Smith v GA Brief for the Respondent in Opposition
Public Court Documents
October 8, 1976
30 pages
Cite this item
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Case Files, McCleskey Background Materials. Clemency Request - Attorney's Working Files Vol. 3 of 5, 1991. 3fc3d1c3-63a7-ef11-8a69-6045bdd667da. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b9aee627-2700-4265-9e7b-d71bc97b2e87/clemency-request-attorneys-working-files-vol-3-of-5. Accessed July 30, 2025.
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McCLESKEY CLEMENCY HEARING WITNESSES
MOST HONORABLE BOB REINHARDT
COUNSEL FOR DEFENDANT
TIFTON, GEORGIA
ES pin ds (Fonn Charles ''"Jack" Boger 2
Law Professor, School of Law
University of North Carolina BM ugly fo le present.
Chapel Hill, North Carolina Sy
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I min 2. Robert H. "Bob" Stroup glut 1
Attorney at Law
| Atlanta, Georgia
5 ein 3, Betty McCleskey Meyers . .
Sister Owe falc oprgsentedive .
Marietta, Georgia ta
% u. 4. Rev. Dr. Robert L. Johnson, Pastor
Zion Baptist Church
Marietta, Georgia
7 B. Louise McMutry
Aunt
Cobb County, Georgia
3.6. Dr. Thomas E. Adger
Operations Administrator
Atlanta Public Schools feotball Coady
Atlanta, Georgia
| 7. Gwendolyn Carmichael Mullins
Former Wife
Cobb County, Georgia
3 8. Rev. Dr. George Wirth, Pastor
7 9. Rev. Dr. Harris T. Travis, Associate Pasion
Zion Baptist Church Cool
Vice President of Academic Affairs mt
Southern College of Technology J
Marietta, Georgia
| 10. Mrs. Willie Mae McCleskey Brooks
Mother
Cobb County, Georgia
1. Di Geom Wwls -
2. sap Flan
Carla McCleskey Cross
Daughter
Cobb County, Georgia
Emma Jo Brooks Ballard
Sister
Cobb County, Georgia
Jill Darmer
Juror #1
Robert Burnette
Juror #2
Zz 15. Joseph or Becky White
Correspondent
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BEFORE THE
BOARD OF PARDONS AND PAROLES
STATE OF GEORGIA
APPLICATION OF WARREN McCLESKEY APPLICATION
FOR A 90-DAY STAY OF EXECUTION AND FOR NO.
COMMUTATION OF HIS SENTENCE OF DEATH
BOB REINHARDT, ESQ. ROBERT H. STROUP, ESQ.
REINHARDT, WHITLEY & WILMONT STROUP & COLEMAN
1001 NORTH CENTRAL AVENUE 141 WALTON STREET, N.W.
TIFTON, GEORGIA 31794 ATLANTA, GEORGIA 30303
(912) 382-6135 (404) 522-8500
PAUL A. CADENHEAD, ESQ. JOHN CHARLES BOGER, ESQ.
HURT, RICHARDSON, GARNER, UNIVERSITY OF NORTH CAROLINA
TODD & CADENHEAD SCHOOL OF LAW
99 PEACHTREE STREET, N.E. C. B. #3380
ATLANTA, GEORGIA 30309 CHAPEL HILL, N.C. 27599
(404) 870-6000 (919) 962-8516
BEFORE THE
BOARD OF PARDONS AND PAROLES
STATE OF GEORGIA
}
ED ED CED TED GED CHD GED GED GED GEO GED GED GED GED GED GHD GED GNP GED GED GHD GHD GHD GED GHD GND GND GNP GED GED GED GED GN GED WED X
X
xX
Application of WARREN MCCLESKEY xX
For a 90-Day Stay of Execution xX NO.
And for Commutation of His X
Sentence of Death xX
X
xX
SIGS GA [IS fn D000 at Gi te GE GO SSO SD TS X
INTRODUCTION
Warren McCleskey, by his undersigned counsel, applies to the
Georgia Board of Pardons and Paroles, pursuant to Article 1IV,
Section II, Par. II(a) and (d) of the Georgia Constitution of
1983, 0.C.G.A. 49-9-20, 42-9-42(a) and Chapters 475.2.01 (1) and
475.3.10 (2) (6) of the Rules of this Board: (i) for
consideration of his application for commutation of his sentence
of death, imposed by the Superior Court of Fulton County on
October 12, 1978; (ii) for a ninety (90) day stay of execution,
presently scheduled for the week of , to permit
consideration of his application; (iii) for a full and fair
hearing before the full Board, allowing him to present witnesses
and to be heard through his counsel; and after that review, (iv)
for the commutation of his sentence of death.
for mercy; he has been
urts; ye = is a groundsiell of
wide range of citizens. This Board is nd 10
ng forum in Which he can obtain relief. et
This petition will be divided imto three re ctions. The
first section wi discuss the rious questions th persist 3e
about the legitimacy of Warreh McCleskey's conviction. Th
second se€Ction will reveal information about” Warren's } ckground,
and the third section will examine the pén that Wa fen McCleskey
has become.
McCleskey's conviction and death sentence were a Tn
of justice
In the years following Warren McCleskey's conviction,
substantial issues have arisen which cast doubt on the propriety
of his conviction and indeed his guilt for the offense itself.
There is no doubt that on May 13, 1978, four men robbed the Dixie
Furniture Store in Atlanta and police officer Frank Schlatt was
killed. The prosecutor urged the jurors at McCleskey's trial to
impose a death sentence upon Warren McCleskey by arguing that
McCleskey fired the fatal shots. ov velnbl
However, there is very little redtable information as to
which of those four men involved in the robbery was the
triggerman. The gun which fired the fatal shot was never found;
none of the persons in the store that day saw the shooting.
Warren McCleskey has consistently denied being the triggerman,
and the only persons who identified McCleskey as the triggerman
at the time of the trial were a co-defendant, Ben Wright, Jr.,
himself a suspect in light of some of the circumstantial
evidence, and Offie Evans, a subsequently discredited informant.
Jurors involved in McCleskey's trial have indicated that,
had they known of the background of the State's key witness, the
would have not authorized the death penalty.
At the time of McCleskey's trial, a police informant, Offie
Gene Evans, whose reliability has since been found to be severely
deficient, testified before the jury. The jury was never told
that Offie Gene Evans had been promised leniency in his own
pending criminal case in exchange for his testimony, nor were
they told that Evans had been planted by the police in the cell
next to McCleskey for the express purpose of extracting a
confession.
Two jurors who subsequently learned about the use of the
informant, Offie Gene Evans, at McCleskey's trial have come
forward to indicate that they would not have voted for the death
penalty had they known that the key witness was a police
informant with motivation to lie about his testimony.
Juror Jill Darmer has stated:
« « « Our jury had a hard struggle with the
evidence in this case. We discussed the
issue of guilt or innocence for a long time.
We were able to agree without a lot of
difficulty that all four men, including
Warren McCleskey, had at least participated
in the armed robbery. But the issue of
responsibility for the shooting was
different.
. « « As I said, this was for me a very close
case. It took Evans' testimony for the State
4
to prove to me, beyond a reasonable doubt,
that McCleskey was the triggerman. Without
Evans' testimony, I definitely would not have
voted for the death sentence, and I believe
at least a few other jurors would have
agreed. . . .
Let me go further. I knew then that it
only takes on juror to hold out against the
rest. I am certain that had I known that
Offie Evans had an arrangement with an
Atlanta detective -- if I had heard Evans'
testimony in the state habeas corpus
proceedings -- I would never have voted to
impose capital punishment. (See affidavit of
Jill Darmer, attached as Exhibit )
Similarly, juror Robert F. Burnette has stated as follows:
«. « « Nobody ever told us abut that [Evans'
arrangement with Atlanta police detectives]
during the trial. It puts a very different
light on Evans' testimony. It sounds like he
was probably hoping to get off of his escape
case by testifying against McCleskey. The
jury should have known that, I think. It
changes the State's whole case. . . .
Like I said, we had a hard time deciding who
did the shooting, and a hard time deciding to
impose the death sentence. I've read the
part of the trial transcript where Evans
testified, and I've also read what Evans said
in the state hearing in Butts County. I
would definitely not have voted to sentence
McCleskey to death if I had thought he might
have been the triggerman. . .
. . . Knowing now that Evans could have lied
to cover his deal with the detective
definitely could have made a big difference
to me, and to other jurors, I think -- at
least in deciding to give the death penalty.
(See affidavit of Robert F. Burnette,
attached as Exhibit __ )
The questionable reliability of the testimony of an
informant is self-evident, particularly when the informant is
incarcerated, as in this case. Such an informant knows that he
can help himself get out of jail if he helps the police make a
case. He has a real motive to come up with a "confession" from a
cell-mate, whether it is true or not. The Supreme Court of
Mississippi has noted the dangers of:
an unholy alliance between con-artist
convicts who want to get out of their own
cases, law enforcement who are running a
training ground for snitches over at the
county jail, and the prosecutors who are
taking what appears to be the easy route,
rather than really putting their cases
together with solid evidence.
McNeal v. State, 551 So. 2d 151, 158 n.2 (Miss. 1989)
That two jurors would have voted differently had they known
the truth about Evans is truly significant. What is also
important to note, however, is that the evidence with which
McCleskey successfully could have raised his claim about the
planted informer was kept from his attorneys for years, coming to
light only recently. The courts have denied him relief, though,
because the evidence was not discovered earlier.
Moreover, Federal District Judge Owen Forrester determined
that Offie Evans' testimony was not credible:
. « «[Tlhere are numerous internal contradictions
within the deposition, and
contradictions with Evans' previous
statements, or the statements of
other witnesses.
