Defendants' Motion for Extension of Time in Which to File Objections

Public Court Documents
August 7, 1972

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- Education
Topic
- School Desegregation
LDF Attorney
- Norman J. Chachkin
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Case Files, McCleskey Background Materials. Clemency Request - Attorneys Working Files Vol. 4 of 5, 1991. 656a7684-63a7-ef11-8a69-6045bdd6d628. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/4a7ecd07-ed5d-4b0a-be73-0feb7969ac96/clemency-request-attorneys-working-files-vol-4-of-5. Accessed August 19, 2025.

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9-85-1991 17:85 FROM GEORGIA RESOURCE CENTER TO BOGER

FILED IN CLERK'S OFFICE
USDC - Atlanta

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIAGEP 31891

ATLANTA DIVISION
LUTHER D, THOMAS, Cif

WARREN MC CLESKEY, : gh #0 Deputy Cicrs

Petitioner, t

VE. : CIVIL ACTION NO.
- 1:87=CV=1517«J0OF

WALTER ZANT, Superintendent, :
Georgia Diagnostic and 3
Classification Cantar, :

Respondent. :

ORDER

On July 9, 1987 the court granted petitionar’'s motion for

an indefinite stay of execution =0 that the merits of the petition

for writ Of habeas corpus could be satisfactorily considered. On

ember 23, 1987 the court granted in part and denied in par?

petition. On March 9, 1988 the court ordered a stay of execution

pending an appeal to the Eleventh Circuit. On November 22, 1989

the Eleventh Circuit reversed that portion of thig court's order

granting relief to petitioner. Pry July 12, 1991, following =

decigion by the United States Supreme Court affirming the court of

appeals, thes mandate of the Eleventh Circuit was issued. Accord-

ngly, that mandate is made the judgment of this court and the

petition for writ of habeas corpus is DENIED. The stay of

axecution ie LIFTED,
Ph

SO ORDERED this = day of A , 1981.
Ld

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9). (Manor — py

+ OWEN FORRESTER
TED STATES DISTRICT JUDGE

TOTAL P.81

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|
| BLACK MEMBERS: GEORGIA STATE SENATE

Mr. Roy L. Allen
Attorney at Law
1406 Law Drive
Savannah, Georgia 31401

Mr. Sanford D. Bishop, Jr.
Attorney at Law
Post Office Box 709
Columbus, Georgia 31902

Mr. Charles W. Walker
1402 12th Street

Augusta, Georgia 30901

Rev. Arthur Langford, Jr.
1544 Niskey Lake Trail, SW
Atlanta, Georgia 30331

Mr. David Scott
190 Wendell Drive, SE
Atlanta, Georgia 30315

Mr. Horace E. Tate
621 Lilla Drive, SW
Atlanta, Georgia 30310

Mr. Hildred W. Shumake
1103 Fair Street
Atlanta, Georgia 30314

Dr. Eugene P. Walker
2231 Chevy Chase Lane
Decatur, Georgia 30032

BLACK MEMBERS: GEORGIA HOUSE OF REPRESENTATIVES

Professor Bob Holmes

Post Office Box 110009
Atlanta, Georgia 30311-0009

Ms. Grace W. Davis
670 Fair Street, SW
Atlanta, Georgia 30314

Ms. Mable Able Thomas

Post Office Box 573
Atlanta, Georgia 30301

Ms. Lanett Stanley
712 Gary Road, NW
Atlanta, Georgia 30318

Mr. Tyrone Brooks
Station A, Post Office Box 11185
Atlanta, Georgia 30310-0185

Mr. J. E. (Billy) McKinney
765 Shorter Terrace, NW
Atlanta, Georgia 30318

Mr. Anthony Hightower
Attorney at Law
Post Office Box 87290
College Park, Georgia 30337

Ms. Georganna T. Sinkfield
179 Tonawanda Drive, SE
Atlanta, Georgia 30315

Mrs. Henrietta M. Canty
487 Lynn Valley Road, SW
Atlanta, Georgia 30311

Mr. Ralph David Abernathy, III
Legislative Office Building
18 Capitol Square, Suite 511
Atlanta, Georgia 30334

Ms. Cynthia Ann McKinney
765 Shorter Terrace, NW
Atlanta, Georgia 30318

Mr. Frank L. Redding, Jr.
Post Office Box 117
Decatur, Georgia 30030

Mr. Thurbert E. Baker
Attorney at Law
4048 Rainbow Drive
Decatur, Georgia 30034

Ms. Juanita Terry Williams
8 East Lake Drive, NE
Atlanta, Georgia 30317

Ms. Nadine Thomas
1375 Town Country Drive
Atlanta, Georgia 30316

Ms. Henrietta E. Turnquest
Attorney at Law
3471 Cherry Ridge Place
Decatur, Georgia 30034

Mr. Michael L. Thurmond
Attorney at Law
1127 W. Hancock Avenue

Athens, Georgia 30606

Mr. Henry Howard
2047 M.L.K. Blvd.

Augusta, Georgia 30901

Mr. George M. Brown
Post Office Box 1114
Augusta, Georgia 30903

Mr. Calvin Smyre
Post Office Box 181
Columbus, Georgia 31902

Ms. Maretta Mitchell Taylor
1203 Bunker Hill Road
Columbus, Georgia 31907

Mr. William C. Randall
Attorney at Law
Post Office Box 121
Macon, Georgia 31202

Mr. David E. Lucas
448 Woolfolk Street

Macon, Georgia 31201

Mr. John W. Merritt
3206 College Street
Thunderbolt, Georgia 31404

Ms. Dorothy B. Pelote
Post Office Box 1802
Savannah, Georgia 31402

Mr. John White
Post Office Box 3506
Albany, Georgia 31706

Ms. Mary Young-Cummings
Attorney at Law
423 Holloway Avenue
Albany, Georgia 31701

THE FIRST FAMILY

Mrs. Coretta Scott King, President
M.L.K., Jr. Center for Nonviolent

Social Change
449 Auburn Avenue, N.E.
Atlanta, Georgia 30303
Telephone: (404) 524 - 1956

Dr. Billy C. Black, President
Albany State College
504 College Drive
Albany, Georgia 31705

Dr. Oscar L. Prater, President
Ft. Valley State College
1005 State College Drive
Ft. Valley, Georgia 31030

Dr. Annette Brock, Acting President
Savannah State College
Post Office Box 20449
Savannah, Georgia 31404

Dr. Julius Scott, President
Paine College
1235 15th Street
Augusta, Georgia 30910

Dr. Johnnetta Cole, President
Spelman College
350 Spelman Lane, SW
Atlanta, Georgia 30314

Dr. Thomas Cole, President
Clark Atlanta University
James P. Brawley Dr. & Fair Street
Atlanta, Georgia 30314

Dr. James H. Costen, President
Interdenominational Theological Center
671 Beckwith Street, SW
Atlanta, Georgia 30314

Dr. Calvert H. Smith, President
Morris Brown College
643 MLK, Jr. Drive, SW
Atlanta, Georgia 30314

Dr. Leroy Keith, President
Morehouse College
830 Westview Drive, SW
Atlanta, Georgia 30314

Dr. James Goodman, President
Morehouse School of Medicine
720 Westview Drive, SW
Atlanta, Georgia 30314

Dr. E. A. Thompson, President
Atlanta Metropolitan College
1630 Stewart Avenue, SW
Atlanta, Georgia 30310

“ CATHOLIC INFORMATION

Bishop James Lyke
Atlanta Archdiocese
680 West Peachtree Street
Atlanta, Georgia 30308
Phone: (404) 888-7801

Bishop Raymond Lessard
Savannah Diocese
601 E. Liberty Street
Savannah, Georgia 31401-5196
Phone: (912) 238-2320

Sacred Heart Catholic Church
Father Marvin LeFois
Father Christian LeFois
251 South David Drive
Mail to: Post Office Box 5052
Warner Robins, Georgia 31099
Phone: (912) 923-0124

Holy Spirit Catholic Church
Father Bob Cushing
4937 Bloomfield Road
Macon, Georgia 31206
Phone: (912) 788-2837 (Directory)

"788-6386 (0ffice)

St. Patrick Catholic Church
Father Michael O'Keefe
Post Office Box 612
Perry, Georgia 31069
Phone: (912) 987-4213

Rev. Dr. Cameron Alexander, President
Georgia Baptist Convention
Antioch Baptist Church
540 Kennedy Street, N.W.
Atlanta, Georgia 30318
Phone: (404) 688 - 5679

Rev. Dr. Benjamin Hooks, Executive Director
National Association for the Advancement

of Colored People
4805 Mt. Hope Drive
Baltimore, MD 21215
Phone: (301) 358-8900

Rev. Dr. T. J. Jemison, President
National Baptist Convention U.S.A., Inc.

