Clemency Request - Attorney's Working Files Vol. 3 of 5

    Case Files: Mc Cle key C031 5 /- ba #9 urd: Clamps ) I st: IM Pin Wor Ling ty (2 of 3 72) 

   



    

   

 
 

  

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NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

99 Hudson Street © New York, N.Y. 10013 e (212) 219-1900 

Contributions are deductible for U. S. income tax purposes  



   National Office 

A A Suite 1600 

NAACP LEGAL DEFENSE 99 Hudson Street 

AND EDUCATIONAL FUND, INC. New York, N.Y. 10013 (212) 219-1900 Fax: (212) 226-7592 

SURVEY 

Dear Friend, 

As you know, the NAACP Legal Defense Fund, has an interest in death 
penalty cases and appeals. We need your assistance. Please take a few 
minutes to fill out this brief survey. Return to Karima Wicks at the 
address listed above on this stationery. 

your name/title Aes \©. Sua da. — Cepvq Puscic Pefe~nez 

PUBL Oe€ernacnr - Proven Seco 

AoOTrEss SH iinTTHv ST. 

PO Voy “H6003 

today’s date Weve, wa ono 

number of clients you have or have had on death row 
G 

1t0 5 Gro 10% 10to15 over 15 

PART | 

    
1) Have any of your clients ever won relief twice under federal habeas 
corpus review on the merits? 

yes (if yes, answer question 1a) no > Gf no, skip to question 2) 

1a) Were any of those cases then overturned on procedural grounds? 

yes no 
  

PART II 

2) In your experience, has it ever happened that two or more jurors in a 
capital case indicated after sentencing that their verdict would have 
been different if they had known about evidence hidden by the state? 

  ros — 
COMMENTS: 

Regional Offices 

Contributions are The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part Suite 301 Suite 208 

deductible for U.S. of the National Association for the Advancement of Colored People 1275 K Street, NW 315 West Ninth Street 
income tax purposes. (NAACP) although LDF was founded by the NAACP and shares its Washington, DC 20005 Los Angeles, CA 90015 

commitment to equal rights. LDF has had for over 30 years a separate (202) 682-1300 (213) 624-2405 
Board, program, staff, office and budget. Fax: (202) 682-1312 Fax: (213) 624-0075 

 



  

     il i 
National Office 

Suite 1600 

NAACP LEGAL DEFENSE 99 Hudson Street 

AND EDUCATIONAL FUND, INC. New York, N.Y. 10013 (212) 219-1900 Fax: (212) 226-7592 

SURVEY 

Dear Friend, 

As you know, the NAACP Legal Defense Fund, has an interest in death 
penalty cases and appeals. We need your assistance. Please take a few 
minutes to fill out this brief survey. Return to Karima Wicks at the 
address listed above on this stationery. 

; pr SPECIAL ConalEL, 
your name/title Reutieh Thon Ls CLATE, MEAGHER 4 Flom 

address 414 TH AVENUE ; Nak, A o0aa-3297 
today’s date ¢ ( ( [a1 

number of clients you have or have had on death row     11096 510 10 \/ 10 to 15 over 15 

PART | 

1) Have any of your clients ever won relief twice under federal habeas 
corpus review on the merits? 

yes (if yes, answer question 1a) no_\/ (if no, skip to question 2) 

la) Were any of those cases then overturned on procedural grounds? 

yes no 
  

PART II 

2) In your experience, has it ever happened that two or more jurors in a 
capital case indicated after sentencing that their verdict would have 
been different if they had known about evidence hidden by the state? 

a 
  

yes 

COMMENTS: 

Regional Offices 

Contributions are The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part Suite 301 Suite 208 
deductible for U.S. of the National Association for the Advancement of Colored People 1275 K Street, NW 315 West Ninth Street 
income tax purposes. (NAACP) although LDF was founded by the NAACP and shares its Washington, DC 20005 Los Angeles, CA 90015 

commitment to equal rights. LDF has had for over 30 years a separate (202) 682-1300 (213) 624-2405 
Board, program, staff, office and budget. Fax: (202) 682-1312 Fax: (213) 624-0075 

 



   National Office 

A A Suite 1600 

NAACP LEGAL DEFENSE 99 Hudson Street 

AND EDUCATIONAL FUND, INC. New York, N.Y. 10013 (212) 219-1900 Fax: (212) 226-7592 

SURVEY 

Dear Friend, 

As you know, the NAACP Legal Defense Fund, has an interest in death 
penalty cases and appeals. We need your assistance. Please take a few 
minutes to fill out this brief survey. Return to Karima Wicks at the 
address listed above on this stationery. 

your name/title 1B Of  1X[ACS op) Cod County nd 

AdOress Dod) Arab c Lh y 26 50S. Of ~ Cap Sy J 

mr, Yi Joana Corse Coy Aen A 

Gop today’s a 

number of i 0 have or have had on death row 

    1105 510 10 10 to 15 over 5X 

PART | 

1) Have any of your clients ever won relief twice under federal habeas 
corpus review on the merits? 

yes (if yes, answer question la) no X (if no, skip to question 2) 

la) Were any of those cases then overturned on procedural grounds? 

yes no 
  

PART II 

2) In your experience, has it ever happened that two or more jurors in a 
capital case indicated after sentencing that their verdict would have 
been different if they had known about evidence hidden by the state? 

X 
yes no_ 

COMMENTS: 

Regional Offices 

Contributions are The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part Suite 301 Suite 208 
deductible for U.S. of the National Association for the Advancement of Colored People 1275 K Street, NW 315 West Ninth Street 
income tax purposes. (NAACP) although LDF was founded by the NAACP and shares its Washington, DC 20005 Los Angeles, CA 90015 

commitment to equal rights. LDF has had for over 30 years a separate (202) 682-1300 (213) 624-2405 
Board, program, staff, office and budget. Fax: (202) 682-1312 Fax: (213) 624-0075 

7) 

 



ll i 

    

NAACP LEGAL DEFENSE 

AND EDUCATIONAL FUND, INC. 

National Office 

Suite 1600 

99 Hudson Street 

New York, N.Y. 10013 

SURVEY 

Dear Friend, 

(212) 219-1900 Fax: (212) 226-7592 

As you know, the NAACP Legal Defense Fund, has an interest in death 
penalty cases and appeals. We need your assistance. 
minutes to fill out this brief survey. Return to Karima Wicks at the 
address listed above on this stationery. 

    

your name/title  —im ey [(nSen) 

AOO1EsSs | X 53 Vili / wo ice fe 

today’s date  </ /s | 

Please take a few 

ac fin Mh dose GC &, 

Niles T/ 6064s 

number of clients you have or have had on death row 

1t09§ DC §t0 10 10 to 1§ over 15 

1) Have any of your clients ever won relief twice under federal habeas 
corpus review on the merits? 

yes (if yes, answer question 1a) 

la) Were any of those cases then overturned on procedural grounds? 

yes 
  

PART II 

no [X (if no, skip to question 2) 

no 

2) In your experience, has it ever happened that two or more jurors in a 
capital case indicated after sentencing that their verdict would have 
been different if they had known about evidence hidden by the state? 

yes_X 

COMMENTS: 

Contributions are 

deductible for U.S. 
income tax purposes. 

The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part 
of the National Association for the Advancement of Colored People 
(NAACP) although LDF was founded by the NAACP and shares its 
commitment to equal rights. LDF has had for over 30 years a separate 
Board, program, staff, office and budget. 

no 

Regional Offices 

Suite 301 

1275 K Street, NW 

Washington, DC 20005 

(202) 682-1300 
Fax: (202) 682-1312 

Suite 208 

315 West Ninth Street 

Los Angeles, CA 90015 
(213) 624-2405 
Fax: (213) 624-0075 

 



      A 
National Office 

Suite 1600 

NAACP LEGAL DEFENSE 99 Hudson Street 

AND EDUCATIONAL FUND, INC. New York, N.Y. 10013 (212) 219-1900 Fax: (212) 226-7592 

SURVEY 

Dear Friend, 

As you know, the NAACP Legal Defense Fund, has an interest in death 
penalty cases and appeals. We need your assistance. Please take a few 
minutes to fill out this brief survey. Return to Karima Wicks at the 
address listed above on this stationery. ( Cg 

Xen MN Of 3 Phe 3 
your name/title Rob (Maller Hes. Co. Yoda 

address \\\\ = & Roe, Seale AOR ANON 

today’s date Nog 1 YA) 

number of clients you have or have had on death row 

1105 5 to 10 10 to 15 88 over 15_} 

PART i 

    
1) Have any of your clients ever won relief twice under federal habeas 
corpus review on the merits? 

yes (if yes, answer question 1a) no_X__ Gf no, skip to question 2) 

la) Were any of those cases then overturned on procedural grounds? 

yes no... 

PART II 

2) In your experience, has it ever happened that two or more jurors in a 
capital case indicated after sentencing that their verdict would have 
been different if they had known about evidence hidden by the state? 

yes A no A 

COMMENTS: 

~~ 

   

] 

ANY VU AN Y IN, le e\ A A ‘ b i Re y » OR 

2 “\ ty € (& NO © OL Ves elo er = 

  

Regional Offices 

Contributions are The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part Suite 301 Suite 208 

deductible for U.S. of the National Association for the Advancement of Colored People 1275 K Street, NW 315 West Ninth Street 
income tax purposes. (NAACP) although LDF was founded by the NAACP and shares its Washington, DC 20005 Los Angeles, CA 90015 

commitment to equal rights. LDF has had for over 30 years a separate (202) 682-1300 (213) 624-2405 
Board, program, staff, office and budget. Fax: (202) 682-1312 Fax: (213) 624-0075 

 



   National Office 

A A Suite 1600 

NAACP LEGAL DEFENSE 99 Hudson Street 

AND EDUCATIONAL FUND, INC. New York, N.Y. 10013 (212) 219-1900 Fax: (212) 226-7592 

SURVEY 

Dear Friend, 

As you know, the NAACP Legal Defense Fund, has an interest in death 
penalty cases and appeals. We need your assistance. Please take a few 
minutes to fill out this brief survey. Return to Karima Wicks at the 
address listed above on this stationery. 

your name/title Michael Millman : Exeeo five Direct, CAP 

adoress | EeKer Place, 4% Fler, Lan Frncigco, La. 94105 

today’s date 8 [o qi 

number of clients you have or have had on death row     1105 5 to 10 10 10 15 over 15 

PART I 

1) Have any of your clients ever won relief twice under federal habeas 
corpus review on the merits? 

yes (if yes, answer question 1a) no nd (if no, skip to question 2) 

la) Were any of those cases then overturned on procedural grounds? 

yes no... 

PART Ii 

2) In your experience, has it ever happened that two or more jurors in a 
capital case indicated after sentencing that their verdict would have 
been different if they had known about evidence hidden by the state? 

no_v   

yes 

COMMENTS: 

Regional Offices 

Contributions are The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part Suite 301 Suite 208 
deductible for U.S. of the National Association for the Advancement of Colored People 1275 K Street, NW 315 West Ninth Street 
income tax purposes. (NAACP) although LDF was founded by the NAACP and shares its Washington, DC 20005 Los Angeles, CA 90015 

commitment to equal rights. LDF has had for over 30 years a separate (202) 682-1300 (213) 624-2405 
Board, program, staff, office and budget. Fax: (202) 682-1312 Fax: (213) 624-0075 

 



  

     il i 
National Office 

Suite 1600 

NAACP LEGAL DEFENSE 99 Hudson Street 

AND EDUCATIONAL FUND, INC. New York, N.Y. 10013 (212) 219-1900 Fax: (212) 226-7592 

SURVEY 

Dear Friend, 

As you know, the NAACP Legal Defense Fund, has an interest in death 
penalty cases and appeals. We need your assistance. Please take a few 
minutes to fill out this brief survey. Return to Karima Wicks at the 
address listed above on this stationery. 

your name/title Tn net o Reccem ar C hie} Q prec Dept 
Jevoda rade FU C X{em da 

CE AJ. Corr St. Sue ROC 

today’s date an Son Ci y AN $970 
Cluogust 1, | 94 ( k 

number of clients you have or have had on death row 

AOOress 

    1tos X S$to10 10 to 15 over 15 

PART | 

1) Have any of your clients ever won relief twice under federal habeas 
corpus review on the merits? 

yes (if yes, answer question la) no y= (if no, skip to question 2) 

la) Were any of those cases then overturned on procedural grounds? 

yes no 
  

PART II 

2) In your experience, has it ever happened that two or more jurors in a 
capital case indicated after sentencing that their verdict would have 
been different if they had known about evidence hidden by the state? 