Transcript of Federal Habeas Corpus hearing, July 8-9, 1987.
There is a further reason for this Board to exercise mercy
on Warren McCleskey, and that is that he is likely not the
triggerman in this robbery-murder. The only evidence implicating
McCleskey as the shooter came from his co-defendant Ben Wright,
6
Jr., who had cut a deal with prosecutors in exchange for his
testimony against McCleskey, and from the subsequently
discredited Offie Evans. Wright not only had a motive for
testifying falsely because of the bargain he had struck, but also
he was the likely triggerman, so it behooved him mightily to
transfer the blame to someone else. [insert information about
Wright's record and photograph?)
The robbery of the Dixie Furniture Store on the morning of
May 13, 1978, occurred because Ben Wright, Jr. needed money in
order to leave the state, as he was wanted for an armed robbery
that had occurred in the Buckhead area a few weeks earlier.
According to David Burney, one of the co-defendants, Wright,
Burney and Mary Jenkins, Wright's girlfriend, committed the
Buckhead robbery around the end of April, 1978. Witnesses
identified Wright's car as the get-away-car in the Buckhead
robbery , and Mary Jenkins was seen driving it. Ms. Jenkins was
apprehended days later driving the same vehicle. After
questioning Ms. Jenkins, the Atlanta Police Department issued an
arrest warrant for Wright.
On May 13, 1978, Wright chose the Dixie Furniture Store
as the target of the next robbery. Warren McCleskey, Ben Wright,
Jr., Bernard Dupree and David Burney participated in the robbery.
Wright told McCleskey to guard the front half of the store, while
Wright and the other two men guarded the rear. Wright pressured
everyone into pledging not to tell on each other if any of them
were ever captured (See Transcript of trial, October 9, 1978,
hereinafter T., at 748).
Atlanta Police Officer Frank Schlatt, responding to a
silent alarm call, entered the front of the store with his
revolver detached from the holster. [Circumstantial evidence
suggests that Ben Wright, Jr. entered the front section of the
store and fired two shots in the direction of Officer Schlatt.
Court testimony revealed that one bullet hit Officer Schlatt in
the chest and deflected off a cigarette lighter in Officer
Schlatt's shirt pocket. The other bullet, which was fatal,
penetrated Officer Schlatt's head through his right eye. Wright
ordered everyone to leave.] [This needs to be verified with
evidence from the record]
No one else in the store except the robbers and Officer
Schlatt witnessed the shooting; therefore, the only persons who
could testify were Ben Wright, Jr. and the other robbers.
Ballistics testing revealed that Officer Schlatt had been
shot by a .38 caliber Rossi revolver. The murder weapon was
never recovered. Nonetheless, trial testimony from expert
witnesses indicated that such a revolver had been stolen in the
robbery of a Red Dot grocery store in Southeast Atlanta two
months earlier.
Through Mary Jenkins, who was definitely involved in, though
never prosecuted for, the earlier Buckhead robbery, and who was
likely an accomplice to the Dixie Furniture Store robbery, the
police learned the names of Warren McCleskey, Bernard Dupree and
David Burney. The police also discovered that Wright had fled
Georgia. He was eventually located in Pine Bluff, Arkansas,
where he had been arrested for a string of robberies and assaults
[Is this true? Do we have verification?)
Warren McCleskey was arrested in Cobb County in the early
morning hours while asleep at his sister's home on May 31, 1978.
David Burney was arrested on the same day at his girlfriend's
apartment in Atlanta's Techwood Homes. Bernard Dupree gave
himself up to police at his lawyer's office after learning he was
being sought in connection with the robbery and murder.
After his arrest in Pine Bluff, Arkansas, Ben Wright was
surprised and angered by the fact that Arkansas authorities knew
he had been involved in the killing of a police officer. Wright
assumed that the three co-defendants had told on him (T. 745).
McCleskey and Burney both confessed to robbing Dixie
Furniture, but denied killing Officer Schlatt. True to their
pledge not to finger an accomplice, neither man identified Wright
as the "triggerman." Wright, however, in vengeance against the
perceived "turncoats," told police that McCleskey was the
triggerman.
Wright testified at trial that McCleskey had fired the
fatal shots; however, witnesses present at the Dixie Furniture
Store the day of the robbery clearly stated that the shooting did
not occur until after Ben Wright, Jr. went to the front of the
store.
Ben Wright testified also that McCleskey had a .38 caliber
Rossi nickel-plated revolver---the purported murder weapon, which
was never recovered. However, Mary Jenkins told police and later
testified that Wright was seen with the .38 Rossi weeks prior to
the policeman's killing.
In an effort to bolster its case against McCleskey, and
being perhaps leery of relying exclusively on Wright's obviously
interested testimony, police investigators placed a professional
informant named Offie Evans, who used a false name and claimed to
be Ben Wright, Jr.'s uncle when he introduced himself to
McCleskey, in the cellblock next to McCleskey, Burney and Dupree.
Evans was in the Fulton County Jail on a federal warrant awaiting
a probation revocation hearing on charges that he escaped from a
federal halfway house. Evans testitied at trial that McCleskey
admitted shooting Officer Schlatt. To this day, McCleskey denies
having made such a statement to Offie Evans.
Of McCleskey and his co-defendants, only McCleskey received
the death penalty, as well as two consecutive life sentences.
Ben Wright, Jr., who from his testimony at McCleskey's trial was
quite apparently the ring-leader of the group, received a single
20-year sentence, and has already been released and re-sentenced
for still more robberies he committed. Wright was released from
prison in 1987, and subsequently was convicted of armed robbery,
kidnapping, aggravated assault and a drug charge for which he
received life plus twenty years. The District Attorney who
handled some of those cases stated, "Subsequent investigation and
10
statements made by all parties showed that Mr. Ben Wright was the
instigator and the planner of those robberies." [insert evidence
about Wright's record]
The other two co-defendants, Bernard Dupree and David
Burney, each received single life sentences. Mary Jenkins, who
was never tried for the Buckhead robbery, apparently was offered
a reward for helping secure convictions against McCleskey, Dupree
and Burney.
The State's and Local Community's Position about McCleskey's
Death Sentence.
The State was willing to enter into plea negotiations with
McCleskey's counsel, John Turner, which would have resulted in a
life sentence. Thus the State evidently thought a life sentence
was appropriate for McCleskey, and the only thing that could have
changed the State's position was the fact that McCleskey
exercised his right to go to trial.
Noted community leaders have expressed their opinion that
the death sentence in this case should be commuted to a life
sentence. Among those persons who have expressed these views are
the following:
[Insert quotes and/or attached letters]
Moreover, Fulton County is not a jurisdiction in which
juries have imposed the death penalty for similar crimes. Since
11
1973, sixteen police officers have been shot and killed in the
line of duty, and only in McCleskey's case has a death penalty
been imposed. Similarly, in Fulton County, juries have voted to
impose a death sentence only once since 1984. Plainly, this is
'
not a case where the death penalty should be imposed.
WARREN MCCLESKEY'S BACKGROUND
Warren McCleskey is not someone who was given huge
advantages at the start of his life and wasted them away.
Rather, he started out with substantial disadvantages, and has
overcome those difficulties to make his life a positive
contribution to those around him.
McCleskey was born at home on March 17, 1945 in an
impoverished section of Marietta, Georgia known as "Skid-row,"
the second of Willie Mae McCleskey Brooks' seven children. His
father disappeared before he was born, and Warren's mother was
essentially homeless during the first few years of his life.
Warren's mother subsisted by manufacturing and selling
"moonshine." The neighborhood in which he grew up featured a
number of illegal gambling houses where residents supplemented
their income with the sale of bootleg liquor to those who came to
gamble. When he was two years old, Warren was taken in by his
aunt, Lois McMurtry, in whose home he lived for several years.
His other two siblings were farmed out to other relatives.
In the meantime, Warren's mother met and married John Oscar
"Boolum" Brooks, by whom she would have four more children. When
he was eight years old, Warren rejoined his mother and step-
12
father. He came back to a house where gambling occurred nearly
seven days a week. He and his younger sister, Betty, served
liquor to those present for gambling, and the children often
found themselves pouring liquor out the back room windows while
their mother distracted unexpected police visitors in the front
of the house.
Life in the family home was not a happy experience. His
stepfather and mother fought constantly. It seemed that nearly
every weekend for stretches at a time the police would be called
to their house. Warren's stepfather, an extremely jealous man,
would accuse Warren's mother of wrong-doings and threaten to kill
her or physically assault her, even while she was pregnant.
Brooks was especially hard on the children who were not his own,
Warren, his sister Betty and his older brother James (Gene).
Brooks beat the children mercilessly, sometimes chasing them
around the house with knives or other weapons.
The years of this violence ended as Warren was finishing
high school. One weekend, threatened by her husband, Warren's
mother shot and killed him. She was not prosecuted, as Cobb
County authorities ruled that she had shot him in self-defense.
It was at the close of high school that Warren tried to
break away from this disadvantaged beginning and make a life for
himself. He married his high school sweetheart, Gwendolyn
Carmichael, while still in his junior year, and the two of them
went to live with Gwendolyn's aunt, Mrs. Cordia Clement. A
daughter, Carla, was born in 1963; McCleskey graduated from high
13
school in 1964, and found employment with Lockheed Georgia
Company. [attach photos]
For a number of years, from 1963 until about 1968, Warren
lived with his wife Gwendolyn and daughter Carla in his wife's
aunt's house in Marietta. These were the best years of Warren's
life, at least until that point. Although his job with Lockheed
was a manual labor job, his young family managed economically
because he was not paying rent to live with Mrs. Clement. They
were happy together. Warren was a devoted husband and father.
