Amendment to Motion to Dismiss and Brief in Support

    [) : 4 : Ny 

  

IN THE SUPERIOR COURT OF BUTTS COUNTY 
STATE OF GEORGIA 

WARREN MCCLESKEY, 

Petitioner, 

CIVIL ACTION NO. 87-V-1028 
Ve. 

; HABEAS CORPUS 
RALPH KEMP, WARDEN, 

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OH

 
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Respondent. 

AMENDMENT TO MOTION TO DISMISS AND 
BRIEF IN SUPPORT 
  

  

Comes now Ralph Kemp, Warden, Respondent in the 

above-styled action, by counsel, Michael J. Bowers, Attorney 

General for the State of Georgia, and submits the instant 

amendment to the previously submitted motion to dismiss and 

brief in support thereof. The instant amendment is submitted 

particularly in light of Petitioner's first amendment to his 

successive state habeas corpus petition. 

Respondent has previously moved to dismiss the instant 

petition as it is successive under 0.C.G.A. § 9-14-51 and 

because four of the five issues presented are precluded from 

review based upon the principle of res judicata. Stevens v. 
+ 

  

Kemp, 254 Ga. 228, 327 S.E.2d 185 (1985). Respondent 

specifically reiterates all grounds for dismissal previously 

set forth in the motion and would reassert the motion to  



\ 

’ $ 

dismiss at this time. Respondent asserts that both claims 

  

raised in the first amendment to the successive habeas corpus 

petition could reasonably have been raised in the first state 

habeas corpus proceeding. As his ground F, Petitioner now 

asserts that the state used at trial incriminatory statements 

made by Petitioner to an alleged jailhouse informant allegedly 

acting on behalf of the state. This is an extension of the 

Giglio issue previously litigated extensively throughout the 

state and federal courts. Petitioner at this time, although he 

has previously consistently asserted that he made no 

incriminatory statements to anyone at the jail, asserts that 

Offie Evans acted as an agent on behalf of the state and 

elicited statements from the Petitioner after the Petitioner 

had been appointed counsel, thus violating his right to 

counsel, citing Massiah v. United States, 377 U.S, 201 (1964); 
  

United States v. Henry, 447 U.S. 264 (1980); Maine v. 
  

  

Moulton, U.S. 106 S.Ct. 477 (1985): Kuhlmann v.   

  

Wilson, U.S. 106 S.Ct, 2616 (1986), "If dis 
  

uncontroverted that Petitioner has never previously raised an 

allegation relating to the alleged denial of counsel or a 

factual claim that Offie Evans was a state agent at the time 

that the Petitioner made incriminating statements to Evans. AS 

his ground G, Petitioner asserts that the state failed to 

correct the so called misleading testimony of a "key witness" 

at trial, again referring to Offie Evans. 

 



  

al 

In support of both of these claims, Petitioner offers a 

statement purportedly made by Offie Evans to the police 

authorities prior to Petitioner's trial. As his excuse for 

failing to have raised either of these claims previously or for 

failing to have presented this evidence previously, Petitioner 

asserts that there is now new law in the State of Georgia which 

allowed him to obtain this statement of Evans which he 

allegedly could not otherwise have obtained earlier. 

Respondent submits that both of these claims are Clearly 

successive under the meaning of 0.C.G.A. § 9-14-51, 

OPEN RECORDS ACT 
  

Initially, it should be noted that Petitioner's 

interpretation of the Open Records Act and Petitioner's 

interpretation of the recent decision by the Supreme Court of 

Georgia in Napper v. Georgia Television Company, No. 44381 (Ga.   

May 6, 1987) (a copy of which is attached as Respondent's 

Exhibit No. 5), ignores prior precedence of that court. The 

Open Records Act was initially enacted in 1959 and it has been 

amended in subsequent years, most recently in 1982, This act 

provides, "All state, county, and municipal records, except 

those which by order of a court of this state or by law are 

prohibited from being open to inspection by the general public, 

shall be open for a personal inspection of any citizen of this 

state at a reasonable time and place; and those in charge of 

such records shall not abuse this privilege to any citizen." 

 



O0.C.G.A. § 50-18-70(a). In 1976, the Supreme Court of Georgia 

  

examined a complaint under the Open Records Act where a sheriff 

refused to allow representatives of local newspapers to inspect 

files the sheriff maintained relating to the death of inmates 

under his supervision. Houston v. Rutledge, 237 Ga. 764, 229 
  

S.E.2d 624 (1976). The court examined in detail the definition 

of "public records" within the meaning of this statute. In 
; 

examining the question of public records of law enforcement 

officers and officials, the court held the following: 

We do not believe that the General 

Assembly intended that all public 

records of law enforcement officers and 

officials be open for inspection by 

citizens as soon as such report is 

prepared. Statements, memoranda, 

narrative reports, etc. made and 

maintained in the course of a pending 

investigation should not in most 

instances, in the public interest, be 

available for inspection by the 

public. However, once an investigation 
  

is concluded and the file is closed, 
  

either with or without prosecution by 

the state, such public records in most 

 



instances should be available for 

  

public inspection. When a controversy 

of this nature arises between a 

citizen and a public official, the 

judiciary has the rather important duty 

of determining whether inspection or 

| non-inspection of the public records is 

in the public interest. In short, the 

judiciary must balance the interest of 

the public in favor of inspection 

against the interest of the public in 

favor of non-inspection in deciding 

this issue. 

Houston v. Rutledge, supra, 237 Ga. at 765 (Emphasis added).   

In specific reference to criminal activity, the court held the 

following: 

Generally, the public records that are 

prepared and maintained in a current 

and continuing investigation of 

possible criminal activity should not 

be opened for public inspection. On 

the other hand, and again generally, 

public records prepared and maintained 

in a concluded investigation of alleged 
  

or actual criminal activity should be 

available for public inspection. 

Id. at 765-766 (Emphasis added). 

 



  

| 

Additionally, the court specifically addressed the question 

of the inspection of records of internal investigations of the 

Atlanta Police Department in Brown v. Minter, 243 Ga. 397, 254 
  

S.E.2d 326 (1979). the court again set forth a balancing test 

to be applied, noting an exception to the disclosure 

requirement only of on-going investigations, not completed 

investigations. 

In the decision cited by the Petitioner, that is, Napper v. 
  

Georgia Television Company, supra, the court referred to the   

definition of public records set forth in Houston v. Rutledge, 
  

supra. The court did no more than consider certain exemptions 

to this statute and again reiterated the fact that the 

judiciary had to balance the interests involved. The court 

algo cited to its decision in Harris v., Cox Enterprises, Inc., 
  

256 Ga. 299, 398 S.E.2d 448 (1986). In Harris as in Houston v. 
  

Rutledge, the court had concluded that even criminal files   

would be subject to disclosure under the Public Records Act as 

long as the files are actually closed and unless some 

exceptional circumstance can be shown. The court in Napper did 

no more than reaffirm its prior holdings in Houston v. Rutledge 
  

and Harris v. Cox Enterprises, Inc. in determining that the   

pendency of a post-conviction collateral proceeding would not 

be sufficient to conclude that the records were not subject to 

disclosure. 

 



  

Thus, Respondent submits that it is clear that Napper v,. 
  

Georgia Television Company, supra, does not constitute a change   

in the law which would justify the Petitioner having failed to 

make an Open Records Act request for almost nine years from the 

time of his trial to the present date. In fact, apparently 

Petitioner did not make the Open Records Act request until 

within the last month, without offering any satisfactory 

explanation of why he could not have made this same request 

after the completion of his direct appeal. Under the law 

existing at that time, had access been denied Petitioner could 

have requested the court to make a judicial balancing 

determination required under the statute and prevailing case 

law to determine whether the document or documents sought 

should appropriately have been produced pursuant to the Open 

Records Act. Thus, Petitioner has simply failed to demonstrate 

that he could not have obtained this evidence prior to the 

filing of his first state habeas corpus petition. 

SUCCESSIVE PETITIONS 
  

Petitioner has asserted that he should be entitled to raise 

these claims at this time based upon his construction of the 

decision in Napper v. Georgia Television Company, supra, as 
  

constituting new law, and also based on an assertion that the 

holding of the Supreme Court of Georgia in Smith v. Zant, 250 
  

Ga. 645, 301 S.E.2d 32 (1983), entitles him to pursue this 

 



  

claim at this time. Respondent submits that neither the 

decision in Napper, nor the principles set forth in Smith V. 
  

zant, supra, entitle the Petitioner to have these issues   

litigated at this late stage of the proceedings. 

As noted previously, Petitioner has simply failed to show 

why he could not have made an Open Records Act request for the 

document in question prior to the filing of his first state 

habeas corpus petition or certainly prior to the filing of his 

first federal habeas corpus petition without waiting until this 

late date to do so. Petitioner's proffered excuse that Napper 

constitutes new law has been demonstrated to be without merit, 

and thus is insufficient to compel this Court to ignore the 

successive petition bar. 

Secondly, Respondent submits that this case is factually 

distinguishable from Smith v. Zant, supra. In Smith, supra, 
  

  

the court was faced with an allegation "that the failure of the 

prosecution to correct the testimony of John Maree, an 

accomplice and eyewitness who testified against Smith at his 

trial, that he [Maree] had no plea agreement with the state 

when that statement was not true, denied him [Smith] due 

process: and a fair-trial,.” Id. at 646. The Georgia Supreme 

Court ruled that a hearing must be held on the merits of the 

claim despite the successive of petition bar of 0,.C.C.A. 'S 

9-14-51. The court noted that it appeared at trial that Maree 

had no agreement with the state in exchange for his testimony 

 



  

except for the protection of his family and himself. Further, 

in his closing argument, the district attorney referred to the 

fact that if he had anything to do with it John Maree would be 

convicted of two counts of murder, and specifically stated that 

there had been no promise made. Subsequent to the first state 

corpus habeas proceedings, another lawyer obtained information 

from the former district attorney which specifically indicated 

that there may in fact have been an agreement between Maree and 

the state, In fact the former district attorney signed an 

affidavit, subsequent to the first state habeas corpus 

proceedings, swearing to the fact that he had offered a deal to 

Maree for a life sentence in exchange for his testimony and 

stating that he had never informed any of the attorneys of this 

agreement. Under those circumstances, where there was 

knowledge specifically within the mind of the prosecutor and 

unavailable from any other source, the court concluded that the 

state had the duty to disclose such information and could not 

shift the burden to the defendant to obtain the information. 

A pivotal point in that case was the fact that Smith had 

before the state habeas corpus court the actual affidavit of 

the district attorney stating information directly contrary to 

that stated at trial, information which had previously been 

solely within the knowledge of the district attorney and oily 

subsequent to the first habeas corpus proceeding had become 

discoverable by and available to the Petitioner, 

 



  

In the instant case, the Petitioner has presented a 

statement of Offie Evans which Petitioner obtained under the 

Open Records Act, which statement was not exclusively within 

the knowledge of the district attorney and which statement was 

discoverable by the Petitioner prior to his first habeas corpus   

proceeding had he simply pursued the Open Records Act avenue at 

that time. 

Another factual distinction between Smith v. zant, and the 
  

instant case is the fact that the Petitioner in Smith V. Zant, 
  

supra, totally lacked any cognizable factual compulsion to 

pursue the question of an undisclosed deal, while in this case, 

this Petitioner knew at trial that the subject statement of 
  

Evans existed. In fact, the statement in question was the 

subject of an in-camera inspection by the trial court. The 

trial court entered an order on September 27, 1978, 

specifically stating, "the court finds that although the 

documents might become material for rebuttal at trial, they are 

not now subject to discovery. It is further ordered that 

counsel may, at the proper time, ask the Court for ‘a further 

ruling if the circumstances making it appropriate to do so." 

(R. 46) (Respondent's Exhibit No. 6). At the beginning of the 

trial, the trial court again made reference to the in-camera 

inspection noting that the court was not aware of the details 

~10-~ 

 



  

of the case except for the evidence submitted as part of the 

in-camera inspection. (T. 9) (Respondent's Exhibit No.7).1 

Subsequently, Petitioner testified in his own behalf at 

trial and denied being present at the crime. During 

cross-examination, the assistant district attorney questioned 

the Petitioner as to whether he had a girlfriend, whether she 

had taken part in any of the robberies, and other statements. 

The assistant district attorney asked the Petitioner if he had 

ever made the comment that Mary Jenkins made up his face for 

the robbery. (7. 828). The Petitioner specifically testified 

that he had never talked to any of Ben Wright's relatives in 

jail, thus denying that Evans ever told him that he was a 

relative of Ben Wright. «(7T. 29). During cross-examination, 

objection was made by counsel for the Petitioner indicating to 

the trial court that he had asked for all statements of the 

Petitioner. The court ruled that there was nothing exculpatory 

in the statement of Offie Evans and cross-examination 
  

continued. The Petitioner consistently denied making any 

admissions or incriminatory statements while at the jail, 

although he admitted having conversations with Bernard Depree, 

The Petitioner specifically denied ever admitting that he 

killed anyone. (Respondent's Exhibit No. 8). 

  

1although Petitioner has attached certain motions to his 
amendment that appear to have been prepared by trial counsel 
prior to trial, counsel for Respondent didnot find those 
motions in the official record on file in the Georgia Supreme 
Court. 

 



  

Subsequently, as a part of the rebuttal case only, the 
  

state presented the testimony of Deputy Hamilton from the 

Fulton County Jail. Deputy Hamilton testified as to the 

location of the Petitioner while he was incarcerated at the 

Jail and testified that Offie Evans came to him with some 

information. (T. 861). See Respondent's Exhibit No. 9. 

Evans then was called to testify on behalf of the state, 

During his testimony, Evans elaborated in great detail on his 

prior convictions, on his pending escape charge from a federal 

halfway house and his opinion that he would not actually be 

charged with the escape. He then testified concerning his 

conversations with the Petitioner while in the jail at Fulton 

County. He testified that he did have conversations with the 

Petitioner concerning the crime, but did not specifically 

testify who initiated the conversations. In fact, he simply 

testified that they had several conversations. (T. 869-70). 

Petitioner's counsel thoroughly cross-examined Evans concerning 

his criminal record and what took place at the jail. Counsel 

for the Petitioner did not request a copy of Evans' statement 

at that time in spite of the notification by the Srial court in 

the previous written order that a motion for such discovery or 

production could be made at a subsequent time. Further, prior 

to the testimony of the next witness, the trial court 

instructed the jury that all evidence submitted by the state 

since the defendant had rested was solely for the purpose of 

-12- 

 



  

impeachment and no other purpose. (T. 885). (See Respondent's 

Exhibit No. 9). Thus, the jury was fully advised that the 

testimony of Offie Evans was usable only for the limited 

purpose of impeachment of the testimony of the Petitioner and 

for no other purpose. 

In addition to all of the above, present counsel for the 

Petitioner has certainly known of the existence of the 

statement by Offie Evans at least since the time counsel read 

the trial transcript as well as from the date of the first 

state habeas corpus hearing. At that hearing, John Turner, 

trial counsel for the Petitioner, testified that he did not 

have Evans' statement prior to trial. Further, Offie Evans 

testified before the habeas corpus court. Counsel for the 

Petitioner apparently did not seek to acquire the statement 

through any means either prior or subsequent to the first 

evidentiary hearing before this Court. Although the statement 

is mentioned in the deposition of Mr. Parker, Petitioner again 

’ did not seek to obtain the statement at that time either by 

subpoena or by requesting it under the Open Records Act. 

Certainly, Petitioner could have made these timely inexpensive 

minimal efforts to obtain the statement of Evans. 

Another prime distinction between this case and that of 

Smith v., Zant, is the nature of the testimony given at the   

trial of Smith and the nature of the affidavit obtained before 

the filing on Smith's behalf of the second state habeas corpus 

-13- 

 



  

petition. In this case, however, Petitioner has only now 

obtained, via avenues which have always been available, a 

document which has been available since prior to the first 

habeas corpus proceeding. Further, the statement of Offie 

Evans is unlike the affidavit of the district attorney in 

Smith's case. Until the information regarding an alleged 

undisclosed deal was revealed by the district attorney in 

Smith, the petitioner had no knowledge of or means to obtain 

the information. Here the Petitioner himself made the 

statements to Evans, knew what Evans told him and also knew the 

statement existed before the end of the trial. 

Furthermore, Petitioner has not shown circumstances similar 

to those in Smith v. Zant, supra, i.e., that the statement of 
  

Evans is directly contrary to the information provided by the 

prosecutor at trial. The key factor in Smith was that the 

affidavit was by the prosecutor himself directly contradicting 

the argument he had given at trial and the testimony of the 

witness Maree at trial. In this case, the statement of Evans 

does not directly contradict any information presented at 

trial. The statement does not, contrary to the assertion of 

Petitioner, indicate in any fashion that Evans was an agent of 

the state. The most the Petitioner has pointed to in this 

latter regard is a reference by Evans that he attempted to call 

Petitioner's girlfriend while the prosecutor and the detectives 

were sitting nearby. This reference does not indicate when 

-14- 

 



  

this occurrence took place in relation to any of the other 

conversations made, nor is there any indication Evans elicited 

any information from Petitioner at the request or direction of 

any state official. In fact, the statement of Evans tends to 

support the theory that Evans, perhaps through his own 

initiative, had conversations with the Petitioner and Depree, 

which conversations Evans subsequently related to the state 

authorities. This does not establish that Evans was acting as 

an agent for the state, nor does it give any indication that he 

was. Furthermore, this information was not contrary to 

anything presented at trial, as the statement presented by the 

Petitioner indicates that there were numerous conversations 

held at the jail, which is similar to the testimony presented 

at trial. 

In relation to Petitioner's claim of misleading statements, 

again, Petitioner has failed to point to any specific 

statements which were allegedly misleading or material. As the 

Eleventh Circuit Court of Appeals has already concluded that 

Evans was thoroughly impeached by the testimony presented at 

trial and as Petitioner has had every opportunity at trial and 

in state habeas corpus to cross-examine Evans and the assistant 

district attorney, and has failed to show any material 

discrepancies in Evans' testimony at trial and that Present 4d 

in the statement, Petitioner has failed to show any information 

which would justify consideration of this claim at this stage 

of the proceeding. 

15 

 



  

Respondent submits that it is clear that both issues 

presented in the first amendment of this successive petition 

are clearly successive within the meaning of state law, 

Petitioner has not shown that he could not have raised these 

claims in his first state habeas corpus petition, nor has he 

shown that he could not have obtained the statement of Evans 

prior to this late stage of the proceedings. Respondent also 

reiterates the fact that United States v. Bagley, U.S. 
  

1065 8.Ct. 3375 (1985), is not new law and would not justify 

reconsidering any issues relating to the testimony of Offie 

Evans, 2 

  

2Respondent would also note that Parts I and II of that 
opinion are the only parts joined in by a majority of the 
court. Part:11l is simply a plurality opinion. 

~16= 

 



WHEREFORE, for all of the above and foregoing reasons and 

  

for those reasons set forth in the previously submitted motion 

to dismiss, Respondent submits that the instant petition should 

be dismissed as successive within the meaning of Georgia law 

; without a consideration of the merits of any of the claims 

raised. 

Respectfully submitted, 

MICHAEL J. BOWERS 071650 
Attorney General 

MARION O. GORDON 302300 
First Assistant Attorney General 

    a - lA 1. 

AILLIAM EB, HFLL, OR, - 354725 
Senior Assistant /Attafney General 

  

   
  

750150 
Assigtant Attorney Gerferal 

MARY BETH WESTMORELAND 

132 State Judicial Building 
40 Capitol Square, S. W. 
Atlanta, Georgia 30334 
(404) 656-3349 

=17= 

 



CERTIFICATE OF SERVICE 

  

I do hereby certify that I have this day served 

the within and foregoing amendment to motion to dismiss 

and brief in support, prior to filing the same, by 

depositing a copy thereof, postage prepaid, in the United 

States Mail, properly addressed upon: 

Robert H. bonis 
141 Walton Stree 
Atlanta, Georgia 0303 

John Charles Boger 
99 Hudson Street 

New York, New York 10013 

This SLA day of June 1987. 

  
-]18- 

 



EERE * 

  

In the Supreme Court of Georgia 

Decided: 

44381. NAPPER v. GEORGIA TELEVISION COMPANY, 

d/b/a WSB-TV et al. 

MARSHALL, Chief Justice. 

This suit was instituted by the appellees-plaintiffs 

against the appellant-defendant under the Open Records Act. 

