Application and Petition for Habeas Corpus

    IN THE SUPERIOR COURT OF Butts County 
STATE OF GEORGIA 

  

  

Warren McCleskey : 
  

  

  

Petitioner, Civil Action No. 

D-003935 : Habeas Corpus 
: Inmate Number 

| 
vs 

Ralph M. Kemp , Warden, 
  

Georgia Diagnostic § Classification Center 

Name of Institution 

Respondent. 

APPLICATION FOR WRIT | 
HABEAS CORPUS | 

¥% PART 1 ** 

  

  

1. Name and county of court which entered the judgment of con- 
viction under attack Superior Court of Fulton County, Fulton 

Tn, 
  

County, Georgia 
  

v0 Date of conviction October 12, 1978 
  

3s Length of sentence(s) Death for murder; two life sentences for armec 
robber:   

4. Name of offense(s) (all counts) Malice Murder 0.C.G.A. 
  

16-5-1; Armed robbery, 0.C.G.A 16-8-2 
  

5. What was your plea? (Check one) 

(a) Guilty ( ) 
{b) Guilty but mentally ill ( ) 
(c) Nolo contendere ( ) 
(d) Not guilty (X) 

If you entered a guilty plea tc one count or indictment, and 
a not guilty or nolo contendere plea to another count or 
indictment, give details: ; 
N/A 
  

  

  

 



  

8. 

9. 

10. 

11, 

Kind of trial: (Check one) 

(a) Jury (X) 
(b) Judge only ( ) 

Did you testify at the trial: Yes (x) No ( ) 

Did you appeal from the conviction: Yes (x) No ( ) 

If you did appeal, answer the following: 

(a) Name of appellate court to which you appealed 
  

Georgia Supreme Court 
  

(b) esult of appeal affirmed 
  

(c) Date of result Tanuary 24. 1980 
  

Other than a direct appeal from the judgment of conviction 
and sentence, have you previously filed any petitions, 
applications, or motions with respect to this conviction in 
any state or federal court: Yes (x) No ( ) 

If your answer to 10 was "yes", give the following informa- 
tion: (If more than three petitions, please use separate 
sheet of paper and use the same format to list these 

petitions.) 

Name of court and case number See Supplemental (a) 
  

(1) 
(2) Nature of proceeding pleading annexed hereto 
  

  

(3) All grounds raised (attach extra sheet if 
necessary) 
  

  

  

(4) Did you receive an evidentiary hearing on your 
application or motion? Yes () No ( ) 

(5) Name of Judge 
  

(6) Result 
  

(7) Date of result 
  

(b) As to any second petition, application or motion give 
the same information: 

Name of court and case number 
  

  

(1) 
(2) Nature of proceeding 

  

  

  

(3) All grounds raised 
  

  

  

  

(4) Did you receive an evidentiary hearing on your 
application or motion? Yes ( ) NO: { ) 

Se 

 



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(c) 

(4d) 

(e) 

(£) 

(5) Name of Judge 
(6) Result 
(7) Date of result 

  

  

  

to any third petition, application or motion, give 
e same information: to 

al 
0) 

  

) Name of court and case number 

) Nature of proceeding 
  

  

  

  

(3) All grounds raised 
  

  

  

  

(4) Did you receive an evidentiary hearing on your 
petition, application or motion? Yes EZ) No. (4) 

(5) Name of Judge 
(6) Result 
(7) Date of result 

  

  

  

Did you appeal to the Georgia Supreme Court or the 
Georgia Court of Appeals from the result taken on any 
petition, application or motion listed above: 

(1) First petition, etc. Yes (x) No ( ) 
(2) Second petition, etc. Yes ( ) No. .{) 
(3) Third petition, etc. Yes ( ) No ( ) 

If you did not appeal from the denial of relief on any 
petition, application or motion explain briefly why 
you did not: 
N/A 
  

  

  

If you appealed to the highest state court having juris- 
diction, did you file a petition for certiorari in the 
United States Supreme Court to review the denial of 
your petition by the Georgia Supreme Court or the 
the Georgia Court of Appeals? Yes (X) No A.) 

*#% PART II ** 

State concisely every ground on which you now claim that you are 
being held unlawfully. Summarize briefly the facts supporting 

each ground. If necessary, you may attach pages stating addi- 

tioinal grounds and facts supporting same. 

1 
Ground one: See attachment 
  

  

  

AOC-5 
(7-1-85) 

 



Supporting FACTS (tell your story briefly without citing cases or 
law): : 

  

  

  

  

  

  

Ground two: See attachment 
  

  

  

Supporting FACTS (tell your story briefly without citing cases or 
law): 
  

  

  

  

  

Ground three: See attachment 
  

  

  

Supporting FACTS (tell your story briefly without citing cases or 

law): 
  

  

  

  

Ground four: See attachment 
  

  

  

  

Supporting FACTS (tell your story briefly without citing cases or 

law): 
  

  

  

AOC-5 wd 
(7-1-85) 

 



  

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#* PART III ** 

If any of the grounds listed in PART II were not previously 
presented in any other court, state or federal, state briefly what 
grounds were not so presented, and give your reasons for not 
presenting them: 

See attachment 
  

  

  

  

#% PART IV #* 

1. Do you have any petition or appeal now pending in any court, 
either state or federal, as to the conviction under attack? 
Yes (yx) No ( ) 

2. Give the name and address, if known, of each attorney who 
represented you in the following stages of the judgment at- 
tacked herein: 

(a) At preliminary hearing John Turner, Esg., now with the 
Fulton County District Attorney's Office, Atlanta, Georgia 
  

  

(b) At arraignment and plea John Turner. 
  

(c) At trial John Turner 
  

  

(d) At sentencing John Turner 
  

  

(e) On appeal John Turner 
  

  

(f) In any post-conviction proceeding Robert H. Stroup, Julius L.. 
Chambers, James M. Nabrit, III, John Charles Boger, Timothy Ford, Anthony 

Amsterdam 

(g) On appeal from any adverse ruling in a post-conviction 
proceeding See (f) 

  

  

  

  

3. Were you sentenced on more than one count of an indictment, 
or on more than one indictment, in the same court and at the 
same time? Yes (x) No ( ) 

AOC-5 Sw 
(7-1-85) 

 



  

Do you have any future sentence to serve after you complete 
the sentence imposed by the conviction under attack? 
Yes -( ). No (x) 

(a) If so, give name and location of court which imposed 
sentence to be served in the future: N/A 

  

  

(b) And give date and length of sentence to be served in the 
future: N/A 
  

  

(c) Have you filed, or do you contemplate filing, any peti- 
tion attacking the judgment wich imposed the sentence 
to be served in the future: Yes { ) No ( ) 

Wherefore, petitioner prays that the Court grant petitioner relief 
to which he may be entitled in this proceeding. 

  

Robert BH. Stroup June 7, 
141 Walton Street Date 
  

Atlanta, Georgia 30303 
Signature and Address of Petitioner's 
Attorney (if any attorney) 

I declare (or certify, verify, or state) under penalty of prejury 
that the foregoing is true and correct. Executed on May 22, 1987 

  

Date 

  

Please note that under O.C.G.A. §9-14-45 service of a 
petition of habeas corpus shall be made upon the person 
having custody of the petitioner. If you are being detained 
under the custody of the Department of Offender Rehabilita- 
tion, an additional copy of the petition must be served on 
the Attorney General. If you are being detained under the 
custody of some authority other than the Department of 
Offender Rehabilitation, an additional copy of the petition 
must be served upon the district attorney of the county in 
which the petition is filed. Service upon the Attorney 
General or the district attorney may be had by mailing a copy 
of the petition and a proper certificate of service. 

1987 

 



  

IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

  

WARREN McCLESKEY 

Petitioner, 

vs. : HABEAS CORPUS 

: NO. 
  

RALPH M. KEMP, Superintendent 
Georgia Diagnostic and 

Classification Center, 

Respondent. 

  

PETITION FOR WRIT OF HABEAS CORPUS 
  

COMES NOW Petitioner, WARREN McCLESKEY, bv and through 

his undersigned counsel of record, and petitions this Court 

for a writ of habeas corpus, pursuant to 0.C.G.A. §§ 9-14-41 

et seq. Petitioner is an indigent person currently under 

sentence of death. Respondent is the Superintendent of the 

Georgia Diagnostic and Classification Center in Jackson, 

  

Georgia. The allegations of this petition are set forth as 

follows: 

I. HISTORY OF PRIOR PROCEEDINGS 

i. The name and location of the court which entered 

the judgment of conviction and sentence under attack are: 

Superior Court of Fulton County 
Atlanta, Georgia 

 



  

2 

2. The date of the judgment of conviction was October 

12, 1918, : 

3. The date of the Judgment of sentence was also 

October 12, 1978; the sentences were that petitioner be put 

to death for murder, and that he serve life sentences for two 

counts of armed robbery. 

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

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

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

5, At his trial, petitioner pled not guilty. 

8% The trial on the issues of guilt or innocence and 

of sentence was held before a jury. 

7. Petitioner testified during the guilt phase of his 

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

8. Petitioner appealed his convictions and sentence of 

death. 

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

(a) The Supreme Court of Georgia affirmed 

petitioner's convictions and sentences on Januarv 24, 1980. 

McCleskey v. State, 245 Ga. 108 (1980). 
  

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

United States denied a petition for certiorari, with Justices 

Brennan & Marshall dissenting. McCleskevy v. Georgia, 449 
  

U.S. 891 (1980). 

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

extraordinary motion for a new trial in the Superior Court of 

 



  

3 

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

(d) On January 5, 1981, petitioner filed a 

petition for writ of habeas corpus in the Superior Court of 

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

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

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

Exhibit B). 

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

denied petitioner's application for a certificate of probable 

cause to appeal. 

(f) Petitioner then sought a writ of certiorari in 

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

1981, that Court denied his petition for certiorari, with 

Justices Brennan & Marshall dissenting. McCleskey v. Zant, 
  

454 U.S. 1093 (1981). 

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

petition for writ of habeas corpus in the United States 

District Court for the Northern District of Georgia, Atlanta 

Division. The matter was assigned to Judge J. Owen 

Forrester. After an evidentiary hearing in August and 

October of 1983, the District Court entered an order on 

February 1, 1984, granting habeas corpus relief. McCleskevy   

V. Zant, 580 F. Supp. 338 (N.D.Ga. 1984). 

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

of Appeals for the Eleventh Circuit, sitting en banc, 

announced a judgment reversing the grant of habeas corpus 

 



  

2» 

4 

relief and denying the habeas petition. McCleskev wv. Kemp 
  

753 F.24 877 (11th Cir. 1985) (en banc). 

(i) The Supreme Court of the United States granted 

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

the Court of Appeals. McCleskev v. Kemp, U.S. ;. 55 
  

U.Ss.L.W. 4521 (U.S., April 21, 1987) (No. 84-6811). 

(j) On May 18, 1987, petitioner filed a petition 

for rehearing in the Supreme Court pursuant to Rule 51 of the 

Rules of the Court. That petition is now pending. 

ITI. INTRODUCTORY FACTS 
  

10. Petitioner Warren McCleskey, one of four men who 

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

was convicted of malice murder and, of the four, alone was 

sentenced to death -- because the State alleged, and the jury 

believed, that McCleskev was the triggerman who had shot 

police officer Frank Schlatt during the robbery. Prosecutor 

Russell Parker explicitly argued to petitioner's jury that 

"the person that ought to get the chair, if anybody gets the 

chair, is the man that pulled the trigger ... 1r is 

important, ladies and gentlemen, who pulled the trigger. I 

don't think there should be any doubt in your mind." (Tr. T. 

973). The burden of the State's entire case was to prove 

beyond a reasonable doubt that petitioner McCleskey had 

pulled the trigger. 

 



  

5 

11. Yet we will demonstrate in this successive petition 

that, at the crucial moments throughout the trial, the State 

deprived petitioner of his federal constitutional rights. 

Acts and omissions by the State kept critical facts from the 

jury that throw into gravest doubt its theory that McCleskey 

shot Officer Schlatt. Specifically, the State's claim rests 

primarily on the testimony of a jailhouse witness, Ophie 

Evans, and on ballistics evidence that appears to link 

petitioner to the murder weapon. Undisclosed to the jury, 

however, was proof that an Atlanta police detective promised 

to shield Ophie Evans from a federal prosecution if he would 

agree to testify against McCleskey. (See 944 25-36 infra). 

Also undisclosed was the fact that the ballistics expert-- 

who told the jury that the bullets found in the body of the 

officer could have come only from a pistol like that 

McCleskey carried -- later acknowledged that two other makes 
  

of pistol could have produced the identical markings on which 
  

he based his expert conclusion. (See 4437-42 infra.). 

12. These additional facts would have been sufficient 

alone to persuade several members of petitioner's jury that 

the State has not met its burden beyond a reasonable doubt, 

and that petitioner should not be sentenced to death. (See 

Exhibit F&G). Yet the State improved its chances of 

conviction and of a death sentence, not merely by concealing 

these facts, but also bv engaging in deliberate, 

discriminatory acts in excluding prospective black jurors 

 



  

(see 9913-24, infra), and by unlawfully reminding 

petitioner's jury, just before it retired to deliberate on 

petitioner's sentence, that petitioner's previous life 

sentences had been reduced by the appellate courts on prior 
  

appeals, obviously implying that only a death sentence could 

avoid similar appellate review in this case. (See 9943-45, 

infra) In all of these ways, the State distorted the 

factfinding role of petitioner's trial jury and deprived 

petitioner of the federal constitutional rights to which any 

capital defendant is entitled. 

ITI. CONSTITUTIONAL GROUNDS ESTABLISHING THE INVALIDITY OF 
PETITIONER'S CONVICTIONS AND SENTENCES 
  

The State's Svstematic Exclusion of Black Jurors 
  

13. The Fulton County prosecutor's systematic use of 

his peremptory challenges to strip prospective black jurors 

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

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

petitioner's right to a representative jury, guaranteed by 

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

free from cruel and unusual punishment at the penalty phase 

of his trial, guaranteed bv the Eighth and Fourteenth 

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

the laws, guaranteed by the Equal Protection Clause of the 

Fourteenth Amendment of the Constitution of the United 

 



  

  

  

  

  

7 

States. 

FACTS SUPPORTING PETITIONER'S CLAIM THAT 
THE SYSTEMATIC EXCLUSION OF PROSPECTIVE 

BLACK JURORS VIOLATED HIS 
CONSTITUTIONAL RIGHTS 

14. Petitioner Warren McCleskey is black. He was 

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

Schlatt. 

15. ‘Petitioner's trial occurred in Fulton Countv. 

Georgia, in October of 1978. United States Census figures 

reveal that in 1970, the population of Fulton County was 

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

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

black. 

16. A total of 52 jurors were questioned in McCleskey's 

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

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

prosecutor, Russell Parker, and the defense attorney each 

exercised their respective peremptory challenges, on the 

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

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

at least 6 of those peremptorily excused by Parker were black 

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

peer confirmed not only by a comparison of juror lists with 

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

contact with 5 excluded jurors. Attached as Exhibit E are 

affidavits from these five prospective jurors, confirming 

 



  

8 

their race and their exclusion from Warren McCleskey's 

trial.) 

17. The voir dire transcripts of these excluded black 

jurors reveals absolutely no racially neutral grounds on 

which to distinguish them as prospective jurors from white 

jurors who were not struck. 

18. This stark pattern of racial exclusions establishes 

a prima facie violation of the Equal Protection Clause of the   

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

L.Ed.24 69, 87-88 (1986). While Batson has been held non- 

retroactive to those non-capital cases beyond direct appeal, 
  

see Allen v. Hardy, U.3. , 92 L.BE4.2d 199 (1986); 
  

Griffith v. Kentucky, U.S. 93 L.EA.24 B49 (1987). 
  

petitioner alleges that the constitutional requirement of 

special reliability in capital cases, see, e.qg., Woodson v. 
    

North Carolina, 428 U.S. 280, 304-05 (1976); Gardner v. 
  

  

Florida, 430 U.S. 349, 357-58 (1977); Beck v. Alabama, 447 
  

U.S. 625, 637 (1980), mandates that Batson be applied 

retroactively to capital cases. At a minimum, because of the 

"unique opportunity for racial prejudice to operate but 

remain undetected” in capital sentencing proceedings, Turner 
  

Vv. Murray, US, , 90 L.E4d.2d 27, 35 (1986), Batson is 
  

applicable, petitioner submits, to the penalty phase of his 

capital trial. 

The State's Intentional Racial Discrimination Against 

Petitioner McCleskevy 
  

  

 



  

19. The death penalty has been imposed on petitioner 

McCleskey pursuant to a pattern and practice of Georgia 

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

in Fulton County, to discriminate against black defendants 

and against those whose homicide victims are white. 

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

case acted with discriminatory purpose and intent, and their 

actions created a "constitutionally significant risk of 

racial bias" affecting his capital sentence, all in violation 

of the Eighth Amendment and of the Equal Protection Clause of 

the Fourteenth Amendment to the Constitution of the United 

States. 

FACTS SUPPORTING PETITIONER'S CLAIM 
THAT HIS CAPITAL SENTENCE WAS THE 
PRODUCT OF RACIALLY DISCRIMINATION 

  

  

  

20. Petitioner repeats and realleges the allegations of 

paragraphs 14 through 17, supra. 

21. In his prior federal habeas corpus proceeding, 

McCleskev wv. Zant, No. C81-2434A (N.D.Ga.), petitioner 
  

presented extensive statistical evidence, through exhibits 

and live testimony, to establish striking patterns of 

disparate racial treatment in Georgia capital cases. 

Petitioner proffers to this Court, and will produce at an 

evidentiary hearing, that body of evidence. 

22. While the Supreme Court has held that such 

evidence, standing alone, is insufficient to make out a 

 



  

10 

violation of the Eighth or Fourteenth Amendments, see 

McCleskey v. Kemp, J:8. ; 8&5 U.S.L. WNW. 4837, 4542, 4544 
  

(U.S., April 21, 1986) (No.84-681i), the Supreme Court also 

held that a habeas petitioner could prevail under the 

Fourteenth Amendment by proving "that the decisionmakers in 

his case acted with discriminatory purpose," Id. at 4541. 

23. The Supreme Court noted its own "'unceasing 

efforts' to eradicate racial prejudice from our criminal 

justice system," id. at 4545; prominent among the procedural 

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

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

id. at 4545 n.30, including any attempts by "a prosecutor 

[to] exercise peremptory challenge on the basis of race." Id. 

24. Prosecutor Parker's deliberate and repeated 

exercise of his peremptorv challenges to remove at least six 

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

in combination with petitioner's powerful statistical showing 

of racial discrimination in Fulton County and the State of 

Georgia since 1973 -- establishes precisely the kind of 

Eighth Amendment and Equal Protection Clause violations which 

the Supreme Court held are cognizable under the rule of 

McCleskey v. Kemp. 
  

The State's Non-Disclosure of Critical Impeachment Evidence 
  

25. The State's failure to disclose its agreement with 

 



  

; & @® 
11 

jail inmate Ophie Evans, a key witness against petitioner, 

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

guaranteed by the Due Process Clause of the Fourteenth 

Amendment to the Constitution of the United States. 

FACTS SUPPORTING PETITIONER'S CLAIM THAT 
THE STATE'S NON-DISCLOSURE OF CRITICAL 

IMPEACHMENT EVIDENCE VIOLATED HIS 

DUE PROCESS RIGHTS 

  

  

  

  

26. Although a number of the State's witnesses 

testified that petitioner McCleskey participated in the armed 

robbery of the Dixie Furniture Store on May 13, 1978, the 

State produced no one who witnessed the shooting of Atlanta 

police officer Frank Schlatt. The murder weapon itself was 

never recovered. 

27. To prove that petitioner had personally committed 

the homicide which ultimately led to his death sentence, the 

State relied in part upon confused and partially 

contradictory testimony on who had been carrying the likely 

murder weapon. 1 

  

l petitioner's co-defendant, Ben Wright, and several 
other witneses testified that petitioner may have been 
carrying a pearl-handled, silver .38 pistol linked to the 
homicide. Yet Ben Wright was forced to acknowledge on cross- 
examination that he himself had personally possessed that 
weapon for several weeks prior to the crime. (Tr. T. 682). 
Moreover, it was revealed that Wright's girlfriend told 
police, on the day Wright was arrested, that Wright, not 
McCleskey, had been carrying that .38 pistol on the day of 
the crime, (Tr. T. 631-32). Moreover, the State's ballistics 

expert, -- who indicated at trial that the murder weapon had 
been a .38 Rossi -- testified during a deposition submitted 
at the initial state habeas corpus proceedings, that there 
was a chance that the murder weapon was not in fact a .38 
Rossi. (See infra, 94939-41). 

 



  

12 

28. The State also relied upon two witnesses who 

claimed that petitioner had confessed to them, after the 

crime, that he had shot Officer Schlatt. One of the two 

witnesses was petitioner's co-defendant Ben Wright, -- a 

dominant actor in the armed robbery (Tr. T. 651-57) and the 

most likely suspect in the shooting. Apart from Wright, the 

only evidence concerning the identity of the triggerman came 

from a detainee at the Fulton County Jail, Ophie Evans, who 

testified that McCleskey had admitted the shooting while he 

was in the Fulton County Jail awaiting trial. 

29. Evans in fact gave crucial testimony on three 

points: (i) he told the jury about McCleskevy's "confession"; 

(ii) he alleged that McCleskey "said ... he would have tried 

to shoot his way out ... if it had been a dozen" police 

officers (Tr. T. 87)) -- a statement which later became a 

major foundation for the prosecutor's argument to the jury 

that McCleskey had acted with "malice" (see T. Tr. 974); and 

(iii) he single-handedly clarified a glaring inconsistency in 

the identification testimony of one of the State's principal 

witnesses. (Tr. T. 301-03; 870-71). 

30. Evans was specifically asked both by the prosecutor 

and by the defense attorney about any promises made in 

exchange for his testimonv. He denied any deals or other 

arrangements. His actual testimony before the trial court 

was: 

Q: [Assistant District Attorney]: Mr. Evans, have 1 

promised you anvthing for testifying today? 

 



  

13 

A: No sir, you ain't, 

* kx Xx 

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

A: No, sir. 

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

A: No, sir. 

(Tr T., 863-69), 

31. On cross—-examination Evans expanded upon his 

statement regarding promises made by the State: 

Q: Okay. Now, were vou attempting to get your escape 

charges altered or at least worked out, were you 
expecting your testimony to be helpful in that? 

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

{Yr. T. 882). 

32. Evans, however, later gave flatly contradictory 

testimony before this Court, admitting that "the [Atlanta 
  

  

  

police] Detective told me that he would —-- he said he was 

going to do it himself, speak a word for me. That was what 

the Detective told me." (St. Hab. Tr. 122). (emphasis added). 
  

The escape charges were in fact dropped with the State's 

assistance after McCleskev's trial. (St. Hab. Tr. 129). 

33. Petitioner proffers that Ophie Evans will expand 

upon and clarify his testimony in the present proceedings. 

He will testify that Atlanta police detective Sid Dorsey 

discussed the benefits to him of providing testimony against 

 



  

14 

petitioner. Evans understood from the detective that if he 

gave testimony implicating petitioner McCleskey in the 

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

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

pending federal escape charges against him -- which carried a 

potential sentence of $5000 or 5 years imprisonment under 18 

U.S.C.§4082(d) and §751 -- be dropped. Evans agreed to 

testify in exchange for that promise by the Atlanta 

detective. 

34, At least two of the jurors who actually sat during 

petitioner McCleskey's trial have since given sworn 

affidavits. They affirm that evidence of the understanding 

between Ophie Evans and Atlanta police detective Dorsey would 

have crucially affected their assessments of the State's case 

against McCleskey. 

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

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

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

death." (Exhibit F 947). "The evidence was not clearcut that 

McCleskey had actually been the one who fired the shots at 

the officer." (Exhibit F $3). The State's evidence on the 

murder weapon "was contradictory at several places," which 

"left us with the testimony of Ophie Evans." (Exhibit F 444- 

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

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

to gain.” (Exhibit F.,. $83, Ms. Darmer has stated that 

 



  

i5 

"[wlithout Evans' testimony, I definitely would not have 

voted for a death sentence" (Exhibit F 410), and "had I known 

that Ophie Evans had an arrangement with an Atlanta detective 

I would never have voted to impose capital punishment." 

(Exhibit F 911). 

36. Juror Robert Burnette also agreed that this "wasn't 

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

evidence." (Exhibit 8 942). Like Marg Darmer, juror Burnette 

discounted Ben Wright's testimony, placing instead great 

weight on what Ophie Evans told the jury. After reading 

Evans' state habeas testimony, Burnette has now averred that 

he "would definitely not have voted to sentence McCleskey to 

death if [he] had though he might not have been the 

triggerman," "[K]lnowing ... 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," Burnette has 

stated (Exhibit G 49). 

Petitioner's Ake v. Oklahoma Claim. 
  

37. The state trial court's denial of petitioner's 

motion for funds for the employment of a ballistics expert 

violated his right to the due process of law guaranteed by 

the Due Process Clause of the Fourteenth Amendment to the 

Cosntitution of the United States. 

 



  

16 

FACTS SUPPORTING PETITIONER'S 
AKE v. OKLAHOMA CLAIM 
  

  

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

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

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

that the State intended to rely at trial upon "numerous 

experts, including [al] pathologist, criminologist, criminal 

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

stated that "[s]aid experts ... have contributed 

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

Petitioner's motion explained that petitioner was without 

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

to proceed in forma pauperis. 
  

39. The trial court did not grant petitioner's motion, 

and no defense ballistics expert was appointed. During 

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

of the Georgia Bureau of Investigation, to link the purported 

murder weapon to petitioner. Fite testified that he had 

examined microscopically the markings on the two bullets 

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

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

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

Rossi was "the only one that has [the] tvpe of twists] and 

lands and grooves" observed on the bullets taken from the 

scene. (Id.) The State then sought to establish that 

petitioner Warren McCleskey had been carrying a .38 Rossi on 

 



  

17 

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

shot Officer Schlatt. 

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

arranged by volunteer counsel, Fite admitted that the 

markings left on the bullet taken from Officer Schlatt could 

also have come either from a Taurus revolver (Fite 

Deposition, 6) or from a Charter Arms revolver. (Fite 

Deposition, 7). 

41. An independent ballistics expert would have 

provided defense counsel with these alternative hypotheses, 

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

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

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

defense attorney would have been able to counter the one- 

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

damning and apparently unequivocal testimony that pointed 

directly at McCleskey as the triggerman. 

42. Apart from the testimony of Ben Wright and Ophie 

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

critical evidence linking McCleskey to Officer Schlatt's 

murder. At least two jurors have now revealed that the 

central issue facing the jury in this case, both at the guilt 

and at the sentencing phases of the trial, was whether 

petitioner McCleskey was the triggerman. 

The State's Reference To Appellate Review In Closing Argument 
  

 



  

18 

43. The prosecutor's deliberate references to appellate 

review during the closing argument at the penalty phase of 

petitioner's trial, and his specific invitation to the jury 

to consider the fact that petitioner's prior life sentence 

had been reduced by the appellate courts, violated (i) 

petitioner's right to be free of cruel and unusual 

punishment, guaranteed by the Eighth and Fourteenth 

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

guaranteed by the Due Process Clause of the Fourteenth 

Amendment of the Constitution of the United States. 