  

yes no_ 

COMMENTS: 

Regional Offices 

Contributions are The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part Suite 301 Suite 208 
deductible for U.S. of the National Association for the Advancement of Colored People 1275 K Street, NW 315 West Ninth Street 
income tax purposes. (NAACP) although LDF was founded by the NAACP and shares its Washington, DC 20005 Los Angeles, CA 90015 

commitment to equal rights. LDF has had for over 30 years a separate (202) 682-1300 (213) 624-2405 
Board, program, staff, office and budget. Fax: (202) 682-1312 Fax: (213) 624-0075 

 



   il i 
National Office 

Suite 1600 

NAACP LEGAL DEFENSE 99 Hudson Street 

AND EDUCATIONAL FUND, INC. New York, N.Y. 10013 (212) 219-1900 Fax: (212) 226-7592 

SURVEY 

Dear Friend, 

As you know, the NAACP Legal Defense Fund, has an interest in death 
penalty cases and appeals. We need your assistance. Please take a few 
minutes to fill out this brief survey. Return to Karima Wicks at the 
address listed above on this gg 

eo) 
your name/title [Onan te “ K. J Pg) D7 

address J 27 Se V 7 sl SYBCRS NV 7 

today’s date +4 fl Yi / 

number of clients you have or have had on death row     1105 §t0 10 X 10 to 15 over 15 

PART I 

1) Have any of your clients ever won relief twice under federal habeas 
corpus review on the merits? “/) D 

yes (if yes, answer question 1a) no (if no, skip to question 2) 

la) Were any of those cases then overturned on procedural grounds? 

node yes 
  

PART II 

2) In your experience, has it ever happened that two or more jurors in a 
capital case indicated after sentencing that their verdict would have 
been different if they had known about evidence hidden by the state? 

  

yes no J’ 

COMMENTS: 

Regional Offices 

Contributions are The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part Suite 301 Suite 208 
deductible for U.S. of the National Association for the Advancement of Colored People 1275 K Street, NW 315 West Ninth Street 
income tax purposes. (NAACP) although LDF was founded by the NAACP and shares its Washington, DC 20005 Los Angeles, CA 90015 

commitment to equal rights. LDF has had for over 30 years a separate (202) 682-1300 (213) 624-2405 
Board, program, staff, office and budget. Fax: (202) 682-1312 Fax: (213) 624-0075 

 



      Ml 
National Office 

Suite 1600 

NAACP LEGAL DEFENSE 99 Hudson Street 

AND EDUCATIONAL FUND, INC. New York, N.Y. 10013 (212) 219-1900 Fax: (212) 226-7592 

SURVEY 

Dear Friend, 

As you know, the NAACP Legal Defense Fund, has an interest in death 
penalty cases and appeals. We need your assistance. Please take a few 
minutes to fill out this brief survey. Return to Karima Wicks at the 
address listed above on this stationery. 4 ot 

Ye Hoven, JURE Be your name/title eis NC ATbo 

address poe Rox 1°10 ICA 

today’s date $= | 9 

number of clients you have or have had on death row 

    1t05 § to 10 10 to 15 over 15 7 

PART | 

1) Have any of your clients ever won relief twice under federal habeas 
corpus review on the merits? 

yes (if yes, answer question la) no / (if no, skip to question 2) 

la) Were any of those cases then overturned on procedural grounds? 

yes no 
  

PART II 

2) In your experience, has it ever happened that two or more jurors in a 
capital case indicated after sentencing that their verdict would have 
been different if they had known about evidence hidden by the state? 

yes no 

COMMENTS: Ji (cA H 
{ 

pale 415 

  

Regional Offices 

Contributions are The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part Suite 301 Suite 208 
deductible for U.S. of the National Association for the Advancement of Colored People 1275 K Street, NW 315 West Ninth Street 
income tax purposes. (NAACP) although LDF was founded by the NAACP and shares its Washington, DC 20005 Los Angeles, CA 90015 

commitment to equal rights. LDF has had for over 30 years a separate (202) 682-1300 (213) 624-2405 
Board, program, staff, office and budget. Fax: (202) 682-1312 Fax: (213) 624-0075 

 



   AL National Office 

Suite 1600 

NAACP LEGAL DEFENSE 99 Hudson Street 

AND EDUCATIONAL FUND, INC. New York, N.Y. 10013 (212) 219-1900 Fax: (212) 226-7592 

SURVEY 

Dear Friend, 

As you know, the NAACP Legal Defense Fund, has an interest in death 
penalty cases and appeals. We need your assistance. Please take a few 
minutes to fill out this brief survey. Return to Karima Wicks at the 
address listed above on this stationery. 

your name/title SONAR PLOT, (Hi fsS win{ i 

NM SQ 05% 4 {9 3 $\ ~ Son foci <3 (J : ( ay “1 

| address 

today’s date b), l4 

number of clients you have or have had on death row     ito§ x 5to 10 10 to 1§ over 15 

PART I 

1) Have any of your clients ever won relief twice under federal habeas 
corpus review on the merits? 

vd 
yes (if yes, answer question 1a) nol (if no, skip to question 2) 

la) Were any of those cases then overturned on procedural grounds? 
<7 

yes no 
  

PART II 

2) In your experience, has it ever happened that two or more jurors in a 
capital case indicated after sentencing that their verdict would have 
been different if they had known about evidence hidden by the state? 

yes no 

COMMENTS: 

Regional Offices 

Contributions are The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part Suite 301 Suite 208 
deductible for U.S. of the National Association for the Advancement of Colored People 1275 K Street, NW 315 West Ninth Street 
income tax purposes. (NAACP) although LDF was founded by the NAACP and shares its Washington, DC 20005 Los Angeles, CA 90015 

commitment to equal rights. LDF has had for over 30 years a separate (202) 682-1300 (213) 624-2405 
Board, program, staff, office and budget. Fax: (202) 682-1312 Fax: (213) 624-0075 

 



  

     National Office 

A A Suite 1600 

NAACP LEGAL DEFENSE 99 Hudson Street 

AND EDUCATIONAL FUND, INC. New York, N.Y. 10013 (212) 219-1900 Fax: (212) 226-7592 

SURVEY 

Dear Friend, 

As you know, the NAACP Legal Defense Fund, has an interest in death 
penalty cases and appeals. We need your assistance. Please take a few 
minutes to fill out this brief survey. Return to Karima Wicks at the 
address listed above on this stationery. 

Michtet PE Ic 
Yiewt sf CASI eld sri) STI UFC (Cy 

cA T¥ro0 

your name/title SCE DER 
Dy yt 7A Ios 

- (7 Sov Soleo SAS IRA CIO address Ho | pv ST 5 /2%G 4 Ce LF >. 

today’s date ¢ _/ 7/ 

number of clients you have or Save had on Seath row     Lh Set FT 3 — ar S29 | (ST 271 wy 7 

1t05§ § to 10 10 to 15 over 15 

PART | 

1) Have any of your clients ever won relief twice under federal habeas 
corpus review on the merits? 

V4 

yes (if yes, answer question la) no X (if no, skip to question 2) 

la) Were any of those cases then overturned on procedural grounds? 

no \ rd 

2) In your experience, has it ever happened that two or more jurors in a 
capital case indicated after sentencing that their verdict would have 
been different if they had known about evidence hidden by the state? 

yes 
  

PART II 

COMMENTS: 

Regional Offices 

Contributions are The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part Suite 301 Suite 208 
deductible for U.S. of the National Association for the Advancement of Colored People 1275 K Street, NW 315 West Ninth Street 
income tax purposes. (NAACP) although LDF was founded by the NAACP and shares its Washington, DC 20005 Los Angeles, CA 90015 

commitment to equal rights. LDF has had for over 30 years a separate (202) 682-1300 (213) 624-2405 
Board, program, staff, office and budget. Fax: (202) 682-1312 Fax: (213) 624-0075 

 



      A 
National Office 

Suite 1600 

NAACP LEGAL DEFENSE 99 Hudson Street 

AND EDUCATIONAL FUND, INC. New York, N.Y. 10013 (212) 219-1900 Fax: (212) 226-7592 

SURVEY 

Dear Friend, 

As you know, the NAACP Legal Defense Fund, has an interest in death 
penalty cases and appeals. We need your assistance. Please take a few 
minutes to fill out this brief survey. Return to Karima Wicks at the 
address listed above on this stationery. 

your name/title CoE A. STArFuDd Smt Ter 

£3 Poeuas ST 5 MW Avent, Gn. HD T3 
AOOTrEesSs 

today’s date 3 2 ( [ 99 

number of clients you have or have had on death row 

    1105 510 10 10 10 15 over 15“ 

PART | 

1) Have any of your clients ever won relief twice under federal habeas 
corpus review on the merits? 

yes (if yes, answer question la) no__X (if no, skip to question 2) 

la) Were any of those cases then overturned on procedural grounds? 

yes no 

PART II 

2) In your experience, has it ever happened that two or more jurors in a 
capital case indicated after sentencing that their verdict would have 
been different if they had known about evidence hidden by the state? 

yes Lr no 

COMMENTS: 

Regional Offices 

Contributions are The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part Suite 301 Suite 208 
deductible for U.S. of the National Association for the Advancement of Colored People 1275 K Street, NW 315 West Ninth Street 
income tax purposes. (NAACP) although LDF was founded by the NAACP and shares its Washington, DC 20005 Los Angeles, CA 90015 

commitment to equal rights. LDF has had for over 30 years a separate (202) 682-1300 (213) 624-2405 
Board, program, staff, office and budget. Fax: (202) 682-1312 Fax: (213) 624-0075 

 



      A 
National Office 

Suite 1600 

NAACP LEGAL DEFENSE 99 Hudson Street 

AND EDUCATIONAL FUND, INC. New York, N.Y. 10013 (212) 219-1900 Fax: (212) 226-7592 

SURVEY 

Dear Friend, 

As you know, the NAACP Legal Defense Fund, has an interest in death 
penalty cases and appeals. We need your assistance. Please take a few 
minutes to fill out this brief survey. Return to Karima Wicks at the 
address listed above on this stationery. 

your nameftitle Bruce LedewT2 — fp Lew Pag Uarw 

AOOrEess Duguesne EC: Self aT tro 

today’s date Sli [a 

number of clients you have or have had on death row 

tor Pr     § to 10 10 to 15 over 15 

PART | 

1) Have any of your clients ever won relief twice under federal habeas 
corpus review on the merits? oa 

yes (if yes, answer question 1a) no “ (if no, skip to question 2) 

la) Were any of those cases then overturned on procedural grounds? 

yes no 
  

PART II 

2) In your experience, has it ever happened that two or more jurors in a 
capital case indicated after sentencing that their verdict would have 
been different if they had known about evidence hidden by the state? 

yes no Fh 
  

COMMENTS: 

Regional Offices 

Contributions are The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part Suite 301 Suite 208 
deductible for U.S. of the National Association for the Advancement of Colored People 1275 K Street, NW 315 West Ninth Street 
income tax purposes. (NAACP) although LDF was founded by the NAACP and shares its Washington, DC 20005 Los Angeles, CA 90015 

commitment to equal rights. LDF has had for over 30 years a separate (202) 682-1300 (213) 624-2405 
Board, program, staff, office and budget. Fax: (202) 682-1312 Fax: (213) 624-0075 

 



   A 

Contributions are The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part Suite 301 Suite 208 
deductible for U.S. of the National Association for the Advancement of Colored People 1275 K Street, NW 315 West Ninth Street 
income tax purposes. (NAACP) although LDF was founded by the NAACP and shares its Washington, DC 20005 Los Angeles, CA 90015 

commitment to equal rights. LDF has had for over 30 years a separate (202) 682-1300 (213) 624-2405 

National Office 

Suite 1600 

NAACP LEGAL DEFENSE 99 Hudson Street 

AND EDUCATIONAL FUND, INC. New York, N.Y. 10013 (212) 219-1900 Fax: (212) 226-7592 

SURVEY 

Dear Friend, 

As you know, the NAACP Legal Defense Fund, has an interest in death 
penalty cases and appeals. We need your assistance. Please take a few 
minutes to fill out this brief survey. Return to Karima Wicks at the 
address listed above on this stationery. 

j \ / p ” fn 7 IC A s 

your name/title A. wf H, Cy lina 5 Appellate Aefouse oun el, Uy C 

sobtens 1 plik Peli Didi on, WAAARA, OSHG, Big Ul, Lushhigfon 
I Aly Verd, Was hivaffon, AC O37 

today’s date We fg LI) 
number of clients you have or have had on death row 

110 5 X § to 10 10 tO 15 over 15 

PART | 

    
1) Have any of your clients ever won relief twice under federal habeas 
corpus review on the merits? 

yes___ (if yes, answer question la) no Xi no, skip to question 2) 

la) Were any of those cases then overturned on procedural grounds? 

yes_ no. 