356 East Boulevard
Baton Rouge, LA 70802
Phone: (504) 383-5401

Rev. Dr. Alfred Norris, Dean
Gammon Theological Seminary
United Methodist
653 Beckwith Street, S.W.
Atlanta, Georgia 30314
Phone: (404) 527-7770

Rev. Dr. John Hurst Adams, Bishop
6th Episcopal District
African Methodist Episcopal Church
208 Auburn Avenue, N.E.
Atlanta, Georgia 30303
Phone: (404) 524-8279

Rev. Dr. Joseph C. Coles, Bishop
6th Episcopal District
Christian Methodist Episcopal Church

2001 Martin Luther King, Jr. Drive, S.W.

Suite 423

Atlanta, Georgia 30310
Phone: (404) 752-7800 -- Office

(404) 794-0096 -- Home

Rev. Dr. Andrew "Andy" Young

Law Engineering
1000 Abernathy Road
Suite 1800
Atlanta, Georgia 30328
Phone: (404) 396-8000

Mr. Ronald Logan, President
Georgia's Black Funeral

Home Association
c/o Tyler Funeral Home
511 West Trinity Place
Decatur, Georgia 30030
Phone: (404) 378-1207

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Warren McCleskey Case -- May, 1991

A. General Background

Warren McCleskey is a 44-year-old black man who was sentenced to death
for his part in a May 13, 1978, armed robbery of the Dixie Furniture Store in
Atlanta, Georgia. During the robbery, a white Atlanta officer, Frank Schlatt,
entered the furniture store and was killed by a pistol shot fired by one of
the four robbers.

From the moment of his arrest, McCleskey admitted taking part in the
robbery, but he has consistently denied that he was the triggerman who shot
Officer Schlatt. There were no eyewitnesses to the shooting, and the murder
veapon itself was never found. The State's case against McCleskey turned
largely on the testimony of two persons: (i) Ben Wright, a co-defendant and
the leader of the four robbers, who gratuitously told the jury that McCleskey
(and not himself) had done the shooting; and (ii) Qffie Evans, a jailhouse
informant, who said McCleskey admitted the shooting while in the Fulton County
Jail awaiting trial. Co-defendant Wright was the other most likely shooting
suspect, but he quickly agreed to testify against McCleskey in exchange for a
life sentence. McCleskey alone received a sentence of death.

In 1984, the United States District Court overturned McCleskey's

conviction and death sentence. The District Court found that informant Offie

Evans had been secretly promised favorable judicial treatment by the State in
exchange for his adverse testimony against Warren McCleskey. This secret
State conduct violated constitutional rights that have long been protected by
the Fourteenth Amendment. Giglio v. United States, 405 U.S. 150 (1972). On
appeal, hovever, the federal court of appeals overturned McCleskey's grant of
relief, finding that the State's promise to Evans had been negligible.

Two of McCleskey's trial jurors have given sworn affidavits stating that

if they had known about the evidence of misconduct later uncovered in 1984,
they would never have voted to impose a death sentence on McCleskey in 1978.

The State's case against McCleskey as the triggerman, they explained, was very
weak, and it was only their misplaced confidence in informant Offie Evans that

allowed them to vote for death.

In 1986-1987, the Court of Appeals and the Supreme Court of the United
States also rejected massive evidence that Warren McCleskey's death sentence,
like many in the State of Georgia, had been imposed in a racially
discriminatory pattern: black defendants like McCleskey who killed whites
were receiving death sentences over four times as often as those who killed

black victims, even when the circumstances of the crime were nearly identical.
Indeed, in Fulton County where McCleskey was tried, between 1973 and 1980 at
least 17 persons had been arrested for murder against police officials -- yet
Warren McCleskey was the only one of these seventeen who received a death
sentence. See McCleskey v. Kemp, 481 U.S. 279 (1987).

After the Supreme Court denied relief to McCleskey in 1987, and shortly
before his execution, McCleskey's lawyers stumbled across new evidence of
another flagrant constitutional violation: that Atlanta police had secretly

planted informant Evans near McCleskey's cell, had instructed Evans to obtain

a confession from McCleskey, and had covered up their misconduct when later
asked. (Conservative Justices Warren Burger and William Rehnquist have both
written opinions in the past clearly condemning such secret misconduct as a
violation of the Sixth Amendment. See United States v. Henry, 447 U.S. 264
(1980)). For a second time, the United States District Court overturned
McCleskey's conviction and death sentence. Yet for a second time, the court
of appeals and the Supreme Court reversed. These appellate courts did not
overturn the finding that Atlanta officers had engaged in unconstitutional
behavior; instead, they held that McCleskey's lawyers should have uncovered
evidence of the police misconduct sooner. See McCleskey v. Zant, U.S.__, 59
u.s,L.%. 4288 (U.8., 3pril 16, 1991).

What the Supreme Court did in McCleskey's second appeal is a travesty.
They have held that no matter how terrible the constitutional violation, no
matter how calculated and ruthless the police misconduct, that misconduct will
be overlooked, and a defendant put to death, absent proof of exceptional
circumstances almost impossible to meet. It is not enough to prove that the

police and other members of the prosecution team committed perjury, lied, and
otherwise acted to cover up evidence of their own actions.

B. The Current Situation

The Supreme Court is presently considering McCleskey's final petition
for rehearing, which argues that it was impossible to uncover evidence which
the police themselves had carefully hidden. That petition will likely be
decided by June 10th.

If the Supreme Court decides against Warren McCleskey, he has one legal
avenue open: he can go back to the State courts, specifically, to the
Superior Court of Butts County, Georgia, and urge that the Superior Court
entertain to hear his evidence of police misconduct. There are two reasons to
think that the Superior Court might do so:

(i) the evidence of police misconduct had not surfaced
when McCleskey came to that court in 1987;

(ii) McCleskey didn't know about the misconduct in 1987
because State officials had hidden it.

An important Georgia Supreme Court case, decided in 1983, Smith v. Zant,
250 Ga. 645, ___, 301 S.E.2d 32, 37 (1983), provides that if a defendant can
present new evidence previously hidden by the State, the Superior Court should
consider his claim on its merits. The Georgia case, in other words, appears
to reject the Supreme Court's new standard and say that, in Georgia at least,
proof of prosecution misconduct is enough. That's just what McCleskey can
show here.

AT A MINIMUM, NO DEATH SENTENCE SHOULD BE SET IN THIS CASE UNTIL AFTER
THE SUPERIOR COURT, AND THE SUPREME COURT OF GEORGIA, HAVE FULLY HEARD AND
DECIDED HIS CLAIM.

c, McCleskey's Case for Clemency

There are at least three strong grounds for clemency in this case. The
first is the serious, persistent doubt about whether McCleskey is actually the
triggerman in this case. If he is not, it would be morally wrong for him to
be executed while each of his three co-defendants receive lesser sentences.

The grave questions about Offie Evans's behavior that have been raised in this
case -- behavior that violated at least two separate violations of the federal
constitution -- are alone enough establish a reasonable doubt about
McCleskey's quilt.

The second is the Supreme Court's dismissal of a host of constitutional
objections -- to Offie Evans's secret offer of leniency, to the massive
evidence of racial discrimination, to the proof of police misconduct -- all on
what amount to legal technicalities. No one whose trial was so gravely flawed
should be put to death.

Finally, Warren McCleskey has done much to rehabilitate himself while in
prison. He has complied with prison rules, made a useful contribution to
prison life, started and led Bible study and religious class among Death Row
inmates, and proven a reliable guide and counsellor to younger, more unstable
inmates who have come to Death Row. Warren McCleskey is well-respected by
prison guards, and he has a host of outside visitors who will praise his
maturity, his insight, and his acts of consideration and kindness.

a Gi -

HLlA HESOURCE CENTER TF]

PLEASE HELP
GEORGIA’S DEATH ROW

INMATE
WARREN McCLESKEY

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The story you are about to read is and the names are those of
real people. The facts are based on court testimony, statements of
witnesses' interviews taken by Atlanta Police investigators and by
independent investigators.

