exclusion of impeachment evidence. The "materiality" analysis
which this Court applied to Mr. McCleskey's Giglio violation is
inapplicable to his Massiah claim.
Here, Massiah dictates consequences that are dramatically
different from any consequences under Giglio. It is one thing
for McCleskey's jury to learn of one additional motive Evans
might have for testifying that McCleskey had admitted shooting
Officer Schlatt -- that a detective would "speak a word for him."
63
It is quite another thing for the jury never to have heard
Evans's testimony at all. This distinction alone undermines
Warden Zant's argument.
Moreover, 1in analyzing the "harmlessness" of Mr.
McCleskey's Giglio violation, this Court focused upon the
independent impeachment evidence available to the jury, and upon
the independent circumstantial evidence of gquilt.?28 This
Court's explicitly cited United States v. Anderson, 574 F.2d
1347 (5th Cir. 1978), which discusses the materiality standard
applicable to a Giglio claim.
An intervening Supreme Court case, however, illustrates that
a "materiality" analysis is not an appropriate inquiry as part of
assessing the harmlessness of a Sixth Amendment Massiah claim.
In Satterwhite v. Texas, U.S. -, 100 L.Ed.24 284 (1988),
the Supreme Court reversed a lower court's finding of harmless
error in the context of a Sixth Amendment violation. The Supreme
Court held that it was not harmless error for a jury to have
heard the testimony of a psychologist who interviewed the
28 This Court's prior decision only considered the
materiality of the additional impeachment evidence:
Thus, although Evans' testimony might well be
regarded as important in certain respects,
the corroboration of that testimony was such
that the revelation of the Giglio promise
would not reasonably affect the Jury's
assessment of his credibility and therefore
would have had no effect on the Jury's
decision.
64
defendant in violation of a defendant's Sixth Amendment right to
counsel.
The Court rejected a focus upon the independent evidence of
impeachment and guilt which are a part of the Giglio
"materiality" analysis, and instead followed Chapman Vv.
California, 386 U.S. 18 (1967), reasoning that the relevant
inquiry is not
whether the legally admitted evidence was such that the
minds of an average jury would have found the State's
case [on future dangerousness] sufficient . . . even if
Dr. Grigson's testimony had not been admitted.
[citation omitted] The question . . . is not whether
the legally admitted evidence was sufficient to
support the death sentence, we assume it was, but
rather, whether the State has proved "beyond a
reasonable doubt that the error complained of did not
contribute to the verdict obtained."Chapman, 386 U.S.
at 24, 87 S.Ct. at 828 (emphasis added).
100 L.Ed.2d at 295.
The Satterwhite Court noted a wealth of other, 1legally-
admitted evidence that supported the State's verdict in that
case:
The evidence introduced at sentencing showed that, in
addition to his conviction in this case, Satterwhite
had four prior convictions of crime ranging from
aggravated assault to armed robbery. Eight police
officers testified that Satterwhite's reputation for
being a peaceful and law abiding citizen was bad, and
Satterwhite's mother's former husband testified that
Satterwhite once shot him during an argument. The
State also introduced the testimony of Bexar County
psychologist Betty Lou Schroeder. Dr. Schroeder
testified that she found Satterwhite to be a "cunning
individual" and a "user of people," with an inability
to feel empathy or guilt. She testified that in her
opinion, Satterwhite would be a continuing threat to
society through acts of criminal violence.
Id., 295-296.
65
Despite this powerful cumulative evidence of the defendant's
violent character, the Supreme Court held that, because Dr.
Grigson was the last witness, because Grigson was the only
licensed physician to testify, and because the district attorney
relied upon his testimony and conclusions in closing argument, it
was impossible to say beyond a reasonable doubt that his
testimony did not influence the jury. Id. at 296.