FACTS SUPPORTING PETITIONER'S CLAIM 

THAT THE PROSECUTOR'S CLOSING ARGUMENT 
VIOLATED HIS CONSTITUTIONAL RIGHTS 

  

  

  

44. During the sentencing phase of petitioner's trial, 

the prosecutor invited the jury to focus its attention upon 

the following considerations in determining the penalty to be 

imposed: 

"Ladies and Gentlemen, this is the sentencing phase 
of this trial, and I expect the court is going to 
charge you with a couple of points, that vou can 
return a verdict of life in prison or vou can 
return a verdict of death. , . (Tvr.7. 10186), If 

you find a sentence for the man of life for murder, 
if you sentence him to life for armed robberv, and 
to life for armed robbery, and to life for the 
second armed robbery, and if you don't specify how 
these are to run, they are going to run together 

{Tr.T. 1017}. 

* * * 

I would also ask you to consider the prior 
convictions that you have had with you in the jury 
room, and particularly the one where he got three 
convictions. I believe if you look at those papers 
carefully you are going to find, I think, on one of 
those he got three life sentences to begin with, 

 



  

19 

and then there is a cover sheet where apparently 
that was reduced to what, eighteen years or fifteen 
years or something, which means, of course, he went 
through the appellate process and somehow got it 
reduced. 

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

1020) 

45. The prosecutor's explicit request for the jury to 

consider the fact that three life sentences previously 

imposed upon petitioner had been reduced "in the appellate 

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

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

appeal. The remarks strongly implied, moreover, that the 

jury in this case should impose a death sentence on 

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

to avoid the possibility that his life sentences would 

somehow be reduced to a term of years by the appellate 

courts, just as petitioner's three prior life sentences had 

been. 

IV. EXPLANATION FOR PRESENTING THESE CLAIMS IN A SECOND OR 
SUCCESSIVE PETITION 
  

  

46, A. Petitioner's Batson v. Kentucky Claim. 
  

Petitioner's challenge to the prosecutor's systematic 

exclusion of prospective black jurors should be entertained 

on its merits in this successive petition since it "could not 

reasonably have been raised in the original ... petition,” 

within the meaning of 0.C.G.A. §9-14-51, The present claim 

depends upon a recent change in controlling federal 

constitutional law, and under settled Georgia precedent, such 

 



  

20 

a change justifies this Court's review on a successive 

application for habeas relief. See Jarrell v. Zant, 248 Ga. 
  

492, 284 S.B.24 17 (1981). 

47. Prior to the United States Supreme Court's 1986 

decision in Batson v. Kentucky, v.s. ; 90 L.,.Ed.2d4 89 
  

(1986), a pattern of prosecutorial exclusions of prospective 

jurors -- even a pattern as strong as that presented by 

petitioner's case -- gave a habeas petitioner no basis for an 

Equal Protection Clause challenge. Under the then- 

controlling authority of Swain v. Alabama, 380 U.S. 202 
  

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

prosecutor's systematic use of peremptorv challenges against 

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

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

prima facie claim. 
  

48. The Supreme Court in 1986, recognizing that the 

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

habeas petitioner, Batson v. Kentucky, 90 L.Ed.2d at 83, 
  

adopted a new standard, under which "a defendant may make out 

a prima facie showing ... by relving solely on the facts 

concerning [jury] selection in his case." Id... at 87 
  

(emphasis in original). 

49. Petitioner's claim in this case is brought under 

the new constitutional standard announced in Batson. This 

new Batson rule, the Supreme Court has held, "'is an explicit 

and substantial break with prior precedent'" which has " 

 



  

K a 

  

21 

'overruled [a] portion of Swain.'" Griffith v. Kentucky, 

8.3. ;- 93. L.BA.2Q 649, 6680 (1987). This new rule was not 

announced until 1986, nearly eight years after petitioner's 

1978 trial, and over five years after his initial state 

habeas corpus proceedings. 

50. The Supreme Court of Georgia has made it clear that 

such changes in law require this Court to consider the merits 

of a successive claim. See Jarrall v. Zant, 248 Ga. 492, 284 
  

S.E.24 17 (1981); Tucker v, Kemp, Ga. ; 7351 8S. E.2d 1986 
  

{1987); 0.C.G.A., §9-14—-51. 

Bl: B. Patrtitlioner's Claim of Intentional 
  

Discrimination. The standard of proof necessary to make out 
  

a claim of racial discrimination in a State's application of 

its capital statutes was not clarified until the Supreme 

Court decided McCleskey v. Kemp, on April 22, 1987. Prior to 
  

that time, no definitive guidance had ever been provided to 

habeas litigants on the elements of such a claim. It was in 

order to provide such guidance that the United States Court 

of Appeals initially agreed in 1984 to address the issue en 

banc and the Supreme Court agreed to grant certiorari in 

1986. 

52. A majority of the Supreme Court in McCleskev 
  

acknowledged that "the nature of the capital sentencing 

decision, and the relationship of ... statistic[al evidence] 

to that decision are fundamentally different from the 

corresponding elements in" other Equal Protection claims. 

 



  

22 

McCleskev v. Kemp, 55 U.S.L.W. at 4541. Ordinary principles 
  

of statistical inference and proof "simply [are] ... not 

comparablie', id., to those the Court has now announced will 
  

henceforth be applicable in capital cases. 

53. The new McCleskev requirement -- that a habeas 
  

petitioner, even one armed with statistical evidence, must 

demonstrate that "the decisionmakers in his case acted with 

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

include specific acts directly attributable to such actors-—- 

constitutes "new law" within the meaning of 0.C.G.A. §9-14- 

51. Petitioner's present claim, predicated on this new 

requirement and proffering this newly required evidence, 

should therefore be addressed on its merits. 

54. Petitioner, moreover, did attempt in his first 

federal habeas proceeding to adduce some evidence that the 

prosecutor in his case had acted with discriminatory intent 

in the selection of petitioner's jurv. During the course of 

federal habeas corpus proceedings, petitioner formally moved 

for discovery, inter alia, of "[alll documents, whether 
  

official or unofficial, and whether for internal or external 

use or for publication, which discuss, refer to or otherwise 

concern, in whole or in part the issue of ... racial 

discrimination in anv and all aspects of jury selection [or] 

jury composition." Petitioner's First Request for Production 

of Documents, dated April 8, 1983, at 4 494, On June 3, 1983, 

the District Court entered an order denying this request "as 

 



  

» % KB 

23 

irrelevant." Order at 2. 

55. During the federal evidentiary hearing, petitioner 

offered the testimony of his sister to establish the racial 

composition of his actual jury -- eleven whites and one 

black. {Fed. Tr. 13316). When he sought to demonstrate the 

unlikelihood that such a jurv composition could have occurred 

in Fulton County by chance (Fed, Tr. 1772), the District 

asked whether petitioner was offering the evidence in support 

of an ordinary jury challenge. (Id.). After some colloquy, 

counsel for petitioner responded: 

yp 

I think we're in a different realm, Your Honor. I 
think we're in an Eighth Amendment realm where the 

question is was Warren McCleskey struck by 
lightning or was he discriminated against. And I 
think this evidence goes to that question, even if 
it doesn't make out a Sixth Amendment issue. 

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

expert testimony which established that, in Fulton County, 

the probability of an 11-to-1 white jury was .03, or three- 

in-one thousand. (Fed Tr. 1777). 

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

petitioner specifically called attention to "the racial 

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

urged the District Court to "consider this fact insofar as it 

finds events in the individual case relevant to the overall 

discrimination issue here." Petitioner's Post-Hearing 

Memorandum of Law in Support of His Claims of Arbitrariness 

and Racial Discrimination, dated September 26, 1983, at 89 

n.39. 

 



  

24 

57, Petitioner later noted for the District Court that 

his statistical case of racial discrimination "need not stand 
  

alone," recalling that "[hle has attempted to obtain and 

offered to present other evidence of racial discrimination in 

Georgia's criminal justice system," which "the Court denied 

holding it irrelevant." Petitioner's Memorandum at 102. 

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

petitioner argued that 

in denying as 'irrelevant' petitioner's discovery 
requests related to prior discriminatory conduct in 
the criminal justice system in Fulton County 
the District Corut erred ... for such anecdotal 

evidence is plainly relevant to an Equal Protection 
Claim." 

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

En Banc Brief for Petitioner McCleskey as Appellee and Cross-— 

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

59. Thus, while petitioner was not apprised prior to 

the April 22, 1987 opinion in McCleskey of the legal 
  

necessity of proffering evidence of specific discriminatory 
  

acts, he had in fact attempted in good faith to proffer such 

evidence. 

80. CC. Petitioner's Giglio Claim. Petitioner did 
  

raise a challenge, under the Due Process Clause, citing 

Giglio v. United States, 405 U.S. 150 (1972), to the State's 
  

failure to disclose its arrangement with Ophie Evans in 

 



  

25 

exchange for his testimony. (Exhibit A, ¢20). This Court 

rejected the claim, holding that a "detective's ex parte 

recommendation [to federal authorities] alone is not 

sufficient to trigger the applicability of Giglio." (Exhibit 

B, 7}. 

61. The applicable constitutional principles have been 

clarified in a number of relevant cases since this Court's 

1981 opinion. See, e.q., United States v. Baglev, 474 U.S 
    

(1985); Brown v. Wainwright, 785 F.2d 1457 (11th Cir. 1986); 
  

Baber v, WHalnwright, 1756 PFP.24 1520 {(1ith Cir. 1985). These 
  

cases constitute a change in applicable law that require this 

Court to redetermine the validity of petitioner's claim. 

62. Alternatively, the affidavits of the trial jurors 

who actually determined petitioner's sehtence reveal that, 

had the State's arrangements with Ophie Evans been fully 

disclosed at trial, petitioner would not have been sentenced 

to death and would likely not have been convicted of malice 
  

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

miscarriage of justice" within the meaning of Murray v. 
  

Carrier, v.83. , 91 L.EA4A.2d 397, 413 (1986), since he is 
  

"actually innocent" of the malice murder of Officer Schlatt 

and "innocent" of a death-worthy crime. Id. Under such 

circumstances, "the Constitution of the United States 

requires" that this claim be heard on its merits. 0.C.G.A, 

§9-14-51. 

63. The State's arrangement with Evans -- concealed by 

 



  

26 

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

concerning the escape charges -- clearly gave the jury a 

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

UWS, ; 91 L.Rd. 24 434, 447 (1986). These 

misrepresentations served, as the attached juror affidavits 

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

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

circumstances, the merits of petitioner's Giglio claim are 

appropriately before this Court for decision. 

64. D, Petitioner's Ake v, Oklahoma Claim. 
  

Petitioner did raise, in his initial state habeas corpus 

petition filed in this Court in 1980, a constitutional 

challenge to the trial court's refusal to provide him an 

independent ballistics expert. {Exhibit A, S$ 22). This 

Court, following well-established precedent, held that "[t]lhe 

appointment of expert witnesses lies within the discretion of 

the trial court," and that "[dlenial of the motion ... will 

not be reversed in the absence of an abuse of that 

discreation.”" (Exhibit B, 10). 

65. Four years thereafter, in Ake v. Oklahoma, 470 U.S. 
  

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

the provision of expert assistance is not solely a matter of 

state trial court discretion. Instead, a state is required 

by the federal Due Process Clause to provide an indigent with 

an expert if the matter at issue "is to be a significant 

factor at trial." See, e.g., Moore v. Kemp, 809 F.2d 702, 
    

 



  

27 

711-12 (11th Cir. 1987) (en banc) (assumes "that the due 

process clause could require the government , both state and 

federal, to provide nonpsvchiatric expert assistance to an 

indigent defendant upon a sufficient showing of need.) 

66. Ake and subsequent cases thus have wrought a change 

in law that requires this Court to consider the merits of 

this successive claim. See 0.C.G.A.§9-14-51; Jarrell wv. 
  

Zant, 248 Ga. 492, S.E.2d (1981); Tucker v. Kemp, Ga. 7 
  

351 3.E.24 196 (1987). 

67; E. Petitioner's Caldwell v. Mississippi Claim- 
  

Petitioner did raise, in his initial state habeas corpus 

petition filed in this Court in 1980, a constitutional 

challenge to the State's closing argument to his jury, during 

which the prosecutor stressed that an appellate court had 

reduced petitioner's previous life sentences. (Exhibit A, 

925). Petitioner relied upon several prior Georgia cases, 

including Prevatte v. State, 233 Ga. 929 S.E.2d (1975) and 
  

Monroe v. State, 5 Ga. 85 (1848), which had held that 
  

"reminding the jury of the existence of an appellate 

tribunal, to which the case with which they were charged 

  

might be carried up, ... was calculated ... to lessen their 

[the jurors'] sense of their own responsibility." Monroe v. 

State, 5 Fa. at 139. Petitioner's Post-Hearing Memorandum, 

dated February 24, 1981, at 12. 

68. Citing exclusively state law precedents, this Court 

rejected the claim, concluding that "[slince the words 

 



  

® @® 
28 

referred to a past conviction, the Court cannot conclude that 

the words had the inevitable effect of encouraging the jury 

to attach diminished consequence to their verdict and take 

less than full responsibility for determining life or death." 

{Exhibit B, 25). 

69. It was not until the Supreme Court's 1985 opinion 

in Caldwell v. Mississippi, over 4 years after this Court's 
  

1981 denial of relief in this case, that the Supreme Court 

first recognized a federal constitutional basis for 

petitioner's claim. 

70. Other than a petition for rehearing presently 

pending in the Supreme Court of the United States, petitioner 

has no other motions, petitions or appeals now pending in any 

court, state or federal, as to the judgment under attack. 

71. Petitioner was represented by the following 

attornevs: 

(a) at the preliminary hearing, trial and appeal 

to Georgia Supreme Court; John Turner, Esqg., now with the 

Fulton County District Attorney's Office, Fulton County 

Courthouse, Atlanta, Georgia; 

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

Esq., 141 Walton Street, Atlanta, Georgia; Jack Greenberg, 

James M. Nabrit, III, John Charles Boger, 99 Hudson Street, 

New York, New York: 

(c) in state habeas corpus, application for 

 



  

29 

certificate of probable cause to appeal to Georgia Supreme 

Court, and petition for writ of certiorari to United States 

Supreme Court; Stroup, Greenberg, Nabrit and Boger. 

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

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

Amsterdam, New York University Law School, 40 Washington 

Square South, New York, New York; and by Stroup; Greenberg; 

Nabrit & Boger. 

72. Petitioner was convicted on one count of malice 

murder and two counts of armed robbery. 

73. Petitioner has no future sentence to serve after 

completion of the sentences imposed by the judgments under 

attack. 

WHEREFORE petitioner Warren McCleskey prays that this 

court: 

is Issue a writ of habeas corpus to have petitioner 

brought before it to the end that he may be discharged from 

his unconstitutional confinement and restraint and/or be 

relieved of his unconstitutional sentence of death; 

2. Conduct a hearing at which proof may be offered 

concerning the allegations of his petition; 

3. Permit petitioner, who is indigent, to proceed 

without prepayment of costs or fees; 

4. Grant petitioner, who is indigent, sufficient funds 

to secure expert testimony necessary to prove the facts as 

alleged in his petition; 

 



  

® ® 
30 

5. Grant petitioner the authority to obtain subpoenas 

in forma pauperis for witnesses and documents necessary to 

prove the facts as alleged in his petition; 

6. Allow petitioner a reasonable period of time 

subsequent to any hearing this Court determines to conduct, 

in which to brief the issues of law raised by this petition; 

Zz. Stay petitioner's execution pending final 

disposition of this petition; and 

8, Grant such other relief as may be appropriate. 

Dated: June 8, 1987 Respectfully submitted, 

ROBERT H. STROUP 
141 Walton Street 
Atlanta, Georgia 30303 

JULIUS L. CHAMBERS 

JAMES M. NABRIT, III 

JOHN CHARLES BOGER 

99 Hudson Street 

New York, New York 10013 

Attorneys for Petitioner 

By: 
  

 



  
APPENDIX A 

 



      

  

IN TEE SUPERICR COURT QF BUTTS COUNTY 

STATE OF GEORGIA 

  

WARREN MCCLESKEY, 

Petitioner, 

H.C. No. 490 g Ve. 
  

WALTFR ZANT, Warden, 

Georgia Diagonistic and 
Classification Center, 

Pespondent, 

  

PETITION FOR A WRIT CF HABEAS CORPUS, 

FOR A STAY OF EXFCUTION, AND FOR 

LEAVE TC PROCEED IN FORMZ PAUPERIS 

  

I. Introduction   

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

to relieve the petitioner of restraint under a conviction 

and sentence of death imnosed upon him by the State of 

Georgia in violation of his rights under the Constitution 

of the United States and of the State of Georgia. 

II. Parties 

(2) Petitioner Warren McCleskey is a citizen of the 

United States and a resident of the State of Ceorgia. Ee 

is presently imprisoned under sentence of death at the Georgia 

Diagonistic and Classification Center in Jackson, Georgia. 

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

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

give securitv therefor. Petitioner believes that he is entitled 

to redress. 

(4) Pespondent Valter Zant is the Warden of the Georgia 

Diagonistic and Classification Center, Jackson, Georgia, 

and has custody of the petitioner in his official capacity. 

Respondent is currently confining petitioner for the 

  TE TT I I Np STN RT EET 7 rn pe gem me 

 



    

n
s
 

se 
mt

 
tt

 
—
 

  

  

® Ly
 

ultimate execution of his death sentehce at the Diagnostic 

and Classification Center, 

III. Prior Proceedings 
  

(5) On October 12, 1978, petitioner was convicted 

in the Superior Court of Fulton County of the murder of 

Atlanta police officer Frank Schlatt and was sentenced to 

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

and given two consecutive life sentences. 

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

Georgia affirmed petitioner's convictions and sentences. 

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

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

certiorari in the Supreme Court of the United States (Mo,  79~ 

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

McClesky v. Georgia, B.S. 49. 0.8.1.V,:.3251. (1580), 
  

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

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

petitioner's death sentence. On December 19,1980, petitioner 

filed an extraordinary motion for a new trial and asked the tria 

court to delay re-sentencing pending disposition of said 

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

IV. Respects in Which Petitioner's 

Rights Were Violated 
  

  

{9) petitioner is in custody in violation of the 

Constitution of the United States and of the State of Georgia 

for the reasons set forth herein. 

(10) The death penalty is in fact administered and 

applied arbitrarily, capriciously, and whimsically in the 

State of Georgia and petitioner was sentenced to die, and will 

be executed, pursuant to a pattern and practice of wholly 

arbitrary and capricious infliction of that penalty in violatio: 

of his rights guaranteed by the Eighth and Fourteenth 

Amendments to the Constitution of the United States, and 

“Ze 

  

 



dD 

  

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

of Georgia, 

(11) Petitioner's death is being exacted pursuant 

to a pattern and practice of Georgia prosecuting authorities, 

courts, juries and Governors to discriminate intentionally 

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

administration of capital punishment. For this reason, the : 

impositon and execution of petitioner's death sentence under 

Georgia law and practice violate the Eighth Amendment and the 

Equal Protection Clause of the Fourteenth Amendment to the 

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

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

i (12) The theoretical justifications for capital 

punishment are groundless and irrational in fact, and death 

is thus an excessive penalty which fails factuallv to serve 

any rational and legitimate social interests that can justify 

its unique harshn=ss, in violation of petitioner's rights 

i. guaranteed by the Eighth and Fourteenth Amendments to the 

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

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

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

consideration of all factors relating to the offense and 

the offender, including mitigating circumstances. For this 

reason, the imposition and execution of his death sentence i 

violates petitioner's rights guaranteed by the Eighth and 

Fourteenth Amendments to the Constitution of the United States, 

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

State of Georgia. 

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

tioner on the basis of funcamentally unfair proceedings in which 

he was not afforded adecuate notice and an opportunity to 

present evidence and argument Adirected to specific issues 

determinative of the question of life and death. The imposition 

ww 

    
 



  

i 

d ® o 

and” execution of the sentence of death under such circumstances 

violates petitioner's rights guaranteed by the Fourteenth 

Amendment to the Constitution of the United States, and Tections 

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

‘Georgia. : 

; (15) Petitioner's trial jury did not constitute a 

representative cross-section of the community and was incapable 

‘of reflecting contemporary community attitudes regarding the 

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

because all persons with conscientious or religious scruples 

against capital punishment were systematically excluded in 

{ 

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

,and Fourteenth Amendments to the Constitution of the United States, 

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

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

i 

trial transcript are attached hereto as Ezhibit RA, i 

i (16) Petitioner's trial jury was unrepresentative 
H . 

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

boa : ' : : : 
guilt or innocence of the crime with which he was charged, in ; 

‘violation of his rights guaranteed by the Sixth and Fourteenth 

‘Amendments to the Constitution of the United States, and 

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

| state of Georgia. 

(17) The Court's failure to adequately instruct 

! 
t 

jurors with conscientious and/or religious scruples against 

‘capital punishment of their duty to subordinate their personal 

| vigus and to abide by their oath as jurors, and to inquire 

| : ; i A : TAs 
i further into their beliefs prior to excusing said jurors 

| contravened petitioner's rights guaranteed by the Sixth and ' 
t 
1 

i 

‘Fourteenth Amendments to the Constitution of the United States 

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

| the- State of Georgia. 
1: 
H 

(18) The introduction into evidence of vetitioner's 

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

-il 

      a see I A — meg 1 SAT 1 EC + D— rv mao EY YC WT py (YET © ew 

 



    
  

result of his arrest without a valid warrant and without 

probable cause, violated petitioner's rights guaranteed by the 

Fourth, Fifth, Sixth and Fourteenth Amendments to the Constitution 

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

the Constitution of the State of Georgia. 

(19) Petitioner's post-arrest statement to 

Atlanta police was involutarily extracted from petititioner 

by promises and threats made to petitioner after Atlanta police 

had made him aware of the highly emotional context within which 

they were conducting the investigation into the death of one of 

their fellow police officers. In this context, petititioner 

was incapable of either maintaining his right to silence or of 

making a Voluntary, knowing and intentional waiver of his rights. 

Introduction of his statement into evidence under such circum- 

! stances violated petitioner's rights guaranteed by the Fifth, 

States and Sections 2-101, 2-111, and 2-113 of the 1276 

Constitution of the State of Georgia. 

Sixth and Fourteenth Amendments to the Constitution of the United 

i 
i 
j 
H 

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

who was not prosecuted for an outstanding escape charge because 

guaranteed by the due process clause of the Fourteenth Amendment, 

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

{ Georgia. 

(21) The deliberate withholding from petititioner 

! 
of a statement by defendant, allegedly made to a government 

trial, denied petitioner due process rights guaranteed by the 

due process clause of the Fourteenth EZmendment to the United 

States Constitution and Section 2-101 of the 1976 Constitution 

of the State of Georgia, 

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

to proceed in forma pauperis and to have benefit of appointed 

3 

    TI I A a I IN IR TT REC Ee ae 0 TIRE Re ve er eg at . i Le 

agent or informer while petitioner was incarcarated and awaiting ° 

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

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

 



      

  

experts to prepare his defense, including an investigator to 

contact potential witnesses. Less than three weeks prior to 

trial, the State listed 96 additional Witresshs which it might 

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

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

gator contravened the petitioner's Fighth and Fourteenth 

Amendment rights and Section 2-101 and 2-114 of the 1°76 

Constitution of the State of Georgia. 

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

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

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

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

had not previously identified petitioner by photograph or in 

persondid so during their observation of petitioner (the only 

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

petitioner, without advice of counsel, and the subsequent 

introduction of witness identification testimony tainted by 

the procedure, violated petitioner's rights guaranteed ky the : 

Sixth Amendment to the United States Constitution and Sections : 

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

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

presumptions of mental states which were elements of the citensd 

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

rights against conviction except upon proof beyond a reasonalkle 

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

of persuasion upon issues relating to his mental state in 

violation of his rights under the the Fifth and Fourteenth 

Amendments to the Constitution of the United States, and 

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

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

and sentencing phase are attached hereto as Exhibit B. 

{25) The Assistant District Attornev's knowing, 

calculated and intentional direction to the jury during the 

closing argument at the sentencing phase of petitioner's trial 

fw 

  rv I a A rT TE NA re err TT YP TR RA Ny TE TY 

 



  

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

  

® o | 

that, in reaching their decision, they should pay particular 

regard te the fact that the aprellate courts had reduced 

petitioner's life sentence on a prior conviction, violated 

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

Amendment to the Constitution of the United States, and Sections 

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

A copy of the trial transcript televant hereto is attached as | 

Exhibit Ci 

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

of Officer Schlatt, the State introduced into evidence, over 

defense counsel's objection, testimony from several witnesses 

regarding defendant's alleged participation in other robberies 

not closely connected in time or manner to the Dixie Furniture 

Store robbery, and for which defendant had been neither indicted 

nor tried. The trial court permitted the State to introduce 

such evidence without prior showing of the probative value of 

the evidence, and without recuiring adequate proof that petitioner 

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

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

of showing defendant actually participated in the other acts, and 

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

jury could make of such evidence. The admission of such 

evidence of independent acts, and the failure to give proper 

limiting instuctions when admitted, contravened petitioner's 

due process rights under the Fourteenth Amendment and Sections 

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

hereto as Exhibit D. 

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

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

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

of independent acts of crime, and those instructions contravened 

the petitioner's rights guaranteed bv the due process clause 

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

To 

. 2 ” 
Sia or ; . EW CE VR 

      pwr rrr er LL ——— ry TT $3 4 pn em 4 A ET A I I eg A Pr + t+ 

 



i 
i 

i 

! : : 3 
: 

» 

  

Constitution of the State of Georgia. 

(29) Georgia statutory privisons and actual 

practices governing appellate review of death sentences: 

(A.) deny petition the effective assistance of counsel; 

(B.) deny petitioner a fundamentally fair hearing and 

a reliable determination of the issue of life or 

death; and 

(C.) deny petitioner the effective assistance of counsel 

and the basic tools of an adequate defense and 

appeal because of his indigency, 

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

and Fourteenth Amendments to the Constitution of the United 

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

Constitution of the State of Georgia. 

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

administered to petitioner inflict wanton and unnecessary 

torture and torment upon him, in violation of his rights 

} guaranteed bv the Eighth and Fourteenth Amendments to the 

i Constitution of the United States, and Sections 2-101 and 2-114 

of the 1976 Constitution of the State of Georgia. 

(31) Petitioner's conviction and the imposition 

upon him of a sentence of death violate the Sixth and Fourteenth 

Amendments to the Constitution of the United States and Sections 

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

because petitioner was denied the effective assistance of 

counsel at his trial. Counsel failed to contact witnesses, 

failed to seek a continuance when necessary to adequately 

prepare for trial, failed to object to improper instructions 

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

jury, and failed to adequately prepare and present evidence 

at the sentencing phase. 

