Pleadings

    IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 

  

WARREN McCLESKEY, 

Petitioner, 

No. 90- 

EMERGENCY 
EXECUTION IMMINENT 
  

  

MICHAEL BOWERS, Attorney 
General, WALTER D. ZANT, 
Warden, Georgia Diagnostic 
and Classification Center, 
GEORGIA BOARD OF PARDONS AND 
PAROLES, WAYNE SNOW, Chairman, 
Georgia Board of Pardons and 

Paroles, and the STATE OF 
GEORGIA, 

Respondents 

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NOTICE OF APPEAL 

COMES NOW, WARREN McCLESKEY, and hereby files his notice of 

appeal to the Eleventh Circuit Court of Appeals. 

Respectfully submitted, 

  

LIVE A. STAFFORD SMITH 
RUTH E. FRIEDMAN 
83 Poplar Street, N.W. 
Atlanta, Ga. 30303 
(404) 688-1202 

688-9440 (fax) 

Counsel for Petitioner 

Certificate 
  

I hereby certify that I have served this pleading upon Mary 

Beth Westmoreland, at the office of t Attorney General, by fax.        

  

 



  

IN THE ELEVENTH CIRCUIT COURT OF APPEALS 

  

WARREN McCLESKEY, 

Petitioner, 

No. 90- 

EMERGENCY 
EXECUTION IMMINENT 
  

MICHAEL BOWERS, Attorney 
General, WALTER D. ZANT, 

Warden, Georgia Diagnostic 
and Classification Center, 
GEORGIA BOARD OF PARDONS AND 

PAROLES, WAYNE SNOW, Chairman, 
Georgia Board of Pardons and 
Paroles, and the STATE OF 
GEORGIA, 

Respondents 
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MOTION FOR CERTIFICATE OF PROBABLE CAUSE TO APPEAL 

COMES NOW, WARREN McCLESKEY, and moves this Court to enter a 

certificate of probable cause to appeal. 

Respectfully submitted, 

VY 
CLIVE A. STAFFORD SMITH 
RUTH E. FRIEDMAN 

83 Poplar Street, N.W. 
Atlanta, Ga. 30303 
(404) 688-1202 

688-9440 (fax) 

  

  

Counsel for Petitioner 

Certificate 
  

I hereby certify that I have served this pleading upon Mary 

Beth Westmoreland, at the office of the Attorney General, by fax. 

  Lp — 

 



  

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

  

WARREN McCLESKEY, 

Petitioner, 

Civil Action No. 
EMERGENCY 

EXECUTION IMMINENT 
  

  

MICHAEL BOWERS, Attorney 

General, WALTER D. ZANT, 
Warden, Georgia Diagnostic 
and Classification Center, 
GEORGIA BOARD OF PARDONS AND 

PAROLES, WAYNE SNOW, Chairman, 
Georgia Board of Pardons and 
Paroles, and the STATE OF 

GEORGIA, 

Respondents 

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CONSOLIDATED EMERGENCY MOTION FOR STAY OF 

EXECUTION PURSUANT TO 28 U.S.C. §§ 1651 & 

2251, COMPLAINT UNDER 42 U.S.C. § 1983, AND 

PETITION FOR HABEAS CORPUS PURSUANT TO 28 

U.8.C. § 2254 

Comes now the Petitioner, Warren McCleskey, and requests 

that this Court grant an emergency stay of his execution in order 

to preserve its jurisdiction to hear his substantial claims of 

deprivation of fundamental constitutional rights. This Court's 

jurisdiction is invoked pursuant to 28 U.S.C. §§ 16531 & 2251, 42 

U.S.C. § 1983 and 28 U.S.C. § 2254, as Petitioner herein states a 

complaint against Michael Bowers, in his capacity as Attorney 

General of the State of Georgia, the Georgia Board of Pardons and 

Paroles, and the State of Georgia, and alleges that his rights 

under the Eighth and Fourteenth amendments to the United States 

 



  

Constitution have been violated by the Respondents, acting under 

color of state law, and that as a result he will be put to death 

by the Respondent State of Georgia at 7:00 p.m. this evening, 

September 24, 1991, in derogation of his fundamental 

constitutional rights. 

1. In support of his complaint and request for relief, 

Petitioner states as follows: 

2. Petitioner is scheduled for execution at 7:00 p.m., 

today, September 24, 1991. Yesterday, September 23, 1991, 

Petitioner invoked the power of the State of Georgia's Board of 

Pardons and Paroles to commute his sentence to life. The Board, 

after a hearing, denied his plea today, September 24, 1991, at 

approximately 12 noon. 

3. In reports published prior to the Board of Pardons and 

Paroles' hearing and decision on whether to grant Warren 

McCleskey's request for a commutation of sentence, the Board was 

informed that Attorney General Michael Bowers would "wage a full 

scale campaign to overhaul the pardons and paroles board" if the 

Board commuted Mr. McCleskey's death sentence. "Inmate to Avoid 

Chair?," Marietta Daily Journal, September 15, 1991. The Board 

was reminded that they had drawn a "stiff rebuke" from Attorney 

General Bowers for their August 1990 decision to commute the 

death sentence of another death row inmate, and then threatened 

that "[i]f McCleskey escapes the electric chair, Bowers will go 

on the stump to demand reform and sterner, more expeditious 

handling of capital offenders." Id. 

 



  

4. The Board of Pardons and Paroles was again reminded, 

over a week later -- one day before Mr. McCleskey's commutation 

hearing -- of Attorney General Bowers' threat to overhaul the 

system of review for capital cases if the Board were to commute 

Mr. McCleskey's sentence. A newspaper report reiterated that 

"(i]n recent days, Attorney General Michael J. Bowers has 

publicly hinted that he will campaign for quicker, tougher 

handling of capital cases if McCleskey's sentence is commuted." 

"McCleskey Case Needs Careful Scrutiny," Atlanta Constitution, 
  

September 23, 1991. 

Be The State Board of Pardons and Paroles is one of six 

"Constitutional Boards and Commissions" provided for by Article 4 

of the Georgia Constitution. These boards are all executive 

agencies by nature, but the operations of the Board of Pardons 

and Paroles have been singled out for special political 

independence. The Board has enjoyed constitutional status since 

the Constitution of 1945, Constitution of the State of Georgia, 

Art. 5, § 2-3011 (1945). Prior to 1945, the functions of the 

board were assigned to the Governor personally. The history of 

the constitutional status of the board reflects the clear 

intention of the drafters to remove Pardons and Paroles from the 

political arena. In view of its distinct constitutional status 

and discrete functions, an invasion of the powers and 

responsibilities of the Board is both a violation of the 

constitutional provisions establishing the Beocard and the 

separation of powers provisions of the Georgia Constitution. 

 



  

6. The Georgia Supreme Court has noted the usefulness of 

the minutes of constitutional revision committee in interpreting 

the meaning of constitutional provisions, and as strong 

indication of the drafters' intent. Smith v. McMichael, 202 Ga. 
  

74 (1947). In the constitutional revision process which lead to 

the adoption of the 1983 constitution, there are numerous 

references to the need to maintain and increase the political 

isolation of the Board: 

i. The Select Committee on Constitutional Revision 

recommended the removal from the Governor of the power to stay a 

sentence of death pending Board consideration of clemency 

petition, and vested that authority in the Chairman of the Board. 

Transcripts of the Meetings of the Committee to Revise the 

Constitution, 1977-81 [hereinafter Transcripts of Meetings], 

Select Committee Meeting, 12/17/79 at 127-132. Then-Governor 

Busbee strongly favored the transfer of this power to the Board: 

"I think the Pardons and Paroles Board ought to be completely 

removed from the political arena...[ ]... [i]ncluding removing 

that power from me." 38. at 127-132. 

ii. The original version of art 4, §2, 92 (a), as 

reported out of the Committee to Revise Articles 4 & 5, was 

changed by the Select Committee to insulate the Board from 

substantive interference by the legislature. The original 

language approved by the Committee to Revise Articles 4 & 5 read 

as follows: "Except as may hereafter be provided bv law, the 
  

board shall be vested with the powers of executive clemency..." 

 



  

Transcripts of Meetings, Synopsis of Recommendations at 31. 

(emphasis added). This provision would have allowed the General 

Assembly to alter the powers and duties of the board. Governor 

Busbee expressed shock at the impact of those words: 

"Historically the people are in favor of having a constitutional 

board on this and not any politics of it." Transcripts of 

Meetings, Legislative Oversight Committee meeting, July 15, 1981 

at 74-75. In view of the need for complete political 

independence of the Board, and after heated opposition by some 

members of the General Assembly, id. at 72-73, the following 

wording of that provision was approved by the Select Committee 

  and ratified by the voters: "Except as otherwise provided in this 

paragraph, the State Board of Pardons and Paroles shall be vested 
  

with the power of executive clemency..." Constitution of the 

State of Georgia, Art. 4, § 2, 9 2 (a) (1983). Noting with 

approval the reasoning of the Fulton County Superior Court, 

Etheridge, J., the Georgia Supreme Court held that "an 

independent Board of Pardons and Paroles is envisioned under our 

State Constitution" and that the legislature is prohibited from 

interfering with the substantive powers and duties of the Board. 

Charron v. State Board of Pardons and Paroles, 253 Ga. 274, 319 
  

S.E.2d 455 (1984). The Supreme Court agreed that several 

provisions of the Constitution supported such a finding: 1) Art. 

4, § 2, 1 2 (a): "Except as otherwise provided in this paragraph, 

the State Board of Pardons and Paroles shall be vested with the 

power of executive clemency...", 2) Art. 4, § 7, 9 2: "The powers 

 



  

and duties of members of constitutional boards and commissions 

provided for in this article, except for the Board of Pardons and 
  

Paroles, shall be as provided by law." (emphasis added)), and 3) 
  

the separation of powers provisions of the Georgia Constitution: 

"The legislative, judicial, and executive powers shall forever 

remain separate and distinct..." Art. 1, § 2, q 3; Art. 1, § 2, ¢ 

4. . Charron, 319 s.BE. 24 at 454-455, 

tii. As the proposed term limits for the Board members 

were being reviewed by the Legislative Oversight Committee 

several senators spoke out in favor of the seven year term as an 

additional way to remove it as much as possible from the 

political arena. See, e.g. Transcripts of Meetings, Legislative 
  

Oversight Committee Meeting, July 15, 1981, at 55 ("Senator 

Barnes: Mr. Chairman, this is a board in my opinion that should 

be removed from the political arena as much as possible, and I 

think if we put it back to four years we're going to throw it 

right in the middle of the political arena, and I think it should 

stay at seven years to keep it out of the politics." The seven 

year term was opposed by several State Representatives, but the 

pro-independence Senate version prevailed in conference 

comitittee, Art. 4,.8 2, 9% 1. 

iv. To explicitly emphasize the independence of the 

Board from the General Assembly, the 1983 Constitution provides 

that "[t]he powers and duties of members of constitutional boards 

and commissions provided for in this article, except for the 
  

Board of Pardons and Paroles, shall be as provided by law." Art 
  

 



  

4, § 7, 1 2. The Georgia Supreme Court has held this provision 

to prohibit legislative limitation or alteration of the 

"substantive" powers of the Board. Charron v. State Board of 
  

Pardons and Paroles, 253 Ga. 274, 319 S.E.24 453, 455 (1934) 
  

(requirement of notice to DA before parole decision does not 

limit Board's "substantive" power). 

y 3° Thus, the history of the constitutional provisions 

establishing the Board of Pardons and Paroles demonstrates that 

the Board was intended to be an entirely independent body, 
  

insulated from the influences of the other branches of state 

government, and immune to the vagaries of political fervor. 

8. The Attorney General, a constitutional officer, has no 

authority to interfere with the operations of the Board of 

Pardons and Paroles. As a constitutional officer, he is required 

by the Constitution to take an oath of office, Art. 5, § 3, 9 2, 

swearing "that he will support the Constitution of the United 

States and of this state.” 0.C.G.A. § 45~3-1 (6). (1991). There 

is a clear constitutional purpose to insulate the Board of 

Pardons and Paroles from political pressure. See section 1-2 

above. Thus, the Attorney General has been using political 

extortion against the Beard, and the resultant intrusion into the 

powers and duties of the Board violates state law. Id. He is 

bound by his oath to be faithful to the purposes of state law and 

 



  

the state constitution. In this case, in order to effectuate the 

carrying out of a sentence of death under one state law, the 

Attorney General has violated the supreme constitutional 

guarantee of a politically independent Board of Pardons and 

Paroles. 

gS, In attacking the Board in the press with the avowed 

threat to wage a full-scale campaign to "overhaul" the Board, the 

Attorney General is violating the separation of powers clause, 

and infringing on the constitutionally mandated political 

independence of the Board. 

10. It is apparent here that the threats of the Attorney 

General did have an effect on the procedures employed by the 

Board in Mr. McCleskey's case. For example, for the first time 

in the Board's history, the hearing was opened to the press, and 

the actual proceedings before the board were videotaped and 

broadcast by local and national television. The normally 

scheduled press conference, at which the Board in the past as a 

rule announced its considered decision, was in Mr. McCleskey's 

case called off three hours before its scheduled time. The media 

began reporting that the Board would deny clemency before the 
  

hearing. It was even reported that Wayne Snow, Chairman of the 

Board, informally announced the Board's intention to deny 

clemency before the petition was even filed. 
  

11. Additionally, and also for the first time in the its 

history, the Board invited friends and family of the victim to 

express their views to the Board in a closed session which tock 

 



  

place immediately before Petitioner's hearing. It is reported 

that the friends and family used this opportunity to express 

their opinions about the crime, the defendant, and the 

appropriate sentence, factors which are irrelevant in the death- 

  

sentencing calculus. See Payne v. Tennessee, 49 Cr.L 2325 (U.S. 

June 27, 1991). Consideration of these factors by the sentencer 

in a capital sentencing proceeding violates the Eighth Amendment, 

and rendered the clemency proceeding which Mr. McCleskey invoked 

as a matter of state constitutional entitlement fundamentally 

unfair... Cf. id. 

13. There can be no question than that the consideration 

and proceedings afforded Mr. McCleskey by the Board of Pardons 

and Paroles deviated from the Boards usual actions. There can be 

little question but that the difference, and the consequential 

deprivation of Mr. McCleskey's rights, was the direct result of 

Attorney General Bowers' interference with the Board's 

constitutionally mandated independence. 

14. The constitution of the State of Georgia establishes an 

independent Board of Pardons and Paroles with the sole power of 

clemency in capital cases. A Georgia capital defendant is thus 

entitled, under State law, to have his plea for commutation heard 

by an independent, uninfluenced, Board before he is put to death 

by the State. See McLendon v. Everett, 205 Ga. 713, 55 S.E.2d 
  

119 (1949). As discussed above, Petitioner's plea to the Board 

of Pardons and Paroles was irrevocably tainted, and the Board's 

 



  

consideration of that plea irreversibly influenced, by the public 

‘actions of Respondent Bowers. 

15. Where a State attempts to bake actions that will have 

adverse consequences to a person's life, liberty, or property, 

(e.g., execution), and where State law provides an individual 

with the opportunity to avoid that adverse consequence, (e.g., 

through an opportunity to seek clemency from independent Board of 

Pardons and Parole), federal due process protections arise to 

protect the individual's State-created liberty interest. See 

Hewitt v. Helms, 459 U.S. 460, 466 (1983) ("Liberty interests 
  

protected by the Fourteenth Amendment may arise from two 

sources -- the Due Process Clause itself and the laws of the 

States"). Where under state constitutional provision an 

independent body is established to hear the final clemency pleas 

of capital inmates, and empowered to commute the death sentence 

when the petitioner makes a sufficient showing, the state creates 

an expectation protected by the due process clause. Greenholtz v. 
  