: OCGA § 50-18-70 et seq. The appellees in this case consist 

of Georgia Television Company, d/b/a WSB-TV; The Atlanta 

Journal; The Atlanta Constitution; and ABC News, Inc. The 

appellant is George NEDPOT, in his official capacity as 

Commissioner of Public Safety of the City of Atlanta. In 

that «capacity, he ‘has custody of the investigatory case 

files AER 16d by the Task Force formed to investigate what 

has become known world-wide as "The Atlanta Child Murders." 

The appellant has refused the appellees’ request that they 

be given access to ‘these £iles. ‘As a result, the appellees 

have filed this suit in which they seek to enjoin the 

appellant from refusing to make these files open. to Public 

inspection. The trial judge conducted an in-camera 

inspection of the files, and then issued orders compelling 

the disclosure of some of the files in their entirety and 

the disclosure of other files with limited deletions. The 

CASE NO. 8 ~V~ (DAK 
  me 

Respondent's Exhibit Norte : 

 



  

orders were consolidated for appeal, and supersedeas was 

granted by us pending an expedited appellate review. 

Statement of Facts 
  

The homicides constituting the Atlanta child murders 

took place between July of 1979 and May of 1981. During 

this time period, a series of 30 murders of black youths 

occurred. in metropolitan Atlanta. Because of the ex- 

traordinary public concern and fear resulting from these 

murders, the Atlanta Metropolitan Task Force on Missing and 

Murdered Children (referred to hereinafter as the Task 

Force) was formed to investigate these murders. 

In May of 1981, Wayne Williams was arrested and indicted 

for the murders of two of the missing and murdered children, 

Nathaniel ~Cater and Jimmy Ray Payne. During the Williams 

trial, the Presse ion introduced © evidence from ten 

additional cases of other missing and murdered children in 

an attempt to demonstrate a "pattern" among these ten 

murders and the Cater and Payne murders. (These ten 

additional cases will be referred to hereinafter as the 

"pattern" cases.) Evidence from the investigative files of 

the remaining murders played no-role in. the Williams trial. 

(The remaining cases will be referred to hereinafter as the 

"other? cases.) After a nine-week trial, which was 

concluded on February 27, 1982, Williams was convicted of 

 



  

the Cater and Payne murders. (The Cater and Payne cases 

will be referred to hereinafter as the "conviction" cases.) 

Wayne Williams' conviction was affirmed by ‘this court on 

direct appeal in Williams v. State, 251 Ga. 749 {312 SE2d 
  

40) (1983). 

Shortly after the conviction of Wayne Williams for the 

Cater and Payne murders, the Commissioner of Public Safety 

of the City of Atlanta, who at the time was Mr. Lee Brown, 

announced at a press conference that 22 "pattern" and 

"other" cases had been "cleared" as a result of Wayne 

Williams' conviction for the Cater and Payne murders. Use 

Of the term "cleared" in this context means that the inves- 

tigations were concluded and that no further investigations 

would be undertaken. The documents clearing these cases 

indicate that the Task Force had gathered sufficient 

evidence to identify the murderer in each case as Wayne 

Williams. - Task Force Commander Willie J. Taylor testified 

that these cases were "exceptionally cleared" under Task 

Force regulations, because the District Attorney for Fulton 

County decided not to prosecute Williams for these crimes in 

light of his conviction of the Cater and Payne murders. 

After the Task Force was disbanded, the investigative 

files concerning the missing and murdered children were 

transported to the Atlanta Bureau of Police Services, placed 

in the appellant's custody, and sealed in a locked vault. 

These closed investigative files have remained in the sealed 

vault for the last five years. 

 



  

On January 8, 1987, the appellees instituted this suit 

in the Fulton Superior Court. In this suit, the appellees 

seek access to the investigative files concerning the two 

"conviction" cases and 211 "pattern" and "other" cases. The 

appellant voluntarily produced to the appellees the investi- 

gative file in one of the "pattern" Cases, that of: Charles 

Stephens. The appellant refused to produce the remainder of 

the investigative files from the "conviction" and "pattern" 

cases, on the ground that these files were related to open 

investigations during the pendency of a habeas-corpus 

petition filed by Wayne Williams in the Butts Superior 

Court The appellant refused to produce the files in the 

"other" cases until the trial court conducted an in-camera 

inspection of these files for the purpose of deleting 

information, the public disclosure of which would constitute 

an invasion of privacy. 

Mr. <oseph Drolet, of the Pulton County “District 

Attorney's Office, gave deposition testimony in this «case 

that "[tlhere exists at this point an open prosecution file 

in regard to the prosecution of Wayne Williams, a file which 

has remained open since the prosecution began and which 

contains all pertinent material, including pattern cases and 

potential pattern cases and the cases, of course, Of Mr. 

Payne and Mr. Cater, and that is. still maintained as an open 

prosecution «file at this time.” Mr. Drolet further 

testified that if a iretrinl is ordered in Wayne Williams 

habeas-corpus proceedings, it would be necessary to review 

 



  

tne evidence in the "conviction" cases, "pattern" cases, and 

"other" cases. In addition, he testified that he would 

attempt to update and continue in the investigation and 

supplement any investigation. 

The superior court directed the appellant to submit the 

investigative files in 11 of the "other" cases for an 

in-camera inspection by the court. ? Prior to submitting the 

files to the trial court for an in-camera inspection, the 

appellant reviewed the files and identified those portions 

Of the files which in the appellant's view should not be 

disclosed by marking the page with numbered tabs and 

highlighting the information. In addition, a summary of 

proposed deletions is included in the files. 

After. a hearing, the superior. court. ordered’ the 

appellant to submit the files in the "conviction" and 

"pattern" cases to the court for an in-camera inspection, on 

grounds that "the pendency of Wayne Williams' habeas COrpus 

petition does not justify a blanket nondisclosure of these 

files landli. . . lelven if these cases could be viewed as 

pending . . . the. public interest in favor of disclosure 

outweighs the public interest in justifying a blanket 

nondisclosure.” As: to. therfiles in the "other" cases, the 

superior court -- after conducting a page-by-page in-camera 

inspection, and after "balancing the interests involved and 

considering all matters required by Harris v. Cox," .256 Ga. 
  

299 (1386)," ~~- ordered the appellant to disclose eight of 

these files in their entirety and four of these files with 

 



  

limited deletions. 

In this appeal, the appellant has filed three enumer- 

ations of error, to wit: (1) The superior court erred in 

concluding that the pendency of Wayne Williams' state 

habeas-corpus petition does not warrant exemption of files 

related to the two cases on which Williams was convicted and 

the ten cases used during his trial to establish a pattern. 

(2) The superior icourt erred in ordering disclosure of 

certain categories of information which are exempt from 

disclosure under Georgia statutes. (3) The superior court 

erred in ordering disclosure of information which infringes 

upon © the privacy rights of individuals whose names, 

addresses, and other personal information appear in the 

files requested by the appellees. 

The Act 

(a) Where there is a request for disclosure of 

documents under the Public Records Act, the first inquiry is 

whether the records are "public records." "[D]ocuments, 

papers, and records prepared and maintained in the course of 

the operation of a public office are 'public records' within 

the meaning ofthis statute . .." “Houston v. Rutledge, 237 
  

Ga. 764, 765 (229 SE2d 624) {1976), 

(b) If the documents are found to be "public records,” 

the second inquiry is: (A) whether they are within the 

gxceptions. to disclosure set forth in OCGA § 50-18-72 (a) 

 



  

(i.e., whether they are specifically required by the federal 

government to be kept confidential or whether they are 

medical or veterinary records or similar files, the 

disclosure of which would be an invasion of privacy); or (B) 

whether under OCGA § 50-18-70 (a) they are otherwise 

protected from disclosure by court order or by statute. 

{C) In Poe v. Scars, 245 Ga. 83 (263 sSE24 119) (1980), 
  

we were called upon to determine the meaning of § 50-18-72 

(a)'s exemption with respect to "medical or veterinary 

records or similar files, the disclosure of which would be 

an invasion of privacy." There, we held, "Whatever may be 

the outside limits of the rights of personal privacy to 

which that section refers, this court cannot accept [the] 

contention that ‘similar files' must relate in some respect 

to the history, diagnosis, treatment, prognosis or result of 

disease or other medical condition. Properly construed, the 

section forbids disclosure to the general public . from 

[public] records or files of any information which would 

invade the constitutional, statutory or common-law rights of 

+ % is privacy. See. Brown v. Minter, 243 Ga. 397 (254 SE2d4 
  

326 (19793). 245 Ga. at p. 36. 

"The right of privacy, protectable in tort, however, 

extends only to unnecessary public scrutiny. Waters v. 
  

Plestwood, 212 Ga. 161 (91 SE24 344) (1956); Pavesich v. New   

  

England Life Ins. Co.,:122.0Ga. 190 (50 SF 68) 1904);   

Cabaniss ‘vi. "Hinsley, 114 Ga. APD. 367 . (151 'SE24 496)   

{1966)." {fn. omitted). "Athens Observer, Inc. v. Anderson, 
  

 



  

205. Ga. 634 65.4263 SR2d4 128) (1980). : The tort of invasion 

of privacy protects "'"(tYhe.right of a person ... « to. De 

free from unwarranted publicity, . . . or the unwarranted 

appropriation or exploitation of one's personality, the 

publicizing of one's private affairs with which the public 
  

has no legitimate concern."' Gouldman-Taber Pontiac, Inc. 
  

  

Veo Zorbgt, 213 $Ga. 682, 683- (100 ~SE24 881)" (1957).   

  

(Emphasis supplied.)" Athens Observer v. Anderson, supra, 

245 Ga. at :p. 65, n..3s "There are at least three necessary 

elements for recovery under this theory: (a) the dis- 

closure of private facts must be a public disclosure; (b) 

the facts disclosed to the public must be private, secluded 

or secret facts and not public ones; {cC) the matter made 

public must be offensive and objectionable to a reasonable 

man of ordinary sensibilities under the circumstances." 

Cabaniss .v. Hipsleyv, ‘supra, 114 Ga. App. at p. 372. This 
  

tort also -encompasses publicity which places the plaintiff 

in a false lignt ‘&in thd publicts eye. Ida p.:370. 

However, "'(wlhere an incident .is a mACTer of public 

interest, or the subject matter of a public investigation, a 

publication in connection therewith can be a violation of no 

  

  

one's legal right of privacy.' Waters v. Fleetwood, supra, 

PDP. 167." Athens Observer Vv. Anderson, supra, 245 Ga. at p. 

66, 1. 4, 

"Various factors weigh on the question of whether 

personal privacy protects information from disclosure. 

Among other things, the court should consider whether the 

 



  

Infornabion is unsubstantiated and based on hearsay, whether 

it does not relate or relates only incidentally to the 

subject matter of the public record and the remoteness in 

time of the events referred to. 

"While this “state has ‘a strong : policy of open 

government, there is a corresponding policy for protecting 

the right of the individual to personal privacy. References 

to matters about which the public has, in.fact and in law, 

no legitimate concern, though found in a public document are 

not subject to disclosure under the Public Records Act 

because they are not the subject of 'legitimate public 

inquiry." Harris v. Cox Enterprises, “Inc., 256 Ga. 299, 
  

302 (348 SE2d 448) (1986). 

(d) If the records are public records and do not fall 

within any of the exemptions set out in the Public Records 

Act, the question is whether the records should be protected 

from disclesure by court order under § 50-18-70 (a). 

In regard to whether public records should be protected 

by court order, we have held, "When a controversy of this 

nature arises between a citizen and a public official, the 

judiciary has the rather important duty of determining 

whether inspection or non-inspection of the public records 

is in the public interest. In short, the judiciary must 

balance the interest of the public in favor of inspection 

against the interest of the public in favor of 

non-ingpection ‘in deciding this {issue." Houston wv. 
  

Rutledge, supra, 237. Ga. at p. 765% 
  

 



  

(e) If there has been a request for identifiable public 

records within the possession of the custodian thereof, the 

burden is cast on that party to explain why the records 

should not be furnished. Northside Realty Assoc. Inc. v. 
  

Community Relations Comm. of the City of Atlanta, 240 Ga. 
  

432.4241 SE24 189) °(1978). 

Appeal 

1. Does pendency of Wayne Williams' petition for writ 

of habeas corpus warrant exemption of the files in the 

"conviction" cases and in the "pattern" cases? 

(a) In Houston v. Rutledge, supra, this court held that 
  

files maintained by a sherife, as a matter of administrative 

discretion and relating to the deaths of inmates in jail, 

were "public records." There, the court stated: 

"Statements, memoranda, narrative reports, etc. made and 

maintained in the course of a pending investigation should 

not in most instances, in the public interest, be available 

for inspection by the public. Howdver, once an investi- 

gation is concluded and the file closed, either with or 

without prosecution by the state, such public records in 

most instances should be available for public inspection. 

When a controversy of this nature arises between a citizen 

and a ‘publiciofficial, the judiciary has the rather impor- 

tant duty of determining whether inspection or non-inspec- 

tion of the public records is in the public interest. In 

10 

 



  

Shore, the judiciary must balance the interest of the public 

in favor of inspection against the interest of the public in 

favor of non-inspection in deciding this issue. 

"Generally, the public records that are prepared and 

maintained in a current and continuing investigation of 

possible criminal activity should not be open for public 

inspection. On the other hand, and again generally, public 

records prepared and maintained in a concluded investigation 

of alleged or actual criminal activity should be available 

for public inspection.” 237 Ga, at .pp. 765, 766, 

In Harris v. Cox, supra, we held that a Georgia Bureau 
  

of Investigation report on its investigation of the Georgia 

State Patrol should be disclosed under the Public Records 

Act, since the investigation had been completed. We held 

that the report should be made ‘available for public 

inspection notwithstanding the argument that a criminal 

matter was. pending in that the report had been delivered to 

federal authorities for consideration. Harris v. Cox, 
  

supra, '256:Ga. ati.p. 300, n. 1, However, as previously 

stated, we also recognized that portions of the report, 

which would violate an individual's right to Privacy or 

which are required by the federal government to be.kept 

confidential, should not be made public. 

In ‘addition: to cases decided under the Public Records 

Act, the appellant also cites Cannington v. State, 154 Ga. 
  

ADD. 557 (269 SE24 62). (1980), and National Labor Relations 
  

Board v. Robbins Tire & Rubber CQ., A437 U. 'S.:214:{(98 SC   

11 

 



  

2311, 57 LE2d..159) (1978). 

In Cannington, the Court of Appeals held that the state 
  

may retain items used as evidence in a criminal trial for a 

reasonable. length of time following: the trial. In that 

case, the plaintiff had filed a motion for the return of 

property which had been seized by the state for use as 

evidence during his. criminal trial. The trial court denied 

the motion, and on appeal the Court of Appeals affirmed, 

holding, "Items having evidentiary value may be retained by 

the state for a reasonable length of time following the 

trials We note various avenues of appeal used by criminal 

defendants following conviction, i.e. state and federal 

habeas corpus, extraordinary motions for new trial, etc." 

154 Ga. App. at pp. 557-558. 

In the Robbins case, supra, the Supreme Court was called 

upon to interpret the meaning of Exemption 7 (A) of the 

Freedom of Information Act (FOIA). 5.0: :8,..C., § 552 

(b)(7){(A). 

As originally enacted in 1966, Exemption 7 (A) permitted 

non-disclosure of "investigatory files compiled for law 

enforcement purposes except to the extent available by law 

to a private party." "In originally enacting Exemption 7, 

Congress recognized that law enforcement agencies had 

legitimate needs to keep certain records confidential, lest 

the agencies be hindered in their investigations or placed 

at a disadvantage when it came time to present their cases. 

Foremost among the purposes of this Exemption was to prevent 

12 

 



  

‘harm (to) the Government's case in court,'. . . . by not 

allowing litigants ‘earlier or greater access' to agency 

investigatory files than they would otherwise have . . . " 

437. U.;S.~at p. 224. 

However, the Court of Appeals for the District of 

Columbia Circuit rendered a series of decisions holding that 

investigatory files compiled for law enforcement purposes 

were entirely exempt from disclosure even after the 

termination of the investigation and enforcement 

proceedings. See Center For National Policy Review On Race 
  

and Urban Issues v. Weinberger, 502 F2d 370 (DCCA 1974). 
  

As a result, Exemption 7 was amended in 1974 to provide 

that the withholding of investigatory records would be based 

upon one or more of six specified types of harm enumerated 

in parts (A) through (BE) of Exemption 7.3 As amended, 

Exemption 7 (A) permits non-disclosure of "investigatory 

records compiled for law enforcement purposes, but only to 

the extent that the production of such records would 

interfere with enforcement proceedings.” This amendment was 

intended to do two .things. "First, by substituting the word 

‘records’ for 'files,' it would make clear that courts had 

to consider the nature of the particular document as to 

which exemption was claimed, in order to avoid the 

possibility of impermissible ‘commingling’ by an agency's 

placing in an investigatory file material that did not 

legitimately have to be kept confidential . . . Second, it 

would explicitly enumerate the purposes and objectives of 

13 

 



  

the Exemption, and thus require reviewing courts to 'loo(k) 

to the reasons' for allowing withholding of investigatory 

files before making. their decisions . +. +." 437. U. 8. at 

PR. 229, 2304 "Thus, where an agency fails to 'demon- 

strat(e) that the . . . documents (sought) relate to any 

ongoing investigation or . . . would jeopardize any future 

law enforcement proceedings,' Exemption 7 (A) would not 

provide protection to the agency's decision." 1d. at .p. 

235, 

After reviewing the history of Exemption 7 (A), the 

Court in Robbins held that under this Exemption the National 

Labor Relations Board is not required to disclose, priorito 

its hearing on an unfair labor practice complaint, state- 

ments of witnesses whom the Board intends to call as 

witnesses; that pre-hearing disclosure of witnesses’ 

statements necessarily "would interfere" in the statutory 

sense with the Board's "enforcement proceedings," and, 

therefore, the Board is nos required to make an individ- 

ualized showing of harm in a particular case. However, such 

"generic determinations of Yikely interference,” 437 U.% 8. 

at p. 236, were limited to "an imminent adjudicatory pro- 

ceeding” which is "necessarily of a finite duration.". Id. 

at “pp. 229," in. 10, See Powell, J., concurring in part and 

dissenting in part. 

(b) The appellant argues that this case presents an 

exception to the rule that generally closed investigatory 

files should be :disclozed. The appellant bases this 

14 

 



  

argument on the pendency of Wayne Williams' habeas-corpus 

petition andthe "real possibility” of the need for a 

retrial. The: appellant contends, "In the event that 

Williams succeeds on his habeas petition, particularly if 

there is a determination that some evidence was improperly 

admitted at his trial, preparation for a retrial of Williams 

will involve reassessment of evidence, including evidence 

contained in the investigatory Files, but not used at trial. 

Disclosure of the investigatory files would compromise these 

efforts. Clearly, therefore, the" public. interest .in 

non-disclosure outweighs any purported public interest in 

disclosure." 

Before the trlal: court, the appellant: argued that 

opening the case files to public inspection would compromise 

the state's case in the event of a retrial, because of the 

effects of pretrial publicity, because of allegations as to 

other suspects, and because Williams would be given 
ee 

information that he is not entitled to under Brady v. 
  

Maryland. 
  

The appellees argue that if closed investigatory files 

inscriminal CATES dre held ‘not to be open to public 

inspection because of the possibility of post-conviction 

relief, the Public Records Act in this area of chininal 

investigations will be completely eviscerated. The 

appellees also argue that the public has a very strong 

interest in the disclosure of files on cases which were not 

prosecuted, and "[t]his public concern has been evidenced by 

15 

 



  

the continued interest in the questions left unanswered by 

the closing of the Task Force investigations five years ago. 

Were the investigations conducted properly? Why did the 

investigations of so many murders result in the prosecution 

of only one suspect? What evidence supports the Task 

Force's conclusions that Wayne Williams committed all of the 

'cleared' murders? The answers to these questions lie, if 

anywhere, in these closed investigative files." 

{C) In our ch iniaa: the trial court did not err in 

ruling that the pendency of Wayne Williams’ habeas-corpus 

petition does not justify a blanket non-disclosure of the 

files in the "pattern" and "conviction" cases. 