He remains today a devoted father and grandfather. [attach
photos]
In an effort to establish greater independence, Warren and
his wife moved, in 1968, to Peyton Heights Apartments in Atlanta.
It was after that move that Warren's marriage, and his life,
began to unravel. Gwendolyn expressed her desire to end the
marriage, which was devastating news to Warren. Warren was
desperate to save the marriage. He believed that if he bought
Gwendolyn nice clothes and lavished her with expensive gifts, she
would come back and stay with him. Thus, he began to commit
robberies to collect money.
[Add mental health stuff from Brad Fisher re: Warren's
background and state of mind at time of offense]
After involving himself in a handful of robberies, Warren
was arrested, convicted in Douglas County and pled guilty to
other robberies in Cobb, Dekalb, Fulton and Polk counties in
1970.
14
Warren was released from prison in 1977. By the time of his
release, he had been divorced from his wife and had no place to
go. From a halfway house on Ponce de Leon Avenue in Atlanta, he
found work as a waiter at Oliver's in Ansley Square. Then, he
was successful in getting a job at Dover Elevator, where he
worked as a construction worker installing the elevators in the
Richard B. Russell Federal Building in downtown Atlanta.
It appeared that his struggle for self-sufficiency was about
to be achieved until he encountered Ben Wright, Jr.
WARREN MCCLESKEY TODAY
Although Warren McCleskey grew up in a family and
neighborhood with very few positive male role models, he has made
his life a positive one, despite this extremely disadvantaged
beginning. He has become a positive influence on death row. He
is viewed, both by prison staff as well as other inmates, as a
"peacemaker". He has striven to improve himself and to make a
contribution to those around him, despite the loneliness and
isolation of life on Death Row, where inmates are not permitted
to participate in work or self-improvement programs, and are not
thought to be capable of rehabilitation.
Excerpts from Warren's counselor's notes through the years
are telling:
March, 1988: He has continued to maintain a
good attitude, continues regular
participation in Chaplain Bible study
program. It also appears that he has become
a "peace maker" in the cell block according
to different sources.
15
March, 1989: Client made no request this
reporting period. he has been active in Rec.
(recreation) activities. He continues to be
a positive influence in the cell-block.
His counselor's notes also repeatedly reflect his good
relationship with the prison staff. The following entry is
representative:
October 1989: . . . He continues to
cooperate well with staff and has good
relationship with peers. Subject active in
religious studies and yard.
WARREN MCCLESKEY'S FAITH
Further evidence that Warren McCleskey is deserving of
commutation of his sentence is reflected in the strong role which
religious belief plays in his life. This is not an eve-of-
execution conversion. His counselor notes from prison indicate
that, since 1981, he has participated on a regular basis in Bible
study and Chaplain's services.
Moreover, while in prison he has completed the following
Bible study courses:
- Georgia Baptist Convention, Education Extension
Program, Special Certificate;
- Georgia Baptist State Missions, Education Extension
Program, "Isaiah;"
- Georgia Baptist State Missions, Education, "Hosea"
- United Christian International Bible Institute,
Cleveland, Tennessee, "General Bible Knowledge I;"
- United Christian International Bible Institute,
Cleveland, Tennessee, "General Bible Knowledge II;"
- Source of Light Schools, Bible Correspondence Course
Certificate
16
Warren McCleskey is truly remorseful about the injury
his participation in the Dixie Furniture Store robbery has caused
the victim's family. As McCleskey has written:
There's not a day that goes by that I don't
think about the victim's family and reflect
on the hurt and pain they've endured. There
have been a few times when I took the
initiative to make contact with the victim's
family to express my remorse. But each time
I was unsuccessful. I pray for the family
each day, asking God to bless them with their
needs and to fill their hearts with love and
forgiveness.
Yet another reason Warren McCleskey is deserving of clemency
is that he has been the victim of great injustice in the courts.
On his first visit to the United States Supreme Court, McCleskey
presented evidence from a detailed statistical study that racial
discrimination affected his case and all others in which the
death penalty is sought. The Court decided that it did not
matter that the death penalty is imposed in a racist manner, and
denied relief in a 5-4 decision. McCleskey appealed again, after
discovering that Offie Evans had been planted by the police to
listen to McCleskey's conversations in jail. This time the
Supreme Court turned McCleskey away, by a vote of 6-3, because
McCleskey had not raised the issue earlier. The reason McCleskey
had not been able to raise the issue earlier is because the
police had purposely hidden the information from defense counsel.
As one noted columnist opined recently, noting the closeness of
the votes in those two Supreme Court cases: "Enough doubts remain
so that in decency he should surely not be executed." The New
17
p.A15, cols.
York Times, Anthony Lewis, "The Court We Elected," June 28, 1991,
CONCLUSION
L]
“ =X
« « ~
FILED THIS
IX)
« x =X)
, 1991.
J
J
BOB REINHARDT
COUNSEL
PAUL A. CADENHEAD
COUNSEL
ROBERT H. STROUP
CO-COUNSEL
JOHN CHARLES BOGER
CO~-COUNSEL
18
BEFORE THE
BOARD OF PARDONS AND PAROLES
STATE OF GEORGIA
APPLICATION OF WARREN McCLESKEY APPLICATION
FOR A 90-DAY STAY OF EXECUTION AND FOR NO.
COMMUTATION OF HIS SENTENCE OF DEATH
BOB REINHARDT, ESQ. ROBERT H. STROUP, ESQ.
REINHARDT, WHITLEY & WILMONT STROUP & COLEMAN
1001 NORTH CENTRAL AVENUE 141 WALTON STREET, N.W.
TIFTON, GEORGIA 31794 ATLANTA, GEORGIA 30303
(912) 382-6135 (404) 522-8500
PAUL A. CADENHEAD, ESQ. JOHN CHARLES BOGER, ESQ.
HURT, RICHARDSON, GARNER, UNIVERSITY OF NORTH CAROLINA
TODD & CADENHEAD SCHOOL OF LAW
99 PEACHTREE STREET, N.E. C. B. #3380
ATLANTA, GEORGIA 30309 CHAPEL HILL, N.C. 27599
(404) 870-6020 (919) 962-8516
BEFORE THE
BOARD OF PARDONS AND PAROLES
STATE OF GEORGIA
FD A AT TT SID TS SM DT RO men sR St SD SS fn nae at X
X
X
Application of WARREN MCCLESKEY X
For a 90-Day Stay of Execution X NO.
And for Commutation of His X
Sentence of Death X
X
X
SSS EL LT {SI {ISS 0 LST TUT. ST SS 5 STD b 4
INTRODUCTION
Warren McCleskey, by his undersigned counsel, applies to the
Georgia Board of Pardons and Paroles, pursuant to Article IV,
Section II, Par. II(a) and (d) of the Georgia Constitution of
1983, O0.C.G.A. 49-9-20, 42-9-42(a) and Chapters 475.2.01 (1) and
475.3.10 (2) (6) of the Rules of this Board: (i) for
consideration of his application for commutation of his sentence
of death, imposed by the Superior Court of Fulton County on
October 12, 1978; (ii) for a ninety (90) day stay of execution,
presently scheduled for the week of , to permit
consideration of his application; (iii) for a full and fair
hearing before the full Board, allowing him to present witnesses
and to be heard through his counsel; and after that review, (iv)
for the commutation of his sentence of death.
Warren McCleskey's case cries out for mercy; he has been
denied justice in the courts, yet there is a groundswell of
support for him from a wide range of citizens. This Board is the
last remaining forum in which he can obtain relief.
This petition will be divided into three main sections. The
first section will discuss the serious questions that persist
about the legitimacy of Warren McCleskey's conviction. The
second section will reveal information about Warren's background,
and the third section will examine the man that Warren McCleskey
has become.
McCleskey's conviction and death sentence were a miscarriage
of justice
In the years following Warren McCleskey's conviction,
substantial issues have arisen which cast doubt on the propriety
of his conviction and indeed his guilt for the offense itself.
There is no doubt that on May 13, 1978, four men robbed the Dixie
Furniture Store in Atlanta and police officer Frank Schlatt was
killed. The prosecutor urged the jurors at McCleskey's trial to
impose a death sentence upon Warren McCleskey by arguing that
McCleskey fired the fatal shots.
However, there is very little reliable information as to
which of those four men involved in the robbery was the
triggerman. The gun which fired the fatal shot was never found;
none of the persons in the store that day saw the shooting.
Warren McCleskey has consistently denied being the triggerman,
and the only persons who identified McCleskey as the triggerman
at the time of the trial were a co-defendant, Ben Wright, Jr.,
himself a suspect in light of some of the circumstantial
evidence, and Offie Evans, a subsequently discredited informant.
Jurors involved in McCleskey's trial have indicated that,
had they known of the background of the State's kev witness, they
would have not authorized the death penalty.
At the time of McCleskey's trial, a police informant, Offie
Gene Evans, whose reliability has since been found to be severely
deficient, testified before the jury. The jury was never told
that Offie Gene Evans had been promised leniency in his own
pending criminal case in exchange for his testimony, nor were
they told that Evans had been planted by the police in the cell
next to McCleskey for the express purpose of extracting a
confession.
Two jurors who subsequently learned about the use of the
informant, Offie Gene Evans, at McCleskey's trial have come
forward to indicate that they would not have voted for the death
penalty had they known that the key witness was a police
informant with motivation to lie about his testimony.
Juror Jill Darmer has stated:
« « « Our jury had a hard struggle with the
evidence in this case. We discussed the
issue of guilt or innocence for a long time.