This manuscript was not prepared by an intellectual genius;
therefore, the language used is that of every day people.
Furthermore, it was not proofread or edited; therefore, "let not
your heart be troubled should you come across a flaw in the Queen's
English.

The purpose of this manuscript is to advise you of the facts
surrounding the conviction and death sentence inflicted upon WARREN
McCLESKEY for the May 13, 1978 murder of Atlanta Police Officer
FRANK SCHLATT; whereas, McCLESKEY's three co-defendants were given
lesser sentences for their direct involvements. It is hoped that
this document will give you enough information to assist you when
you write a letter to the Georgia Board of Pardons and Paroles on
behalf of WARREN McCLESKEY.

After you have completed your reading, please act accordingly
to ensure that WARREN McCLESKEY is not electrocuted in Georgia's
Electric Chair!

SUMMARY OF FACTS:

On the morning of May 13, 1978, WARREN McCLESKEY, BEN WRIGHT,
JR., Bernard DUPREE and DAVID BURNEY robbed Dixie Furniture Store
on Marietta Street in Atlanta, Georgia. They committed the robbery
in order to get money for BEN WRIGHT, JR. who wanted leave the
State of Georgia to avoid being arrested on a previous armed
robbery charge which occurred in Buckhead a few weeks before.

WRIGHT, BURNEY and MARY JENKINS (WRIGHT's girlfriend) pulled
a robbery in Buckhead around the end of April, 1978, according to
BURNEY. BEN WRIGHT'S car was recognized in the Buckhead robbery as
the get-away-car and MARY JENKINS was seen driving it. MS. JENKINS

was apprehended days later while taking a leisure drive in the same
vehicle. While being questioned by police, MS. JENKINS fingered
WRIGHT in an intentional attempt to protect herself from being
prosecuted; therefore, the Atlanta Police Department issued an
arrest warrant for BEN WRIGHT, JR.

On the 13th of May, WRIGHT, McCLESKEY, BURNEY and DUPREE drove

to a jewelry store in Marietta. BEN WRIGHT, JR. went inside the
store to check it out. WRIGHT decided not to rob it because it
was unsuitable. The four then rode around Marietta looking for
another place to rob but couldn't find anything fitting. WRIGHT
decided that Atlanta would be suitable for an armed robbery:
therefore, they drove to Atlanta. WRIGHT, in his leadership role;
decided to rob Dixie Furniture Store. Each of the four men was
armed.

After casing Dixie Furniture, WRIGHT concluded that it was
suitable to rob. WRIGHT informed each man on what to do.
McCLESKEY was advised to guard the front half of the store, while
the other two men who were accompanied by WRIGHT guarded the rear.
WRIGHT pressured everyone into pledging not to tell on each other
if either was ever captured.

Atlanta Police Officer FRANK SCHLATT, responding to a silent
alarm call, entered the front of the store with his revolver
detached from the holster. OFFICER SCHLATT observed a suspect who
turned out to be WARREN McCLESKEY holding store employee at gun
point. OFFICER SCHLATT commanded McCLESKEY to drop the gun and
turn around. BEN WRIGHT, JR. entered the front section of the
store and fired two shot in the direction of OFFICER SCHLATT.
Court testimony revealed that one bullet hit OFFICER SCHLATT in the
chest and deflected off a cigarette lighter in OFFICER SCHLATT'S
shirt pocket. The other bullet, which was fatal, penetrated the
OFFICER SCHLATT'S head through his right eye. WRIGHT directed
everyone to split.

WRIGHT, after having killed Atlanta Police Officer FRANK
SCHLATT, left Georgia and went to Pine Bluff, Arkansas. The other
three men, who had no reason to run, continued living in Metro
Atlanta.

Ballistics revealed that OFFICER SCHLATT had been shot by a
.38 caliber Rossi revolver. The murder weapon was never retrieved.
Nonetheless, trial testimony from expert witnesses profess that
such a revolver had been stolen in the robbery of a Red Dot grocery
store in Southeast Atlanta two months earlier.

During the robbery, WRIGHT somehow left behind a leather
jacket he was wearing that had a laundry ticket stapled in one
sleeve. The jacket was traced by Atlanta police to a former owner
who related he had given the jacket to BEN WRIGHT, JR. several
months before. Atlanta Police launched a massive man hunt for

WRIGHT. In the meantime, police learned the names of WARREN
McCLESKEY, BERNARD DUPREE and DAVID BURNEY through MARY JENKINS.
Furthermore, police discovered that WRIGHT had left Georgia.

Evidence suggest MARY JENKINS was an accomplice to the robbery
and murder of OFFICER SCHLATT. JENKINS possibly drove the get-
away-car during the Dixie Furniture Store robbery. WRIGHT, BURNEY
and witnesses did identify MS. JENKINS as being the driver in the
Buckhead robbery. Furthermore, witnesses vaguely remember seeing
a lady fitting MS. JENKINS description in the car with the four men
when Dixie Furniture was robbed. MS. JENKINS was never prosecuted
for the robbery and murder. MS. JENKINS testified against
McCLESKEY, BURNEY and DUPREE.

McCLESKEY was arrested in Cobb County in the early morning
hours while asleep at his sister's home on May 31, 1978. DAVID
BURNEY was arrested on the same day in Techwood Homes while at his
girl friend's apartment. BERNARD DUPREE gave up to police at his
lawyer's office after learning he was being sought in connection
with the robbery and murder. BEN WRIGHT, JR. was arrested months
later in Pine Bluff, Arkansas for a string of robberies and
assaults there. When arrested in Arkansas, he learned that he was
wanted for the murder of a police officer back in Atlanta.

WRIGHT, after being arrested in Pine Bluff, Arkansas was
surprised and angered by the fact that Arkansas authorities knew he
had been involved in a "cop-killing". WRIGHT assumed that the
three co-defendants had "snitched on him".

McCLESKEY and BURNEY both confessed to robbing Dixie
Furniture, but denied killing OFFICER SCHLATT. BERNARD DUPREE

denied any involvement in the robbery and killing even to the
extent of claiming he was not with BURNEY, McCLESKEY and WRIGHT at
all when the robbery and murder transpired. McCLESKEY and BURNEY
identified DUPREE and WRIGHT as being involved after each had
pledged not to tell on their partners if arrested. However,
neither man fingered WRIGHT as the "triggerman".

The Atlanta Police officials did not advised Arkansas that
WRIGHT was not fingered by his co-defendants as the murderer.
Misleading information and vengeance provoked WRIGHT to turn
against his three partners. WRIGHT was so moved by the fact that
he had been "told on" he devised perfect statements against the
three men for the Assistant District Attorney, RUSSELL PARKER, and
Atlanta Police Investigators, Welcome Harris, W. K. Jowers and
Sidney Dorsey. WRIGHT was the one who first said McCLESKEY was the
trigger man. However, witnesses present at Dixie Furniture the day
of the robbery, clearly stated that the shooting did not occur
until after BEN WRIGHT, JR. went to the front of the store.

Ben WRIGHT testified in open court that McCLESKEY had a .38
caliber Rossi nickel=-plated revolver---again, the pistol and murder

weapon was never found. MARY JENKINS told police and testified
that WRIGHT was seen with the .38 Rossi weeks prior to the police's
killing. However, WRIGHT testified that he himself was armed with
a sawed-off shotgun, and that BURNEY and DUPREE had blue steel
pistols. An article in the Atlanta Constitution quoted police
investigators saying "OFFICER SCHIATT was killed by a sawed off
shotgun that was fired at close range".

WRIGHT claimed McCLESKEY was driving his personal vehicle,
which was used as the get-away-car. WRIGHT, further testified that
McCLESKEY parked his car up the street from the furniture store and
that McCLESKEY entered the store and "cased" it. "After McCLESKEY
returned to the car, the robbery was planned" WRIGHT testified. It
is a known fact that WRIGHT was the ring leader and brain of the
pack; therefore, each of the men complied with WRIGHT'S orders
religiously.