Nebraska Penal Inmates, 442 U.S. 1, 10 (1979); Hewitt, supra, 459 
  

  

U.S. at 471-72. Thus, the Georgia constitution's establishment 

of an independent Board of Pardons and Paroles with the sole 

power of clemency creates a liberty interest protected by the 

Fourteenth Amendment. Cf. Monroe v. Thigpen, 932 F.2d 1437 (11th 
  

Cir. 1991). Denial of Mr. McCleskey's plea for clemency by a 

Board influenced by the Attorney General, in violation of clear 

state constitutional mandate, deprived him of his state-created 

10 

 



  

liberty interest, and thus of due process, in violation of the 

Fourteenth Amendment to the United States Constitution. 

12. The unconstitutional interference and influence 

attempted by Respondent Bowers also violated Mr. McCleskey's 

rights under the Eighth Amendment to the United States 

Constitution. There is no question under Georgia law but that 

Warren McCleskey would be entitled to a life sentence if an 

independent, uninfluenced Board decided, after hearing the 

evidence presented by him in support of his plea, that his case 

warranted the exercise of the clemency process. It is axiomatic 

that procedures surrounding the finding of facts which will 

result in a person living or dying must "aspire to a heightened 

standard of reliability." Ford, supra, 106 S.Ct. at 2602; see 
  

also Eddings v. Oklahoma, 102 S.Ct. 869, 878 (1982) ("[T]his 

Court has gone to extraordinary measures to ensure that the 

prisoner sentenced to be executed is afforded process that will 

guarantee, as much as is humanly possible, that the sentence was 

not imposed out of whim, passion, prejudice, or mistake.") 

(O'Connor, J., concurring). The determination of Petitioner's 

entitlement to commutation of his death sentence is entitled to 

this settled Eighth Amendment protection. 

13. The fact that Petitioner has heretofore been convicted 

and sentenced does not render moot his right to Eighth Amendment 

protection. Procedural safeguards attach to capital sentencing 

proceedings, notwithstanding that guilt has been established. 

See, e.g., Burger v. Xemp, 107 S.Ct. 3114 (1287) (right to 
    

 



  

effective assistance of counsel at capital sentencing 

proceeding); Hitchcock v. Dugger, 481 U.S. 393 (1987) (right to 
  

accurate sentencing instructions at capital sentencing 

proceeding); Skipper v. South Carolina, 106 S.Ct. 1669, 1673 
  

(1986) (right in a capital sentencing proceeding for defendant 

"to rebut evidence and argument used against him.") (Powell, J., 

joined by Burger, (then) C.J., and Rehnquist, (then) J., (now 

c.J.), concurring). The Eighth and Fourteenth Amendments entitle 

Petitioner to such safeguards at every step in his capital 

proceedings. 

14. Even in a case in which it has already been finally 

determined that the death penalty is appropriate, the Eighth 

Amendment requires reliable procedures for determining whether 

the penalty may be carried out. For example, in Ford v. 

Wainwright, supra, the Supreme Court recognized that the Eighth 

Amendment prohibited the execution of insane persons, even those 

who had become insane after being constitutionally convicted and 

sentenced to death. Notwithstanding the utter constitutionality 

of Mr. Ford's conviction and death sentence, upon his sanity to 

be executed later being questioned, he was entitled to a reliable 

determination of his sanity before the penalty of death could be 

carried out: 

In capital proceedings generally, this 
Court has demanded that factfinding 
procedures aspire to a heightened standard of 
reliability. . . . [IIf £he Constitution 
renders the fact or timing of his execution 

contingent upon establishment of a further 
fact, then that fact must be determined with 
the high regard for truth that befits a 

  

  

  

  

12 

 



  

decision affecting the life or death of a 

human being. 
  

  

Ford v. Wainwright, 106 S.Ct. 2595, 2602-03 (1986) (plurality 
  

opinion). An independent Board's uninfluenced determination as 

to Petitioner's entitlement to commutation is a "further fact" 

upon which his execution is contingent. 

15. The finding of a single fact determined when Mr. Ford 

would be executed. If the Eighth Amendment requires reliable 

proceedings in cases where it has already been determined the 

death penalty is proper, Ford, supra, then, a fortiori, the 
  

  

Eighth Amendment requires provision of similarly reliable 

proceedings when the issue is the appropriateness of the death 

penalty vel non, as in Petitioner's case. 

16. The proceedings whereby it was determined that 

Petitioner was not entitled to commutation were rendered 

fundamentally and irrevocably unreliable by the actions of 

Respondent Bowers, as those actions were in direct violation of 

the Georgia Constitutional provisions establishing an independent 

Board and guaranteeing a strict separation of the powers of state 

government branches. Here, the Board was forced to make its 

constitutionally mandated independent determination under threats 

of losing their jobs if they did not make a decision in 

conformity with the views of the Attorney General. Such threats, 

of course, rendered the proceedings which resulted in the denial 

of clemency and which will ultimately (and imminently) lead to 

his execution, fundamentally unreliable, in violation of the 

13 

 



  

eighth amendment, and deprived Petitioner of a state created 

liberty interest, in violation of the fourteenth amendment. 

37. This Court has, under 28 U.S.C. §S 1651 & 2251, the 

broad power to issue all writs necessary to aid its jurisdiction. 

Petitioner therefore respectfully requests that this Court 

exercise its power and stay his imminent execution to preserve 

its jurisdiction to hear his substantial claims of deprivation of 

fundamental constitutional rights. This Court should exercise 

its stay power to give Petitioner the opportunity to have his 

substantial claims of deprivation of fundamental constitutional 

rights heard in an orderly and judicious manner. 

WHEREFORE, Petitioner respectfully requests that this Court 

forwith enter an order staying Petitioner's execution pending 

final disposition of this matter and further order of this Court. 

Respectfully submitted, 

ROBERT H. STROUP 

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

JOHN CHARLES BOGER 
University of North Carolina 
School of Law, CB #3380 
Chapel Hill, North Carolina 27599 
(219) 962-8516 

CLIVE STAFFORD SMITH 

RUTH FRIEDMAN 

83 Poplar Street, NW 
Atlanta, Georgia 30306 
(404) 688-1202 

ATTORNE¥S FOR PETITIONER 

  

  

  

  

14 

 



  

Verification 
  

I hereby verify that the foregoing pleading contains facts 

which are true and accurate to the best of my knowledge and 

belief. Petitioner is unable to verify it himself due to time 

constraints. 

  

  

CLIVE A. STAFFORD SMITH 

CERTIFICATE OF SERVICE 
  

I hereby certify that a copy of the foregoing has been 

furnished by hand to Respondent, at the following address: 

Mary Beth Westmoreland 
Assistant Attorney General 
132 State Judicial Building 
40 Capitol Square, SW 
Atlanta, Georgia 30334 

This the 24th day of September, 1991. 

  

ey 
  

<ATTORNEY FOR PETITIONER 

 



  

IN THE SUPREME COURT OF GEORGIA 

  

WARREN McCLESKEY, 

Petitioner, 

No. 

EMERGENCY 
EXECUTION IMMINENT 

Ve. 

  

  

WALTER ZANT, Warden, THE BOARD 

OF PARDONS AND PAROLE, ATTORNEY 

GENERAL MICHAEL BOWERS, & THE 

STATE OF GEORGIA, 

- Respondents. 

  

CONSOLIDATED EMERGENCY MOTION FOR STAY OF 

EXECUTION AND PETITION FOR HABEAS CORPUS 

Comes now the Petitioner, Warren McCleskey, and requests 

that this Court grant an emergency stay of his exacuticn on the 

basis of his claims concerning the deprivation of fundamental 

constitutional rights. This Court's jurisdiction is invoked 

pursuant to 0.C.G.A. § 9-14-1, and alleges that his rights under 

the First, Fifth, Sixth, Eighth and Fourteenth amendments to the 

United States Constitution have been wviolatad by the Responcents, 

acting under color of state law, and that as a rasult he will be 

put to death by the Respcondent Stata of Gacrgia at 7:00 p.m. thls 

. wy 4 

evening, Septamber 24, 1991, 1n dercgation of his fundamental 

3. In support of his MOTION FOR A STAY and ragquest fcr 

ralief, Petiticner states as follows: 

2. Petitioner is being held at the Gecrzia Dlagnestic X 

Classifica=ion Cantar in Butts County, Gecr3zla Resiciconer 1s 

schadulad for exacution at 7:00 2.3:., tzday, S2ztamser 24, 1391 

 



  

Yesterday, September 23, 1991, Petitioner invoked the power of 

the State of Georgia's Board of Pardons and Paroles to commute 

his sentence to life. The Board, after an unconstitutional 

"hearing," denied his plea today, September 24, 1991, at 

approximately 12 noon. He filed a petition with the Butts County 

Superior Court at the earliest possible moment--approximately 

4:00 p.m.--and the disposition is not yet known. This Court 

should stay the proceedings to preserve jurisdiction in the case. 

3. In reports published prior to the Board of Pardons and 

Paroles' hearing and decision on whether to grant Warren 

McCleskey's request for a commutation of sentence, the Board was 

informed that Attorney General Michael Bowers would "wage a full 

scale campaign to overhaul the pardons and paroles board" 1f the 

Board commuted Mr. McCleskey's death sentence. "Inmate to Avoid 

Chair?," Marietta Dailv Journal, September 15, 1991. The Beard 
  

was reminded that they. had drawn a "stiff rebuke" from Attorney 

General Bowers for their August 1990 decision to commute the 

death sentence of another death row inmate, and then threatened 

that "[i]f McCleskey escapes the electric chair, Bowers will go 

on the stump to demand reform and starner, mors expeditious 

handling of capital offenders." Id. 

4. The Board of Pardens and Paroles was again reminded, 

over a week latar -- one day befors Mr. McCleskay's commutation 

hearing =-- of Attorney General Bcwers' threat 

2 

 



  

"ri]n recent days, Attorney General Michael J. Bowers has 

publicly hinted that he will campaign for quicker, tougher 

handling of capital cases if McCleskey's sentence is commuted." 

tlanta Constitution, 
  n"McCleskey Case Needs Careful Scrutiny,” 

September 23, 1991. 

5. Attorney General Bowers' efforts to cajole the Board 

into refusing Mr. McCleskey clemency constitute an improper 

invasion of a separate constitutional bedy, in violation of the 

doctr rine of separation of powers, and has resulted in an unfair 

hearing before the Board which has deprived Mr. McCleskey of his 

state and federal constitutional rights. 

6. The sevaration of powers doctrine apvlied to this case: 
  

The State Board of Pardons and Paroles is one of six 

nconstitutional Boards and Commissions" provided for by Article 4 

of the Georgia Constitution. These boards are all executive 

agencies by nature, 

and Paroles have been singled out for special political 

independence. 

but the operations of the Board of Pardons 

The Board has enjoyed constitutional status since 

the Constitution of 1945, Constitution of the State of Georgia, 

Art. 5, § 2-3011 (1945). Prior to 1945, the functions of the 

board wera assigned to the Governor personally. The history 

the constitutional satus of the board reflec 

intantion of the drafters to ramove Pardons and 

political arsna. In view of i 

: eg Ld : Manly a 
and discreta functicns, an invasion CI tae pCwaIs an 

- 

4 

 



  

constitutional provisions establishing the Board and the 

separation of powers provisions of the Georgia Constitution. 

7% The Georgia Supreme Court has noted the usefulness of 

the minutes of constitutional revision committee in interpreting 

the meaning of constitutional provisions, and as strong 

indication of the drafters' intent. Smith v. McMichael, 202 Ga. 
  

74 (1947). In the constitutional revision process which lead to 

the adoption of the 1983 constitution, there are numercus 

references to the need to maintain and increase the political 

isolation of the Board: 

1. The Select Committee on Constitutional Revision 

recommended the Panoval from the Governor of the power TO 

stay a sentence of death pending Board consideration of 

clemency petition, and vested that authority in the Chairman 

of the Board. Transcripts of the Meetings of the Committee 

to Revise the Constitution, 1977-81 [hereinafter Transcripts 

of Meetings], Select Committee Meeting, 12/17/79 at 127-132. 

Then-Governor Busbee strongly favored the transfer of thls 

power to the Beard: "I think the Pardens and Paroles Beard 

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ought to be ccmpletely ramcved fro 

1... [i]ncluding removing that power from me." Id. at L27- 

133. 

ii. ‘The original yereini of ap- 4, §2, 92 (a), as 

ragortad out of the Committae £3 Revise Ar=icless 4 & 

  

1 - 

 



  

original language approved by the Committee to Revise 

Articles 4 & 5 read as follows: "Except as mav hereafter be 
  

provided bv law, the board shall be vested with the powers 
  

of executive clemency..." Transcripts of Meetings, synopsis 

of Recommendations at 31. (emphasis added). This provision 

would have allowed the General Assembly to alter the powers 

and duties of the board. Governor Busbee expressed shock at 

the impact of those words: wHistorically the people are in 

favor of having a constitutional board on this and not any 

politics of it." Transcripts of Meetings, Legislative 

Oversight Committee meeting, July 15, 1981 at 72-78, In 

view of the need for eonolete political independence of the 

Board, and after heated opposition by some members of the 

General Assembly, id. at 72-73, the following wording of 

that provision was approved by the Select Committee and 

  ratified by the voters: "Except as otherwise provided in 

this paragrach, the State Board of Pardons and Parcles snall 
  

be vested with the power of executive clemency..." 

Constitution of the Stata of Georgia, Art. 4, § 2, 1 2 (a) 

(1983). Noting with approval the reascning of the Fulton 

County Superior Court, Etheridge, J., the Gecrgia Suprame 

Court held that man independent Board of Pardens and Parcles 

is envisioned under cur Stata Constituticn” and that tle 

legislature is prohibited from intarIaring with the 

substantive pcwers and dutriss of sha-BCard. Coa=—on VY. 
  

tf Pees Oe 

S+~a~a Beard of Pardcns and Pa-alsg, 2353 Ga. 2 
  

= 
- 

 



  

455 (1984). The Supreme Court agreed that several 

provisions of the Constitution supported such a finding: 1) 

Art. 4, §2, %2 (a): "Except as otherwise provided in this 

paragraph, the State Board of Pardons and Paroles shall be 

vested with the power of executive clemency...", 2) Art. 4, 

§ 7, 1 2: "The powers and duties of members of 

constitutional boards and commissions provided for in this 

article, except for the Board of Pardons and Paroles, shall 
  

be as provided bv law." (emphasis added)), and 3) the 
  

separation of powers provisions of the Georgia Constitution: 

"The legislative, judicial, and executive powers shall 

forever remain separate and distinct..." Art. 1, § 2, T 37 

Art. '%, 8 2, q¢ 4. Charron, 319 S.E. 24 at 454-455. 

iit, As the proposed term limits for the Board members 

were being raviewed by the Legislative Oversight Committee 

several senators spoke out in favor of the seven year tam 

as an additional way to remove it as much as possible from 

the political arsna. Sse, e.g. Transcripts of Meetings / 
  

Legislative Oversight Committee Meeting, July 15, 1981, at 

55 ("Senator Barnes: Mr. Chairman, this is a bcard in my 

opinicn that should be ramecved from the political arena as 

much as possible, and I think if we put it back > Four 

8 

 



  

] 

independence Senate version prevailed in conference 

committee. Art. 4, § 2, 9 1. 

iv. To explicitly emphasize the independence of the 

Board from the General Assembly, the 1983 Constitution 

provides that "(t]he powers and duties of members of 

constitutional boards and commissions provided for in this 

article, except for the Board of Pardons and Paroles, shall 
  

be as provided by law." Art 4, § 7, 1 2. The Georgia 

Supreme Court has held this provision to prohibit 

legislative limitation or alteration of the "substantive" 

powers of the Board. Charron v. Stats Board of Pardons and 
  

Paroles, 253 Ga. 274, 319 S.E.2d 453, 453 (1984) 

(requirement of notice to DA before parole decision does not 

limit Board's "substantive" power). 