PART II 

2) In your experience, has it ever happened that two or more jurors in a 
capital case indicated after sentencing that their verdict would have 
been different if they had known about evidence hidden by the state? 

yes no X 

COMMENTS: 

Regional Offices 

Board, program, staff, office and budget. Fax: (202) 682-1312 Fax: (213) 624-0075 

 



   A National Office 

Suite 1600 

NAACP LEGAL DEFENSE 99 Hudson Street 

AND EDUCATIONAL FUND, INC. New York, N.Y. 10013 (212) 219-1900 Fax: (212) 226-7592 

SURVEY 

Dear Friend, 

As you know, the NAACP Legal Defense Fund, has an interest in death 
penalty cases and appeals. We need your assistance. Please take a few 
minutes to fill out this brief survey. Return to Karima Wicks at the 
address listed above on this stationery. >. 

ry /. . Ls Ae iad - Ariane Crys 

your name/title Josy=4 8. &7/ bat) Ys Agoellats Dotose 

pr Lomadol’ VA 25003 wash D.&) 
Address 7/0 Brartle 

—, 

today’s date 7 / / / 71 

number of clients you have or have had on death row     110 § Ta 510 10 10 to 15 over 15 

PART | 

1) Have any of your clients ever won relief twice under federal habeas 
corpus review on the merits? 

yes (if yes, answer question 1a) no vit no, skip to question 2) 

la) Were any of those cases then overturned on procedural grounds? 

yes no 
  

PART II 

2) In your experience, has it ever happened that two or more jurors in a 
capital case indicated after sentencing that their verdict would have 
been different if they had known about oe hidden by the state? 

yes no 

COMMENTS: 

Regional Offices 

Contributions are The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part Suite 301 Suite 208 

deductible for U.S. of the National Association for the Advancement of Colored People 1275 K Street, NW 315 West Ninth Street 

income tax purposes. (NAACP) although LDF was founded by the NAACP and shares its Washington, DC 20005 Los Angeles, CA 90015 
commitment to equal rights. LDF has had for over 30 years a separate (202) 682-1300 (213) 624-2405 
Board, program, staff, office and budget. Fax: (202) 682-1312 Fax: (213) 624-0075 

 



  

   
National Office 

A A Suite 1600 

NAACP LEGAL DEFENSE 99 Hudson Street 

AND EDUCATIONAL FUND, INC. New York, N.Y. 10013 (212) 219-1900 Fax: (212) 226-7592 

SURVEY 

Dear Friend, 

As you know, the NAACP Legal Defense Fund, has an interest in death 
penalty cases and appeals. We need your assistance. Please take a few 
minutes to fill out this brief survey. Return to Karima Wicks at the 
address listed above on this stationery. 

your name/title Aa 5+ia Mas lan, I As 5 Cs ban Pubs | Oafndon 

adoress YTS N. Broa way Bartow, Fl, POBox Gl) 7000p 

23950 ~ 10060 

today’s date zi] 9 

number of clients you have or have had on death row 

    1t0§ 510 10 ed 10 t0 15 over 15 

PART | 

1) Have any of your clients ever won relief twice under federal habeas 
corpus review on the merits? 

yes (if yes, answer question 1a) no Gf no, skip to question 2) 

la) Were any of those cases then overturned on procedural grounds? 

yes no 
  

PART II 

2) In your experience, has it ever happened that two or more jurors in a 
capital case indicated after sentencing that their verdict would have 
been different if they had known about evidence hidden by the state? 

yes no 

COMMENTS: 

Regional Cffices 

Contributions are The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part Suite 301 Suite 208 
deductible for U.S. of the National Association for the Advancement of Colored People 1275 K Street, NW 315 West Ninth Street 

income tax purposes. (NAACP) although LDF was founded by the NAACP and shares its Washington, DC 20005 Los Angeles, CA 90015 
commitment to equal rights. LDF has had for over 30 years a separate (202) 682-1300 (213) 624-2405 
Board, program, staff, office and budget. Fax: (202) 682-1312 Fax: (213) 624-0075 

 



      A 
National Office 

Suite 1600 

NAACP LEGAL DEFENSE 99 Hudson Street 
AND EDUCATIONAL FUND, INC. New York, N.Y. 10013 (212) 219-1900 Fax: (212) 226-7592 

SURVEY 

Dear Friend, 

As you know, the NAACP Legal Defense Fund, has an interest in death 
penalty cases and appeals. We need your assistance. Please take a few 
minutes to fill out this brief survey. Return to Karima Wicks at the 
address listed above on this stationery. 

your name/title Jean Barcel
 : 

adoress 20 NST Af e (HA A ve Lo rang 

today’s date £ Jr /7 / 

number of clients you have or have had on death row O 

LE 07067 

    1t05 5 to 10 10 to 15 over 15 3 a// Trials 

PART | 

1) Have any of your clients ever won relief twice under federal habeas 
corpus review on the merits? 

yes (if yes, answer question la) no \ lit no, skip to question 2) 

la) Were any of those cases then overturned on procedural grounds? 

yes no 

PART II 

2) In your experience, has it ever happened that two or more jurors in a 
capital case indicated after sentencing that their verdict would have 
been different if they had known about evidencé hidden by the state? 

yes no 
  

COMMENTS: 

Regional Offices 

Contributions are The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part Suite 301 Suite 208 
deductible for U.S. of the National Association for the Advancement of Colored People 1275 K Street, NW 315 West Ninth Street 
income tax purposes. (NAACP) although LDF was founded by the NAACP and shares its Washington, DC 20005 Los Angeles, CA 90015 

commitment to equal rights. LDF has had for over 30 years a separate (202) 682-1300 (213) 624-2405 
Board, program, staff, office and budget. Fax: (202) 682-1312 Fax: (213) 624-0075 

 



      il i 
National Office 

Suite 1600 

NAACP LEGAL DEFENSE 99 Hudson Street 

AND EDUCATIONAL FUND, INC. New York, N.Y. 10013 (212) 219-1900 Fax: (212) 226-7592 

SURVEY 

Dear Friend, 

As you know, the NAACP Legal Defense Fund, has an interest in death 
penalty cases and appeals. We need your assistance. Please take a few 
minutes to fill out this brief survey. Return to Karima Wicks at the 
address listed above on this stationery. 

your name/title DAV } L (A 5 R JH ~N NK ‘E 

Rub ke 4 BART 
20 NOLTHFAITLW MHVE oo 

today’s date WENT OR OGE, IY © Toye 
© Shlal 

number of clients you nel) 5 have had on death row oO 

AVO1esSs 

    1t05§ § to 10 10 to 15 over 15 

PART | 

1) Have any of your clients ever won relief twice under federal habeas 
corpus review on the merits? 

yes (if yes, answer question 1a) no X Gt no, skip to question 2) 

la) Were any of those cases then Shia procedural grounds? 

yes no 

PART II 

2) In your experience, has it ever happened that two or more jurors in a 
capital case indicated after sentencing that their verdict would have 
been different if they had known about evidence hidden by the state? 

no 
  

yes 

COMMENTS: 

Regional Offices 

Contributions are The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part Suite 301 Suite 208 

deductible for U.S. of the National Association for the Advancement of Colored People 1275 K Street, NW 315 West Ninth Street 
income tax purposes. (NAACP) although LDF was founded by the NAACP and shares its Washington, DC 20005 Los Angeles, CA 90015 

commitment to equal rights. LDF has had for over 30 years a separate (202) 682-1300 (213) 624-2405 
Board, program, staff, office and budget. Fax: (202) 682-1312 Fax: (213) 624-0075 

 



   A 

  

National Office 

Suite 1600 

NAACP LEGAL DEFENSE 99 Hudson Street 
AND EDUCATIONAL FUND, INC. New York, N.Y. 10013 (212) 219-1900 Fax: (212) 226-7592 

SURVEY 

Dear Friend, 

As you know, the NAACP Legal Defense Fund, has an interest in death 
penalty cases and appeals. We need your assistance. Please take a few 
minutes to fill out this brief survey. Return to Karima Wicks at the 
address listed above on this stationery. 

your name/title Rhonda Lone - Sharp, Chuis{ Deputy ¥D., ToD 

adoress  Ohe MJ. Capit, Sutte Yoo, 1oDY, 10 Yi, 20 

today’s date 8 / 1) 91 

number of clients you have or have had on death row 

1105 9, § to 10 10 to 15 over 15     
1) Have any of your clients ever won relief twice under federal habeas 
corpus review on the merits? 

yes____ (if yes, answer question la) no Ke no, skip to question 2) 

la) Were any of those cases then overturned on procedural grounds? 

yes_ no. 

PART II 

2) In your experience, has it ever happened that two or more jurors in a 
capital case indicated after sentencing that their verdict would have 
been different if they had known about evidence hidden by the state? 

yes no 

COMMENTS: 

Regional Offices 

Contributions are The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part Suite 301 Suite 208 
deductible for U.S. of the National Association for the Advancement of Colored People 1275 K Street, NW 315 West Ninth Street 
income tax purposes. (NAACP) although LDF was founded by the NAACP and shares its Washington, DC 20005 Los Angeles, CA 90015 

commitment to equal rights. LDF has had for over 30 years a separate (202) 682-1300 (213) 624-2405 
Board, program, staff, office and budget. Fax: (202) 682-1312 Fax: (213) 624-0075 

 



   A National Office 

Suite 1600 

NAACP LEGAL DEFENSE 99 Hudson Street 

AND EDUCATIONAL FUND, INC. New York, N.Y. 10013 (212) 219-1900 Fax: (212) 226-7592 

SURVEY 

Dear Friend, 

As you know, the NAACP Legal Defense Fund, has an interest in death 
penalty cases and appeals. We need your assistance. Please take a few 
minutes to fill out this brief survey. Return to Karima Wicks at the 
address listed above on this stationery. 

your name/title MONA F OSTEML 

AOOTress AR) tC WALLET LT. #40 

today’s date { | 19 

number of clients you have or have had on death row     1to§ stow X 1to1s over 15 

PART | 

1) Have any of your clients ever won relief twice under federal habeas 
corpus review on the merits? 

yes (if yes, answer question la) no _ Xf no, skip to question 2) 

la) Were any of those cases then overturned on procedural grounds? 

yes no. 

PART II 

2) In your experience, has it ever happened that two or more jurors in a 
capital case indicated after sentencing that their verdict would have 
been different if they had known about evidence hidden by the state? 

no_X   

yes 

COMMENTS: 

Regional Offices 

Contributions are The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part Suite 301 Suite 208 

deductible for U.S. of the National Association for the Advancement of Colored People 1275 K Street, NW 315 West Ninth Street 

income tax purposes. (NAACP) although LDF was founded by the NAACP and shares its Washington, DC 20005 Los Angeles, CA 90015 

commitment to equal rights. LDF has had for over 30 years a separate (202) 682-1300 (213) 624-2405 
Board, program, staff, office and budget. Fax: (202) 682-1312 Fax: (213) 624-0075 

 



   



   



    

 



  
      

 



   



     



   



     



   



   



 



 



   



  
  

  

 
 

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THE UNIVERSITY OF NORTH CAROLINA 

AT 
CHAPEL HILL 

SCHOOL OF LAW CB# 3380, Van Hecke-Wettach Hall 

The University of North Carolina at Chapel Hill 

Chapel Hill, N.C. 27599-3380 

DATE July 28, 3 
C ©19) =) 
  

  

  

    

TO Taoul C adenhesd | Exa. FAX NO. (HoH) < To- 6020 

  

FROM JACK. Bogor 

TELEPHONE NO. (419) 962-85/( 
  

This document consists of | + pages including this cover sheet. 

If you have any transmission problems please call (919)962-8503. 

MESSAGE: 

 



  

July 28, 1991 

TO: Paul Cadenhead 

FROM: Jack Boger 

RE: McCleskey Clemency -- Excerpts from Judge Forrester Orders 
  

I am attaching pages from two orders entered by Judge Owen Forrester in 
the McCleskey case: the first, entered on December 23, 1987, granting habeas 
corpus relief on McCleskey's Massiah claim, the second, entered on January 10, 
1989, denying the State's motion -- under Rule 59 of the Fed. R. Civ. P. -- to 
reopen the judgment. 

  

The circled portions on these se pages are the excerpts I recommend for 
your consideration for our final edited version of Judge Forrester's opinion. 
In this initial sorting, I have erred on the side of inclusion; there are some 
circled lines that seem redundant, and a number that do not represent 
favorable findings, but simply give the necessary background for findings that 
follow. Please feel free to treat them as raw materials for final editing, 
not the finished product. 

 



  
  

> 

  

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-— 

The petitioner never specifically requested the appointment of a 

ballistics expert, nor did he make the showing that this circuit 

has held is required by Ake and Caldwell. The state trial court 
  

could hardly have been expected to appreciate the importance of a 

ballistics expert to petitioner's case if petitioner himself 

neither requested such an expert nor explained the significance 

of such an expert to the court. 

V. PETITIONER'S NEW CLAIMS. 

A. Massiah Claim. 
  

          
  

s of Fact.    
   Petitioner relies primarily on the testimony of Ulysses 

Worthy before this court and the recently disclosed written 

statement of Offie Evans to support his Massiah claim. Ulysses   
Worthy, who was captain of the day watch at the Fulton County 

Jail during the summer of 1978 when petitioner was being held 

there awaiting his trial for murder and armed ropbery, testified 

before this court on July 9 and August 10, 1387... The court will 

set out the pertinent parts of that testimony and then summarize 

the information it reveals. 
  

  

  

    

    n July 9, Worthy testified as follows:     

  

   

  

He recalled 

"something being said" to Evans by Police Officer Dorsey or 

another officer about engaging in conversations with McCleskey 

(IT Tr. 147-49).° He remembered a conversation, where Detective 
~ 

Dorsey and perhaps other officers were present, in which Evans 
0 - 

was asked to engage in conversations with McCleskey (II Tr. 150) 
  

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ater, Evans requested permission to call the detectives (II Tr. 