The evidence certainly authorized the trial court in 

finding that the investigations in those ‘cases have 

concluded. We cannot agree that the public interest in 

favor of disclosure is outweighed by the public interest in 

favor of non-disclosure based upon the possibility that’ a 

retrial might be ordered in post-conviction proceedings. As 
-, 

indicated in Cannington v. State, supra, post-conviction 
  

collateral-attack proceedings are of an indeterminate 

duration. To hold that the pendency of such proceedings 

requires a pianket non-disclosure of the investigatory case 

files would, as argued by the appellees, eviscerate the 

Public Records Act in this area. | 

We "hold that once the trial ‘has been held, the 

conviction affirmed on direct appeal, and any petition or 

petitions for certiorari denied (including to the Supreme 

16 

 



  

Court of the United States), the investigatory file in the 

case should be made available for public inspection. If 

there are any specific items in the file which are exempt 

from the disclosure provisions of the Act, or which in the 

public interest should not be disclosed, the burden is on 

the party opposing disclosure to make this showing. 

Likewise, if there is information, the disclosure of which 

would jeopardize a future law enforcement proceeding, see 

Robbins, supra, the burden is on the party opposing 

disclosure to make that showing. In our opinion, these 

burdens have not been met here. 

2. Did the trial court erroneously order the disclosure 

of information which is exempt from disclosure by various 

statutes? 

(a) First, the a rpellnhe argues that the. trial court 

erroneously ordered the disclosure of motor-vehicle- 

registration information contained in several of the slles. 

Subsection (d) of § 10 of the "Motor Vehicle Certificate 

of Title Act" (OCGA § 40-33-24 (d)) provides that motor 

vehicle records which the State Revenue Commissioner is 

required to maintain are "[elxempt from the provisions of 

any law of this state requiring that such records be opened 

for public inspection; provided, however, that the records 

Of any particular motor vehicle may be available for 

inspection by [among others] the following: (1) Any law 

enforcement officer . . +" 

it appears. that during the investigation.of "The Atlanta 

17 

 



  

Child Murders," law-enforcement officers utilized OCGA § 

40-3-24 (d) (1) to inspect motor-vehicle records of various 

automobiles, and some of this information was incorporated 

into various of the case files. 

We hold that although these records are not open for 

public inspection under the Public Records Act, this does 

not preclude public disclosure where a law-enforcement 

officer who has inspected the records incorporates 

information therefrom into an investigatory case file. 

(b) The appellant argues that various of the files 

contain information regarding allegations of child abuse, 

molestation, or neglect, 'and that such records are 

confidential pursuant to OCGA § 49-5-40. 

OCGA 8 49-5-40" provides, "Each "and “every record 

concerning reports of child abuse and neglect which is in 

the custody of the [Department of Human Resources] or other 

State or local agency is declared to be confidential, ar 

access thereto is prohibited except as provided in Code 

Section 49-5-41." However, under OCGA § 49-5-41 (a)? (2), 

where a court considers it necessary for the resolution of 

an issue before it, the court may order the disclosure of 

the information. Ray v. Dept. of Human Resources, 155 Ga. 
  

App. 81 (1) (270 SE24.303) (1980). : 8 

(c) The appellant argues that some of the requested 

documents contain information gained through wiretaps, and 

that OCGA § 16-11-64 (b) (8) prohibits the public disclosure 

of such information. 

18 

 



  

OCGA § 16-11-64 (b) (8) provides that "[alny publication 

of the information or evidence obtained under a warrant 

[authorizing the use of a device for the interception of 

wire or Oral.transmissions, i.e., a wiretap] other than that 

necessary and essential to the preparation of and actual 

prosecution for the crime specified in the warrant shall be 

an unlawful invasion of privacy under this part and shall 

cause such evidence and information to be inadmissible in 

any criminal prosecution.” “ 

We, therefore, agree with the appellant that the trial 

court should have deleted from the subject documents, 

information obtained under a warrant authorizing a wiretap. 

(4d) The appellant argues that most of the case files 

include the criminal histories of various individuals, {.e., 

the names and addresses of persons who have been arrested on 

prior occasions, information regarding the offenses 

involved, the disposition of the cases, and in some 

instances photographs of the arrestees. The appellant 

contends hak under the statutory provisions under which the 

Georgia Crime Information Center (GCIC) was established, 

OCGA § 35-3-30 et seq., this information is not subject to 

public disclosiire. 

OCGA § 35-«3~30 (4) (A) defines "criminal history record 

information."? occa S§ 35=3=-34 (a) {l) authorizes the GCIC 

to make records of adjudications of guilt available to 

private persons and businesses under certain circumstances. 

OCGA § 35-3-33 (10) authorizes the GCIC to make available, 

19 

 



  

upon request, to all local and state criminal justice 

agencies, all federal «criminal justice agencies, and 

criminal justice agencies in other states any information in 

the files of the center which will aid these agencies in the 

performance of their official duties. OCGA § 35-3-37 (a) 

provides, "Nothing in this article shall be construed so as 

to authorize any person, agency, corporation, or other legal 

entity to invade the privacy of any citizen as defined by 

the General Assembly or the courts other than to the extent 

provided in this article.” 

We hold that where "criminal history record information" 

has been incorporated by a law-enforcement agency into an 

{Ave stivtony cage file, it “should be open for public 

inspection unless its disclosure would constitute an 

invasion of privacy. es Division 3, infra. 

(e) Medical records are exempt from the provisions of 

the Open Records Act only to the extent that disclosure 

would be. an invasion of personal privacy. OCGA § 50-13-72 

(a). 

Inthe files concerning several of. the victims, the 

court, in refusing to delete the medical records, concluded 

that "the privacy interests of the deceased are outweighed 

by the interests of the public favoring disclosure." The 

appellant argues that the trial court committed error here, 

in that the balancing-of-interests test ig utilized only 

where the subject information is not otherwise exempt from 

disclosure. We disagree. In determining whether the 

20 

 



  

invasion of privacy is warranted or unwarranted, the 

question can be stated in terms of whether the privacy 

interests of the deceased are outweighed by the interests of 

the public favoring disclosure. Fund for Constitutional 
  

Government v. Natl. Archives and Records Service, 656 F2d 
  

856, 862 (D.C.C.A. 1981). 

We cannot say that the trial court abused its discretion 

in refusing to order the deletion of the medical records of 

the victim, or other medical and mental-health information. 

(£) The appellant argues that the information in some 

of the files was obtained through hypnosis of witnesses and 

is, therefore, privileged under OCGA § 43-39-16. 

‘However, the privilege established by OCGA § 43-39-16 

pertains only to "confidential relations and communications 

between a licensed applied psychologist and client.” *And, . § 

43-39-16 does not exempt communications made by a witness 

for the prosecution during hypnosis conducted for 

prosecution purposes. Emmett v. Ricketts, 397 FSupp. 1025 
  

(N.D.Ga 1975). 

(g) The appellant argues that some of the files contain 

information compiled by the Federal Bureau of Investigation 

in the course of its investigation of "The Atlanta Child 

Murders,” and: that . this information is exempt from 

disclosure under Exemption #7 (0) of the FOIA: © 5 U.5.C. 8 

352: (b} 7) (CC). 

Exemption 7 {C) Protests "[i]lnvestigatory records 

compiled for law enforcement purposes, but only to the 

21 

 



  

extent that the production of such records would . . . 

constitute an unwarranted invasion of Personal privacy.” 

Our treatment of this Exemption will be discussed in 

Division 3, supra. 

(h) The appellant argues that records related to 

arrests and criminal histories of juveniles are not subject 

to the Open Records Act, in that under OCGA $ 15-11-59 (bh), 

these records are not open for public inspection unless "a 

charge of delinquency is transferred for criminal prosecu- 

tion under Code. Section 15-11<39, or the interest of 

national security requires, or the court otherwise orders in 

the interest of the child . + . 4" 

‘However, as argued by the appellees, all references to 

juvenile records were deleted. 

(1) The appellant argues that one file, that of 

Christopher Richardson, contains public-school attendance 

records, which under OCGA $ 20-2-697 "shall be. open £5 

inspection by the visiting teacher, attendance officer, or 

duly authorized representative” and "shall not be used for 

any purpose except providing necessary attendance infor- 

mation required by the State Board of Education, except with 

the permission of the parent or guardian of a child or 

pursuant to the subpoena of a court of competent juris- 

diction." 

In. saddition, a wwritten summary of a public-school 

disciplinary proceeding, which includes a description of the 

incident and the disposition thereof but not the names of 

22 

 



  

any party to the incident, is a public record under OCGA § 

20-2-=757 (CC). 

After reviewing the file concerning Christopher 

Richardson, we find no public-school attendance records or 

records of public-school disciplinary proceedings. 

(J) The appellant argues that under OCGA § 43-36-15 (a) 

(3) (D), "A polygraph examiner shall not release the results 

of a subject's examination unless the examiner has obtained 

the prior written permission &f the subject." However, the 

appellees point out that a polygraph examiner may disclose 

information acquired from a polygraph examination to any 

person pursuant to and directed by court order. OCGA § 

43~36=15. (a) (4) {C). 

3. Did the trial court err in ordering disclosure of 

information which infringes upon the privacy rights of 

various individuals? 

In Fund for Constitutional Government v. Natl. Archives 
  

and Reeords Service, 485 PSupp 'l (D.C.D.C. 1979), the   

plaintiff was requesting disclosure under the FOIA of 

voluminous documents generated by the Watergate Special 

Prosecution Force (WSPF) during the course of various of its 

investigations. In issue was Exemption 7 (C) of the FOIA, 

which, « as previously stated, exempts from compulsory 

disclosure "[i]lnvestigatory records compiled for law 

enforcement purposes, but only to the extent that the 

production of such retords: woul: oo eer vooOnNStitute fan 

i ’ : 5 unwarranted invasion of personal privacy." 

23 

 



  

Citing Committee of Masonic Homes v. N.L.R.B., 414 FSupp 
  

426, 431 (E.D.Pa. 1976), the federal district court held 

that this exemption "would apply to matters which under 

normal circumstances 'would prove personally embarrassing to 

an individual of normal sensibilities . .: . &" 485 FSupp 

at pe. 6. Under this standard, the court held that infor- 

mation in the files identifying individuals who, though 

investigated, were not indicted or prosecuted for a crime, 

should be exempt fron disclosure. In addition, the court 

held that information revealing the ldentity of a confi- 

dential informant should not be disclosed.® And, as we read 

the decision, the court also held that information in the 

files, which would prove personally embarrassing to 

individuals who were not the targets of the investigation, 

likewise should not be disclosed. 

On appeal, the federal Court of Appeals held that the 

district court properly applied the claimed exemption to the 

information in question. Fund for Constitutional Government 
  

  

v. Natl. Archives and Records Service, 656 F2d 856 (D.C.C.A. 

1931). | 

In this regard, the Court of Appeals observed that the 

prosecutor's decision to PORCHES is based on variant 

factors and is rarely subject to judicial review. The Court 

of Appeals also noted that information that individuals had 

been the subject of a criminal investigation "would produce 

the unwarranted result of Placing the named individuals in 

the position of having to defend their conduct in the public 

24 

 



  

forum outside of the procedural protections normally 

afforded the accused in criminal proceedings." 656 F24d at 

Ds: 865. In sum, the Court. of Appeals held that "the 

legitimate and substantial privacy interests of individuals 

under these circumstances cannot be overridden by a general 

public curiosity," id. at p. 866; and, although there is no 

per: se rule forbidding public disclosure of such informa- 

tion, "the privacy interests of the individuals in question 

- « « should yield only where exceptional interests militate 

infavor of disclosure... (Fn. omitted). 14. 

Consequently, we hold that the trial court should have 

deleted from the files information identifying individuals 

who were investigated but not charged with or prosecuted for 

a crime, as well as information which would prove personally 

embarrassing to individuals who were vio the targets of the 

investigation, unless the trial court determines that 

"exceptional interests militate in favor of disclosure.” 

1d. | 
Therefore, the judgment is affirmed in part and reversed 

in part, and the case is remanded to. the trial court for 

further proceedings consistent with this opinion. 

Judgment affirmed in part and reversed in part. all the 
  

Justices concur. 
  

25 

 



  

ENDNOTES: 

1 Although 22 "pattern" and "other" cases were cleared 
and closed with the conviction of Wayne Williams for the 
Cater and Payne murders, the appellee sought access to only 
21 investigative files, because the file on one of the 
missing and murdered children, Clifford Jones, had already 
been produced in the case of Jersawitz v. Napper, Docket 
#D-40014. In that case, which was litigated in the Fulton 
Superior Court, the: appellees: and 'Jack Jersawitz, .a 
free-lance journalist who is not a party in this case, 
sought access to the investigative file concerning Jones. 
After an in-camera review of "the file, the superior court 
ordered that it be made available for public inspection. No 
appeal was taken from that order. The appellees state that 
a review of that file disclosed that the case was classified 
as "cleared" after Wayne Williams was named as the murderer, 
but that his name had not been mentioned in the file until 
the last page. 

  

Specifically, ' the trial ‘court ordered ithe files 
concerning Michael McIntosh, Aaron Jackson, Jr., . Aaron 
Wyche, Eddie Duncan, Jr., and Timothy Hill, disclosed in 
their entirety. The ‘court ordered the Patrick Rogers file 
disclosed in its entirety, and it was noted that medical and 
dental records, as well as juvenile records, were among the 
materials ordered disclosed. The court ruled that these 
materials concerned the victim, Patrick Rogers, and the 
court found that the privacy interests of the deceased are 
outweighed: by the interests of "the public favoring 
disclosure. The court ordered the Anthony B. Carter, 
Christopher Richardson, Curtis Walker, and Yusef Bell files 
disclosed with limited deletions. There is. also: a 
disclosure order concerning the file on William Barrett. 
However, his case was introduced in evidence at Williams" 
trial as one of the "pattern” cases. See Williams v. State, 
supra,’ 251.:Ga. at p.i3771. The court ordered this file 
disclosed in its entirety. 

  

Exemption 7 provides, in full, that the disclosure 
provisions of the FOIA do not apply to "investigatory 
records compiled for law enforcement purposes, but only to 
the extent that the production of such records would (A) 
interfere with enforcement proceedings, (B) deprive a person 
of a right to a fair trial or an impartial adjudication, (C) 
constitute an unwarranted invasion of personal privacy, (D) 
disclose the identity of a confidential source and, in the 
case of a record compiled by a law enforcement authority in 
the course of a criminal investigation, or by an agency 
conducting a lawful national security intelligence 

26 

 



  

investigation, confidential information furnished only by 
the confidential source, (E) disclose investigative 
techniques and procedures, or (F) endanger the life or 
physical safety of law enforcement personnel . . . " 

i Under OCGA '® 35-3-30:(4)(A), "*({clriminal history 
record information' means information collected by criminal 
justice agencies on individuals consisting of identifiable 
descriptions and notations of arrests, detentions, 
indictments, accusations, information, or other formal 
charges, and any disposition arising therefrom, sentencing, 
correctional supervision, and release. The term does not 

include identification information, such as fingerprint 
records, to the extent that such information does not 

indicate involvement of the individual in the criminal 
justice system." 

5 FOIA Exemption 6 protects "personal and medical files 
and similar files the disclosure of which would constitute a 
Clearly unwarranted invasion of personal privacy." In 
contrast, Exemption 7 (C) protects "[i]lnvestigatory records 
compiled for law enforcement purposes, but only to the 
extent that the production of such records would. . =. . 
constitute an unwarranted invasion of personal privacy." 
"The difference in wording between the two exemptions was 
advised and not accidental; its effect is to make Exemption 
7 (C) a somewhat broader shield against disclosure than 
Exemption 6 '. “ » ‘The ‘difference in breadth, in turn, is 
attributable to the inherent distinctions between inves- 
tigatory files and personnel, medical and similar files: 
that an individual's name appears in files of the latter 
kind, without more, will probably not engender comment and 
speculation, while, as the Government argues here, an 
individual whose name surfaces in connection with an 
investigation may, without more, become the subject of rumor 

and innuendo.” Fund for Constitutional Government v. Natl. 
Archives and Records Service, .supra, "435 FSUpp @t D+ 5 
citing Congressional News Syndicate wv. United States Dept. 
@f Justice, 438 FSupp 538, 541 (D.D.C. 19777) » 

6 Here, the trial court did delete such information from 
the files. : | 

  

  

  

  

27 

 



  

ADDENDUM 

44381. NAPPER Vv. GEORGIA TELEVISION COMPANY, 
d/b/a WSB-TV et al. 

There are three issues presented for decision in this case. 

The first issue is whether the pendency of Wayne Williams' 

State habeas-corpus petition demands a blanket non-disclosure of 

investigatory files in what are Serdrred to by the parties as the 

"conviction" and "pattern" cases. In our opinion, as originally 

written, we agreed with the trial judge that blanket non- 

disclosure is not required under these circumstances, and, on 

motion for reconsideration, we have not reversed or modified this 

holding. 

The second multifaceted issue is whether certain categories 

of information contained in the files in what are referred to as 

the "other" cases are exempt from disclosure under various state 

and federal statutory laws. In this regard, we noted that under 

the Georgia Open Records Act, OCGA § 50-18-72 (a), there exists 

an exemption from public disclosude with respect to medical a 

veterinary records, or any other information which would invade 

constitutional, statutory or common-law rights of privacy. Doe 

  

V: Sears, 245 Ga., supra at p. 86. In Div. 2: (ee), ‘we held that 

in determining whether medical records are exempt from disclosure 

under the previously cited statutory provision, the trial court 

must balance the privacy interests of the individual against the 

interests of the public favoring disclosure. We further held 
that the trial court properly ruled that all of the categories of 

 



  

information in question were not exempt from disclosure, except 

with respect to information gained through wiretaps. See Div. 2 

{c). On motion for reconsideration, we have not reversed or 

modified these holdings. 

The issue presented in Div. 3 is whether the trial court 

erred in ordering disclosure of information in the files in the 

"other" cases, which information infringes upon the privacy 

rights of the individuals in gestion. Prior to the filing of 

the ‘motion for reconsideration, the only cases cited by the 

parties which provided ‘any real guidance on this question were 

prior decisions of this court. In these decisions, the only Tr rs 5s: ~— .r - 1: 

applicable holdings were contained in favils VY. Cox Enterprises, 
—. te we. a —— re Wh mm en ce ede 

  

- ~— -  —— —_— SRI TA een ae twa ba. 256 Ga. 299, supra, and ‘Athens Observer Vs Anderson, 254 Ga. 53,   

supra, and cases cited therein. Harris v. Cox Enterprises, 
  

supra, recognized hat information in investigatory files ‘in 

criminal cases which Constitutes an invasion of personal privacy, 

within the meaning of the tort of invasion of privacy, should not 

be disclosed, and that "[v]arious factors weigh on the question 

of whether personal privacy protects information Cron disclosure... 

Among other things, the court ‘should consider whether the 

information is SASS EanE ate and asad on hearsay, whether it 

does not relate or relates only incidentally to the subject 

matter of the public record and the remoteness in time of the 

events referred to." 256. Ga. at. p. 302. However, Athens 

Observer v. Anderson, supra, citing Waters v. Fleetwood, 212 Ga.   

  

161, supra, observed that "!(w)here an incident is a matter of 

 



  

public interest, or the subject matter of a public investigation, 

a publication in connection therewith can be a violation of no 

one's legal right of privacy.’ Waters v. Fleetwood, supra, p. 
  

167.9 2453Ca. at pp, 66, Nn. 4. Under these holdings, we were 

unable to say that the trial court abused its discretion in 

refusing to delete the contested information. 

However, on motion for reconsideration, the appellant cited 

a federal decision, Fund for Constitutional Government wv. 
  

  

National Archives and Records Service, 656 F24 8868 (D.C.C.A. 

1981), which is directly on point. This decision recognizes that 

under Exemption 7 (C) of the federal FOIA, which we recognized in 

Biv. 2 Hg) ‘of our opinion, investigatory records compiled for 

law-enforcement purposes are exempt from public disclosure if 

production of .such records would constitute an unwarranted 

  

invasion of privacy. Fund for Constitutional Government holds 

that information in such files identifying individuals who, 

though investigated, were not charged with or prosecuted for a 

crime, as well as information personally embarrassing to 

individuals who were not targets of the investigation, should not 

be disclosed to the general public unless "exceptional interests 

militate in favor of disclosure.” 656 F2d at p. 866. 

Here, the asserted public interest in favor of disclosure of 

the files in the "other" cases consists of the public's being 

able to make an independent determination as to why these cases 

were closed without prosecution. It is difficult to see how this 

interest would be served through the public disclosure of 

 



  

information which would prove personally embarrassing to 

individuals who were not even targets of the investigation, i.e., 

information which would constitute an invasion of personal 

privacy (see Cabaniss v. Hipsley, supra, 114 Ga. App. at. p. 372).   