Vv. previous Proceedings That 

: " Petitioner Has undertaken 

ETT To Secure Relief From Conviction 

  

  

  

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

~-8~ 

eR 0 A YW 1 . 
    rom mer: e or PTR FE CER : Te — ” TO SN I Tp Wr re   
 



    
this petition, petitioner has undertaken no other proceedings 

to secure relief from his convictions and sentences. 

VI. Necessity for a Stay of Fxecution 
  

(33) Petitioner was sentenced to death, and on 

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

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

irreparable injury if his execution is not stayed. 

vil, Prayer 

(34) WHEREFORE, PETITIONER RESPECTFULLY REQUESTS : 

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

petitioner's execution pending final disposition of this matter; | 

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

dents; 

] (C.) that respondents be required to appear and answer 

{ the allegations of this satieton; 

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

be relieved of the unconstitutional convictions and sentences | 

of death imposed on him; 

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

alternative relief as may seem just, equitable and proper under 

the circumstances, and 

t (G.) that petitioner be allowed to file this petition 

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

Respectfully Submitted, 

ROBERT H. STROUP 

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

  

JACK GREENBERG 
JAMES M, NABRIT III 
JOHN CHARLES BOGER 

4 10 Columbus Circle 

New York, New York 10019 - 

ATTORNEYS FOR TEE PETITIONER 

    Tr TY EE TT I TE TI TNA A I Ie SS, eT ECR YP TUT NE TT EV Ty Ts   
 



  
APPENDIX B 

 



  

IN THE SUPERIOR COURT OF BUTTS COUCNTY 

STATE OF GEORGIA 

WARREN MCCLESKEY, 

PETITIONER 

HABEAS CORPUS 

VS. CASE NO. 4909 

WALTER ZANT, 

SUPERINTENDENT 

GEORGIA DIAGNOSTIC 

& CLASSIFICATION 

CENTER, 

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RESPONDENT 

  

This habeas corpus challenges the constitutionality 

of Petitioner's restraint and the imposition of the 

death sentence by the Superior Court of Fulton County. 

McCleskey was convicted of Murder and two Armed 

Robberies. He was sentenced to death for Murder and 

to life imprisonment for each Armed Robbery. His 

convictions and sentences were affirmed by the Supreme 

  

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

Certiorari was denied by the Supreme Court of the 

United States. 

The Petition, as amended, contains 36 numbered 

paragraphs, 23 of which allege substantive claims for 

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

paragraphs containing claims for relief by paragraphs 

corresponding numerically to the paragraphs in the Petition. 

 



The record in this hakeas case consists of the 

  

transcript of proceedings before this Court on January 30, 

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

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

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

the discovery file of the prosecution; and the 

transcript and record of Petitioner's trial in Fulton 

County Superior Court commencing on October 9, 1978. 

10. 

In Paragraph 10, Petitioner claims that the 

death penalty is applied arbitrarily, capriciously, 

and whimsically in the State of Georgia and thus 

violates his constitutional rights. 

In support of his contention, Petitioner has 

submitted the affidavit of Wiiliam J. Bowers, 

sociologist and co-author of a study on the 

administration of capital punishment in Georgia. 

The Court has considered the evidence but declines to 

adopt Dr. Bowers' conclusion that the death penalty 

is applied in an arbitrary and discriminatory fashion. 

The proffered study does not take into account the 

myriad circumstances and unique characteristics of 

both offenses and defendants which provide impetus 

for sentences imposed. 

The Georgia capital statute has been declared 

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

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

Court has already reviewed Petitioner's death sentence 

 



  

and found it was not imposed under the influence of 

passion, prejudice or any other arbitrary factor. 

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

found the sentence was not disproportionate considering 

the crime and the defendant. Id. 

Accordingly, the allegation in Paragraph 10 is 

found to be without merit. 

11. 

In Paragraph 11, Petitioner complains that the 

death sentence in Georgia is being exacted pursuant to 

a pattern and practice of Georgia officials to 

discriminate on the grounds of race, sex, and poverty 

in violation of Petitioner's constitutional rights. 

The Court is not persuaded by the report of Dr. 

Bowers. Accordingly, the allegation in Paragraph 11 

is found to be without merit. 

32. 

In Paragraph 12, Petitioner alleges that the death 

penalty is an excessive penalty which fails to serve 

any rational and legitimate social interests. 

The Court is not persuaded by the report of Dr. 

Bowers. Accordingly, this allegation is found to 

be without merit. 

12. 

In Paragraph 13, Petitioner contends the death 

sentence is cruel and unusual punishment in light of 

all factors relating to the offense and the offender. 

The Supreme Court has already decided this point 

 



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

  

  

115. Accordingly, the allegation in Paragraph 13 

is found to be without merit. 

14. 

In Paragraoch 14, Petitioner complains of 

constitutional deprivation due to imposition of the 

death sentence stemming from allegedly unfair proceedings. 

The Georgia capital sentencing structure has been 

declared constitutional. Gregg v. Georgia, supra. 
  

Accordingly, this allegation is found to be without merit. 

150 

In Paragraph 15, Petitioner claims he was denied 

his Sixth, Eighth, and Fourteenth Amendment rights 

because the jury that convicted him did not constitute 

a representative cross-section of the community. 

Specifically, Petitioner contends that two jurors were 

excused without cause because of their opposition to 

the death penalty. 

The Court has examined the voir dire examination 

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

The relevant portions are as follows: 

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

A Yes. 

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

 



  

{®., 97-98}. 

S
p
 

A 

{n...129-130). 

Yes, I.would say so, 

because of the doctrine 

of our church. We have 

a manual that we go by. 

Does your church doctrine 
oppose capital punishment? 

Yes. 

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

Yes. 

You would not even consider 

that as one of the alternatives? 

No, I wouldn't. 

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

Yes. 

You are? 

Yes. 

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

"imposition of the death 
penalty? 

I don't think 80, no. I 
would have to say no. 

Under any circumstances 
would you consider it? 

No." 

Both jurors indicated they could not impose the 

death penalty, regardless of what facts might emerge 

 



  

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

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

510, 88 S.Ct. 1778,:28 1,..26.26.776.{1868). 

The allegation in Paragraph 15 is found to be 

without merit. 

16. 
The Pesizioner in Paragraph 16 charges that the 

jury which convicted and sentenced him was biased in 

favor of the prosecution. 

The Supreme Court of the United States has 

already rejected this "prosectuion prone" argument 

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

  

1788, 20 1,.B4.2d4 797 (1968). See also Douthit v, 

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

Ga. 327(8Y11977 : 2 

Accordingly, this allegation is found to be without 

merit. 

37. 

In Paragraph 17, Petitioner claims harm from the 

trial court's failure to instruct jurors with 

conscientious and/or religious scruples against 

capital punishment to subordinate their personal views 

rather than said jurors being excused. 

The Court has concluded that said jurors were 

properly excused. (See Paragraph 15). Accordingly, 

this allegation is found to be meritless. 

 



18. 

  

In Paragraph 18, Petitioner contends his 

constitutional rights were violated by the intoduction 

of his post-arrest statement given after an allegedly 

illegal arrest. 

There is no evidence to suggest Petitioner's 

arrest was illegal. Additionally, the Supreme 

Court has already decided Petitioner's statement 

was properly admitted. McClesky v. State, supra, 
  

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

be without merit. 

See Paragraph 18. 

20. 
In Paragraph 20, Petitioner alleges violation of 

his constitutional rights because of the State's 

failure to disclose its arrangement with an informer 

who testified at Petitioner's trial. More specifically, 

Petitioner claims that the testimony of Offie Evans 

was given in exchange for a promise from an Atlanta 

Police Bureau detective that he would give a favorable 

recommendation for Evans who had federal escape charges 

pending. 

Mr. Evans at the habeas hearing denied that he 

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

He did state that he was told by Detective Dorsey 

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

The detective's ex parte recommendation alone is 

not sufficient to trigger the applicability of Giglio 

v. United States, 405 U.8..150, 92 S.Ct. 763, 31 L.E4d.24 
  

104 (1972). See Tawmplin v. State, 235 Ga. 20(2) (1975). 
  

 



The prosecutor at Petitioner's trial, Russell J. 

  

Parker, stated that he was unaware of any understandings 

between Evans and any Atlanta Police Department 

detectives regarding a favorable recommendation to be 

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

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

for Atlanta detectives to put in a good word for Evans 

with federal authorities. (I4., p- 19). However, he 

further stated that when any police officer has been 

killed and someone ends up testifying for the State, 

putting his life in danger, it is not surprising that 

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

In the absence of any other evidence, the Court 

cannot conclude an agreement existed merely because 

of the subsequent disposition of criminal charges 

against a witness for the State. See Fleming Vv. 
  

State, 236: Ga. 434, 438 (1978). 

Accordingly, the allegation in paragraph 20 is 

found to be without merit. 

21. 

In Paragraph 21, Petitioner alleges that his 

Fourteenth Amendment rights were violated by the State's 

deliberate withholding of a statement made by Petitioner 

to Offie Evans. 

This claim has already been decided adversely to 

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

Therefore, the allegation is found to be without merit. 

 



  

£93.. 

In Paragraph 22, Petitioner claims he was denied 

his Sixth and Fourteenth Amendment rights by the 

trial court's failure to grant his Motion to proceed 

in forma pauperis and for funds to employ experts 

to aid in his defense. Specifically, Petitioner 

complains of harm from the lack of an investigator 

and of a ballistics expert. 

Petitioner charges that the need for an investigator 

became more critical when the State served him with an 

additional list of 96. "may call" witnesses approximately 

three weeks prior to trial. Defense Counsel Turner 

testified at the habeas hearing that the list was for 

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

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

over the list wish Petisionen to Jearn Whether Retitioner 

knew any of the witnesses or what their testimony could 

be. (3.7. 34). 

It is clear that defense counsel had access to the 

prosecution's discovery file which included statements 

from all witnesses (except Evans) and investigative 

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

State Crime Laboratory reports (see Discovery File). 

While an investigator may have been helpful, the 

Court cannot conclude Petitioner was harmed by the 

failure of the trial court to appoint an investigator, 

especially in light of Petitioner's defense that he 

was not even present at the robbery. {R.P.257;58). 

 



  

\ Rl 

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

Kelly Fite, testified that the murder weapon was 

probably a .38 Rossi, but no weapon was ever 

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

Mr. Fite stated that his opinion was based on an 

accumulation of data for several years plus a check 

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

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

two other type weapons were possibilities. (14. PD. 7). 

Even if another expert had testified, it is doubtful 

that such testimony cool have sufficiently refuted 

the totality of evidence against Petitioner. 

The appointment of expert witnesses lies within 

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

1 {1978); Crenshaw v. Stats, 244 Ga. 430 (o
n 242 Ga. . 1 

  

(1979). Denial of the Motion for the appointment 

of experts will not be reversed in the absence of an 

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

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

Here, Petitioner demonstrated no special need 

for the appointment of an investigator, nor did 

Petitioner request the appointment of a ballistics 

expert. In the absence of any evidence of abuse, 

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

Motion appears to be a proper one. 

Accordingly, the allegation in Paragraph 22 is 

found to be without merit. 

23. 

In Paragraph 23, Petitioner claims that a highly 

 



  

% A » 

suggestive line-up occurred prior to the commencement 

of his trial which violated his Sixth Amendment 

rights. 

This issue has already been decided adversely 

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

Petitioner has presented no new evidence to indicate 

that the Supreme Court's conclusion was in error. 

Accordingly, this allegation is found to be 

without merit. 

24. 
Bl 

In Paragraph 24, Petitioner argues that the jury 

instructions concerning intent impermissibly shifted 

the burden of persuasion to Petitioner in violation 

of his Fifth and Fourteenth Amendment rights. 

The relevant portion of the jury charge is as 

follows: 

"Now, in every criminal 
prosecution, ladies and 

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

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

One section of our law says 
that the acts of a person 
of sound mind and discretion 
are presumed to be the 
product of the person's 
will, and a person of sound 

 



  

mind and discretion is 
presumed to intend the 
natural and probable 
consequences of his acts, 

but both of these 

presumptions may be 
rebutted. 

I charge you, however, 

that a person will not 
be presumed to act 
with criminal intention, 
but the second code 

section says that the trier 

of facts may find such 
intention upon consideration 

of the words, conduct, 

demeanor, motive and all 
other circumstances 

connected with the act for 

which the accused is prosecuted. 

Now, that second code section 

I have read you has the 
term the trier of facts. In 

this case, ladies and gentlemen, 

you are the trier of facts, 

and therefore it is for you, 

the jury, to determine the 

question cf facts solely irom 

your determination as to 

whether there was a criminal 

intention on the part of the 

defendant, considering the 

facts and circumstances 

as disclosed by the evidence 

and deductions which might 

reasonably be drawn from those 

facts and circumstances. " 

(T. 996-997). 

The jury instruction in this case clearly indicates 

that the presumption could be rebutted so that the 

presumption created was merely a permissive one. Such 

permissive presumptions have been held valid. Skine v. 
  

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

(1980). Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 
  

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

 



  

ground that the jury "were not told that the presumption 

could beirebutted....” 6l.L.E4d.24 at 46. 

Accordingly, the allegation in Paragraph 24 is found 

to be without merit. 

. 23. 
Petitioner charges in Paragraph 25 that the 

prosecution impermissibly referred to the appellate 

process in his argument during the sentencing phase 

in contravention of Petitioner's constitutional rights. 

The relevant portion of the prosecutor's argument 

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

Ga. Code Ann. 527-2206 prohibits counsel in a 
  

criminal case from arguing before a jury that a 

defendant, if convicted, may not be required to suffer 

the full penalty imposed because of the possibility 

of executive alevenay. Hore, the prosecution used 

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

reference to a prior life sentence Petitioner had 

gotten reduced, not to the possibility that a life sentence 

could be reduced if the jury decided to impose such a 

sentence. Since the words referred to a past conviction, 

the Court cannot conclude that the words had the 

inevitable effect of encouraging the jury to attach 

diminished consequence to their verdict and take less 

than full responsibility for determining life or death, 

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

929(6){1975). 

30 

 



The prosecution may argue for a death sentence 

  

and offer plausible reasons for his position. Chenault 
  

v. State, 234 Ga. 216 {(7){1975); Street v. State, 
  

  

237 ‘Ga. 307, 315 (1976): Gates v, State, 244.Ga. 587, 595 
  

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

to be within the bounds of proper argument. 

Accordingly, the allegation in Paragraph 25 is 

found to be without merit. 

26. 

In Paragraph 26, Petitioner alleges that the trial 

court improperly admitted evidence of other robberies 

of which Petitioner had not been convicted and without 

adequate jury instructions which violated Petitioner's 

rights to due process of law. 

The Supreme.Court has already decided the issue of 

admissibility adversely to Petitioner. McClesky v. State, 
  

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

also noted that the trial court had charged the jury 

as to the limited purpose for which the similar crimes 

were admitted. In that the trial court cautioned the 

jury as to the limited purpose for which the acts were 

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

repeated the same cautionary instruction in the jury 

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

the Court does not find Petitioner's rights were 

contravened in any way. 

Accordingly, this allegation is found to be without 

merit. 

 



27. 

  

In Paragraph 27, Petitioner claims violation of his 

rights guaranteed by the due process clause by the 

alleged overly-broad instructions regarding the use 

which the jury could make of the evidence of 

Petitioner's other acts in the guilt phase. 

See Paragraph 26. 

This allegation is found to be without merit. 

29. [sic] 
  

In Paragraph 29, Petitioner charges that the 

Georgia appellate en TE process denies him effective 

assistance of counsel, a fundamentally fair hearing 

and reliable determination of life or death, and the 

basic tools to prepare an adequate defense because of 

nis: Whdiceney. % 

The Georgia capital sentencing structure has been 

declared constitutional. Gregg v. Georgia, supra. 
  

Accordingly, this allegation is found to be 

without merit. 

30. 

Petitioner claims in Paragraph 30 that the means by 

which the death penalty will be administered will inflict 

wanton and unnecessary torture upon him in violation 

of his Eighth and Fourteenth Amendment rights. 

The Georgia death statute has been declared 

constitutional. Gregg v. Georgia, supra. 
  

Accordingly, this allegation is found to be without 

merit. 

wlBw 

 



31. 
mesg 

  

In Paragraph 31, Petitioner claims that he was 

denied effective assistance of counsel in violation 

of his constitutional rights. 

At trial and on appeal, Petitioner was represented 

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

Assistant District Attorney in Fulton County since 

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

staff, Mr. Turner was in private practice for 

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

consisted of roughly 80% criminal work wherein he 

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

Priorito entering private practice, Mr. Turner served 

as Assistant United States Attorney in the Northern 

District of Georgia for two years. HT. 24). He was 

retained to represent Petitioner a few days after 

Petitioner was initially arrested, about one week before 

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

The Court has reviewed the evidence and found the 

following allegations to be without merit: 

l. Counsel failed to contact witnesses. Mr. Turner 

testified at the habeas hearing that he had had fairly 

extensive pretrial conversations with the prosecutor and 

had discussed a good bit of the information contained 

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

He also had access to the discovery file which contained 

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

and had an agreement with the prosecution to obtain copies 

vf actual statements of witnesses for cross-examination 

 



purposes. . (0.7. 88). Mr. Turner testified that he 

  

did not interview any employees of the Dixie Furniture 

Store prior to trial because he had opportunity to 

cross-examine the three employees who testified at the 

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

employees who testified at trial gave testimony periphereal 

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

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

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

officers because he had full access to their 

investigative reports contained in the prosecution's 

discovery file. (H.T.: 37). Further, Counsel went 

over the witness list with Petitioner to see whether 

Petitioner knew any of the people or the type testimony 

they could give. (H.T. 34). Finally, Counsel asked 

Petitioner for the names of alibi witnesses, and 

Petitioner responded with one nickname of a person 

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

Decisions on which witnesses to call, whether and how 

to conduct cross—-examinations, and all other strategies 

and tactical decisions are the exclusive province of the 

lawyer after consultation with his client. Reid v. 

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

factors, the Court cannot conclude Counsel was 

ineffective merely becuse he did not physically 

pursue witnesses. Accordingly, this allegation is 

without merit. 

—-)7~ 

 



2. Counsel failed to seek a continuance when 

  

necessary to prepare adequately for trial. 

Counsel testified that he had "fairly extensive" 

contact with Petitioner prior to both the preliminary 

hearing and trial, meeting with Petitioner well over 

a dozen times, three times prior to the preliminary 

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

extensive discussions with the prosecution, he had 

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

also said that although he looked at the prosecution's 

discovery file only once, he got everything he needed. 

Effectiveness is not measured by how another 

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

225 Ga. 268.{1963); Jones v. State, 243 Ga. 820 (1979).   

In addition, the issue of whether counsel should have 

moved for a continuance and for mistrial after an alleged 

suggestive line-up occurred on the morning Petitioner's 

trial began constitutes the kind of hindsight which has 

never provided the basis for ineffective assistance 

claims.  MacKenna v., Ellis, 280 F.24 592 (5th Cir. 1960) ; 
  

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

3. Counsel failed to object to improper 

instructions to the jury. 

The Court has concluded that the jury instructions 

were neither burden-shifting (see Paragraph 24) nor 

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

is meritless. 

«1G 

 



  

evidence that did not exist. 

The Sixth Amendment right to counsel means 

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

ineffective by hindsight, but counsel reasonably 

likely to render and rendering effective assistance. 

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

  

Petitioner's trial counsel easily meets this 

test. He was experienced in the trial of criminal 

cases. He prepared for and advocated Petitioner's 

cause in a reasonably effective manner. Counsel's 

testimony shows him to have been an intelligent and 

concerned defense lawyer. The effort he put forth 

for Petitioner was certainly reasonably effective within 

the meaning of the standard. 

Accordingly, the allegations in Paragraph 31 

are found to be without merit. 

35. 

In Paragraph 35, Petitioner complains that the 

introduction of his statements made to Offie Evans 

were elicited in a situation created to induce 

Petitioner to make incriminating statements in 

violation of his Sixth Amendment right to counsel. 

The Supreme Court has already decided that the 

testimony of Evans was properly admitted. McClesky Vv. 
  

State, supra, at 112(4). This Court has concluded 

that there was no arrangement made for the testimony 

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

no evidence tending to show that his statements were 

elicited in violation of his Sixth Amendment rights. 

Accordingly, this allegation is found to be without 

merit. 

 



4. Counsel failed to object to improper arguments 

  

to the jury. 

The Court has concluded that the prosecutor's 

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

claim is meritless. 

5. Counsel failed to prepare adequately and 

present evidence at the sentencing phase. 

Counsel testified that prior to trial, he went 

over Petitioner's background with him, schools he had 

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

Petitioner if he had any witnesses or anyone to 

testify as to his character. He also discussed 

the same matters with Petitioner's sister, who 

declined to testify and told Counsel that her mother was 

‘not able to testify. (H.T. 80). Counsel also 

testified that Petitioner refused to testify in 

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

Petitioner presented conflicting evidence to the 

extent that Petitioner's sister testified she was 

not asked to testify or to provide the names of potential 

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

presented the affidavits of five persons who indicated 

they would have testified for Petitioner had they been 

asked. 

Despite the conflicting evidence on this point, 

however, the Court is authorized in its role as fact 

finder to conclude that Counsel made all inquiries 

necessary to present an adequate defense during the 

sentencing phase. Indeed, Counsel could not present 

 



  

36. 

Petitioner claims in Paragraph 36 that the 

evidence upon which he was convicted was insufficient 

to show his guilt beyond a reasonable doubt in 

violation of his constitutional rights. 

The Supreme Court has already decided that the 

evidence supports the finding of aggravating 

circumstances, the finding of guilt, and the 

sentence of death beyond a reasonable doubt. McClesky   

  

v. State, supra, at 115. 

Accordingly, this allegation is found to be without 

merit. 

WHEREFORE, all allegations in the Petition 

having been found without merit, the Petition is denied. 

This PP day of April, 1981. 

ul se: 
    

ALEX CRUMBLEY 
JUDGE SUPERIOR COURTS 
FLINT JUDICIAL CIRCUIT 

 



  

APPENDIX 
  

Now, what should you consider as you are 

deliberating the second time here, and I don't 

know what you are going to consider. 

I would ask you, however, to consider several 

things. Have you observed any remorse being exhibited 

during this trial by Mr. McClesky? Have you observed 

any remorse exhibited while he was testifying? 

Have you observed any repentence by Mr. McClesky, 

either visually as you look at him now or during the 

trial or during the time that he testified? Has he 

exhibited to vou any sorrow, both visually or during the 

time that he was testifying? 

Have you seen any tears in his eyes for this 

act that he has Rone? a! . 

I would also ask you to consider the prior 

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

and particularly the one where he got three convictions. 

I believe if you look at those papers carefully you 

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

1ife sentences to begin with, and then there is a cover 

sheet where apparently that was reduced to what, eighteen 

years or fifteen years or something, which means, of 

course, he went through the appellate process and 

somehow it got reduced. 

Now, I ask you to consider that in conjunction 

with the life that he has set for himself. 

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

 



  

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

man that's served considerable periods of time in 

prison for armed robbery, just like Ben Wright said, 

you know, that is his profession and he gets in 

safely, takes care of the victims, although he may 

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

considers doing a good job, but of course you 

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

I don't know what the Health, Education and 

Welfare or whatever organization it is that checks on 

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

considers his responsibility. 

Now, apparently Mr. McClesky does not consider 

that his responsibility, so consider that. The life 

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

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

to have to have another trial sometime for another peace 

officer, another corrections officer, or some innocent 

bystander who happens to walk into a store, or some 

innocent person who happens to be working in the store 

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

makes the wrong gesture, that moves suddently and ends 

up with a bullet in their head? 

(7. 1019-1020). 

ii. 

 



  
APPENDIX C 

 



  

your blood pressure pills, If you had your blood 

pressure pills, would you feel like you could serve? 

THE JUROR: Yes, sir, 

THE JUROR: Ky wife 1s e sericus diabetic and I need 

to be at home at night with her, 8nd alsc, I have an 

eighty=-seven vear old father-in-law living with me. 

THE COURT: I will excuse you, sir. 

THE CLERK: What is your name, sir? 

THE SJURUF: Windle ¥. Burd. 

THE CLERK: Gentlemen, that is juror umber &5. 

ThE COURT: Yes, matan., 

THE JUROR: §&ir, I have to heve a prescription 

filled, a medical prescription, 

THE COURT: Do you have your prescription with you? 

THE SUROF: Yes, sir. 

THE CCURT: If you had that prescription filled, 

would you then be able to serve? 

TRE JUKCR: Yes, sir, 

“HE COURT: All right, If you were chOsen, we could 

handle that for you, I presune, 

Is there anyone else that could not serve uncex these 

facts? 

Ell right, gentlemen, let's begin the selection of 

8 jury. 

THE CLERK: Ladies and gentlemen, as I call your 

-167=- 

 



  

nare, please stand and remain standing until both sides 

heve an opportunity tc pass upon you. 

PRilic ‘Ss NOYT ia, 

HH KR ® 

MR. 

THE 

TURRER: 

CLERKS 

PARKERS 

TURBLRS 

CLERK? 

PARKLK: 

The State will e&ccept fr. Morris, 

Excusea by the defendant, 

walters. Mrs, Doris ¥. 

The State will excuse Mrs, walters, 

vie Eo Marshall, Jr. 

The State will accept Mr. Marshall. 

Excused by the defendant. 

Hrs. Lucile E&hively. 

The State will accept irs. Shively, 

Excused by the defendant. 

leonard Larsche. 

The State will accept Mr. Larson, 

Excused by the defendant, 

rdna walls. 

The State will excuse Hrs, walls. 

Mrs. Marguerite P, Bohler, 

-168- 

 



  m7 rn Cp ee PSR 

PF. 

THRE 

HK, 

PARKER? 

TULLKER: 

CLEKN: 

PAKELE: 

TURNER: 

CLCER: 

PARKER: 

TURNCE 

PARKER: 

TURNBEK: 

CLERK 

PLREER: 

TURLER: 

CLERK: 

PRRKER: 

The State will accept Hrs, Bohler., 

Acceptable to the defendant. 

Ronalo CG. Hudelins, 

Tne Stete will accept Mr. hudgins, 

Acceptable to the deiendant., 

Hrs. #ildred Clover, 

The State will accept lirs., Glover. 

Excused by the defendant. 

Faul J. keale, 

The Etete will accept Hr, Reale, 

Lecceptacle to the defendant, 

cohn Ik, Holder. 

Bolder, The State will accent kr, 

Excused by the defendant, 

wayne F, Martin. 

The State will accept Br. Martin. 

Excused by the defendant. 

FoLbert L. Hamilton, 

The State will accept Mr, Hamilton, 

-16%= 

Se " — nv hr RY AR RE gate a I ——— rg 

 



  

FiRe 

#“R 

TURNERS 

CLERKS 

PARELCPR: 

TUELEK: 

CLERKS 

PAREER: 

URKER? 

Acceptable to the defendant, 

Mrs. Carolyn J. Bellerd, 

Tne State will accept Hrs, Ballard. 

Hrs, Ballard ls acceptable to the 

Mrs. Mildred Moore, 

The State will accept Hrs. 