We were able to agree without a lot of
difficulty that all four men, including
Warren McCleskey, had at least participated
in the armed robbery. But the issue of
responsibility for the shooting was
different.
. « « As I said, this was for me a very close
case. It took Evans' testimony for the State
hy
to prove to me, beyond a reasonable doubt,
that McCleskey was the triggerman. Without
Evans' testimony, I definitely would not have
voted for the death sentence, and I believe
at least a few other jurors would have
agreed. . . .
Let me go further. I knew then that it
only takes on juror to hold out against the
rest. I am certain that had I known that
Offie Evans had an arrangement with an
Atlanta detective -- if I had heard Evans'
testimony in the state habeas corpus
proceedings -- I would never have voted to
impose capital punishment. (See affidavit of
Jill Darmer, attached as Exhibit __ )
Similarly, juror Robert F. Burnette has stated as follows:
+ « « Nobody ever told us abut that [Evans'
arrangement with Atlanta police detectives]
during the trial. It puts a very different
light on Evans' testimony. It sounds like he
was probably hoping to get off of his escape
case by testifying against McCleskey. The
jury should have known that, I think. It
changes the State's whole case. . . .
Like I said, we had a hard time deciding who
did the shooting, and a hard time deciding to
impose the death sentence. I've read the
part of the trial transcript where Evans
testified, and I've also read what Evans said
in the state hearing in Butts County. I
would definitely not have voted to sentence
McCleskey to death if I had thought he might
have been the triggerman. .
. . . Knowing now that Evans could have lied
to cover his deal with the detective
definitely could have made a big difference
to me, and to other jurors, I think -- at
least in deciding to give the death penalty.
(See affidavit of Robert F. Burnette,
attached as Exhibit __ )
The questionable reliability of the testimony of an
informant is self-evident, particularly when the informant is
incarcerated, as in this case. Such an informant knows that he
can help himself get out of jail if he helps the police make a
case. He has a real motive to come up with a "confession" from a
cell-mate, whether it is true or not. The Supreme Court of
Mississippi has noted the dangers of:
[]
an unholy alliance between con-artist
convicts who want to get out of their own
cases, law enforcement who are running a
training ground for snitches over at the
county jail, and the prosecutors who are
taking what appears to be the easy route,
rather than really putting their cases
together with solid evidence.
McNeal v. State, 551 So. 24 151, 153 n.2 (Miss. 1989)
That two jurors would have voted differently had they known
the truth about Evans is truly significant. What is also
important to note, however, is that the evidence with which
McCleskey successfully could have raised his claim about the
planted informer was kept from his attorneys for years, coming to
light only recently. The courts have denied him relief, though,
because the evidence was not discovered earlier.
Moreover, Federal District Judge Owen Forrester determined
that Offie Evans' testimony was not credible:
. « [Tlhere are numerous internal contradictions
within the deposition, and
contradictions with Evans' previous
statements, or the statements of
other witnesses.
Transcript of Federal Habeas Corpus hearing, July 8-9, 1987.
There is a further reason for this Board to exercise mercy
on Warren McCleskey, and that is that he is likely not the
triggerman in this robbery-murder. The only evidence implicating
McCleskey as the shooter came from his co-defendant Ben Wright,
6
Jr., who had cut a deal with prosecutors in exchange for his
testimony against McCleskey, and from the subsequently
discredited Offie Evans. Wright not only had a motive for
testifying falsely because of the bargain he had struck, but also
he was the likely triggerman, so it behooved him mightily to
transfer the blame to someone else. [insert information about
Wright's record and photograph?]
The robbery of the Dixie Furniture Store on the morning of
May 13, 1978, occurred because Ben Wright, Jr. needed money in
order to leave the state, as he was wanted for an armed robbery
that had occurred in the Buckhead area a few weeks earlier.
According to David Burney, one of the co-defendants, Wright,
Burney and Mary Jenkins, Wright's girlfriend, committed the
Buckhead robbery around the end of April, 1978. Witnesses
identified Wright's car as the get-away-car in the Buckhead
robbery , and Mary Jenkins was seen driving it. Ms. Jenkins was
apprehended days later driving the same vehicle. After
questioning Ms. Jenkins, the Atlanta Police Department issued an
arrest warrant for Wright.
On May 13, 1978, Wright chose the Dixie Furniture Store
as the target of the next robbery. Warren McCleskey, Ben Wright,
Jr., Bernard Dupree and David Burney participated in the robbery.
Wright told McCleskey to guard the front half of the store, while
Wright and the other two men guarded the rear. Wright pressured
everyone into pledging not to tell on each other if any of them
were ever captured (See Transcript of trial, October 9, 1978,
hereinafter T., at 748).
Atlanta Police Officer Frank Schlatt, responding to a
silent alarm call, entered the front of the store with his
revolver detached from the holster. [Circumstantial evidence
suggests that Ben Wright, Jr. entered the front section of the
store and fired two shots in the direction of Officer Schlatt.
Court testimony revealed that one bullet hit Officer Schlatt in
the chest and deflected off a cigarette lighter in Officer
Schlatt's shirt pocket. The other bullet, which was fatal,
penetrated Officer Schlatt's head through his right eye. Wright
ordered everyone to leave.] [This needs to be verified with
evidence from the record]
No one else in the store except the robbers and Officer
Schlatt witnessed the shooting; therefore, the only persons who
could testify were Ben Wright, Jr. and the other robbers.
Ballistics testing revealed that Officer Schlatt had been
shot by a .38 caliber Rossi revolver. The murder weapon was
never recovered. Nonetheless, trial testimony from expert
witnesses indicated that such a revolver had been stolen in the
robbery of a Red Dot grocery store in Southeast Atlanta two
months earlier.
Through Mary Jenkins, who was definitely involved in, though
never prosecuted for, the earlier Buckhead robbery, and who was
likely an accomplice to the Dixie Furniture Store robbery, the
police learned the names of Warren McCleskey, Bernard Dupree and
David Burney. The police also discovered that Wright had fled
Georgia. He was eventually located in Pine Bluff, Arkansas,
where he had been arrested for a string of robberies and assaults
[Is this true? Do we have verification?]
Warren McCleskey was arrested in Cobb County in the early
morning hours while asleep at his sister's home on May 31, 1978.
David Burney was arrested on the same day at his girlfriend's
apartment in Atlanta's Techwood Homes. Bernard Dupree gave
himself up to police at his lawyer's office after learning he was
being sought in connection with the robbery and murder.
After his arrest in Pine Bluff, Arkansas, Ben Wright was
surprised and angered by the fact that Arkansas authorities knew
he had been involved in the killing of a police officer. Wright
assumed that the three co-defendants had told on him (T. 745).
McCleskey and Burney both confessed to robbing Dixie
Furniture, but denied killing Officer Schlatt. True to their
pledge not to finger an accomplice, neither man identified Wright
as the "triggerman." Wright, however, in vengeance against the
perceived "turncoats," told police that McCleskey was the
triggerman.
Wright testified at trial that McCleskey had fired the
fatal shots; however, witnesses present at the Dixie Furniture
Store the day of the robbery clearly stated that the shooting did
not occur until after Ben Wright, Jr. went to the front of the
store.
Ben Wright testified also that McCleskey had a .38 caliber
Rossi nickel-plated revolver---the purported murder weapon, which
was never recovered. However, Mary Jenkins told police and later
testified that Wright was seen with the .38 Rossi weeks prior to
the policeman's killing.
In an effort to bolster its case against McCleskey, and
being perhaps leery of relying exclusively on Wright's obviously
interested testimony, police investigators placed a professional
informant named Offie Evans, who used a false name and claimed to
be Ben Wright, Jr.'s uncle when he introduced himself to
McCleskey, in the cellblock next to McCleskey, Burney and Dupree.
Evans was in the Fulton County Jail on a federal warrant awaiting
a probation revocation hearing on charges that he escaped from a
federal halfway house. Evans testified at trial that McCleskey
admitted shooting Officer Schlatt. To this day, McCleskey denies
having made such a statement to Offie Evans.
Of McCleskey and his co-defendants, only McCleskey received
the death penalty, as well as two consecutive life sentences.
Ben Wright, Jr., who from his testimony at McCleskey's trial was
quite apparently the ring-leader of the group, received a single
20-year sentence, and has already been released and re-sentenced
for still more robberies he committed. Wright was released from
prison in 1987, and subsequently was convicted of armed robbery,
kidnapping, aggravated assault and a drug charge for which he
received life plus twenty years. The District Attorney who
handled some of those cases stated, "Subsequent investigation and
10
statements made by all parties showed that Mr. Ben Wright was the
instigator and the planner of those robberies." [insert evidence
about Wright's record]
The other two co-defendants, Bernard Dupree and David
Burney, each received single life sentences. Mary Jenkins, who
was never tried for the Buckhead robbery, apparently was offered
a reward for helping secure convictions against McCleskey, Dupree
and Burney.
The State's and Local Community's Position about McCleskevy's
Death Sentence.
The State was willing to enter into plea negotiations with
McCleskey's counsel, John Turner, which would have resulted in a
life sentence. Thus the State evidently thought a life sentence
was appropriate for McCleskey, and the only thing that could have
changed the State's position was the fact that McCleskey
exercised his right to go to trial.
Noted community leaders have expressed their opinion that
the death sentence in this case should be commuted to a life
sentence. Among those persons who have expressed these views are
the following:
[Insert quotes and/or attached letters]
Moreover, Fulton County is not a jurisdiction in which
juries have imposed the death penalty for similar crimes. Since
a1
1973, sixteen police officers have been shot and killed in the
line of duty, and only in McCleskey's case has a death penalty
been imposed. Similarly, in Fulton County, juries have voted to
impose a death sentence only once since 1984. Plainly, this is
not a case where the death penalty should be imposed.