As with the witness in Satterwhite, Evans's testimony at
Mr. McCleskey's trial made certain unique contributions to the
State's case. Evans was one of the last of the 3tate's
witnesses, and, unlike co-defendant Ben Wright, he had no
apparent motive to lie. The prosecutor used Evans' testimony as
the final element in his "malice" argument to the jury:
... and just like Offie Evans says, it doesn't make any
difference if there had been a dozen policemen come in
there, he was going to shoot his way out. He didn't
have to do that, he could have run out the side
entrance, he could have given up, he could have
concealed himself like he said he tried to do under one
of the couches and just hid there. He could have done
that and let them find him, here I am, peekaboo. He
deliberately killed that officer on purpose. I can
guess what his purpose was, I am sure you can guess
what it was, too. He is going to be a big man and kill
a police officer and get away with it. That is malice.
(Tr. T. 974-975).
This Circuit has recently applied a Satterwhite/Chapman
analysis to a Sixth Amendment Massiah violation in Brown v.
Dudgeyr,. 831 F.2d 1547 (11th Cir. 1987). As the Court noted
therein, the applicable harmless error standard
presumes prejudice, and places the burden on
respondent to prove beyond a reasonable doubt that the
errors did not contribute to the verdict. [citations
66
omitted] If there remains a possibility that the
constitutionally-proscribed evidence impacted on the
ultimate decisional process of the jury, if the
beneficiary of the error cannot refute that possibility
beyond all reasonable doubt, constitutional errors can
never be deemed harmless.
831 F.24 at 1554.
Thus, in Mr. McCleskey's case, the proper harmless error
analysis looks less to the adequacy of the independent evidence
which was a part of the State's case than to whether it can be
said, beyond a reasonable doubt, that Evans' testimony itself did
not contribute to the jury's verdict.
Even if the appropriate analysis called for a weighing of
the State's independent evidence on the murder charge, because of
the very flimsiness of that other evidence -- (i) the
inconclusive testimony of Ben Wright's girlfriend about who was
carrying the murder weapon and (ii) the inherently compromised
testimony of co-defendant Ben Wright =-- it cannot be said that
the State has met its burden, beyond a reasonable doubt, of
showing that Offie Evans' testimony was harmless.
67
IV.
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION
IN DENYING WARDEN ZANT'S RULE 60(b) MOTION FOR
RELIEF FROM JUDGMENT
Warden Zant's last-ditch defense is his argument under Rule
60(b) that the District Court abused its discretion by denying
his motion to alter or amend the judgment. When the District
Court's factual findings are properly considered, no abuse of
discretion can be found.
A. Zant Failed To Show The Evidence Is "Newly Discovered"
The District Court found that Offie Evans' testimony, the
evidence which Zant seeks to present, is not newly discovered.
(R1Supp-40-5.) Zant concedes that the District Court is correct,
according to the "traditional definition." (Resp. Br. 85). Under
the law of this Circuit, no further inquiry need be made.
Scutieri v. Paige, 808 F.2d 785 (11th Cir. 1987).
B. Zant Failed To Exercise "Due Diligence"
Zant has no better response to the District Court's finding
that he "did not make any efforts to track down Offie Evans
during the summer of 1987." (R1lSupp.-40-7). Warden Zant's only
excuse is to claim that he relied on the efforts made by Mr.
McCleskey and his counsel to locate Evans in June and early July
of 1987. If anything, however, those efforts demonstrated that
Offie Evans had been in the Atlanta area and had been in direct
contact with two of his sisters (whose addresses and telephone
numbers were provided to Zant by McCleskey). If Zant truly had
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wanted to present Offie Evans's testimony in 1987, why didn't he
take a single step -- even a telephone call -- to attempt to
contact him?
The District Court granted Zant a month between the July and
August federal hearings precisely for such a purpose =-- to give
Zant time to locate all those witnesses whose testimony Zant
believed critical to his case. According to his own admission,
Zant did absolutely nothing in that month to determine whether
Evans might be available for the August hearing.
Zant now tries to deflect attention from his own failure by
pointing out the resources made available to Mr. McCleskey by
the District Court. Zant fails to clarify for this Court,
however, that those resources were made available for a single
day only, while counsel for Mr. McCleskey were on trial. (R1-13-
1). Zant, by contrast, had nearly a month not only to look
himself, but to mobilize the investigative and law enforcement
resources of Fulton County and the State of Georgia, including
Russell Parker and Detective Dorsey =-- both of whom had "special
relationships" with Offie Evans.