Cxcusel by tne defendant, 

fFobert E. Smith. 

“he State will accept Fre. 

Excused by the defendant, 

Mre. Florence k. #obley. 

The State will excuse irs, 

Janes L. Kimball. 

The State will accept Hr. 

Excused by the defendant. 

kobert L. lLagle, 

(:00Te 

Smith ® 

tiebley. 

rimball. 

The State will accept Mr. Kagle, 

Acceptable to the defendant. 

-17C- 

 



  

CLERK: 

TURES 

CLERL: 

PAREXKLKS 

TURBLERS 

CEFR 

FARKLER$ 

CLEXK: 

PARKERS 

PARKERS 

TURILRS 

CLERK: 

PARKEK?S 

TURNER: 

CLLRK: 

Excuse 

Donald G, 

Robert CC. 

Gosden, 

fhe State will accent Mr. Cosden. 

Acceptanle to the defendant. 

fears. 

Tne Otate will accept Mr. Scarce, 

Xcused uy the defendant, 

Jessie Horne, 

State 

Acheg 

Stete 

will excuse 

Cs AwLlrey, 

will accept Mr 

Acceptable to the defendant, 

Marianne Ww. 

Rollin C, 

The State will accept Mrs, Nasher. 

Acceptable to the defendant. 

The State will accept Mr, Watkins, 

¢ by the defendant, 

Sharpe. 

 



  

iiR., PARKER: The State will accept Mr. Sharpe, 

sKRe TURNER: Excused by the defendant, 

TEE CLERK: Miss Carol A, James. 

MR. PARKER: The State will accept Hiss James, 

MRe TURNERS Excused by the defendant, 

THE CLERK: John F. keoCaddan, 

HR. PARKER: The ELtate will excuse Mr, McCadden, 

THE CLERE:  Pobert FPF. Burnette, 

Ee. PARELR: The State will accent Mr. Burnette, 

MRe TURKL:i: Acceptable to the defendant. 

MEP CLEBEr Hrs. Clifford L. Lutton, Jr. 

Mile PARKER: The State will excuse Mrs. Lutton. 

THE CLERR: Mrs, Dorothy Snith. 

KK. FARKER: The State will accept Mrs, Smith. 

MR. TURKER: Excused by the defendant. 

THE CLERK: Mrs. Mary G. Darmer. 

MR. PARKER: The State will accept ¥rs. Darmer. 

MR. TURKER: Acceptable to the defendant. 

-172=- 

 



  EB as die a A TE 
     

LT. 

  

TTI. RT TS, PU 

FARKCER 

CLERK: 

Mrs. waldtraut I. Lavroff. 

The State will excuse lirs 

Joseph C, League, Jr. 

Tue State will accept mr. 

bLxcusec by the Zefendent. 

Hrs. Euzanne H, Kilgo., 

The State will excuse rs. 

Jouscyrh Lene, 

The rete will escuse ¥r. 

William A. Lane, 

The State will accept Er, 

Excused by the defendant, 

Johnsen BF. Mason, 

* 

The State will accept rir, 

Excused by the defendant. 

Hrs. H. H, Eickey. 

League, 

cane, 

Mason, 

PARKER: . The State will accept Frs. Eickey. 

CLERK: The following four jurors will be called 

Sr ye 

Acceptable by the defendant. 

-173- 

CE LE ttm 13 tat i EE Te a AE rE  ——     



  

for the purpose of selection of the first alternate. 

Patricia Dukes, Thet's Juror Lumber 107. 

ike PARFER: The ELtate will excuse I's. Dukes. 

;11lard E. Beavers. -
r
 Tie CLIFK: 

MR. PARKER: The State will accept hr. Beavers. 

#ire TURKEHM: Excused by the defendant. 

+3
 

~
~
 

P
O
 

vs
 

eC
 

Ee
 

i
 pon
y 

bo
at
 

h
e
 

"e
o 

-
 -illier J. Creene, Jr. 

HK. PARKEK: The State will accept lir. Greene. 

kr. WUKLLEK: Excused by the defendant, 

THE CLERK: John M, Apernathy, Jor., will be the 

first alternate, 

The next four jurors will be called for the purpose 

of selecting the second alternate, 

¥rs, Mary J. Cox. 

Fe PARKLCR: The State will excuse kKrz. Coxe. 

THE CLERK: Ordney C. Eezldwin, 

ME. PARKER: Tne State will accept Mr. Baldwin, 

MR. TURNER: Acceptable to the defendant. 

TEE COURT: All right, gentlemen, we have our 

twelve jurors and twc alternates, We cidn't reach vour 
1 r~ 

names and you are excused until in the morning at $:30. 

-174- 

  
EE WS rl wer Gm Te Ty mp WT J = 0 AV HR IY. So ng J 08 MATER 7 Lm 4 SN $0 om om ret J TS Yom, om WS wo: We, 0 TW GT        



  

Report hack to the jury assembly rocm at %:30 in the 

merning. Thank you very much for vour patience. 

“YE. PARKER: Does Your Honor know how late we will 

proceed this evening? 1 have released sone witnesces 

and 1 need to start getting ther back down here. 

THE COURT: Let's have the opening statements, and 

I guess so these jurors won't feel that thev didn't 

accerrlish anything, let's plan tc co until 5:00 or 5:30, 

either way you want to. 1 will let you decide how Rany 

vitnesses you need. 

211 risht, gentlemen, the Court is going to impose 

the rule, Are vou ready? 

YE. PARKLK: Yes, Your Eonor. 

TUE COURT: All richt, Will 211 the witnesses in 

the courtroom who expect to testify in this case please 

3C with the sheriff to the witness roor. If you expect 

to testify at all for the State or the defendant, please 

leave the courtroon. 

Gentlemen, do you object to the sheriff going in and 

finding out if anybody is going to need him to go vet their 

- clothes or -- we know we have one juror that wants his 

blood pressure prills, Do you mind the sheriff going into 

. = the jury room and asking those queetions so he can get a 

- nurniber on how many people be will need? 

MR, TURNER: No objection from us. 

-175=~ 

 



  
APPENDIX D 

 



  

STATE OF GEORGIA 
COUNTY OF FULTON 

AFFIDAVIT 
  

0 My name is Harriet P. Morris. I reside at 4655 Jett 

Road, N.W., Atlanta, Georgia 30327. 

2s On Wednesday, May 20, 1987, I visited the Fulton County 

Voter Registration Office, Room 106, 165 Central Avenue, S.W., 

Atlanta, Georgia 30335 to view the Master Voter Registration List 

in use at the time of Warren McCleskey's trial in Fulton County 

in October, 1978. The Voter Registration List is preserved on 

microfiche, and is available for public viewing in the 

Registrar's office. The List which I viewed was current as of 

July 28, 1978, 

3. The Voter Registration List contains the following in- 

formation: Name of Voter, Current Address, Voting Precinct, Con- 

gressional District, State Senate District, State House District, 

City Council District, Year of Birth, Race, Sex, and Date of 

Oath. 

4, By reviewing the Voter Registration List, I was able to 

determmine the race of sixty-nine (69) of the seventy-two (72) 

jurors who comprised the six (6) panels from which Warren 

McCleskey's jury was chosen. See, Exhibit A. 

54 The names of three (3) jurors whose names appear on the 

jury list which is a part of the McCleskey record and who were 
  

voir dired prior to the selection of the jury which heard the 

case do not appear on the Voter Registration List which I viewed. 

Jessie D. Horne, Panel No 8, Juror #85; Mary J. Cox, Panel 10, 

Juror #111; Autry A. Dennis, Panel 11, Juror #127. 

 



  

6. In an attempt to determine the race of these persons, I 

viewed the Master Voter Registration List which immediately 

preceded the July 28, 1978 list. This list, dated September 11, 

1977, did not contain the names of these persons. 

y 24 I reviewed the Trial Transcript of the Voir Dire and 

Jury Selection to determine which prospective jurors had been 

excused, which had been peremptorily stricken by the State and 

the Defense, and which had ultimately been seated as jurors. 

Further Affiant saith no more. 

t 

mi * lias I Hak 2) 
3 rE A ~~ ee ended é Bivirb—— 

+ 14 ! § ~ I 
  

Harriet P. Morris 

Sworn to and subscribed before me, 

this the J&Z day of May, 1987. 

Cats A PT re 
Notary Public 
  

My Commission expires: (/15/¢¢ 

 



  

DA-# 

Alt. # 

KFY TO JURY LIST 
  

Defendant's Peremptory Strikes 

State's Peremptory Strikes 

Jurors Seated To Hear Case 

Jurors Excused From Case 

Jurors Who Were Voir Dired But Omitted From 
The Striking Process; Trial Transcript Silent 
As To Reason 

State's Peremptory Strikes for Alternate 
Jurors 

Defendant's Peremptory Strikes for Alternate 
Jurors 

Alternate Juror 

EXHIBIT A 
  

 



JURORS IMPANELED FOR STATE v. McCLESKEY, A-40553 

  

  

    

  
  

  
  

  
  

JUROR RACE JURY JUROR RACE JURY 

PANEL NO 6 PANEL NO 9 

Philip S. Morris Ww D-1 Darmer, Mary G. Ww #11 

Walters, Doris S. B S-1 Lavroff, Waldtraut Ww S-7 

Marshall, W. E., Jr. W D-2 League, Joseph C. W D-16 

Thompson, W.M. Ww Exc. Kilgo, Suzanne H. W S-8 

Hurd, Windle W. Ww Exc. Dane, Joseph R. W S-9 

Shively, Lucille T. W D-3 Lane, William A. Ww D-17 

Larson, Leonard J. Ww D-4 Mason, Johnson B. W D-18 

Walls, Edna B S-2 Hickey, Mrs. H.H. W #12 

Bohler, MargueriteP. W #1 Montgomery, BruceE.W 27 

Hudgins, Ronald O. Ww #2 Kirbo, Margaret L. W 22? 

Glover, Mildred F. W D-5 Dukes, Patricia J. B SA-1 

Reale, Paul J. W #3 Beavers, WillardE. W DA-1 

PANEL NO 7 PANEL NO 10 

Holder, John M. Ww D-6 Greene, William J. W DA-2 

Martin, Wayne F. Ww D-7 Abernathy, John M. W Alt.1 

Hamilton, Robert L. B #4 Cox, Mary J. SA-2 

Ballard, Carolyn J. W #5 Baldwin, Rodney C. B Alt.2 

Moore, Mildred R. Ww D-8 Johnson, Wiley F. B 

Smith, Robert E. Ww D-9 Williams, Clarence W 

Mobley, Florence R. B S-3 Conner, Robert L. W 

Kimball, James L. Ww D-10 Turner, Marian D. W 

Nagle, Robert L. w #6 Ross, Marian C. B 

Gosden, Donald G. W #7 Underwood, Jean W 

Weston, Barbara J. B BYC. McKibben, Mary W. B 

Sears, Robert C. W D-11 Parrish, Judy K. B 

PANEL NO 8 PANEL NO 11 

Horne, Jessie D. S-4 Vaughn, Agnes C. B 

Awtrey, Agnes C. Ww #8 Alvarado, David Ww 

Nahser, Marianne W. W #9 Blackmon, Thomas F.W 

Watkins, Odel, Jr. B D-12 Grove, Samille T. W 

Sharpe, Rollin C. Ww D-13 Guthrie, Nancy R. W 

James, Carol A. Ww D-14 Becker, Cornelia V.W 

McCadden, John F. B S-5 Dennis, Autry A. 

Hiles, Joseph W. Ww Exc. Walker, Leda L. Ww 

Burnette, Robert F. W #10 Young, Margaret E. W 

Lutton, Jeannette Ww S-6 Buchanan, James F. W 

Cason, Emma T. W Exc. Stansberry, Jeanne W 

Smith, Dorothy W. B D-15 Jeter, Betty G. Ww 

 



  
APPENDIX E 

 



  

AFFIDAVIT OF PATRICIA DUKES 
  

STATE OF GEORGIA) 

}SS: 
COUNTY OF FULTON) 

Personnally before the undersigned officer duly authorized 

by law to administer oaths, appeared PATRICIA DUKES, who, after 

being duly sworn, deposed and stated as follows: 

1. My name is PATRICIA DUKES. I am more than eighteen 

years of age, and am under no legal disability of any kind. 

This affidavit is given voluntarily and without coercion of any 

kind. 

2. I was a resident of Fulton County during 1978, and was 

called for jury duty during the week of October 9, 1978. I 

recall being questioned individually as one of a number of jurors 

called as a potential juror in the trial of a man [Warren 

McCleskey] accused of shooting an City of Atlanta police officer. 

3. I was not chosen as a juror in that case. I was excused 

by the prosecutor. 

This A. dav ot" 4 em, 1986. 
  

PATRICIA DUKES 

Sworn to and subscribed before me, 
this 2 T" Yang of - J 00 , 1986. 

  

\ 
i 

3 

enn. mn,   

Notary Public Notary Public, Georgia, State at LEIRE 
My Commission Expires March 1, 1987 

 



  

AFFIDAVIT OF JESSIE D. HORNE 
  

STATE OF GEORGIA) 

}SS: 
COUNTY OF FULTON) 

Personally before the undersigned officer duly authorized 

by law to administer oaths, appeared JESSIE D. HORNE, who, 

after being duly sworn, deposed and stated as follows: 

l. My name is JESSIE D. HORNE. I am more than eighteen 

years of age, and am under no legal disability of any kind. 

This affidavit is given voluntarily and without coercion of 

any kind. 

2. I was a resident of Fulton County during 1978, and 

was called for jury duty during the week of October 9, 1978. 

I recall being questioned individually as one of a number of 

jurors called as a potential juror in the trial of a man 

[Warren McCleskey] accused of. shooting a City of Atlanta 

police officer. : iT | ie 

3. I was not chosen as a juror in that case. 

4. My race is Black. 

This 25 yg day of “Wand £7) r 198¢. 

Nerds Neen, 5.) 
(f= D. HORNE 

  

  

  

Sworn to and subscribed 

before me, this 

  

day of fv A957. : ; 
notary Public, Georgia, State at Large 

  

NOTARY PUBLIC nmissian Expires Seqt. 5, 1987 

 



  

AFFIDAVIT OF FLORENCE MOBLEY 
  

STATE OF GEORGIA) 

)SS: 
COUNTY OF FULTON) 

Personnally before the undersigned officer duly authorized 

by law to administer oaths, appeared FLORENCE MOBLEY, who, after 

being duly sworn, deposed and stated as follows: 

1. My name is FLORENCE MOBLEY. I am more than eighteen 

years of age, and am under no legal disability of any kind. 

This affidavit is given voluntarily and without coercion of any 

kind. 

2. I was a resident of Fulton County during 1978, and was 

called for jury duty during the week of October 9, 1978. I 

recall being questioned individually as one of a number of jurors 

called as a potential juror in the trial of a man [Warren 

McCleskey] accused of shooting an City of Atlanta police officer. 

3. ‘I was not chosen as. a juror in that case. 

4, My race is Black. 

This '— day of | .- ae 
  

  

FLORENCE MOBLEY 

Sworn to and subscribed before me, 
this x day of eM pals ay ek JOBE 

  

  

ic 

2. anton Dounly, Georgia. 
+1 

Notary Publ 

TT RY CR LL, 
da f LPR TYYEETS FEE Fy | Fanart) | 

 



  

AFFIDAVIT OF EDNA WALLS 
  

STATE OF GEORGIA) 
}S5: 

COUNTY OF FULTON) 

Personally before the undersigned officer duly authorized 

by law to administer oaths, appeared EDNA WALLS, who, after 

being duly sworn, deposed and stated as follows: 

l. My name is EDNA WALLS. I am more than eighteen years 

of age, and am under no legal disability of any kind. This 

affidavit is given voluntarily and without coercion of any 

kind. 

2. 1 was a resident of Fulton County during 1978, and 

was called for jury duty during the week of October 9, 1978. 

I recall being questioned individually as one of a number of 

jurors called as a potential juror in the trial of a man 

[Warren McCleskey] accused of shooting a City of Atlanta 

police officer. 

3. 1 was not chosen as a: juror in that case. 

3 My race 1s Black. 

This 50: BJ day of /7 5 ,. 1986. 
  

  

b= kn Alia llr ( Le S§.) 
EDNA WALLS 
  

Sworn to and subscribed 

ENP 
before me, this XN fed 

  

day of [rr rs19%6. ' Ve 
— 

  

TOTARE PUBLIC ; 

 



  

AFFIDAVIT OF DORIS F. WALTERS 
  

STATE OF GEORGIA) 
SS: 

COUNTY OF FULTON) 

Personally before the undersigned officer duly authorized 

by law to administer oaths, appeared DORIS F. WALTERS, who, 

after being duly sworn, deposed and stated as follows: 

1. My name is DORIS F. WALTERS. I am more than eighteen 

years of age, and am under no legal disability of any kind. 

This affidavit is given voluntarily and without coercion of 

any kind. 

2. .1 was a resident of Puliton County during 1978, and 

was called for jury duty during the week of October 9, 1978. 

I recall being questioned individually as one of a number of 

jurors called as a potential juror in the trial of a man 

[Warren McCleskey] accused of shooting a City of Atlanta 

police officer. 

J. 1 was not: chosen as a juror in that case, 

4. My race is Black. 

+ 7) ir / 
! 7 / 

This ~ A day of. lol igri, sy. 1986. 
    

RR ur 
NL hdl fr 9 L{Eir(L. 8.) 

DORIS F. WALTERS 
  

Sworn to and subscribed 

before this AG 

FA ng IE 
NTS NOPARY cRHBLIC: | 

1» 1986. 
  

  

Fanires uly 31, PE ay Co YTS SION LARITES J 

 



  
APPENDIX F 

 



  

STATE OF GEORGIA ) . 
COUNTY OF FULTON ) SS° 

JILL DARMER, being duly sworn, states: 

l. I am a citizen of the State of Georgia. I reside at 1445 

Monroe Drive, N.E., in Atlanta, Georgia. In 1978, under my former 

married name, Marg Darmer, I served as a juror in the trial of Warren 

McCleskey. 

2. Our jury had a hard struggle with the evidence in this 

case. We discussed the issue of guilt or innocence for a long time. 

We were able to agree without alot of difficulty that all four men, 

including Warren McCleskey, had at least participated in the armed 

robbery. But the issue of responsibility for the shooting was 

different. 

3. The evidence about who fired at Officer Schlatt struck 

me as far too pat. The Atlanta Police Department was obviously disturbed 

that one of its officers had been killed. I had the feeling, however, 

and other jurors did as well, that the State had decided to pin the 

shooting on Warren McCleskey, even though the evidence was not 

clearcut that McCleskey had actually been the one who fired the shots 

at the officer. 

4. The testimony from Ben Wright, the other co-defendant, 

didn't impress us much, since he obviously could have committed the 

shooting himself and had everything to gain by blaming McCleskey. 

The evidence on who was carrying the silver gun seemed to point to 

McCleskey, but it was contradictory at several places. Several 

witnesses stressed McCleskey had been the one to come into the front 

of the store, but three of the robbers gathered all the store personnel 

together in the middle of the store, and nobody even saw which one of 

 



the three ran toward the front when Officer Schlatt arrived. 

  

5. That left us with the testimony of Offie Evans, who had 

been in the cell next to McCleskey. Evans told us that McCleskey had 

admitted to him that he had shot Schlatt; McCleskey even said he would 

have shot his way out no matter how many police had been there. This 

testimony made a real difference in my opinion. Unlike Ben Wright, I 

didn't think Evans had anything to gain. I knew Evans had a prior 

criminal record -- they brought that out during the trial -- but, 

despite that, I didn't see any reason why he would deliberately tell 

a lie to get McCleskey into trouble. 

6. We finally decided to convict McCleskey of malice 

murder, even though some of us continued to have some doubts about 

the evidence. 

7. I was surprised after we gave our verdict when they told 

us we would have to determine the sentence. I thought the judge would 

do that; so did some of the other jurors, I remember. During the 

penalty phase, some of us talked alot about our doubts on who did the 

shooting. This was a very close case for me on whether to give life 

or death. If we had found any valid reason not to give death, I am 

certain that I, and a number of other jurors, would never haven given 

McCleskey a capital sentence. But the defense attorney, honestly, just 

wasn't nearly as good as the prosecutor. We weren't given any real 

reasons we could stand by, except our doubts about who did it, to vote 

for a life sentence. On the evidence we had, even though it was 

very, very close, I think we did the right thing. 

8. Earlier this week, two persons involved with McCleskey's 

defense came to see me at my apartment. They asked me what I remembered 

and I told them. I was very disturbed when I learned that a police 

 



  

detective had promised Offie Evans in 1978 to speak with federal 

authorities on his pending escape charge. 

9. My own vote depended alot on Evans' testimony. The 

idea that Evans might have testified hoping to avoid conviction on 

federal escape charges changes my view of the whole trial. It gave 

Evans a strong motive to lie that we didn't recognize at the time. 

10. As I said, this was for me a very close case. It took 

Evans' testimony for the State to prove to me, beyond a reasonable 

doubt, that McCleskey was the triggerman. Without Evans' testimony 

I definitely would not have voted for a death sentence, and I believe 

at least a few other jurors would have agreed. 

ll. Let me go further. I knew then that it only takes one 

juror to hold out against the rest. I am certain that had I 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. I believe I 

could have remained firm in my vote no matter what other jurors may 

have decided. It would have been enough to leave a big question in 

my mind about who actually killed Officer Schlatt. 

12. The crime McCleskey and his three friends were involved 

was very serious, but so is a death sentence. Our jury | 

tried hard to do the right thing in a very difficult case. I think 

we were entitled to all the evidence. It a Pears we didn't get it. 

A  s——   

Jill Darmer 
Sworn to and subscribed before me 

day of May, 1987 

FR CVs r . £ 
- x 1] al 
  

Notary Pubtic. Fulton County, Georgia 
My Commission Expires May 30. 1950 

 



  
APPENDIX G 

 



# * 

STATE OF GEORGIA ) : 
COUNTY OF GWINNETT ) SS? 

  

ROBERT F. BURNETTE, being duly sworn, states: 

l. I am a citizen of the State of Georgia. I reside 

at 213 Kenvilla Drive, Tucker, Georgia 30084. In 1978, I served 

as a juror during the trial of Warren McCleskey in the Superior 

Court of Fulton County, Georgia. If I had known during the trial 

what I have recently learned about one of the State's key witnesses, 

Offie Evans, I believe it could have made a difference in whether I 

voted for a death sentence, and I believe it would have affected 

some of the other jurors too. 

2. It wasn't an easy case. We spent a long time 

discussing the State's evidence. All of the jurors in our case 

were very responsible and concerned to be fair. It did seem clear 

that, from the evidence we heard, McCleskey had been one of the four 

men who robbed the Dixie Furniture Store. The hard question for us 

was whether he was actually the one who shot the police officer, 

and whether it had been with malice. 

3. Ben Wright, the other robber who testified for the 

State, said that Warren McCleskey had admitted the shooting. I 

honestly never trusted Wright and I don't think the other jurors did 

either. He seemed like a man without a conscience. He was very 

cool and arrogant when he testified. I had the feeling that if he 

had done the shooting himself, he wouldn't have had any remorse at all. 

4, I also remember Offie Evans, who had been in jail, and 

who testified that McCleskey had admitted to him that he had done it. 

Evans also said, I remember, that McCleskey told him he would have 

shot other policemen to get out of there. That was important 

 



  

’ Viel 
evidence to us. It looked like Evans had nothing to gain from what 

he said. 

5. We finally decided that whoever shot the policeman 

had deliberately tried to take his life. I was not 100 percent sure 

that McCleskey was the triggerman since there was nothing that 

absolutely proved he was the one -- but on the evidence we were given 

he seemed to be the one. 

6. When we started to discuss the sentence, our decision 

got even harder. It seemed we took a very long time, and some of us 

were looking for a good reason, any reason, to give McCleskey a life 

sentence. I come from a broken home myself; I was passed around from 

relative to relative coming up, and I spent a year and a half in the 

Methodist Orphanage. I know that what a person's been through can 

affect his view of life. But no one in this case gave us any real 

reason to vote for life. 

7. Even without any background on McCleskey, it was a 

very hard thing to vote for death. I remember I did so only because 

I thought, based on the evidence we had, that McCleskey had 

deliberately taken that officer's life. 

8. On May 7, 1987, two people representing McCleskey came 

to ask me about the case. After I told them what I remembered, they 

told me about the Atlanta police detective who had promised to speak 

to federal people about Offie Evans' escape charge that he had at 

the time of the trial. Nobody ever told us about that during the 

trial. It puts a very different light on Evans' testimony. It 

sounds like he was probably hoping to get off of his escape case by 

testifying against McCleskey. The jury should have known that, I 

 



¢ ’ 
think. It changes the State's whole case. 

  

9. Like I said, we had a hard time deciding who did the 

shooting, and a hard time deciding to impose the death sentence. I've 

read the part of the trial transcript where Evans testified, and 

I've also read what Evans said in the state hearing in Butts County. 

I would definitely not have voted to sentence McCleskey to death if 

I had thought he might not have been the triggerman. Even without 

Offie Evans' testimony, I've naturally wondered alot if I did the right 

thing. Knowing now that Evans could have lied to cover his deal with 

the detective definitely could have made a big difference to me, and to 

other jurors, I think -- at least in deciding to give the death 

penalty. It keeps me from being sure, and I don't see how you can 

impose the death penalty if you're not very sure. 

10. Apart from Ben Wright, who might have done it himself, 

and from some evidence about who had the murder weapon, which never 

quite added up, the whole case against McCleskey for shooting the 

policeman came down to Offie Evans. If he was just testifying to 

save his own skin, I couldn't have trusted that. No one can always be 

certain, but I honestly do think knowing about his deal with the 

detective could have made the difference to me. It doesn't seem 

~~ 

ye a5, 2 : pit a 

K fo 
; 

rely, me lel 

fair that we weren't told about it. 

  

Robert F. Burnette 

v3 

Sworn to before me this §- day 
of May, 1987 

    

: an of ER FYI ou DPS NR Sle 0 Notary Public, Fubhan County, Georgia 
- 

My Commission Expires ilay 20, 1650 

 



  

IN THE SUPERIOR COURT OF Butts County 
STATE OF GEORGIA 
  

Warren McCleskey ' 
  

  

  

Petitioner, Civil Action No. 

D-003935 , Habeas Corpus 
Inmate Number 

vs 

Ralph M. Kemp , Warden, 
  

Georgia Diagnostic § Classification Center 
  

Name of Institution 
Respondent. 

APPLICATION FOR WRIT 
HABEAS CORPUS 

*% PART 1 =» 

  

1. Name and county of court which entered the judgment of con- 
viction under attack Superior Court of Fulton County, Fulton 
  

County, Georgia 
  

2. Date of conviction October 12, 1978 
  

3. Length of sentence(s) Death for murder; two life sentences for arme 
  

  

4, Name of offense(s) (all counts) Malice Murder 0.C.G.A. 