8. Thus, the history of the constitutional provisions 

establishing the Board of Pardons and Paroles demonstrates that 

the Board was intended to be an entirslv independent body, 

insulated from the influences of the other branches of state 

government, and immune to the vagaries of political fervor. 

9. The improver actions of the Attornev General: The 
  

tr
 

(@)
 

Attorney General, a constituticnal officer, has nc authority 

the Becard of Pardons and 0 (0 

id -~ * 3 1 ed 

interferes with the cperatlion 

Paroles. As a constitutional officer, he is ragquirsd by tae 

7 

 



  

States and of Chis state.” 0.C.G.A. § 43-3-1 (8) {(1ss1).% 

There is a clear constitutional purpose to insulate the Board of 

Pardons and Paroles from political pressure. See section 1-2 

above. Thus, the Attorney General has been using political 

extortion against the Board, and the resultant intrusion into the 

powers and duties of the Board violates state law. Id. In this 

case, in order to effectuate the carrying out of a sentence of 

death under one state law, the Attorney General has violated the 

supreme constitutional guarantee of a politically independent 

Board of Pardons and Paroles. 

10. The effect of Attornev General Bowers' meddling with 
  

the Pardon process: The effect of Attorney General Bowers' 
  

interference with the pardon process has been to force an 

atmosphere in which Mr. McCleskey has been denied his 

constitutional right to a full and fair review of his right to 

clemency. 

11. First, the abuse of the process precipitated the Beard 

members into prejudging the outcome of the hearing before it was 

ever held. On information and belief, Wayne Snow expressed the 

decision that thers would be "no change" in Mr. McCleskay's 

santance as a result of the up-coming hearing, and thers would Ete 

an execution on Tuesday. 

  

ty + sim - = = 3 3 Po « 

1. Thuis gaz of office ls an i13por-ant la..2l AnY action 
1 ), Fa =~ 4 CS dem : . : : 3 5, OR 

akan in violation of the Stata Constitut.on necessar..?y a 
~ fo ! = - - on ~~ . -~ ; 

ion of tne cath of office, punisnarle uncer C.C.G.A. 315 

 



  

12. Second, extraordinary procedures were adopted by the 

parole Board in an effort to counteract Attorney General Bowers! 

political assault. As has not occurred in clemency hearings in 

the past, the victim's family was invited in to express what they 

thought ought to be the outcome of the clemency process. Not 

only was this political grand standing by a body which had 

prejudged the issue, but it also violatad the recent Supreme 

Court decision in Payne v. Tennessee, 111 S. Ct. 2597 (1991), 
  

  where the Court left standing the portion of Booth Vv. Marvland, 

482 U.s. 496 (1987), which condemned consideration of "a victim's 

family members' characterizations and opinions about the crime, 

the defendant, and the appropriate sentence. . . ." Id. at 2811 

N.2. 

13. When it came to the "hearing" the media were given full 

sway with their cameras, while the general public was, in larg 

part, excluded by the small size of the hearing room, in 

violation of the right to a fully public hearing. Then, by way 

of illustration of the political circus which Attorney General 

Bowers had creatad, the Board began to leak the fact that a 

decision had been made to the prass befors even thcsa parcies 

invelved, so that Mr. McCleskey could hear akcut his impending 

  

+= 3 4 m : : ; - = Po + 1 - 

exacution on the nccon news. This, in contrast To Tae fact that 

oi a 1 1 5 1 : 3 i 

3. In overruling a porticn of 3¢eta’s Bolding, =he Zang 
- A . 

ov 49 4 

’ . Sigal kbi® il 4 = 

Cour= exnlicitly limited its holding To "2vicencs and argument 

—- — 3 3 -— = = vrs - I - ~ - - 

relating to the victim and lmpact Col tae v.Cc..a's dgath on the 

vicemim's familv." Pavne, at 2511 n. 2. The holding sgecliiically 
Y 3 F, 

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excepted the views of the family memters on tle pfIiper Cu-ome GC. 

b- t~2 case. 

 



  

the four cases considered by the Board prior to Mr. McCleskey's 

had been seriously evaluated, and three had resulted in clemency. 

14. The constitution of the State of Georgia establishes an 

independent Board of Pardons and Paroles with the sole power of" 

clemency in capital cases. A Georgia capital defendant is thus 

entitled, under State law, to have his plea for commutation heard 

by an independent, uninfluenced, Board before he is put to death 

  by the State. See McLendon v. Everett, 205 Ga. 713,55 8S.E.248 119 

(1949). As discussed above, Petitioner's plea to the Board of 

Pardons and Paroles was irrevocably tainted, and the Board's 

consideration of that plea irreversibly influenced, by the public 

actions of Respondent Bowers. 

15. Where a State attempts to take actions that will have 

adverse consequences to a person's life, liberty, or property, 

(the most extreme example of which is execution), and whers State 

law provides an individual with the opportunity to avoid that 

adverse consequence, (e.g., through an opportunity to seek 

clemency from independent Board of Pardons and Parcle), federal 

due process protections arise to protact the individual's State 

created liberty intarest. See Hewitt v. Helms, 459 U.S. 4380, 485 
  

(1983) ("Liberty interests protactad by the Fourteenth Amendment 

tsal? and may arise from two sources -- the Due Process Clause 1 

the laws of the Statas"). Whers under stats constitutional 
- 

provision an independent bedy is established to hea 

 



  

the state creates an expectation protected by the due process 

clause. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 10 
  

(1979); Hewitt, supra, 459 U.S. at 471-72. 
  

16. The most recent--and directly applicable--example of 

this rule of law appeared in Akins v. Snow, 922 F.2d 1558 (llth 
  

Cir. 1991), where allegations were made that the Board was not 

fairly considering applications for parole from a life sentence. 

The Eleventh Circuit unanimously upheld this claim, finding that 

there was a liberty interest in proper parole consideration, and 

that this was protected by the Due Process Clause. Id. at 1560. 

Thus, the Georgia constitution's establishment of an independent 

Board of Pardons and Paroles with the sole power of clemency 

creates a liberty interest protected by the Fourteenth Amendment. 

17. There is no question under Georgia law but that Warren 

McCleskey would be entitled to a life sentence if an inderendent, 

aniafinsnced Beata decided, after hearing the evidence presentad 

by him in support of his plea, that his case warranted the 

exercise of the clemency process. It is axiomatic that 

procedures surrounding the finding of facts which will result in 

rscn living or dying must "aspires £0 a heightened standard of Pp
 

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(f
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 ¥. Oklahoma, 102 S.Ct. 869, 873 (1982) {("[7lhi 

  

extracrdinary measures to ensure that the priscner sentanced 

be executed is afforded process that will guarantse, as much as 

is humanly pessibles, that the sen 

whim, passicn, prajudice, or mistaka. 

 



  

concurring). The determination of Petitioner's entitlement to 

commutation of his death sentence is entitled to this settled 

Eighth Amendment protection.’ 

  
18. For example, in Ford v. Wainwright, supra, the Supreme 

Court recognized that the Eighth Amendment prohibited the 

execution of insane persons, even those who had become insane 

after being constitutionally convicted and sentenced to death. 

Notwithstanding the utter constitutiocnality of Mr. Ford's 

conviction and death sentence, upon his sanity to be executed 

later being questioned, he was entitled to a reliable 

detethination of his sanity before the penalty of death could be 

carried out: 

In capital proceedings generally, this 
Court has demanded that factfinding 
procedures aspire to a heightened standard of 
reliabilicy. . Lo [IIE the Constitution 
renders the fact or timing of his execution 
contingent upon establishment of a further 

fact, then that fact must be determined with 
the high regard for truth that befits a 
decision affecting the lifes or death of a 

human being. 

  

  

  

  

  

  

  

      

  

  

3. As Ford makes quite clear, the fact that Petiticner has 
heratofore been convictad and sentanced dces nct render mcct his 
right to Eighth Amendment protecticn. Prccadural safsaguards 
attach to capital sentancing proceedings, notwithstanding that 
guilt has been established. See, 2.g9., Burger v. Xemp, 107 S.C=t. 
3114 (1987) (right to effective assistance of counsel at capital 

sentancing proceeding): H Hitchcock v. Dugger, 431 U.S. 393 (12937; 

(right to accurate sentencing inscructions at capital sentencing 

proceeding); Skipper v. Sgutd Carolinas 108'S.C=. 188%, 1573 

(1983) (right in a capltal se Ptsncing proceeding fsr delzndantc 

"es rsbut evidence and argument used aga ines Rim. "yy (Powall, 2., 

joined by Burger, (then) C.J., and Rehnquist, (taen) J., (ne: 

C.J.Y}, concurring). Tae Elgneh and Four=22n=a Amendments 2ntizls 

Petitioner to such salsguar a guar Star in his 'Caplizal 

proceedings. 

 



  

  
Ford v. Wainwright, 106 S.Ct. 2595, 2602-03 (1986) (plurality 

cplnien)s An Srupendans Board's uninfluenced determination as 

+o Petitioner's entitlement to commutation is a "further fact” 

upon which his execution is contingent. 

19. The unfair prejudgement, and unconstitutional 

procedures used in the denial of Mr. McCleskey's plea for 

clemency by a Board influenced by the Attorney General, in 

violation of clear state constitutional mandate, deprived him of 

his state-created liberty interest, and thus of due process, in 

violation of the United States Constitution and the Constitution 

of this State. 

Conclusion and Praver for Relief 
  

WHEREFORE, Petitioner requests that this Court grant the 

following relief: 

1. tay his execution until such time as this claim can be 

adequately heard; 

2. Grant him funds and subpoena power so that he may prove 

his claim; 

3. Order that the writ of habeas corpus issue; 

1 ww
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4. Order such other relief as this Court deems just and 

fair. 

  

pr Si submitted, 

CLIVE A. STAFFORD SMITH 

RUTH E. FRIEDMAN 

83 Poplar Street, N.W. 

Atlanta, Ga. 30303 

(404) 688-1202 
688-9440 (fax) 

  

Counsel for Petitioner 

Certificate 

I hereby certify that I have served this pleading upcn Mary 

Beth Westmoreland, at the office of t Attorney General, by fax. 

fe     
  

 



  

IN THE ELEVENTH CIRCUIT COURT OF APPEALS 

  

WARREN McCLESKEY, 

Petitioner, 

MICHAEL BOWERS, Attorney 

General, WALTER D. ZANT, 
Warden, Georgia Diagnostic 
and Classification Center, 
GEORGIA BOARD OF PARDONS AND 
PAROLES, WAYNE SNOW, Chairman, 

Georgia Board of Pardons and 
Paroles, and the STATE OF 
GEORGIA, 

Respondents 

  

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No. 90- 

EMERGENCY 

EXECUTION IMMINENT 
  

EMERGENCY MOTION FOR STAY OF EXECUTION 

CLIVE A. STAFFORD SMITH 
RUTH E. FRIEDMAN 
83 Poplar Street, N.W. 

Atlanta, Ga. 30303 
(404) 688-1202 

688-9440 (fax) 

Counsel for Petitioner 

 



  

Petitioner, Warren McCleskey, requests that this Court grant 

an emergency stay of his execution. 

JURISDICTION 
  

The judgment of the Superior Court of Butts County was 

entered today. The jurisdiction of this Court is invoked under 

28 U.S.C. § 1257(3) (1986), Petitioner having asserted below and 

intending here to assert deprivation of rights secured by the 

Constitution of the United States. | 

A, Proceedings Below 
  

Petitioner was unable to file ‘this motion until this 

afternoon, since it was only this afternoon that the Parole Board 

denied Mr. McCleskey clemency. Petitioner immediately filed in the 

Superior Court of Butts County when he could, and a telephone 

hearing was held at approximately 5:00 p.m. Relief was denied 

shortly thereafter in an oral order. The application for a stay 

was lodged with the Supreme Court of Georgia, and has yet to be 

ruled upon. 

B. The operative facts. 
  

Respondent plans to put Mr. McCleskey to death at 7:00 p.m. 

this dveniing, September 24, 1991, in derogation of his fundamental 

constitutional rights. Yesterday, September 23, 1991, Petitioner 

invoked the power of the State of Georgia's Board of Pardons and 

Paroles to commute his sentence to life. The Board, after an 

unconstitutional "hearing," denied his plea today, September 24, 

1991, at approximately 12 noon. 

 



  

In reports published prior to the Board of Pardons and 

Paroles' hearing and decision on whether to grant Warren 

McCleskey's request for a commutation of sentence, the Board was 

informed that Attorney General Michael Bowers would "wage a full 

scale campaign to overhaul the pardons and paroles board" if the 

Board commuted Mr. McCleskey's death sentence. "Inmate to Avoid 

Chair?," Marietta Daily Journal, September 15, 1991. The Board Was 
  

threatened in various other ways by the Attorney General should 

they grant clemency to Mr. McCleskey. 

The effect of Attorney General Bowers' interference with the 

pardon process is the key to the issue before this Court, and has 

forced an atmosphere in which Mr. McCleskey has been denied his 

constitutional right to a full and fair review of his right to 

clemency. 

C. The Unfair Hearing 
  

First, the abuse of the process precipitated the Board members 

into preludging the outcome of the hearing before it was ever held. 

Wayne Snow--the chairman of the Board--expressed the decision that 

there would be "no change" in Mr. McCleskey's sentence as a result 

of the up-coming hearing, and there would be an execution on 

~ Tuesday. 

Second, extraordinary procedures were adopted by the Parole 

Board in an effort to counteract Attorney General Bowers' political 

assault. As has not occurred in clemency hearings in the past, the 

victim's family was invited in to express what they thought ought 

to be the outcome of the clemency process. Not only was this 

 



  

political grand standing by a body which had prejudged the issue, 

  but it also violated the recent decision in Payne v. Tennessee, 111 

S. Ct. 2597 (1991), where the Court left standing the portion of 

Booth Vv. Maryland, 482 U.S. 496 (1987), which condemned 
  

consideration of "a victim's family members' characterizations and 

opinions about the crime, the defendant, and the appropriate 

sentence. . . ." Id. at 2611 n.2.1 

Where a State attempts to take actions that will have adverse 

consequences to a person's life, liberty, or property, (the most 

extreme example of which is execution), and where State law 

provides an individual with the opportunity to avoid that adverse 

consequence, (e.g., through an opportunity to seek clemency from 

independent Board of Pardons and Parole), federal due process 

protections arise to protect the individual's State-created liberty 

interest. See Hewitt v. Helms, 459 U.S. 460, 466 (1983) ("Liberty 
  

interests protected by the Fourteenth Amendment may arise from two 

sources -- the Due Process Clause itself and the laws of the 

States"). Where under state constitutional provision an 

independent body is established to hear the final clemency pleas of 

capital inmates, and empowered to commute the death sentence when 

the petitioner makes a sufficient showing, the state creates an 

expectation protected by the due process clause. See Greenholtz v. 
  