WARREN MCCLESKEY'S BACKGROUND
Warren McCleskey is not someone who was given huge
advantages at the start of his life and wasted them away.
Rather, he started out with substantial disadvantages, and has
overcome those difficulties to make his life a positive
contribution to those around him.
McCleskey was born at home on March 17, 1945 in an
impoverished section of Marietta, Georgia known as "Skid-row,"
the second of Willie Mae McCleskey Brooks' seven children. His
father disappeared before he was born, and Warren's mother was
essentially homeless during the first few years of his life.
Warren's mother subsisted by manufacturing and selling
"moonshine." The neighborhood in which he grew up featured a
number of illegal gambling houses where residents supplemented
their income with the sale of bootleg liquor to those who came to
gamble. When he was two years old, Warren was taken in by his
aunt, Lois McMurtry, in whose home he lived for several years.
His other two siblings were farmed out to other relatives.
In the meantime, Warren's mother met and married John Oscar
"Boolum" Brooks, by whom she would have four more children. When
he was eight years old, Warren rejoined his mother and step-
12
father. He came back to a house where gambling occurred nearly
seven days a week. He and his younger sister, Betty, served
liquor to those present for gambling, and the children often
found themselves pouring liquor out the back room windows while
their mother distracted unexpected police visitors in the front
of the house.
Life in the family home was not a happy experience. His
stepfather and mother fought constantly. It seemed that nearly
every weekend for stretches at a time the police would be called
to their house. Warren's stepfather, an extremely jealous man,
would accuse Warren's mother of wrong-doings and threaten to kill
her or physically assault her, even while she was pregnant.
Brooks was especially hard on the children who were not his own,
Warren, his sister Betty and his older brother James (Gene).
Brooks beat the children mercilessly, sometimes chasing them
around the house with knives or other weapons.
The years of this violence ended as Warren was finishing
high school. One weekend, threatened by her husband, Warren's
mother shot and killed him. She was not prosecuted, as Cobb
County authorities ruled that she had shot him in self-defense.
It was at the close of high school that Warren tried to
break away from this disadvantaged beginning and make a life for
himself. He married his high school sweetheart, Gwendolyn
Carmichael, while still in his junior year, and the two of them
went to live with Gwendolyn's aunt, Mrs. Cordia Clement. A
daughter, Carla, was born in 1963; McCleskey graduated from high
13
school in 1964, and found employment with Lockheed Georgia
Company. [attach photos]
For a number of years, from 1963 until about 1968, Warren
lived with his wife Gwendolyn and daughter Carla in his wife's
aunt's house in Marietta. These were the best years of Warren's
life, at least until that point. Although his job with Lockheed
was a manual labor job, his young family managed economically
because he was not paying rent to live with Mrs. Clement. They
were happy together. Warren was a devoted husband and father.
He remains today a devoted father and grandfather. [attach
photos]
In an effort to establish greater independence, Warren and
his wife moved, in 1968, to Peyton Heights Apartments in Atlanta.
It was after that move that Warren's marriage, and his life,
began to unravel. Gwendolyn expressed her desire to end the
marriage, which was devastating news to Warren. Warren was
desperate to save the marriage. He believed that if he bought
Gwendolyn nice clothes and lavished her with expensive gifts, she
would come back and stay with him. Thus, he began to commit
robberies to collect money.
[Add mental health stuff from Brad Fisher re: Warren's
background and state of mind at time of offense]
After involving himself in a handful of robberies, Warren
was arrested, convicted in Douglas County and pled guilty to
other robberies in Cobb, Dekalb, Fulton and Polk counties in
1970.
14
Warren was released from prison in 1977. By the time of his
release, he had been divorced from his wife and had no place to
go. From a halfway house on Ponce de Leon Avenue in Atlanta, he
found work as a waiter at Oliver's in Ansley Square. Then, he
was successful in getting a job at Dover Elevator, where he
worked as a construction worker installing the elevators in the
Richard B. Russell Federal Building in downtown Atlanta.
It appeared that his struggle for self-sufficiency was about
to be achieved until he encountered Ben Wright, Jr.
WARREN MCCLESKEY TODAY
Although Warren McCleskey grew up in a family and
neighborhood with very few positive male role models, he has made
his life a positive one, despite this extremely disadvantaged
beginning. He has become a positive influence on death row. He
is viewed, both by prison staff as well as other inmates, as a
"peacemaker". He has striven to improve himself and to make a
contribution to those around him, despite the loneliness and
isolation of life on Death Row, where inmates are not permitted
to participate in work or self-improvement programs, and are not
thought to be capable of rehabilitation.
Excerpts from Warren's counselor's notes through the years
are telling:
March, 1988: He has continued to maintain a
good attitude, continues regular
participation in Chaplain Bible study
program. It also appears that he has become
a "peace maker" in the cell block according
to different sources.
15
March, 1989: Client made no request this
reporting period. he has been active in Rec.
(recreation) activities. He continues to be
a positive influence in the cell-block.
His counselor's notes also repeatedly reflect his good
relationship with the prison staff. The following entry is
representative:
October 1989: . . . He continues to
cooperate well with staff and has good
relationship with peers. Subject active in
religious studies and yard.
WARREN MCCLESKEY'S FAITH
Further evidence that Warren McCleskey is deserving of
commutation of his sentence is reflected in the strong role which
religious belief plays in his life. This is not an eve-of-
execution conversion. His counselor notes from prison indicate
that, since 1981, he has participated on a regular basis in Bible
study and Chaplain's services.
Moreover, while in prison he has completed the following
Bible study courses:
- Georgia Baptist Convention, Education Extension
Program, Special Certificate;
- Georgia Baptist State Missions, Education Extension
Program, "Isaiah;"
- Georgia Baptist State Missions, Education, "Hosea"
- United Christian International Bible Institute,
Cleveland, Tennessee, "General Bible Knowledge I;"
- United Christian International Bible Institute,
Cleveland, Tennessee, "General Bible Knowledge II;"
- Source of Light Schools, Bible Correspondence Course
Certificate
16
Warren McCleskey is truly remorseful about the injury
his participation in the Dixie Furniture Store robbery has caused
the victim's family. As McCleskey has written:
There's not a day that goes by that I don't
think about the victim's family and reflect
on the hurt and pain they've endured. There
have been a few times when I took the
initiative to make contact with the victim's
family to express my remorse. But each time
I was unsuccessful. I pray for the family
each day, asking God to bless them with their
needs and to fill their hearts with love and
forgiveness.
Yet another reason Warren McCleskey is deserving of clemency
is that he has been the victim of great injustice in the courts.
On his first visit to the United States Supreme Court, McCleskey
presented evidence from a detailed statistical study that racial
discrimination affected his case and all others in which the
death penalty is sought. The Court decided that it did not
matter that the death penalty is imposed in a racist manner, and
denied relief in a 5-4 decision. McCleskey appealed again, after
discovering that Offie Evans had been planted by the police to
listen to McCleskey's conversations in jail. This time the
Supreme Court turned McCleskey away, by a vote of 6-3, because
McCleskey had not raised the issue earlier. The reason McCleskey
had not been able to raise the issue earlier is because the
police had purposely hidden the information from defense counsel.
As one noted columnist opined recently, noting the closeness of
the votes in those two Supreme Court cases: "Enough doubts remain
so that in decency he should surely not be executed." The New
17;
York Times, Anthony Lewis, "The Court We Elected," June 28, 1991,
P-Al5, cols. 5-6.
J
AV
FILED THIS
CONCLUSION
i
? ? ? ? 7 ?
DAY OF v. 1991,
AV
(AV
)
BOB REINHARDT
COUNSEL
PAUL A. CADENHEAD
COUNSEL
ROBERT H. STROUP
CO-COUNSEL
JOHN CHARLES BOGER
CO-COUNSEL
18
Supnude J
BEFORE THE
BOARD OF PARDONS AND PAROLES
STATE OF GEORGIA
APPLICATION OF WARREN McCLESKEY APPLICATION
FOR A 90-DAY STAY OF EXECUTION AND FOR NO.
COMMUTATION OF HIS SENTENCE OF DEATH
BOB REINHARDT, ESQUIRE
REINHARDT, WHITLEY & WILMONT, PC
1001 NORTH CENTRAL AVENUE
TIFTON, GEORGIA 31794
TELEPHONE: (912) 382-6135
FAX NUMBER: (912) 386-5949
COUNSEL FOR
WARREN McCLESKEY
ROBERT H. "BOB" STROUP, ESQUIRE
STROUP & COLEMAN, P.C.
141 WALTON STREET, N.W.
ATLANTA, GEORGIA 30303
TELEPHONE: (404) 522-8500
FAX NUMBER: (404) 658-1567
JOHN CHARLES "JACK" BOGER, ESQUIRE
PROFESSOR
UNIVERSITY OF NORTH CAROLINA
SCHOOL OF LAW
C. B. #3380
CHAPEL HILL, NORTH CAROLINA 27599
TELEPHONE: (919) 962-8516
FAX NUMBER: (2919) 962-1277
CO-COUNSEL FOR
WARREN McCLESKEY
BEFORE THE
BOARD OF PARDONS AND PAROLES
STATE OF GEORGIA
GED GE GES GES GES GE GE GEE GED WE GED GHD WED GED GED GED GED GE ——— ——— —— —— — ———— X
X
X
Application of WARREN MCCLESKEY xX
For a 90-Day Stay of Execution X NO.