151). Assistant District Attorney Russell Parker and Detective 

Harris used Worthy's office to interview Evans at one point, 

which could have been the time they came out to the jail at 

Evans’ request (1d.). 

In other cases, Worthy had honored police requests that 

someone be placed adjacent to another inmate to listen for 

information (II Tr. 152); such Pequssts usually would come from 

the officer handling the case (1d.); he recalled specifically 
  

that such a request was made in this case by the officer on the 

case (II Tr. 153). Evans was put in the cell next to McCloskey 

at the request of the officer on the case (1d.); "someone asked 

[him] to specifically place Offie Evans in a specific location in 

the Fulton County Jail 50 he could overhear conversations with 

Warren McCleskey," but Worthy did not know who made the request 

and he was not sure whether the request was made when Evans 

first came into the jail (II Tr. 153-54); he Aid not recall when 

he was asked to move Evans (II Tr. 155-56). abe 

On August 10, 1987 Worthy testified as follows: Evans was 

    

first brought to his attention when Deputy Hamilton brought Evans 

to Worthy's office becauss Evans wanted to call the district 

attorney or the police with "some information he wanted to pass 

to them" (II Tr. 14). The first time the investigators on the 

Schlatt murder case talked to Evans was "a few days" after Evans’ 

call (III Tr. 16-17). That meeting took place in Worthy's office 

(III Tr. 17). Worthy was asked to move Evans "from one cell to 

/ Lr 

‘=16~  



  

  
  

  

  

/ cross-examination, Worthy testified as follows: Deputy Hamilton 

was not a case officer but was a deputy at the jail (III Tr. 49). 

When Worthy testified on July 9 he did not know what legal issues 

were before the court (III Tr. 52-53). After his July 9 testi- 

mony he met with the state's attorneys on two occasions for a 

total of forty to fifty minutes (IXY Tr. 53-54). After his 

. “July 9 testimony he read a local newspaper article mentioning him 

(311 Tr. 56), 
  

-—— — - 

In response to questions from the court, Worthy stated that 

  

he was satisfied that he was asked for Evans "to be placed near 

McCleskey's cell," that "Evans was asked to overhear McCleskey 

talk about this case," and that Evans was asked to "get some 
    

a2 (information from” McCleskey (III Tr. 64-65). [Worthy maintained 
  

  

that these requests were made on the date that Assistant 

District Attorney Parker interviewed Evans, but he could not 

explain why the investigators would have requested a move on the 

same day that Evans had already told the investigators that he 

was next to McCleskey, that he had been listening to what 

McCleskey had been saying, and that he had been asking McCleskey 

questions (III Tr. 64). 
  

  

h 

A summary, Worthy never wavered from the fact that someone, 

at some point, requested his permission to move Evans to be near 

McCleskey. Worthy's July 9 testimony indicates the following 

sequence: The request to move Evans, the move, Evans' request to 

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        > call the investigators, the Parker interview, and other later/ 

Inteuyiss: jf Wouthy's Sug t 10’ testimohy indjfates/a diffepent 

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vans' request to call the senbsticatond, the Parker 

      

   

/ sequence: 

interview,/ the regudest to mo; e Evans Z beputy Hamilsdn, and 
   

    

  

other later tmrepalove i) Torry Ss testizony is inconsistent on 
  

Officer Dorsey's role in requesting the move, on whether Deputy 

Hamilton requested the move, and on whether the request to move 

Evans preceded Evans' request to call the investigators. Worthy 

has no explanation for why the authorities would have requested 

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. to move Evans after the Parker interview, at which Evans made it 

clear that he was already i djzcent to McCleskey's. 
S— 

All of the law enforcement personnel to whom Worthy informed ) 

  

  

   
   
   

    

-= Deputy flamilcon) Detectives Dorsey, Jowers and Harris, and   
Assistant District Attorney Parker -- flatly denied 5, 

requested permission to move Evans or 2aving any knowledge © 
  

such a request being made [(111 Tr, 65-71: 80-81, 95: 97-98; 
  

102~03; 111-22, 1¥6).7 It is undisputed that Assistant District   Attorney Parker met with Evans at the Ful:zcn County Jail on only 

one occasion, July 12, 1978, and that =vans was already in the 

cell next to McCleskey's at that time (II Tr. 113-14; 71-72). | 

‘Petitioner also relies on Evans' twenty-one page statement | 

: 2 to the Atlanta Police Department, dat=é August 1, 1978, in | 

; ~ support of his claim that the authoriti=ss deliberately elicited | 

incriminating informatian from him in violation of his Sixth | 

amendment right to counsel. Evans’ statement relates fey 
$ = | 

tions he overheard between McCleskey and McCleskey's co-defendant 

DuPree and conversations between himself and McCleskey from 

’ July 9 to July 12, 1978. McCleskey's statements during the 

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course of those conversations were highly incriminating. In 

support of his argument that the authorities instigated Evans’ 
  

information gathering,/’McCleskey points to the methods Evans used 
  

    
    

   

to secure McCleskey' S trust and hereby stimulate incriminating 
LN Rec ur eamizporsmo Arai 1 ov 

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Evans sdbeatialy lied to McCleskey, telling him 
  

conversation. 

that McCleskey's co-defendant, Ben Wright, was. Evans' nephew; 

that Evans' name was Charles; that Ben had told Evans about 

] McCleskey; that Evans had seen Ben recently; that Ben was 

‘accusing McCleskey of falsely identifying Ben as the "trigger | 

man" in the robbery; that Evans "used to stick up with Ben too;" 

that Ben told Evans that McCleskey shot Officer Schlatt; and that   
Evans was supposed to have been in on the robbery himself. 
  

  
  EPC re Te op Lo a————— 

In addition, McCleskey argues that Evans' knowledge that 
  

McCleskey and other co-defendants had told police that co- 

defendant Ben Wright was the trigger person demonstrates Evans’ 

been made Bnet e collusion with the police since that fact had nc phage 2 
     

   

  

public at that timet Finally, McCleskey points to two additional 
- 
  

    
pieces of evidence about Evans' relationship with the police: 

a — tigi LEE T— 

ans testified at McCleskey's trial that he had talked © 

    

   
   
   

  

  Detective Dorsey about the case before he talked to Assistan 
| 

District Attorney Parker (Pet. Exh. 16 at 119); and Evans ha 

  \_acted as an informant for Detective Dorsey before (II Tr. 52-3). 
      

  
  

      

The factual issue for the court to resolve is simply stated: 

Either the authorities moved Evans to the cell adjoining 

’ McCleskey's in an effort to obtain incriminating information or 

they did not. There is evidence to support the argument that 

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Evans was not moved, that he was in the adjoining cell fortu- 

itously, and that his conversations with McCleskey preceded his 

contact with the authorities. North's testimony is often 

confused and self-contradictory, it is directly contrary to the 

testimony of Deputy Hamilton and Detective Dorsey, it is contrary 

to Evans' testimony at McCleskey's trial that he was put in the 

adjoining cell "straight from the street” (Trial Tr, 873), and it 

is contrary to the opening line of Evans' written statement 

which says, "I am in the Fulton County Jail cell # 1 north 14 

where I have been since July 3, 1978 for escape." Worthy himself 

testified that escape risks where housed in that wing of the jail 
    

  

(III Tr. 13-14). Moreover, /the use of Evans as mecleskeyN| 

(elieses, if it occurred, developed into a complicated scheme to 

violate McCleskey's constitutional rights -- its success required 

| Evans and any officers involved to lie and lie well about the 

circumstances. For these reasons, the state asks this court to 

  reject Worthy's testimony that someone requested permission to 

move Evans next to McCleskey's cell. 
  

After carefully. considering the substance of Worthy's 

testimony, his demeanor, and the other relevant evidence in this 

case, the court concludes that it cannot reject Worthy's testi- 

mony about the fact of a request to move Offie Evans. The fact 

that someone, at some point, requested his permission to move 

Evans is the one fact from which Worthy never wavered in his two 

days of direct and cross-examination. The state has introduced         ski evidence that Worthy is either lying or mistaken. 

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The lack of corroboration by other witnesses is not surprising; 

the other witnesses, like Assistant District Attorney Parker, had 

no reason to know of a request to move Evans or, like Detective 

Dorsey, had an obvious interest in concealing any such arrange- 

ment. Worthy, by contrast, had no apparent interest or bias that 

would explain any conscious deception. Worthy's testimony that 

: he was asked to move Evans is further bolstered by Evans’   
. testimony that he talked to Detective Dorsey before he talked to | 

Ll 

! } 
1 - -—— = il ST : 1 : wh 0 

Assistant District Attorney Parker and by Evarns' apparent 

knowledge of details of the robbery and homicide Xxnown only to 

TS 
Once it is accepted that Worthy was asked for permission to 

the police and the perpetrators. 
    

  

. move Evans, the conclusion follows swiftly that the sequence of 

events to which Worthy testified originally must be the correct 

sequence; 1i.e., the request to move Evans, the cove, Evans' 

request to call the investigators, the Parker iaterview, and 
  of 

pe 
other later interviews. |There are two other possible con- 
  be. gs 

1 clusions about the timing of the request to move Evans, but   
: neither is tenable. First, the request to move Evans could have 

: come following Evans' meeting with Assistant District Attorney 

Parker, as Worthy seemed to be testifying on Auguss 10 (111 Tr. 

20). However, a request at that point would have been non- 
~ 

sensical because Evans was already in the cell adjoining 

McCleskey's. Second, it could be that Evans was originally in the 

’ cell next to McCleskey, that he overheard the incriminating 

statements prior to any contact with the investigators, that 

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McCleskey was moved to a different cell, and that the authorities 

then requested permission to move Evans to again be adjacent to 

McCleskey. As the state concedes, this possibility is mere 

speculation and is not supported by any evidence in the record. 

Post-Hearing Brief at 53. 
  

  

     
oregoing reasons, the court concludes that peti- 

  

tioner has established by a preponderance of the evidence the 

following sequence of events: Evans was not originally in the 

cell adjoining McCleskey's; prior to July 9, 1978, he was moved, 

pursuant to a request approved by Worthy, to the adjoining cell 

for the purpose of gathering incriminating information; Evans was 

probably coached in how to approach McCleskey and given critical 

facts unknown to the general public; Evans engaged McCleskey i= 

conversation and eavesdropped on McCleskey's conversations wit: 

DuPree; and Evans reported what he had heard between July 9 ang 

    

July 12, 1978 to Assistant District Attorney Parker on July 12. 

  

  

2. Abuse of the Writ Questions. 

The state argues that petitioner's Massiah claim in this 
  

second federal habeas petition is an abuse of the writ because hs 

intentionally abandoned the claim after his first state habeas 
- - 

petition and because his failure to raise this claim in his firs: 

federal habeas petition was due to inexcusable neglect. As was 

noted earlier, the burden is on petitioner to show that he has 
ce 

not abused the writ. BAllen, 795 P.24 at 938-39. The court 

concludes that petitioner's Massiah claim is not an abuse of the 

writ. 

re 

  
 



    

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was held irrelevant under Massiah whether the informant ques- 

1
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- 

  

tioned the defendant about the crime or merely engaged in general 

conversation which led to the disclosure of incriminating 

statements about the crime. Id. at 271-72 n, 10. Although the 

government insisted that it should not be held responsible for 

n the inmate's interrogation of the defendant in light of its 

| ; specific instructions to the contrary, the Court held that 

ba employing a paid informant who converses with an unsuspecting 

inmate while both are in custody amounts to "intentionally 

creating a situation likely to induce [the defendant] to make 

incriminating statements without the assistance of counsel." Xd. 

; at 274.7 
  

  ANIONS. ty 

  

  

  

Bre, 

Given the facts established earlier, petitioner has clearly 

  

established a Massiah ‘violation here. It is clear from Evans’ 
  

written statement that he did much more than merely engage 

petitioner in conversation about petitioner's crimes. As 

discussed earlier, Evans repeatedly lied to petitioner in order 

to gain his trust and to draw him into incriminating statements. 

Worthy's testimony establishes that Evans, in eliciting the 

incriminating statements, was acting as an agent of the state. 

This case is completely unlike Kuhlmann v. Wilson, 106 S.Ct. 2616 
    (1986), where the Court found no Massiah violation because the 

inmate informant had been a passive listener and had not de- 

liberately elicited incriminating statements from the defendant. 

: Ni oh aoe 

  
  

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Here, Evans was even more active in eliciting incriminating 

statements than was the informant in Henry. The conclusion is 

inescapable that petitioner's sixth amendment rights, as inter- 

preted in Massiah, were violated. Ley 
  

  

  

conviction the state must "prove beyond a reasonable doubt that 

    

However, "[n]ot every interrogation in violation of the rule 

set forth in Massiah ... mandates reversal of a conviction.” 

United States v. Kilrain, 566. F.24 973, 8982 (5th Cir. 1978). 
  