According to WRIGHT, in executing the robbery plan, McCLESKEY
entered the front of the store and the other three entered through
the rear by way of the loading dock. McCleskeky secured the front
while he (WRIGHT) and the others rounded up the employees and
customers in the rear and began to tie them up with tape and forced
to lie on the floor. The manager was forced, by WRIGHT at
gunpoint, to turn over the store's receipts, which included a watch
and six dollars in cash. GEORGE MALCOM, an employee, testified
that he had a pistol taken from him at gunpoint by WRIGHT.

After WRIGHT had given his phony account of what happen,
Atlanta Police Investigators and Assistant District Attorney
RUSSELL PARKER were convinced that a jury would not return a guilty
verdict against McCLESKEY based on WRIGHT's testimony; therefore,
police investigators with the approval of ADA PARKER placed a
professional informant named OFFIE EVANS, who used a false name, in
the cellblock next to McCLESKEY, BURNEY and DUPREE. EVANS was in
the Fulton County Jail on a federal warrant awaiting a probation
revocation hearing on charges related to escaping from a federal
halfway house. EVANS testified at trial that McCLESKEY admitted
shooting OFFICER SCHLATT. McCLESKEY maintains he never had a
discussion about the crime with OFFIE EVANS.

It is believed that EVANS was prepared to testified by Atlanta
Police Investigators and ADA Russell Parker. EVANS' testimony was
too tight and authentic, which indicates EVANS had help.
Furthermore, it was verified in later court challenges on behalf of
McCLESKEY that EVANS was a professional snitch who would testify on
behalf of the prosecution in cases tagged "difficult to get a
conviction".

WHAT EVER HAPPENED TO:

In exchange for his counterfeit statement and testimony,
Assistant District Attorney PARKER spoke with federal officials on
behalf of EVANS and EVANS was given favorable treatment and set
free on the escape charges. OFFIE EVANS was released from the
Georgia Penal System in 1988 after serving time for a variety of
charges after many episodes of jail house snitching on behalf of
the Fulton County District Attorney's Office.

BEN WRIGHT, JR. was sentenced to 20 years each for
Manslaughter and Armed Robbery. WRIGHT was released from prison in
1987, committed a few armed robberies, kidnapping, aggravated
assault and a drug charge. He was sentence to life plus 20 years.
Presently, He is serving his sentences at Dodge Correctional
Institution.

DAVID BURNEY is serving a life sentence at Phillips
Correctional Institution in Buford, Georgia for the murder of
OFFICER SCHLATT and Armed Robbery.

BERNARD DUPREE is serving a life sentence at Georgia State
Prison in Reidsville, Georgia for the offenses committed May 13,
1978. DUPREE'S sentence is on appeal and he is yet claiming he was
not present during the armed robbery and murder on May 13, 1978.

MARY JENKINS was never tried on any charges and she is
presumably somewhere in the Metro Atlanta area. It was her
assistance and information that helped Atlanta Police crack the May
13, 1978 case.

Assistant District Attorney RUSSELL PARKER now works as an
assistant district attorney in the Cobb County District Attorney's
Office.

Detectives DORSEY, HARRIS and JOWERS are still working with
the Homicide Division of the Atlanta Police Department.

CONCLUSION
No one is asking you to approve of the murdering of a human

being. Law-abiding citizens should encourage our judicial system
to reasonably punish persons who are fairly tried and convicted by
an efficient jury. Moreover, the authentic evidence and testimony
of credible witnesses should be a underlying element in convicting
individuals charged with criminal infractions, particularly when a
sentence of death is sought. In the case of WARREN McCLESKEY, the
prosecution and police did everything that was not right to secure
a conviction and death sentence. Concealing statements from
witnesses that could have proved McCLESKEY was not the triggerman;
placing a police informant (OFFIE EVANS) in the cellblock next to
McCLESKEY for the purpose of questioning him regarding the crime;

giving out a lesser sentences to BEN WRIGHT, JR. (the likely
triggerman) for testifying for the prosecution; not prosecuting
MARY JENKINS for the Buckhead robbery; and not telling the jury
that OFFIE EVANS was a professional snitch---just to state a few of
the ruthless and unconstitutional acts of the ADA RUSSELL PARKER
and the Atlanta Police Department.

If WARREN McCLESKEY'S execution is carried out, the City of
Atlanta Police Department will have won a major victory in denying
criminal suspects their constitutional rights as afforded in the
United States of America Constitution. The 6th Amendment of the
Constitution states, "In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall have been
committed, ..sse....., and to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in
his favor, and to have the assistance of counsel for his defense."

WARREN McCLESKEY has been snatched from the jaws of death on
two separate occasions by the federal courts because constitutional
violations were found in his conviction. However, on Tuesday,
April 16, 1991, the U.S. Supreme Court unbelievably affirmed
McCLESKEY'S conviction and death sentence, which authorizes the
State of Georgia to set an execution date. The date has not been
set, but is anticipated any day.

WARREN McCLESKEY'S fate lies in the hands of members of the
Georgia Board of Pardons and Paroles. If his life is to be spared,
it is up to a majority of the five members. You are asked to write
Pardons and Paroles today on behalf of WARREN McCLESKEY.

ON BEHALF OF WARREN
McCLESKEY, THANK YOU IN ADVANCE
FOR YOU TIME AND ASSISTANCE.

State Board of Pardons and Paroles
Floyd Veterans Memorial Building

5th Floor East
2 Martin Luther King, Jr. Drive, S.E.

Atlanta, Georgia 30334
Telephone: (404) 656-5651

THE BOARD MEMBERS ARE:

1. WAYNE SNOW, JR., CHAIRMAN 2. JAMES T. MORRIS
3. BETTYE O. HUTCHINGS 4. DAVID EVANS
5. TIMOTHY JONES

WASHI

aw Worlsessey. April 17, 1991 ewes

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By Bob Dart and Rhonda Cook
aff writers

IS HH ad

. ~“WASHINGTON — Upholding a 1978 Georgia
inurder conviction, the Supreme Court on Tuesday
turtailed the right of death row inmates to appeal
their cases repeatedly.
'=+The 6-3 ruling is likely to shorten the time be-
tiveen murder trials and executions, which now av-
etages almost nine years. It imposes tough new
{limits on federal court access for any criminal de-
fendant to argue a violation of rights at the state
tourt level, a process known as habeas corpus.
*=-'The court ruled that if a state inmate can raise
aiissue at the first federal appeal but fails to do so,
ha issue generally may not be raised later.

“The only exception to the new restrictions, Jus-
: ice Anthony Kennedy said, are those rare in-
“tances in which a defendant can show that he

IGTON

High court ruling could spe¢

» Court approves sales taxon cable TV. B2
\ \

probably did not commit the crime.
“It’s another step in the slamming of the court-

house door to death row litigants,” said Alan Ellis,
president of the National Association of Criminal
Defense Lawyers. §

Prosecutors said the Retision wil help stem
abuse of the appeal system by convicted killers and
by opponents of capital punishment who seek to de-
lay executions indefinitely.

In the ruling, the conservative majority of the
justices rejected the claims of Georgia death row
inmate Warren McCleskey, convicted of killing an
Atlanta policeman in 1978, who already had had
another appeal quashed by the high court.

Justice Kennedy, writing the majority opinion,
set new judicial guidelines requiring a prisoner

The Atlanta Journal / The Atlanta Constitution’

d deaths of convicted killers
seeking a second round of appeals to justify why
the new claim was not made initially, and to prove
that it involved a miscarriage of justice.

An unlimited review system would “give liti-
gants incentives to withhold claims for manipula-
tive purposes and may establish disincentives to
present claims when evidence is fresh,” Justice
Kennedy wrote. |

Georgia Attorney General Michael J. Bowers
said the decision ‘goes a long way along the lines
President Bush has been talking about in terms of
reforming how the federal courts deal with state
death penalty cases.”

He said it would be about 30 days before he
asked a Fulton County Superior Court judge to set a
new execution date for McCleskey.

In a sharply worded minority dissent, Justice
Thurgood Marshall called the decision an “unjusti-
fiable assault” on defendant rights. The ruling

“tosses aside established precedents without ex;
planation, disregards the will of Congress, fashions
rules that defy the reasonable expectations of the
persons who must conform their conduct to the:
law’s dictates, and applies those rules in a way that.
rewards state misconduct ahd deceit,” Justice:
Marshall wrote. te

Justices Harry A. Blackmun and John Paul Ste<:
vens joined Justice Marshall in the. dissenting
‘opinion. — ne —

+ The court dismissed arguments that Georgia of:
ficials violated-McCleskey’s rights by using a fel: —
Jow inmate in the Fulton County Jail, Offie Evans,
to elicit a confession to the 1978 slaying of an Atlan-.
ta police officer. Justice Kennedy said McCleskey’s :
failure to raise the issue during an initial federal
court appeal in 1981 disqualified him from raising:
it in subsequent appeals. .