  

1. In overruling a portion of Booth's holding, the Payne 

Court explicitly limited its holding to "evidence and argument 

relating to the victim and impact of the victim's death on the 

victim's family." Payne, at 2611 n. 2. The holding specifically 

excepted the views of the family members on the proper outcome of 

the case. 

 



  

Nebraska Penal Inmates, 442 U.S. 1, 10 (1979); Hewitt, supra, 459 

  

  

U.S. at 471-72. 

The most recent--and directly applicable--example of this rule 

of law appeared in Akins v. Snow, 922 F.2d 1558 (llth Cir. 1991), 
  

where allegations were made that the Board was not fairly 

considering applications for parole from a life sentence. The 

Eleventh Circuit unanimously upheld this claim, finding that there 

was a liberty interest in proper parole consideration, and that 

this was protected by the Due Process Clause. Id. at 1560. Thus, 

the Georgia constitution's establishment of an independent Board of 

Pardons and Paroles with the sole power of clemency creates a 

liberty interest protected by the Fourteenth Amendment. 

There is no question under Georgia law but that Warren 

McCleskey would be entitled to a life sentence if an independent, 

uninfluenced Board decided, after hearing the evidence presented by 

him in support of his plea, that his case warranted the exercise of 

the clemency process. It is axiomatic that procedures surrounding 

the finding of facts which will result in a person living or dying 

  must "aspire to a heightened standard of reliability." Ford, 

supra, 106 S.Ct. at 2602; see also Eddings v. Oklahoma, 102 S.Ct. 
  

869, 878 (1982) ("[T)his Court has gone to extraordinary measures 

to ensure that the prisoner sentenced to be executed is afforded 

process that will guarantee, as much as is humanly possible, that 

the sentence was not imposed out of whim, passion, prejudice, or 

mistake.") (O'Connor, J., concurring). The determination of 

 



  

Petitioner's entitlement to commutation of his death sentence is 

entitled to this settled Eighth Amendment protection. ? 

For example, in Ford v. Wainwright, supra, the Court 
  

recognized that the Eighth Amendment prohibited the execution of 

insane persons, even those who had become insane after being 

constitutionally convicted and sentenced to death. Notwithstanding 

the utter constitutionality of Mr. Ford's conviction and death 

sentence, upon his sanity to be executed later being questioned, he 

was entitled to a reliable determination of his sanity before the 

penalty of death could be carried out: 

In capital proceedings generally, this 
Court has demanded that factfinding procedures 
aspire to a heightened standard of 
reliability. . . «+ 1I)f the Constitution 
renders the fact or timing of his execution 
contingent upon establishment of a further 
fact, then that fact must be determined with 
the high regard for truth that befits a 
decision affecting the life or death of a 

human being. 

  

  

  

  

  

  

Ford v. Wainwright, 106 S.Ct. 2595, 2602-03 (1986) (plurality 
  

opinion). An independent Board's uninfluenced determination as to 

  

2. As Ford makes quite clear, the fact that Petitioner has 
heretofore been convicted and sentenced does not render moot his 
right to Eighth Amendment protection. Procedural safeguards 
attach to capital sentencing proceedings, notwithstanding that 
guilt has been established. See, e.g., Burger v. Kemp, 107 S.Ct. 

3114 (1987) (right to effective assistance of counsel at capital 
sentencing proceeding); Hitchcock v. Dugger, 481 U.S. 393 (1987) 
(right to accurate sentencing instructions at capital sentencing 
proceeding); Skipper v. South Carolina, 106 S.Ct. 1669, 1673 

    

  

  

(1986) (right in a capital sentencing proceeding for defendant 

"to rebut evidence and argument used against him.") (Powell, J., 

joined by Burger, (then) C.J., and Rehnquist, (then) J., (now 

C.J.), concurring). The Eighth and Fourteenth Amendments entitle 

Petitioner to such safeguards at every step in his capital 
proceedings. 

 



  

Petitioner's entitlement to commutation is a "further fact" upon 

which his execution is contingent. 

The unfair prejudgment, and unconstitutional procedures used 

in the denial of Mr. McCleskey's plea for clemency by a Board 

influenced by the Attorney General, in violation of clear state 

constitutional mandate, deprived him of his state-created liberty 

interest, and thus of due process, in violation of the United 

States Constitution and the Constitution of this State. 

Conclusion and Prayer for Relief 
  

WHEREFORE, Petitioner requests that this Court stay his 

execution until such time as this claim can be adequately 

presented. 

Respectfully submitted, 

iit 
CLIVE A. STAFFORD SMITH 
RUTH E. FRIEDMAN 
83 Poplar Street, N.W. 
Atlanta, Ga. 30303 

(404) 688-1202 
688-9440 (fax) 

    

  

  

Counsel for Petitioner 

Certificate 
  

I hereby certify that I have served this pleading upon Mary 

Beth Westmoreland, at the office of the Attorney General, by fax. 

LL ———————————5 

AES 
  

  

  

 



  

IN THE ELEVENTH CIRCUIT COURT OF APPEALS 

  

WARREN McCLESKEY, 

Petitioner, 

MICHAEL BOWERS, Attorney 
General, WALTER D. ZANT, 
Warden, Georgia Diagnostic 
and Classification Center, 
GEORGIA BOARD OF PARDONS AND 

PAROLES, WAYNE SNOW, Chairman, 

Georgia Board of Pardons and 
Paroles, and the STATE OF 
GEORGIA, 

Respondents 

  

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No. 90- 

EMERGENCY 

EXECUTION IMMINENT 
  

  

SUPPLEMENTAL BRIEF IN SUPPORT OF 
EMERGENCY MOTION FOR STAY OF EXECUTION 

CLIVE A. STAFFORD SMITH 

RUTH E. FRIEDMAN 
83 Poplar Street, N.W. 
Atlanta, Ga. 30303 
(404) 688-1202 

688-9440 (fax) 

Counsel for Petitioner 

 



  

A. The Various Issues before this Court 
  

His Honor, Judge Forrester, having ruled from the bench 

denying a stay of execution, the question becomes a -dual one: (a) 

whether Judge Forrester improperly limited the issues before the 

court, and (b) whether the proper legal standard was applied to 

the outcome of the case.l 

On the first issue, again two questions arise--one of 

substantive due process and one of procedural due process. In 

his oral ruling from the bench, Judge Forrester stated that "all 

manner of information" should be allowed before the Board in the 

decision. This simply cannot be the case. In Monroe v. Thigpen, 
  

932 F.2d 1137, 1142 (11th Cir. 1991), this Court held that false 

evidence should not be admitted. Surely, the decision should not 

be based on racial discrimination, also? See Candelara Vv. 
  

Griffin, 641 F.2d 868 (10th Cir. 1981). Surely, politics cannot 

inspire a decision, see Osborne v. Folmar, 735 F.2d 1316 (llth 
  

cir. 1989), yet this factor was excluded from the hearing by 

Judge Forrester. Neither, under Payne v. Tennessee, 111 S. Ct. 
  

2597, 2611 n.2 (1991), is it relevant that the victim's family 

want to see Mr. McCleskey dead, yet this too was discounted by 

Judge Forrester. 

  

1. Mr. McCleskey has not had the benefit of the transcript, 

and makes his allegations from notes and memory. He sincerely 

hopes that his representations are accurate. Nothing in this 

document is intended to disparage Judge Forrester's ruling, for 

he conducted the hearing in the utmost courtesy. Mr. McCleskey 

simply--respectfully--disagrees with the rule of law applied. 

1 

 



  

This brings us to the procedural issue, since the "hearing" 

(called a "meeting" by witness Wayne Snow from the Board), which 

is alternately public and private, which is alternately open to 

Mr. McCleskey's counsel and not on the whim of the Board members, 

was closed to the extent that the victims' families said their 

piece. Judge Forrester read Slocum v. Georgia Board, 678 F.2d 
  

940 (11th Cir. 1982), as affording no procedural protections in 

this area. Of course, subsequent to Slocum, the Supreme Court 

has required such procedures in the context of competency to be 

executed. See Ford v. Wainwright, 477 U.S. 399 (1986). 
  

Certainly there is a liberty interest in the actions of the 

Parole Board. See Akins v. Snow, 922 F.2d 1558 (11th Cir. 1991). 
  

There is no reason to distinguish the Board from the same kind of 

committee which made the decision condemned in Ford. 

The other major theme in this case--closely interrelated--is 

the meaning of "arbitrary and capricious" actions are in the 

Board's decision. Judge Forrest borrowed from administrative law 

to define the term as being basically contentless--if the courts 

have found that the death penalty is constitutionally inflicted, 

then that gives a reasonable basis to any commutation decision. 

In Hindking v. Smith, 781 F.2d 850, 852 (11th Cir. 1986), in 
  

contrast, this Court held that actions were "not arbitrary and 

capricious, but reasonable and appropriate." Various examples of 

 



  

what is not "reasonable and appropriate" are discussed above, and 

include the factors discounted by Judge Forrester. 2 

B. The standard for a Stay. 
  

All in all, the issue before this Court--now in the small 

hours of the morning--is not whether Mr. McCleskey will prevail, 

but whether he has presented an issue which requires deliberate 

consideration, and on which reasonable minds may differ. 

Barefoot v. Estelle, 463 U.S. 880 (1983) .3 Certainly this Court 
  

may not say--as it should say before dismissing a case as legally 

frivolous and therefore not meriting a stay--that "petitioner's 

claim is squarely foreclosed by statute, rule, or authoritative 

court decision. . . ." Id., at 894. Several interesting and 

significant legal issues exist which cry out for this Court's 

careful consideration. 

  

2. Judge Forrester found the factual presentation in the 
case somewhat murky, and he struggled valiantly to make head or 
tails of it. His labor points up another problem which faces 
this Court: Assuming that there is no evidence that Wayne Snow 
ultimately and irrevocably made up his mind in this case prior to 
the hearing, is that sufficient for this Court to affirm? If the 
applicant for commutation has the right to a decision maker who 
is not prejudiced, does the constitution require that the 
decision maker exhibit the appearance of impartiality? Cf. 

  
  

  

Coolidge v. New Hampshire, 403 U.S. 443 (1971); Connally v. 
Georgia, 429 U.S. 245 (1977); Lo-Ji Sales Inc. v. New York, 442 
U.S. 319 (1979). 

3. Some discussion is merited of the Supreme Court's order 
this evening. Of course, that was on the papers presented to the 
Georgia Supreme Court and without the hearing held by Judge 
Forrester. The fact that three reasonable judicial minds 
differed even without the benefit of the development which has 
subsequently been had is evidence that a stay should be entered 
by this Court for mature consideration. 

3 

 



  

Conclusion and Praver for Relief 
  

WHEREFORE, Petitioner requests that this Court stay his 

execution until such time as this claim can be adequately 

presented. 

Respectfully submitted, 

CLIVE A. STAFFORD SMITH 
RUTH E. FRIEDMAN 
83 Poplar Street, N.W. 
Atlanta, Ga. 30303 
(404) 688-1202 

688-9440 (fax) 

      
  

Counsel for Petitioner 

Certificate 
  

I hereby certify that I have served this pleading upon Mary 

Beth Westmoreland, at the office of th torney General, by fax.     

  

 



  

IN THE SUPREME COURT OF GEORGIA 

  

WARREN McCLESKEY, 

Petitioner, 

No. 

EMERGENCY 

EXECUTION IMMINENT 

Ve. 

  

WALTER ZANT, Warden, THE BOARD 

OF PARDONS AND PAROLE, ATTORNEY 

GENERAL MICHAEL BOWERS, & THE 

STATE OF GEORGIA, 

Respondents. 

  

CONSOLIDATED EMERGENCY MOTION FOR STAY OF 

EXECUTION AND PETITION FOR HABEAS CORPUS 

Comes now the Petitioner, Warren McCleskey, and requests 

that this Court grant an emergency stay of his execution on the 

basis of his claims concerning the deprivation of fundamental 

constitutional rights. This Court's jurisdiction is invoked 

pursuant to 0.C.G.A. § 9-14-1, and alleges that his rights under 

the First, Fifth, Sixth, Eighth and Fourteenth amendments to the 

United States Constitution have been violated by the Respondents, 

acting under color of state law, and that as a result he will be 

put to death by the Respendent State of Gaorgia at 7:00 p.m. thls 

evening, Septamber 24, 1991, in derocgaticn of his fundamental 

1. In suzpert of his MOTION FOR A STAY and raguest for 

ralisf, Petitioner statas as follcws: 

BR haste. 

- 

 



  

Yesterday, September 23, 1991, Petitioner invoked the power of 

the State of Georgia's Board of Pardons and Paroles to commute 

his sentence to life. The Board, after an unconstitutional 

"hearing," denied his plea today, September 24, 19%1, at 

approximately 12 noon. He filed a petition with the Butts County 

Superior Court at the earliest possible moment--approximately 

4:00 p.m.--and the disposition is not yet known. This Court 

should stay the proceedings to preserve jurisdiction in the case. 

3. In reports published prior to the Board of Pardons and 

Paroles' hearing and decision on whether to grant Warren 

McCleskey's request for a commutation of sentence, the Board was 

informed that Attorney General Michael Bowers would "wage a full 

scale campaign to overhaul the pardons and paroles board" if the 

Board commuted Mr. McCleskey's death sentence. "Inmate to Avoid 

  Chair?," Marietta Daily Journal, September 15, 1991. The Board 

was reminded that they. had drawn a "stiff rebuke" from Attorney 

General Bowers for their August 1990 decision to commute the 

death sentence of another death row inmate, and then threataned 

that "([i]f McCleskey escapes the electric chair, Bowers will go 

on the stump to demand reform and starner, mors expeditious 

handling of capital offenders.” Id. 

4. The Board of Pardons and Paroles was again reminded, 

over a week latar -- one day befors Mr. McCleskay's commutation 
Nis 9 

 



  

"(i]n recent days, Attorney General Michael J. Bowers has 

publicly hinted that he will campaign for quicker, tougher 

handling of capital cases if McCleskey's sentence is commuted.” 

"McCleskey Case Needs Careful Scrutiny," Atlanta Constitution, 
  

September 23, 1991. 

5. Attorney General Bowers' efforts to cajole the Board 

into refusing Mr. McCleskey clemency constitute an improper 

invasion of a separate constitutional body, in violation of the 

doctrine of separation of powers, and has resulted in an unfair 

hearing before the Board which has deprived Mr. McCleskey of his 

state and federal constitutional rights. 

6. The separation of powers doctrine avolied to this case: 
  

The State Board of Pardons and Paroles is one of six 

wConstitutional Boards and Commissions" provided for by Article 4 

of the Georgia Constitution. These boards are all executive 

agencies by nature, but the operations of the Board of Pardons 

and Paroles have been singled out for special political 

independence. The Board has enjoyed constitutional status since 

the Constitution of 1945, Constitution of the State of Georgia, 

Ar=. 5, § 2=-3011 (1945). Prior to 1945, the functions of tae 

board wera assigned to the Governor personally. The history cf 

the constitutional status of the board reflects the clear 

intention of the drafters to ramove Pardons and Parsles from tae 

3 ho ~ NG 
Ld 

political arsna. In view of its distinct cons 

and discrata functicns, an invasicn cI tie SCwerIs »d 

 



  

constitutional provisions establishing the Board and the 

separation of powers provisions of the Georgia Constitution. 

7. The Georgia Supreme Court has noted the usefulness of 

the minutes of constitutional revision committee. in interpreting 

the meaning of constitutional provisions, and as strong 

indication of the drafters’ intent. Smith v. McMichael, 202 Ga. 
  