And, it would seem that public disclosure in this case of the 

facts uncovered with respect to individuals who were targets of 

the investigation but who were not charged with or prosecuted for 

a crime, with the deletion of information identifying such   

individuals; would _represent a careful balancing of the asserted   

public interest in “favor of disclosure ‘against’ the privacy 

interests of the individuals involved, for reasons stated in Fund 

for Constitutional Government, “supra... : Therefore, as previously   

stated, Lthe “case is firemanded to the trial -.court-..with the 

direction ‘that the chart delete these: ‘categories of information, 

unless, as also previously .stated, the trial court determines 

that "exceptional interests militate in favor of disclosure." 

  

Fund for Constitutional Government, supra, 656 F2d at p. 866. 

Ne de ALT - te TPN en A FTES Fan dP Nr ee a a PT Yr dh Wl A bb wr one Nr s3- AP Ve Pa cin wo wd Bae oa - ee o 

 



  

‘ Vs 4 

IN THE SUPERIOR COURT FOR THE COUNTY OF FULTON 

STATE OF GEORGIA   
STATE OF GEORGIA INDICTMENT NO. A-40553 

Vs. : 

DAVID BURNEY, JR., : 
BERNARD DEPREE, 
alias Bernard Dupree, : 
WARREN McCLESKY, MURDER and 
and BEN WRIGHT, JR. 3 ARMED ROBBERY (2 CTS.) 

ORDER 

The above-captioned matter came before this Court on 

September 25, 1978. 

After conducting an in camera inspection of certain items 

of evidence in the State's possession, the Court finds that 

although the documents might become material for rebuttal at 

trial, they are not now subject to discovery. 

It is further ordered that counsel may, at the proper 

time, ask the Court for a further ruling if the circumstances 

make it appropriate to do so. 

7 IS SO ORDERED. 

  

This £7 day of September, 1978. 
{ 

  ; SAM PHILLIPS MCKENZIE 
Pars JUDGE, SUPERIOR COURT 
5 ATLANTA JUDICIAL CIRCUIT 

aT Si AR, 
\ Zi   FILED IN OFFICE 

  Zz pas] 8 CasENO.8D-V- 1098 
# rd SUPERIOR rd 

FULTON Coun 0 

yi Respondent's Exhibit Nowlin 1S 793 264 26   
   



  

IN THE SUPERIOR CCURT FOR THE COUNTY OF FULTON 

‘STATE OF GEORGIA 

STATE OF GEORGIA 

CRIMINAL ACTION WO. A-40553 
—y Se : 

MURDPLER and ARMED ROBBERY 

(2 Counts) WARKER McCLESEY 

A 3 3 add . hE x ? i Nar FLA ay AAG NEL PST ee en aR FE LL eh ph AE ER an ET a Te hr eR HL RR INS Er A re A Rp RL rn FAAS SIR REL A 
ey SS rT rain, Baw Rp LOE A 

VOLUME I 

Transcript of trial before Honorable 

Sam Phillips McKenzie and a Jury, commencing 

on October 9, 1978, at Atlanta, Georgia. 

APPEARANCES OF COUMSEL: 

For the State: RUSSELL A. PARKER, 
STE ake eed aes os POM THRASE, Esq. 

ESQ. 

For the Defendant: JCili TURNER, Esq. 

LT Th fo NOV2B WIS ( 
Ia z : = : . i: y ‘emoWy Sy 58 (: - H \o NE {1 Vimied / 

‘ Rae rel ~ ox SUPERIOR COURL SIF IE vat a wy. DEPUTY CLERK SUPERIOR CO 

FULTON COUNTY GEORGY ~ 

CASE NO. a9 ~-Y- 1OA dg R. L. SHELNUTT 
OFFICIAL COURT REPORTER 

812 FULTON COUNTY COURTHOUSE 

ATLANTA. GEORGIA 30223 

  

Respondent’s Exhibit Yn Be, 

   



  

Witnesses: 

TRANSCRIPT 

Cross Redirect 
  

For the State: 

  

i 
v ri ” 

Ronald #. Dukes VY 197 

Classie Barnwell” 209 

/ 

William Re. Anderson Vv 254 

. . . -~ ..o-ban Oliver JE Sead irc ae A048 
IE mr rz ie i ney a ‘ 

amie J. Thomas’ 288 

  

Le G, Beard vv 77 325 

  

at / = 

vorett flaw v* - 329 

-George Alvis Malcom” 335 
Eri Ty a 

Diane ricMichen V7 34% 

BiB. dover 2 359 

iouls A. Cuendelt, III 208 

Rolly Pite 411 

WH. Ke Ferry : 477 

Marcene Turney 43536 

Patricia am iOrfutrt = 4946 

VOLUME IT 

Welcome Harris, or. 575 

Mary Jenkins wr” : 537 

Ben ilirignt, sel Gal 

209 

n
n
 

C
l
o
 

Ht
 

OC
 

422 
465 

547 

15} 

   



  

  

/ 5 

4 ( 

Witness: Direct: Cross Redirect Recross 

Dorothy Umberger 73& 748 754 

For the Llefendant: 

ve he JOwers 773 355 

James A. Walker 730 785 

Margene Turner 788 796 733 

He We HcConnell 80 503 

BT A FS dg ES Ba Bede a an EN RT pr ST SRD HL NARI N ZINA Sy ee as nb bi 

Warren iicClesky 804 825. FERED Uw 

r po
s 

ig
 

© tn
 

(?
 

on
 

+
 

M oe
 Rebuttal Testimony fo 

~ 

Lewis Re Slaton 856 857 

Carter Keith Hamilton 8¢0 Bod 

Offie Gene Evans 866 872 

Arthur riessling 885 891 88% 

GUILT CHARGE: 6g7 

- er ; y LOCUHMENITARY BVI 

 



  

THE COURT: All right. #r. Turner, are you 

ready to hear your motions? 

MR, TURNER: Yos, sir, 

MR. PARKER: Your Honor, for the purpose of the 

record, this is Indictment A-40553, The State vs, 

Warren MHeClesky and three other individuals, charged 

with murder and two counts of armed robbery. ‘A plea of 

not guilty has not previously been entered by 

Mr. McCleskey. 

liRe TURNER: I think there are two things we need 

to take up before anything else is dene. The first has 

to do with voir dire of the jurors. I have discussed 

the matter with Mr. Parker and what 1 would propose is 

this. Due to the massive pre-trial publicity in this 

5 fd
 

case I think we si questicn each juror individually. 

Pari of ny reason for that is YI ilod the motion to dig- 

miss because of pre-trial publicity, but I don't think we 

can properly get into that until we have an individual 

chance to see what —-- the individual prospective jurors 

have a rig ght to state what they bave or have not seen. 

I think we woula get more candid and open response from 

jurors without any peer pressure, and for those reasons 

we ask that we be allowed to veir dire them individually 

and that we be allowed to malie our strikes or selection 

after the Guestioning of the panels. 

 



  

THE COURT: You have a right to the second part 

of the motion. 

On the first part, I have permitted that previously. 

I don't see any purpose to be gained except a delay in 

questioning these jurors out of the presence of each other. 

This is not a case -- I don't know what you are talking 

AERA ses inoiyn abouts This is not a case where people would be, for . 

instance, if it were a case that involved prejudice or 

something like that, you might not want to speak freely, 

a juror might be hesitant to speak freely in front of 

other jurors, but as I see it, this is a -- as far as I 

know, it is nothing but a murder case and arned robbery 

case, and I try them routinely without the necessity of 

doing that. 

MR. TURRER: Tet me point thisont to the Court. 

THE CCURT: I am net saying any case is routine. 

MR. TURNER: NO case that I can recall of in recent 

history has received as nuch publicity as this matter. 

THE COURT: 1 can think of many nore. 

HR. TURKER: I would disagree with the Court, 1 

have newspaper clippings that we can introduce, 

THE COURY: Have you filed those so I can see then. 

$ If you have got some newspaper clip » ry
 

te
] 62}
 

t
 

bo
. " cr
 are showing 

an unusual interest in this case, I will read them, but -- 

tiR. TURKEK: We have then right here, Your Honor. 

 



  

Secondly, in terms of questioning the jurors about 

the pre-trial publicity in this case, I am concerned 

that anything one individual juror might say could be 

prejudicial in terms of saying it in the presence of 

the other jurors. You might have one juror that has 

followed the case vividly in the paper and he or she 

.could bring up matters that might contaminate the rest 

of the panels, 

THE COURT: The Court considers that more than the 

first point. To avoid the possibility of contaminating 

a whole panel or panels of the jury, I will grant the 

notion. 

MR, TURKERY All right, sir. 

The other thing, Your Honor, is a notion we filed 

in terms of the death penalty. We filed the motion asking 

that the death: penalty be declared unconstitutional in 

terms of its application in this case, and I would Le 

prepared to submit a little evidence on that by way of 

testinony from the District Attorney. I have already men- 

tioned to him the fact that I would be ¢alling him as a 

witness in this case in terms of that varticuler aspect 

Of things, 

Now, ny question to you is, would you prefer to deal 

with that motion at thiz time or after the jury has been 

selected? 

 



  

for the death penalty? 

MR. PARKER: Insofar as Mr. 

tr. Parker, are you planning to ask 

McClesky is concerned, 

yes, sir, I intend to let a jury pass on that cquesticn. 

THE COURT: If you are goiny to have to call 

Mr. Parker, if you feel like you have to sometine in the 

proceedings, I see no reason to take it up before the he 

telalen 

MR. PARKER: If he wants to ask me questions, I will 

be glad to gut on the record things I have told counsel. 

THE COURT: Why don't you do that since I will know 

what you all are talking about. 

MB. TURNER: All right. The wa 

is by way of cross—examination. I ex 

» 
i District Attorney singled 

particular punishment, even though 

individuals with the same crine. 

es airf a Attorney se erences in levels 

not for the death penalty i 
& - 

es and ny understanding is that he do 

I would like to get it on 

the District Attorney's attitudes and 

tions are ‘in this matter 50 we can ha 

sary for an appeal on this issue, 3 + 

In ny mind, murder is murder, n 

Mr. 2cClesk 

¥ IT prefev to do it 

rect toishow thar the 

Y out alone for that 

charges all three 

aranktly the District 

f quilt because he 

n the other cases, 

not intend to do so; 

the record just what 

celiefs and inten- 

ve ab iF S neces-— 

whether Oo matter 

 



  

three people, four, or only one committed it. To 

single out one and say you should die if you are ccn- 

victed of this is the essence of being arbitrary and 

capricious, in wy opinion, and that is what we wish to 

attack. We can do it now or later. 

es Do you want to make any statement? 
BR EET NY aE rh EP ok CO LP Lie 

RKER: XY will be happy to, Your Honor. 

  

As 1 view the evidence at this point, it is the 
- 

State's contention, and we hope to prove, that 

Mr. HcClesky is the triggerman and that is why I have 

+
 asxed to try him first and that is why I will qualify the 

jury and ask that they consider the question of punishment 

in this case. My present intentions are not to try the 

other co-defendants for the death penalty since they are 

"not the triggerman. Unless sonething develops at this 

trial that changes ny nind, that is ny HN o nn
 

0 = (a
4 

-
 

~ 41
 i 

[v)
 

pit
 

rt
 
a
 

QO
 

i ui
 

. 

my Min COURT: I have read the cases that geal with 

the "trigoerman" and althouch they haven't nade a defini- pv =~ < 

1 tive ruling, you can read between the lines. There nay 

be such & ruling, and I won't say anything further about 

al) right, go ahead, Hr. urner. 

MR. PQURILK: Well, is the Court saying that we 

should pursue the matter at this time or what, or 

reserve it? 

 



  

THE COURT: I would just as soon pursue it during 

the trial, but I leave it up to Mr. Parker. If he wants 

to deal with it now, we can do so. I don't know the 

details of the case except for the evidence that was sub- 

mitted to me to make an in camera inspection. 

HR. PARKER: I don't intend to be called as a witnes 

before trial or during trial, and I think that ought we, be 

made plain right new. I don't intend to get on the stand 

-~ 

for Mr. Turner. If he wants to ask me something before 

the Court or the jury, I will make the statement in my 

place. 

FR. TURNER: He can't tell me who I will call. 

h] HR, PARKER: IT can exactly tell him what I will do. 

MR. TURNER: I ar going to subpoena hin as a witness, 

THE COURT: Have you subpoened him before now? 

HR, TURNER: Ho, I just talked to him about the 

matter thls morning. It came to my attention of exactly 

what he was planning to do. 

THE COUR?r Do you have any law about that? 

TURKER: Well, Your Honor, he is a witness just 

like everybody else. I have given him plenty of notice. 

It is his decision in terms of what happens in this case. 

I think that makes hin almost a star in terms of this 

particular rotion. 

rn 
THE COURT: Well, whether he is a gtar or not, I 

 



  

want to know do you have any authority for calling the 

Cistrict Attorney as a witness. If you do, I can be 

addressing myself to that legal question in advance. 

MR. TURNER: At this time I don't, because as 1 

said, this was just brought to my attention this merning., 

As you recall, the last time we were in court —- 

MR. PARKER: This was not brought to his attention, 

lle has been knowing for weeks about this. I told him the 

first tine we had a discussion I was going to let a jury 

deternine the fate of his client. 

MR. TURNER: But not as to the other defendants. 

He told the Court he didn't know what he was going to do 

then, Hy motion is the treatment that my client is 

receiving as compared with the other defendants, the 

particulers of this particular case. 

TdE COURT: If you do determine to call him before 

the jury and he tries to refuse being called as a witness 

I will rule on whether he can be compelled to testify, 

MR. TURMER: All righ. well, of thst basis, Your 

ronor, I would reserve any other motions 1 have until 

such time as it appears to be aprropriate in the trial, if 

it is all right with the Court. The rest of then have 

Dasically been worked cut between mvself and Mr. Parker ~~ 

"1, ib COURT: All right, gentlemen, let's send for a 

jury. 

Yd 
-—t 

  

ae . SE PEL



  

that possibly whoever was involved in it might not get rid of 

the weapon if we let them believe we thought it was a shotgun. 

Q . 60 you &idn't say anything different to any of the 

news personnel? 

A Ho, sir. 

(e} And to your knowledge, have any of those weapons been 

  

as A= To my ‘knowledge, they have not. Yi 

MRe PARKER: Thank you. 

“THE COURT: Any reason this witness shouldn't be 

HE. TURNER: No further duestions. \ 

ThE CCURT: Thank you, Sergeant, for coming down. 

Call your next witnesc, 

- MR. TURMER: I call Warren HcCleskv. 

uly sworn, was examined and testified as follovs: [2 

. ny: eym SATAY 23. PAY \A PIRECT EXAMIBATICON 

BY MR. TURNER: : xt ” - 

0 Would you state your nome, please. 

Fy Viarren HcoClesikv. 

C Anc how 0ld are you, Hr. iicClecky? 

A 1 an thirty. 

Q Where are you —- vherce do you live? ; 

A I live in marietta. 

  

  

CASE NO. X~V- Joa gf mia 

S——— 
Respondent's Exhibit No, y | : bree Tt 

 



  

clcser to 

0 

A 

of Hay. 

Q 

arrested? 

Yes, 1 have 

¥hat address 

mesg ATITIONY 
TEE COURT: 

THE HUITHESB: © 1064 

(By Mr. Turner) are you married? 

BC o 

~~
) Lo you have any children 

a daughter. 

  

A 

  

How 0127 

She's twelve, 

Are you employed now? 

wo
 

23, 

Where? 

Dover Elevatcr. : 
~~ 

Kay. When did you get a job with Lover El 

Cl; let me see now. I think it was around 

what 

I was a mechanic's helper. 

-8C5- 

ile a 

vera 

AAT SR A 

evator? 

the 15th 

YOu were 

you 

 



  

Oo Where did you work before that? 

A I worked at Cliver's Place. 

Q what is that? 

A It's a restaurant and a pub. 

Q And where is that located? 

A 1492 Piedmont Road. 

QO tow long did you work there? 

SA ‘Alrost a year. BARRA isd Si 

Q Okay. and where did you work before that? 

A z was in the Halfway House at that time, 

0
 Okay. Have you ever been arrested or charged with a 

crime? 

A Yes, I was convicted of armed robbery in 1570. 

QC Okay. One armed Yobbery or how nany? 

& Well, I had several counts, but all of them was 

running concurrent, but I have only served time once. 

had 

for 

the 

so. I. just 

Q Qikay. iow aany counts werc there? 

A I couldn't be to the exact -- it was seven or eight, 

Q Okay, Here you gullty of all of those? 

A Mo, I wasn't guilty of about three of then, put I 

already received a larye sentence for the ones I was guilty 

30 I didn't zee any reason to waste any time tryin 

others, and I already had an eighteen-year sentence anyway, 

pleaded guilty and bac it running concurrent. 

-ouba=- 

 



er 

  

Q S50 you had an elohteen-year sentence? 

A Yes, 

A I first started off serving my time in Stone Mountain 3 
¥ 

’) 

Ii
] and 1 vent to Buford and from there I went tc Pulaski County, and 

frcem there I went to -- let me see, back to Stone Mountain, and 

from there to Reidsville, and fron there to Houston County and 

: “from there to the Atlanta Advancenent Center. Ge ar ee 

Q All right. Now, what year was tiis you were convicted? 
-~ 

A 197¢. 

Q And how old were you then? 

A Lwanty—-threeg —-- twenty-two or twenty-three. 

G Ckay. ilow much time did you serve in all? 

Be] z A Seven years and four ronths. 

Q Okay. When did you get cut? 

> I got out Septenver the 30th of last year. 

oD
 Okay. When you were released, were you just released 

point-blank or were you in scme kind of program? 

A "I was on the work rulease program. You stay there 

Fr pr ‘ FEIT Cel vila A wizvid £51 re pe! TY SS HY tem 
four month and you maintain enplovment for four nonths, and if J 

you abide by all tha rules and reguletione and what not ang 

participate in the programs, you know, they rarolz you. 

Q Lo you Know 

A Yes. 

& vihere do you know hin frou? 

~L06- 

 



  

p
—
—
—
—
 

PES I ret Ben Wright in Reidsville. 

G Ckay. were you good friends with him then? 

A Well, not real -- what you call real good friends. 

2 knew each other and talked. I knew him fron being on the 

boxing team. 

|)
 On the boxing team? 

A Yes. 

ese Q 7 o-Did you have an occasion to see him again when you 

Q Bow did that happen? 

A I was working at Oliver's, and one night we were 

x 
short of help and usually when they need help they usually cali 

over to the Atlanta Advancereni Center tc request somebody to 

es What is the Atlanta Advancement Center? 

A Nell, it's a halfway house, but nore or less a work 

release center is really what it is, 

Q S80 you all were short of help. and what hapvened? 

a S50 they called over to tic Advancement Center and 

they sent & guy over to be a busboy for us, and somehow we got Y SAD ¥g = 

engaged in a conversation and he sald Ben was at the Halfway 

House. IX said, "Ben wright?” He said, "Yeah." And I told hin 

to tell him the next time he seen him to tell hin Warren Hollesiy 

said hello, 

-307- 

 



  

Q 

A 

that was the next thing you heard from Hr. 

He sent a message by the guy to tell me 

ny phone number, 

Q 

Ay we got together. I 

been 

been to my house 

J 
bl
 

Q 

A 

to mine, 

Lid vou do that? 

What nappened after that? 

and we talked on the phche 

had -- I have 

he nas invited my 

for dinner, 

to 

and 

been to nis house, 

family down for dinner 

occasion 

he have 

¢ he ha 

Po you know David bPupree -- David Burney, rather? 

Yes. 

Where did you know him from? 

I met Davida Burney, at Oliver's, he was already 

emploved there the first time I started working there. 

Q Lo you know an individual by the naini€ of Dupree? 

A Yes, 

Q Where do vou know him from? 

A 1 met Deproe -- 1 seen him in Reidsville but I 

really didn't know Depree when. I really got acquainted 

Depree, 1 think eround the latter part of Harch or April. 

Cay. LL you know a guy by the nane of 

I have met him once, I think, 

¢ihere ao you know hin from? 

-30Y- 

Ss 

= oo 
> 
{ w 

whe 

 



  

%
 

A 1 was at the club on Kennedy Str 

“
N
 

\ 

torthside Drive calied Peevy's Club, and I was 

Ben Wright one night and they was conducting a lit 

card game, really, and that is where I met hin 

9, Let's go to tiie day of Hay the 13th 

you tell the Court what, if anything, 

. prior tc that at that time, which was that Friday, and he had 

inquired about using my car, so I said, 

r 
morning, wich was eround nine, and I 

(3 where did you pick hin up? 