And for Commutation of His X
Sentence of Death xX
xX
X
GE GES GES GED GES GED GED EES GED GHD GED GED GED EE GED GED ED GED GED GE GED GE GE GE GE GE —— — — — — — — 32
INTRODUCTION
Warren McCleskey, by his undersigned counsel, applies to the
Georgia Board of Pardons and Paroles, pursuant to Article IV,
Section II, Par. II(a) and (d) of the Georgia Constitution of
1983, 0.C.G.A. 49-9-20, 42-9-42(a) and Chapters 475.2.01 (1) and
475.3.10 (2) (6) of the Rules of this Board: (1) for
consideration of his application for commutation of his sentence
of death, imposed by the Superior Court of Fulton County on
October 12, 1978; (ii) for a ninety (90) day stay of execution,
presently scheduled for the week of , to permit
consideration of his application; (iii) for a full and fair
hearing before the full Board, allowing him to present witnesses
and to be hard through his counsel; and after that review, (iv)
for the commutation of his sentence of death.
2
SUMMARY OF FACTS
On the morning of May 13, 1978, Warren McCleskey, Ben
Wright, Jr., Bernard Depree and David Burney robbed the Dixie
Furniture Store on Marietta Street in Atlanta, Georgia. They
committed the robbery in order to get money for Ben Wright, Jr.
who wanted to leave the State of Georgia to avoid being arrested
for an armed robbery which occurred in Buckhead a few weeks
earlier.
Wright, Burney and Mary Jenkins (Wright's girlfriend) pulled
a robbery in Buckhead around the end of April, 1978, according to
Burney. Ben Wright, Jr.'s car was recognized in the Buckhead
robbery as the get-away-car, and Mary Jenkins was seen driving
it. Ms. Jenkins was apprehended days later driving in the same
vehicle. While being questioned by police, Ms. Jenkins fingered
Wright in an attempt to protect herself from being prosecuted.
The Atlanta Police Department issued an arrest warrant for Ben
Wright, Jr.
On the 13th of May, Wright, McCleskey, Burney and Depree
drove to a jewelry store in Marietta. Ben Wright, Jr. went
inside the store to check it out. Wright decided not to rob it
because it appeared unsuitable. The four men then rode around
Marietta looking for another place to rob but couldn't find
anything fitting. Wright decided that Atlanta provided better
opportunities for an armed robbery; therefore, they drove to
Atlanta. Wright, assuming the role of leader, decided to rob
Dixie Furniture Store. Each of the four men was armed.
After "casing" the Dixie Furniture Store, Wright concluded
that it was a good target. Wright told each man what to do.
McCleskey was advised to guard the front half of the store, while
Wright and the other two men guarded the rear. Wright pressured
everyone into pledging not to tell on each other if any of them
were ever captured.
Atlanta Police Officer Frank Schlatt, responding to a
silent alarm call, entered the front of the store with his
revolver detached from the holster. Circumstantial evidence
suggests that Ben Wright, Jr. entered the front section of the
store and fired two shots in the direction of Officer Schlatt.
Court testimony revealed that one bullet hit Officer Schlatt in
the chest and deflected off a cigarette lighter in Officer
Schlatt's shirt pocket. The other bullet, which was fatal,
penetrated Officer Schlatt's head through his right eye. Wright
ordered everyone to leave.
No one else in the store except the robbers and Officer
Schlatt witnessed the shooting; therefore, the only persons who
could testify were Ben Wright, Jr. and the other robbers.
Wright, after likely having killed Atlanta Police Officer
Frank Schlatt, left Georgia and went to Pine Bluff, Arkansas.
The other three men, who had no equal reason to run, continued
living in Metro Atlanta.
Ballistics testing revealed that Officer Schlatt had been
shot by a .38 caliber Rossi revolver. The murder weapon was
never recovered. Nonetheless, trial testimony from expert
{
i
|
|
|
{
witnesses indicated that such a revolver had been stolen in the
robbery of a Red Dot grocery store in Southeast Atlanta two
months earlier.
During the Dixie Furniture Store robbery, Wright somehow
left behind a leather jacket he was wearing that had a laundry
ticket stapled inside one sleeve. The jacket was traced by
Atlanta police to a former owner, , who related he had
given the jacket to Ben Wright, Jr. several months before.
Atlanta Police launched a massive man hunt for Wright. In the
meantime, police learned the names of Warren McCleskey, Bernard
Depree and David Burney through Mary Jenkins. Also, police
discovered that Wright had left Georgia.
Evidence suggests Mary Jenkins was an accomplice to the
robbery and murder of Officer Schlatt. Jenkins possibly drove
the get-away-car during the Dixie Furniture Store robbery.
Wright, Burney and other witnesses identified Ms. Jenkins as the
driver in the Buckhead robbery. Furthermore, witnesses vaguely
remember seeing a lady fitting Ms. Jenkins' description in the
car with the four men when Dixie Furniture was robbed. Ms.
Jenkins was never prosecuted for the robbery and murder. Ms.
Jenkins testified against McCleskey, Burney and Depree.
McCleskey was arrested at his sister's home in Cobb County
in the early morning hours while asleep at his sister's home on
May 31, 1978. David Burney was arrested on the same day at his
girl friend's apartment in Atlanta's Techwood Homes. Bernard
Depree gave himself up to police at his lawyer's office after
}
learning he was being sought in connection with the robbery and
murder. Ben Wright, Jr. was arrested months later in Pine Bluff,
Arkansas for a string of robberies and assaults there. When
arrested in Arkansas, he learned that he was wanted for the
murder of a police officer back in Atlanta.
Wright, after being arrested in Pine Bluff, Arkansas was
surprised and angered by the fact that Arkansas authorities knew
he had been involved in the killing of a police officer. Wright
assumed that the three co-defendants had told on hin.
McCleskey and Burney both confessed to robbing Dixie
Furniture, but denied killing Officer Schlatt. True to their
pledge not to finger an accomplice, neither man identified Wright
as the "triggerman."
Atlanta Police officials did not advise Arkansas whether
Wright had been fingered by his co-defendants as the murderer.
Suspecting that the truth had been told, Wright sought vengeance,
and turned against his three partners. Wright was so moved by
the fact that he had been "told on" that he devised statements
against the three men for the Assistant District Attorney,
Russell Parker, and Atlanta Police Investigators, Welcome Harris,
W. K. Jowers and Sidney Dorsey. Although Wright said McCleskey
was the "triggerman," witnesses present at the Dixie Furniture
Store the day of the robbery, clearly stated that the shooting
did not occur until after Ben Wright, Jr. went to the front of
the store.
Ben Wright testified in open court that McCleskey had a .38
caliber Rossi nickel-plated revolver---again, the pistol and
murder weapon were never found. Mary Jenkins told police and
testified that Wright was seen with the .38 Rossi weeks prior to
the policeman's killing. However, Wright testified that he
himself was armed with a sawed-off shotgun, and that Burney and
Depree had blue steel pistols.
Wright claimed McCleskey was driving his personal vehicle,
which was used as the get-away-car. Wright further testified
that McCleskey parked his car up the street from the furniture
store and that McCleskey entered the store and "cased" it.
"After McCleskey returned to the car, the robbery was planned,"
Wright testified. In contrast, it is a known fact that Wright
was the ring-leader and brain of the group.
According to Wright, in executing the robbery plan,
McCleskey entered the front of the store and the other three
entered through the rear by way of the loading dock. McCleskey
secured the front while he (Wright) and the others rounded up the
employees and customers in the rear and began to tie them up with
tape and forced them to lie on the floor. The manager was forced
by Wright, at gunpoint, to turn over the store's receipts, which
included a watch and six dollars in cash. George Malcom, an
employee, testified that he had a pistol taken from him at
gunpoint by Wright.
After Wright had given his phony account of what happened,
Atlanta Police Investigators were convinced that a jury would not
return a guilty verdict against McCleskey based on Wright's
testimony; therefore, police investigators placed a professional
informant named Offie Evans, who used a false name and claimed to
be Ben Wright, Jr.'s uncle when he introduced himself to
McCleskey, in the cellblock next to McCleskey, Burney and Depree.
Evans was in the Fulton County Jail on a federal warrant awaiting
a probation revocation hearing on charges related to escaping
from a federal halfway house. Evans testified at trial that
McCleskey admitted shooting Officer Schlatt. McCleskey maintains
he never made such a statement to Offie Evans.
It is believed that Evans was prepared to testify by Atlanta
Police Investigators. Evans' testimony reflected too precisely
the shortages in the Prosecution case, indicating that Evans had
help with his story. Furthermore, it was verified in later court
proceedings that Evans was a professional snitch who would
testify on behalf of the prosecution in cases tagged "difficult
to get a conviction."
SUMMARY OF POINTS
Warren McCleskey presents herein compelling reasons why
clemency should be granted in his case.
i. Substantial questions exist regarding the identity of
the triggerman.
This is a case where there is overwhelming evidence that
four persons, including Warren McCleskey and possibly Mary Dorsey
Jenkins, participated in an armed robbery at the Dixie Furniture
Store on May 13, 1978. There is very little information
available as to who of those four co-defendants was the
triggerman responsible for the shooting of Frank Schlatt during
that robbery.
The gun which fired the fatal shot was never found; none of
the persons in the store that day saw the shooting. McCleskey
has consistently denied being the triggerman, and the only
persons who identified McCleskey as the triggerman at the time of
the trial were a co-defendant, Ben Wright, Jr., himself a suspect
in light of some of the circumstantial evidence, and Offie Evans,
a subsequently discredited informant.
2. Co-defendants, of equal or greater culpability,
received less severe sentences.
Of McCleskey and his co-defendants, only McCleskey received
the death penalty, along with two consecutive life sentences.