74 (1947). In the constitutional revision process which lead to 

the adoption of the 1983 constitution, there are numerous 

references to the need to maintain and increase the political 

isolation of the Board: 

: The Select Committee on Constitutional Revision 

recommended the removal from the Governor of the pcwer to 

stay a sentence of death pending Board consideration of 

clemency petition, and vested that authority in the Chairman 

of the Board. Transcripts of the Meetings of the Committee 

"+0 Revise the Constitution, 1977-81 (hereinafter Transcripts 

of Meetings], Select Committee Meeting, 12/17/79 at 127-132. 

Then-Governor Busbee strongly favored the transfer of tais 

power to the Board: "I think the pardons and Paroles Beard 

ought to be completaly removed frcm the political ar=na...[ 

}... [fIncluding removing that power from me." Id. at 127~- 

132. 

ii. The original version of art 4, §2, 92 (a), as 

ragortad out of the Committ2e to Revise Arzicles 2 & 5, Was 

’ RY yy : - =, — —- ‘ .yY io. - em 

changad by the Selact Committee 1 an S8--So- es insulate Lt. 

hy % © oq do - MY -Y - 

cari from substantive intariarsnce Ty tae legislatures. The 

 



  

original language approved by the Committee to Revise 

Articles 4 & 5 read as follows: "Except as mav hereafter be 
  

provided bv law, the board shall be vested with the powers 
  

of executive clemency..." Transcripts of Meetings, synopsis 

of Recommendations at 31. (emphasis added). This provision 

would have allowed the General Assembly to alter the powers 

and duties of the board. Governor Busbee expressed shock at 

the impact of those words: nHistorically the people are in 

favor of having a constitutional board on this and not any 

politics of it." Transcripts of Meetings, Legislative 

Oversight Committee meeting, July 15, 1981 at 74-75. In 

view of the need for complete political independence of the 

Board, and after heated opposition by some members of the 

General Assembly, id. at 72-73, the following wording of 

that provision was approved by the Select Committee and 

ratified by the voters: "Exceot as otherwise provided in 
  

this paragrach, the State Board of Pardons and Paroles shall 

be vested with the power of executive clemency..." 

Constitution of the Stats of Georgia, Art. 4, § 2, § 2 (a) 

(1983). Noting with approval tae reascning of the Fulten 

'g
 H L i3 ® 

County Superior Court, Etheridge, J., the Georgia Su 

Cour= held that "an independent Board of Pardons and Parclisas 

is envisioned under our States Constitution" and that tle 

legislature is prohibited from interfering with The 

  substantive pcwers and dutiss of the 3card. C= 

S+=a=a Beard of Paricrs and Par~lag, 233 Ga. 27+, 3.9 S.2.2% 
  

= 
ud 

 



  

455 (1984). The Supreme Court agreed that several 

provisions of the Constitution supported such a finding: 1) 

Art. 4, § 2, 12 (2) : "Except as otherwise provided in this 

paragraph, the State Board of Pardons and Paroles shall be 

vested with the power of executive clemency...", 2) Art. 4, 

§ 7, § 2: "The powers and duties of members of 

constitutional boards and commissions provided for in this 

article, exceot for the Board of Pardons and Paroles, shall 
  

be as provided bv law." (emphasis added)), and 3) the 
  

separation of powers provisions of the Georgia Constitution: 

"The legislative, judicial, and executive powers shall 

forever remain separate and distinct...™ Art. 1, § 2, 7 37 

Art. 1, §2, 94. Charron, 319 S.E. 2d at 454-455. 

iii. As the proposed term limits for the Board members 

were being raviewed by the Legislative Oversight Committee 

several senators spoke out in favor of the seven year term 

as an additional way to remove it as much as possible from 

the political arena. S2¢, &.9. Transcripts of Meetings, 

Legislative Oversight Committee Meeting, July 153, 1981, at 

55 ("Senator Barnes: Mr. Chairman, this is a board in my 

opinion that should be ramecved from the political ar=na as 

much as pessible, and I think if we put it back to four 

vears we're going to throw it right in tae middle of the 

to ksep it cut of the pc 

8 

 



  

independence Senate version prevailed in conference 

committee. Art. 4, § 2, 9g 1. 

iv. To explicitly emphasize the independence of the 

Board from the General Assembly, the 1983 Constitution 

provides that "[t]lhe powers and duties of members of 

constitutional boards and commissions provided for in this 

article, except for the Board of Pardons and Paroles, shall 
  

be as provided by law." Art 4, § 7, § 2. The Georgia 

Supreme Court has held this provision to prohibit 

legislative limitation or alteration of the "substantive" 

powers of the Board. Charron v. State Board of Pardons and 
  

paroles, 253 Ga. 274, 319 S.E.2d 453, 455 (1984) 

(requirement of notice to DA before parole decision does not 

limit Board's "substantive" power). 

8. Thus, the history of the constitutional provisions 

establishing the Board of Pardons and Paroles demonstrates that 

the Board was intended to be an entirslv independent bedy, 

insulatad from the influences of the other branches of state 

government, and immune to the vagaries of political fervor. 

9. The improcer actions of the Attornev General: The 
  

om 

Attorney General, a cons-itutional officer, has no authority tc 

intarfers with the operations of the Beard of Pardens and 

Paroles. As a constitutional officer, he is rsquirsd by tle 

Cans=itution to taks an oath of office, At. 5, § 3, ¢ 

” M 3 2 TY -— - ; 

swearing "that he will suppcrtT tle ConstTituit.cni © 

- 
/ 

 



  

States and of this state.” 0.C.G.A. § 45-3-1 (6) (1991).1 

There is a clear constitutional purpose to insulate the Board of 

Pardons and Paroles from political pressure. See section 1-2 

above. Thus, the Attorney General has been using political 

extortion against the Board, and the resultant intrusion into the 

powers and duties of the Board violates state law. Jd. In this 

case, in order to effectuate the carrying out of a sentence of 

death under one state law, the Attorney General has violated the 

supreme constitutional guarantee of a politically independent 

Board of Pardons and Paroles. 

10. The effect of Attornev General Bowers' meddling with 
  

the Pardon process: The effect of Attorney General Bowers!’ 
  

interference with the pardon process has been to force an 

atmosphere in which Mr. McCleskey has been denied his 

constitutional right to a full and fair review of his right to 

clemency. 

11. First, the abuse of the process precipitated the Board 

members into prejudging the outcome of the hearing before it was 

ever held. On information and belief, Wayne Snow expressed the 

decision that thers would be "no change" in Mr. McCleskay's 

sentance as 4 result of the up-coming hearing, and there would ke 

an execution on Tuesday. 

  

1. This cath of office is an impor=ant latter. Any action 

akan in violation of the Stata CcnstiTuzicen necassarily a 

viola=iocn of the oath © cIilice, sunishasls yrnder C.2.G.A. 315~- 
fy 

- 

19-1. 

 



  

12. Second, extraordinary procedures were adopted by the 

Parole Board in an effort to counteract Attorney General Bowers' 

political assault. As has not occurred in clemency hearings in 

the past, the victim's family was invited in to express what they 

thought ought to be the outcome of the clemency process. Not 

only was this political grand standing by a body which had 

prejudged the issue, but it also violated the recent Supreme 

Court decision in Payne v. Tennessee, 111 S. Ct. 2597 (1991), 
  

  where the Court left standing the portion of Booth V. Marvland, 

482 U.s. 496 (1987), which dandenned consideration of "a victim's 

family serEars! characterizations and opinions about the crime, 

the defendant, and the appropriate sentence. . . oN Id. aL 2611 

n.2. 

13. When it came to the "hearing" the media were given full 

sway with their cameras, while the general public was, in large 

part, excluded by tae small size of the hearing room, in 

violation of the right to a fully public hearing. Then, by way 

of illustration of the political circus which Attorney General 

Bowers had cresatad, the Board began to leak the fact that a 

decision vind been made to the press befors even thcosa parties 

involved, so that Mr. McCleskay could hear about his impending 

execution on the noon news. This, in contrast to the fact fehav 

  

i 
2. In overruling a portion cI 3cotl’S holding, the 

Cours explicitly limited its holding to "ev oy 

ralating to the victim and impact ol tae vice: 2 

victim's family." Pavne, at 2611 n. 2 he holding 

  

axcaptad the views of tae fanlly menm= 

the case. fy : 

 



  

the four cases considered by the Board prior to Mr. McCleskey's 

had been saridusly evaluated, and three had resulted in clemency. 

14. The constitution of the State of Georgia establishes an 

independent Board of Pardons and Paroles with the sole power of" 

clemency in capital cases. A Georgia capital defendant is thus 

entitled, under State law, to have his plea for commutation heard 

by an independent, uninfluenced, Board before he is put to death 

  by the State. See Mclendon Vv. Everett, 205 Ga. 713, 55'-S.B.24 119 

(1949). As discussed above, Petitioner's plea to the Board of 

Pardons and Paroles was irrevocably tainted, and the Board's 

consideration of that plea irreversibly influenced, by the public 

actions of Respondent Bowers. 

15. Where a State attempts to take actions that will have 

adverse cansequences to a person's life, liberty, or property, 

(the most extreme example of which is execution), and whers State 

law provides an individual with the opportunity to avoid that 

adverse consequence, (e.g., through an opportunity to seek 

clemency from independent Board of Pardons and Parole), federal 

due process protections arise to protact the individual's State- 

  creatad liberty intasrest. See Hewitt v. Helms, 439 U.S. 450, 4656 

(1983) ("Liberty interests protactad by the Four=senth Amendment 

mav arise from two sources =-- the Due Process Clause itself and 

eb 

the laws of the Statas"). Whers under stats constitutional 

provision an independent body is establishe 

Cwarad =a cocumuns tae clemency pleas of capital inmatas, and emp 

death sentanca when the getitlicner maxas 2 su 

 



  

the state creates an expectation protected by the due process 

clause. See Greenholtz wv. Nebraska Penal Inmates, 442 U.S. 1, 10 

(1979); Hewitt, supra, 459 U.S. at 471-72. 
  

16. The most recent--and directly applicable--example of 

this rule of law appeared in Akins v. Snow, 922 F.2d 1558 (llth 
  

Cir. 1991), where allegations were made that the Board was not 

fairly considering applications for parole from a life sentence. 

The Eleventh Circuit unanimously upheld this claim, finding that 

there was a liberty interest in proper parole consideration, and 

that this was protected by the Due Process Clause. Id. at 1560. 

Thus, the Georgia constitution's establishment of an independent 

Board of Pardons and Paroles with the sole power of clemency 
  

creates a liberty interest protected by the Fourteenth Amendment. 

17. There is no question under Georgia law but that Warren 

McCleskey would be entitled to a life sentence if an independent, 

enintlianaat oad decided, after hearing the evidence presentad 

by him in support of his plea, that his case warranted the 

exercise of the clemency process. It is axiomatic that 

procedures surrounding the finding of facts which will result in 

a person living or dying must "aspires to a heightened standard of 

    

reliability." Ford, supra, 1068 S.Ct. at 2602; ses also Eddircs 

Y, Oklahoma, 102 S.Ct. 869, 873 (1982) ("{T}lhis Cour: has gcne ¢3 
  

extraordinary measurss to ensure that the priscner sentanced to 

be executad is afforded process that will guarantse, as much as 

is humanly pessibls, that the sentance was nct lmpcsed cut of 

pad mo lhog whin, passion, prejudice, or mistaxe.") (O'Conner, J., 

1 

Nd 

 



  

concurring). The determination of Petitioner's entitlement to 

commutation of his death sentence is entitled to this settled 

Eighth Amendment protection. 

18. For example, in Ford v. Wainwright, supra, the Supreme 
  

Court recognized that the Eighth Amendment prohibited the 

execution of insane peEsons, even those who had become insane 

after being constitutionally convicted and sentenced to death. 

Notwithstanding the utter constitutionality of Mr. Ford's 

conviction and death sentence, upon his sanity to be executed 

later being questioned, he was entitled to a reliable 

determination of his sanity before the penalty of death could be 

carried out: 

In capital proceedings generally, this 
Court has demanded that factfinding 
procedures aspire to a heightened standard of 
reliability. +. » « [I1f the Constitution 
renders the fact or timing of his execution 
contingent upon establishment of a further 
fact, then that fact must be detsrmined with 
the high regard for truth that befits a 
decision affecting the life or death of a 
human being. 

  

  

  

  

  

  

3. As Ford makes quite clear, the fact that Petitioner has 

herstofora been convictad and sentanced dces not rander mcot his 

right to Eighth Amendment protection. Procedural safsguard 

attach to capital sentancing proceedings, notwithstanding that 

guilt has been established. See, e¢.g9., Burger v. Xemp, 107 S.C=. 

3114 (1987) (right to effective assistance of counsel at capical 

sentancing proceeding); Hitchcock v. Dugger, 431 U.S. 333 (1837) 

(right to accurata sentencing instructions at capital se : 

proceeding); Skiocer v. Scuth Carolina, 106 S.Ct. 1563 

(198%) (right in a capital sentancing proceeding for 

"ta rabut evidence and argument used against him.") ( 

joined by Burger, (taen) c. J., and Rahnguiss, (“hen) 

C.J. an concurring). The Eighth and Fourteenth Amend: 
c 

i 

= am - jm = 
ner to such safscuards at gv2r/ Sta in his 

  

  

  

12 

 



  

  
Ford v. Wainwright, 106 S.Ct. 2595, 2602-03 (1986) (plurality 

buthton An independent Board's uninfluenced determination as 

to Petitioner's entitlement to commutation is a "further fact" 

upon which his execution is contingent. 

19. The unfair prejudgement, and unconstitutional 

procedures used in the denial of Mr. McCleskey's plea for 

clemency by a Board influenced by the Attorney General, in 

violation of clear state constitutional mandate, deprived him of 

his state-created liberty interest, and thus of due process, in 

violation of the United States Constitution and the Constitution 

of this State. 

Conclusion and Praver for Relief 
  

WHEREFORE, Petitioner requests that this Court grant the 

following relief: 

1. Stay his execution until such time as this claim can be 

adequately heard; 

2. Grant him funds and subpoena power so that he may prove 

his claim; 

3. Order that the writ of habeas corpus issue; 

 



Order such other relief as this Court deems just and 

Respectfully submitted, 

CLIVE A. STAFFORD SMITH 

RUTH E. FRIEDMAN 

83 Poplar Street, N.W. 
Atlanta, Ga. 30303 

(404) 688-1202 
688-9440 (fax) 

  

  

  

Counsel for Petitioner 

Certificate 

I hereby certify that I have served this pleading upon Mary 

Beth Westmoreland, at the office of t Attorney General, by fax. 

    

  

 



  

(thet) £2 -¥Son 

a fesse Gill, (oi) € 995.2000 

; Fut V1 202-3 

bul dinjod ( for) Blo Cal 
AV



Wane n= (Yosdsn, 

SA SHA Hake - Plocdiip 

 



  

IN THE SUPERIOR COURT OF BUTTS COUNTY 
STATE OF GEORGIA 

  

WARREN McCLESKEY, 

Petitioner, 

No. 

EMERGENCY 
EXECUTION IMMINENT 

Ve 

  

WALTER ZANT, Warden, THE BOARD 
OF PARDONS AND PAROLE, ATTORNEY 
GENERAL MICHAEL BOWERS, & THE 
STATE OF GEORGIA, 

  

Respondents. 