16-5-1; Armed robbery, 0.C.G.A 16-8-2 
  

5% What was your plea? (Check one) 

(a) Guilty ( ) 
{b) Guilty but mentally ill ( ) 
(c) Nolo contendere ( ) 
(d) Not guilty (X) 

If you entered a guilty plea to one count or indictment, and 
a not guilty or nolo contendere plea to another count or 
indictment, give details: 
N/A 
  

  

  

 



  

8. 

9. 

10. 

11. 

Kind of trial: (Check one) 

(a) Jury (X) 
(b) Judge only ( ) 

Did you testify at the trial: Yes (x) No ( ) 

Did you appeal from the conviction: Yes (x) No ( ) 

If you did appeal, answer the following: 

(a) Name of appellate court to which you appealed 
  

Georgia Supreme Court 
  

(b) Result of appeal affirmed 
  

(c) Date of result January 24. 1980 
  

Other than a direct appeal from the judgment of conviction 
and sentence, have you previously filed any petitions, 
applications, or motions with respect to this conviction in 
any state or federal court: Yes (x) No {) 

If your answer to 10 was "yes", give the following informa- 
tion: (If more than three petitions, please use separate 
sheet of paper and use the same format to list these 
petitions.) 

Name of court and case number See Supplemental (a) 
  

(1) 
(2) Nature of proceeding pleading annexed hereto 
  

  

(3) All grounds raised (attach extra sheet if 
necessary) 
  

  

  

(4) Did you receive an evidentiary hearing on your 

  

application or motion? Yes ( ) No. { .) 
(5) Name of Judge 
(6) Result 
  

(7) Date of result 
  

(b) As to any second petition, application or motion give 
the same information: 

  

(1) Name of court and case number 
(2) Nature of proceeding 
  

  

  

  

(3) All grounds raised 
  

  

  

    

(4) Did you receive an evidentiary hearing on your 
application or motion? Yes ( ) No: () 

De 

 



  

  

(c) 

(d) 

(e) 

(£) 

(5) Name of Judge 
(6) Result 
(7) Date of result 

  

  

  

to any third petition, application or motion, give 
e same information: J

 
0 

1) Name of court and case number 
2) Nature of proceeding 

  

  

  

  

  

(3) All grounds raised 
  

  

  

  

(4) Did you receive an evidentiary hearing on your 
petition, application or motion? Yes E&) No () 

(5). Name of Judge 
(6) Result 
(7) Date of result 

  

  

  

Did you appeal to the Georgia Supreme Court or the 
Georgia Court of Appeals from the result taken on any 
petition, application or motion listed above: 

(1) First petition, etc. Yes (x) No ( ) 
(2) Second petition, etc. Yes ( ) No. { ) 
(3) Third petition, etc. Yes ( ) No ( ) 

If you did not appeal from the denial of relief on any 
petition, application or motion explain briefly why 
you did not: 
N/A 
  

  

  

If you appealed to the highest state court having juris- 
diction, did you file a petition for certiorari in the 
United States Supreme Court to review the denial of 
your petition by the Georgia Supreme Court or the 
the Georgia Court of Appeals? Yes (X) No () 

#2 DART II ** 

State concisely every ground on which you now claim that you are 
being held unlawfully. Summarize briefly the facts supporting 
each ground. If necessary, you may attach pages stating addi- 
tioinal grounds and facts supporting same. 

1 
Ground one: See attachment 
  

  

  

AOC-5 
(7-1-85) 

 



  

Supporting FACTS (tell your story briefly without citing cases or 

law): 
  

  

  

  

  

Ground two: See attachment 
  

  

  

Supporting FACTS (tell your story briefly without citing cases or 

law): 
  

  

  

  

  

Ground three: See attachment 
  

  

  

Supporting FACTS (tell your story briefly without citing cases or 

law): 
  

  

  

  

Ground four: See attachment 
  

  

  

  

Supporting FACTS (tell your story briefly without citing cases or 

law): 
  

  

  

AOC-5 —a 

(7-1-85) 

 



  

#* PART III ** 

If any of the grounds listed in PART II were not previously 
presented in any other court, state or federal, state briefly what 
grounds were not so presented, and give your reasons for not 
presenting them: 

i 
} 
: + 

' 

i" 

4 
3 

1 
3 
i 
{ 

i 
§ 
{ 

» 

See attachment 
  

  

  

  

#* PART IV #* 

l. Do you have any petition or appeal now pending in any court, 
either state or federal, as to the conviction under attack? 
Yes (x) No () 

2. ‘Give the name and address, if known, of each attorney who 
represented you in the following stages of the judgment at- 
tacked herein: 

(a) At preliminary hearing John Turner, Esq., now with the 
Fulton County District Attorney's Office, Atlanta, Georgia 
  

  

(b) At arraignment and plea John Turner. 
  

  BU 

(c) At trial John Turner 
  

  

(d) At sentencing John Turner 
  

  

(e) On appeal John Turner 
  

  

(f) In any post-conviction proceeding Robert H. Stroup, Julius L.. 
Chambers, James M. Nabrit, III, John Charles Boger, Timothy Ford, Anthony 

Amsterdam 

(g) On appeal from any adverse ruling in a post-conviction 
proceeding See (f) 

  

  

  

  

3, Were you sentenced on more than one count of an indictment, 
or on more than one indictment, in the same court and at the 
same time? Yes (x) No () 

AOC-5 Sw 
(7-1-85) 

 



  

Do you have any future sentence to serve after you complete 
the sentence imposed by the conviction under attack? 
Yes ( ) No (x) 

(a) If so, give name and location of court which imposed 
sentence to be served in the future: N/A 

  

  

(b) And give date and length of sentence to be served in the 
future: N/A 
  

  

(c) Have you filed, or do you contemplate filing, any peti- 
tion attacking the judgment wich imposed the sentence 
to be served in the future: Yes ( ) No ( ) 

Wherefore, petitioner prays that the Court grant petitioner relief 
to which he may be entitled in this proceeding. 

  

Robert H. Stroup June 7, 
141 Walton Street Date 
  

Atlanta, Georgia 30303 
Signature and Address of Petitioner's 
Attorney (if any attorney) 

I declare (or certify, verify, or state) under penalty of prejury 
that the foregoing is true and correct. Executed on May 22, 1987 

  

Date 

  

Please note that under O.C.G.A. §9-14-45 service of a 
petition of habeas corpus shall be made upon the person 
having custody of the petitioner. If you are being detained 
under the custody of the Department of Offender Rehabilita- 
tion, an additional copy of the petition must be served on 
the Attorney General. If you are being detained under the 
custody of some authority other than the Department of 
Of fender Rehabilitation, an additional copy of the petition 
must be served upon the district attorney of the county in 
which the petition is filed. Service upon the Attorney 
General or the district attorney may be had by mailing a copy 
of the petition and a proper certificate of service. 

1987 

 



  

IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

  

WARREN McCLESKEY 

Petitioner, 

vs. : HABEAS CORPUS 

: NO. 
  

RALPH M. KEMP, Superintendent 

Georgia Diagnostic and 

Classification Center, 

Respondent. 

  

PETITION FOR WRIT OF HABEAS CORPUS 
  

COMES NOW Petitioner, WARREN McCLESKEY, bv and through 

his undersigned counsel of record, and petitions this Court 

for a writ of habeas corpus, pursuant to 0.C.G.A. §§ 9-14-41 

et seq. Petitioner is an indigent person currently under 

sentence of death. Respondent is the Superintendent of the 

Georgia Diagnostic and Classification Center in Jackson, 

  

Georgia. The allegations of this petition are set forth as 

follows: 

Is HISTORY OF PRIOR PROCEEDINGS 

1 The name and location of the court which entered 

the judgment of conviction and sentence under attack are: 

Superior Court of Fulton County 

Atlanta, Georgia 

 



  

2 

2. The date of the judgment of conviction was October 

12, 1918, 

3. The date of the judgment of sentence was also 

October 12, 1978; the sentences were that petitioner be put 

to death for murder, and that he serve life sentences for two 

counts of armed robbery. 

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

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

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

5. At his trial, petitioner pled not guilty. 

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

of sentence was held before a jury. 

7. Petitioner testified during the guilt phase of his 

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

8. Petitioner appealed his convictions and sentence of 

death. 

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

(a) The Supreme Court of Georgia affirmed 

petitioner's convictions and sentences on January 24, 1980. 

McCleskey v. State, 245 Ga. 108 (1980). 
  

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

United States denied a petition for certiorari, with Justices 

Brennan & Marshall dissenting. McCleskevy wv. Georgia, 449 
  

U.S. .891 (1980). 

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

extraordinary motion for a new trial in the Superior Court of 

 



  

3 

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

(d) On January 5, 1981, petitioner filed a 

petition for writ of habeas corpus in the Superior Court of 

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

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

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

Exhibit B). 

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

denied petitioner's application for a certificate of probable 

cause to appeal. 

(f) Petitioner then sought a writ of certiorari in 

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

1981, that Court denied his petition for certiorari, with 

Justices Brennan & Marshall dissenting. McCleskey v. Zant, 
  

454 U.S. 1093 (1981). 

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

petition for writ of habeas corpus in the United States 

District Court for the Northern District of Georgia, Atlanta 

Division. The matter was assigned to Judge J. Owen 

Forrester. After an evidentiary hearing in August and 

October of 1983, the District Court entered an order on 

February 1, 1984, granting habeas corpus relief. McCleskey 
  

v. Zant, 580 F. Supp. 338 (N.D.Ga. 1984). 

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

of Appeals for the Eleventh Circuit, sitting en banc, 

announced a judgment reversing the grant of habeas corpus 

 



  

RA 

relief and denying the habeas petition. McCleskev wv. Kemp 
  

753 F.24 8717 (11th Cir. 1985) (en banc). 

(i) The Supreme Court of the United States granted 

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

the Court of Appeals. McCleskev v. Kemp, P+5, ;. B58 
  

U.8.L.W,. 4521 .(U.8,, April 21..1987) (No. 84-6811). 

(ij) On May 18, 1987, petitioner filed a petition 

for rehearing in the Supreme Court pursuant to Rule 51 of the 

Rules of the Court. That petition is now pending. 

II. INTRODUCTORY FACTS 
  

10. Petitioner Warren McCleskey, one of four men who 

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

was convicted of malice murder and, of the four, alone was 

sentenced to death -- because the State alleged, and the jury 

believed, that McCleskev was the triggerman who had shot 

police officer Frank Schlatt during the robbery. Prosecutor 

Russell Parker explicitly argued to petitioner's jury that 

"the person that ought to get the chair, if anybody gets the 

chair, is the man that pulled the tyriggey ... It is 

important, ladies and gentlemen, who pulled the trigger. I 

don't think there should be any doubt in your mind." (Tr. T. 

973). The burden of the State's entire case was to prove 

bevond a reasonable doubt that petitioner McCleskey had 

pulled the trigger. 

 



  

5 

11. Yet we will demonstrate in this successive petition 

that, at the crucial moments throughout the trial, the State 

deprived petitioner of his federal constitutional rights. 

Acts and omissions by the State kept critical facts from the 

jury that throw into gravest doubt its theory that McCleskevy 

shot Officer Schlatt. Specifically, the State's claim rests 

primarily on the testimony of a jailhouse witness, Ophie 

Evans, and on ballistics evidence that appears to link 

petitioner to the murder weapon. Undisclosed to the jury, 

however, was proof that an Atlanta police detective promised 

to shield Ophie Evans from a federal prosecution if he would 

agree to testify against McCleskey. (See 944 25-36 infra). 

Also undisclosed was the fact that the ballistics expert-- 

who told the jury that the bullets found in the body of the 

officer could have come only from a pistol like that 

McCleskey carried -- later acknowledged that two other makes 
  

of pistol could have produced the identical markings on which 
  

he based his expert conclusion. (See 4437-42 infra.). 

12. These additional facts would have been sufficient 

alone to persuade several members of petitioner's jury that 

the State has not met its burden beyond a reasonable doubt, 

and that petitioner should not be sentenced to death. (See 

Exhibit P&G). Yet the State improved its chances of 

conviction and of a death sentence, not merely by concealing 

these facts, but also bv engaging in deliberate, 

discriminatory acts in excluding prospective black jurors 

 



  

(see 4913-24, infra), and by unlawfully reminding 

petitioner's jury, just before it retired to deliberate on 

petitioner's sentence, that petitioner's previous life 

sentences had been reduced by the appellate courts on prior 
  

appeals, obviously implying that only a death sentence could 

avoid similar appellate review in this case. (See 9443-45, 

infra) In all of these ways, the State distorted the 

factfinding role of petitioner's trial jury and deprived 

petitioner of the federal constitutional rights to which any 

capital defendant is entitled. 

ITI. CONSTITUTIONAL GROUNDS ESTABLISHING THE INVALIDITY OF 
PETITIONER'S CONVICTIONS AND SENTENCES 
  

The State's Svstematic Exclusion of Black Jurors 
  

13. The Fulton County prosecutor's systematic use of 

his peremptory challenges to strip prospective black jurors 

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

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

petitioner's right to a representative jury, guaranteed by 

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

free from cruel and unusual punishment at the penalty phase 

of his trial, guaranteed bv the Eighth and Fourteenth 

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

the laws, guaranteed bv the Equal Protection Clause of the 

Fourteenth Amendment of the Constitution of the United 

 



  

  

  

  

  

States. 

FACTS SUPPORTING PETITIONER'S CLAIM THAT 
THE SYSTEMATIC EXCLUSION OF PROSPECTIVE 

BLACK JURORS VIOLATED HIS 
CONSTITUTIONAL RIGHTS 

14. Petitioner Warren McCleskey is black. He was 

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

Schlatt. 

15. Petitioner's trial occurred in Fulton County, 

Georgia, in October of 1978. United States Census figures 

reveal that in 1970, the population of Fulton County was 

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

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

black. 

16. A total of 52 jurors were questioned in McCleskey's 

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

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

prosecutor, Russell Parker, and the defense attorney each 

exercised their respective peremptorv challenges, on the 

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

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

at least 6 of those peremptorily excused by Parker were black 

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

been confirmed not only by a comparison of juror lists with 

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

contact with 5 excluded jurors. Attached as Exhibit E are 

affidavits from these five prospective jurors, confirming 

 



  

8 

their race and their exclusion from Warren McCleskey's 

trial.) 

17. The voir dire transcripts of these excluded black 

jurors reveals absolutely no racially neutral grounds on 

which to distinguish them as prospective jurors from white 

jurors who were not struck. 

18. This stark pattern of racial exclusions establishes 

a prima facie violation of the Equal Protection Clause of the   

Fourteenth Amendment. Batson v. Kentucky, 476 U.S. ; 20 
  

L.Ed.2d 69, 87-88 (1986). While Batson has been held non- 

retroactive to those non-capital cases beyond direct appeal, 
  

see Allen v. Hardy, 7.8. , 92 L.Bd.24 199 (1986); 
  

Griffith v. Kentucky, U8. , 93 L.Ed4d.2d 649 (1987), 
  

petitioner alleges that the constitutional requirement of 

special reliability in capital cases, see, e.g., Woodson v. 
    

North Carolina, 428 U.S. 280, 304-05 (1976); Gardner vv, 
  

  

Florida, 430 U.S. 349, 357-58 (1977); Beck v. Alabama, 447 
  

U.S. 625, 637 (1980), mandates that Batson be applied 

retroactively to capital cases. At a minimum, because of the 

"unique opportunity for racial prejudice to operate but 

remain undetected" in capital sentencing proceedings, Turner 
  

Vv. Murrav, U.8. , 90 L.EQ.24 27, 35 (1986), Batson is 
  

applicable, petitioner submits, to the penalty phase of his 

capital trial. 

The State's Intentional Racial Discrimination Against 

Petitioner McCleskevy 
  

  

 



  

19. The death penalty has been imposed on petitioner 

McCleskey pursuant to a pattern and practice of Georgia 

prosecutors, courts, Judges, and juries, both statewide and 

in Fulton County, to discriminate against black defendants 

and against those whose homicide victims are white. 

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

case acted with discriminatory purpose and intent, and their 

actions created a "constitutionally significant risk of 

racial bias" affecting his capital sentence, all in violation 

of the Eighth Amendment and of the Equal Protection Clause of 

the Fourteenth Amendment to the Constitution of the United 

States. 

FACTS SUPPORTING PETITIONER'S CLAIM 
THAT HIS CAPITAL SENTENCE WAS THE 
PRODUCT OF RACIALLY DISCRIMINATION 

  

  

  

20. Petitioner repeats and realleges the allegations of 

paragraphs 14 through 17, supra. 

21. In his prior federal habeas corpus proceeding, 

McCleskev v. Zant, No. C81-2434A (N.D.Ga.), petitioner 
  

presented extensive statistical evidence, through exhibits 

and live testimony, to establish striking patterns of 

disparate racial treatment in Georgia capital cases. 

Petitioner proffers to this Court, and will produce at an 

evidentiary hearing, that body of evidence. 

22. While the Supreme Court has held that such 

evidence, standing alone, is insufficient to make out a 

 



  

i0 

violation of the Eighth or Fourteenth Amendments, see 

McCleskey v. Kemp, 3.5. :;. 85 U.8.L.W. 4537, 4542, 4546 
  

(U.S., April 21, 1986)(No.84-6811i), the Supreme Court also 

held that a habeas petitioner could prevail under the 

Fourteenth Amendment by proving "that the decisionmakers in 

his case acted with discriminatory purpose," Id. at 4541. 

23. The Supreme Court noted its own "'unceasing 

efforts' to eradicate racial prejudice from our criminal 

justice system," id. at 4545; prominent among the procedural 

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

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

id. at 4545 n.30, including any attempts by "a prosecutor 

[to] exercise peremptory challenge on the basis of race." Id. 

24. Prosecutor Parker's deliberate and repeated 

exercise of his peremptory challenges to remove at least six 

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

in combination with petitioner's powerful statistical showing 

of racial discrimination in Fulton County and the State of 

Georgia since 1973 -- establishes precisely the kind of 

Eighth Amendment and Equal Protection Clause violations which 

the Supreme Court held are cognizable under the rule of 

McCleskey v. Kemp. 
  

The State's Non-Disclosure of Critical Impeachment Evidence 
  

25. The State's failure to disclose its agreement with 

 



  

1 

jail inmate Ophie Evans, a key witness against petitioner, 

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

guaranteed by the Due Process Clause of the Fourteenth 

Amendment to the Constitution of the United States. 

FACTS SUPPORTING PETITIONER'S CLAIM THAT 
THE STATE'S NON-DISCLOSURE OF CRITICAL 

IMPEACHMENT EVIDENCE VIOLATED HIS 

DUE PROCESS RIGHTS 

  

  

  

  

26. Although a number of the State's witnesses 

testified that petitioner McCleskey participated in the armed 

robbery of the Dixie Furniture Store on May 13, 1978, the 

State produced no one who witnessed the shooting of Atlanta 

police officer Frank Schlatt. The murder weapon itself was 

never recovered. 

27. To prove that petitioner had personally committed 

the homicide which ultimately led to his death sentence, the 

State relied in part upon confused and partially 

contradictory testimony on who had been carrying the likely 

murder weapon. 1 

  

l petitioner's co-defendant, Ben Wright, and several 
other witneses testified that petitioner may have been 
carrying a pearl-handled, silver .38 pistol linked to the 
homicide. Yet Ben Wright was forced to acknowledge on cross- 
examination that he himself had personally possessed that 
weapon for several weeks prior to the crime. (Tr. T. 682). 

Moreover, it was revealed that Wright's girlfriend told 
police, on the day Wright was arrested, that Wright, not 
McCleskey, had been carrving that .38 pistol on the day of 
the crime, (Tr. T. 631-32). Moreover, the State's ballistics 

expert, -- who indicated at trial that the murder weapon had 
been a .38 Rossi -- testified during a deposition submitted 
at the initial state habeas corpus proceedings, that there 
was a chance that the murder weapon was not in fact a .38 

Rossi. (See infra, 4939-41). 

 



  

12 

28. The State also relied upon two witnesses who 

claimed that petitioner had confessed to them, after the 

crime, that he had shot Officer Schlatt. One of the two 

witnesses was petitioner's co-defendant Ben Wright, -- a 

dominant actor in the armed robbery (Tr. T. 651-57) and the 

most likely suspect in the shooting. Apart from Wright, the 

only evidence concerning the identity of the triggerman came 

from a detainee at the Fulton County Jail, Ophie Evans, who 

testified that McCleskey had admitted the shooting while he 

was in the Fulton County Jail awaiting trial. 

29. Evans in fact gave crucial testimony on three 

points: (i) he told the jury about McCleskey's "confession"; 

(ii) he alleged that McCleskey "said ... he would have tried 

to shoot his way out ... if it had been a dozen" police 

officers (Tr. T. 87)) -- a statement which later became a 

major foundation for the prosecutor's argument to the jury 

that McCleskey had acted with "malice" (see T. Tr. 974); and 

(iii) he single-handedly clarified a glaring inconsistency in 

the identification testimony of one of the State's principal 

witnesses. (Tr. T. 301-03; 870-71). 

30. Evans was specifically asked both by the prosecutor 

and by the defense attorney about any promises made in 

exchange for his testimony. He denied any deals or other 

arrangements. His actual testimony before the trial court 

was: 

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

 



  

13 

A: No sir, you ain't. 

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

A: No, sir. 

Q: Have I told vou I would trv to fix it for vou? 

A: No, sir. 

31. On cross-—-examination Evans expanded upon his 

statement regarding promises made by the State: 

Q: Okay. Now, were vou attempting to get your escape 

charges altered or at least worked out, were you 
expecting your testimony to be helpful in that? 

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

{Tr. 7. 882). 

32. Evans, however, later gave flatly contradictory 

testimony before this Court, admitting that "the [Atlanta 
  

  

  

police] Detective told me that he would -- he said he was 

going to do it himself, speak a word for me. That was what 

the Detective told me." (St. Hab. Tr. 122). (emphasis added). 
  

The escape charges were in fact dropped with the State's 

assistance after McCleskev's trial. (St. Hab. Tr. 129). 

33. Petitioner proffers that Ophie Evans will expand 

upon and clarify his testimony in the present proceedings. 

He will testify that Atlanta police detective Sid Dorsey 

discussed the benefits to him of providing testimony against 

 



  

14 

petitioner. Evans understood from the detective that if he 

gave testimony implicating petitioner McCleskey in the 

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

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

pending federal escape charges against him -- which carried a 

potential sentence of $5000 or 5 years imprisonment under 18 

U.S.C.8§4082(d) and §751 -- be dropped. Evans agreed to 

testify in exchange for that promise by the Atlanta 

detective, 

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

petitioner McCleskey's trial have since given sworn 

affidavits. They affirm that evidence of the understanding 

between Ophie Evans and Atlanta police detective Dorsey would 

have crucially affected their assessments of the State's case 

against McCleskey. 

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

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

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

death." (Exhibit F 97). "The evidence was not clearcut that 

McCleskey had actually been the one who fired the shots at 

the officer. (Exhibit 7 43). The State's evidence on the 

murder weapon "was contradictorv at several places," which 

"left us with the testimony of Ophie Evans." (Exhibit F 494- 

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

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

to. gain." (Exhibit. Ta $5). Ms. Darmer has stated that 

 



  

15 

"{wlithout Evans' testimony, I definitely would not have 

voted for a death sentence" (Exhibit F 410), and "had I known 

that Ophie Evans had an arrangement with an Atlanta detective 

I would never have voted to impose capital punishment." 

(Exhibit F 411). 

36. Juror Robert Burnette also agreed that this "wasn't 

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

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

discounted Ben Wright's testimony, placing instead great 

weight on what Ophie Evans told the jury. After reading 

Evans' state habeas testimony, Burnette has now averred that 

he "would definitely not have voted to sentence McCleskey to 

death if [hel] had though he might not have been the 

triggerman," "[K]lnowing ... 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," Burnette has 

stated (Exhibit G §9). 

Petitioner's Ake v. Oklahoma Claim. 
  

37. The state trial court's denial of petitioner's 

motion for funds for the employment of a ballistics expert 

violated his right to the due process of law guaranteed by 

the Due Process Clause of the Fourteenth Amendment to the 

Cosntitution of the United States. 

 



  

16 

FACTS SUPPORTING PETITIONER'S 
AKE v. OKLAHOMA CLAIM 
  

  

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

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

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

that the State intended to rely at trial upon "numerous 

experts, including [al] pathologist, criminologist, criminal 

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

stated that "[s]aid experts ... have contributed 

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

Petitioner's motion explained that petitioner was without 

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

to proceed in forma pauperis. 
  

39. The trial court did not grant petitioner's motion, 

and no defense ballistics expert was appointed. During 

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

of the Georgia Bureau of Investigation, to link the purported 

murder weapon to petitioner. Fite testified that he had 

examined microscopically the markings on the two bullets 

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

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

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

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

lands and grooves" observed on the bullets taken from the 

scene. (Id.) The State then sought to establish that 

petitioner Warren McCleskey had been carrying a .38 Rossi on 

 



  

17 

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

shot Officer Schlatt. 

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

arranged by volunteer counsel, Fite admitted that the 

markings left on the bullet taken from Officer Schlatt could 

also have come either from a Taurus revolver (Fite 

Deposition, 6) or from a Charter Arms revolver. (Fite 

Deposition, 7). 

41. An independent ballistics expert would have 

provided defense counsel with these alternative hypotheses, 

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

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

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

defense attorney would have been able to counter the one- 

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

damning and apparently unequivocal testimony that pointed 

directly at McCleskey as the triggerman. 

42, Apart from the testimony of Ben Wright and Ophie 

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

critical evidence linking McCleskey to Officer Schlatt's 

murder. At least two jurors have now revealed that the 

central issue facing the jury in this case, both at the guilt 

and at the sentencing phases of the trial, was whether 

petitioner McCleskey was the triggerman. 

The State's Reference To Appellate Review In Closing Argument 
  

 



  

18 

43. The prosecutor's deliberate references to appellate 

review during the closing argument at the penalty phase of 

petitioner's trial, and his specific invitation to the jury 

to consider the fact that petitioner's prior life sentence 

had been reduced by the appellate courts, violated (i) 

petitioner's right to be free of cruel and unusual 

punishment, guaranteed by the Eighth and Fourteenth 

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

guaranteed by the Due Process Clause of the Fourteenth 

Amendment of the Constitution of the United States. 

FACTS SUPPORTING PETITIONER'S CLAIM 

THAT THE PROSECUTOR'S CLOSING ARGUMENT 
VIOLATED HIS CONSTITUTIONAL RIGHTS 

  

  

  

44. During the sentencing phase of petitioner's trial, 

the prosecutor invited the jurv to focus its attention upon 

the following considerations in determining the penalty to be 

imposed: 

"Ladies and Gentlemen, this is the sentencing phase 
of this trial, and I expect the court is going to 
charge you with a couple of points, that vou can 
return a verdict of life in prison or you can 
return a verdict of death . , . (Tr.T. 31018), Ise 
you find a sentence for the man of life for murder, 
if you sentence him to life for armed robberv, and 
to life for armed robbery, and to life for the 
second armed robbery, and if vou don't specify how 
these are to run, they are going to run together 

{Tr.T. 1011}. 