Instead, "the proper rule [is] one of exclusion of tainted 

evidence rather than a per se standard of reversal if any 

constitutional violation hals] occurred.” Id. n. 3, citing 

Brewer v. Williams, 430 U.S. 387, 407 n. 12 (1977); United States 
    

y, Hayles, 471 P.24 738, 793, cert. denied, 411 U.s. 969 (5th 
    

Cir. 1973). In other words, "certain violations of the right to 
4 : 

counsel may be disregarded as harmless error." United States v. 
  

Morrison, 4492. U.S. 361, 365 (198l), citing Chapman v, California, 
    

386 U.S. 18, 2) n. 8 (1967). To avoid reversal of petitioner's 

the error complained of [the use at petitioner's trial of his own 

incriminating statements obtained in violation of his sixth 

amendment rights] did not contribute to the verdict obtained.” 

Chapman, 386 U.S. at 24. See also Brown v. Dugger, No. 85-6082, 
  

  

Slip Op. at 511-12 (11th Cir. November 13, 1987). 
———, B ~ ita, 

Once the fact of the Massiah violation in this case is 
ceo 

  

accepted, it is not possible to find that the error was harmless. 

A review of the evidence presented at the petitioner's trial 

  

    

 



   
  

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v 

[reveals that Evans' testimony about the petitioner's yal 

inating statements was critical to the state's case. There were 

no witnesses to the shooting and the murder weapon was never 

  found. The bulk of the state's case against the petitioner was 

three pronged: (1) evidence that petitioner carried a particular 

| gun on the day of the robbery that most likely fired the fatal 

bullets; (2) testimony by co-defendant Ben Wright that petitioner 

pulled the trigger; and (3) Evans' testimony about petitioner's 

e
o
 

incriminating statements. As petitioner points out, the evidence   
on petitioner's possession of the gun in question was conflictin    
and the testimony of Ben Wright was obviously impeachable. The 
  

state also emphasizes that Evans testified only in rebuttal and 

r= for the sole purpose of trpeaching McCleskey's alibi defense. But 

the chronological placement of Evans' testimony does not dilute 

its impact -- "merely" impeaching the statement "I didn't do it" 

with the testimony "He told me he did do it" is the functional 

equivalent of case in chief evidence of guilt. 
  

  

For the foregoing reasons, the court concludes that peti- \ 

  

tioner's sixth amendment rights, as interpreted in Massiah, were 

violated by the use at trial of Evans' testimony about the 

petitioner's inorivinating statements because those statements 

were deliberately elicited by an agent of the state after 

petitioner's indictment and in the absence of petitioner's 

attorney. Because the court cannot say, beyond a reasonable     
    

: doubt, that the jury would have convicted petitioner without 

         



  

  

     

    

    

    

  

  

’.* a 

: z : et 
° 

  

  

  

Evans' testimony about petitioner's incriminating statements, 

petitioner's conviction for the murder of Officer Schlatt must be 

reversed pending a new trial.? 

Unfortunately, one or more of those investigating Officer 

Schlatt's murder stepped out of line. Determined to avenge his 

death, the investigator(s) violated clearly-established case 

law, however artificial or ill-conceived it might have appeared. 

In so doing, the investigator(s) ignored the rule of law that 

Officer Schlatt gave his life in protecting and thereby tainted 

tl.e prosecution of his killer. i 
  

  

__ obtained using testimony known to be perjured). 

i Tri Toa Tie = eT 

B. Mooney Claim. 
  

Petitioner's Mooney claim is based upon the state's use at 

trial of misleading testimony by Offie Evans, which petitioner 
3 a 

contends violated his eighth amendment rights and his right to 

due process of law under the fourteenth amendmert. See Mooney v. 
  

Holohan, 294 U.S. 103, 112 (1935) (criminal conviction may not be 

In particelar, 

petitioner contends that the state failed to correct Evans’ 

misleading testimony regarding his real intersst in testifying 

against petitioner, regarding the circumstances surrounding his 

cooperation with the state, and regarding petitioner's confession 

of having shot Officer Schlatt. Petitioner alleges that the 

newly discovered statement of Offie Evans reveals these mis- 

leading elements of Offie Evans' testimony at trial. 

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er Uae ad RA a ah Hs OL Ed 

  

Discovery pursuant to this motion reveals that 

respondent made no efforts to locate Evans during the summer of 

1987. See, Respondent's Answer to First Interrogatories of 

Petitioner, No. 1. “Respondent now contends that the deposition 

of Evans shows that he was outside of Atlanta, and respondent 

would not have been able to locate him anyway. However, the 

affidavits of petitioner's assistants show that Evans' relatives 

had seen him at various times during petitioner's search for 

him. Therefore, it is unclear where exactly Mr. Evans was at 

the time and whether or not he could have been found. Moreover, 

it is not good enough merely to say that it would be impossible 

to find the evidence. Due diligence is measured by respondent's 

knowledge and actions. The- standard under 60(b)(2) is that the 

movant exercise due diligence in order to find the relevant 

evidence before entry of judgment. Respondent relied on   petitioner's actions in seeking Mr. Evans, but made no efforts 

of his own. As the court previously noted, petiticner's efforts 

did not relieve respondent of any obligation to utilize his own 

resources to locate Evans. Movant has not demonstrated the due 

diligence prong of the 60(b)(2) standard. 

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3. Evidence is Not Cumulative or Impeaching: 

  
  

  Materiality. wal 
     
   

  

Evans' deposition testimony essentially asserts that he 

was not moved intentionally to be placed next to McCleskey, and 

in fact was not moved at all, and was not an informant. His 

  testimony goes directly to the issue involved, and therefore ts | 

    — 

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material. However, there are numerous internal contradictions 

within the deposition, and contradictions with Evans' previous 

statements, or the statements of other witnesses. Also, it is 

clear that Mr. Evans has his own motives for denying his status 
| 

as an informant. He expressed concern several times during his 

deposition about newspaper accounts which had labeled him an 

Antornant, because that kind of information could get a man    killed. Evans Depo., p. 25. 
Sr — 

4. Likelihood of Producing a Different Result. 

  

  

  

  

   

  

a ——— 

It is unlikely Evans' testimony would produce a 
  

  

different result. The credibility or believability problems 

with his testimony are evident. He has a strong motivation for 

saying he was not an informant, not only because of 

| Fear tninations from his associates, but also in order to stay in 

favor with the police and prosecutors who have used him to 

testify in the past. The numerous contradictions within his     
deposition also lead the court to the conclusion that his 

testimony would not be believable. See Petitioner's Brief in 

Response to Respondent's Supplement to Rule 60(b) Motion. In   finding a Massiah violation, the court relied on the testimony 

of Officer Ulysses Worthy that someone requested his permission 

to move Evans to be near McCleskey, Order, December 23, 1987, 

p. 18, even in the face of other law enforcement personnel who 

denied requesting that Evans be moved or having any knowledge of 

such a request. Order, p. 19. The court relied on Worthy's   
testimony. and noted that "[t]he lack of corroboration by other 

cat AS 
    

      

  

 



  

   

  

  

  

  

a 

District Attorney Parker, had no reason to know of a request to 

itnesses is not surprising; the other witnesses, 

move Evans or, like Detective Dorsey, had an obvious interest in 

concealing any such arrangement. Worthy, by contrast, had no 

apparent interest or bias that would explain any conscious   deception.” Order, p. 22. Therefore, Evans' testimony is not 

likely to change the credibility of Worthy's testimony or the 

that a Massiah violation occurred. 
  

\ fact that petitioner showed by a preponderance of the evidence 

  

PS oa, ENG for the above reasons, respondent's motion 

under 60(b)(2) is DENIED. 

B. Rule 60(b)(6). 
  

Rule 60(b)(6) grants federal courts broad authority to 

relieve-a party from a final judgment "upon such terms as are 

just" provided the motion is made within a reasonable time and 

is not premised on one of the grounds in (b)(1) through (b)(5). 

Liljeberg v. Health Services Acquisition Corp., v.S, + 56 
  

U.S.L.W. 4637, 4642 (1988). This ground should be applied only 

in exceptional circumstances. 1d. The party seeking relief 

wnder 60(b)(6) has the burden of showing that absent such 

relief, an extreme and unexpected hardship will result. 

Oriffin, 722 F.24 at. 680. Respondent contends that in the   unusual circumstances of this case, it would serve the ends of 

justice to reopen judgment under 60(b)(6). However, respondent 

has shown no exceptional circumstances outside those discussed 

in the Rule 60(b)(2) motion. There is little likelihood that if 

10     
  

  

   



    
THE UNIVERSITY OF NORTH CAROLINA 

AT 
CHAPEL HILL 

The University of North Carolina at Chapel Hill 

Chapel Hill, N.C. 27599-3380 . 

DATE July 23 1991 ¥ CT) 

SCHOOL OF LAW — A CB# 3380, Van Hecke-Wettach Hall 
| Nn 0 CL » 

  

  

  

TO Yul Caden head FAX NO. (dou) ¢o-L020 

FROM Jadk Bogor 

TELEPHONE NO. hi 9) 9¢2- gSIC 

  
  

  

  

This document consists of 8 pages including this cover sheet. 

If you have any transmission problems please call (919)962-8503. 

MESSAGE: 

 



  

July 23, 1991 

TO: Paul Cadenhead 

FROM: Jack Boge JCA 

RE: Warren McCleskey Clemency -- Draft Opening Statement 

Welcome back from your trip to New York. I hope other elements of your 

stay were more pleasant than Manhattan's weather. 

I've looked over the initial, dictated-but-not-read draft you sent us 
last week. It looks very, very promising as an approach to the Board. At 
your invitation, I've written some comments directly on the draft itself; they 
are, of course, merely suggestions for your consideration. 

There is one theme, omitted from this draft, that probably should be 
inserted somewhere. (I didn't attempt to find a specific place for it.) 

Although ve stress that, had the jurors heard the truth about Offie Evans' 
relation to the police, they would not have credited his testimony (and thus 
would not have returned a death sentence), we do not underline in this draft, 
as Warren himself always has, that he was not, in fact, the triggerman. 

We have consistently maintained that, while Warren did talk with Offie 
Evans, and eventually dropped his guard, he never told Evans that he had shot 
Officer Schlatt, or aver that he "would have shot a dozen officers" if 
necessary to get out of the robbery. I think this is an important point. 
WITHOUT IT, all we have is OUR technicality (under Massiah v. United States, 
the police shouldn't have gathered evidence surreptitiously) to poise against 
THEIR technicality (successive habeas petitions will no longer be allowed; the 
error vas harmless). WITH IT, we have the argument that the police misconduct 
alloved Offie Evans to poison the truth. This transforms our case from one 
merely of the insufficiency of the lawfully admitted evidence, into one of the 
insufficiency of all the the credible evidence. McCleskey, in other words, 
vas not merely convicted and sentenced unlawfully for a crime he (in fact) DID 
commit; he was convicted and sentenced wrongfully and erroneously for a crime 
he (in fact) DID NOT commit. I don't think it would take a major re-ordering 
of your draft to insert this thought into the argument somewhere. 

  

  

That's the sum of my initial thoughts. I look forward to a second 
meeting of our legal team soon. Best regards. 

 



    

    

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BEFORE THE i 4 Re) 

BOARD OF PARDONS AND PAROLES 

STATE OF GEORGIA 

Application of Warren McCleskey Application 
For a 90-Day Stay of Execution And No. 
Commutation of His Sentence of Death 

  

  

  

This application is submitted by the undersigned pro 
bono counsel who are legally and factually convinced of its 
merit. Volunteer counsel here look beyond procedure to 
ultimate merits, and urge this Board to do likewise. 

The existence of the Pardons and Paroles Board is 
based on the legal presumption that some cases having gone all 
the way through the judicial system still warrant non-judicial 
relief. In a word, where guilt has been affirmed by the 
judicial system, and only in those cases, the law rightly 
dictates that some do not deserve imposition of the full legal 
punishment imposed. If such were not the case, there would be 
no need for the Board of Pardons and Paroles. 

Clearly, therefore, the Board's duty requires it to 
review and, where appropriate, remedy that which the judicial 
system, because of different rules, could not. The functions 
are different, and the powers of one become operative and 
plenary only after the powers of the other are exhausted. 

If in legal and divine wisdom there are no cases 
worthy of commutation at the end of judicial procedure, the 
genius of our law would not entrust such cases to this Board. 
The overall question presented, therefore, is whether 
non-judicial circumstances in the given case warrant the 
ultimate sentence: forfeiture of life. 

Warren McCleskey was involved in conspiracy and 
ultimate execution of a robbery of an Atlanta furniture store 
in May of 1978. This was a crime which he now admits, and for 
which he will pay a severe legal penalty. The judicial system 
has examined the circumstances and imposed its sentence for 
that crime, and we willingly submit to that penalty. 

 



  

We, therefore, address the Board not concerning Mr. 

McCleskey's sentence for robbery, but concerning his conviction 

of malice murder and his ultimate sentence of death, for his 

alleged role in the fatal shooting of Officer Frank Schlatt, 
who was shot by one of the perpetrators as he interrupted the 

robbery. 