  

CONSOLIDATED EMERGENCY MOTION FOR STAY OF 
EXECUTION AND PETITION FOR HABEAS CORPUS 

Comes now the Petitioner, Warren McCleskey, and requests 

that this Court grant an emergency stay of his execution on the 

basis of his claims concerning the deprivation of fundamental 

constitutional rights. This Court's jurisdiction is invoked 

pursuant to 0.C.G.A. § 9-14-1, and alleges that his rights under 

the First, Fifth, Sixth, Eighth and Fourteenth amendments to the 

United States Constitution have been violated by the Respondents, 

acting under color of state law, and that as a result he will be 

put to death by the Respondent State of Georgia at 7:00 p.m. this 

evening, September 24, 1991, in derogation of his fundamental 

constitutional rights. 

3. In support of his complaint and request for relief, 

Petitioner states as follows: 

2. Petitioner is being held at the Georgia Diagnostic & 

‘Classification Center in Butts County, Georgia. Petitioner is 

 



  

scheduled for execution at 7:00 p.m., today, September 24, 1991. 

Yesterday, September 23, 1991, Petitioner invoked the power of 

the State of Georgia's Board of Pardons and Paroles to commute 

his sentence to life. The Board, after an unconstitutional 

"hearing," denied his plea today, September 24, 1991, at 

approximately 12 noon. 

3. In reports published prior to the Board of Pardons and 

Paroles' hearing and decision on whether to grant Warren 

McCleskey's request for a commutation of sentence, the Board was 

informed that Attorney General Michael Bowers would "wage a full 

scale campaign to overhaul the pardons and paroles board" if the 

Board commuted Mr. McCleskey's death sentence. "Inmate to Avoid 

Chair?," Marietta Daily Journal, September 15, 1991. The Board 

was reminded that they had drawn a "stiff rebuke" from Attorney 

General Bowers for their August 1990 decision to commute the 

death sentence of another death row inmate, and then threatened 

that "[i]f McCleskey escapes the electric chair, Bowers will go 

on the stump to demand reform and sterner, more expeditious 

handling of capital offenders." Id. 

4. The Board of Pardons and Paroles was again reminded, 

over a week later -- one day before Mr. McCleskey's commutation 

hearing -- of Attorney General Bowers' threat to overhaul the 

system of review for capital cases if the Board were to commute 

Mr. McCleskey's sentence. A newspaper report reiterated that 

"(i]n recent days, Attorney General Michael J. Bowers has 

publicly hinted that he will campaign for quicker, tougher 

 



  

handling of capital cases if McCleskey's sentence is commuted." 

"McCleskey Case Needs Careful Scrutiny," Atlanta Constitution, 
  

September 23, 1991. 

5. Attorney General Bowers' efforts to cajole the Board 

into refusing Mr. McCleskey clemency constitute an improper 

invasion of a separate constitutional body, in violation of the 

doctrine of separation of powers, and has resulted in an unfair 

hearing before the Board which has deprived Mr. McCleskey of his 

state and federal constitutional rights. 

6. The separation of powers doctrine applied to this case: 
  

The State Board of Pardons and Paroles is one of six 

"Constitutional Boards andi Boni ssions? provided for by Article 4 

of the Georgia Constitution. These boards are all executive 

agencies by nature, but the operations of the Board of Pardons 

and Paroles have been singled out for special political 

independence. The Board has enjoyed constitutional status since 

the Constitution of 1945, Constitution of the State of Georgia, 

Art. 5, § 2-3011 (1945). Prior to 1945, the functions of the 

board were assigned to the Governor personally. The history of 

the constitutional status of the board reflects the clear 

intention of the drafters to remove Pardons and Paroles from the 

political arena. In view of its distinct constitutional status 

and discrete functions, an invasion of the powers and 

responsibilities of the Board is both a violation of the 

constitutional provisions establishing the Board and the 

separation of powers provisions of the Georgia Constitution. 

 



  

7. The Georgia Supreme Court has noted the usefulness of 

the minutes of constitutional revision committee in interpreting 

the meaning of constitutional provisions, and as strong 

indication of the drafters' intent. Smith v. McMichael, 202 Ga. 
  

74 (1947). In the constitutional revision process which lead to 

the adoption of the 1983 constitution, there are numerous 

references to the need to maintain and increase the political 

isolation of the Board: 

i. The Select Committee on Constitutional Revision 

recommended the removal from the Governor of the power to 

stay a sentence of death pending Board consideration of 

clemency petition, and vested that authority in the Chairman 

of the Board. Transcripts of the Meetings of the Committee 

to Revise the Constitution, 1977-81 [hereinafter Transcripts 

of Meetings], Select Committee Meeting, 12/17/79 at 127-132. 

Then-Governor Busbee strongly favored the transfer of this 

power to the Board: "I think the Pardons and Paroles Board 

ought to be completely removed from the political arena...([ 

J]... [i]ncluding removing that power from me." Id. at 127- 

132. 

ii. The original version of art 4, §2, 92 (a), as 

reported out of the Committee to Revise Articles 4 & 5, was 

changed by the Select Committee in an effort to insulate the 

Board from substantive interference by the legislature. The 

original language approved by the Committee to Revise 

Articles 4 & 5 read as follows: "Except as may hereafter be 
  

 



  

provided by law, the board shall be vested with the powers 

of executive clemency..." Transcripts of Meetings, Synopsis 

of Recommendations at 31. (emphasis added). This provision 

would have allowed the General Assembly to alter the powers 

and duties of the board. Governor Busbee expressed shock at 

the impact of those words: "Historically the people are in 

favor of having a constitutional board on this and not any 

politics of it." Transcripts of Meetings, Legislative 

Oversight Committee meeting, July 15, 1981 at 74-75. In 

view of the need for complete political independence of the 

Board, and after heated opposition by some members of the 

General Assembly, id. at 72-73, the following wording of 

that provision was approved by the Select Committee and 

ratified by the voters: "Except as otherwise provided in 

this paragraph, the State Board of Pardons and Paroles shall 
  

be vested with the power of executive clemency..." 

Constitution of the State of Georgia, Art. 4, § 2, € 2 (a) 

(1983). Noting with approval the reasoning of the Fulton 

County Superior Court, Etheridge, J., the Georgia Supreme 

Court held that "an independent Board of Pardons and Paroles 

is envisioned under our State Constitution" and that the 

legislature is prohibited from interfering with the 

substantive powers and duties of the Board. Charron Vv. 

State Board of Pardons and Paroles, 253 Ga. 274, 319 S.E.2d 
  

455 (1984). The Supreme Court agreed that several 

provisions of the Constituticn supported such a finding: 1) 

Senin 

 



  

Art. 4, § 2, § 2 (a): "Except as otherwise provided in this 

paragraph, the State Board of Pardons and Paroles shall be 

vested with the power of executive clemency...", 2) Art. 4, 

§ 7, 1 2: "The powers and duties of members of 

constitutional boards and commissions provided for in this 

article, except for the Board of Pardons and Paroles, shall 
  

be as provided by law." (emphasis added)), and 3) the 

separation of powers provisions of the Georgia Constitution: 

"The legislative, judicial, and executive powers shall 

forever remain separate and distinct..." Art. 1, § 2, § 3; 

Art. 1, § 2,.% 4. Charron, 319 S.E. 2d at 454-455. 

iii. As the proposed term limits for the Board members 

were being reviewed by the Legislative Oversight Committee 

several senators spoke out in favor of the seven year term 

as an additional way to remove it as much as possible from 

the political arena. See, e.g. Transcripts of Meetings, 
  

Legislative Oversight Committee Meeting, July 15, 1981, at 

55 ("Senator Barnes: Mr. Chairman, this is a board in my 

opinion that should be removed from the political arena as 

much as possible, and I think if we put it back to four 

years we're going to throw it right in the middle of the 

political arena, and I think it should stay at seven years 

to keep it out of the oolitics. The seven year term was 

opposed by several State Representatives, but the pro- 

independence Senate version prevailed in conference 

committee. Art. 4, § 2, 91 1. 

 



  

iv. To explicitly emphasize the independence of the 

Board from the General Assembly, the 1983 Constitution 

provides that "[t]he powers and duties of members of 

constitutional boards and commissions provided for in this 

article, except for the Board of Pardons and Paroles, shall 
  

be as provided by law." Art 4, § 7, 1 2. The Georgia 

Supreme Court has held this provision to prohibit 

legislative limitation or alteration of the "substantive" 

powers of the Board. Charron v. State Board of Pardons and 

Paroles, 253 Ga. 274, 319 S.E.2d 453, 455 (1984) 

(requirement of notice to DA before parole decision does not 

limit Board's "substantive" power). 

8. Thus, the history of the constitutional provisions 

establishing the Board of Pardons and Paroles demonstrates that 

the Board was intended to be an entirely independent body, 
  

insulated from the influences of the other branches of state 

government, and immune to the vagaries of political fervor. 

9. The improper actions of the Attornev General: The 
  

Attorney General, a constitutional officer, has no authority to 

interfere with the operations of the Board of Pardons and 

Paroles. As a constitutional officer, he is required by the 

Constitution “oc. take an oath of office, Art. 5, § 3, 4:2, 

swearing "that he will support the Constitution of the United 

States and of this state." 0.C.G.A. § 45-3-1 (6) (1991).1 

  

1. This oath of office is an important matter. Any action 
taken in violation of the State Constitution necessarily a 

(centinued...) 

 



  

There is a clear constitutional purpose to insulate the Board of 

Pardons and Paroles from political pressure. See section 1-2 

above. Thus, the Attorney General has been using political 

extortion against the Board, and the resultant intrusion into the 

powers and duties of the Board violates state law. Id. In this 

case, in order to effectuate the carrying out of a sentence of 

death under one state law, the Attorney General has violated the 

supreme constitutional guarantee of a politically independent 

Board of Pardons and Paroles. 

10. The effect of Attorney General Bowers' meddling with 

the Pardon process: The effect of Attorney General Bowers' 
  

interference with the pardon process has been to force an 

atmosphere in which Mr. McCleskey has been denied his 

constitutional right to a full and fair review of his right to 

clemency. 

11. First, the abuse of the process precipitated the Board 

members into prejudging the outcome of the hearing before it was 

ever held. On information and belief, Wayne Snow expressed the 

decision that there would be "no change" in Mr. McCleskey's 

sentence as a result of the up-coming hearing, and there would be 

an execution on Tuesday. 

12. Second, extraordinary procedures were adopted by the 

Parole Board in an effort to counteract Attorney General Bowers' 

political assault. As has not occurred in clemency hearings in 

  

1. {...Continved) 
violation of the oath of office, punishable under 0.C.G.A. §16- 
10-1. 

 



  

the past, the victim's family was invited in to express what they 

thought ought to be the outcome of the clemency process. Not 

only was this political grand standing by a body which had 

prejudged the issue, but it also violated the recent Supreme 

Court decision in Payne v. Tennessee, 111 S. Ct. 2597 (1991), 
  

where the Court left standing the portion of Booth v. Maryland, 
  

482 U.S. 496 (1987), which condemned consideration of "a victim's 

family members' characterizations and opinions about the crime, 

the defendant, and the appropriate sentence. . . “" Id... at 2611 

n.2.2 

13. When it came to the "hearing" the media were given full 

sway with their cameras, while the general public was, in large 

part, excluded by the small size of the hearing room, in 

violation of the right to a fully public hearing. Then, by way 

of illustration of the political circus which Attorney General 

Bowers had created. the Board began to leak the fact that a 

decision had been made to the press before even those parties 

involved, so that Mr. McCleskey could hear about his impending 

execution on the noon news. This, in contrast to the fact that 

the four cases considered by the Board prior to Mr. McCleskey's 

had been seriously evaluated, and three had resulted in clemency. 

  

  

2. In overruling a portion of Booth's holding, the Payne 
Court explicitly limited its holding to "evidence and argument 
relating to the victim and impact of the victim's death on the 
victim's family." Payne, at 2611 n. 2. The holding specifically 
excepted the views of the family members on the proper outcome of 

the case. 

 



  

14. The constitution of the State of Georgia establishes an 

independent Board of Pardons and Paroles with the sole power of 

clemency in capital cases. A Georgia capital defendant is thus 

entitled, under State law, to have his plea for commutation heard 

by an independent, uninfluenced, Board before he is put to death 

by the State. See McLendon v. Everett, 205 Ga. 713, 55 S.E.2d 119 
  

(1949). As discussed above, Petitioner's plea to the Board of 

Pardons and Paroles was irvevecably tainted, and the Board's 

consideration of that plea irreversibly influenced, by the public 

actions of Respondent Bowers. 

15. Where a State attempts to take actions that will have 

adverse consequences to a person's life, liberty, or property, 

(the most extreme example of which is execution), and where State 

law provides an individual with the opportunity to avoid that 

adverse consequence, (e.g., through an opportunity to seek 

clemency from independent Board of Pardons and Parole), federal 

due process protections arise to protect the individual's State- 

created liberty interest. See Hewitt v. Helms, 459 U.S. 460, 466 

(1983) ("Liberty interests protected by the Fourteenth Amendment 

may arise from two sources -- the Due Process Clause itself and 

the laws of the States"). Where under state constitutional 

provision an independent bedy is established to hear the final 

clemency pleas of capital inmates, and empowered to commute the 

death sentence when the petitioner makes a sufficient showing, 

the state creates an expectation protected by the due process 

10 

 



  

clause. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 10 
  

(1979); Hewitt, supra, 459 U.S. at 471-72. 

16. The most recent--and directly applicable--example of 

this rule of law appeared in Akins v. Snow, 922 F.2d 1558 (11th 
  

Cir. 1991), where allegations were made that the Board was not 

fairly considering applications for parole from a life sentence. 

The Eleventh Circuit unanimously upheld this claim, finding that 

there was a liberty interest in proper parole consideration, and 

that this was protected by the Due Process Clause. Id. at 1560. 

Thus, the Georgia constitution's establishment of an independent 

Board of Pardons and Paroles with the sole power of clemency 
  

creates a liberty interest protected by the Fourteenth Amendment. 

17. There is no question under Georgia law but that Warren 

McCleskey would be entitled to a life sentence if an independent, 

uninfluenced Board decided, after hearing the evidence presented 

by him in support of his plea, that his case warranted the 

exercise of the clemency process. It is axiomatic that 

procedures surrounding the finding of facts which will result in 

a person living or dying must "aspire to a heightened standard of 

reliability." Ford, supra, 106 S.Ct. at 2602; see also Eddings 
  

  

v. Oklahoma, 102 S.Ct. 869, 878 (1982) ("[T]lhis Court has gone to 
  

extraordinary measures to ensure that the prisoner sentenced to 

be executed is afforded process that will guarantee, as much as 

is humanly possible, that the sentence was not imposed out of 

whim, passion, prejudice, or mistake.") (O'Connor, J., 

concurring). The determination of Petitioner's entitlement to 

11 

 



  

commutation of his death sentence is entitled to this settled 

Eighth Amendment protection.3 

18. For example, in Ford v. Wainwright, supra, the Supreme 
  

Court recognized that the Eighth Amendment prohibited the 

execution of insane persons, even those who had become insane 

after being constitutionally convicted and sentenced to death. 

Notwithstanding the utter congtitutionaticy of Mr. Ford's 

conviction and death sentence, upon his sanity to be executed 

later being questioned, he was entitled to a reliable 

determination of his sanity before the penalty of death could be 

carried out: 

In capital proceedings generally, this 
Court has demanded that factfinding 
procedures aspire to a heightened standard of 
reliability. . . + II1f the Constitution 
renders the fact or timing of his execution 
contingent upon establishment of a further 
fact, then that fact must be determined with 
the high regard for truth that befits a 
decision affecting the life or death of a 
human being. 