A112 Friday, April 19, 1991 sass.

THE ATLANTA CONSTITUTION
For 122 Years the South’s Standard Newspaper

Jay Smith "+ Ron Martin
Publisher a wn, Editor

Dennis Berry John W. Walter Jr. * Tom Teepen
President Managing Editor Editorial Page Editor
James M. Cox, Chairman 1950-57 --- James M. Cox Jr., Chairman 1957-74

Supreme Court v. the Girne Writ
One of the pillars of the American legal

system is the right to challenge a criminal
conviction in federal court. If you. believe
your constitutional rights were violated in the
judicial process, you can file a writ of habeas
corpus in federal court to get the conviction :
reversed.

There's a danger, of course, that petitions
ers might try to drag out their cases by filing
one habeas petition after another, each rais-
ing a separate constitutional claim. To pre-
vent this, the courts are empowered to reject
additional habeas petitions under the doc-
trine of “abuse of the writ.” All constitutional
claims must be raised at once, unless there
are excusable grounds for having Reglecied
to do so.

At least that was the case before this
week. In a radical departure from precedent,
the U.S. Supreme Court, in a 6-3 decision, has
now erected a doctrine that says: Unless law -
enforcement officials actively impeded or in-
terfered with the defense’s efforts to bring a
claim, and unless the alleged constitutional
violation actually affected the trial’s out-
come, then raising the claim is an “abuse of
the writ.” :

.* This ‘makes a mockery of the judicial
process by encouraging the prosecution to
play dirty, as the case in question shows.

It involved Warren McCleskey, a Georgia
man who was convicted of murder largely on
the strength of his confession to a fellow in-
mate. What the defense didn’t know at the

- time of his first federal habeas petition was
that the man who heard McCleskey confess
was a government plant who had been of-
fered a lesser sentence in return for getting

the confession. As the court has ta
recognized, such a confession may well ig

. constitutionally inadmissible.

' The defense didn’t know about the in-
former not for lack of a good-faith effort to

. find out, but because law enforcement: offi- °
-cials didn’t: come clean. Even under the
court’s new standard, McCleskey ought to
have had his case remanded. But the court.

obviously believes that government ‘“inter-
ference” must be at the level of, say, jury.
tampering.’

One of the most revealing — and disturb-.
ing — aspects of this decision is its radical
overturning of the clearly expressed intent of
Congress. The court’s earlier standard has’
been codified in federal statute; only last :
year, Congress rejected an effort to change
that standard. Yet the court blithely waved
all this away. : :

The hallmark of recent conservative for

gal theory is that the courts should not make
law but, to the maximum extent possible, fol-
low legislative intent. This.theory has been.
employed to avoid strengthening individual

rights against: majority decision-making."
What's clear from McCleskey, however, is
that it is simply a theory of convenience, to be

.* dispensed with whenever it suits the anti-lib- .
ertarian prejudices of its proponents.

In practice, second and third federal ha-
beas. petitions consume very little time and

: rarely result in the reversal of a conviction.
But the court, zealous to lighten its caseload
and eager to give the appearance of being
tough on crime, has chipped away a signifi-
cant piece of our edifice of justice.

~ .

K 3 tq “a

14 v THE NEw YORK TIMES EDITORIALS

Founded in 1851

ADOLPH 8. OCHS, Publisher 1896-1935
ARTHUR HAYS SULZBERGER, Publisher 1935-1961

ORVIL E. DRYFOOS, Publisher 1861-1863 .

ARTHUR OCHS SULZBERGER, Publisher
ARTHUR OCHS SULZBERGER JR., Deputy Publisher

* Max FRANKEL, Eisttive Editor
5 JOSEPH LELYVELD, Managing Editor

Ehe New York Times
WARREN HOGE, Assistant Managing Editor
DAVID R. JONES, Assistant Managing Editor
CAROLYN LEE, Assistant Managing Editor
JOHN M. LEE, Assistant Managing Editor

ALLAN M. SIEGAL, Assistant Managing Editor
LJ

JACK ROSENTHAL, Editorial Page Editor
PHILIP M. BOFFEY, Deputy Editorial Page Editor

: [J

LANCE R. PRIMIS, President

RUSSELL T. LEWIS, Sr.V.P, Production
ERICH G. LINKER JR, Sr.V.P, Advertising

JOHN M. O'BRIEN, Sr.V.P, Finance/Human Resources
WILLIAM L. POLLAK, Sr.V.P, Circulation

ELISE J. ROSS, Sr.V.P, Systems
JAMES A. CUTIE, V.P, Marketing

‘The Court Abuses the Great Writ |
For centuries, the writ of habeas corpus has

been a glorious exemplar of the rule of law, a
mighty piece of legal paper that calls kings and
jailers to produce their prisoners and demonstrate

_ the legality of their detention. The Great Writ is,
however, also subject to abuse, notably by prison
inmates who file blatantly frivolous claims for
release.

The Supreme Court, preoccupied of late with
perceived abuse of the writ, has piled up restrictive,
technical rules. The other day, in the name of
preserving the writ’s dignity, the Court counte-
nanced a grave injustice.

Lawyers for Warren McCleskey had proved,
about as persuasively as the law can require, that

his murder conviction and death sentence were
obtained with the aid of a jailhouse informant
planted by the Atlanta police in violation of his

. established constitutional rights. They also showed
that for nearly a decade, Georgia authorities had
concealed telling evidence that the informant was a
police agent.

Not good enough, said a 6-to-3 Court majority in
an opinion by Justice Anthony Kennedy. That evi-
dence came too late, in a second habeas corpus
petition filed in Federal court. Warren McCleskey

. should have pleaded this point in his first petition
years earlier. Never mind that Mr. McCleskey’s

counsel uncovered the telltale evidence only Bier
~ years of demands and denials.

According to Justice Kennedy, the abuse com-

mitted was not by the state but by the petitioner.
The Justice fastened on this thin legal point: No
lower court had specifically found conscious ob-
struction and falsehood by state officials. He set
stiff new rules to prevent prisoners from splitting
their claims to get additional hearings. Then he
applied those rules to the McCleskey case.

Four years ago, when the Court reviewed Mr.
McCleskey’s first habeas. corpus petition, his law-
yers made another impressive case. They showed
that he and other black men convicted of murder
were four times more likely to be executed if the
victim was white than if the victim was black. Not
good enough, said the Court, 5 to 4. He had to prove
that racial hatred had motivated his judge, jury or
prosecutor. That’s when Mr. McCleskey’s lawyers
went back and found the evidence of the planted
informant.

Warren McCleskey unquestionably participat-
ed in a robbery that resulted in the death of an off-
duty policeman in Atlanta. A jury decided that he
was the triggerman, and deserved his death sen-
tence, on the basis of surreptitiously obtained evi-
dence whose illegality was hidden despite legiti-
mate demands for documents.

As Justice Thurgood Marshall said in dissent,
the majority has rewarded ‘‘state misconduct and
deceit.” It has now made the Supreme Court the
principal abuser of the Great Writ.

Yar/sy
THE NEW YORK TIMES EDITORIALS 14 v Souda

Che New Pork Times
! Founded in 185!