Mr. McCleskey then and now denies that he fired the 

fatal shot. 

There were no eyewitnesses to the shooting, and the 
murder weapon was never found. 

The bedrock on which this conviction of malice murder 
rests is testimony of one Offie Evans, a convicted felon, who 
we now know was placed by police in the cell adjoining the cell 
of McCleskey and promised help with pending criminal charges if 
he would assist police in obtaining information by which to 
convict McCleskey. This project was undertaken by Evans, and 
in its execution he admittedly lied in his efforts to gain 
McCleskey's trust and obtain statements from McCleskey. For 
instance, he told McCleskey that he was the uncle of Ben 
Wright, Jr., (a co-conspirator in the robbery) and so forth. 
He then reported his conversations to the police, culminating 
in his giving convicting testimony at the trial of McCleskey. 
Clearly he was an agent of the police in carrying out this 
prosecutorial endeavor, but his status as such was never made 

known to defense counsel or the jury. Mr. McCleskey then and 
now denies that he made statements attributed to him by Evans. 

The genius of our law adopts the rule of fairness that 
requires the prosecution to reveal not only those facts 
indicating guilt, but also those facts which might be helpful 
to the defendant. In short, the prosecution must reveal the 
whole truth. The State revealed the incriminating portions of 
Evans' statement, but at no time revealed to McCleskey's 
counsel or to the trial jury the tainted circumstances under 
whi wi Vv i nt wi mi 

ici i i Indeed, as 
late as the appearance of McCleskey's appeal in the Supreme 

Court of Georgia, there was no indication of this unwholesome 
arrangement with Evans. 

Had defense counsel known at that time what has since 
been learned, it is uncontradicted that the death penalty would 
never have been imposed. It takes a unanimous verdict for 
conviction. At least two of McCleskey's trial jurors now state 
emphatically that this verdict would never have been returned 
had Evans' status been revealed to the jurors. 

5105G/bl/13.44 

 



  

The jury heard evidence from Ben Wright, Jr., the 
felon who masterminded this robbery. These jurors state that 
Ben Wright was unbelievable, and his testimony totally 
disregarded. The evidence on which they based the conviction 
and sentence was the testimony of Offie Evans. The jurors saw 
him at trial and evaluated him as a witness with no interest in 
the case, and with no reason to give damaging testimony except 
to establish the truth. There was no indication that his 
testimony was given pursuant to an agreement with police that 
they would "speak a good word for him" if he would carry out 
his assigned mission. Affidavits of two jurors attached hereto 
clearly establish that, had they known the truth about Evans, 
they would have discounted his testimony. Without that 
testimony, they would not have found McCleskey to be the 
triggerman in the robbery, and there would have been no death 
penalty. 

In short, this proceeding would not currently be 
before this Board had this simple act of fairness occurred. 
According to the jurors who judged and sentenced McCleskey, 
his case would have ended at the trial level with at most a 
life sentence for felony murder. 

When evidence of this police misconduct first came to 
light in 1987, McCleskey's counsel began an attempt to address 
this issue within the judicial system. As a part of that 
endeavor he sought habeas corpus relief through the federal 
courts and was assigned to Judge Owen Forrester of the United 
States District Court for the Northern District of Georgia. 
Judge Forrester is the only Judge in the federal system to 
actually hear the evidence of this police misconduct, evaluate 
witnesses and enter an Order thereon. That Order dated 
19 is attached hereto as Exhibit " ." The substance of 
the Order was that Ben Wright was totally unvelievable, and 
that Evans' status should have been made available to the jury 
in order that the jury might properly evaluate his testimony. 
As previously shown, jurors without equivocation state that had 
that arrangement been revealed to the jury, the matter would 
have terminated there since there would have been no death 
sentence imposed. 

Appeals through the federal system in this case do not 
follow a typical pattern. Generally in such cases the defense 
has lost in the courts through the appellate system. Here the 
defendant was successful in the District Court and the State 
appealed. Significant quotes from the appellate decisions are 
instructive on this issue. 

5105G/b1/13.44 

 



  

In these quotes the appellate court surmises that 
testimony of Evans was harmless. This is in direct 

ntradicti men f jurors wh i h a wh 
in effect say that it was not only harmful, it was 

rminative. The court in McCleskey v. Kemp, 753 F2d4, 877 
(1985) at page 885, admits that Evans' testimony was important 
to the prosecution, stating ".....we agree that his (Evans') 
testimony added weight to the prosecution's case, we do not 
find that it could 'in any reasonable likelihood' have affected 
the judgment of the jury." It further stated that the police 
offer to "speak a good word" for Evans was insufficient to 
amount to a promise to help (yet they did, and his escape case 
was dropped). Further, but if it did amount to a promise, it 
was harmless since "we find it unlikely that the undisclosed 
information would have affected the jury's assessment of Evans’ 
credibility." (page 884). Contradicting this entirely were 
jurors who were charged with assessing his credibility. They 
say "... [quote from affidavits]. We therefore have an 
appellate court who never saw the witnesses surmising a result 
in direct contradiction to jurors who heard the testimony and 
diagnosed it as very harmful to the defendant. It was so 
damaging that it was the sole basis on which he was sentenced. 
Had the simple and complete status of Evans been revealed, 

there would have been no surmise by the appellate court, since 
there would have been no death sentence. 

After the State's first appeal in the federal courts, 
and the appellate court's erroneous supposition that Evans’ 
testimony did not affect the jury, Judge Forrester again heard 
the matter on the direct issue of whether McCleskey's so-called 
Massiah claim was violated by the police after he was taken 
into custody. Again Judge Forrester found that his rights were 
violated, and again the State and not the defendant, appealed. 
In McCleskey v. Zant, 890 F2d, 342 (1989), the appellate court 
acknowledged that this matter is in the discretion of the 
district court (Judge Forrester) but that Judge Forrester 
"abused its discretion in failing to dismiss a clearly abusive 
petition." The effect of this is that the appellate court 
never heard the merits of the claim, but dismissed it as an 
abusive petition since the issue should have been raised 
earlier. The important fact here is that Judge Forrester is 
the only federal judge ever to hear the merits of the matters 
now presented to this Board, and Judge Forrester on two 
occasions agreed with McCleskey's position that the appellate 
courts did not consider the merits, but dismissed the petition 
on a technical point. 

5105G/bl/13.44 

 



  

Interestingly, even in the second appeal, (at page 
351) the court stated "under the harmless error doctrine, the 

state must 'prove beyond a reasonable doubt' that the error 

complained of did not contribute to the verdict obtained." 
[Emphasis added] Thus, clearly under the law when a 
circumstance like this appears, the burden is on the state to 
show that the wrongful withholding of this helpful information 
did not contribute to the verdict obtained. Addressing this 
the court went further and stated "in its previous opinion, the 
Eleventh Circuit held that the judgment of the jury that 
convicted McCleskey was not affected by the lack of 
disclosure." Further at page 353 the court said, "..... the 
court finds no reasonable likelihood that the jury's imposition 
of the death penalty was affected by Evans' testimony." 
"....this court finds beyond a reasonable doubt that the jury 
would have convicted and sentenced McCleskey as it did even 
without Evans' testimony." Therefore, the court found that the 
"ends of justice" do not "require us to entertain McCkesky's 
claim on the merits," that, had McCleskey's jurors heard the 
truth about Offie Evans, no death sentence would have been 

imposed. Had the matter rested with the federal district judge 
who heard the evidence of misconduct, the death sentence would 
have been overturned. But it did not. During several rounds 
of appeals by the prosecution, McCleskey's case became a pawn 
in a technical legal struggle over the proper role of federal 
habeas corpus review; resulting in the Supreme Court of the 
United States reinstating the death sentence on procedural 
grounds---WITHOUT EVER CONSIDERING whether McCleskey was right 
on the merits of his legal claim. 

As previously stated, at one point during the appeals, 
the United States Court of Appeals for the Eleventh Circuit 
suggested that, even if true, the evidence of police misconduct 
was "harmless" error, since knowledge of Evans' informant 
status would not have affected the McCleskey jury. 

Yet McCleskey has now obtained clear 
evidence--affidavits from the jurors--who directly contradict 
the appellate court. The court surmises what conceivably might 
have been; the jurors deal with what actually was. 

The appellate courts ultimately decided not to 
"entertain McCleskey's claim on the merits." Therefore, the 
merits of the claim were never considered by anyone except 
Judge Forrester, who found them meritorious. We go into detail 
here for the purpose of urging on this Board its responsibility 
likewise to hear the merits--hear what would have been the 

5105G/b1/13.44 

 



  

outcome had the complete truth been presented, and hear Judge 
Forrester's judicial determination, that, aside from some 
technical construction in a motion to dismiss, the State 
improperly obtained a conviction on the malice murder charge 
and its ultimate death sentence. 

Again, as stated earlier in this presentation, had 
this simple fact been divulged to the jury, there would never 
have been appeals and we would not be before this Board. We 
therefore ask this Board to look back in time and put in place 
that which should have been done in the first instance. When 
that is done, McCleskey will serve the sentence and pay the 
debt to society he owes for the crime he committed, but he will 
not forfeit his life at the hands of a jury who now state they 
would never have imposed that sentence had they known the true 
facts. Judge Owen Forrester who heard the merits of the 
matter, and independently of statements from the jurors, 
arrived at the same conclusion. 

For technical reasons within the judicial system, a 
juror is not allowed to impeach his or her own verdict. In 
that system the paper on which a verdict is written is the 
ultimate word. However, this Board is not bound by those 
restrictions; it can and should hear the truth from angry 
jurors who allege they were not given a full deck; and had they 
known what was known to the police and withheld from the jury, 
the verdict would have been different. There would never have 
been the long appeals and we would not be present before this 
Board. This Board has the power and duty to rectify the 
failure of police to present the whole truth which would have 
permitted the jury to judge the credibility of a witness on 
which they based the sentence. 

In summary, the only two tribunals (the jury and a 
federal judge) who heard the facts conclude that the death 
penalty was improperly imposed. Other courts dealt with 
procedural matters. This Board has both the power and duty to 
look beyond procedure to merits. In doing so clemency is 
indicated, and this Board should so order. 

5105G/b1/13.44 

 



  

CLA 
BEFORE THE Hoamdlosx ve” an 

BOARD OF PARDONS AND nepey \ frzhon olf ey 

STATE OF cnrennlD Jiolone? 8 ach od. 

upon Fr 
  

  

APPLICATION OF WARREN McCLESKEY APPLICATION une 
FOR A 90-DAY STAY OF EXECUTION AND FOR NO. 
COMMUTATION OF HIS SENTENCE OF DEATH 

  

  

  

BOB REINHARDT, ESQUIRE 
1001 NORTH CENTRAL AVENUE 
TIFTON, GEORGIA 31794 
TELEPHONE: (404) 382-6135 

COUNSEL FOR 
WARREN McCLESKEY 

ROBERT H. "BOB" STROUP, ESQUIRE 
STROUP & COLEMAN, P.C. 
141 WALTON STREET, N.W. 
ATLANTA, GEORGIA 30303 
TELEPHONE: (404) 522-8500 

JOHN CHARLES "JACK" BOGER, ESQUIRE 
PROFESSOR 

x UNIVERSITY OF NORTH CAROLINA 
Cf. —= SCHOOL OF LAW 

{Cor © / C. B. #3380 
CHAPEL HILL, NORTH CAROLINA 27599 
TELEPHONE: (919) 962-8516 

CO-COUNSEL FOR 
WARREN McCLESKEY 

 



  

BEFORE THE 

BOARD OF PARDONS AND PAROLES 

STATE OF 

Application of WARREN MCCLESKEY 
For a 90-Day Stay of Execution 
And for Commutation of His 
Sentence of Death 

GEORGIA 

NO. 
  

KN
X 

X
X
X
 
X
X
X
 

X
X
 

  

  

INTRODUCTION ) 
  

Warren McCleskey, by his unglersigned counsel, applies to the 

Georgia Board of Pardons and Pardles, pursuant to Article IV, 

Section 11, 

1983, 0.C.G.A. 49-9-20, 42-9-42(a 

475.3.10 (2) (6) of the Rules of 

consideration of his application 

of death, imposed by the Superior 

October 12, 1978; (ii) for a nine 

presently scheduled for the week 

consideration of his applicatio 

hearing before the full Board, Al 

and to be hard through his coynse 

for the commutation of his nten 

   
   
   

   
   

Par. II(a) and (d) of| the Georgia Constitution of 

and Chapters 475.2.01 (1) and 

this Board: (1) for 

For commutation of his sentence 

Court of Fulton County on 

ty (90) day stay of execution,   
of , to permit 
  

(iii) for a full and fair 

lowing him to present witnesses 

1; and after that review, (iv) 

ce of death. 

— 
SUMMARY OF FACTS 

on the morning of May 13, 1978, Warren McCleskey, Ben 

  

  

in soit am. T whveduchn el. 