  

  

  

3. As Ford makes quite clear, the fact that Petitioner has 
heretofore been convicted and sentenced does not render moot his 
right to Eighth Amendment protection. Procedural safeguards 
attach to capital sentencing proceedings, notwithstanding that 
guilt has been established. See, e.g., Burger v. Kemp, 107 S.Ct. 
3114 (1987) (right to effective assistance of counsel at capital 
sentencing proceeding); Hitchcock v. Dugger, 481 U.S. 393 (1987) 
(right to accurate sentencing instructions at capital sentencing 
proceeding); Skipper v. South Carolina, 106 S.Ct. 1669, 1673 
(1986) (right in a capital sentencing proceeding for defendant 

    

  

"to rebut evidence and argument used against him.") (Powell, J., 
joined by Burger, (then) C.J., and Rehnquist, (then) J., (now 
c.J.), concurring). The Eighth and Fourteenth Amendments entitle 
Petitioner to such safeguards at everv step in his capital 
proceedings. 

12 

 



  

Ford v. Wainwright, 106 S.Ct. 2595, 2602-03 (1986) (plurality 
  

opinion). An independent Board's uninfluenced determination as 

to Petitioner's entitlement to commutation is a "further fact" 

upon which his execution is contingent. 

19. The unfair prejudgement, and unconstitutional 

procedures used in the denial of Mr. McCleskey's plea for 

clemency by a Board influenced by the Attorney General, in 

violation of clear state constitutional mandate, deprived him of 

his state-created liberty interest, and thus of due process, in 

violation of the United States Constitution and the Constitution 

of this State. 

Conclusion and Praver for Relief 
  

WHEREFORE, Petitioner requests that this Court grant the 

following relief: 

1. Stay his execution until such time as this claim can be 

adequately heard; 

2. Grant him funds and subpoena power so that he may prove 

his claim; 

3. Order that the writ of habeas corpus issue; 

 



  

4. Order such other relief as this Court deems just and 

fair. 

Res ctfully submitted, 

RR —— 
  

  

  

CLIVE A. STAFFORD SMITH 
RUTH E. FRIEDMAN 
83 Poplar Street, N.W. 
Atlanta, Ga. 30303 
(404) 688-1202 

688-9440 (fax) 

Counsel for Petitioner 

Verification 
  

I hereby verify that the facts alleged in this petition are 

true and accurate to the best of my information and belief. 

ppg EE oR 
Br 
  

  

  

CLIVE A. STAFFORD SMITH 

sworn to and subscribed to before 
me this 24th day of September, 1991 

Way ae 

da ret PT. Mors 
NOTARY PUBLIC 
  

Notary Public, Fuiten County. 2ecrsia. 
My Commission Sigires June 1 [002 

Certificate 
  

I hereby certify that I have served this pleading upon Mary 

Beth Westmoreland, at the office of Ke Attorney General, by fax. 

I ———— 

  

  

14 

  

 



  

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 

  

WARREN McCLESKEY, 

Petitioner, 

No. 90- 

EMERGENCY 
EXECUTION IMMINENT 
  

  

MICHAEL BOWERS, Attorney 
General, WALTER D. ZANT, 
Warden, Georgia Diagnostic 
and Classification Center, 
GEORGIA BOARD OF PARDONS AND 

PAROLES, WAYNE SNOW, Chairman, 
Georgia Board of Pardons and 
Paroles, and the STATE OF 
GEORGIA, 

Respondents 

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NOTICE OF APPEAL 

COMES NOW, WARREN McCLESKEY, and hereby files his notice of 

appeal to the Eleventh Circuit Court of Appeals. 

Respectfully submitted, 

  

LIVE A. STAFFORD SMITH 
RUTH E. FRIEDMAN 
83 Poplar Street, N.W. 
Atlanta, Ga. 30303 
(404) 688-1202 

688-9440 (fax) 

Counsel for Petitioner 

Certificate 
  

I hereby certify that I have served this pleading upon Mary 

Beth Westmoreland, at the office of t Attorney General, by fax.     
  

  

 



  

IN THE ELEVENTH CIRCUIT COURT OF APPEALS 

  

WARREN McCLESKEY, 

Petitioner, 

No. 90- 

EMERGENCY 
EXECUTION IMMINENT 
  

  

MICHAEL BOWERS, Attorney 

General, WALTER D. ZANT, 
Warden, Georgia Diagnostic 
and Classification Center, 
GEORGIA BOARD OF PARDONS AND 

PAROLES, WAYNE SNOW, Chairman, 
Georgia Board of Pardons and 
Paroles, and the STATE OF 
GEORGIA, 

Respondents 
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MOTION FOR CERTIFICATE OF PROBABLE CAUSE TO APPEAL 

COMES NOW, WARREN McCLESKEY, and moves this Court to enter a 

certificate of probable cause to appeal. 

Respectfully submitted, 

VY 
CLIVE A. STAFFORD SMITH 
RUTH E. FRIEDMAN 
83 Poplar Street, N.W. 
Atlanta, Ga. 30303 
(404) 688-1202 

688-9440 (fax) 

  

  

Counsel for Petitioner 

Certificate 
  

I hereby certify that I have served this pleading upon Mary 

Beth Westmoreland, at the office of the Attorney General, by fax. 

  

 



  

IN THE SUPREME COURT OF THE UNITED STATES 

  

WARREN McCLESKEY, 

Petitioner, 

MICHAEL BOWERS, Attorney 
General, WALTER D. ZANT, 
Warden, Georgia Diagnostic 
and Classification Center, 
GEORGIA BOARD OF PARDONS AND 
PAROLES, WAYNE SNOW, Chairman, 
Georgia Board of Pardons and 
Paroles, and the STATE OF 
GEORGIA, 

Respondents 

  

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No. 90- 

EMERGENCY 

EXECUTION IMMINENT 
  

  

EMERGENCY MOTION FOR STAY OF EXECUTION TO 
ALLOW THE FILING OF A PETITION FOR WRIT OF 
CERTIORARI TO THE SUPERIOR COURT OF BUTTS 
COUNTY, GEORGIA, AND/OR THE ELEVENTH CIRCUIT 

COURT OF APPEALS 

CLIVE A. STAFFORD SMITH 

RUTH E. FRIEDMAN 
83 Poplar Street, N.W. 
Atlanta, Ga. 30303 
(404) 688-1202 

688-9440 (fax) 

Counsel for Petitioner 

 



  

QUESTION TO BE PRESENTED 
  

Whether, and according to what standard, any process is due 

to a petitioner who has a state law right to clemency, where the 

state board fails to provide a fair hearing, decides the issue 

before the hearing begins and predicates the decision in part 

upon victim's family members' expressions that they would like to 

see Petitioner executed. 

 



  

IN THE SUPREME COURT OF THE UNITED STATES 

  

WARREN McCLESKEY, 

Petitioner, 

No. 90- 

EMERGENCY 

EXECUTION IMMINENT 
  

  

MICHAEL BOWERS, Attorney 

General, WALTER D. ZANT, 
Warden, Georgia Diagnostic 
and Classification Center, 
GEORGIA BOARD OF PARDONS AND 

PAROLES, WAYNE SNOW, Chairman, 

Georgia Board of Pardons and 
Paroles, and the STATE OF 
GEORGIA, 

Respondents 

N
a
”
 

N
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EMERGENCY MOTION FOR STAY OF EXECUTION TO 

ALLOW THE FILING OF A PETITION FOR WRIT OF 

CERTIORARI TO THE SUPERIOR COURT OF BUTTS 

COUNTY, GEORGIA, AND/OR THE ELEVENTH CIRCUIT 

COURT OF APPEALS 

Petitioner, Warren McCleskey, requests that this Court grant 

an emergency stay of his execution on the basis of his claims 

concerning the deprivation of fundamental constitutional rights, 

to allow time for the filing of a petition for a writ of 

certiorari issue to review the judgment of the Superior Court of 

Butts County, Georgia, and/or the Eleventh Circuit Court of 

Appeals.l 

  

1. To the extent this Court deems it appropriate, Mr. 

McCleskey moves that this pleading be considered a petition for a 

writ of certiorari. : 

 



  

OPINION BELOW 
  

The opinion of the Superior Court of Butts County, Georgia, 

is not reported, and simply denied relief. 

JURISDICTION 
  

The judgment of the Superior Court of Butts County was 

entered today. The Eleventh Circuit has not yet ruled. The 

jurisdiction of this Court is invoked under 28 U.S.C. § 1257(3) 

(1986), Petitioner having asserted below and intending here to 

assert deprivation of rights secured by the Constitution of the 

United States. Alternatively, this Court's jurisdiction is 

invoked under 28 U.S.C. § 1651, providing this Court with the 

power to preserve this Court's jurisdiction. 

CONSTITUTIONAL PROVISIONS INVOLVED 
  

The Eighth Amendment to the United States Constitution 

provides, in pertinent part, that -- 

Excess bail shall not be required . . . nor 
cruel and unusual punishments inflicted. 

The Fourteenth Amendment to the United States Constitution 

provides, in pertinent part, that -- 

No state shall make or enforce any law which 
shall abridge the privileges or immunities of 
citizens of the United States; nor shall any 
State deprive any person to life, liberty or 
property, without due process of law; nor deny 
to any person within its Jurisdiction the 
equal protection of the laws. 

A. Proceedings Below 
  

Petitioner was unable to file this petition until this 

afternoon, since it was only then that the Parole Board denied Mr. 

McCleskey clemency. Petitioner immediately filed in the Superior 

3 

 



  

Court of Butts County when he could, and a telephone hearing was 

held at approximately 5:00 p.m. Relief was denied shortly 

thereafter in an oral order. The application for a stay was lodged 

with the Supreme Court of Georgia, and has yet to be ruled upon. 

B. The operative facts. 
  

Respondent plans to put Mr. McCleskey to death at 7:00 p.m. 

this evening, September 24, 1991, in derogation of his fundamental 

constitutional rights. Yesterday, Septenber 23, 1991, Petitioner 

invoked the power of the State of Georgia's Board of Pardons and 

Paroles to commute his sentence to life. The Board, after an 

unconstitutional "hearing," denied his plea today, September 24, 

1991, at approximately 12 noon. 

In reports published prior to the Board of Pardons and 

Paroles' hearing and decision on whether to grant Warren 

McCleskey's request for a commutation of sentence, the Board was 

informed that Attorney General Michael Bowers would "wage a full 

scale campaign to overhaul the pardons and paroles board" if the 

Board commuted Mr. McCleskey's death sentence. "Inmate to Avoid 

Chair?," Marietta Daily Journal, September 15, 1991. The Board Was 
  

threatened in various other ways by the Attorney General should 

they grant clemency to Mr. McCleskey. 

The effect of Attorney General Bowers' interference with the 

pardon process is the key to the issue before this Court, and has 

forced an atmosphere in which Mr. McCleskey has been denied his 

constitutional right to a full and fair review of his right to 

clemency. 

 



  

Ce. The Unfair Hearing 
  

First, the abuse of the process precipitated the Board members 

into prejudging the outcome of the hearing before it was ever held. 

Wayne Snow--the chairman of the Board--expressed the decision that 

there would be "no change" in Mr. McCleskey's sentence as a result 

of the up-coming hearing, and there would be an execution on 

Tuesday. 

Second, extraordinary procedures were adopted by the Parole 

Board in an effort to counteract Attorney General Bowers' political 

assault. As has not occurred in clemency hearings in the past, the 

victim's family was invited in to express what they thought ought 

to be the outcome of the clemency process. Not only was this 

political grand standing by a body which had prejudged the issue, 

but it also violated the recent decision in Payne v. Tennessee, 111 
  

S. Ct. 2597 (1991), where the Court left standing the portion of 

Booth Vv. Marviand, 482 U.S. 496 (1987), which condemned 
  

consideration of "a victim's family members' characterizations and 

opinions about the crime, the defendant, and the appropriate 

Sentence... J" Id, at 2611 n.2.2 

Where a State attempts to take actions that will have adverse 

consequences to a person's life, liberty, or property, (the most 

extreme example of which is execution), and where State law 

  

2. In overruling a portion of Booth's holding, the Payne 
Court explicitly limited its holding to "evidence and argument 
relating to the victim and impact of the victim's death on the 
victim's family." Payne, at 2611 n. 2. The holding specifically 
excepted the views of the family members on the proper outcome of 
the case. 

 



  

provides an individual with the opportunity to avoid that adverse 

consequence, (e.g., through an opportunity to seek clemency from 

independent Board of Pardons and Parole), federal due process 

protections arise to protect the individual's State-created liberty 

interest. See Hewitt v. Helms, 459 U.S. 460, 466 (1983) ("Liberty 
  

interests protected by the Fourteenth Amendment may arise from two 

sources -- the Due Process Clause itself and the laws of the 

States"). Where under state constitutional provision an 

independent body is established to hear the final clemency pleas of 

capital inmates, and empowered to commute the death sentence when 

the petitioner makes a sufficient showing, the state creates an 

expectation protected by the due process clause. See Greenholtz v. 
  

Nebraska Penal Inmates, 442 U.S. 1, 10 (1979); Hewitt, supra, 459   
  

U.8. at 471-72. 

The most recent--and directly applicable--example of this rule 

of law appeared in Akins v. Snow, 922 F.2d 1558 (11th Cir. 1991), 
  

where allegations were made that the Board was not fairly 

considering applications for parole from a life sentence. The 

Eleventh Circuit unanimously upheld this claim, finding that there 

was a liberty interest in proper parole consideration, and that 

this was protected by the Due Process Clause. Id. at 1560. Thus, 

the Georgia constitution's establishment of an independent Board of 

Pardons and Paroles with the sole power of clemency creates a 

liberty interest protected by the Fourteenth Amendment. 

There is no question under Georgia law but that Warren 

McCleskey would be entitled to a life sentence if an independent, 

 



  

dnintidended Board decided, after hearing the evidence presented by 

him in support of his plea, that his case warranted the exercise of 

the clemency process. It is axiomatic that procedures surrounding 

the finding of facts which will result in a person living or dying 

must "aspire to a heightened standard of reliability." Ford, 

supra, 106 S.Ct. at 2602; see also Eddings v. Oklahoma, 102 S.Ct. 
  

869, 878 (1982) ("[T]his Court has gone to extraordinary measures 

to ensure that the prisoner sentenced to be executed is afforded 

process that will guarantee, as much as is humanly possible, that 

the sentence was not imposed out of whim, passion, prejudice, or 

mistake.") (O'Connor, J., concurring). The determination of 

Petitioner's entitlement to commutation of his death sentence is 

entitled to this settled Eighth Amendment protection. 

For example, in Ford v. Wainwright, supra, the Court 
  

recognized that the Eighth Amendment prohibited the execution of 

insane persons, even those who had become insane after being 

constitutionally convicted and sentenced to death. Notwithstanding 

the utter constitutionality of Mr. Ford's conviction and death 

  

3. As Ford makes quite clear, the fact that Petitioner has 
heretofore been convicted and sentenced does not render moot his 
right to Eighth Amendment protection. Procedural safeguards 
attach to capital sentencing proceedings, notwithstanding that 
guilt has been established. See, e.g., Burger v. Kemp, 107 S.Ct. 
3114 (1987) (right to effective assistance of counsel at capital 
sentencing proceeding); Hitchcock v. Dugger, 481 U.S. 393 (1987) 
(right to accurate sentencing instructions at capital sentencing 
proceeding); Skipper v. South Carolina, 106 S.Ct. 1669, 1673 
(1986) (right in a capital sentencing proceeding for defendant 

    

  

  

"to rebut evidence and argument used against him.") (Powell, J., 
joined by Burger, (then) C.J., and Rehnquist, (then) J., (now 
C.J.), concurring). The Eighth and Fourteenth Amendments entitle 
Petitioner to such safeguards at every step in his capital 
proceedings. | 

 



  

sentence, upon his sanity to be executed later being questioned, he 

was entitled to a reliable determination of his sanity before the 

penalty of death could be carried out: 

In capital proceedings generally, this 
Court has demanded that factfinding procedures 
aspire to a heightened standard of 
reliability. «+ . {IIIf the constitution 
renders the fact or timing of his execution 
contingent upon establishment of a further 

fact, then that fact must be determined with 
the high regard for truth that befits a 
decision affecting the life or death of a 
human being. 