ADOLPH 8, OCHS, Publisher 1806-1938
ARTHUR HAYS BULZBERGER, Publisher 1835-1961

ORVIL E. DRYPOOS, Publisher 1981-1963

ARTHUR QCHS SULZBERGER, Publisher
ARTHUR OCHS SULZBEROER JR., Deputy Publivher

MAX FRANKEL. Executive Editor
JOSEPH LEBLYVELD, Managing Editor

WARREN HOOR, Assistant Managing Editor
DAVID R. JONES, Assistant Managing Editor
CAROLYN LEE, Assistant Managing Editor
JOHN M. LEE, Assistont Managing Editor

ALLAN M. BIEGAL. Asslatont Managing Editor
[J]

JACK ROSENTHAL. Editorial Page Editor
PHILIP M. BOFFEY, Deputy Editoriol Page Bditor

LANCE R. PRIMIS, President

RUSSELL T. LEWIS, 8§2.V P, Production
ERICH G. LINKER JR. Sr.V.P, Advertising

JOHN M. O'BRIEN, 8r.V.P, Finance/Human Resources
WILLIAM L. POLLAK, Sr.VP, Circulation

ELISE J. ROSS. 8 V.P, Systems
JAMES A. CUTIE, V.P, Markeling

The Court Sets a Death Agenda
When new Supreme Court majorities hasten to

overrule the Court's own recent precedents, the
justices invite the public to believe, as Felix Frank-
furter once warned, “that law is an expression of
chance -- for instance, of unexpected changes in the
Court's composition and the contingencies in the
choice of successors.” Led by Chief Justice Rehn.-
quist, today's Court is running just such a risk to its
reputation and to justice on a death penalty issue
that doesn’t deserve such abuse.

Over the dissents of three members, the Court
staged oral arguments this week on whether to
overturn capital punishment decisions rendered by
retired Justices Lewis Powell in 1987 and William
Brennan only two years ago. Those rulings prevent
prosecutors who are seeking the death penalty from
making a special issue of the murder victim's high
community standing or the bercavement of the
victim's family.

On the merits, the Court was right in the first
place. Victims’ rights obviously need attention. But
when a jury is asked to choose between death or life
imprisonment for a convicted murderer, that deci-
sion must turn on the defendant’s character, not the
happenstance of whether the victim was a vagrant
or a piliar of the community.

Allowing the prosecution tv exalt the victim's
character would also mean that the defense could

he
FOR YOUR

disparage the victim. Attorney General Dick Thorn-
burgh, in a ceremonial appearance as “friend of the
Court,” offered a cure for that: the defense simply
“should not be allowed to denigrate the value of the
life'’ that was lost. But gagging the defense would be
an unconscionable slanting of justice.

The Court has gone to unseemly lengths to
raise the issue when neither states nor defense
attorneys raised it on their own. Finding that a case
from Ohio didn't depend on the issue it wanted to
hear, the Court called up a Tennessee murder case
and instructed lawyers for the state and the defend-
ant, Pervis Payne, a convicted murderer, to pre-

pare arguments on an expedited basis.
It's bad enough that the capital punishment

system already executes far more prisoners who
kill whites than those who kill blacks. Since 1876 the
system has executed 145 killers but not a single
white murdercr whose victim was black. By letting
prosecutors urge juries to let their verdict turn on
the worth of the victim, the Court would probably
reinforce the bias in the system.

Chief Justice Rehnquist noted approvingly at
this week's argument that prosecutors who seek
death verdicts are bound “to get into a few rhapso-
dies” about victim rights. But even those justices

. who favor the death penalty should worry about the
way the Court finds and declares the law.

PLEASE HELP
GEORGIA’S DEATH ROW

INMATE
WARREN McCLESKEY

kokkkkkkkkk kk kkk kkk

After you have completed your reading, please act accordingly
to ensure that WARREN McCLESKEY is not electrocuted in Georgia's
Electric Chair!

SUMMARY OF FACTS:

On the 13th of May, WRIGHT, McCLESKEY, BURNEY and DUPREE drove
to a jewelry store in Marietta. BEN WRIGHT, JR. went inside the
store to check it out. WRIGHT decided not to rob it because it
was unsuitable. The four then rode around Marietta looking for
another place to rob but couldn't find anything fitting. WRIGHT
decided that Atlanta would be suitable for an armed robbery:
therefore, they drove to Atlanta. WRIGHT, in his leadership role;
decided to rob Dixie Furniture Store. Each of the four men was
armed.

Atlanta Police Officer FRANK SCHLATT, responding to a silent
alarm call, entered the front of the store with his revolver
detached from the holster. OFFICER SCHLATT observed a suspect who
turned out to be WARREN McCLESKEY holding store employee at gun
point. OFFICER SCHLATT commanded McCLESKEY to drop the gun and
turn around. BEN WRIGHT, JR. entered the front section of the
store and fired two shot in the direction of OFFICER SCHLATT.
Court testimony revealed that one bullet hit OFFICER SCHLATT in the
chest and deflected off a cigarette lighter in OFFICER SCHLATT'S
shirt pocket. The other bullet, which was fatal, penetrated the
OFFICER SCHIATT'S head through his right eye. WRIGHT directed
everyone to split.

WRIGHT, after having killed Atlanta Police Officer FRANK
SCHLATT, left Georgia and went to Pine Bluff, Arkansas. The other
three men, who had no reason to run, continued living in Metro
Atlanta.

WRIGHT. In the meantime, police learned the names of WARREN
McCLESKEY, BERNARD DUPREE and DAVID BURNEY through MARY JENKINS.
Furthermore, police discovered that WRIGHT had left Georgia.

McCCLESKEY and BURNEY both confessed to robbing Dixie
Furniture, but denied killing OFFICER SCHLATT. BERNARD DUPREE
denied any involvement in the robbery and killing even to the
extent of claiming he was not with BURNEY, McCLESKEY and WRIGHT at
all when the robbery and murder transpired. McCLESKEY and BURNEY
identified DUPREE and WRIGHT as being involved after each had
pledged not to tell on their partners if arrested. However,
neither man fingered WRIGHT as the "triggerman".

Ben WRIGHT testified in open court that McCLESKEY had a .38
caliber Rossi nickel-plated revolver---again, the pistol and murder

weapon was never found. MARY JENKINS told police and testified
that WRIGHT was seen with the .38 Rossi weeks prior to the police's
killing. However, WRIGHT testified that he himself was armed with
a sawed-off shotgun, and that BURNEY and DUPREE had blue steel
pistols. An article in the Atlanta Constitution quoted police
investigators saying "OFFICER SCHLATT was killed by a sawed off
shotgun that was fired at close range".

WHAT EVER HAPPENED TO:

DAVID BURNEY is serving a life sentence at Phillips
Correctional Institution in Buford, Georgia for the murder of
OFFICER SCHLATT and Armed Robbery.

MARY JENKINS was never tried on any charges and she is
presumably somewhere in the Metro Atlanta area. It was her
assistance and information that helped Atlanta Police crack the May
13, 1978 case.

Assistant District Attorney RUSSELL PARKER now works as an
assistant district attorney in the Cobb County District Attorney's
Office.

Detectives DORSEY, HARRIS and JOWERS are still working with
the Homicide Division of the Atlanta Police Department.

CONCLUSION

No one is asking you to approve of the murdering of a human
being. Law-abiding citizens should encourage our judicial system
to reasonably punish persons who are fairly tried and convicted by
an efficient jury. Moreover, the authentic evidence and testimony
of credible witnesses should be a underlying element in convicting
individuals charged with criminal infractions, particularly when a
sentence of death is sought. In the case of WARREN McCLESKEY, the
prosecution and police did everything that was not right to secure
a conviction and death sentence. Concealing statements from
witnesses that could have proved McCLESKEY was not the triggerman;
placing a police informant (OFFIE EVANS) in the cellblock next to
McCLESKEY for the purpose of questioning him regarding the crime;

If WARREN McCLESKEY'S execution is carried out, the City of
Atlanta Police Department will have won a major victory in denying
criminal suspects their constitutional rights as afforded in the
United States of America Constitution. The 6th Amendment of the
Constitution states, "In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall have been
committed, ....... , and to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in
his favor, and to have the assistance of counsel for his defense."

WARREN MCcCLESKEY'S fate lies in the hands of members of the
Georgia Board of Pardons and Paroles. If his life is to be spared,
it is up to a majority of the five members. You are asked to write
Pardons and Paroles today on behalf of WARREN McCLESKEY.

ON BEHALF OF WARREN
McCLESKEY, THANK YOU IN ADVANCE
FOR YOU TIME AND ASSISTANCE.

State Board of Pardons and Paroles
Floyd Veterans Memorial Building

5th Floor East
2 Martin Luther King, Jr. Drive, S.E.