A At Pyan Street, right off of Cascade 

yes, Cascade, right. 

9, Okay. What, if enyciiing, 

hin up? 

A He wanted me to go by and picx 

Q Cid you do that? 

A Yes, 1 did. 

Q Hhat elze happened? 

A Me wanted me to yo plck ul 

Go hen what heppened? 

A we went to flarietta. 

G bhiy dia you go te Harictia: 

A Well, he wanted £0 usz the car 

aL one tine that Le was going to get 

~-800~ 

Pay Xess, ‘Oh NMayithe 13th, 15748, 

you Jid 

went and plcied Ben 

iuprae 

I had 

Sa 
okay: 8 

Sn Eliat 

PRA ta lied 

3 J got 

up Lbunree, & 

TO 

PD David Jurhiey. 

Lij3 

I mean =-- 

FR 

amyl S5&14G 

 



  

to the Towers Building, I believe is what it is, t 

lawyer about his situation, and I didn't want to be 

all Jay driving around, because usually when I took 

I Kills all day taking him around, sc I told hin he 

the car, so he took ne back to Marietta. 

Q where did he take you back to? 

A 221 Custom Btreet, Apartment 1. [4 a 

A Hy sister, 

“J OQ What, did you go there for a while 

A 1 went to my sister's house for & while 

went to my mother's for a while. 

Q Where does your mothar live? 

> 

A Right next door. - 

Q What, if enything, else happened? ihat 

that vou yot to #arietta? 

A About 16:39 or 11:00, somewhere along in 

0 Did vou sta y at your sister's and mother's all day? 

A IG, I didn't. 

OG What, 1f anything, else did you do? 

A Well, efter I had let ben have my car I borrowusd my 

gister's car and I went down to Ponderosa, it's z little group 

cf apartments they call the Ponderosa, 

(0) Where 1s that located? 

A It's in mavietta. 

wS10~ 

 



  

0 

A 

have a little card game down there all the time they call 

and I go down 

Q 

A 

Sa. roal 
Itt 1 

resi peoples can 

each individual hets 

lthat did you co there for? 

Well, usually I go down there all the tine. 

there and skin with them, vou know. 

What 1s skin? 

Well I 

I think as much as Anyway, 

skin is -- well, most black people play 

skin 

skin 

thirteen 

er 

play. You just go in the deck and get a card ang ~ 

gach other on card and 

comes out of the deck first, they lose. 

Q 

A 

A 

guy 

Larry 

One. 

that owned the 

Rosser; 

Lo you bet money on tnat? 

Ye 14
 

. 

Lo vou ever win any? 

Most of the tive I-~do,. 

Lo you ever lose any? 

Well, sometimes, 

How, 

Till about 3:30, something to 

Ckay. Who else was 

well, can you hame anybody wio was 

A guy by the name of Donald Delay; 

- 
{ apartments; Pea wee 

selma Freeman, a bunch nore. It 

mpl) 

whoever! 

how long did you stav there? 

there? 

Corre Arve 
uit JiIOCh, 

Sanders =-- let 

just goes 

[o
F car 

on and 

 



  

Q What time did you say you left there? 

A Avound 3:30 cr scrething to 4:00. 

¢ Wiaere did vou go then? 

A Back to my sister's, 

'; Ang what, 1f anything, hanpened? 

A Ben was supposed to come back arcund four witli the 

Ceres “1 had told him I was going to use it, vou know, arcund 

that time, so he came back about rh
 

our o'clock or a little after, 

maybe, I'm not sure about the tiie, somewhere in that nelghoor= 

Q And what, 1f anything, did you all do when he cane 

back? 

A hell, Ben was kind of nervous and, you know; I had 

bren around Ben long enouyn to ~know when —- usually he talks to 

hisself when he's got a problen, he be working his mouth to him- LL | 

self when he has get a problem, he don't be saving it cut lou 

9] Did he ever say who "we" was? aon wg 

H A fo, he never did indicate who "we" were, he just 

said, "1 lett ny coat.” 

Q hat elce did he say? 

A fie said he didn't know if the car was spotted cor not, 

that he hoped. it wasn't, and thar 'it wag & shooting, that they 

> 1 - -3 Ciuvery a «pe, . 3 v= 
had roboed &EUTRSLUTO store, 

Si 

 



  

later found 

that it was 

Q 

V
m
 

he tell you which 

No, he didn't, he didn't 

-- I didn't really later 

iL, 

Pid he tell you anything 

cne? 

~N
 

me which one, 

Find out, I just assume 

about a shooting? 

A Yes. 

$ What did he toll you about that? 

“5 -A -+7:fe sald an officer came in and there was a shooting 

and they had 20 run. 

9: bid h say whe shot hin? 

A Ho. 

Q Did ne have any weapons with hia when you saw him? 

A “he only weapon that was in ay car when he came back 

to Hdarictta was a sawed-off IL 

GQ Ckay. What, if anything, did you Go after he told 

ycu that? 

A Well, I was shocked, you know, because I didn't know 

he had done it in my car, so I tock him back to Atlanta and we 

~~ lot me see, the first place we went to -—- he said the car had 

kept, youuknow, like when vou cub it off it wouldnit crank 

because OF the posts around the cable, and he told me he nad a 

friend of him that would fix it, and thet was down on Stewart 

Aveonua, 

Q that tire wags that? 

A 1 guess around 53100 or 5:30, sorewhere along in there 

-§l13- 

 



  

Yi
 

3 
I'm not sure about the time because I wasn't, vou know, in nc 

hurry. We went there and the guy locked at it and he said -- 

we thought it was the battery, but come to find out it was the 

tlie car. Hh
 

) jo)
 

o pu
n 

[1]
 

$y
 > wrong Kind of 

¥ Ckaye. 

A So he didn't have any == another cable to vut on it, 

SO he just -- what he did, he took a nail cor something and drove 

down beside the post so it would, vou know, connect, 7 1eiiigge SoveEs 

Q Okay. liow, where did you take #r. Wright after that? 

A After that we went to Church's Fried Chicken on 

Cascade and got some chicken, and let's see, where else did we 

ge? We went out on Jonesboro Road, out to some apartments called 

Jonesboro vad Apartaents, 

Q What did you go there for? 

A fie had & cousin that lived out there; they skin out 

there a lot, you know, so we went out there and we stayed out 

there for a while and he skinned a little Dit, I just sat aroung 

and lcoked and I didn't know any of the peowle around there, and 

I don't like to skin around people that I don't know, so we lef 

after he got through skinning. 

$ Okav.e How, did you ever see him later that night 

at anybody else's house? 

A Yes, 1 seen hin again, but, you know, after we left 

the skin house, I took Ben to Ryan Street and then later on that 

- 
night I seen hin cover to Pat's house, 

 



  

£D
 

FAN 

him, I went over to see Pat, really, and Sen was alread 

there, s 

the house she some ou 

set down 

Q 

e
t
e
 
—
 

Pavid Burney's sister, 

Okay. what, if anything, did you all do that night? 

=3 3 T 3.8 : Foriad ve c “05 vy n " = Well, I didn't -~ it wasn't planned for ne to seo A 

O when he came out of the house, when Pat came sut Of 

ct
 there and got in the car with me and 

and started talking to me, and then 3en came out, 

about the robbery and shooting, what did you think? 

A 

know, 1 

& 

A 

Well, I was shocked and I wes scared and I —-- you 

didn't really know all the details about it and -- 

Way ware you afraid? 

wall, because he was in ny car. 

Ckay. Now, after that night, 4id you have an occa- 

see or read anything about it, or that aay? 

No, ZT heard it from Pat. 

Stig sald something about the police ‘had been over 

Fy 

fo 

3+ rE pry, TE CL LT a He Te PREIS I, i “od Oovel there and they had been Jteiping cars, you 

re hs Ha
 

> A we
 rd — = »

e
 

[a
 

F 
of 

[=
 

po
rt
 

4
 z < QC po
 

Cc 0 & © 0 ~ 
-
 ve
 

C [1
 Q po G 31 

- ct
 

that on the hearsay vasis. 

MF. TURNER: I will just strike that and move on 

- H 1 scmething else, 

-315- 2 

 



  

Q (3y nr. Turner) Did you sse anything about the 

£3 Xe, I did. 

Q vhat did you do when you saw it? 

A Well, when I sew it I became kind of alarmed, you 

Know, I was -- I tried to connect the two, vou know, I knew Den 

had to be involved because they said the man was shot with the 

w8hotgun, and he did say a policeman, and he said a furniture .eous® 

store, too, but he never did say where he was, or I never did 

ask hin where he wefe, or assuming, but that is not a fact, vou 

Know, 

(w
] S50 did you read more than cone articles about this? 

A Ch, yes, I read a couple of article about it. 

Q Okay. Now, what, if anything, happened to you on 

the 30th, May the 3uth? 

A That is the morning I was arrested. 

Q Okay. loule you tell us how that happened? 

a Well, I was asleep and there was & loud knock on the 

door. . 

OQ what time was this? 

A In the neignborhcod of 4:33¢ to 5:00, somewhere along 

in thore, 

Q Was it dark? 

A Yes, 

¢ You heard & knock on the door. Whet haprened? 

-53]16- 

 



  

A I got up and I didn't know who it was because it was 

a loud knock, and my brother-in-law, Raynond, he had already 

gotten up and beat me to the door, so he had =-- whoever it was 

he had already let them in, and I was putting on ny pants, and 

Raymond came to the door and told me that the police wanted to 

talk to me, and I was trying to get dressed and they told me to 

hurry up and come on cut and when I come out to have my hans on 

top of my head, and when I did, I came out with my hands on top 

of my head, and they put me against the wall and handcuffed me. 

G Did they tell you what thev were there for? 

A Rot then. 

chigy just told me to walk out the door and walk to 

the car with the lights on, “. 

9] what happened next? 

A I got to the car and they teld me to get in and they 

took me to the Cobb County Jail. 

g Okay. vinat happenad after you got to the Cobo 

they had picked me ap was because a Dot Supermarket or scimething 

: and he asked ie did I xnow —
 in Powder S»rings had been robbec 

anything about it, and I told him I didn't know anytaing apout 

it, and I didn't have any involvenent in fan
s 

or
 

~ and he said the man 

ne ~ IN PY -~ 3 $= « - ep -.¥ 3 . - gr - . pap. - —. gor 1- + : Said he thougnt it was YOU o YI told hid it was Just & mistake In 

 



  

identity and 

A 

no, 

in iv. le 

read ir din 

he xept 

ny 

I: dian? 

that was all hie asked me about that. 

Did vou talk to anybody else? 

Yes, I talked to some detectives fromm Fulton County. 

Ckaye. What did they talk tc you about? 

About -- I talked to Cetective Jowers, Detective 

Harris, and I don't know the other guy's name, the white detec- 

tive. 

gots "Q Okay. What did you talk to Detective Jowers AR a 

Harris about? 

A well, he told me he wanted to talk to me in connection 

with the Pixie Furniture Store, and so he started asking me ques-— 

tiona about it, 

Q Did he discuss it with you before he asked you any 

questions? > 

Yes, we talked about it. 

What did he tell you? 

He asked me did 1 know anvthing about it. I told hin 

‘ 
t know anything about it, I didn't heve no involvement 

asked me had 1 heard avout it and I told him yes, 'X 

the paper and heard it on the news, and just so con, and 

like that about it. o~ , ES RE a 
s§tioning me 

didn't you tell them what you knew then? 

Because I didn't want to get involved, plus I thought 

involved and it was going to connect ne. 

Cray 21d you tall to anybody else that day about it? 

 



  

—
—
—
 

A You mean outside the detectives? 

GC Yes. 

A Yes, I talked to a sheriff in Cobb County. 

9) The Sheriff or a deputy? 

A The Sheriff, 

G Bow did that happen? 

A Well, they was questioning me in one room and I 
REY JN, Vp 

he must have told one of the detectives to bring me in his 

and they toox me into his office and he sat down and had a 

with me and he told mz that he had just got tarough talkin 

Mr. Lewis Slaton and Mr. Slaton told him i re
 

4
 

0 (&]
 

jt
 

bo
 

jo
 

£3
 

[=
 

< v = 

information concerning the crise, you know, to help clear t 

marter up -—— 

7a Y > om vy b PRAIT HSE SA _~; tL v ta MR, PARKER: I will object to that as flearsay. 

can bring the Sheriff or the District Attorney, hinse 

np, TIENER: I think he can testify to what wes 

on tne basis of hearsay becaus Q v ho u [¢é Pe
 pt
 

a - 7 + - 

fering it for the truthfulness of the wma 

wo are offering it for terns of what was said to him 

thy he said what he said. 

IiR, PARIEN: The Rlstrict Attorney is dovnstair 

he is available. IZ he want: to put hin on the stand 

is hero. 

‘Re TURIER: ve are offering this to explain co 

Sh Ep 

guess 

he 

conduct. 

Lter, 

and 

RSI, 
> a s Ad 

adduct 
Jlals 8 

 



  

o
—
—
—
—
 

I think the prosecutor introduced some similar evidence 

earlier. That is an exception to the hearsay rule, a 

well-recognized exception, I might add. 

THE COURT: when a witness is available, I am not 

sure, but I will -= 1f it does, I will admit it for the 

purpose of explaining this witness' conduct, if, in fact, 

it does explain this witness' conduct. Proceed. 

wri Qe Sr ¥(By Mr. Turner) So he told you he had talked to 

Mr. Sla*on? 

A Yes, he told me he had talked to Mr. Slaton and if 

I could give him any information concerning the matter to help 

clear the case up, he would give me immunity and I wouldn't be 

tried for Cobb County or Fulton County? 

0 What 4id you say ta him? 

A I told nim I didn't know what heplpened, I didn't have 

any involvernent in it. 

GC What happened next? 

a He asked me did I Know what immunity was. I told hig 

yes. ile said, "That means you won't be tried for nothing." I 

said, "Yes, I understand that, but I don't know anything about 

it, and I didn't have any involvenent in it." 

% what happened after vou had the conversation with 

hin? 

A Ho 2aic, "Chay," and I walked out, 

Q Okay. hen was the next time vou heard something 

-520- 

 



  

about this ~)
 

or
] 

| 
ad

 

£0
 

1]
 

- r ¢] ~ fy)
 

5
 4

 
Io Se

? you further that day apout it? 

Q The day that vou were arrested? 

a Fo, none other than Detective Jowerz and Harris. 

Q Okay. Did you see anything about it on TV that day? 

A Ko, not that dav. 

$ Ckay. What hsppened the next day, the 31st? 

Lea ok By i-Well, the 31st, that was the day that I was trans- 

3 
ferred from Cobb County to Fulton County, 

eg Chay. What, if anything, happened con that day? 

A Well, Lieutenant Perry and anotner detective picked 

me up. Ve was on our way back to Fulton County and we —-- we 

care down on Coby Parkway, I beliove, 

U Okay. Dla you come Sows the exrressway? 

ay Well, we cane the old -- what they call the back 

way, Cobb Parkway, which used to be old 41. 

W Chay. Did ycu have any discussions with Lieutenant 

Perry about the case then? 

A Yes, Lieutenant Perry, he -- he read me my rights 

and what net and explained, you know, the necessary things about 

the lawyer and wiaat not, you know, and he started uestionine 

- he S51 2a t WERE. CF WR) P o Ny ry o% 3 vy 3 X J SE PY - N Re about the crime, and I told him I didn't know anything about 

it, I didn't have no involvoneat in it. 

 



  

A Yes. After -- he questioned me for a while, you 

know, after I kept telling him I dida't know anything about it 

and I didn't have no involvenent in it, and he said, "Tt 

A Yes. Before he wentioned that he mentioned 

about farl Lee. fe =-- he had got becred fron me telling 

didn't know anything about it, and he said I was a damn 

he ought to just throw me out of the car aid do ne like 

did Knowles, 

% Did he explain what that was? 

& FO. 

0 What elsc was sald? 

5 After that he told me hes had two eyewitnesses 

fy that they seen re come out of the pluce running, and th 

sald they had a description of my car, had the tag nunue 

fT [e 

r, 

12y are 

trying to stick it to you." I said, "What?® He said, "If you 

know anything, vou ought te tell me or vou are in a world of 

trouble.” 

Q Pid he explain what a world of trouble meant? 

oy kat B.; EE bids TERE CAR pe Sh : 38 ; Wh 

Q What did he say? ; : 

A He said-that my car had been seen in the ropbery and 

they had a tag nunper, that they had two evewitnesses that seen 

me arcund the place, and he said with the evidence they had got 

they had encugh to burn me, 

C Ukay. Did he mention ‘anything about Earl Lee? 

to ver 

rt Lo 

ang 

 



  

ae
, 

he said they had enough to burn me, vou know, and he said wich 

the evidence 

sald the best thing 

is trv to own up 

part, yout know. 

@, what 

A 

like I say, 

J 

A 

statement when 

Sil, 

0 Did you ever indicate to then 
x. 

operate? 

A I told themed would tall to De 

told Re when I got down there, you know, t 

talk to him, and I told him I would, 

CG Ckay. How, what hapuened when 

Jowers? 

A well, when 1 met Léetective Jow 

they questioned nme about the crime and the 

that Lieucenant Ferry had told me about the two eyewlitnesce 

BY car, bt} 

added a 

they had gob 

Fa 

Detective 

little 

Well, 

I did 

eld 

lo, 

v 

10 description of g 

he said 

you make 

I dicnt'e 

JOwWers 

bit 

Fron 

with the evidence 

< + 

for we to do is, if I 

te ny part that I played 

did you do then? 

I didn't deo anything the 

n't have any involvement 

3 

got to the Fulton County 

and Harris, 

iy car and the 

more to it; they showed 

Lav lal Burney and they told me ti 

that he has got, he 

 ; > didn't do no shooting, 

robhery 

n because, you Know, 

in iw, 

in the cup? 

dns lonly made a 

ww I mean the Clty 

that you would co- 

tective Jowers, He 

¢ go down there and 

you met Detective 

8rg, he and Mr, Harris, 

y confirmed everything 

«a ana 
J Alina 

tag nunuer, and he 

a statement that 

pest thing e i 

 



  

for me to do was just own up since I was the one that they seen 

coning out cof the front, the best thing for me to do is own uv 

£0 rhe robbery pare, and sald the man was shot with a shotgun. 

they treating you then? C fiow vere ng oy 

A They was treating me nice then, you know, 

Q Cen you describe the atmosphere? 

A It was just a mutual atiwosphere right then, you 

know, until I agreed 

Q Gld they 

a. Yes, thoy 

Q Chay, Di 

2 Ckay. Flic 

you heard them read t 

A Vell, mos 

of things and they su 

in and helped make th 
\ 

4 How, what 

ment? 

A fell, wit 

Yo pry} Be ms Vo praia 3 NYY Know, I have Leen con 

didn't nave a very yo 

tere wasn't anytaing 

get yeu Zooud or anything like that? 

did, 

vw, was that statement that you gave and that 

i I 

rue or falve? 

t of the statement ds false, I added a lot 

pplied me with a lot of things, so we pitched 

gigtaternent. Up. 

was your purpose in giving any false state- 

trying to ficht it because, you 

victed once bhefcocre for armed robbery and IX 
<4 -C 

record, plus I knew 1 was on parole, and I 

cd alivi to even try to beat the case, so 

for ne to-do but do that. 

ost! + WE Kod 

 



  

Ci Okay. At that time -- strike that. 

So you gave then a statement? 

A Yes, 

0 Oray. what, 1f anything, else napvened? 

LE You mean after I gave the statement? 

\¥ Yes. 

A Well, the atmosphere chanved. 

a How did the atmosphere change after vou gave a pi 

statements? 

A Iecause they wouldn't let me use the telephone, 

GU What do you mean? 

A X had requested -— 1 ashed Mr, Harris could I use a 

telephones ‘this was after I had gave tne statement and sicned 

: 

it and everything, and he told me he was going to let me make one 

call, and they tock me up on the third floor. He sald he was 

going to call up tiere and tell the turnkey to let me make [A]
 

call, He called, but he told thei to put re on restriction and 

not let me talk to nobody, sO I was in the cell two days before 

I was even able to nmeke a call, and I didn't get a chance to use 

the phone until the 2nd of June, that is when I went to the =- 

supposedly went to the preliminary hearine, and I orought it to 

the City Judge's attention that during the time I have been in 

custcdy I have been deprived of using a phone to try to get ne. 

an attorney, 0 he told Detective Jowers and Harris that it was 

inpossivle for me to get an attorney 1f they wouldn't let ne use 

 



  

a telephone. 

Q S50 you went to a hearing one time without a lawyer, 

is that correct? 