Shes fue Arincip Haass x to clo   
 



  

Wright, Jr., Bernard Dupree and David Burney robbed the Dixie 

Furniture Store on Marietta Street in Atlanta, Georgia. They 

committed the robbery in order to get money for Ben Wright, Jr. 

who wanted to leave the Sid of Georgia to avoid being arrested 

for an armed robbery whi jecsurred in Buckhead a few weeks 

earlier. [od Ol ~~ 

ory Jenkins (Wright's siritriena) pesnaitdied 
  

Wright; Burney and 
  

a robbery in Buckhead around the end of April, 1978, according to 

Burney. Ben Wright, Jr.'S car was recognized in the Buckhead 

robbery as the sst~avesdone, and Mary Jenkins was seen driving 

it. Ms. Jenkins was apprehended days later driving in the same 

vehicle. While being questioned by police, Ms. Jenkins dated 

WRIGHT in an attempt to protect herself from being prosecuted. 

The Atlanta Police Department issued an arrest warrant for Ben 

rigng, IT od in 3 c>- Ds, Ua con 8 Mel 

On the 13th of May, Wright, M 7 

  

   
drove to a jewelry store in Marietta. Ben Wright, Jr. went 

inside the store to check it out. Wright decided not to rob it 

because it appeared unsuitable. The four then rode around 

Marietta looking for another place to rob but couldn't find 

anything fitting. Wright decided that Atlanta provided better 

opportunities for an armed robbery; therefore, they drove to 

Atlanta. Wright, assuming the role of leader, decided to rob 

Dixie Furniture Store. Each of the four men was armed. 

After "casing" the Dixie Furniture Store, Wright concluded 

that it was a good target. Wright told each man what to do. 

 



  

fie oles fo id dof Yeu Re 
y McCleskey was adyised to guard the front half of the store, while 

Wright and the pther two men guarded the rear. Wright pressured 

everyone into pledging not to tell on each other if any of them 

were ever captured. 

Atlanta Police Officer Frank Schlatt, responding to a 

silent alarm call, entered the front of the store with his 

revolver detached from the holster. Circumstantial evidence 

suggests that Ben Wright, Jr. QName bo front section of the 

store and fired two shots in the direction of Officer Schlatt. 

Court testimony revealed that one bullet hit Officer Schlatt in 

the chest and deflected off a cigarette lighter in Officer 

Schlatt's shirt pocket. The other bullet, which was fatal, 

penetrated Officer Schlatt's head through his right eye. Wright 

directed everyone to split. 

No one else in the store except the robbers and Officer 

Schlatt witnessed the shooting; therefore, the only persons who 

could testify were Ben-Wrightr—Jer—and-the other robbers. Thoui des, . 

Wright, after having killed Atlanta Police Officer Frank 

Schlatt, left Georgia and went to Pine Bluff, Arkansas. The 

other three men, who had no equal reason to run, continued living 

in Metro Atlanta. 

Ballistics testing revealed that Officer Schlatt had been 

shot by a .38 caliber Rossi revolver. The murder weapon was 

never recovered. Nonetheless, trial testimony from expert 

witnesses indicated that such a revolver had been Stee in the 

6 9 1 ALAN 

 



  

robbery of a Red Dot grocery store in Southeast Atlanta two 

months earlier. 

During the Dixie Furniture Store robbery, Wright as 

left behind a leather jacket he was wearing that had a laundry 

ticket stapled inside one sleeve. The jacket was traced by 

Atlanta police to a former owner who related he had given the 

jacket to Ben Wright, Jr. several months before. Atlanta Police 

launched a massive man hunt for Wright. In the meantime, police 

learned the names of Warren McCloskey, Bernard Dupree and David 

Burney through Mary Jenkins. Also, police discovered that Wright 

had left Georgia. 

Evidence suggests Mary Jenkins was an accomplice to the 

robbery and murder of Officer Schlatt. Jenkins possibly drove 

the get-away4car during the Dixie Furniture Store robbery. 

Wright, Burney and other witnesses identified Ms. Jenkins as the 

driver in the Buckhead robbery. Furthermore, witnesses vaguely 

remember seeing a lady fitting Ms. Jenkins' description in the 

car with the four men when Dixie Furniture was robbed. Ms. 

Jenkins was never prosecuted for the robbery and murder. Ms. 

Jenkins testified against McCleskey, Burney and Dupree. 

McCleskey was arrested at his sister's home in Cobb County 

in the early morning hours while asleep at his sister's home on 

May 31, 1978. David Burney was arrested on the same day at his 

girl friend's apartment in Atlanta's Techwood Homes. Bernard 

Dupree gave himself up to police at his lawyer's office after 

learning he was being sought in connection with the robbery and 

 



  

murder. Ben Wright, Jr. was arrested months later in Pine Bluff, 

Arkansas for a string of robberies and assaults there. When 

arrested in Arkansas, he learned that he was wanted for the 

murder of a police officer back in Atlanta. 

Wright, after being arrested in Pine Bluff, Arkansas was 

surprised and angered by the fact that Arkansas authorities knew 

he had been involved in the killing of a police officer. Wright 

QB umes that the three co-defendants had told on him. 

McCleskey and a to robbing Dixie 

Furniture, re ye killing Officer Schlatt. True to their 

pledge not to finger an accomplice, neither man identified Wright 

as the "triggerman." 

Atlanta Police officials did not advise Stensret lun 

Wright had been Fimgered by his co-defendants as the murderer. 

Suspecting that the truth had been told, Wright sought vengeance, 

and turned against his three partners. Wright was so moved by 

the fact that he had been "told on" that he devised statements 

against the three men for the Assistant District Attorney, 

Russell Parker, and Atlanta Police Investigators, Welcome Harris, 

W. K. Jowers and Sidney Dorsey. WAlthough-Wright-said-Mecleskey 

was the "tri "wi ixd i e 

  

  

Store the day of the-robbery, clearly stated that the shooting 
  

did t i i Jr. went to the front of 

the re Subchadde hus cosatiiis ) 
FEN righ testified in open court that McCleskey had a .38 

  

  

  

caliber Rossi nickel-plated revolver---again, the pistol and 

 



  

) 

murder weapon were never found. Mary Jenkins told police and 

testified that Wright was seen with the .38 Rossi weeks prior to 

the policeman's killing. However, Wright testified that he 

himself was armed with a sawed-off shotgun, and that Burney and 

Dupree had blue steel pistols. 

Wright claimed McCleskey was driving his personal vehicle, 

which was used as the get-away-car. Wright further testified 

that McCleskey parked his car up the street from the furniture 

store and that McCleskey entered the store and "cased" it. 

"After McCleskey returned to the car, the robbery was planned," 

Wright testified. In contrast, it is a known fact that Wright 

was the ring leader and brain of the group. 

According to Wright, in executing the robbery plan, 

McCleskey entered the front of the store and the other three 

entered through the rear by way of the loading dock. McCleskey 

secured the front while he (Wright) and the others rounded up the 

employees and customers in the rear and began to tie them up with 

tape and forced them to lie on the floor. The manager was forced 

by Wright, at gunpoint, to turn over the store's receipts, which 

included a watch and six dollars in cash. George Malcom, an 

employee, testified that he had a pistol taken from him at 

gunpoint by Wright. 

PY Wright thad-sivensirss y account of what happened, 

Atlanta Police Investigators were convinced that a jury would not 

return a guilty verdict against McCleskey based on Wright's 

testimony; therefore, police investigators placed a professional 

 



  

informant named Offie Evans, who used a false name, in the 

cellblock next to McCleskey, Burney and Dupree. Evans was in the 

Fulton County Jail on a federal warrant awaiting a probation 

revocation hearing on charges related to escaping from a federal 

halfway house. Evans testified at trial that McCleskey admitted 

shooting Officer Schlatt. McCleskey maintains he never made such 

a statement to Offie Evans. J Ove Rovresie ; 

Thaw = wr| ; odio In @ fedsned jude 7 
i ; that Evans was } by Atlanta 

in chucked om bh taks 
Police Investigators. Evans' testimony reflected too precisely 

the shortages in the Prosecution case, indicating that Evans had 

help with his story. Furthermore, it was verified in later court 

proceedings that Evans was a professional snitch who would 

testify on behalf of the prosecution in cases tagged "difficult 

Gore? eo get a conviction." 

2 
) JURA SUMMARY OF POINTS 

Warren McCleskey presents herein compelling reasons why 

clemency should be granted in his case. 

3. Substantial questions exist regarding the identity of 
  

the triggerman. 
  

This is a case where there is overwhelming evidence that 

four persons, including Warren McCleskey and possibly Mary Dorsey 

Jenkins, participated in an armed robbery at the Dixie Furniture 

Store on May 13, 1978. There is very little information 

available as to who of those four co-defendants was the 

triggerman responsible for the shooting of Frank Schlatt during 

that robbery. 

 



  

The gun which fired the fatal shot was never found; none of 

the persons in the store that day saw the shooting. McCleskey 

has consistently denied being the triggerman, and the only 

persons who identified McCleskey as the triggerman at the time of 

the trial were a co-defendant, Ben Wright, Jr., himself a suspect 

in light of some of the circumstantial evidence, and Offie Evans, 

a subsequently discredited informant. 

2% Co-defendants, of equal or greater culpability, 
  

received less severe sentences. 
  

Of McCleskey and his co-defendants, only McCleskey received 

the death penalty, along with two consecutive life sentences. 

Ben Wright, Jr., the acknowledged ring-leader, received a single 

20-year sentence, and has already been released and re-sentenced 

in light of subsequent robberies he masterminded. The other two 

co-defendants, Bernard Dupree and David Burney, each received a 

single life sentence. 

Not only is ere a strong suggestion from the     
   

    

  

circumstantial idence that Ben Wright, Jr. was the triggerman, 

  

aggravated assaults and a drug charge of which he received life 

plus twenty years. 

 



  

HE 

J 
thon 

3. Jurors involved in McCleskey's trial have indicated 

  

that, had they known of the background of the State's ke 

  

witness, they would have not authorized the death penalty. 

  

This is one of those very few cases in the criminal justice 

system wherein the courts have all. but acknoyledged that relief 

Lo le UecCens, 
is appropriate, but the courts have declined to grant relief. 

This should be remedied herein. 

At the time of McCleskey's trial, a police informant, Offie 

Gene Evans, whose reliability has since been found utterly 

lacking, testified before the jury. The jury was never told that 

Offie Gene Evans had been promised his freedom in exchange for 

his testimony, nor were they told that Evans had been put up to 

testifying. Furthermore, the jury was not given the information 

which subsequently came to light showing Evans lack of 

truthfulness. 

Two of the jurors have subsequently indicated that, if they 

had known of the circumstances surrounding Evans which are now 

known, they would not have imposed the death penalty. 

  

\® 4. The unreliability of an "informant" in criminal court 

proceedings. 
  

The problems with reliance on the testimony of a informant 

are self-evident. The con-man in prison wants to get out. He 

knows that he can get assistance in getting out if he helps the 

police make a case. He has a real motive to come up with a 

"confession" from a cell-mate, whether it is true or not. One 

Court has recently warned of: 

10 

 



  

an unholy alliance between con-artist convicts 

who want to get out of their own cases, law 

enforcement who are running a training ground 

for snitches over at the county jail, and the 

prosecutors who are taking what appears to be 

the easy route, rather than really putting their 

cases together with solid evidence. 

Although the courts have not recognized it in McCleskey's 

case it is precisely this "unholy alliance" which has left 

McCleskey on death row, while the likely "triggerman", Ben 

Wright, Jr., has already served his full sentence, and while 

Offie Evans, the informant, has long since gotten off free. 

5. The State's and Local Community's Position McCleskev's 
  

Death Sentence. 
  

The State was willing to enter into plea negotiations with 

McCleskey's counsel, John Turner, which would have resulted in a 

life sentence. Because of McCleskey's lack of knowledge 

regarding the surprise testimony of the unreliable informant 

Offie Wii 

Forrester 

   
   

  

a1 

 



  

Noted community leaders have expressed their opinion that 

the death sentence herein should be commuted to a life sentence. 

Among those persons who have expressed these views are the 

following: 

Moreover, Fulton County is not a jurisdiction wherein juries 

have imposed the death penalty for similar crimes. Since 1973, 

sixteen police officers have been shot and killed in the line of 

duty, and only in McCleskey's case has a death penalty been 

imposed. Similarly, in Fulton County, juries have voted to 

impose a death sentence only once since 1984. Plainly, this is 

not a case where the death penalty should be imposed. 

6. McCleskey's construction of a positive life after a 
  

childhood of deprivation. 

Although McCleskey grew up in a family and neighborhood with 

very few positive male role models, he has made his life a 

positive one, despite this extremely disadvantaged beginning. He 

has become a positive influence on death row. He is viewed, 

both by prison staff as well as other inmates, as a "peacemaker". 

Warren McCleskey is not someone who was given huge 

advantages at the start of his life and wasted them away. 

Rather, he started out with substantial disaavantagi(, and has 

overcome those difficulties to make his life a positive 

contribution to those around him. 

McCleskey was born March 17, 1945 in an impoverished section 

of Marietta, Georgia known as "Skid-row". The street where he 

12 

 



  

grew up featured a number of illegal gambling houses where 

residents supplemented their income with the sale of bootleg 

liquor to those who came to gamble. 