The chief reason Warden Zant didn't find Offie Evans, we
submit, is that he never looked. - His strategy in 1987 plainly
did not include the use of Offie Evans' testimony. Only after
his initial strategy failed did Zant seize upon Rule 60(b). That
rule however, does not exist merely to give unsuccessful
litigants a second try. It should be available only to those who
meet its stringent conditions. Zant has met none of them.
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Cs There Is No Likelihood That The Proffered
Evidence Would Produce A Different Result
The most fundamental flaw in Zant's Rule 60(b) motion, is
not his lack of diligence but the manifest untrustworthiness of
Offie Evans's testimony. Evans's lack of credibility is clearly
revealed in his deposition, proffered by Zant in support of his
Rule 60(b) motion. After reviewing that deposition, the
District Court correctly found that
[tlhe credibility or believability problems with his
testimony are evident. He has a strong motivation for
saying he was not an informant, not only because of
recriminations from his associates, but also in order
to stay in favor with the police and prosecutors who
have used him to testify in the past. The numerous
contradictions within his deposition also lead the
court to the conclusion that his testimony would not be
believable. See Petitioner's Brief in Response to
Respondent's Supplement to Rule 60(b) Motion. 2
... Therefore, Evans' testimony is not likely to change
the credibility of Worthy's testimony or the fact that
petitioner showed by a preponderance of the evidence
that a Massiah violation had occurred.
(R1Supp.=-40-9). This Court should not disturb that finding.
The District Court likewise ruled that Warden Zant had shown
no exceptional circumstances outside those discussed in the Rule
29 Evans' 1988 deposition testimony showed at least 15
substantial inconsistencies between statements therein and either
other statements in the same deposition, earlier statements of
Evans, or statement of the qther witnesses at this habeas
proceeding. (Supp.R.1-38-8 through 14) That deposition
testimony also showed Evans in at least four other miscellaneous
lies (Supp.R.1-38-14 through 16), and a remarkable ability to
recall what it was convenient to recall, but not recall other
substantial details. (Supp.R.1-38-16 through 17) A review of
that testimony makes evident that Evans is unable to distinguish
truth from fiction.
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60(b) (2) motion that would justify relief under Rule 60(b) (6).
No other finding could have been justified on the factual record
presented by Zant. Had Offie Evans been a credible witness with
a convincing explanation of all the contrary evidence, perhaps
the District Court might have exercised its discretion to hear
him. As it was, he is a well-worn and all-too-predictable
quantity, eager to mitigate the new criminal charges he faced in
1988 by, once again, telling the police or prosecutors anything
they wanted to hear.
Evans had already told his story three different ways--
first to Russell Parker in August of 1978; then later, during Mr.
McCleskey's trial; still later, during state habeas corpus
proceedings. By the time he tried out a fourth version of the
facts during his 1988 deposition, Evans found himself caught in a
mesh of lies and contradictions.
The District Court's order denying Rule 60(b) relief is
fully warranted on this record.
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CONCLUSION
For all of the reasons set forth above, the judgment of the
District Court should be affirmed on both appeals.
Dated: June 26, 1989 Respectfully submitted,
ROBERT H. STROUP
141 Walton Street
Atlanta, Georgia 30303
(404) 522-8500
JULIUS L. CHAMBERS
JOHN CHARLES BOGER
99 Hudson Street
New York, New York 10013
(212) 219-1900
ATTORNEYS FOR PETITIONER-APPELLEE
WARREN McCLESKEY
BY:
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CERTIFICATE OF SERVICE
* I hereby certify that I am one of the attorneys for
petitioner-appellee Warren McCleskey on this appeal, and that I
am admitted to the bar of this Court. I served the annexed Brief
for Petitioner-Appellee on respondent-appellant Walter D. Zant by
placing copies in the United States mail, first class mail,
postage prepaid, addressed as follows:
Mary Beth Westmoreland, Esq.
Senior Assistant Attorney General
132 State Judicial Building
40 Capitol Square, S.W.
Atlanta, Georgia 30334
All parties required to be served have been served. Done
this __ day of June, 1989.
John Charles Boger
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