Atlanta, Georgia 30334
Telephone: (404) 656-5651

THE BOARD MEMBERS ARE:

l. WAYNE SNOW, JR., CHAIRMAN 2. JAMES T. MORRIS
3. BETTYE O. HUTCHINGS 4. DAVID EVANS
5. TIMOTHY JONES

1
,

Wednesday April 17, 1991 sees

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fy, "Bob Dart and Rhonda Cook
: aff writers

. =ZWASHINGTON — Upholding a 1978 Georgia
indrder conviction, the Supreme Court on Tuesday
turtailed the right of death row inmates to appeal
their cases repeatedly.
; :-2The 6-3 ruling is likely to shorten the time be-
ween murder trials and executions, which now av-

etages almost nine years. It imposes tough new
limits on federal court access for any criminal de-
fendant to argue a violation of rights at the state
tourt level, a process known as habeas corpus.
*=-'The court ruled that if a state inmate can raise
airissue at the first federal appeal but fails to do so,
tha} issue generally may not be raised later.

“The only exception to the new restrictions, Jus-
: i Anthony Kennedy said, are those rare in-
‘ stances in which a defendant can show that he

IGTON

» Court approves sales taxon cable TV. B2
a,

probably did not commit the crime.
“It’s another step in the slamming of the court-

house door to death row litigants,” said Alan Ellis,
president of the National Association of Criminal
Defense Lawyers. .

Prosecutors said the decision will help stem
abuse of the appeal system by convicted killers and
by opponents of capital punishment who seek to de-
lay executions indefinitely.

Justice Kennedy, writing the majority opinion,
set new judicial guidelines requiring a prisoner

The Atlanta Journal / The Atlanta Consitien:

d deaths of convicted killers
seeking a second round of appeals to justify hy
the new claim was not made initially, and to prove
that it involved a miscarriage of justice.

He said it would be about 30 days before he
asked a Fulton County Superior Court judge to set a
new execution date for McCleskey.

In a sharply worded minority dissent, Justice
Thurgood Marshall called the decision an “unjusti-
fiable assault” on defendant rights. The ruling

“tosses aside established precedents without ex:
planation, disregards the will of Congress, fashions
rules that defy the reasonable expectations of the
persons who must conform their conduct to the.
law’s dictates, and applies those rules in a way that.
rewards state misconduct ahd’ deceit,” Justice:
Marshall wrote. =

Justices Harry A. Blackmun and John Paul Ste:

High court ruling could spee

vens joined Justice Marshall in the. dissenting: _

. The court dismissed arguments that Georgia of:
ficials violated -McCleskey’s rights by using a fel:
Jow inmate in the Fulton County Jail, Offie Evans;
to elicit a confession to the 1978 slaying of an Atlan-.
ta police officer. Justice Kennedy said McCleskey’ 8:
failure to raise the issue during an initial federal:
court appeal in 1981 disqualified him from raising;
it in subsequent appeals. .

‘opinion. a “3

T —

birid Kin nM A ND at oh hor a 20a Tk ee Wah ke Neneh iad

A12 Friday, April 19, 1991 sass. ~

THE ATLANTA CONSTITUTION
For 122 Years the South’s Standard Newspaper

President Managing Editor ‘Editorial Page Editor

James M. Cox, Chairman 1950-57 --- James M. Cox Jr., Chairman 1957-74

Supreme Court v. . the Gro Writ
One of the pillars of the American legal

There's a danger, of course, that petition-
ers might try to drag out their cases by filing
one habeas petition after another, each rais-
ing a separate constitutional claim. To pre-
vent this, the courts are empowered to reject
additional habeas petitions under the doc-
trine of “abuse of the writ.” All constitutional
claims must be raised at once, unless there
are excusable grounds for having neglecied
to do so.

At least that was the case before this

week. In a radical departure from precedent,
the U.S. Supreme Court, in a 6-3 decision, has
now erected a doctrine that says: Unless law -
enforcement officials actively impeded or in-
terfered with the defense’s efforts to bring a
claim, and unless the alleged constitutional
violation actually affected the trial’s out- °
come, then raising the claim is an “abuse of
the writ.” :

This ‘makes a mockery of the adele
process by encouraging the prosecution to
play dirty, as the case in question shows.

It involved Warren McCleskey, a Georgia
man who was convicted of murder largely on

the strength of his confession to a fellow in-

mate. What the defense didn’t know at the

~ time of his first federal habeas petition was

that the man who heard McCleskey confess

was a government plant who had been of-

fered a lesser sentence in return for getting :

the confession. As the court has i
recognized, such a confession may well pe

. constitutionally inadmissible.

~ The defense didn't know about the .in-

former not for lack of a good-faith effort to"
. find out, but because law enforcement offi-
-cials didn’t: come clean. Even under the
court’s new standard, McCleskey ought to
have had his case remanded. But the court,
obviously believes that government “inter-
ference” must be at the level of say, jury,
tampering.

One of the most revealing — and disturb-.
ing — aspects of this decision is its radical
overturning of the clearly expressed intent of
Congress. The court's earlier standard has’
been codified in federal statute; only last :
year, Congress rejected an effort to change :

that standard. Yet the court blithely waved
all this away. ;

The hallmark of recent conservative or

gal theory is that the courts should not make
law but, to the maximum extent possible, fol-
low legislative intent. This theory has been
employed to avoid strengthening individual

~ rights - against majority decision-making.
What's clear ‘from McCleskey, however, is *
that it is simply a theory of convenience, to be

- dispensed with whenever it suits the anti-lib- .
ertarian prejudices of its proponents.

In practice, second and third federal ha-
beas. . petitions consume very little time and |
rarely result in the reversal .of a conviction.
But the court, zealous to lighten its caseload |
and eager to give the appearance of being
tough on crime, has chipped away a signifi-
cant. Piece of our edifice of justice.

:/
77

» } vy ‘a

THE NEW YORK TIMES EDITORIALS

Ehe New York Times
Founded in 1851

ADOLPH 8. OCHS, Publisher 1896-1935

ARTHUR HAYS SULZBERGER, Publisher 1935-1961
ORVIL E. DRYPOOS, Publisher 1961-1963 .

ARTHUR OCHS SULZBERGER, Publisher
ARTHUR OCHS SULZBERGER JR. Deputy Publisher

® Max FRANKEL, ® Esecutive Editor
> JOSEPH LELYVELD, Managing Editor

WARREN HOGE, Assistant Managing Editor
DAVID R. JONES, Assistant Managing Editor
CAROLYN LEE, Assistant Managing Editor
JOHN M. LEE, Assistant Managing Editor

ALLAN M. SIEGAL. Assistant Managing Editor
[ J

JACK ROSENTHAL, Editorial Page Editor
PHILIP M. BOFFEY, Deputy Editorial Page Editor

: [ J

LANCE R. PRIMIS, President

RUSSELL T. LEWIS, Sr.V.P, Production

ERICH G. LINKER JR. Sr.V.P, Advertising

JOHN M. O'BRIEN, Sr.V.P, Finance/Human Resources
WILLIAM L. POLLAK, Sr.V.P, Circulation

ELISE J. ROSS, Sr.V.P, Systems
JAMES A. CUTIE, V.P, Marketing

‘The Court Abuses the Great Writ |
For centuries, the writ of habeas corpus has

been a glorious exemplar of the rule of law, a
mighty piece of legal paper that calls kings and
jailers to produce their prisoners and demonstrate

. the legality of their detention. The Great Writ is,
however, also subject to abuse, notably by prison
inmates who file blatantly frivolous claims for

release.
The Supreme Court, preoccupied of late with

perceived abuse of the writ, has piled up restrictive,
technical rules. The other day, in the name of
preserving the writ’s dignity, the Court counte-
nanced a grave injustice.

Lawyers for Warren McCleskey had proved,
~ about as persuasively as the law can require, that

his murder conviction and death sentence were
obtained with the aid of a jailhouse informant
planted by the Atlanta police in violation of his

. established constitutional rights. They also showed
that for nearly a decade, Georgia authorities had
concealed telling evidence that the informant was a
police agent.

Not good enough, said a 6-to-3 Court majority in
an opinion by Justice Anthony Kennedy. That evi-
dence came too late, in a second habeas corpus
petition filed in Federal court. Warren McCleskey

. should have pleaded this point in his first petition
years earlier. Never mind that Mr. McCleskey’s

"counsel uncovered the telltale evidence only after
~ years of demands and denials. . ~~.