A 

Q 

right? 

A 

Q 

BY Mk, 

0 

SR ane ; A 

to? 

That's correct. 

By tie next hearing you did have a lawyer, is that 

Right. 

4 .Were you at the Dixie Furniture Store that ‘day? viens: 

Pid you shoot anyone? 

No, 1 diane, 

Is evarything you have said the truth? 

Positive, 

NR. TURNER: No further questions, 

CROSS-EXAMINATICN 

PARKER: 

"y, 

irs McClesky, do you want to change anything vou 

have just testified to? 

Po I want to change anytioing I have just testified 

You aro sure about that? 

I sure am. 

you hired hia fe
 S50 your attorney is Join Turner ail pe
 

ae 
5 al™- 

 



  

arter you got to the phone, 

thing 

these 

A Pardon ne? 

Q You nired John Turner after you go 

& Fo. Hy sister contacted Mr. Turne 

Q Lo you know he is a former prosecu 

A Hr. Surner? 

¥, Yes, 

a former prosecu 

QO Kow, Brenda Hardy is one of your g 

correct? x 

I wouldn't call her a yirl friend, 

Q Has she over taken part in any of 

A X&, sir, not that I know. of. 

Q Has she ever kept any of the weano 

A For me? 

Gg Yes, sir. 

A No, sir, she never kept any weapon 

0 Have you ever seen any weapon in h 

Of that nature? 

A Bo, sir, 1 haventt, 

oO How about Hary Jenkins, has she ev 

robseries? 

a well, not to my knowledye. If she 

ie 

¢ Has she cover attempted to make up 

t to the telephone? 

L's 

tory FOO? 

tor, yes. 

irl 'Eriends, 

she's a friend. 

these robberies? 

> <3 
aed for you? 

3 for no, 

er purse or any- 

¢r taken part in 

have, I wasn't 

your face as a 

 



  

viet ; 

Cisguise? 

A Hake up ny face? 

Q You, giv, 

A No. I have heard h 

can, 

Q Have vou ever iiade 

your race? 

5 EATS Ba ad A +3 

o You have never nade 

A NG, sir. 

~ ry 
- » S 2 t0OW, you are in the 

tine, is that correct? 

That's right, 

'¢] Hhere vere you plac 

locked up out there? 

A I was placed in isc 

north wing, 

I was in a co 

xing UR FER 
   velieve, and the plum} 

I believe, 

Q You ended up in cel 

A Fitteen or sixteen, 

then, 

0 one north Lifteoen, 

ul0, I haven't, www 

er fake comments as to how she 

the comment that she made up 

that comment? 

Fulton County Jail at the present 

ed in the jail when vou were first 

lation, "I think it was on the 

at cell were you in? 

uple of cells. I think I was in 

was bad and they moved ne 2015, 

It was one of 

 



  

A It could have been, 

0 All right, sir. And Mr. Dupree was in the cell over 

the tor of you, wasn't he? 

A I think he were. I think he was upstairs. I know 

lie was upstairs. 

] Two north fifteen? 

A I don't know the number. 3 

#:Q -=-And you and Dupree talked about your cases hollering 

through the vents, the air-conditioning and the heating vents, 

didn't vou? E 

A Well, I haven't talked toc -- I have 

I have talked to Dupree but it was always as to 

to make me give a statement or why are they trying to pin ti 

oh ne, stuff like that, 

Q AL right, s 

Cn a conversation with a 

were downstairs in one n 

A T-couidn't = 

about. Heat soa 

iQ I believe he 

sa NC, 1 -- 

9; 

A 

relatives in jail. 

y 
4 © am not say 

3 - i | 
is~all. that 

ir. How, do you 

man in the cell 

orth fifteen? 

ay, I don't know 

tclé you he va 

ing ho lg a rol 

8 

I believe that was his expressi 

ho, I have never talked to any of Ben 

a 
al 

talked to Dupree, 

how what hapvened 

11s FS 

ever remember carrying 

  

next to you while you 

nan you are talking 

a cousin cf Pen %rigit. 

on wile 

Wricint's 

£3 — ive, I am saving h 

 



  

simply told you he was a cousin of Ben Fright. 

A I don't recall anycne telling 1% 1 is a cousin of 

Ben tiright, 

#] Specifically, Mr. i#cClesky, have YOu aver nad a 

conversation when you were in that jail cell, cone north fifteen, 

either with Mr. Dupree, who was over above you, or with the man 

Wi0 was in the cell nezt to you, stating that you shot tne police Sha 

" 3 Br ppd Reena Sew NU BE TR oe Se) SL) EAT GF NL © REEL Ll SE RS A 2 ot » FR Shah Soe SEE WS Lae BR Set ATIITR ARSE i 
officer? 

A Bo, sir, I have not, 

« TURIER: Your Honor, before we co any further, 

could we approach the Lench for a minute, plea: 

(Whereupon, the following discussion was had between 

Court and counsel at tie sench, out of the hearing of the 

“R. TURNER: Your Honor, I think that from the 

direction of things from what Yr. Parker is saving it 

appears that he must have some otlier statements from the 

defendant. I asked for all written and oral statements 

~ 1n ny pre-trial motions. If he has something he hasn't 

furnished te, I would object to getting dnto it now, 

WHE COURT: viell, he hus a staterent that was 

furnished to the Court but it doesn't help vour client, 

(r IT RYT a ry Ara Y To, Sha ty 34 . : MH. TURNED: «+ an not dealing wit that part of it, 

I am saying I asked him -- 

- 
-3830~ 

 



  

HE. PARKER: It's not exculpatory. 

Tie COURT: You are not even entitled to this one. 

Re TURNER: I am entitled to all statements he nade. 

THE COURZ: This is not a statement of the defendant, 

like TURLER: Ve are not talking about a statement of 

pr AEE AEs Tw nT SiR SUSE COURTS “I don't Know that we “ard alking about To 

any written statement. 

Ma. TURNER: I am saying I filed for oral and written 

statements. I asked for all statements of the defendant, 

iE COURT: Let the record show I wrote you and made 

it of record, It is not admissible and what he is deing is 

in the Court's opinion EI 

HR. PARAER: I would like tc place in the record at 

this time, if Hr. Turner doesn't mind, that I have furnished 

him conplete coples of everything except what we are about 

tC get into, plus sone Grand Jury testinony, and he has had ps 4 £ ra 

use of ‘it during this trial. 

  

1 don't object or argue about that, I 

Liaoly saving == 

PARELKR: I. want the recordien reflect that, 

ike ZTULKLR he didn't Surnisiy me wien LL
] 4
 i) wv
 

&
y
 

& fon
 

evervtihing, and that is one of tle reqguirernents of the law 

in tevies of furnishing all statements that a defendant makes. 

 



  

THE COURT: Well, that will be a defense tha 

can use in the Appellate Courts if he has violated 

t you 

NR. TURNER: 1 would object at this tiie on that 

basis. 

ME COURT Twill let tho 

violated the law, in my opinion. 

ME. TURLER: I will let tn 

at trial he may have some oral or written 

my client that he has never furn 

to any lntroduction or admission 

record s 

Sr record 

ished ne, 

£ iuo~ ar 
CL LhRoSe 

how 

Show 

a¢ has 

Le nas 

statement 

statement 

THz COURT: I will overrule the objection. 

#R. PARKER: This would be 

about ir, 

THE COURT: I understand that. 

within Lefendant 

Let's 

(Whereupen, the following proceedinus c¢ 

open count.) 

9; {Gy Mr. Parker) Hr. NeCle 

conversation with bLefendant Dupree out 

in cell one north fifteen, or 

he State couldn't prove that vou 

the lady couldn't identify vou? 4 LSE 

- 

conversation with Bernard Dunree, hut 

A Ho, sir, not to that extent, 

v 
SKY, have YCu 

at the Jalil 

cull next 

killed that 

it wasn't 

Noy gir, 

any any 

Pa 
Ss 

wiiile 

ntinuey 

ever 

~ 

furnished me everytning, and for the first tice here today 

From 

McCleskv's own knowledge, sO there is nething exculvatory 

proceed. 

X 
<4 

in 

you were 

to you, 

Officer 

(o
a 

Lh 

pecause 

 



  

"to you or ME. Dupree that vou gave a statement in such a shape 

nature. It was surrounding the case, things that maybe led up Ls 

to our arrest, what =-- why the police got on our trail and what 

made the police come te my house, or stuff like that, but I never 

the entire time I have been in Fulton County Jall admitted to 

anyone or sald to anyone that I killed anyone, 

Q All right, sir. Would you also while you were in 

that conversation have had a conversation with the man next door 

that you vere hoping len Wright would get Killed? 

Ani I don't recall making no statement like that, sir. 

I really don't recall making a statement like that, and the man, 

you said the man in the next cell, it's a lot of peovle been 

moving in and cut at all times, I don't know which man yCu are 

referring to. You say man, becsuse sometimes a man be in the 

hole for one day, and they take hin out and they put a new man 

in, so I don't know which man you are referring to, 

9; The man that was carrying on the conversation with 

you witlle you were in cell one north fifteen, did vou ever sive 

him a sliy of paper and ask him to call your girl friend, Brenda? 

A I know one guy named =-- I don't know hig name, put 

he sald his name was Peco, I believe, and I have gave him a plece 

Air to call my sister, but he never did call, 

-333- 

 



  

‘on May the 13th, 1978? Lp ad 

A No, he never told me that he 

told nme that tie knew hin, and let's see = be 

that they possibly grew un kogetrher, but SH Lf L 4 ¥ never 

uncle. 

Q All right. Well, did you ever 

tion with that same individual or with Mr. Dur 

going to get Jrende to furnish You an alibi a 

A I saving recall Ying 

thought my cer had been implicated in 

that I didnt‘: 

Ry car nad been implicated in the 

scmething to say, so I was going to say thet I 

funeral with &renda that day, she is supposed 

funeral on the that. 

A 1 Saidiit on 

was going tc happen, but I 

tell it 

had a 

cell next to yeu while YOu were in 

n 3, . , Xo 0 1 i a RR that you didn't give a denn 
was upstairs, 34 

a dozen of those sCn-of=a- itches Laat came to 

would have shot your out? Wav 

something of 

Aor he Baw AER a SY er £50 G RI AANS de Noa Nan Wh Wr SY 

something like dur 

have no alibis as te where I wes 

furnishing you an alipi, 

ET ir 3 38 
convaersaltlon with 

the nature 

nothing about 

1 as to where you were 

RL 

ing the tine I 

and I knew if 

going to need 

had went to a 

to have went to a 

Fa
. 

I didn't know what 

thouglit and would 

remember saying 

 



  

A M0, I have never said anytning like that, dr. Parker. 

I don't know what individual supplied you with the information, 

..but I think they have got a misinterpretation there. 

Q How would they have misinterpreted? What did they 

say? 

A Like I never said to anyone or anybody that I ever 

saot anyonody. I didn't care if it wes this or thet, you Know. 

=I am not a killer, I am not a murderer, I am not a violent ives 

rerson at ali, I never assaulted anyone or cut anyone or shot 

‘anyone in my life. 

Q Did Dupree, while you were in cell one north fifteen, 

ever tell you that he was thinking about coring into court and 

telling everybody that you were the triggernan? Dic 

tell you that? Sy 

A No, sir, he never told ne that. 

\»; Did you ever have a conversation with Mr. Dupree or 

the man next door to you that you wish you knew sorebody on the 

street so that you could make arrangements or iiake sone arrange-— 

ments so that Mary would not come to court, Mary Jenkins? 

A No. 1 have wenticned saving something like -- 

because at the time I thought she was the one that had created 

all this turacil, and I said I wished somebody would put her out 

of her misery because it was causing me heartache, because IX 

thought she had brought all of this on me. I remember saying 

of ‘that nature, somethin: 

 



    

talkin 3 ant ue 

é Well, 

  

am} what not, and 

hen 

Tai bt 7} Lave he 
yCUll WOQCLULS fave he 

Be HO, 

want to see ner 

suffer because it 

NEOR We and ay 

0 licw, 

cn two oecasions 

  

Vv 
a 

$v our Vina ge dia oy 15 ed 
wWO LAY CICWULS 

  

ay Yell, 

tial 98 

aa rh. adowurs an 

SOREL ROToSs andit 

Gants nov where 

( Youre 
-4 

furniture stove, 

    

mo 

    

AY put her out of her wisery. you 

in other words, I guess I was seeking 

I felt that she wag Lehind my being arrested 

it was causing sme a lot of probluns. 

JOU gay put her out. of hur G0 YOu pean 

r killed? g: 

eas LO thet extent. =l-guess .I-did «wa 

      

    

  

eed rare ~3 T =p Physics 13 IPR e,: Sub 3 <C 

’ vited 2 Tes ny 27 Tye pay pe Y = ” oy 33 3 sewed like she had brought a lot of turnoil 

YOU HLNCwWe 

2 1 : nt I ' 3; GO you recall putting your initials and thc date 2 $ 5 pif 

v a a ARS, LE Ge ry dey zn - v3 A Yar 1 Sn sn rE . ON particulary puctograpn Hac 1ndicaies where 

. 

13¢h, 19747 

33.3 ia pe SIE RTT - 3 Fi 4 nadine 1 r In Nr Ow did you Rnow to pati vouyr initials in those 

Cations? 

3 Teo $4 1.9, To 3 3s . Senn 3 T Jidntt Thnoy, 1. TE Fi Ui sata: 

+ + » N ~ . It FE sy WY ~~ I a de. Lae peotileiioane Gnotwo Jifferant cceas lions 

4 MI. JHaTTL3 wai saying that ~~ thay HOw 

ET C3 Ais AE REA Rs VL Mm urbe iu Fria w vipa we " ayes} > Lh WOO Sasaaaty 02 wWLSDe whit Cal wads Ual hue 5 

tia Wa B. Lark yO TUSSLE Car thors. 

2 PR rs Saud 3 HT = RTE BO ER ual na ponhet to Llc Out Luo ieEcaes pehind the 

doco de) ouigs “yy a 
LBC ear rot? 

+ fxgdeli cays out ATI acoe in thio STGnty , 

— { (mm 

 



  

couldn't figure out how the men got in 

it. 

Q who changed it, you 

A viell, I was going along 

go along with the prograa. 

Q You say you didn't rob anybody ug 

is that correct? 

ron B “That is true, 

G Eo you know Mr. Arthur Kiessling? 

i Arthur Kiessling? 

@ Yes, sir. 

A Yo, TI don't. 

Q Did you take part in a robbery at 

Mr. Kiessling was working on Saturday, March 

A Pardon ne? 

GQ Did you take part in a robbery in 

A 30,1 didn't 

{2 -- where ir. Kiessling was the vi 

A Is this what they called the Dot 

something of that nature? 

CG Yous, sir. 

A Ho, sir, I didn't tone part init 

standing, that 1s wiiy 1 was 

understanding. 

-£37- 

in Powd 

a place 

ie == 

Powder 

[9]
 

ct
 

pte
 

2 “J
 

. From 

for that chliarye, 

ex 

SO we changed 

er Springs, 

Springs on 

and or 

ww under-— b 

from ny 

 



  

& Do vou know whether or not you have ever been to a 

Dot's food Store in Powder Springs? 

A Hc, I haven't been to Powder Springs, I guess, in 

ever ten years. I used to have some relatives staying in Powder 

Eprings, but they doen't stay in Powder Springs now and I haven't 

been in Powder Sorinags in over ten 'QaYS iv J 2 1 \S 4 

Q &IL righy, =mir. 

‘A "And I think when that case do come up, I think I will 

be able toc show exactly where I was at and what I was doino at - - 

that time when they said it was supposed to have been robbed. 

Q All right, sir. Is Larry Rosser a good friend of 

yours? 

A Yes, he is a good friend of wine, we grew up together. 

1 ” Nive 3 " r 1 ~ : + 3 2 © You played on the same high school football tean, did 

you not? 

A Sure did. 

Ly; You played end and he played defensive back, or was 

it vice-versa? 

A I played right end and he was defensive back. 

Q nat was Lonoen Street Hida School? 

A Rint, 

Q low, on March the 4th, 1978, vere you in Power 

out that store the weell before it was robbed at 

 



  

Q Saturday? 

A Ho, sir. See, at that tine I wis working at Qliver's 

and my schedule was from lu:30 to 8:00, and it's imposible for 

re to rob a place at 8:00 and I don't get off until ¥:40. 

Q And would Larry Rosser have been with you on March 

the 4th, 1378, in Powder Springs at approximately 6:00 Pole? 

A I recall -- chi, I recall ore time I went to Pouder 

Springs, yes, I recall. “his was during the time that we had 

the little kitchen up at the little carrousel and we went to 

Powder Springs -- I went to Powder Springs to pick up somebody 

and we stopped there and I tanink we bought sore stuff at sone 

store, and bought some stuff for the kitchen that we was con- 

trolling up there at the carrousel, 

Q Where is that store located? 

A let me seo, I don't know if that was the -- I don't 

+ f.
 

O ps
 - rt know 1f that was the -- it's a little old bitty Store, 

know the name of it, but it sets right in between a little fork 

Le have you ever had Brenda Hardy pawn any property 

A No, I haven't. I haven't had any property for her 

tO pawn. 

{ Sveciiically, a man's diamond ring? 

A I recell the ring being pewned, but it wasn't oy 

property. 

Q And who gawned it? 

~539= 

 



  

A It wag Ben's, 

{2 I say, who pawned it? 

A Ch, che pawned ic. 

G who? 

A sranaca, 

Q And how do you Know that? 

A Well, it was cone —- it was the tine I was getting ny 

‘preperty over on Bankhead and he wasn't staying with Mary then, 

and he didn't have the money so he had sent Brenda to pawn the 

ring, and I think she did that day. I was at worl that day and 

she pawned it, and that evenlng hie sent me $20. I think she 

pawned it for $60, I believe, 

Q VYhere did that ring come from? 

A I have no knowledge, 

g Do you krow where it was pawvmed at? 

-A Ko, I don't, because she had ay car that day and she 

pavned it. 1 don't know where she pawned it at. It's several 

pawnshops in atlanta, I don't know exactly at which cone she 

pawned 1t at, 

¢ T:4 ~} «} re y v ~ Yury 3 3} = ye» ~ §- Pe . Q Lid she tell vou sie pewned 1t at the Northside Loan 

A She didn't discuss exactly where she pawvned it at. 

I didn't really see that tobe on issue at the tine, vou know, it 

was hic ring and he wanted her to 

-L3C- 

 



  

“me. 

A 

0 

the tine 

QO 

somewliere 

BO vou know whetlier brenda Hardy has ever pawned 

An adding machine? 

If she have, I didn't know anything about it, 

You didn't ask her to do that? 

Yo, sir, I never have asked her to pawn anything fo 

fave you ever seen her with an adding wachine? 
~- 

- 
10, sir, 

Hew, during the period of time fron Hay the 13th to 

that you were arrested, Itay the 30th, was Ben Wright -t 

No. He stayed up Chere at -- I think the last tine 

‘ag on the 28th, and he came up there on the 27th, I 

that was that rFriday. 

Bid you put him up at your friend's house, Larry 

I asked Larry, you know, would it be all right for 

ay covyar ‘there, He staved one night and then <-— 

What night wes that? 

I believe it was on a Friday nigint which was the 

All riuhit, sir. ‘hen Gid you take him to a motel 

west Cf lerletta the next night? 

 



  

A I took hin 

We had -- my sister had 

To ¥ + 
11ote a 

wanted her kitchen painted 

her Xitchen, and she wanted some dead grass dug up 

lawn and we dug tha 

9 What motel did 

I think it was 

I believe, 

50 Squire where? 

pa Eguire Inn. 

(§ Whereabouts? 

It's in rhe  6n 

Q In Powder Springs 

A No, it's in Smyrn 

G Row, during that 

until you were arrested, Hay 

attempt to contact any law en 

>f Cecorglia concerning what you knew about sen 

A Ho, gir. 

9; You made no atteapt to straighten 

Mav the 36th In Mavietia,. Cobh County, did vou, 

A viell, will you say that eyain, sir 

CG I say, did you make any attenrt to 

that megs, that is, that vou 

Wright did, on Hey the 30th, 

A Well,. no, cir, 

Squire or == I - 

~BYTNE darcéa. 

1othiing 
\ i Pi 
L3aa 

At that tine, 

fey 
kh Li 

pelieve it was 

to do 

like 

Cob County? 