Ben Wright, Jr., the acknowledged ring-leader, received a single
20-year sentence, and has already been released and re-sentenced
in light of subsequent robberies he masterminded. The other two
co-defendants, Bernard Depree and David Burney, each received a
single life sentence.
Not only is there a strong suggestion from the
circumstantial evidence that Ben Wright, Jr. was the triggerman,
the unchallenged evidence is that Wright was the mastermind of
this and other robberies. Despite substantial culpability on
Wright's part, Wright was sentenced to 20 years each for
Manslaughter and Armed Robbery. Wright was released from prison
in 1987, and committed a few more armed robberies, kidnapping,
aggravated assaults and a drug charge of which he received life
plus twenty years.
3. Jurors involved in McCleskey's trial have indicated
that, had they known of the background of the State's key
witness, they would have not authorized the death penalty.
This is one of those very few cases in the criminal justice
system wherein the courts have all but acknowledged that relief
is appropriate, but the courts have declined to grant relief.
This should be remedied herein.
At the time of McCleskey's trial, a police informant, Offie
Gene Evans, whose reliability has since been found utterly
lacking, testified before the jury. The jury was never told that
Offie Gene Evans had been promised his freedom in exchange for
his testimony, nor were they told that Evans had been put up to
testifying. Furthermore, the jury was not given the information
which subsequently came to light showing Evans lack of
truthfulness.
Two of the jurors have subsequently indicated that, if they
had known of the circumstances surrounding Evans which are now
known, they would not have imposed the death penalty.
4, The unreliability of an "informant" in criminal court
proceedings.
The problems with reliance on the testimony of a informant
are self-evident. The con-man in prison wants to get out. He
knows that he can get assistance in getting out if he helps the
police make a case. He has a real motive to come up with a
10
"confession" from a cell-mate, whether it is true or not. One
Court has recently warned of:
an unholy alliance between con-artist
convicts who want to get out of their own
cases, law enforcement who are running a
training ground for snitches over at the
county jail, and the prosecutors who are
taking what appears to be the easy route,
rather than really putting their cases
together with solid evidence.
Although the courts have not recognized it in McCleskey's
case it, is precisely this "unholy alliance" which has left
McCleskey on death row, while the likely "triggerman", Ben
Wright, Jr., has already served his full sentence, and while
Offie Evans, the informant, has long since gotten off free.
5. The State's and Local Community's Position McCleskey's
Death Sentence.
The State was willing to enter into plea negotiations with
McCleskey's counsel, John Turner, which would have resulted in a
life sentence. Because of McCleskey's lack of knowledge
regarding the surprise testimony of the unreliable informant
Offie Evans, McCleskey did not pursue plea negotiations. [Judge
Forrester has found that Offie Evans is not a credible witness.
This is based upon evidence of lies and deceptions which was not
presented to the trial jury.]
Noted community leaders have expressed their opinion that
the death sentence herein should be commuted to a life sentence.
Among those persons who have expressed these views are the
following:
11
Moreover, Fulton County is not a jurisdiction wherein juries
have imposed the death penalty for similar crimes. Since 1973,
sixteen police officers have been shot and killed in the line of
duty, and only in McCleskey's case has a death penalty been
imposed. Similarly, in Fulton County, juries have voted to
impose a death sentence only once since 1984. Plainly, this is
not a case where the death penalty should be imposed.
6. McCleskev's construction of a positive life after a
childhood of deprivation.
Although McCleskey grew up in a family and neighborhood with
very few positive male role models, he has made his life a
positive one, despite this extremely disadvantaged beginning. He
has become a positive influence on death row. He is viewed,
both by prison staff as well as other inmates, as a "peacemaker".
Warren McCleskey is not someone who was given huge
advantages at the start of his life and wasted them away.
Rather, he started out with substantial disadvantaged, and has
overcome those difficulties to make his life a positive
contribution to those around him.
McCleskey was born March 17, 1945 in an impoverished section
of Marietta, Georgia known as "Skid-row". The street where he
grew up featured a number of illegal gambling houses where
residents supplemented their income with the sale of bootleg
liquor to those who came to gamble.
McCleskey, who lived his years from age four to eight with
his aunt, Lois McMutry, in the country west of Marietta, returned
12
to live with his mother and stepfather at about the age of eight.
He came back to a house where gambling occurred nearly seven days
a week. he and his younger sister, Betty McCleskey Meyers,
served liquor to those present for gambling.
Nor was Warren's childhood blessed by positive role models
with respect to family relationships. His stepfather and mother
quarreled constantly. It seemed that nearly every weekend for
stretches at a time the police would be called to their house.
Warren's stepfather, an extremely jealous man, would accuse
Warren's mother of wrong-doings and threaten to kill her or
physically assault her.
The years of this violence ended as Warren was finishing
high school. One weekend, threatened by her husband, Warren's
mother shot and killed him. She was not prosecuted, as Cobb
County authorities ruled that she had shot him in self-defense.
Ze. McCleskev's Remorse.
McCleskey is truly remorseful about the injury his
participation in the Dixie Furniture Store robbery has caused the
victim's family. as McCleskey has written:
"There's not a day that goes by that I don't
think about the victim's family and reflect
on the hurt and pain they've endured. There
has been a few times when I took the
initiative to make contact with the victim's
family to express my remorse. But each time
I was unsuccessful. I pray for the family
each day, asking God to bless them with their
needs and to fill their hearts with love and
forgiveness.
McCleskey's efforts to establish his own family:
13
It was at the close of high school that Warren tried to
break away from this disadvantaged beginning and make a life for
himself. He married his high school sweetheart, Gwendolyn
Carmichael, while still in his junior year, and the two of them
went to live with Carmichael's, Mrs. Cordia Clement. A daughter,
Carla, was born in 1963; McCleskey graduated from high school in
1964, and found employment with Lockheed Georgia Company.
His devotion to wife and daughter.
For a number of years, from 1963 until about 1968, Warren
lived with his wife Gwendolyn and daughter Carla in his wife's
aunt's house in Marietta. These were the best years of Warren's
life, at least until that point. Although his job with Lockheed
was a manual labor job, his young family managed economically
because he was not paying rent to live with Mrs. Cordia Clement.
They were happy together. Warren was a devoted husband and
father. He remains today a devoted father and grandfather.
In an effort to establish greater independence, Warren and
his wife moved, in 1968, to Peyton Heights Apartments in Atlanta.
It was after that move that Warren's marriage suffered
irreparable damage. Gwendolyn wanted to end the marriage; Warren
wanted to continue. She left him a number of times; they tried
to reconcile a number of times.
Stress accompanving the ending of Warren marriage:
Warren was desperate to save the marriage. He believed that
if he bought Gwendolyn nice clothes and lavished her with
expensive gifts, she would come back and stay with him. He did
14
not know how to save the marriage. The move to Peyton Heights
made this all this all the more difficult. He had to pay rent as
well as keep up the car payments.
Desperate for cash to save his failing marriage, he ran into
a man named Melvin Mann who showed him how to rob a store. After
involving himself in a handful of robberies, Warren was arrested,
convicted in Douglas County and pled guilty to other robberies in
Cobb, Dekalb, Fulton and Polk counties in 1970.
Warren was released from prison in 1977. By the time of his
release, he had been divorced from his wife and had no place to
go. From a halfway house on Ponce de Leon Avenue in Atlanta, he
found work as a waiter at Oliver's in Ansley Square. Then, he
was successful in getting a job at Dover Elevator, where he
worked as a construction worker installing the elevators in the
Richard B. Russell Federal Building in downtown Atlanta.
The Co-Defendants:
It appeared that his struggle for self-sufficiency was about
to be achieved until he encountered Ben Wright, Jr. Wright was
then, and still is, a professional criminal. He is the
mastermind behind all his robberies. Cunning and consumed with
sly coldness, Ben Wright, Jr.is a man for who no other person is
indispensable.
REASONS WHY THE BOARD SHOULD COMMUTE
WARREN McCLESKEY'S SENTENCE
x. Significant questions exist regarding the identity of
the triggerman.
15
This is a case where a death sentence, along with two
consecutive life sentences, was imposed upon Warren McCleskey on
the basis of the prosecutor's argument that McCleskey was the co-
defendant who fired the fatal shots.
However, the only reliable information regarding the
identity of the triggerman is circumstantial evidence along, and
the circumstantial evidence suggests one of the co-defendants may
well have been the triggerman.
No murder weapon was never found; none of the Dixie
Furniture Store employees or other persons in the Store during
the shooting actually saw the shooting occur. The prosecution's
argument to the jury was that McCleskey had to have been the
triggerman because he carried a .38 caliber Rossi (the gun the
State believed was the fatal weapon) and because he was the only
co-defendant at the front of the Store when the shooting took
place.
However, there is significant evidence not considered by the
jury which runs counter to this circumstantial evidence. There
was evidence from witnesses in the rear of the Store which
indicated that one of the other defendants had gone to the front
of the Store, and was in the front of the Store, at the time of
the shooting.
Witness Ben Lester Tyson made the following statement to
police investigators that was never presented to the jury:
"Then I heard a siren pass the street out
there and then one of the men said, 'Here
comes the police.' And they took off
running, and I think they were going toward
16
the front door, from the way it sounded to
me. When the running stopped, I heard 'Banm,
Bam, ' meaning, two shots fired and then
everything got quiet."
Similarly, Witness James Grier, Jr. told the police
investigators the following, which was not disclosed to the jury:
"I forgot to say that after the men marched
us in the storage room, one of the men must
have left cause I only heard two men talking.
I guess they all left cause it got real
quiet. About two or three minutes later I
heard two gunshots. i could hear footsteps
like somebody was running off."