  

  

  

  

  

  

  

Ford Vv. Wainwright, 106 5.Ct. 2595, 2602-03 (19386) . (plurality 
  

opinion). An independent Board's uninfluenced determination as to 

Petitioner's entitlement to commutation is a "further fact" upon 

which his execution is contingent. 

The unfair prejudgment, and unconstitutional procedures used 

in the denial of Mr. McCleskey's plea for clemency by a Board 

influenced by the Attorney General, in violation of clear state 

constitutional mandate, deprived him of his state-created liberty 

interest, and thus of due process, in violation of the United 

States Constitution and the Constitution of this State. 

 



  

Conclusion and Praver for Relief 
  

WHEREFORE, Petitioner requests that this Court stay his 

execution until such time as this claim can be adequately presented 

and grant his petition for a writ of certiorari to the Superior 

Court of Butts County, Georgia, and/or the Eleventh Circuit Court 

of Appeals. 

Respectfully submitted, 

7 Ane 
CLIVE A. STAFFORD SMITH 
RUTH E. FRIEDMAN 
83 Poplar Street, N.W. 
Atlanta, Ga. 30303 
(404) 688-1202 

688-9440 (fax) 

  

Counsel for Petitioner 

Certificate 
  

I hereby certify that I have served this pleading upon Mary 

Beth Westmoreland, at the office of the Attorney General, by fax. 

ns 
  

pia SW 

 



  

IN THE SUPREME COURT OF THE UNITED STATES 

  

WARREN McCLESKEY, 

Petitioner, 

MICHAEL BOWERS, Attorney 
General, WALTER D. ZANT, 
Warden, Georgia Diagnostic 
and Classification Center, 
GEORGIA BOARD OF PARDONS AND 

PAROLES, WAYNE SNOW, Chairman, 

Georgia Board of Pardons and 
Paroles, and the STATE OF 
GEORGIA, 

Respondents 

  

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No. 90- 

EMERGENCY 

EXECUTION IMMINENT 
  

  

EMERGENCY MOTION FOR STAY OF EXECUTION AND 
PETITION FOR WRIT OF CERTIORARI TO THE 
ELEVENTH CIRCUIT COURT OF APPEALS 

CLIVE A. STAFFORD SMITH 
RUTH E. FRIEDMAN 
83 Poplar Street, N.W. 

Atlanta, Ga. 30303 
(404) 688-1202 

688-9440 (fax) 

Counsel for Petitioner 

 



  

QUESTION TO BE PRESENTED 
  

Whether, and according to what standard, any process is due 

to a petitioner who has a state law right to clemency, where the 

state board fails to provide a fair hearing, where appearances 

suggest that members have decided the issue before the hearing 

begins and where the decision is predicated in part upon improper 

factors such as publicity and the victim's family members’ 

expressions that they would like to see Petitioner executed. 

 



  

IN THE SUPREME COURT OF THE UNITED STATES 

  

WARREN McCLESKEY, 

Petitioner, 

No. 90- 
EMERGENCY 
EXECUTION IMMINENT 
  

  

MICHAEL BOWERS, Attorney 
General, WALTER D. ZANT, 
Warden, Georgia Diagnostic 
and Classification Center, 
GEORGIA BOARD OF PARDONS AND 

PAROLES, WAYNE SNOW, Chairman, 
Georgia Board of Pardons and 
Paroles, and the STATE OF 
GEORGIA, 

Respondents 

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EMERGENCY MOTION FOR STAY OF EXECUTION AND 

PETITION FOR WRIT OF CERTIORARI TO THE 
ELEVENTH CIRCUIT COURT OF APPEALS 

TO THE HONORABLE JUSTICE ANTHONY KENNEDY, GREETINGS: 

Petitioner, Warren McCleskey, requests that this Court grant 

an emergency stay of his execution on the basis of his claims 

concerning the deprivation of fundamental constitutional rights, 

and grant his petition for a writ of certiorari issue to review 

the judgment of the the Eleventh Circuit Court of Appeals. 

OPINION BELOW 
  

The Federal District Court denied relief, granted a 

temporary stay, and denied a certificate of probable cause. The 

opinion of the Eleventh Circuit Court of Appeals is not reported, 

but the Court denied a stay and denied relief. 

 



  

JURISDICTION 
  

The judgment of the Eleventh Circuit Court of Appeals was 

recently entered. The jurisdiction of this Court is invoked 

under 28 U.S.C. § 1257(3) (1986), Petitioner having asserted 

below and {rtending here to assert deprivation of rights secured 

by the Constitution of the United States. Alternatively, this 

Court's jurisdiction is invoked under 28 U.S.C. § 1651, providing 

this Court with the power to preserve this Court's jurisdiction. 

CONSTITUTIONAL PROVISIONS INVOLVED 
  

The Eighth Amendment to the United States Constitution 

provides, in pertinent part, that -- 

Excess bail shall not be required . . . nor 
cruel and unusual punishments inflicted. 

The Fourteenth Amendment to the United States Constitution 

provides, in pertinent part, that -- 

No state shall make or enforce any law which 
shall abridge the privileges or immunities of 
citizens of the United States; nor shall any 
State deprive any person to life, liberty or 
property, without due process of law; nor deny 
to any person within its jurisdiction the 
equal protection of the laws. 

A. Proceedings Below 
  

Petitioner was unable to file his petition in State Court 

until this afternoon, since it was only then that the Parole Board 

denied Mr. McCleskey clemency. Petitioner immediately filed in the 

Superior Court of Butts County wvhen he could, and a telephone 

hearing was held at approximately. 5100 p.m. Relief was denied 

shortly thereafter in an oral order. The application for a stay 

was lodged with the Supreme Court of Georgia, which subsequently 

2 

 



  

denied relief. This Court denied a stay. See McCleskey v. Bowers 
  

et al., No. A-227 (Sept. 24, 1991). Three Justices dissented. 

Petitioner sought relief in federal court. An evidentiary 

hearing was held, between approximately 7:00 p.m. and 11:15 p.m. 

this evening. At the end of the hearing, Judge Forrester denied 

relief, but granted a stay until 02:00 a.m., and denied a 

certificate of probable cause to appeal. 

Ba The operative facts. 
  

Yesterday--September 23, 1991--Petitioner invoked the power of 

the State of Georgia's Board of Pardons and Paroles to commute his 

sentence to life. The Board, after an unconstitutional "hearing," 

denied his plea today, September 24, 1991, at approximately 12 

noon. 

In reports published prior to the Board of Pardons and 

Paroles' hearing and decision on whether to grant Warren 

McCleskey's request for a commutation of sentence, the Board was 

informed that Attorney General Michael Bowers would "wage a full 

scale campaign to overhaul the pardons and paroles board" if the 

Board commuted Mr. McCleskey's death sentence. "Inmate to Avoid 

Chair? ," Marietta Daily Journal, September 15, 1991. The Board Was 
  

threatened in various other ways by the Attorney General should 

they grant clemency to Mr. McCleskey. 

The effect of Attorney General Bowers' interference with the 

pardon process is the key to the issue before this Court, and has 

forced an atmosphere in which Mr. McCleskey has been denied his 

 



  

constitutional right to a full and fair review of his right to 

clemency. 

Ce The Unfair Hearing 
  

First, the abuse of the process precipitated the Board members 

into prejudging the outcome of the hearing before it was ever held. 

The evidence showed that Wayne Snow--the chairman of the Board-- 

gave the perception that there would be an execution on Tuesday. 

Second, extraordinary procedures were adopted by the Parole 

Board in an effort to counteract Attorney General Bowers' political 

assault. As has not occurred in clemency hearings in the past, the 

victim's family was invited in to express what they thought ought 

to be the outcome of the clemency process. Not only was chile 

political grand standing by a body which had prejudged the issue, 

but it also violated the recent decision in Payne v. Tennessee, 111 
  

S. Ct. 2597 (1991), where the Court left standing the portion of 

Booth vv. Marvland, 482 U.S. 496 (1987), which condemned 
  

consideration of "a victim's family members' characterizations and 

opinions about the crime, the defendant, and the appropriate 

sentence. .. :. J" Id, at 2611 n.2.1 

Third, Mr. Snow admitted himself that the "hearing" was not 

really a hearing in the due process sense--that the procedures 

would fluctuate according to the hour and the whimsy of the Board, 

  

1. In overruling a portion of Booth's holding, the Payne 
Court explicitly limited its holding to "evidence and argument 
relating to the victim and impact of the victim's death on the 
victim's family." Payne, at 2611 n. 2. The holding specifically 
excepted the views of the family members on the proper outcome of 
the case. 

 



  

that one minute it would be a public hearing, with the right to 

counsel and confrontation, and the next minute it would be a star 

chamber procedure with every one excluded but the victim's family 

and the Board. 

D. The Various Issues before this Court 
  

The District Court, Judge Forrester, having ruled from the 

bench denying a stay of execution, the question becomes a dual one: 

(a) whether Judge Forrester--and, by affirmance, the Eleventh 

Circuit--improperly limited the issues before the Court, and (b) 

whether the proper legal standard was applied to the outcome of the 

case. ? 

On the first issue, ‘again two questions arise--one of 

substantive due process and one of procedural due process. In his 

oral ruling from the bench, Judge Forrester stated that "all manner 

of information" should be allowed before the Board in the decision. 

  

This simply cannot be the case. In Monroe v. Thigpen, 932 F.2d 

1137, 1142 (11th Cir. 1991), the Eleventh Circuit held that false 

evidence should not be admitted. Surely, the decision should not 

be based on racial discrimination, also? See Candelara v. Griffin, 
  

641 F.2d 868 (10th Cir. 1981). Surely, politics cannot inspire a 

decision, see Osborne v. Folmar, 735 F.2d 1316 (llth Cir. 1989), 
  

yet this factor was excluded from the hearing by Judge Forrester. 

  

2. Mr. McCleskey has not had the benefit of the transcript, 
and makes his allegations from notes and memory. He sincerely 
hopes that his representations are accurate. Nothing in this 
document is intended to disparage Judge Forrester's ruling, for 
he conducted the hearing in the utmost courtesy. Mr. McCleskey 
simply--respectfully--disagrees with the rule of law applied. 

5 

 



  

  

Neither, under Payne v. Tennessee, 111 S. Ct. 2597, 2611 n.2 

(1991), is it relevant that the victim's family want to see Mr. 

McCleskey dead, yet this too was discounted by Judge Forrester. 

This brings us to the procedural issue, since the "hearing" 

(called a "meeting" by witness Wayne Snow from the Board), which is 

alternately public and private, which is alternately open to Mr. 

McCleskey's counsel and not on the whim of the Board members, was 

closed to tha extent that the victims' families said their piece. 

Judge Forrester read Slocum v. Georgia Board, 678 F.2d 940 (11th 
  

Cir. 1982), as affording no procedural protections in this area. 

Of course, subsequent to Slocum, this Court has required such 

procedures in the context of competency to be executed. See Ford 
  

v. Wainwright, 477 U.S. 399 (1986) .3 Certainly there is a liberty   

interest in the actions of the Parole Board. See Akins Vv. Snow, 
  

922 F.2d 1558 (11th Cir. 1991). There is no reason to distinguish 

  

3. Notwithstanding the utter constitutionality of Mr. 
Ford's conviction and death sentence, upon his sanity to be 
executed later being questioned, he was entitled to a reliable 
determination of his sanity before the penalty of death could be 
carried out: 

In capital proceedings generally, this 
Court has demanded that factfinding procedures 
aspire to a heightened standard of 
reliability. « . . IIIf _ the Constitution 
renders the fact or timing of his execution 
contingent upon establishment of a further 
fact, then that fact must be determined with 
the high regard for truth that befits a 
decision affecting the life or death of a 
human being. 

  

  

  

  

  

  

  

Ford v. Wainwright, 106 S. Ct. 2595, 2602-03 (1986) (plurality 
opinion). An independent Board's uninfluenced determination as 
to Petitioner's entitlement to commutation is a "further fact" 

upon which his execution is contingent. 

  

6 

 



  

the Board from the same kind of committee which made the decision 

condemned in Ford. 

The other major theme in this case--closely interrelated--is 

the meaning of "arbitrary and capricious" actions are in the 

Board's decision. Judge Forrest borrowed from administrative law 

to define the term as being basically contentless--if the courts 

have found that the death penalty is constitutionally inflicted, 

then that gives a reasonable basis to any commutation decision. 

In Hindking v. Smith, 781 F.2d 850, 852 (11th Cir. 1986), in 
  

contrast, the Court held that actions were "not arbitrary and 

capricious, but reasonable and appropriate." Various examples of 

what is not "reasonable and appropriate" are discussed above, and 

4 
include the factors discounted by Judge Forrester. 

E. The standard for a Stay. 
  

All in all, the issue before this Court--now in the small 

hours of the morning--is not whether Mr. McCleskey will prevail, 

but whether he has presented an issue which requires deliberate 

consideration, and on which reasonable minds may differ. Barefoot 
  

v. Estelle, 463 U.S. 880 (1983). Certainly this Court may not 
  

  

4. Judge Forrester found the factual presentation in the 
case somewhat murky, and he struggled valiantly to make head or 
tails of it. His labor points up another problem which faces 
this Court: Assuming that there is no evidence that Wayne Snow 
ultimately and irrevocably made up his mind in this case prior to 
the hearing, is that sufficient for this Court to affirm? If the 
applicant for commutation has the right to a decision maker who 
is not prejudiced, does the constitution require that the 
decision maker exhibit the appearance of impartiality? Cf. 

  
  

Coolidge v. New Hampshire, 403 U.S. 443 (1971); Connally Vv. 
Georgia, 429 U.S. 245 (1977); Lo-Ji Sales Inc. v. New York, 442 

U.S. 319 (1979). 
  

 



  

say--as it should say before dismissing a case as legally frivolous 

and therefore not meriting a stay--that "petitioner's claim is 

squarely foreclosed by statute, rule, or authoritative court 

decision. . . ." Id., at 894. Several interesting and significant 

legal issues exist which cry out for this Court's careful 

consideration. 

Conclusion and Praver for Relief 
  

WHEREFORE, Petitioner requests that this Court stay his 

execution until such time as this claim can be adequately presented 

and grant his petition for a writ of certiorari to the Eleventh 

Circuit Court of Appeals. 

Respectfully submitted, 

     
  

CLIVE—A—STAFFORD SMITH 
RUTH E. FRIEDMAN 
83 Poplar Street, N.W. 
Atlanta, Ga. 30303 
(404) 688-1202 

688-9440 (fax) 

Counsel for Petitioner 

Certificate 
  

I hereby certify that I have served this pleading upon Mary 

Beth Westmoreland, at the office of th torney General, by fax. 

ETN nn