* * * 

I would also ask you to consider the prior 
convictions that you have had with you in the jury 
room, and particularly the one where he got three 
convictions. I believe if you look at those papers 
carefully you are going to find, I think, on one of 
those he got three life sentences to begin with, 

 



  

19 

and then there is a cover sheet where apparently 
that was reduced to what, eighteen years or fifteen 
years or something, which means, of course, he went 
through the appellate process and somehow got it 
reduced. 

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

1020) 

45. The prosecutor's explicit request for the jury to 

consider the fact that three life sentences previously 

imposed upon petitioner had been reduced "in the appellate 

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

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

appeal. The remarks strongly implied, moreover, that the 

jury in this case should impose a death sentence on 

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

to avoid the possibility that his life sentences would 

somehow be reduced to a term of years by the appellate 

courts, just as petitioner's three prior life sentences had 

been. 

IV. EXPLANATION FOR PRESENTING THESE CLAIMS IN A SECOND OR 
SUCCESSIVE PETITION 
  

  

46. A. Petitioner's Batson v. Kentucky Claim. 
  

Petitioner's challenge to the prosecutor's systematic 

exclusion of prospective black jurors should be entertained 

on its merits in this successive petition since it "could not 

reasonably have been raised in the original ... petition," 

within the meaning of 0.C.G.A. §9-14-51. The present claim 

depends upon a recent change in controlling federal 

constitutional law, and under settled Georgia precedent, such 

 



  

20 

a change justifies this Court's review on a successive 

application for habeas relief. See Jarrell v. Zant, 248 Ga. 
  

492, 284 S.E.2d 17 (1981). 

47. Prior to the United States Supreme Court's 1986 

decision in Batson v. Kentucky, U.S. , 90 L.E4,24 69 
  

(1986), a pattern of prosecutorial exclusions of prospective 

jurors -- even a pattern as strong as that presented by 

petitioner's case -—- gave a habeas petitioner no basis for an 

Equal Protection Clause challenge. Under the then- 

controlling authority of Swain v. Alabama, 380 U.S. 202 
  

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

prosecutor's systematic use of peremptorv challenges against 

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

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

prima facie claim. 
  

48. The Supreme Court in 1986, recognizing that the 

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

habeas petitioner, Batson v. Kentucky, 90 L.Ed4d.2d at 83, 
  

adopted a new standard, under which "a defendant may make out 

a prima facie showing ... by relving solely on the facts 

concerning [jury] selection in his case." Id. at 87 
  

(emphasis in original). 

49. Petitioner's claim in this case is brought under 

the new constitutional standard announced in Batson. This 

new Batson rule, the Supreme Court has held, "'is an explicit 

and substantial break with prior precedent'" which has " 

 



  

21 

'overruled [a] portion of Swain.'" Griffith v. Kentucky, 
  

v.88... 93.5L.F4.24 649, 860 (1987), This new rule was not 

announced until 1986, nearly eight years after petitioner's 

1978 trial, and over five years after his initial state 

habeas corpus proceedings. 

50. The Supreme Court of Georgia has made it clear that 

such changes in law require this Court to consider the merits 

of a successive clain. See Jarrall v. Zant, 248 Ga. 492, 284 
  

S.E.24 17 (1981); Tucker v, Kemp, Ga. ri 351 S.E.24 196 
  

(1987); O0.C.G.A. §9-14-51, 

81. B. Perlitioner's Claim of Intentional 
  

Discrimination. The standard of proof necessary to make out 
  

a claim of racial discrimination in a State's application of 

its capital statutes was not clarified until the Supreme 

Court decided McCleskey v. Kemp, on April 22, 1987. Prior to 
  

that time, no definitive guidance had ever been provided to 

habeas litigants on the elements of such a claim. It was in 

order to provide such guidance that the United States Court 

of Appeals initially agreed in 1984 to address the issue en 

banc and the Supreme Court agreed to grant certiorari in 

1986. 

52. A majority of the Supreme Court in McCleskevy   

acknowledged that "the nature of the capital sentencing 

decision, and the relationship of ... statistic[al evidence] 

to that decision are fundamentally different from the 

corresponding elements in" other Equal Protection claims. 

 



  

22 

McCleskevy v. Kemp, 55 U.S.L.W. at 4541. Ordinarv principles 
  

of statistical inference and proof "simply [are] ... not 

comparablie', id., to those the Court has now announced will   

henceforth be applicable in capital cases. 

53. The new McCleskev requirement -- that a habeas 
  

petitioner, even one armed with statistical evidence, must 

demonstrate that "the decisionmakers in his case acted with 

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

include specific acts directly attributable to such actors-—- 

constitutes "new law" within the meaning of 0.C.G.A. §9-14- 

51. Petitioner's present claim, predicated on this new 

requirement and proffering this newly required evidence, 

should therefore be addressed on its merits. 

54. Petitioner, moreover, did attempt in his first 

federal habeas proceeding to adduce some evidence that the 

prosecutor in his case had acted with discriminatory intent 

in the selection of petitioner's jury. During the course of 

federal habeas corpus proceedings, petitioner formally moved 

for discovery, inter alia, of "[alll documents, whether 
  

official or unofficial, and whether for internal or external 

use or for publication, which discuss, refer to or otherwise 

concern, in whole or in part the issue of ... racial 

discrimination in anv and all aspects of jury selection [or] 

jury composition." Petitioner's First Request for Production 

of Documents, dated April 8, 1983, at 4 94. On June 3, 1983, 

the District Court entered an order denying this request "as 

 



  

23 

irrelevant." Order at 2. 

55. During the federal evidentiary hearing, petitioner 

offered the testimony of his sister to establish the racial 

composition of his actual jury -- eleven whites and one 

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

unlikelihood that such a jury composition could have occurred 

in Fulton County by chance (Fed. Tr. 1772), the District 

asked whether petitioner was offering the evidence in support 

of an ordinary jury challenge. (Id.). After some colloquy, 

counsel for petitioner responded: 

I think we're in a different realm, Your Honor. I 
think we're in an Eighth Amendment realm where the 
question is was Warren McCleskey struck by 
lightning or was he discriminated against. And I 

think this evidence goes to that question, even if 
it doesn't make out a Sixth Amendment issue. 

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

expert testimony which established that, in Fulton County, 

the probability of an 11-to-1 white jury was .03, or three- 

in-one thousand. (Fed Tr. 1777). 

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

petitioner specifically called attention to "the racial 

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

urged the District Court to "consider this fact insofar as it 

finds events in the individual case relevant to the overall 

discrimination issue here." Petitioner's Post-Hearing 

Memorandum of Law in Support of His Claims of Arbitrariness 

and Racial Discrimination, dated September 26, 1983, at 89 

n.39.  



  

24 

57. Petitioner later noted for the District Court that 

his statistical case of racial discrimination "need not stand 
  

alone," recalling that "[hle has attempted to obtain and 

offered to present other evidence of racial discrimination in 

Georgia's criminal justice system," which "the Court denied 

holding it irrelevant." Petitioner's Memorandum at 102. 

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

petitioner argued that 

in denying as 'irrelevant' petitioner's discovery 
requests related to prior discriminatory conduct in 
the criminal justice system in Fulton County 
the District Corut erred ... for such anecdotal 

evidence is plainly relevant to an Equal Protection 
Claim." 

The, District Court's insistence that prior 
discriminatory conduct -- especially by actors 
integrally involved in the administration of the 
criminal justice system -- was 'irrelevant' to 
petitioner's Equal Protection claim constitute clear 
legal error. 

En Banc Brief for Petitioner McCleskey as Appellee and Cross- 

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

59, Thus, while petitioner was not apprised prior to 

the April 22, 1987 opinion in McCleskey of the legal 
  

necessity of proffering evidence of specific discriminatory 
  

acts, he had in fact attempted in good faith to proffer such 

evidence. 

60. Cc. Petitioner's Giglio Claim. Petitioner did 
  

raise a challenge, under the Due Process Clause, citing 

Giglio v. United States, 405 U.S. 150 (1972), to the State's 
  

failure to disclose its arrangement with Ophie Evans in 

 



  

25 

exchange for his testimony. (Exhibit A, ¢20). This Court 

rejected the claim, holding that a "detective's ex parte 

recommendation [to federal authorities] alone is not 

sufficient to trigger the applicability of Giglio." (Exhibit 

BB, 1). 

61. The applicable constitutional principles have been 

clarified in a number of relevant cases since this Court's 

1981 opinion. See, e.g., United States v, Bagley, 474 U.S.     

(1985); Brown v. Wainwright, 785 F.2d 1457 (11th Cir. 1986); 
  

Haber v. Wainwright, 756 F.2d 1520 (11th Cir. 1985). These 
  

cases constitute a change in applicable law that require this 

Court to redetermine the validity of petitioner's claim. 

62. Alternatively, the affidavits of the trial jurors 

who actually determined petitioner's sentence reveal that, 

had the State's arrangements with Ophie Evans been fully 

disclosed at trial, petitioner would not have been sentenced 

to death and would likely not have been convicted of malice 
  

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

miscarriage of justice" within the meaning of Murray v. 
  

Carrier, U.S. ;, 91 L.Ed4d.2d 397, 413 (1986), since he is 
  

"actually innocent" of the malice murder of Officer Schlatt 

and "innocent" of a death-worthy crime. Id. Under such 

circumstances, "the Constitution of the United States 

requires" that this claim be heard on its merits. 0.C.G.A, 

§9-14-51. 

63. The State's arrangement with Evans -- concealed by 

 



  

26 

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

concerning the escape charges -- clearly gave the jury a 

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

U.S, y 91 Te. BA .24, 434, 447 -{1988), These 

misrepresentations served, as the attached juror affidavits 

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

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

circumstances, the merits of petitioner's Giglio claim are 

appropriately before this Court for decision. 

64. D. Petitioner's Ake v, Oklahoma Claim. 
  

Petitioner did raise, in his initial state habeas corpus 

petition filed in this Court in 1980, a constitutional 

challenge to the trial court's refusal to provide him an 

independent ballistics expert. (Exhibit A, § 22). This 

Court, following well-established precedent, held that "[tlhe 

appointment of expert witnesses lies within the discretion of 

the trial court," and that "[d]lenial of the motion ... will 

not be reversed in the absence of an abuse of that 

discreation.” (Exhibit B, 10). 

65. Four years thereafter, in Ake v. Oklahoma, 470 U.S. 
  

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

the provision of expert assistance is not solely a matter of 

state trial court discretion. Instead, a state is required 

by the federal Due Process Clause to provide an indigent with 

an expert if the matter at issue "is to be a significant 

factor at trial." See, e.g., Moore v. Kemp, 809 F.2d 702, 
    

 



  

27 

711-12 (11th Cir. 1987) (en banc) (assumes "that the due 

process clause could require the government , both state and 

federal, to provide nonpsychiatric expert assistance to an 

indigent defendant upon a sufficient showing of need.") 

66. Ake and subsequent cases thus have wrought a change 

in law that requires this Court to consider the merits of 

this successive claim. See 0.C.G.A.§9-14-51; Jarrell wv. 
  

Zant, 248 Ga. 492, S.E.2d (1981); Tucker v. Kemp, Ga. ; 
  

381. 8.R.24 "198 (1987). 

67. F. Petitioner's Caldwell v. Mississippi Claim- 
  

Petitioner did raise, in his initial state habeas corpus 

petition filed in this Court in 1980, a constitutional 

challenge to the State's closing argument to his jury, during 

which the oroRerntny stressed that an appellate court had 

reduced petitioner's previous life sentences. (Exhibit A, 

425). Petitioner relied upon several prior Georgia cases, 

including Prevatte v. State, 233 Ga. 929 S.E.2d (1975) and 
  

Monroe v. State, 5 Ga. 85 (1848), which had held that 
  

"reminding the jury of the existence of an appellate 

tribunal, to which the case with which they were charged 

  

might be carried up, ... was calculated ... to lessen their 

[the Jjurors'] sense of their own responsibility." Monroe v. 

State, 5 Fa. at 139. Petitioner's Post-Hearing Memorandum, 

dated February 24, 1981, at 12. 

68. Citing exclusively state law precedents, this Court 

rejected the claim, concluding that "[slince the words 

 



  

28 

referred to a past conviction, the Court cannot conclude that 

the words had the inevitable effect of encouraging the jury 

to attach diminished consequence to their verdict and take 

less than full responsibility for determining life or death." 

{Exhibit BB, 25), 

69. It was not until the Supreme Court's 1985 opinion 

in Caldwell v. Mississippi, over 4 years after this Court's 
  

1981 denial of relief in this case, that the Supreme Court 

first recognized a federal constitutional basis for 

petitioner's claim. 

70. Other than a petition for rehearing presently 

pending in the Supreme Court of the United States, petitioner 

has no other motions, petitions or appeals now pending in any 

court, state or federal, as to the judgment under attack. 

71. Petitioner was represented by the following 

attornevs: 

(a) at the preliminary hearing, trial and appeal 

to Georgia Supreme Court; John Turner, Esqg., now with the 

Fulton County District Attorney's Office, Fulton County 

Courthouse, Atlanta, Georgia; 

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

Esq., 141 Walton Street, Atlanta, Georgia; Jack Greenberg, 

James M. Nabrit, III, John Charles Boger, 99 Hudson Street, 

New York, New York: 

(c) in state habeas corpus, application for 

 



  

29 

certificate of probable cause to appeal to Georgia Supreme 

Court, and petition for writ of certiorari to United States 

Supreme Court; Stroup, Greenberg, Nabrit and Boger. 

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

Ford, 600 Pioneer Building, Seattle, Washington; Anthonv G. 

Amsterdam, New York University Law School, 40 Washington 

Square South, New York, New York; and by Stroup; Greenberg; 

Nabrit & Boger. 

72. Petitioner was convicted on one count of malice 

murder and two counts of armed robbery. 

73. Petitioner has no future sentence to serve after 

completion of the sentences imposed by the judgments under 

attack. 

WHEREFORE petitioner Warren McCleskey prays that this 

court: 

1. Issue a writ of habeas corpus to have petitioner 

brought before it to the end that he may be discharged from 

his unconstitutional confinement and restraint and/or be 

relieved of his unconstitutional sentence of death; 

2, Conduct a hearing at which proof may be offered 

concerning the allegations of his petition; 

3. Permit petitioner, who is indigent, to proceed 

without prepayment of costs or fees; 

4, Grant petitioner, who is indigent, sufficient funds 

to secure expert testimony necessary to prove the facts as 

alleged in his petition; 

 



  

30 

5, Grant petitioner the authority to obtain subpoenas 

in forma pauperis for witnesses and documents necessary to 

prove the facts as alleged in his petition; 

6. Allow petitioner a reasonable period of time 

subsequent to any hearing this Court determines to conduct, 

in which to brief the issues of law raised by this petition: 

yi Stay petitioner's execution pending final 

disposition of this petition; and 

8. Grant such other relief as may be appropriate. 

Dated: June 8, 1987 Respectfully submitted, 

ROBERT H. STROUP 

141 Walton Street 

Atlanta, Georgia 30303 

JULIUS L. CHAMBERS 

JAMES M. NABRIT, III 

JOHN CHARLES BOGER 

99 Hudson Street 

New York, New York 10013 

Attorneys for Petitioner 

By: 
  

 



   



      

  

IN TEE SUPERICR COURT QF BUTTS COUNTY 

STATE OF GEORGIA 

  

WARREN MCCLESKEY, ! 

Petitioner, I 

’ | B.C. No. 4909   
WALTFR ZANT, Warden, | 

Georgia Diagonistic and 
Clascification Center, 

Pespondent. 2 

  

PETITION FOR A WRIT CF HABEAS CORPUS, 

FOR A STAY OF EXFCUTION, AND FOR 

LEAVE TC PROCEED IN FORME PAUPERIS 

  

1. Introduction 
  

{1): This is. a petitéon for a writ of habeas corvus 

to relieve the petitioner of restraint under a conviction 

and sentence of death imnosed upon him by the State of 

Georgia in violation of his rights under the Constitution 

of the United States and of the State of Georgia. 

IX. Parties 

{2} Petitioner Warren McCleskey is a citizen of the 

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

is presently imprisoned under sentence of death at the Georgia 

Diagonistic and Classification Center in Jackson, Georgia. 

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

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

give securitv therefor. Petitioner believes that he is entitled 

to redress. 

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

Diagonistic and Classification Center, Jackson, Georgia, 

and has custodv of the petitioner in his official capacity. 

Respondent is currently confining retitioner for the 

  AY TI A SO A SR TSE a wn T - wo erp rn ag en 

 



9 d 

  

ultimate execution of his death sentehce at the Diagnostic 

and Classification Center, 

III. Prior Proceedings 
  

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

in the Superior Court of Fulton County of the murder of 

Atlanta police officer Frank Schlatt and was sentenced to 

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

and given two consecutive life sentences. 

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

Georgia affirmed petitioner's convictions and sentences. 

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

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

certiorari in the Supreme Court of the United States (No. 79- 

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

| McClesky v. Georgia, C.S. , 49 U.8.5L.V. 3251 (1980). 
  

(8) On December 19, 1980, the Superior Court for Fulton 

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

: petitioner's death sentence. On December 12,1980, petitioner 

filed an extraordinary motion for a new trial and asked the tria 

] court to delay re-sentencing pending disposition of said 

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

IV. Respects in Which Petitioner's 

Rights Were Violated 
  

  

(9) Petitioner is in custody in violation of the 

Constitution of the United States and of the State of Georgia 

for the reasons set forth herein. 

(10) The death penalty is in fact administered and 

applied arbitrarily, capriciously, and whimsically in the 

State of Georgia and petitioner was sentenced to die, and will 

be executed, pursuant to a pattern and practice of wholly 

arbitrary and capricious infliction of that penalty in violatior   
} of his rights guaranteed by the Eighth and Fourteenth 

i Amendments to the Constitution of the United States, and 

i -2- 

  
rp Ng = Gk I A pp ST — rae gee = Lo AEA add ne mr 3 ——— a er - d . < ” yg pyar   
 



    

2 

  

Sections 2-101 and 2-114 of the 1976 Constition of the State 

of Georgia, 

(11) Petitioner's death is being exacted pursuant 

to a pattern and practice of Georgia prosecuting authorities, 

courts, juries and Governors to discriminate intentionally 

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

administration of capital punishment. For this reason, the 

impositon and execution of petitioner's death sentence under 

Georgia law and practice violate the Eighth Amendment and the 

Equal Protection Clause of the Fourteenth Amendment to the 

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

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

{1.29 The theoretical justifications for capital 

punishment are groundless and irrational in fact, and death 

is thus an excessive penalty which fails factuallv to serve 

any rational and legitimate social interests that can justify 

its unique harshnass, in violation of petitioner's rights 

guaranteed by the Eighth and Fourteenth Amendments to the 

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

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

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

consideration of all factors relating to the offense and 

the offender, including mitigating circumstances. For this 

reason, the imposition and execution of his death sentence 

violates petitioner's rights guaranteed by the Eighth and 

Fourteenth Amendments to the Constitution of the United States, 

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

State of Georgia. 

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

tioner on the basis of fundamentally unfair proceedings in which 

he was not afforded adecuate notice and an opportunity to 

present evidence and argument directed to specific issues 

determinative of the question of life and death. The imposition 

m3 

  
SW YT mr pg ry my gp wy vo oye ee Eonar ae 

 



  

be a | 

and” execution of the sentence of death under such circumstances 

violates petitioner's rights guaranteed by the Fourteenth 

Amendment to the Constitution of the United States, and Tections 

2x10, 2-111 and2-114 of the 1976 Constitution of the State of 

‘Georgia. ; 

115) Petitioner's trial jury did not constitute a t 

representative cross-section of the community and was incapable i 

of reflecting contemporary community attitudes regarding the 

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

because all persons with conscientious or religious scruples 

against capital punishment were systematically excluded in 

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

and Fourteenth Amendments to the Constitution of the United States, 

andi Sections 2-101, 2-131 and 2~114 of the 127¢ Constitution of 
{ 
1 . 

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

i 

trial transcript are attached hereto as Ezhibit RA, ; 

t (16) Petitioner's trial jury was unrepresentative 
i 

“and biased in favor of the prosecution on the issue of petitioner's 

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

‘violation of his rights guaranteed by the Sixth and Fourteenth 

‘Amendments to the Constitution of the United States, and 

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

| State of Georgia. 

(17) The Court's failure to adequately instruct 

! jurors with conscientious and/or religious scruples against 

capital punishment of their duty to subordinate their personal 

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

| further into their beliefs prior to excusing said jurors 

contravened petitioner's rights guaranteed by the Sixth and 

"Fourteenth Amendments to the Constitution of the United States 

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

the state of Georgia. 

(18) The introduction into evidence of petitioner's 

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

dl os 

‘ 

    
 



    RE i a 

d a | 

result of his arrest without a valid orrand and without 

probable cause, violated petitioner's rights guaranteed by the 

Fourth, Fifth, Sixth and Fourteenth Amendments to the Constitution 

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

the Constitution of the State of Georgia. 

(19) Petitioner's post-arrest statement to 

Atlanta police was involutarily extracted from petititioner 

by promises and threats made to petitioner after Atlanta police 

had made him aware of the highly emotional context within which 

they were conducting the investigation into the death of one of 

their fellow police officers. In this context, petititioner 

was incapable of either maintaining his right to silence or of 

making a Voluntary, knowing and intentional waiver of his rights. 

Introduction of his statement into evidence under such circum- 
i 
H 

i 

stances violated netitioner's rights guaranteed by the Fifth, 

Sixth and Fourteenth Amendments to the Constitution of the United 

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

Constitution of the State of Georgia. 

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

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

who was not prosecuted for an outstanding escape charge Lecause 

of his cooperation and testimony, violated petititicner's rights 

guaranteed by the due process clause of the Fourteenth Amendment, 

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

Georgia. : 

{21} The deliberate withholding from petititioner 

of a statement by defendant, allegedly made to a government 

agent or informer while petitioner was incarcarated and awaiting 

trial, denied petitioner due process rights guaranteed by the } 

due process clause of the Fourteenth Amendment to the United 

States Constitution and Section 2-101 of the 1976 Constitution 

of the State of Georgia. 

122) Prior to trial, the petitioner filed a motion 

to proceed in forma pauperis and to have benefit of appointed 

Dw 

  FT IA A ITY GI TN et wo — TN re fo JE Lr Sp BL TIT IT FTI RTE TEI ST | EEE RY YS Se va 

 



    

experts to prepare his defense, including an investigator to 

contact potential witnesses. Less than three weeks prior to 

trial, the State listed 96 additional “itnedoss which it might 

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

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

gator contravened the petitioner's Eighth and Fourteenth 

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

Constitution of the State of Georgia. 

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

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

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

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

had not previously identified petitioner by photograph or in 

persondid so during their observation of petitioner (the only ; 

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

petitioner, without advice of counsel, and the subsequent 

introduction of witness identification testimony tainted by 

the procedure, violated petitioner's rights guaranteed by the 

Sixth Amendment to the United States Constitution and Sections 

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

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

presumptions of mental states which were elements of the offense 

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

rights against conviction except upon proof beyond a reasonalle 

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

of persuasion upon issues relating to his mental state in 

violation of his rights under the the Fifth and Fourteenth 

Amendments to the Constitution of the United States, and 

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

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

and sentencing phase are attached hereto as Exhibit B. 

(25) The Assistant District Attornev's knowing, 

calculated and intentional direction to the jury during the 

closing argument at the sentencing phase of petitioner's trial 

wo. 

    ET Tp me 3 a EE Br © mg gem go Bmpr ep pg ————  —_ ov TF 

 



  BE   

3 
S
e
—
—
—
—
—
"
 

  

9 

that, in reaching their decision, they should pay particular 

regard to the fact that the aprellate courts had reduced 

petitioner's life sentence on a prior conviction, violated 

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

Amendment to the Constitution of the United States, and Sections 

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

A copy of the trial transcript zelevant hereto is attached as 

Exhibit C. 

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

of Officer Schlatt, the State introduced into evidence, over 

defense counsel's objection, testimony from several witnesses 

regarding defendant's alleged participation in other rotberies : 

not closely connected in time or manner to the Dixie Furniture 

Store robbery, and for which defendant had been neither indicted 

nor tried. The trial court permitted the State to introduce 

such evidence without prior showing of the probative value of 

the evidence, and without recuiring adequate proof that petitioner 

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

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

of showing defendant actually participated in the other acts, and 

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

jury could make of such evidence. The admission of such 

evidence of independent acts, and the failure to give proper 

limiting instuctions when admitted, contravened petitioner's 

due process rights under the Fourteenth Amendment and Sections 

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

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

hereto as Exhibit D. 

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

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

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

of independent acts of crime, and those instructions contravened 

the petitioner's rights guaranteed bv the due process clause 

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

Hy 7 

    ER JY ————— Ts 

 



    ——— J 3 Tr 

  

Constitution of the State of Georgia. 

(29] Georgia statutory privisons and actual 

practices governing appellate review of death sentences: 

(A.) deny petitionea the effective assistance of counsel; 

(B.) deny petitioner a fundamentally fair hearing and 

a reliable determination of the issue of life or 

death; and 

(C.) deny petitioner the effective assistance of counsel 

and the basic tools of an adequate defense and 

appeal because of his indigency, 

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

and Fourteenth Amendments to the Constitution of the United 

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

Constitution of the State of Georgia. 

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

administered to petitioner inflict wanton and unnecessary 

torture and torment upon him, in violation of his rights 

guaranteed by the Eighth and Fourteenth Amendments to the 

Constitution of the United States, and Sections 2-101 and 2-114 

of the 1976 Constitution of the State of Georgia. 

{31) Petitioner's conviction and the imposition 

upon him of a sentence of death violate the Sixth and rourthenth 

Amendments to the Constitution of the United States and Sections 

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

because petitioner was denied the effective assistance of 

counsel at his trial. Counsel failed to contact witnesses, 

failed to seek a continuance when necessary to adequately 

prepare for trial, failed to object to improper instructions 

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

jury, and failed to adequately prepare and present evidence 

at the sentencing phase. 

Vv. Previous Proceedings That 
- Petitioner Has Undertaken 

To Secure Pelief From Conviction 

  

  

  

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

— 

    Tr SCRE 

 



    
this petition, petitioner has undertaken no other proceedings 

to secure relief from his convictions and sentences. 

VI. Necessity for a Stay of Fxecution 
  

(33) Petitioner was sentenced to death, and on 

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

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

irreparable injury if his execution is not stayed. 

vii. Prayer 

(34) WHEREFORE, PETITIONER RESPECTFULLY REQUESTS : 

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

petitioner's execution pending final disposition of this matter; | 
| 

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

dents; 

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

! the allegations of this Setintion; 

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

be relieved of the unconstitutional convictions and sentences 

of death imposed on him; 

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

alternative relief as may seem just, equitable and proper under 

the circumstances, and 

1 (G.) that petitioner be allowed to file this petition 

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

Respectfully Submitted, 

elert 3 Srosy 
ROBERT H. STROUP 

1 1515 Healey Building 
57 Forsyth St. N.W. 

i Atlanta, Georgia 30303 

  

JACK GREENBERG 

JAMFS M., NABRIT IIT 

: 
JOEM CEARLES BOGER 

4 
10 Columbus Circle 

New York, New York 10012 

ATTORNEYS FOR THE PETITIONER 

  
rr ER RN TR A PL py TT ST an Trm— Caczs oe LN a Ee a a Ee i rs Bae Seta RE   
 



   



  

IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

WARREN MCCLESKEY, 

PETITIONER 
HABEAS CORPUS 

NS. CASE NO. 4909 

WALTER ZANT, 

SUPERINTENDENT 

GEORGIA DIAGNOSTIC 

& CLASSIFICATION 

CENTER, 

RESPONDENT 

  

This habeas corpus challenges the constitutionality 

of Petitioner's restraint and the imposition of the 

death sentence by the Superior Court of Fulton County. 