Moreover, as to the person carrying the .38 caliber Rossi,
Ben Wright, Jr.'s girlfriend, Mary Jenkins, told police that it
was Wright, not McCleskey, who carried the gun in the weeks
before the shooting.
The other evidence which the jury had before it has since
been discredited. As United States District Judge Forrester has
noted, the credibility of co-defendant Ben Wright, Jr. was
obviously impeachable, given the circumstantial evidence
suggesting he was the triggerman. And, Judge Forrester has
additionally noted that the testimony of the informant, Offie
Gene Evans, is not worthy of belief. Here is what Judge
Forrester has said about Evans' testimony before the Court:
", . .[T]lhere are numerous internal
contradictions within the deposition, and
contradictions with Evans' previous
statements, or the statements of other
witnesses."
The evidence of the State's key witness, then, has been
found to be simply not worthy of belief. Given the substantial
1/
)
questions which exist regarding the identity of the triggerman,
the Board should grant McCleskey's petition for clemency.
- I Co-defendants, of equal or greater culpability,
received less severe sentences.
Given the substantial doubts regarding his role in the
shooting, there is no basis to justify the disparity in treatment
between McCleskey and his co-defendants. When levels of
culpability are considered, it is clear that persons of equal, or
greater, culpability, received lesser sentences.
As noted, co-defendant Ben Wright, jr. was the master-mind
of the Dixie Furniture Store robbery, a career-criminal, and some
circumstantial evidence strongly suggests, the triggerman. Yet
in reality, he received only a twenty year sentence. He has
served him time, been released, and has already master-minded
other robberies for which he is now serving a life sentence plus
twenty years.
Wright pled guilty in June, 1990, to two armed robberies of
a C & S Banks in October, 1989. The District Attorney who
handled those robberies stated, "Subsequent investigation and
statements made by all parties showed that Mr. Ben Wright was the
instigator and the planner of those robberies."
Two other co-defendants, Bernard Depree and David Burney,
each received a single life sentence. In contrast, McCleskey
received two consecutive life sentences and the death sentence.
The facts of the crime, and the reliable evidence available
simply do not justify such disparities.
18
Ben Wright, jr. is a man contemptuous of the judicial
system. He boasted to the Warren McCleskey's jury about his
criminal career and he bragged that he would lie whenever
necessary to save his own skin. He admitted that he masterminded
the robbery. Yet he received a twenty-year sentence.
Given the disparities in sentences imposed for the robbery
and shooting at the Dixie Furniture Store, Warren McCleskey's
death sentence should be commuted.
Sa Jurors involved in McCleskey's trial have indicated
that, had they known of the background of the State's key
witness, they would not have authorized the death penalty.
That justice was not served during the course of Warren
McCleskey's trial is perhaps best evidenced by the testimony of
two jurors who heard the evidence and voted to impose the death
sentence.
those two jurors have subsequently learned about the use of
the informant, Offie Gene Evans, at McCleskey's trial, and have
come forward to indicate that they would not have voted for the
death penalty had they known that the key witness was a police
informant with motivation to lie about his testimony.
Juror Jill Dramer has stated:
« « « Our jury had a hard struggle with the
evidence in this case. We discussed the
issue of guilt or innocence for a long time.
We were able to agree without a lot of
difficulty that all four men, including
Warren McCleskey, had at least participated
in the armed robbery. But the issue of
responsibility for the shooting was
different.
19
. . « As I said, this was for me a very close
case. It took Evans' testimony for the State
to prove to me, beyond a reasonable doubt,
that McCleskey was the triggerman. Without
Evans' testimony, I definitely would not have
voted for the death sentence, and i believe
at least a few other jurors would have
agreed. . . .
Let me go further. I knew then that it only
takes on juror to hold out against the rest.
I am certain that had I known that Offie
Evans had an arrangement with an Atlanta
detective -- if I had heard Evans' testimony
in the state habeas corpus proceedings -- I
would never have voted to impose capital
punishment.
Similarly, juror Robert F. Burnette has stated as follows:
. « . Nobody ever told us abut that [Evans'
arrangement with Atlanta police detectives]
during the trial. It puts a very different
light on Evans' testimony. It sounds like he
was probably hoping to get off of his escape
case by testifying against McCleskey. The
jury should have known that, I think. It
changes the State's whole case. . . .
Like I said, we had a hard time deciding who
did the shooting, and a hard time deciding to
impose the death sentence. I've read the
part of the trial transcript where Evans
testified, and I've also read what Evans said
in the state hearing in Butts County. I
would definitely not have voted to sentence
McCleskey to death if I had thought he might
have been the triggerman. . .
. « . Knowing now that Evans could have lied
to cover his deal with the detective
definitely could have made a big difference
to me, and to other jurors, I think -- at
least in deciding to give the death penalty.
4. The State's and local community's position on
McCleskev's death sentence:
The prosecution in this case was willing to entertain plea
negotiations which would have resulted in the imposition of a
20
life sentence. Because of the unusual circumstances of his case,
most particularly, his lack of knowledge regarding the testimony
of the informant, Warren McCleskey did not pursue plea
negotiations.
Noted community leaders have asked that the Board commute
Warren McCleskey's death sentence to one of life imprisonment.
Included in those appeals are the following:
[inserts quotations here.]
Finally, a review of the treatment of other persons accused
of shooting police officers indicates that, generally speaking,
the Fulton County community does not believe a death sentence is
appropriate under these circumstances. Fulton County is not a
jurisdiction wherein juries have imposed the death penalty for
similar crimes. Since 1973, sixteen police officers have been
shot and killed in the line of duty, and only in McCleskey's case
has a death penalty been imposed. Similarly, in Fulton County,
juries have voted to impose a death sentence only once since
1984. (See copy of attached article). Plainly, this is not a
case where the death penalty should be imposed.
5. Commutation is appropriate because Warren McCleskev is
now making, and will continue to make, a positive contribution to
those around him.
21
Warren's life since his conviction in 1978 has been a
remarkable one. He has broken away from the disadvantages of his
childhood, and made a life for himself that is truly commendable.
His role as a "peacemaker" on between death row inmates and
prison guards is a positive point. Warren McCleskey has become a
prisoner on death row who acts as a positive influence with those
with whom he is in contact. This has been a gradual evolution
over time -- while his counselor's notes universally have noted
that he has had no disciplinary problems and his behavior is
appropriate, by 1988 those notes reflect his more positive role
with both staff and other inmates. The counselor's notes for
March, 1988 indicate:
He has continued to maintain a good attitude,
continues regular participation in Chaplain
Bible study program. It also appears that he
has become a "peace maker" in the cell block
according to different sources.
His counselor's notes reflect more than once his positive
influence on those around him:
03/28/89: Client made no request this
reporting period. he has been active in Rec.
(recreation) activities. He continues to be
a positive influence in the cell-block.
His counselor's notes also repeatedly reflect his good
relationship with the prison staff. The following entry is
representative:
10/19/89: . . . He continues to cooperate
well with staff and has good relationship
with peers. Subject active in religious
studies and yard.
23
HIS RELIGIOUS STUDIES
Further evidence that Warren McCleskey is deserving of
commutation of his sentence is reflected in the strong role which
religious belief plays in his life. This is not an eve-of-
execution conversion. His counselor notes from prison indicate
that, since 1981, on a regular basis, he has participated in
Bible study and Chaplain's services.
Moreover, his Bible study has resulted in completion of the
following courses:
- Georgia Baptist Convention, Education Extension
Program, Special Certificate;
- Georgia Baptist State Missions, Education Extension
Program, "Isaiah;"
- Georgia Baptist State Missions, Education, "Hosea"
- United Christian International Bible Institute,
Cleveland, Tennessee, "General Bible Knowledge I;"
- United Christian International Bible Institute,
Cleveland, Tennessee, "General Bible Knowledge II;"
- Source of Light Schools, Bible Correspondence Course
Certificate
McCLESKEY'S COURT CHALLENGES:
WARREN McCLESKEY'S case has not been treated fairly by the
Courts. On his first visit to the United States Supreme Court,
McCLESKEY presented evidence from a detailed statistical study
that racial discrimination affected his case and all others in
which the death penalty is sought. The Court decided that it did
not matter that the death penalty is imposed in a racist manner,
and turned McCleskeky down. McCleskey appealed again, after
23
}
discovering that Offie Evans had been a police informant, which
makes the statement Evans allegedly got from McCleskeky illegal.
However, this time the Court turned McCleskeky down because
McCleskey had not raised the issue earlier. The reason McCleskey
had not been able to raise the issue earlier is because the
police had purposely hidden the information from defense counsel.
CONCLUSION
On behalf of Warren McCleskey, I, Bob Reinhardt, Attorney
for the Defendant, respectfully requests that the Board order
commutation of his death sentence to life imprisonment. This
case is deserving of relief. The United States Supreme Court
has, on two occasions, indirectly acknowledged the correctness of
McCleskey's position, but denied him relief on technical grounds.
Two jurors who participated in McCleskey's case have indicated
that, if they knew at the time of the trial what they know now,
they would not have imposed the death penalty.
The evidence suggest that the co-defendant most culpable in
the armed robbery and killing, Ben Wright, Jr. received only a
twenty year sentence. The other co-defendants only received life
sentences. Similarly, the evidence suggests that the community
standards applicable herein (Fulton County) do not support the
imposition of the death penalty in this case. I beg of this
Board to Grant Warren McCleskey's plea for mercy.
24
FILED THIS DAY OF , 1991.
BOB REINHARDT
COUNSEL
ROBERT H. STROUP
CO-COUNSEL
JOHN CHARLES BOGER
CO-COUNSEL
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