? 

a. 

period of time {rom Kay 

the 30th, did you ever ma 

forcement anywhere in the 

in the front 

the 

he 13th 

ke any 

State 

gut. .on 

Oo ut 

Len 

80 we painted 

 



  

scared, you know, ny car being implicated, and I can't see no 

one that would lead to but me, so it wouldn't nake sense for 

me to try to straighten out something that is going to put ne 

0 Sir, I show vou what has been marked as Statels 

Exhibit Kumber 32, & certified copy of Fulton County Indictment 
A oa -< 

Number 3247 charging you with armed robpery in 1270 and ask if 

  

} Le ‘that is you that was charged with that crime? sR a Ree 

A I believe it is, yes, sir. 

Q Did you plead guilty to that, sir? 

A Yes, Bir. 

8, were vou represented by an attorney? 

A Yas, sir. 

8 And what type of sentence did you get? 

A I already had eighteen vears, so 1 got a fifteen 

year sentence running concurrent witii the eighteen, 

Q I show you what has been parked as State's Exhibit 

Fria Rumber 34, a certified copy of Indictment Number 3628 from Cobb 

Superior Court, September of 1979, charying you with armed robbery, at 

andl ask you if vou would lock at that and see 12 you can idant 

i 

A Yes, 8ix. 

', Ic that Yi, sir? 

A Yes, sir. 

>; pid vou plead guilty to that? 

 



  

Q And were you represented 

Yes, air. Like I stated 

ex 

Ly an attorney? 

earlier, I had already 

received an eighteen year sentence from Douglasville and I 

didn't see anv need to fight a lot of petty cases, So I entered 

guilty pleas. 

Q I show you what hes been marked as state's Exhibit 

Number 35, a certified copy of an Ind 

County, charging you 

Aa 
~D44q- 

ictnent 12202, Douglas Cc 

with three counts of armed robbery, and ask 

‘Af that is you, sir? 

A Ys, sir, 

0 And you were convicted on that, were you not, sir? 

A Yes, sir, I was convicted on that one. 

Q what was your sentence at the tine you were convicted? 

A I was sentenced to life imprisonment. 

9 Three life sentences? Th 

A Yes, sir. We didn't put up a defense because they 

was running all of the charues, all of the charges that then 

had brougnt against us, they had really at the time, I guess, 

twenty-five or thirty, and eventually they dropped then, you 

Know, the ones that they didn't have enough evidence to trv us 

cn, and ther that they wanted to try us on, because they really 

thought it was us, you know, they didn't know, they thought it 

was us, they were going to try us on it, SG we entered guilty 

pleas on then, this particular one here I entered a guilty nlea 

 



  

on it and I got a new trial and I entered a quilt 

the eighteen vearvrs. 

Q Are you saying you were guilty or you were not 

A tell, I was quilty on this. 

Q Three counts ci srmed robbery? 

A Pardon me? > 

“asi “7:¥ou were guilty for the three counts of armed robbery? 

A Yes, sir. 

a = How about the other two that you pled guilty to, were 

A I was guilty cn the Cobb County, but the cthers I was 

not guilty of, but I pleaded guilty to thoi anyway, because lire 4 & - J Lr 

I say, I didn't see no reason © go throush a lony process of 

fighting them, and 1 already had a large sentence. & e Y 2 

xo SO you are gullty for the Douglas County armed 

roboeries and the Cobb County robbery, but not the Fulton County 

robbery? 

A «I-pleaded gulley to ir. 

4, To she Fulton County? 

pe Sure, 

J But are you yuilty ©f that roniery? 

A I wasn't guilty of it, but I pleaded guilty to it. 

Q But you ware guilty in all of the rowoberies in Coup 

Ccuntly and Dougjles Councy, is that correct? 

-345- 

 



  

A I have stated I am guilty for them, but for the 

ones in Fulton County, no, I wasn't guilty of it. I pleaded 

guilty to it because I didn't see no harm it could do to ne, 

¢ Low, one of those armed roboeries in Douglas County, 

do you recall where that might have been? 

A You mean place? 

Q Yes, sir, 

i 03 “n sBakl, Le I Mr vin SE £3 ot fo 
Li A I know {it wes a loan company. 

G renhesaw Finance Company on Ercad Street, is that 

about correct? : 

A That sounds familiar, 

G And did you go into that place of business at 

approximately closing tine? 

A I would say yes. © 

0 Cid you tle the manager and the -=- the managers up? 

- A Io, I. dddn't do that, 

Q Did sonebody tie them uz? 

A Yes, sir, 

Q Did they curse those pecple? 

A Did they curse then? 

G Yes, sir. 

A Hot to my reccllection. 

Q Lid they threaten to kill those pecosie? 

A ot to ny recollection. 

QO Pid somebody elge threaten to kill thew? 

5 4 
irq tym 

 



  

A I don't remember anybody making any threats. I 

vaguely remenber the incident, but I don't remeber any threats 

being issued out. 

Q tow, the roobery in Cobb County, do you remember where 

that miyht have been? 

A Yes, sir, that was at a Kennesaw Finance, I believe. 

9, and do you rememner what tine of day thet robbery 

#itook place? i ; : 7 ; ® Ce 

A If I an not nisteken, chink if was'on the 23rd of 

July. 3 

2 137472 

A Right. 

Q About 4:36 Pefle? 

A Yes, sir, 

CG Vlere vou found inside the sters on the floor with 

a 32 caliber revolver? 

A Yes, sir, they caught ne red-handed, I couldn't deny 

it, 

0 And dié you arrive there with an automobile parked 

around the corner? 

A I didn't have an automobile. 

0 Did that belong to Harold Woliancy? 

A Mchenry had the automobile. 

Q And was he with you in the rebbory? 

A Yen, Sir. 

 



  

Q And was the autciopile parked around the corner 

with the motor running? - 

A At that time I don't know exactly where it was 

parked beczuse 1 didn't get out right there around the corner, 

I got out up the street from the place and he was supposed to 

pick us up right there, but unfortunately he didn't make it. - 

Q You also have been convicted out in DeKalb County, 

. haven't you? 49 

A Yes, sir, I entered a plea out there. All of those 

charges stem from 19740. 

Q What did you plead guilty to out in LeKalb County? 

A Robbery charge. 

2 Armed robbery? . 

d where was that at, sir? = 7
 

>
 

vl
 

& ~ 

lon't remember exactly where the ‘ 

to
d A don't know ~— I ¢ 

robbery was supposed to have touk place, but I remember entering 

a guilty plea to it. 

0 Vere you gullty of that? 

A Noy usin, I'wasntt guilty OF its Like I said, I had 

spent money on tep of money trying to fight these cases and I 

didn't see any need tu continue to fight cases and try to vin 

them and I pavd siveady got a larce sentence anyway. 

Lo I belicve the Deralb County case was out at the 

Dixie rinance Company out in Lithonia, is that correct? 

GAO eR 

 



  

A I don't really recollzct 

coming about, but I don't recall exa 

Q 5ir, does the name Offie 

A Arthur Cane Evang? 

Q O—fmfmi=-a, OFffle, Gene, 

° I do reumenber the 

ctly what wlace it was, 

Gene Evans 

  

A 

Q vould that have been the individual that you talke 

to in the cell next _door to vou at t 

i 

Artiiur Cene Ellie? » - 

Q Offie, 

guys next 

white guy named Butch, he 

they call -- they call him Peco, tha 

ever known hin by, Peco. 

¥ iow, you say they wouldn 

Police Departne 

3igt, 157872 

guy I tall 

he Fulton County Jail? 

Q-f-f-i=~¢, Gene £vans? 

ad to nex 

cparye 

d 

JOC TO me, and it ‘was a 

ral prisoner, and this quy 

t is the only one 1 have 

't let you make a phone call 

nt while you were 

A Right. 

Q lieren't you in that room at one tine with the tyni 

by yourself, you and she? 

A Yes, for -- Lut it wasn't really by myself. Detuc 

Harris -- 1 nean Jowers, was stending right there in the hall. 

C Lid vou ash Barfene Yuarner if vou could use the 

 



  

telephone? 

A 

3 ”, 

he had stipu 

No, 1. didn't, 

Was she preventing you from reaching over to use it? 

Well, no, she didn't prevent me, I didn't really try 

ile she was in there. I had to ask Hr. Harris, and 

lated that to call upstairs and tell he was going 

then to lef xe use it, but instead he called up there and told 

- rN et Fn WEE Renin “ NB 4 p BIR y fan . 

them to restrict na, 

Q All right, Now, ison't it a fact, Hr. McClesky, that 

you actually only worked for Dover blevator about a day or two? 

A I worked for Dover Elevator two weeks, almost three 

weeks, I was unemployed for about a nonti and a half. 

0 Bow many actual days, though, gid you report in for 

duty? by 

5 Which job are you referring to? 

TQ Dover Elevator. 

A Every day except one, I believea, 

0 All right, sir. And who worked there with you? 

xia Just myself. David Burney had got aired, but he, 

unfortunately, the day ne was supposed to report for work they 

went on striae, 

G¢ All right, sir. And dic anyone else work there with 

ycu pesides suriney? 

A You irean any of tie co-defendants? 

G ¥en, sir, 

350) - 

 



  

i 

  

—
—
—
 

  

Q How about at Cliv 

with you? 

ust 3urney, Just David Burn A Just Bur 7: Just havi ne 

GC Did you at one time work 

J} A roofing company? 

; Yes. 
Fn RRS A ET RS Hi Tt ef RA IE An Le Seed ~ 

A Yea.t Iwas going to tare 

  

with a rocfing I think che job 

on the 15th of that month, I think, 

c over there at 

A Pardon me? 

Q Did you know anyone who worked at 
NS 

A Yes, I have a friend of mine, he 

have a little roofing company they call Quali 

Q vould you give ne their names, 1 

A Pouglas McConnell, and I think hi 

Jarritora, 

  

I 

LE 

WAS 

HE. have nothing furtsn 

REDIRLALY BXanlualio 

BY BR. 2UNHER: 

5, Lo vou now whether or not I way 

Federal Court or here in Fulton County? 

A I recall you telling ne you vas a 

I belicve . 

er's Place, who worked 

3 
- 

}- 
~~ 

a 

over 

for a rcoiing company? 

wee ae 

poogsed to & star 

ng company? 

y-iwofing Compa 

please? 

narie is George 

there 

—-w= Wag going to take a job 

t 

Nyy 
“ar 3 - 

 



    

[3 

MR, TURNER: Ho furthar questions I am through 

with this witness unless he has something else, 

THE COURT: You may go down. 

HR. TURMER: Nay I apprcach the Bench again, Your 

lonor? 

THE COURT: Yew, sir, 

(#hercupon, the following discussion was had between 

Court and counsel at the Bench, out of the hearing of the < 

YR, TURNER: At this point I only have sone docu- 

mentary evidence I want to put in for impeachment purposes; 

"for instance, the description the two ladies that worked 

in the furniture store gave to the police. Now, in order 

to do that, the only statement or copy I have had is what 

Russ has haa In his file, so I would have to trv and Xerox 

them or either take thon ont of the file that he has and 

mark then and substitute then later. In other words, 1 ha A A 

don't have any coples of those statements, I just have what 

Mr, Parker has let me use, so I am saying in order to do 

that I am going to need to gel those stateonents and ttn. 

1 maa leenyg 23 ¥Y ye 7 - ei C3 fy i = - y= FO - then marked and get them presented. Other than that, that 

THE COURT: Are tneoe statements of people who have 

 



  

and sea if any objection is made. 

In getting it marked, 1 

and get it It's all in the 
nas been letting me use. It would take aaybe 

ten minutes to do that. I justdon't have it recadil 

available. 

THE COURT: You can see if the statements are 

admisgible. He may not object to then, You are as 

a prosecutor as he is, and you know if they are not 

niissibla, 

MR. TURNER: I am talking about for impeachmen 

pPUrHOSes., 

for admissible anvthi 

HR, TURNEK? 

are acnissible, 

THE CQURT: ilell, you had a chance to 

them. 

crosas—-exanined on them, 

inconsistent statemn 

THE COURT: You have nad a chance to cross— 

examine them 

MR. TURNER: Yes, sir. <his is for impeachment 

¥hy don't you go ehead and offer them 

have to yet 1 

fil 

five or 

¥ 

t 

ng. 

ents 

crogs—axanmine 

TL COURT: Do you have any objections to that? 

HRs PABRER: I don't dike statements going in 

-353~ 

 



  

he puts the whole 

frre i 
POS rit 

counsel for 

1leiin, 

The whole £ilea? 

Just throw it in there. 

A very interesting subject. 

They were made available to defense 

use, 

The only thing I wes going to put in in 
nT ras id eine EE URE 4 BR 2 AEE Sr Oi, TPES Het Pr NEE Gd c A RNA 5 N SL pa TN eh CR Sa 

the statenent was the description, but I don't have to 

really do 

just rest 

[3a 18 Rd 
THE 

open court.) 

but if you have a short witness, we can take it up or we'll 

take a recess now. 

State? 

> ov 
ti 

Wihile 

Exhibits 35, 

since it hes been testified to and I can 

All right, let's proceed. 

the following proceedings continued in 

All right, let's proceed. Gnt, £ 

With that, Your ionor, the defense 

I plan to take a recess at eleven glclook, 

Yes, Sir, I have ©y. Slaton coming uw. 

This is for rebuttal testinony for the 

Yes, air, 

1 am walting, Your Honor, I would tender Statels 

certified copy of tue record from ODoualas 

 



    

believe I am quite ready yet. 

THE COURT: All rignt. We'll take about fifteen 

minutes, but let me know wien tha jury has gotten their 

coffee, 

(whereupon, the jury retired from the courtroon, 

and a short recess was had.) 

THE COURT: All right, Bring the jury in. 

Erez grea co (Whereupon, the jury returned to the courtroom, after 

SPHieh the Soliaving proceedings were had.) 

woeeemmeies copyE "COURT: All right. Call your next witness. 

tiRe PARKER: The State calle Cfepury Sheriff Hamilton. 

CARTER KEITH HAMILTON, 

being {irst duly sworn, was exemined and testified a foliows: 

0 Sir, would you give us your nane, please? 

A Carter Keith damilton. 

[9] And where do you wor, six? 

A At the Fulton County Jail. 

Lv; and who do you work for? 

A The Fulton County sheriff's Cenartment. 

Q All right, sir. And do you work any particular 

location out tiaere? 

A Yes, sip, I an assigned to the first floor. 

G And what 1s that, sir? 

  

case NO. RN) -V- Ica g 

Respondent's Exhibit Ns 

 



  

A I am a floor deputy on the first floor. 

two floors out at the jail, and the first floor 

three wings, the east wing, northeast wing, end nor 

Q Sir. All vianht, 

+ 
[R 

capacity during the months of June, July and Augus 

A Yes, 3iyv, 1 was, 

; Row, do you know Warren ucClesky? = 

Rae rt n3287 35ir; by sight, SNL Oa PE 
SS Ere JA Nod CN OH A ’ epee ES EC Vacs FEA aly Bis 9% go 

Q Do ycu see him in the courtroom today? 

Xa, Bir, 

Can you point him out? 

A Sitting rignt here, 

MR. EARYER: May the record reflect tha 

has identified the 

THE COUR 

  

£2 (By Mr. Parker) [Do you know what cell 

July, the early part of July of 1978 at the Fulton 

A Yes, sir, he was in one north fifteen. 

4 And is that under your jurisdiction? 

A Yea, It is, 

® And do vou know a Lavid Serinard Duprae? 

A Yus, sir, by sight, 

Q All right, sir. And do you know where 

cell was located? 

A Yos, sir, two north fiftuen, 

consists 

Were you working that area 

Vie 

of 

th wing, 

of 39 

ha : NTE RSPR TAS © Si CA SY 

t the witness 

he was in in 

County Jail? 

 



  

And where is that in relation to one north fifteen? 

“he second floor is located riuht above the first 

and it would be right up directly above his cell on the 

next floor. 

And are you familiar with an Cffie Gene Evans? 

Yaz, I am, 

and do you know whare hig cell was? 

“Yes, sir, he was in one north fourteen, right next = ° 

all right, sir. Yow, 4id Jy. Evans cone to you with 

Yes, sir, he sent a note and said he would like to 

Rt Beford> we get into that, I think that 

be hearsay. If he has Mr. Evans, that would be the 

MR. PARKER: I don't intend to get into anything that 

i Ld m
 < [W]
 

4 w”
 

“
 (Py Mr. Parker) -And did you talk to M 

Yee, wir. 

Ho, 23ip, he didn't ash ne for any. 

All rioht, low, dia Detective Jowers and Detective 

cut te the jail and get with you on or about September 

 



  

A Yes, sir, that would be about two weeks 

thing like that. 

Q And what was the purpose of that visit? 

A They came out to check the locations and 

they could talk from one floor to the next floor and 

other distinctly. 

0 Did you take part in that demonstraticn? 

PY Nec, air, : 

pi o what FATS did you take pimes in tt? 

A I was standing downstairs with Setective 

an Jeo. tachnician, and 

ancther officer and 

s} Did you talk 

A Yo, sir. 

hear them talking. 

8] Did you hear 

Yas, ‘sir, 

Q -- while iyvou 

A Yes, air, 

C How about the 

A X88, sir, you 

taliing lnithar 

2 FA oa 
toesyy Vel J AGU LT 

oy es Pol] 
BBY A Y I 

ig LX 

opin 

Detective 

I was standing © 

were 

Sowers went ugstai 

talked from one floor to 

utside the cel 
AN 

individual upstairs tal 

Gownstalrs? 

nortl next door, one A 20 1 

- PRIAE NI To GLE HG BEE 7s 
can stand inside it and hn 

3 RE Ba Aosta now that can be done f exvlain 

cells 

Sard 

are divided with 

that we have a deor 

| g
O]
 = 

Q 

yh 
vit 

3Z 

near «ach 

the other, 

1 and I could 

king —-— 

fourteen? 

anvone 

sir? 

I at 

to, it's open 

 



  

—
—
—
 

on the inside completely fron the roof to the ficor, that is, 

that is there for the plumbing, purposes of the plunbing and 

where you can have easy access to work in it, and if you talk 

just like talking into 

' A TI, Ee Serie 3 
HE. PARKER: Your witness, 

Tat MRS Yah TAR MT 0 
ROSS-EXAMINATION @ 

  

BY {R. TURNER: ""«b § : £58 i Fen 

Q Well, this test that was perforined, what was the 

purpose of it? ? 

A “he purpose was to see 1£ you could hear sorebody 

from one floor to another, 

0 Well, wouldn't that denend on what tone of voice 

they were using? 

A They weren't using loud tones, sir, and the jail 

during the daytice 1s very nclsy. > 

Q What I an saying is, tinat was supposed to re-create 

conditions on another day, is that correct? 

pA No, that was just to see 1f they could hear each 

other, 

£3 Ckay. But in that circuastance, that test you ran, 

what does that conpare to, with -- what is vour control for tpat \ 
- 

A To gee if someone in anotlier cell could hear someone 

talking {rom one flour to the other iflcor. 

 



  

—
—
—
 

Q Okay. but wouldn't that have to do with conditions 

that existed at the jall at any time any conversations vere belng 

made? 

A I would say that the tests we run were under the 

worst conditions during the busiest time when the most noise is, 

and you can hear each other very distinctly. 

Q Do you know what the conditions were on any cther day 

any conversations were supposed to have been nade? 

A Ko, sir. 

Q How do you know the conditicns under which you all 

could hear each other were the seme as any other occasions on 

Other days? 

A Because at the time of day we did it was the time of 

day all the televisions are runnin, all the clean-up crews are 

there and the doors opening and shutting and geople coming in and 

out, and in other conditions and at other times Worinu the day 

which is not as busy as those hours, the jail 1s a whole lot 

quieter, 

u In terms of any conversation that might have cceurred 

before, you don't Know what any conditions were on that date, do 

A 10, sir, I wasn't there. 

$) All you can talk about 13 the test with the officers, 

ny
 

<<
 

[pv
 

[4]
 

- [41
] 

po
te

 
[a

 

. 

-864- 

 



  

By 

oR,
 

MITITINT ITY 
TURN Lang 

yy ST 
MKe PARK 

Ts nile 
isdN 

OF 

being first duly sworn, was 

of A rs UI 

Q 

A 

PARED: 

out 

and 

About three 

All right, 

Yes, sir, 

ang what ty 

rorgery, 

Forgery? 

Yes, sir. 

  

Thank you. 

Hay this witness be excused? 

Yes, sir, he nay. 

Call your next witness. 

Call Offie Cene Lvans., 

FIE GERE LVANS, 

Wen wraminas ang testified as follous: 

RECY EXAMINATION ia 

you give us your naae? 