McCleskey was convicted of Murder and two Armed 

Robberies. He was sentenced to death for Murder and 

to life imprisonment for each Armed Robbery. His 

convictions and sentences were affirmed by the Supreme 

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

Certiorari was denied by the Supreme Court of the 

United States. 

The Petition, as amended, contains 36 numbered 

paragraphs, 23 of which allege substantive claims for 

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

paragraphs containing claims for relief by paragraphs 

corresponding numerically to the paragraphs in the Petition. 

 



  

The record in this habeas case consists of the 

transcript of proceedings before this Court on January 30, 

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

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

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

the discovery file of the prosecution; and the 

transcript and record of Petitioner's trial in Fulton 

County Superior Court commencing on October 9, 1978. 

10. 

In Paragraph 10, Petitioner claims that the 

death penalty is applied arbitrarily, capriciously, 

and whimsically in the State of Georgia and thus 

violates his constitutional rights. 

In support of his contention, Petitioner has 

submitted the affidavit of William J. Bowers, 

sociologist and co-author of a study on the 

administration of capital punishment in Georgia. 

The Court has considered the evidence but declines to 

adopt Dr. Bowers' conclusion that the death penalty 

is applied in an arbitrary and discriminatory fashion. 

The proffered study does not take into account the 

myriad circumstances and unique characteristics of 

both offenses and defendants which provide impetus 

for sentences imposed. 

The Georgia capital statute has been declared 

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

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

Court has already reviewed Petitioner's death sentence 

 



  

and found it was not imposed under the influence of 

passion, prejudice or any other arbitrary factor. 

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

found the sentence was not disproportionate considering 

the crime and the defendant. Id. 

Accordingly, the allegation in Paragraph 10 is 

found to be without merit. 

2Y, 

In Paragraph 11, Petitioner complains that the 

death sentence in Georgia is being exacted pursuant to 

a pattern and practice of Georgia officials to 

discriminate on the grounds of race, sex, and poverty 

in violation of Petitioner's constitutional rights. 

The Court is not persuaded by the report of Dr. 

Bowers. Accordingly; the allegation in Paragraph 11 

is found to be without merit. 

12. 

In Paragraph 12, Petitioner alleges that the death 

penalty is an excessive penalty which fails to serve 

any rational and legitimate social interests. 

The Court is not persuaded by the report of Dr. 

Bowers. Accordingly, this allegation is found to 

be without merit. 

13. 

In Paragraph 13, Petitioner contends the death 

sentence is cruel and unusual punishment in light of 

all factors relating to the offense and the offender. 

The Supreme Court has already decided this point 

 



  

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

115. Accordingly, the allegation in Paragraph 13 

is found to be without merit, 

14. 

In Paragraph 14, Petitioner complains of 

constitutional deprivation due to imposition of the 

death sentence stemming from allegedly unfair proceedings. 

The Georgia capital sentencing structure has been 

declared constitutional. Gregg v. Georgia, supra. 
  

Accordingly, this allegation is found to be without merit. 

15. 

In Paragraph 15, Petitioner claims he was denied 

his Sixth, Eighth, and Fourteenth Amendment rights 

because the jury that convicted him did not constitute 

a representative cross-section of the community. 

Specifically, Petitioner contends that two jurors were 

excused without cause because of their opposition to 

the death penalty. 

The Court has examined the voir dire examination 

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

The relevant portions are as follows: 

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

A Yes. 

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

 



  

A: Yes, I would say so, 
because of the doctrine 
of our church. We have 
a manual that we go by. 

Q Does your church doctrine 
oppose capital punishment? 

A Yes. 

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

A Yes, 

Q You would not even consider 

that as one of the alternatives? 

A “No, I'wouldn't, 

(T. 97-98). 

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

Yes. 

You are? 

Yes. 

=
p
.
.
.
 

07
 

> 

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

A “YT don't think: sd, no. 1 
would have to say no. 

Q Under any circumstances 
would you consider it? 

A "No." 

(T. 129-130). 

Both jurors indicated they could not impose the 

death penalty, regardless of what facts might emerge 

 



  

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

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

510, €8.8.Ct. 1770, 20:L,,EQ8.26 776 (1968). 

The allegation in Paragraph 15 is found to be 

without merit. 

16. 

The Petiiloner in Paragraph 16 charges that the 

jury which convicted and sentenced him was biased in 

favor of the prosecution. 

The Supreme Court of the United States has 

already rejected this "prosectuion prone" argument 

in Bumper v. North Carolina, 391. U.S. 543, 88:5.Ct.   

  1788, 20 L.Ed.2d4 797 (1968). See also Douthit v. 

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

Ga. 327(5) (1977) 7 3 : 

Accordingly, this allegation is found to be without 

merit. 

17. 

In Paragraph 17, Petitioner claims harm from the 

trial court's failure to instruct jurors with 

conscientious and/or religious scruples against 

capital punishment to subordinate their personal views 

rather than said jurors being excused. 

The Court has concluded that said jurors were 

properly excused. (See Paragraph 15). Accordingly, : 

this allegation is found to be meritless. 

 



  

18. 

In Paragraph 18, Petitioner contends his 

constitutional rights were violated by the intoduction 

of his post-arrest statement given after an allegedly 

illegal arrest. 

There is no evidence to suggest Petitioner's 

arrest was illegal. Additionally, the Supreme 

Court has already decided Petitioner's statement 

was properly admitted. McClesky v. State, supra, 
  

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

be without merit. 

See Paragraph 18. 

+20. 
  

In Paragraph 20, Petitioner alleges violation of 

his constitutional rights because of the State's 

failure to disclose its arrangement with an informer 

who testified at Petitioner's trial. More specifically, 

Petitioner claims that the testimony of Offie Evans 

was given in exchange for a promise from an Atlanta 

Police Bureau detective that he would give a favorable 

recommendation for Evans who had federal escape charges 

pending. 

Mr. Evans at the habeas hearing denied that he 

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

He did state that he was told by Detective Dorsey 

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

The detective's ex parte recommendation alone 1s 

not sufficient to trigger the applicability of Giglio 

v. United States, 405 u.S. 150, 92'3.Ct. 763, 31 L.PA.24 
  

104 (1972). See Tamplin v. State, 235 Ga. 20(2) (1975). 
  

 



  

The prosecutor at Petitioner's trial, Russell J. 

Parker, stated that he was unaware of any understandings 

between Evans and any Atlanta Police Department 

detectives regarding a favorable recommendation to be 

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

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

for Atlanta detectives to put in a good word for Evans 

with federal authorities, (Id., p- 19). However, he 

further stated that when any police officer has been 

killed and someone ends up testifying for the State, 

putting his life in danger, it is not surprising that 

charges, like those against Evans, will be dropped. (18.). 

In the absence of any other evidence, the Court 

cannot conclude an agreement existed merely because 

of the subsequent disposition of criminal charges 

against a witness for the State. See Fleming v. 
  

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

Accordingly, the allegation in paragraph 20 is 

found to be without merit. 

231. 

In Paragraph 21, Petitioner alleges that his 

Fourteenth Amendment rights were violated by the State's 

deliberate withholding of a statement made by Petitioner 

to Offie Evans. 

This claim has already been decided adversely to 

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

Therefore, the allegation is found to be without merit. 

 



  

22 
In Paragraph 22, Petitioner claims he was denied 

his Sixth and Fourteenth Amendment rights by the 

trial court's failure to grant his Motion to proceed 

in forma pauperis and for funds to employ experts 

to aid in his defense. Specifically, Petitioner 

complains of harm from the lack of an investigator 

and of a ballistics expert. 

Petitioner charges that the need for an investigator 

became more critical when the State served him with an 

additional list of 96. "may call" witnesses approximately 

three weeks prior to trial. Defense Counsel Turner 

testified at the habeas hearing that the list was for 

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

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

over the list with EL th Tesh whether Petitioner 

knew any of the witnesses or what their testimony could 

be. (H.7. 34). 

It is clear that defense counsel had access to the 

prosecution's discovery file which included statements 

from all witnesses (except Evans) and investigative 

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

State Crime Laboratory reports (see Discovery File). 

While an investigator may have been helpful, the 

Court cannot conclude Petitioner was harmed by the 

failure of the trial court to appoint an investigator, 

especially in light of Petitioner's defense that he 

was not even present at the robbery. {(H.7. 57;: 58). 

 



  

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

Kelly Fite, testified that the murder weapon was 

probably a .38 Rossi, but no weapon was ever 

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

Mr. Fite stated that his opinion was based on an 

accumulation of data for several years plus a check 

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

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

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

Even if another expert had testified, it is doubtful 

that such testimony cotila have sufficiently refuted 

the totality of evidence against Petitioner. 

The appointment of expert witnesses lies within 

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

242 Ga. 151 (1978); Crenshaw v. State, 244 Ga. 430 
  

(1979). Denial of the Motion for the appointment 

of experts will not be reversed in the absence of an 

  

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

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

Here, Petitioner demonstrated no special need 

for the appointment of an investigator, nor did 

Petitioner request the Apoolntrent of a ballistics 

expert. In the absence of any evidence of abuse, 

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

Motion appears to be a proper one. 

Accordingly, the allegation in Paragraph 22 is 

found to be without merit. 

23. 

  

In Paragraph 23, Petitioner claims that a highly 

 



  

suggestive line-up occurred prior to the commencement 

of his trial which violated his Sixth Amendment 

rights. 

This issue has already been decided adversely 

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

Petitioner has presented no new evidence to indicate 

that the Supreme Court's conclusion was in error. 

Accordingly, this allegation is found to be 

without merit. 

2s. 
RE ——— 

In Paragraph 24, Petitioner argues that the jury 

instructions concerning intent impermissibly shifted 

the burden of persuasion to Petitioner in violation 

of his Fifth and Fourteenth Amendment rights. 

The relevant portion of the jury charge is as 

follows: 

"Now, in every criminal 
prosecution, ladies and 

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

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

One section of our law says 
that the acts of a person 
of sound mind and discretion 
are presumed to be the 
product of the person's 
will, and a person of sound 

 



  

mind and discretion is 
presumed to intend the 
natural and probable 
consequences of his acts, 

but both of these 
presumptions may be 
rebutted. 

I charge you, however, 

that a person will not 
be presumed to act 
with criminal intention, 

but the second code 

section says that the trier 
of facts may find such 
intention upon consideration 
of the words, conduct, 

demeanor, motive and all 
other circumstances 
connected with the act for 

which the accused is prosecuted. 

Now, that second code section 
I have read you has the 
term the trier of facts... In 

this case, ladies and gentlemen, 
you are the trier of facts, 
and therefore it is for you, 
the jury, to determine the 
question of facts solely irom 
your determination as to 

whether there was a criminal 
intention on the part of the 
defendant, considering the 
facts and circumstances 
as disclosed by the evidence 
and deductions which might 
reasonably be drawn from those 
facts and circumstances. " 

(T. 996-997). 

The jury instruction in this case clearly indicates 

that the presumption could be rebutted so that the 

presumption created was merely a permissive one. Such 

permissive presumptions have been held valid. Skine v. 
  

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

(1980). Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 
  

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

 



  

ground that the jury "were not told that the presumption 

could be rebutted...."™ 61 L.E4.24 at 46. 

Accordingly, the allegation in Paragraph 24 is found 

to be without merit. 

W235: 
Petitioner charges in Paragraph 25 that the 

prosecution impermissibly referred to the appellate 

process in his argument during the sentencing phase 

in contravention of Petitioner's constitutional rights. 

The relevant portion of the prosecutor's argument 

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

Ga. Code Ann. 527-2206 prohibits counsel in a 
  

criminal case from arguing before a jury that a 

defendant, if convicted, may not be required to suffer 

the full penalty imposed because of the possibility 

of executive Slefencys Herve, the prosechiion used 

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

reference to a prior life sentence Petitioner had 

gotten reduced, not to the possibility that a life sentence 

could be reduced if the jury decided to impose such a 

sentence. Since the words referred to a past conviction, 

the Court cannot conclude that the words had the 

inevitable effect of encouraging the jury to attach 

diminished consequence to their verdict and take less 

than full responsibility for determining life or death, 

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

92916) {1975). 

We 

 



» 

  

The prosecution may argue for a death sentence 

and offer plausible reasons for his position. Chenault 
  

v, State, 234 Ga. 216 (7) (1975); Street v. State, 
  

  

237 Ga. 307, 315 (1976); Gates v. State, 244 Ga. 587,.595 
  

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

to be within the bounds of proper argument. 

Accordingly, the allegation in Paragraph 25 is 

found to be without merit. 

26. 

In Paragraph 26, Petitioner alleges that the trial 

court improperly admitted evidence of other robberies 

of which Petitioner had not been convicted and without 

adequate jury instructions which violated Petitioner's 

rights to due process of law. 

The Supreme. Court has alrezdy decided the issue of 

admissibility adversely to Petitioner. McClesky v. State, 
  

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

also noted that the trial court had charged the jury 

as to the limited purpose for which the similar crimes 

were admitted. In that the trial court cautioned the 

jury as to the limited purpose for which the acts were 

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

repeated the same cautionary instruction in the jury 

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

the Court does not find Petitioner's rights were 

contravened in any way. 

Accordingly, this allegation is found to be without 

merit. 

 



  

27. 

In Paragraph 27, Petitioner claims violation of his 

rights guaranteed by the due process clause by the 

alleged overly-broad instructions regarding the use 

which the jury could make of the evidence of 

Petitioner's other acts in the guilt phase. 

See Paragraph 26. 

This allegation is found to be without merit. 

29.Isic]) 
  

In Paragraph 29, Petitioner charges that the 

Georgia appellate tevicy process denies him effective 

assistance of counsel, a fundamentally fair hearing 

and reliable determination of life or death, and the 

basic tools to prepare an adequate defense because of 

his indigency. r 

The Georgia capital sentencing structure has been 

declared constitutional. Gregg v. Georgia, supra. 
  

Accordingly, this allegation is found to be 

without merit. 

30. 

Petitioner clalus in Paragraph 30 that the means by 

which the death penalty will be administered will inflict 

wanton and unnecessary torture upon him in violation 

of his Eighth and Fourteenth Amendment rights. 

The Georgia death statute has been declared 

constitutional. Gregg v. Georgia, supra. 
  

Accordingly, this allegation is found to be without 

merit. 

iS 

 



  

31. 

In Paragraph 31, Petitioner claims that he was 

denied effective assistance of counsel in violation 

of his constitutional rights. 

At trial and on appeal, Petitioner was represented 

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

Assistant District Attorney in Fulton County since 

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

staff, Mr. Turner was in private practice for 

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

consisted of roughly 80% criminal work wherein he 

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

Prior to entering private practice, Mr. Turner served 

as Assistant United States Attorney in the Northern 

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

retained to represent Petitioner a few days after 

Petitioner was initially arrested, about one week before 

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

The Court has reviewed the evidence and found the 

following allegations to be without merit: 

1. Counsel failed to contact witnesses. Mr. Turner 

testified at the habeas hearing that he had had fairly 

extensive pretrial conversations with the prosecutor and 

had discussed a good bit of the information contained 

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

He also had access to the discovery file which contained 

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

and had an agreement with the prosecution to obtain copies 

vf actual statements of witnesses for cross-examination 

34) 

 



  

purposes. (H.T. 88). Myr. Turner testified that he 

did not interview any employees of the Dixie Furniture 

Store prior to trial because he had opportunity to 

cross-examine the three employees who testified at the 

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

employees who testified at trial gave testimony periphereal 

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

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

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

officers because he had full access to their 

investigative reports contained in the prosecution's 

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

over the witness list with Petitioner to see whether 

Petitioner knew any of the people or the type testimony 

they could give. (H.T. 34). Finally, Counsel asked 

Petitioner for the names of alibi witnesses, and 

Petitioner responded with one nickname of a person 

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

Decisions on which witnesses to call, whether and how 

to conduct cross—-examinations, and all other strategies 

and tactical decisions are the exclusive province of the 

lawyer after consultation with his client. Reid v. 

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

factors, the Court cannot conclude Counsel was 

ineffective merely Pecaase he did not physically 

pursue witnesses. Accordingly, this allegation is 

without merit. 

ie, tg PHO 

 



  

2. Counsel failed to seek a continuance when 

necessary to prepare adequately for trial. 

Counsel testified that he had "fairly extensive" 

contact with Petitioner prior to both the preliminary 

hearing and trial, meeting with Petitioner well over 

a dozen times, three times prior to the preliminary 

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

extensive discussions with the prosecution, he had 

8 Mpretty ‘good grasp of the facts."  (H.T. 43). He 

also said that although he looked at the prosecution's 

discovery file only once, he got everything he needed. 

Effectiveness is not measured by how another 

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

225 Ga. 268 (19638); Jones v, .State, 243 Ga. 820 (1979). 
  

In addition, the issue of whether counsel should have 

moved for a continuance and for mistrial after an alleged 

suggestive line-up occurred on the morning Petitioner's 

trial began constitutes the kind of hindsight which has 

never provided the basis for ineffective assistance 

claims. MacKenna v. Ellis, 280 F.248 592 (5th. Cir. 1960) ; 
  

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

3. Counsel failed to object to improper 

instructions to the jury. 

The Court has concluded that the jury instructions 

were neither burden-shifting (see Paragraph 24) nor 

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

is meritless. 

we} Sin 

 



  

evidence that 4id not exist. 

The Sixth Amendment right to counsel means 

v ..not errorless counsel, and not counsel judged 

ineffective by hindsight, but counsel reasonably 

likely to render and rendering effective assistance. 

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

  

Petitioner's trial counsel easily meets this 

test. He was experienced in the trial of criminal 

cases. He prepared for and advocated Petitioner’s 

cause in a reasonably effective manner. Counsel's 

testimony shows him to have been an intelligent and 

concerned defense lawyer. The effort he put forth 

for Petitioner was certainly reasonably effective within 

the meaning of the standard. 

Accordingly, the allegations in Paragraph 31 

are found to be without merit. 

35. 

In Paragraph 35, Petitioner complains that the 

introduction of his statements made to Offie Evans 

were elicited in a situation created to induce 

Petitioner to make incriminating statements in 

violation of his Sixth Amendment right to counsel. 

The Supreme Court has already decided that the 

testimony of Evans was properly admitted. McClesky v. 
  

State, supra,:at 112(4).. “This Court has concluded 

that there was no arrangement made for the testimony 

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

no evidence tending to show that his statements were 

elicited in violation of his Sixth Amendment rights. 

Accordingly, this allegation is found to be without 

merit. 

 



  

4. Counsel.failed to object to improper arguments 

to the jury. 

The Court has concluded that the prosecutor's 

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

claim is meritless. 

5. Counsel failed to prepare adequately and 

present evidence at the sentencing phase. 

Counsel testified that prior to trial, he went 

over Petitioner's background with him, schools he had 

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

Petitioner if he had any witnesses or anyone to 

testify as to his character. He also discussed 

the same matters with Petitioner's sister, who 

declined to testify and told Counsel that her mother was 

not able to testify. (§.T., 80). Counsel also 

testified that Petitioner refused to testify in 

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

Petitioner presented conflicting evidence to the 

extent that Petitioner's sister testified she was 

not asked to testify or to provide the names of potential 

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

presented the affidavits of five persons who indicated 

they would have testified for Petitioner had they been 

asked. 

Despite the conflicting evidence on this point, 

however, the Court is authorized in its role as fact 

finder to conclude that Counsel made all inquiries 

necessary to present an adequate defense during the 

sentencing phase. Indeed, Counsel could not present 

 



  

36. 

Petitioner claims in Paragraph 36 that the 

evidence upon which he was convicted was insufficient 

to show his guilt beyond a reasonable doubt in 

violation of his constitutional rights. 

The Supreme Court has already decided that the 

evidence supports the finding of agoravating 

circumstances, the finding of guilt, and the 

sentence of death beyond a reasonable doubt. McClesky 
  

v. State, supra, at 115. 
  

Accordingly, this allegation is found to be without 

merit. 

WHEREFORE, all allegations in the Petition 

having been found without merit, the Petition is denied. 

This PP day of April, 1981. 

Gis. Limite. 
    

ALEX CRUMBLEY 
JUDGE SUPERIOR COURTS 
FLINT JUDICIAL CIRCUIT     

 



  

APPENDIX 
  

Now, what should you consider as you are 

deliberating the second time here, and I don't 

know what you are going to consider. 

I would ask you, however, to consider several 

things. Have you observed any remorse being exhibited 

during this trial by Mr. McClesky? Have you observed 

any remorse exhibited while he was testifying? 

Have you observed any repentence by Mr. McClesky, 

either visually as you look at him now or during the 

trial or during the time that he testified? Has he 

exhibited to you any sorrow, both visually or during the 

time that he was testifying? 

Have you seen any tears in his eyes for this 

act that he has Sone? : y 

I would also ask you to consider the prior 

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

and particularly the one where he got three convictions. 

I believe if you look at those papers carefully you 

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

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

sheet where apparently that was reduced to what, eighteen 

years or fifteen years or something, which means, of 

course, he went through the appellate process and 

somehow it got reduced. 

Now, I ask you to consider that in conjunction 

with the life that he has set for himself. 

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

 



  

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

man that's served considerable periods of time in 

prison for armed robbery, just like Ben Wright said, 

you know, that is his profession and he gets in 

safely, takes care of the victims, although he may 

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

considers doing a good job, but of course you 

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

I don't know what the Health, Education and 

Welfare or whatever organization it is that checks on 

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

considers his responsibility. 

Now, apparently Mr. McClesky does not consider 

that his responsibility, so consider that. The life 

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

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

to have to have another trial sometime for another peace 

officer, another corrections officer, or some innocent 

bystander who happens to walk into a store, or some 

innocent person who happens to be working in the store 

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

makes the wrong gesture, that moves suddently and ends 

up with a bullet in their head? 

{T. 1019-1020). 

ii. 

 



  
APPENDIX C 

 



  

your blood pressure pills, If you had your blood 

pressure pills, would you feel like you could serve? 

THE JUROR: Yes, sir. 

THE JUROR: My wife 1s e sericus diabetic and I need 

to be at home at night with her, a8né alsc, I have ah 

eighty—-seven vear old father=-{r-law living with ne. 

THE COUR I will excuse you, sir, 

THE CLERK: What ie your name, sir? 

THLE JUROR: Windle ¥, BEurd, 

THE CLERK: Gentlexnien, that is juror bumber &5. 

ThE COURT: Yes, nma'an, 

THEE JUROR: §&ir, I have to heave a prescription 

filled, a medical prescripticn, 

THE COURT: Do you have your prescription with you? 

“HE JUROR: Yes, sir. 

THE CCURT: If you hed that prescription filled, 

would you then be aple to serve? 

TRE JUKQR: Yes, sir, 

THEE COURT: All right, If you were chosen, we could 

handle that for you, I presume, 

Ig there anyone else that could not serve uncer these 

facts? 

Ell right, gentlemen, let's begin the seibction of 

8 jury, : | 

T4dE CLERK: dies and gentlemen, as I call your 

-167- 

 



  

nare, please stand and rewain standing until both sides 

heve an opportunity tc pass upon you, 

Philiy S. Morris. 

HH K ° 

MK. 

THE 

PARRER: 

TURNEKS 

CLERKS 

FPARKER?S 

TURLLRS 

CLERK? 

PARKIN: 

CLERK: 

The State will &ccept fir. lorris. 

Excusea by the defendant, 

bre, Doris tf, Walters. 

The State will excuse Mrs, ralters, 

E. Marshall, Jr. vie 

The State will accept Mr. Marshall. 

Excused by the defendant. 

Hrs. Lucile Shively. 

The State will accept irs. Shively, 

Excused by the defendant. 

leonard Larsche 

The State will accept Mr. Larson, 

Excused by the defendant, 

rane walls. 

Tie State will excuse Hrs. walls, 

Mrs. Marguerite P. Bohler, 

-168- 

 



  

PARKER} 

TULLER: 

CLEKNS 

PARELKS 

CLCEKR 

PARKEEK: 

TURNCES 

PARKEX: 

TURBER: 

PLRRER: 

TURLEE: 

CLERK: 

PARKEE: 

The State will accept Hrs. Bohler. 

Acceptable to the defendant, 

ronalo CG. Hudelns, 

Tne State will accept Mr. Ludgins, 

Acceptable to the detendant., 

State will accept irs. Glover. 

Excused by the defendant. 

Paul J. keale, 

£tete will accept Hr, Reale. The 

Leceptable to the defendant, 

Holder. John hh, 

The State will accent Er, Holder. 

Excused by the defendant, 

wayne Fo Martine: 

The State will accept Br. Martin. 

Excused by the defendant. 

FoLbert L. Hamilton. 

The State will accept »r, Hamilton, 

-165- 

 



  

MR, TURNER: Acceptable to the defendant, 

'HE CLERK: Hrs. Carolyn J. Ballard, 

¥K, PARKER: Tne State will accept Krs., ballard. 

ME, TUKkNER: Mrs, Kallard is acceptable to the 

Trl CLERK: krs,., Mildred Moore, 

ME, PARKEES "The State will accept #rs. (wore. > 

FRe TURIIFR: Excused by the defendant, 

HE CLERI Fobert EE. Smith. 

FF. PARKLCK: “he State will accept Bre. Smith. 

ER. TURNER: Excused by the defendant, 

HL CLERK: Mrs. Florence hk. #obley. 

MR, PARKER: The State will excuse Hrs. Mobley. 

TEE CLERK: Janes L. Kimball, 

MR, PARECP: The State will accept Mr. Kimball. 

- MK. TUELEKR: Excused by the defendant. 

THi CLERKs Fobert L. lagle, 

. liR. PARKER: The State will accept Mr. kagle. 

#R TURNER: Acceptable to the defendant. 

-17C- 

 



  

THE CLERK: 

PaikXER: 

unlike 

CLERL: 

PAREKLKS 

TURBLERS 

CLERK: 

CLERK: 

PARKEK?S 

TURKER: 

Donald Ge. Gosden " 

the State will accent Mr. Cosden. 

Acceptanle to the defendant, 

Robert C., fears, 

“he tate will accept Hr. Starz, 

Lxcused Ly the defendant, 

118s Jessie Horne, 

The State will excuse Kiss Horne. 

Ce AWtrey, 

will accept Mrs. Awtrey. 

Acceptable to the defendant, 

We. Hasher. Brs, Marianne 

The State will accept Mrs, Nasher. 

Acceptable to the defendant. 