According to Justice Kennedy, the abuse com-

Four years ago, when the Court reviewed Mr.
McCleskey’s first habeas. corpus petition, his law-
yers made another impressive case. They showed
that he and other black men convicted of murder
were four times more likely to be executed if the
victim was white than if the victim was black. Not
good enough, said the Court, 5 to 4. He had to prove
that racial hatred had motivated his judge, jury or
prosecutor. That's when Mr. McCleskey’s lawyers
went back and found the evidence of the planted
informant.

As Justice Thurgood Marshall said in dissent,
the majority has rewarded ‘‘state misconduct and
deceit.” It has now made the Supreme Court the
principal abuser of the Great Writ.

Hans

She Netw ork Times
! Founded in 1851

ADOLPH 8, OCHS, Publisher 1896-1938
ARTHUR HAYS BULZBERGER, Publisher 1935-1961

ORVIL E. DRYPOOS, Publisher 1981-1963

THE NEW YORK TIMES EDITORIALS 14 v Souda

ARTHUR OCHS SULIBRRGER, Publisher
ARTHUR OCHS SULZBERROER JR. Deputy Publisher

[] .

MAX FRANKEL. Bseculive Editor
JOBEPH LBLYVELD, Managing Editor

WARREN HOOR, Assistant Managing Bditor
DAVID R. JONES, Assistant Managing Editor
CAROLYN LEE, Assistant Managing Editer
JOHN M. LEE, Asristont Managing Editor

ALLAN M. BIEGAL. Assiatont Managing Editor
[J

JACK ROSENTHAL. Editorial Page Editor
PHILIP M. BOFFEY, Deputy Edituriol Page Bditor

LANCE R. PRIMIS, President
RUSSELL T. LEWIS, §2.VP, Production

ERICH G. LINKER JR. Sr.V.P, Advertising
JOHN M. O'BRIEN, 8r.V.P, Finance/Humon Resources

WILLIAM L. POLLAK, Sr.VP, Circulation
ELISE J. ROSS. §r.V.P, Systems
JAMES A. CUTIE, V.P, Marketing

The Court Sets a Death Agenda
When new Supreme Court majorities hasten to

overrule the Court's own recent precedents, the
justices invite the public to believe, as Felix Frank-
furter once warned, “that law is an expression of
chance -- for instance, of unexpected changes in the
Court's composition and the contingencies in the
choice of successors.” Led by Chief Justice Rehn.
Quist, today's Court is running just such a risk to its
reputation and to justice on a death penalty issue
that doesn’t deserve such abuse.

Over the dissents of three members, the Court
staged oral arguments this week on whether to
overturn capital punishment decisions rendered by
retired Justices Lewis Powell in 1887 and William
Brennan only two years ago. Those rulings prevent
prosecutors who are seeking the death penalty from
making a special issue of the murder victim's high

community standing or the bercavement of the
victim's family.

On the merits, the Court was right {n the first
place. Victims’ rights obviously need attention. But
when a jury is asked to choose between death or life
imprisonment for a convicted murderer, that deci-
sion must turn on the defendant’s character, not the
happenstance of whether the victim was & vagrant
or a piliar of the community.

Allowing the prosecution to exalt the victim's
character would also mean that the defense could

Q
FOR YOUR

disparage the victim. Attorney General Dick Thorn-
burgh, in a ceremonial appearance as “friend of the
Court,” offered a cure for that: the defense simply
“'should not be allowed to denigrate the value of the
life’ that was lost. But gagging the defense would be
an unconscionable slanting of justice.

pare arguments on an expedited basis.
It’s bad enough that the capital punishment

system already executes far more prisoners who
kill whites than those who kill blacks. Since 1976 the
system has executed 145 killers but not a single
white murdercr whose victim was black. By letting
prosecutors urge juries to let their verdict turn on
the worth of the victim, the Court would probably
reinforce the bias in the system.

Chief Justice Rehnquist noted approvingly at
this week's argument that prosecutors who seek
death verdicts are bound “to get into a few rhapso-
dies” about victim rights. But even those justices

. who favor the death penalty should worry about the
way the Court finds and declares the law.

Warren McCleskey Case -- May, 1991

A. eneral Ba oun

From the moment of his arrest, McCleskey admitted taking part in the
robbery, but he has consistently denied that he was the triggerman who shot
Officer Schlatt. There were no eyewitnesses to the shooting, and the murder
veapon itself was never found. The State's case against McCleskey turned
largely on the testimony of two persons: (i) Ben Wright, a co-defendant and
the leader of the four robbers, who gratuitously told the jury that McCleskey
(and not himself) had done the shooting; and (ii) Offie Evans, a jailhouse
informant, who said McCleskey admitted the shooting while in the Fulton County
Jail awaiting trial. Co-defendant Wright was the other most likely shooting
suspect, but he quickly agreed to testify against McCleskey in exchange for a
life sentence. McCleskey alone received a sentence of death.

In 1984, the United States District Court overturned McCleskey's

conviction and death sentence. The District Court found that informant Offie
Evans had been secretly promised favorable judicial treatment by the State in
exchange for his adverse testimony against Warren McCleskey. This secret
State conduct violated constitutional rights that have long been protected by
the Fourteenth Amendment. Giglio v. United States, 405 U.S. 150 (1972). On
appeal, hovever, the federal court of appeals overturned McCleskey's grant of
relief, finding that the State's promise toc Evans had been negligible.

Two of McCleskey's trial jurors have given sworn affidavits stating that

if they had known about the evidence of misconduct later uncovered in 1984,

they would never have voted to impose a death sentence on McCleskey in 1978.

The State's case against McCleskey as the triggerman, they explained, was very

veak, and it was only their misplaced confidence in informant Offie Evans that

allowed them to vote for death.

Nk Se cs hh Set A wok. Meta d, A sadn dr RAR TT a

B. The Current Situation

(i) the evidence of police misconduct had not surfaced
vhen McCleskey came to that court in 1987;

(ii) McCleskey didn't know about the misconduct in 1987
because State officials had hidden it.

An important Georgia Supreme Court case, decided in 1983, Smith v. Zant,
250 Ga. 645, _ , 301 S.F.24 32, 37 (1983), provides that if a defendant can
present new evidence previously hidden by the State, the Superior Court should
consider his claim on its merits. The Georgia case, in other words, appears
to reject the Supreme Court's new standard and say that, in Georgia at least,
proof of prosecution misconduct is enough. That's just what McCleskey can
show here.

AT A MINIMUM, NO DEATH SENTENCE SHOULD BE SET IN THIS CASE UNTIL AFTER
THE SUPERIOR COURT, AND THE SUPREME COURT OF GEORGIA, HAVE FULLY HEARD AND
DECIDED HIS CLAIM.

Cc. McCleskey's Case for Clemency

The second is the Supreme Court's dismissal of a host of constitutional
objections -- to Offie Evans's secret offer of leniency, to the massive
evidence of racial discrimination, to the proof of police misconduct -- all on
wvhat amount to legal technicalities. No one whose trial was so gravely flawed
should be put to death.

H
a
t
e

1
R
R

W
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r
,

-
A

03/22/81 11:03 FAX 404 651 8502 GEORGIA PAROLE Q0027002

March 22, 1981

Telephone: (404) 661-5887
Contact: Richard Hyde, Director of Public Atfairs News Relcasc Re: {8

Wayne County Death Sentence Commuted by Parole Board

The State Board of Pardons and Paroles has today commuted the death sentence of Harold Glenn
Williams to life Imprisonment.

Willams was convicted in Wayne County of the June 22, 1980, murder of his grandfather Archie Lane,
who was repeatedly struck with a blunt instrument in his home.

Parole Board Chairman Wayne Snow. Jr.. said the Board acted to reduces the punishment disparity
between the two oodefendants in the cass. He pointed out thet Williams' half uncle Dennis Witllams
was at least equally involved in the homicide. However, Dennis Willlama was allowed to plead guilty
and receive confinement sentences which, under the Earned Time Law then In effect, amountad to five
years.

Mr. Snow noted that Harold Glenn Willams had also been allowed to plead guilty to voluntary
manslaughter but later withdraw his plea, leading to the prosecution's pressing for the death penalty.

Harold Glenn Williams, now age 33, had no previous criminal racord. He served honorably as a marine
posted at Camp David, Maryland, to protect the President of the United States.

Under the Georgia Constitution, Williams must be confined a total of 26 yeara before his first parole

consideration.

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Defendants' Motion for Extension of Time in Which to File Objections

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