Evans, 

where are you living at the present time? 

Atlanta Federal Venitentiary. 

a have you been there, sir? 

montis, 

sir. Are you serving a sentence out there? 

’e OL sentenct are you serving? 

you get that for? 

 



  

Q Cbvicusly then that was a Federal sentence, is that 

correct? 

A That's right. 

Q Sir, were you convicted back in 1953 in Fulton County 

for burglary? 

A Yeah 

¢ Do you recall getting a three to {ive year sentence 

spout Of thet?  ..o.... wii LENE 

A That's right, 

C Sir, do~you recall getting convicted for larceny fron 

the house in Fulton County in 1855? 

A Right. 

Q Do you remember getting twleve month 

‘of that? ak 

pe Yes, sir, 

Q Sir, do you renenber getting convicted 

County in 1835 for carrying a concealed 

pistol without a license? 

weapen and 

sentence out 

in Fulton 

A Yes, sir, a, a 

Q Do you Xnovw waat type of sentence 4Ot on that? 

A Twelve nontns., 

G Indali? 

A Yes, zir, 

v Sir, do you remeaber getting convicted for burglary 

in 1961 in Fulton County? 

 



  

#0, sir, it wasn't revoked, 

Q LC you also remember getting convieted for burlary 

and forgery in Fulton County in 19627? : roa 

A Yeah, A 

0 Ypid you get convicted for theft from the United 

Status mall in atlanta in 19672 

A Yes, sir. 

Q Now, during July of 1972, whare were vou, sir? 

A Cut to the Fulton County Jail, 

Q And what were you doing out there, sir? 

A I had en incident at the Halfway House . 

8] Sir? 

A I was at the Ilalfway House and I had an incijent 

out there and they took me out to the jail. 

0 Tne idalfway douse, is that the Federal Balivay 

ifouse? 

A Yan, Sir, 

0 liere vou charged vith escaue? 

A Sir? 

0 viere you charged with escape? 

Yeah, 

Bid you get probaticn 

Yeeh, 

Pid your probation -- was vour » 

=367 

” 

on that? 

- + 
» Or ~=2y Pid 4 Ch Yevored obati 

 



  

Jail? 

today? 

A 

0; 

correct 

A 

escape, 

went wrong out there go I just went hone. 
x. 

wien 1 

coming ~ 

Ye Bil. = 

And were vou later arrested? 

Yen, sir, 

And 1s that when you were taken to the Fulton Count 

™T™at's right, 

Mr. Evans, have I promised you anything for testify 

No, sir, you ain't, 

~. ¥ou do have an escape charge still pending, is that 

2 
L) 

8, Ya Silke 

wnat the peoples 

called the 

in, he placed me on escape charge and 

out there 

I've got one, but 

tell 

wasn't no use of me coming back, and I 

“and he come and wicked me up, 

LC Are you hoping that perhaps 

for that euscaze? 

A deah, I hope I dontt,ibut I 

me, they ain't yeing to charge me witu 

Q Have you asked me to try to 

get charged with escape? 

& No, sir. 

~-368~ 

really it ain't no 

me, because somethin +2) 

stayed home and at 

told me there 

Just staved on at hone 

you won't be prosecuted 

don't -- what they tell 

escape po wav, 

fix 1t so you wouldn't 

nan and told aim that I would be a little late 

 



  

notice 

conversations with 

££)
 

0 

2
 

A 

Q 

—
—
—
 

anyone in 

Right there. 

What is he wearing? 

A white shirt, 

Uo you know his name? 

Warren Mcllesky. 

511 vight, siv. Bow, did 

him? 

Yos, sir. 

you ever 

Have I told you Tiwould try to fix it for you? 

No, sir. 

Now, while you were at the Pulton County Jail did you 

the cell next to you? 

Yes, sir. 

Did you ever see that person? 

Yes, sir, I have geen nim, = 

. Do you see him in the courtroom today? 3 FRAT = 

Yoo, sir. 

vihere is he sitting? 

Carry on any 

HOw about any other individual in that area, did you 

cn other conversations? 

A Yeah, with Bernard Dupree. 

Lo you know hia personally? 

Yen, sir. 

And wnere was he? 

the cell he was upstairs, in = 3 i 2]
 

~ C < Lp J [1
 

» 

 



  

QO All right, sir. Now, did you ever enter into 

conversation with ir. MNcClesky as to who shot a police officer? 

A ¥en, siv, 

» ever tell you anything? 

A We talked around there about two or thre days and 

“we ‘got into = ‘conversation about Ben, and so he =-- of course, I 

told hin that I knowed Ben real good, and that we uzed to be 

together a lot, and 1 teld him that I had been seeing fen since 

that robbery, but I hadn't seen hin, you know, so we kept on 

talking, and so we just kept talking until he started talking 

about how the robbery went down and how it was, and he told ae, 

said he went in and checked the place out a few days before tliey 

» 
robbed it, but then they went Db to ¥oh iit. fu

 Q oe
 

Q Did he say anything abcut who shot the officer? 

A He sald he was in there when the police come in, but L J 

like the police wesn't expecting no robber, but sald after he 

seen the pelice cerme in and he was heading towards the other 

tiiree, what was in the court -- I peen in the place taking the 

roovery off, he said that he couldn't stand to see hin go down 

there, and I think the police looked around and seen hin and 

he said, "Hel," or something, and he had to -- it was hin or 

them one, and sald that he had to shoot. 

Q Lid you all ever have any conversation about any 

-87ti—- 

 



  

~
~
 

make-up kit? 

A Ycali. 

Could 

A Yeah. lie 

went in just his reqgul 

take the robbery orf he 

a:imaka~un kit, 

Did! 

> 

said that 

Sg
 

[4]
 

fo
 

bo
 

LS
 OG 

op 
T
 

C £.
 

| 
al

 

¥ 
C
a
 

8 go
 

$0 
4 

"J
 

you tell us about that? 

when he first went there, he 

fig sald when he went back to 

up Kind of slightly with 

Pid he toll F YOu wiuo Harry was? 

Ben's girl friend. 

Did you and ir. McClesxky have any conve 

getting Killed? 

rsation about 

o™
 

if Ben got killed 

lighter on 

that woulc 

Yeah, he cald him and’ Pupree was talking and 
“. 

1 
De 

he said 

pretty good, it would be nore 

CG Lid you have any conversations with Hr. tcClesky 

about other officers that mignt have been there? 

A Yeah, He said it would nave been tie sane tiling 

  

if it bad been a dozen of them, he would have had to try to 

shauct hie wvayeout, 

KR, :: Jour witness. 

CROSE-ERAM ITUATION 

BY HR. TURNEN: 

Pa
y LUw Rally yeals nave you spent in jall 

-571- 

 



  

be I don't exactly know. 

It's been that long? 

A Yeah, you can say that, 

Q Are you a prefessional crininal? 

A Well, I wouldn't say it, because I haven't did no -- 

I haven't did no terrible crimes or nothing like that. 

Q You don't call burglary a terrivle crire? 

= A NO. hat Rind of burglary it was, sec, it Sas a ji 

Qifferent kind. I ain't never did nc kind of burglary where it 

caused nobody to yet in trouble or 

look at the record and tell that. 

Q 

renember, so a 

- 

important, didn't they? 

parently somebody thought 

nothing like that, you can 

You say you have gotten so much time you can't 

these buraclaries > 
oJ 

A Anvway, I teld what I knowed about the burglaries 

and all of that. It ain't going to change different, if I done 

stayed in jail fifty or sixty years, I have done said what I 

got to tell. 

0 Why did you inform on what vou overheard? 

A The deputy out tnere heard us talking, 

Q Which deputy? 

A I don't know his nane, put I know him if I seen hin, 

the way he spoke to ine, he knowed that I had ueen essing with 

Ben in the street silce that come off, so that's why I did that. 

GC “oe Jdenuty approached vou, ie theviright? 

 



  

A 

~ [>
 

bunch. 

Q 

A 

svt hisgelf, 

Q 

- 
A 

of Jan 

A 

on two me 

a 

. — 

Q 

us talking about 

What did he hear vou all se 
- 

 % Li
 What I ju alking about, just a whole 

Was that the deputy who just walked out of here? 

ro, fo t he probably heard somethi wasn him, ba ny 

< IA (3 os oe Eo TN = £00. a FE RF SE RS eg TE So REE pei rR 

conversation made to you cn? 

‘Around the =-- ath the 9th of the month © r 

wary -='I nean July, 

Okay. Now, you all were 1n 1]
 olitery, weren't you? 

you doing in solitary? Vinat were 

I was put In there wien I first came fran the stree 

put me in there straight from the street. 

low, do vou know how long Hr. McClaesky had been in 

confinement? 

He said he had been in there about a month or going 

nthse 

Tell us about solitary confinement; what is that 

Pin Course You mean at the Fulton Ceunty Jail? 

{By “vr. Turner} At the Polton County Jail? 

Just single cells side by side. 

the cells, 

-573- 

  

like?



    

oe
 

fo
l 

more than you can just talk to one ancther. 

Q 

one LJ 

About five feet wide and eight 

HOW many people to eacin cell? 

Opan on the front. One to eac 

What Kind of privileges do you = have in solitary? 

You don't have no kind of privileyes in there, no 

You all talk a lot in solitary, 

Ap Yeah, Fn tein adnan a 

Talk about everything, don't you? 

  

Yeah, we talk about quite a few things. 

I mean, what else is there to do? 

Nothing but talking, or you just keep your mouth shut 

You Qo one or the ather, right? 

Yeah. 

You say you know ir. Ben Wright, 

Yeah. 

is that correct? 

vhere do you know him from; wnat does your realtionship 

go back to with iim? 

I kKnowed Ben from the penitentiary and in the street 

seeing nim, not to run with hin or nothing like that. 

You never committed any 

Lio » 

What about burglaries? 

Lo, I ain't never dia notning with him. 

-87i- 

 



  

e
e
 
—
—
,
 w

on 

Sut you are just good friends? 

Yeah, we are. 

Were vou all running buddies? 

T+ Fe and hin were just what you call walking partners 

in Reidsville. As far as running in the street =—- 

each other, 

CA 

Q 

ko, net all the tine, 

How much? 

I'd say about eight hours a day, something like that. 

What? 

About eight hours a day on the working =—- 

, I . N . N 

About elgihit hours a day you all would spend with 

is that what you are saving? 

1G le 

How long did you spend eight hours a day with 

dr. Wright winile you all were in Reidsville? 

About three vears. 

50 you Jot a chance to know ir. Zen YUrigat Guite 

As far as in the penitentiary I did. 

Did you all becone friends? 

I woulan't call that no friend. 

You spent elght hours a day for three years and 

-575- 

 



  

are not friends? 

A You got to do it with somebody. You can't be friends 

with everybody. You know how the penitentiary is, you have to 

be with somebody all the tire. 

Q How, vou say Mr. McClesky told you that 

out the place a few days before? 

he had chec 

A Yeah, 

CL A LO that? St ig 

A Yeali. 

GQ SAY right. Now, where was We puree while thes 

conversations were going on? 

A I don't know, because I couldn't see him, he was 

upstairs. 

0 Okay. How, how many gays did he say he had checked 

it out before? 

A I don't know, he didn't say exactly. 

a4 re BUR voll "aye positive that ig what he said to vou? 

A Yeah. 

ry Bo doubt? 

A Thatls right. 

Q Cray. Row, tell ne about the nake-up rit. 

Just told you wiat he said avout the 

QO Tell me again. 

A That's all he sald about it: 

j what? 

Lend 
Ea a 

 



  

A He sald when he went in and chiecked it out he was 

in his regular disguise, that when he went back that is when he 

had done had a sketch with a make-up kit. 

Q viel he went baci. When did he sav he went back? 

A Chi, when the robbery cone off. 

Q 50 on tue day of the robbery he was nade up? 

A That's what he told me. Whether he was telling the 
JE PSE ETE ART Rare v res anwar an ng : rer E Zh PETE J La TR XE Pe EEPOITE A ~~ eRe XA - 

truth or what, that's what he is saying. Len pene 

Q Are you saying he was lying tc you, now? 

A I doen't know what he was doing, I am telling you what 

he said. 

Cc He said Mary Jenkins made hin up, is that right? 

a Yealie 

’ . N. 

Q How 4id he say he was made up? 

A Said he had pimples in his face kind of like he had 

C “mall me about that. 

A 1 just told vou. 

Q Did he describe what else he had on? 

A Said he had a scer fixed, I think he had a scar on 

hig: faco, slicnhu., 

{ Anything else? 

A No, hothing about that. 

GO What about glasses? 

A WG, he didn't say nothing about no glasses. 

-3777 = 

 



  

what about hat? 

A Huli-uh [negative]. 

Lo; when 4id he say Mary Jenkins wade him up? 

A le didn't say when, but I guess it was the same day 

wnen the robbery come off, 

Q Okay. You didn't asi hin when? 

A ituh=-uh [negative]. 

L4., | what? a OE to 
A NO 

& Okay. Now, what about if Ben got killed it would be 

lighter, how did that core about? 

A Hin and Dupree was talking about it. 

Q What else did they say? 

A ile just sald it would De -- he said that he believed 
AN 

~— Dupree said he believed that when they catch Ben they was goin 

to Rill hin, and ho said that if they do that, it will Le a littl 

more better on us if they would, 

¥ In other words, they weren't suyyesting that they 

saould Xill nim then, is that 1t? Hho were they saving should 

Kill hin? 

A Whouver run Cowvn on hin. 

C WhO wes ygOlny to run down on hin? 

A Wasth't nobody locking for hin but tne police, was 

there? 

Q HOw, what 1s this about shooting his way cut? 

-375~ 

e 

 



  

A He said he didn't have no other choice, he would 

have had to shoot his way out if it had been a dozen of then ing 

lv, How, you say the deputy overheard this, right? $x E - Jor 

A He heard us talking about it and everybody in jail 

knowed about Ben, so that is how it coue about, and that is why 

I am here rignt now, 

0 Ckay. 50 the deputy cate up to you and said he 

“wanted you to tell what you all were == did he ask you == 

A Yeah, he asked me what did I know about it, about 

what was going on, said it sounded like a conspiracy. 

¢ What did you tell hin? 

A I told hir what we was talking about. ‘He said dig 

I want hin to call Homicide, would I tell then that. 'T said 

yeah, 30 he called then, A 

Q What were you expecting to get cut of that? X r o 

CA Just like that I had been talking to Ben and some- 

thing like that. 

0 Had they coneiderad you as a suspect in this? 

A It could have been led me to one. 

€ What would have led to you being a suspect? 

A Laying around talking with a man about something or 

Other that went down like that. 

Q How would that make you & suspect? 

A It could make me a conspirator, coulun't jit? 

6) 80 in sbort, you were interested in covering up your 

~62C- 

 



  

Ccwn rear end at that point, is that right? 

he 
2 

Yeah. 

5 So you cooperated with the deputy in order that you 

wouldn't have any hassle in this, is that right? 

A Yeah, you can say that. 

G Bow good a friend are vou -- do vou know Harv Y Y Y 

Jenking? 

hie A Ho, oY don't know her, TRANS R Yaad Ser 21% FO i Ts HEH uk 

4, ticuld you like to help Mr. Wright? 

A I an just -- whoever it helps or whoever it harms, 

I an telling you what I know, I ain't got no pity for nobody on 

nothing like that. I am telling you straiyht what I heard, but 

as far as helping Ben, it don't nake no difference, and whether 

it don't help nobody, it Aonte wie no difference to nc. 

Q You said you would not like to help your friend, 

1 it straight, whoever: it 

helzs, it helps; whoever It harms, it harms, 

C -tlave you seen Mr. Wright out at the Fulton County b 3 7 

YY
 hen did you get noved? 

5 Sucnust the ldthy 

QO August the 14th? 

A Yeali. 

el ath | 
baad ¥ 51 Bc 

 



  

~ 
~~ And hadn't been 4 

I don't think he hag, 

Bave you communicated with bh 

[Na 
NO oe 

1%; Chay. ow, were you attempt 

charges altered or at least worked out, 

.testinoay to be helpful in that? dant 

+ 
[8 > n verrying about the ~~ 

ting 

autuared then, or Jo you 

in? 

LO get your escape 

were you expecting veur 

I wouldn't esc charge. 

have needed this fOr that charge, there wasn't no escape charge. 

O Icu had left without rermissicn -- 

A Yealla 

@. ~~ in that escape? 

A But you don't %nos, Low it went Jown, nut I do, and 

they Co. 

¢] Those charges are still pending against you, aren't 

thay? 

A Yeah, the charge iz pending egainst ne, but I ain't 

been before no Grand Jury or nothing like that, not yet. 

0 #11 of that comes after ‘thie cuswe, ie that right? 

A If they prosecute, it do, because it's been four 

months and I ain't heard notiaing froa it yet. 

9; iow, you zay tiat you con't want to get prosccuted 

for that, riunz? 

A 70, I con't want to yet prosecuted for ic. 

5 Bld 
A 

 



  

ne ha 

from 

be be 

evide 

~~
 

HR. TURNEF: Ro further questions. ~~ 

THE COURT: You may be excuzed. 

HX. PARKLRA: Zour Honor, I have one witness, but 

sn't arrived yet, and then I will rest. He is coming 

Povider ot
 Springs so it may be some tine. 

THE COURLY: Do you have any idea how long it will 

TTC TL Ths EA uy Sic AY a 

[iIR. PARKER: Vell, he has been on the way apparent 

/ minutes, but he has to get somebody to keep the 

for him. 

THE COUR, 

FAN 
ncg: ar 

+
 

THE COURT: All right. Let's take a brief recess, 

ladies and gentlemen, and not go to lunch guite yet so i 

: Well, I believe -- do you have any «or 

  

D 

f 

the witness gets here we can be sure to et him on and then 

we can 90 to lunch, 

would 

unders 

-53- 

(viher=aupon, the jury retired from the courtroon, and 

ort recese vas had.) 

THE COURT: All right, gentlemen, are YOU ready to 

iil, TUKNEk: Your honor, vefore the Jury comes in, I 

have "a notion to make on the next witnoss, As I 

stand the next witnaoss, it will be the prourieror, or 

 



  

o
y
 

anyway, Mr. I 

Cry 

~
~
 

2 believe, of Powder 

Springs, Once again, I would make the sane enjection 

I have made before. At most -- well, Mr. Kiessling's 

testimony is avout a separate matter and a separate 

robbery entirely. Unless there is some intent to show 

plan or notive, there has been no basis established in 

the Powder Springs robbery, it can do nothing except 

inflame the minds of the jury, 

what the defendant is on trial 

it has nothing to dao with 

for today. Nattey of fact, 

it should be & separate trial altogether. 

THE COURT: fhe defendant has put his character in 

issue now, 

Hi, PARBEXERS Ho not only did that, but he contested 

the validity of n direct examination 

himself, he denied any participetion in a robbery in Powder 

Springs. 

MR. TURNER: That gets down to so what, that dis a 

separate and distinct charge altogether Hhether he 

committed a robbery in Powder Eprings has nothing to do with 

this. 

I would say this. If the Court does admit the evi- 

dence, YT would ask the Court for instructions that this is 

not evicence of hin committing & robbery in Powder Springs 

but for impeachment, 

MR, PARKLR: That is correct, impeachient only. 

 



  

n
r
 

—
 

for the 

ov)
 fw] ARs TURIER: On that type of basis, I still object v, 

would like my objecticn to be noted for the record. 

TdE COURT: Every single ~
 sbjection that has been 

in any case I have tried has been noted on the record 

MR, TURKER: You can't be too cautious, Judaoe. 

THE COURT: All right. sSring the jury in, 

(Whereupon, the jury returned to the courtroont, ‘after 

the following proczedings were had.) 

» 4 a rNve, ais 1% » Ih Re Nea 4 Te: Tye Pd vm 2 rw MPs PARKUK: Tie State calls Mr. Hiessli 15 0 

THE COURY: 

  

we evidence since the defendant has rested, is offered 

purpose of rebuttal for inpeachment wurnoses, to iy by AN 

JS 
Fos 

test the -- for impeachment purposes, about which I will 

give you a charge at the end of the trial It ‘Is tO bo 

accepted for that purpose and for no ot y v] - 
-y

 

[0]
 

[a
 3 " ’ 5 H , 

0
 

. 

Vhether it does or does not impeach any witness is for 

you to decide. The Court makes no intimation in that 

rh
 

duly sworn, was ax: 

  

STII IN YAS TOON LT rs 
DIREC EXAATINALVIGCH 

I» te 

-3 05