The State will accept Hr, Watkins, 

Excused by the defendant, 

Rollin C. Sharpe, 

 



  

TTY 

PAR EER 

“URKER: 

PARKER: 

CLERK: 

PARKER: 

TURNER! 

The State will accept Mr. Sharpe. 

Excused by the defendant, 

iss Carol A. James, 

The State will accept Hiss James, 

Excused bv the defendant. 

coOhn Fo veCadden. 

The Etate will excuse Mr, kdNcCadden. 

Robert F. EBurnette, 

The State will accept Mr. Burnette, 

Acceptable to the defendant. 

Hrs. Clifford Le. lution, Jr. 

The State will excuse Mrs. Lutton. 

irs. Dorothy Srith., 

The State will accept Mrs, Smith, 

Excused by the defendant, 

Mre. Mary G. Darmer. 

The State will accept krs. Darmer. 

Acceptable to thie defendant. 

-172~- 

 



  

THE 

CLERK: 

PARKER: 

TURNEK: 

CLEEKK: 

Mrs. waldtraut Z. Lavroff. 

Tie State will excuse krs. Lavroff. 

Joseph C, League, Jr, 

Tue State will accept Mr. Leaguc, 

Licuseoc by tne defendent. 

Hrs. Suzanne EH. EKilgo,. 

The State will excuse #rs. Kilgo, 

Joscyrnh Lene, 

The Stete will excuse Mr, Dane. 

Killian 2, Lene, 

The Stete will accept Kr, Lane, 

Excused by the defendant, 

Johnsen BE. Mason. 

* 

The State will accept rr, Mason, 

Excused by the defendant, 

Hrs. HE. He. Eickey. 

. The State will accept Hrs. Eickey. 

Acceptable by the defendant, 

The following four jurors will be called 

-173- 

 



  

for the purpose of 

Patricia Duke 

Pe PAERERS 

THE-CLERR:Y  ¥ 

FR. PARKER: 
+}

 
~-

 
—
 

ta
d]

 
L
r
 

eS
 

(o
n 

bi
 LJ 

”
 "e
o 

-
 

HK. PARKEK: 

kre. 'TUKILES 

THE CLERK J 

first alternate, 

The next four 

of selecting the se 

¥rs., Mary J. 

selection of the first alternate. 

S$, Thuett's Juror hLuanber.i107. 

The ELtate will excuse Ms. Dukes. 

illard E. Beavers. 

The State will accept Hr. Beavers, 

Excused by the defendant. 

-illier J. Greene, Jr. 

The State will accept ir. Greene. 

Excused by the defendant. 

ohn 4, Abernathy, Jr., will be the 

jurors will Le called for the purpose 

cond alternate, 

Cox ° 

The State will excuse Mrs. Coxe. 

THE CLERK: Ordney C. Ezldwin, 

. TEE COURT: A 

twelve jurors and t 

names and you are e 

a A RAR Sl Sm WIL MI TW Gr IL pr pi OR FP Ri orn gy ED SYA TT ws ey 
. ul oy, tar Dh SE - AY 3, wile A 

  

The State will accept #r. Baldwin. 

Acceptable to the defendant. 

11 right, gentlemen, we have our 

wC alternates. We cidn't reach vour 
5 we 

xcused until {in the morning at $:30, 

-174~ 

    
TTY SJR ATE A Sg A Sy ME ge BI, BRO WY LT PM ETE earn To rn © AT ge EL eer



  

Report back to the jury assembly rocm at %:3C in the 

morning. Thank you very much for vour patience. 

HE. PARKER: Does Your Honor know how late we will 

proceed this evening? 1 have released some witnesses 

and 1 need to start getting trem back down here, 

THE COURT: let's have the opening statements, and 

I guess sc these jurors won't feel thet thev didn't 

accenplish anything, let's plan te co until 5:0C or 5:3¢C, 

either way you want to. I will let you decide how Kany 

vitnesses you need. 

211 right, gentlemen, the Court is going te impose 

the rule. 2re vou ready? 

¥he PARKLK: "Yes, Your Honor. 

Tuk COURT: All richt., will 211 the witnesses in 

the courtroom who expect to testify in this case please 

3C with the sheriff to the witness roor. If you expect 

to teetify at all for the State or the defendant, please 

leave the courtroon. 

Gentlemen, do you cbject to the sheriff going in and 

finding out if anybody is cooing to need him to go get their 

clothes or -- we know we have one juror that wants his 

blood pressure pills, Do you mind the sheriff going into 

the jury room and asking those quegtions so he can get a 

number on how many people he will need? 

HR, TURNER: Ko objection from us, 

-175=~ 

 



  
APPENDIX D 

 



  

STATE OF GEORGIA 
COUNTY OF FULTON 

AFFIDAVIT   

3. My name is Harriet P. Morris. I reside at 4655 Jett 

Road, N.W., Atlanta, Georgia 30327. 

24 On Wednesday, May 20, 1987, I visited the Fulton County 

Voter Registration Office, Room 106, 165 Central Avenue, S.W., 

Atlanta, Georgia 30335 to view the Master Voter Registration List 

in use at the time of Warren McCleskey's trial in Fulton County 

in’ October, . 1978. The Voter Registration List is preserved on 

microfiche, and is available for public viewing in the 

Registrar's office. The List which I viewed was current as of 

July 28, 1978. 

3. The Voter Registration List contains the following in- 

formation: Name of Voter, Current Address, Voting Precinct, Con- 

gressional District, State Senate District, State House District, 

City Council District, Year of Birth, Race, Sex, and Date of 

Oath. 

4, By reviewing the Voter Registration List, I was able to 

determmine the race of sixty-nine (69) of the seventy-two (72) 

jurors who comprised the six (6) panels from which Warren 

McCleskey's jury was chosen. See, Exhibit A. 

Be The names of three (3) jurors whose names appear on the 

jury list which is a part of the McCleskey record and who were   

voir dired prior to the selection of the jury which heard the 

case do not appear on the Voter Registration List which I viewed. 

Jessie D. Horne, Panel No 8, Juror #85; Mary J. Cox, Panel 10, 

Juror #111; Autry A. Dennis, Panel 11, Juror #127. 

 



  

6. In an attempt to determine the race of these persons, I 

viewed the Master Voter Registration List which immediately 

preceded the July 28, 1978 list. This list, dated September 11, 

1977, did not contain the names of these persons. 

7. I reviewed the Trial Transcript of the Voir Dire and 

Jury Selection to determine which prospective jurors had been 

excused, which had been peremptorily stricken by the State and 

the Defense, and which had ultimately been seated as jurors. 

Further Affiant saith no more. 

  

Harriet P. Morris 

Sworn to and subscribed before me, 

this the XZ day of May, 1987. 

(ls Ll AT ens 
Notary Public 
  

My Commission expires: ¢/45/¢¢ 

 



  

EFY TO JUuRY"'LIST 
  

D-# = Defendant's Peremptory Strikes 

S-# g State's Peremptory Strikes 

#1, #2 = Jurors Seated To Hear Case 

Exc. = Jurors Excused From Case 

23? = Jurors Who Were Voir Dired But Omitted From 
The Striking Process; Trial Transcript Silent 
As To Reason 

SA-# = State's Peremptory Strikes for Alternate 
Jurors 

DA-# = Defendant's Peremptory Strikes for Alternate 
Jurors 

Alt. # = Alternate Juror 

EXHIBIT A 
  

 



  

JURORS IMPANELED FOR STATE v. McCLESKEY, A-40553 
  

  
  

  
  

    

    

JUROR RACE JURY JUROR RACE JURY 

PANEL NO 6 PANEL NO 9 

Philip S. Morris Ww D-1 Darmer, Mary G. Ww #11 

Walters, Doris S. B S-1 Lavroff, Waldtraut Ww S-7 

Marshall, W. F., Jr. W D-2 League, Joseph C. W D-16 

Thompson, W.M. W ExC. Kilgo, Suzanne H. W S-8 

Hurd, Windle W. Ww Exc. Dane, Joseph R. Ww S-9 

Shively, Lucille T. W D-3 Lane, William A. Ww D-17 

Larson, Leonard J. Ww D-4 Mason, Johnson B. W D-18 

Walls, Edna B S-2 Hickey, Mrs. H.H. W #12 

Bohler, MargueriteP. W #1 Montgomery, BruceE.W ?? 

Hudgins, Ronald O. Ww #2 Kirbo, Margaret L. W 2? 

Glover, Mildred F. Ww D-5 Dukes, Patricia J. B SA-1 

Reale, Paul J. Ww #3 Beavers, WillardE. W DA-1 

PANEL NO 7 PANEL NO 10 

Holder, John M. W D-6 Greene, William J. W DA-2 

Martin, Wayne F. Ww D-7 Abernathy, John M. W Alt.1 

Hamilton, Robert L. B #4 Cox, Mary J. SA-2 

Ballard, Carolyn J. W #5 Baldwin, Rodney C. B Alt.2 

Moore, Mildred R. Ww D-8 Johnson, Wiley F. B 

Smith, Robert E. Ww D-9 Williams, Clarence W 

Mobley, Florence R. B S-3 Conner, Robert L. W 

Kimball, James L. Ww D-10 Turner, Marian D. W 

Nagle, Robert L. w #6 Ross, Marian C. B 

Gosden, Donald G. Ww #7 Underwood, Jean Ww 

Weston, Barbara J. B Exc. McKibben, Mary W. B 

Sears, Robert C. Ww D-11 Parrish, Judy K. B 

PANEL NO 8 PANEL NO 11 

Horne, Jessie D. S-4 Vaughn, Agnes C. B 

Awtrey, Agnes C. Ww #8 Alvarado, David Ww 

Nahser, Marianne W. W #9 Blackmon, Thomas F.W 

Watkins, Odel, Jr. B D-12 Grove, Samille T. W 

Sharpe, Rollin C. W D-13 Guthrie, Nancy R. W 

James, Carol A. Ww D-14 Becker, Cornelia V.W 

McCadden, John F. B S-5 Dennis, Autry A. 

Hiles, Joseph W. W Exc. Walker, Leda L. W 

Burnette, Robert F. W #10 Young, Margaret E. W 

Lutton, Jeannette Ww S-6 Buchanan, James F. W 

Cason, Emma T. W Exc. Stansberry, Jeanne W 

Smith, Dorothy W. B D-15 Jeter, Betty G. Ww 

 



  
APPENDIX E 

 



  

AFFIDAVIT OF PATRICIA DUKES 
  

STATE OF GEORGIA) 

}SS: 
COUNTY OF FULTON) 

Personnally before the undersigned officer duly autbori%ed 

by law to administer oaths, appeared PATRICIA DUKES, who, after 

being duly sworn, deposed and stated as follows: 

1. My name is PATRICIA DUKES. I am more than eighteen 

years of age, and am under no legal disability of any kind. 

This affidavit is given voluntarily and without coercion of any 

kind. 

2. I was a resident of Fulton County during 1978, and was 

called for. jury duty during the week of October 9, 1978, 1 

recall being questioned individually as one of a number of jurors 

called as a potential juror in the trial of a man [Warren 

McCleskey] accused of shooting an City of Atlanta police officer. 

3. I was not chosen as a juror in that case. I was excused 

by the prosecutor. 

  

ii AE 
PATRICIA DUKES 
  

Sworn to and subscribed before me, 
thi = "day of FL ; 1986. 

L -   

    

Notarv Public Notary Public, Georgia. State al Large 
My Commission Expires March 1. 1987 

 



  

AFFIDAVIT OF JESSIE D. HORNE 
  

STATE OF GEORGIA) 

}SS: 
COUNTY OF FULTON) 

Personally before the undersigned officer duly authorized 

by law to administer oaths, appeared JESSIE D. HORNE, who, 

after being duly sworn, deposed and stated as follows: 

l. My name is JESSIE D. HORNE. I am more than eighteen 

years of age, and am under no legal disability of any kind. 

This affidavit is given voluntarily and without coercion of 

any kind. 

2. I was a resident of Fulton County during 1978, and 

was called for jury duty during the week of October 9, 1978. 

I recall being questioned individually as one of a number of 

jurors called as a potential juror in the trial of a man 

[Warren McCleskey] accused of..shooting-a City of Atlanta 

police officer. : oy : 

3.1 was not chosen as a juror in that case. 

4, My race is Black. 

This 25 y day of “Wiwet]F&) ; LOB, 

Nine A verti, 53 
ik D. HORNE 

  

  

  

Sworn to and subscribed 

before me, this 

  

diy of , ry 1987. 
: : 

notary Public, Georgia, State at Large 
  

NOTARY PUBLIC 1Sskon Expires Seqt. 5, 1987 

 



  

AFFIDAVIT OF FLORENCE MOBLEY 
  

STATE OF GEORGIA) 

})SS: 
COUNTY OF FULTON) 

Personnally before the undersigned officer duly authorized 

by law to administer oaths, appeared FLORENCE MOBLEY, who, after 

being duly sworn, deposed and stated as follows: 

1. My name is FLORENCE MOBLEY. I am more than eighteen 

years of age, and am under no legal disability of any kind. 

This affidavit is given voluntarily and without coercion of any 

kind. 

2. 1 was a resident of Fulton County during 1978, and was 

called for jury duty during the week of October 9, 1978. I 

recall being questioned individually as one of a number of jurors 

called as a potential juror in the trial of a man {Warren 

McCleskey] accused of shooting an City of Atlanta police officer. 

3. I was not chosen as a juror in that case. 

4, My race is Black. 

This .— dag of |: uw... #1986. 
  

  

FLORENCE MOBLEY 

Sworn to and subscribed before me, 
this Cay. of eS +> 1986. 

  

  

Notary Public 

> imiton Dounly, Georgia. 
TE I SE TL TR 
vad A BRIGNITIONA DIPS 

 



  

AFFIDAVIT OF EDNA WALLS 
  

STATE OF GEORGIA) 

}SS: 
COUNTY OF FULTON) 

Personally before the undersigned officer duly authorized 

by law to administer oaths, appeared EDNA WALLS, who, after 

being duly sworn, deposed and stated as follows: 

l. My name is EDNA WALLS. I am more than eighteen years 

of age, and am under no legal disability of any kind. This 

affidavit is given voluntarily and without coercion of any 

kind. 

2. 1-was a resident of Pulton County during 1978, and 

was called for jury duty during the week of October 9, 1978. 

I recall being questioned individually as one of a number of 

jurors called as a potential juror in the trial of a man 

[Warren McCleskey] accused of shooting a City of Atlanta 

police officer. 

3. 1 was not chosen as a juror in that case. 

4. "My race is ‘Black. 

yas] 3 1 rp 
wis. tine 35 day of /7 § (¢ 1986, 
  

  

rs I Se) 

EDNA WALLS 
  

Sworn to and subscribed 

before me, this 

Jay of. Hoy , 1986. 
MN 

  

—d -, J 7 4 ~~ 

  

. ~y" : 3 ” % 

NOTARY PUBLIC ‘ 

 



  

AFFIDAVIT OF DORIS F. WALTERS 
  

STATE OF GEORGIA) 

)SS: 
COUNTY OF FULTON) 

Personally before the undersigned officer duly authorized 

by law to administer oaths, appeared DORIS F. WALTERS, who, 

after being duly sworn, deposed and stated as follows: 

l. My name is DORIS F. WALTERS. I am more than eighteen 

years of age, and am under no legal disability of any kind. 

This affidavit is given voluntarily and without coercion of 

any kind. 

2. I was a resident of Fulton County during 1978, and 

was called for jury duty during the week of October 9, 1978. 

I recall being questioned individually as one of a number of 

jurors: called as a potential juror in the trial of a man 

[Warren McCleskey] accused of shooting a City of Atlanta 

police officer. 

I was not chosen as a juror in that case. 

4, My race ls Black. 

+ er / ’; 

This ~ J A day of o. lul gyrilrti , 1986, 

7) Sunil 
WEL EAE aa 
ol 05 fry wpa lletr(L. 8.) 
DORIS F. WALTERS 

    

  

Sworn to and subscribed 

before y/ this AGH 

sep 1986. 

A A Aegan 
"NOTARY RUBLIC 

  

  

IR WF ~ram - K be 4 TATE Coamrnission LADIES J ' 

 



  
APPENDIX F 

 



  

STATE OF GEORGIA ) ag: 
COUNTY OF FULTON ) SS 

JILL DARMER, being duly sworn, states: 

l. I am a citizen of the State of Georgia. I reside at 1445 

Monroe Drive, N.E., in Atlanta, Georgia. In 1978, under my former 

married name, Marg Darmer, I served as a juror in the trial of Warren 

McCleskey. 

2. Our jury had a hard struggle with the evidence in this 

case. We discussed the issue of guilt or innocence for a long time. 

We were able to agree without alot of difficulty that all four men, 

including Warren McCleskey, had at least participated in the armed 

robbery. But the issue of responsibility for the shooting was 

different. 

3. The evidence about who fired at Officer Schlatt struck 

me as far too pat. The Atlanta Police Department was obviously disturbed 

that one of its officers had been killed. I had the feeling, however, 

and other jurors did as well, that the State had decided to pin the 

shooting on Warren McCleskey, even though the evidence was not 

clearcut that McCleskey had actually been the one who fired the shots 

at the officer, 

4. The testimony from Ben Wright, the other co-defendant, 

didn't impress us much, since he obviously could have committed the 

shooting himself and had everything to gain by blaming McCleskey. 

The evidence on who was carrying the silver gun seemed to point to 

McCleskey, but it was contradictory at several places. Several 

witnesses stressed McCleskey had been the one to come into the front 

of the store, but three of the robbers gathered all the store personnel 

together in the middle of the store, and nobody even saw which one of 

 



  

the three ran toward the front when Officer Schlatt arrived. 

5. That left us with the testimony of Offie Evans, who had 

been in the cell next to McCleskey. Evans told us that McCleskey had 

admitted to him that he had shot Schlatt; McCleskey even said he would 

have shot his way out no matter how many police had been there. This 

testimony made a real difference in my opinion. Unlike Ben Wright, I 

didn't think Evans had anything to gain. I knew Evans had a prior 

criminal record -- they brought that out during the trial -- but, 

despite that, I didn't see any reason why he would deliberately tell 

a lie to get McCleskey into trouble. 

6. We finally decided to convict McCleskey of malice 

murder, even though some of us continued to have some doubts about 

the evidence. 

7. I was surprised after we gave our verdict when they told 

us we would have to determine the sentence. I thought the judge would 

do that; so did some of the other jurors, I remember. During the 

penalty phase, some of us talked alot about our doubts on who did the 

shooting. This was a very close case for me on whether to give life 

or death. If we had found any valid reason not to give death, I am 

certain that I, and a number of other jurors, would never haven given 

McCleskey a capital sentence. But the defense attorney, honestly, just 

wasn't nearly as good as the prosecutor. We weren't given any real 

reasons we could stand by, except our doubts about who did it, to vote 

for a life sentence. On the evidence we had, even though it was 

very, very close, I think we did the right thing. 

8. Earlier this week, two persons involved with McCleskey's 

defense came to see me at my apartment. They asked me what I remembered 

and I told them. I was very disturbed when I learned that a police 

 



  

detective had promised Offie Evans in 1978 to speak with federal 

authorities on his pending escape charge. 

9. My own vote depended alot on Evans' testimony. The 

idea that Evans might have testified hoping to avoid conviction on 

federal escape charges changes my view of the whole trial. It gave 

Evans a strong motive to lie that we didn't recognize at the time. 

10. As I said, this was for me a very close case. It took 

Evans' testimony for the State to prove to me, beyond a reasonable 

doubt, that McCleskey was the triggerman. Without Evans' testimony 

I definitely would not have voted for a death sentence, and I believe 

at least a few other jurors would have agreed. 

ll. Let me go further. I knew then that it only takes one 

juror to hold out against the rest. I am certain that had I 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. I believe I 

could have remained firm in my vote no matter what other jurors may 

have decided. It would have been enough to leave a big question in 

my mind about who actually killed Officer Schlatt. 

12. The crime McCleskey and his three friends were involved 

was very serious, but so is a death sentence. Our jury 

tried hard to do the right thing in a very difficult case. I think 

we were entitled to all the evidence. It Peers we didn't get it. 

oN 

\ 
—_— > > Ver pics ve 

: — \ a ———   

Ji11 Darmer 
Sworn to and subscribed before me 

this i2~ day of May, 1987 §~ 

  

Notary Pubtic, Fulton County, Georgia 
My Commission Expires May 30, 1950 

 



  
APPENDIX G 

 



  

STATE OF GEORGIA ) 
COUNTY OF GWINNETT ) 

ss: 

ROBERT F. BURNETTE, being duly sworn, states: 

l. I am a citizen of the State of Georgia. I reside 

at 213 Kenvilla Drive, Tucker, Georgia 30084. In 1978, I served 

as a juror during the trial of Warren McCleskey in the Superior 

Court of Fulton County, Georgia. If I had known during the trial 

what I have recently learned about one of the State's key witnesses, 

Offie Evans, I believe it could have made a difference in whether I 

voted for a death sentence, and I believe it would have affected 

some of the other jurors too. 

2. It wasn't an easy case. We spent a long time 

discussing the State's evidence. All of the jurors in our case 

were very responsible and concerned to be fair. It did seem clear 

that, from the evidence we heard, McCleskey had been one of the four 

men who robbed the Dixie Furniture Store. The hard question for us 

was whether he was actually the one who shot the police officer, 

and whether it had been with malice. 

3. Ben Wright, the other robber who testified for the 

State, said that Warren McCleskey had admitted the shooting. I 

honestly never trusted Wright and I don't think the other jurors did 

either. He seemed like a man without a conscience. He was very 

cool and arrogant when he testified. I had the feeling that if he 

had done the shooting himself, he wouldn't have had any remorse at all. 

4. I also remember Offie Evans, who had been in jail, and 

who testified that McCleskey had admitted to him that he had done it. 

Evans also said, I remember, that McCleskey told him he would have 

shot other policemen to get out of there. That was important 

 



  

evidence to us. It looked like Evans had nothing to gain from what 

he said. 

5. We finally decided that whoever shot the policeman 

had deliberately tried to take his life. I was not 100 percent sure 

that McCleskey was the triggerman since there was nothing that 

absolutely proved he was the one -- but on the evidence we were given 

he seemed to be the one. 

6. When we started to discuss the sentence, our decision 

got even harder. It seemed we took a very long time, and some of us 

were looking for a good reason, any reason, to give McCleskey a life 

sentence. TI come from a broken home myself; I was passed around from 

relative to relative coming up, and I spent a year and a half in the 

Methodist Orphanage. I know that what a person's been through can 

affect his view of life. But no one in this case gave us any real 

reason to vote for life. 

7. Even without any background on McCleskey, it was a 

very hard thing to vote for death. I remember I did so only because 

I thought, based on the evidence we had, that McCleskey had 

deliberately taken that officer's life. 

8. On May 7, 1987, two people representing McCleskey came 

to ask me about the case. After I told them what I remembered, they 

told me about the Atlanta police detective who had promised to speak 

to federal people about Offie Evans' escape charge that he had at 

the time of the trial. Nobody ever told us about that during the 

trial. It puts a very different light on Evans' testimony. It 

sounds like he was probably hoping to get off of his escape case by 

testifying against McCleskey. The jury should have known that, I 

 



  

think. It changes the State's whole case. 

9. Like I said, we had a hard time deciding who did the 

shooting, and a hard time deciding to impose the death sentence. I've 

read the part of the trial transcript where Evans testified, and 

I've also read what Evans said in the state hearing in Butts County. 

I would definitely not have voted to sentence McCleskey to death if 

I had thought he might not have been the triggerman. Even without 

Offie Evans' testimony, 1've naturally wondered alot if 1 did the right 

thing. Knowing now that Evans could have lied to cover his deal with 

the detective definitely could have made a big difference to me, and to 

other jurors, I think -- at least in deciding to give the death 

penalty. It keeps me from being sure, and I don't see how you can 

impose the death penalty if you're not very sure. 

10. Apart from Ben Wright, who might have done it himself, 

and from some evidence about who had the murder weapon, which never 

quite added up, the whole case against McCleskey for shooting the 

policeman came down to Offie Evans. If he was just testifying to 

save his own skin, I couldn't have trusted that. No one can always be 

certain, but I honestly do think knowing about his deal with the 

detective could have made the difference to me. It doesn't seem 

ra 4 oF = 5 Pa 7 
4 Z of : Hoss 

be” 

fair that we weren't told about it. 

JB 7 ’ TP ps ol 7A Ip” EF cn : or 4 RU As Cai Prabse 
  

Robert F. Burnette 

Sworn to before me this ¥- day 
of May, 1987 = 

  

Notary Public, Fulion County, Georgia 

My Commissions Expires fay 30, 1660 

 



  
APPENDIX H 

 



      

crimes of murder and robbery, potentially carrying the death pen-— 

alty. 

    

IN THE SUPERIOR COURT OF FULTON COUNTY   
STATE OF GEORGIA 

i ; 
STATE OF GEORGIA 

H 

| 
H 
| i 

WARREN MCCLESKY, et:al 

  versus INDICTMENT NO. A-40553 

~~
 f
s
 S
s
 
S
r
 

  

MOTION AND BRIEF TO PROCEED IN FORMA PAUPERIS 

AND FOR FUNDS FOR EXPERT WITNESSES { 

| 
| 
| 
| 

  

t 

i Comes Now the defendant and moves the court to allow the 

[ 

‘defendant to proceed in forma pauperis and to require the state to 

brovide the defendant with reasonable funds to employ experts, as 

boot out below, to enable him to have an adequate defense, due 

cosets of law, and a fair trial under the Fifth, Sixth, and Four- 

teenth Amendments to the United States Constitution. 

As grounds for this motion, defendant shows the court 

as follows: 

-1- 

Defendant is a black man who stands indicted for the 

-2 = 

Defendant is without money to pay for his defense and 

moves the court for leave to proceed in forma pauperis. 

-3 = 

The State has used the services of numerous experts, 

including pathologist, criminologist, criminal investigators, ball- 

isticic experts, and others, in the investigation and preparation   
of this case for trial. Said experts, many of whom will be sub- 

poenaed by the State to 2rpest as witnesses against the defendant, 

were paid by the State and have contributed significantly to the 

State's case against the defendant. 

-4- 

The defendant is in dire need of the services of a pro- 

fessional criminal investigator to assist his counsel in the 

development of exculpatory and impeaching evidence in this case.   
FILED IN OFFICE 

SEP 6 1978 0 
‘ re. { 

i Pein oY, A aun (G7 mae   EULTON COUNTY GEORGIA   
  

 



    

    
-5= 

In addition to the above, defendant is also in need of 

funds to secure the services of a trained psychologist or psychia- 

frist to testify on and scientifically demonstrate the manner in 
iH 

which statements were coerced from the defendant by law enforce- 

ent officials against his will. 

-6= 

| Defendant is also in need of funds to pay for the costs 

‘of court transcripts previously incurred in this case. 
{ 

i WHEREFORE, defendant prays..the Court for the relief re- 
| 

‘quested above. 

Respectfully submitted, 

  

; 74) 
HN M. TURNER, 11/7 
torney for Warren McClesky