McCleskey, who lived his years from age four to eight with 

his aunt, Lois McMutry, in the country west of Marietta, returned 

to live with his mother and stepfather at about the age of eight. 

He came back to a house where gambling occurred nearly seven days 

a week. he and his younger sister, Betty McCleskey Meyers, 

served liquor to those present for gambling. 

Nor was Warren's childhood blessed by positive role models 

with respect to family relationships. His stepfather and mother 

quarreled constantly. It seemed that nearly every weekend for 

stretches at a time the police would be called to their house. 

Warren's stepfather, an extremely jealous man, would accuse 

Warren's mother of wrong-doings and threaten to kill her or 

physically assault her. 

The years of this violence ended as Warren was finishing 

high school. One weekend, threatened by her husband, Warren's 

mother shot and killed him. She was not prosecuted, as Cobb 

County authorities ruled that she had shot i) in self-defense. 

7. McCleskevy's Remorse. 
  

NZ McCleskey is truly as 0 2, J injury his 

participation in the Dixie Furniture Store robbery has caused the 

Le” victim's family. as McCleskey has written: 

"0 "There's not a day that goes by that I don't 
— think about the victim's family and reflect 

Ad on the hurt and pain they've endured. There 
. has been a few times when I took the 

a 0s= i 13 

 



  

initiative to make contact with the victim's 
family to express my remorse. But each time 
I was unsuccessful. I pray for the family 
each day, asking God to bless them with their 
needs and to fill their hearts with love and 
forgiveness. 

McCleskey's efforts to establish his own family: 
  

It was at the close of high school that Warren tried to 

break away from this disadvantaged beginning and make a life for 

himself. He married his high school sweetheart, Gwendolyn 

Carmichael, while still in his junior year, and the two of them 

went to live with Carmichael's aunt. A daughter, Carla, was born 

in 1963; McCleskey graduated from high school in 1964, and found 

employment with Lockheed Georgia Company. 

His devotion to wife and daughter. 
  

For a number of years, from 1963 until about 1968, Warren 

lived with his wife Gwendolyn and daughter Carla in his wife's 

aunt's house in Marietta. These were the best years of Warren's 

life, at least until that point. Although his job with Lockheed 

was a manual labor job, his young family managed economically 

because he was not paying rent to live with Gwendolyn's aunt. 

They were happy together. Warren was a devoted husband and 

father. He remains today a devoted father and grandfather. 

In an effort to establish greater independence, Warren and 

his wife moved, in 1968, to Peyton Heights Apartments in Atlanta. 

It was after that move that Warren's marriage suffered 

irreparable damage. Gwendolyn wanted to end the marriage; Warren 

14 

 



  

wanted to continue. She left him a number of times; they tried 

to reconcile a number of times. 

Stress accompanving the ending of Warren marriage: 
  

Warren was desperate to save the marriage. He believed that 

if he bought Gwendolyn nice clothes and lavished her with 

expensive gifts, she would come back and stay with him. He did 

not know how to save the marriage. The move to Peyton Heights 

made this all this all the more difficult. He had to pay rent as 

well as keep up the car payments. 

Desperate for cash to save his failing marriage, he ran into 

a man named Melvin Mann who showed him how to rob a store. After 

involving himself in a handful of robberies, Warren was arrested, 

convicted in Douglas County and pled guilty to other robberies in 

Cobb, Dekalb, Fulton and Polk counties in 1970. 

Warren was released from prison in 1977. By the time of his 

release, he had been divorced from his wife and had no place to 

go. From a halfway house on Ponce de Leon Avenue in Atlanta, he 

found work as a waiter at Oliver's in Ansley Square. Then, he 

was successful in getting a job at Dover Elevator, where he 

worked as a construction worker installing the elevators in the 

Richard B. Russell Federal Building in downtown Atlanta. 

The Co-Defendants: 
  

It appeared that his struggle for self-sufficiency was about 

to be achieved until he encountered Ben Wright, Jr. Wright was 

then, and still is, a professional criminal. He is the 

mastermind behind all his robberies. Cunning and consumed with 

15 

 



  

sly coldness, Ben Wright, Jr.is a man for who no other person is 

indispensable. 

REASONS WHY THE BOARD SHOULD COMMUTE 
WARREN McCLESKEY'S SENTENCE 

2. Significant questions exist regarding the identity of 
  

the triggerman. 
  

This is a case where a death sentence, along with two 

consecutive life sentences, was imposed upon Warren McCleskey on 

the basis of the prosecutor's argument that Mcclesikey was the co- 

defendant who fired the fatal shots. 

However, the only reliable information regarding the 

identity of the triggerman is circumstantial evidence along, and 

the circumstantial evidence suggests one of the co-defendants may 

well have been the triggerman. 

No murder weapon was never found; none of the Dixie 

Furniture Store employees or other persons in the Store during 

the shooting actually saw the shooting occur. The prosecution's 

argument to the jury was that McCleskey had to have been the 

triggerman because he carried a .38 caliber Rossi (the gun the 

State believed was the fatal weapon) and because he was the only 

co-defendant at the front of the Store when the shooting took 

place. 

However, there is significant evidence not considered by the 

jury which runs counter to this circumstantial evidence. There 

was evidence from witnesses in the rear of the Store which 

indicated that one of the other defendants had gone to the front 

16 

 



  

of the Store, and was in the front of the Store, at the time of 

the shooting. 

Witness Ben Lester Tyson made the following statement to 

police investigators that was never presented to the jury: 

"Then I heard a siren pass the street out 
there and then one of the men said, 'Here 
comes the police.' And they took off 
running, and I think they were going toward 
the front door, from the way it sounded to 
me. When the running stopped, I heard 'Bam, 
Bam, ' meaning, two shots fired and then 
everything got quiet." » 

Similarly, Witness James Grier, Jr. told the police 

investigators the following, which was not disclosed to the jury: 

"I forgot to say that after the men marched 
us in the storage room, one of the men must 
have left cause I only heard two men talking. 
I guess they all left cause it got real 

) W quiet. About two or three minutes later I 
heard two gunshots. i could hear footsteps 
like somebody was running off." 

Moreover, as to the person carrying the .38 caliber Rossi, 

Ben Wright, Jr.'s girlfriend, Mary Jenkins, told police that it 

was Wright, not McCleskey, who carried the gun in the weeks 

before the shooting. 

The other evidence which the jury had before it has since 

been discredited. As United States District Judge Forrester has 

noted, the credibility of co-defendant Ben Wright, Jr. was 

obviously impeachable, given the circumstantial evidence 

suggesting he was the triggerman. And, Judge Forrester has 

additionally noted that the testimony of the informant, Offie 

17 

 



  

Gene Evans, is not worthy of belief. Here is what Judge 

Forrester has said about Evans' testimony before the Court: 

"., . .[Tlhere are numerous internal 
contradictions within the deposition, and 
contradictions with Evans' previous 
statements, or the statements of other 
witnesses." 

The evidence of the State's key witness, then, has been 

found to be simply not worthy of belief. Given the substantial 

questions which exist regarding the identity of the triggerman, 

the Board should grant McCleskey's petition for clemency. 

2. Co-defendants, of equal or greater culpability, 
  

received less severe sentences. 
  

Given the substantial doubts regarding his role in the 

shooting, there is no basis to justify the disparity in treatment 

between McCleskey and his co-defendants. When levels of 

culpability are considered, it is clear that persons of equal, or 

greater, culpability, received lesser sentences. 

As noted, co-defendant Ben Wright, jr. was the master-mind 

of the Dixie Furniture Store robbery, a career-criminal, and some 

circumstantial evidence strongly suggests, the triggerman. Yet 

in reality, he received only a twenty year sentence. He has 

served him time, been released, and has already master-minded 

other robberies for which he is now serving a life sentence plus 

twenty years. 

Wright pled guilty in June, 1990, to two armed robberies of 

a C & S Banks in October, 1989. The District Attorney who 

18 

 



  

handled those robberies stated, "Subsequent investigation and 

statements made by all parties showed that Mr. Ben Wright was the 

instigator and the planner of those robberies." 

Two other co-defendants, Bernard Dupree and David Burney, 

each received a single life sentence. In contrast, McCleskey 

received two consecutive life sentences and the death sentence. 

The facts of the crime, and the reliable evidence available 

simply do not justify such disparities. 

Ben Wright, jr. is a man contemptuous of the judicial 

system. He boasted to the Warren McCleskey's jury about his 

criminal career and he bragged that he would lie whenever 

necessary to save his own skin. He admitted that he masterminded 

the robbery. Yet he received a twenty-year sentence. 

Given the disparities in sentences imposed for the robbery 

and shooting at the Dixie Furniture Store, Warren McCleskey's 

death sentence should be commuted. 

3. Jurors involved in McCleskev's trial have indicated 
  

that, had they known of the background of the State's key 
  

witness, they would not have authorized the death penalty. 
  

That justice was not served during the course of Warren 

McCleskey's trial is perhaps best evidenced by the testimony of 

two jurors who heard the evidence and voted to impose the death 

sentence. 

those two jurors have subsequently learned about the use of 

the informant, Offie Gene Evans, at McCleskey's trial, and have 

come forward to indicate that they would not have voted for the 

19 

 



  

death penalty had they known that the key witness was a police 

informant with motivation to lie about his testimony. 

Juror Jill Dramer has stated: 

« « « Our jury had a hard struggle with the 
evidence in this case. We discussed the 
issue of guilt or innocence for a long time. 
We were able to agree without a lot of 
difficulty that all four men, including 
Warren McCleskey, had at least participated 
in the armed robbery. But the issue of 
responsibility for the shooting was 
different. 

. « « As I said, this was for me a very close 
case. It took Evans' testimony for the State 
to prove to me, beyond a reasonable doubt, 
that McCleskey was the triggerman. Without 
Evans' testimony, I definitely would not have 
voted for the death sentence, and i believe 
at least a few other jurors would have 
agreed. . 

Let me go further. I knew then that it only 
takes on juror to hold out against the rest. 
I am certain that had I known that Offie 
Evans had an arrangement with an Atlanta 
detective =-- if I had heard Evans' testimony 
in the state habeas corpus proceedings -- I 
would never have voted to impose capital 
punishment. 

Similarly, juror Robert F. Burnette has stated as follows: 

. « « Nobody ever told us abut that [Evans 
arrangement with Atlanta police detectives] 
during the trial. It puts a very different 
light on Evans' testimony. It sounds like he 
was probably hoping to get off of his escape 
case by testifying against McCleskey. The 
jury should have known that, I think. It 
changes the State's whole case. . . . 

Like I said, we had a hard time deciding who 
did the shooting, and a hard time deciding to 
impose the death sentence. I've read the 
part of the trial transcript where Evans 
testified, and I've also read what Evans said 
in the state hearing in Butts County. I 
would definitely not have voted to sentence 

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McCleskey to death if I had thought he might 
have been the triggerman. . . 

. « . Knowing now that Evans could have lied 
to cover his deal with the detective 
definitely could have made a big difference 
to me, and to other jurors, I think =-- at 
least in deciding to give the death penalty. 

4. The State's and local community's position on 

McCleskey's death sentence: 
  

The prosecution in this case was willing to entertain plea 

negotiations which would have resulted in the imposition of a 

life sentence. Because of the unusual circumstances of his case, 

most particularly, his lack of knowledge regarding the testimony 

of the informant, Warren McCleskey did not pursue plea 

negotiations. 

Noted community leaders have asked that the Board commute 

Warren McCleskey's death sentence to one of life imprisonment. 

Included in those appeals are the following: 

[inserts quotations here.] 

Finally, a review of the treatment of other persons accused 

of shooting police officers indicates that, generally speaking, 

the Fulton County community does not believe a death sentence is 

appropriate under these circumstances. Fulton County is not a 

jurisdiction wherein juries have imposed the death penalty for 

similar crimes. Since 1973, sixteen police officers have been 

shot and killed in the line of duty, and only in McCleskey's case 

has a death penalty been imposed. Similarly, in Fulton County, 

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244 

juries have voted to impose a death sentence only once since 

1984. (See copy of attached article). Plainly, this is not a 

case where the death penalty should be imposed. 

5. Commutation is appropriate because Warren McCleskey is 

now making, and will continue to make, a positive contribution to 
  

those around him. 
  

Warren's life since his conviction in 1978 has been a 

remarkable one. He has broken away from the disadvantages of his 

childhood, and made a life for himself that is truly commendable. 

His role as a "peacemaker" on between death row inmates and 

prison guards is a positive point. Warren McCleskey has become a 

prisoner on death row who acts as a positive influence with those 

with whom he is in contact. This has been a gradual evolution 

over time -- while his counselor's notes universally have noted 

that he has had no disciplinary problems and his behavior is 

appropriate, by 1988 those notes reflect his more positive role 

with both staff and other inmates. The counselor's notes for 

March, 1988 indicate: 

He has continued to maintain a good attitude, 
continues regular participation in Chaplain 
Bible study program. It also appears that he 
has become a "peace maker" in the cell block 
according to different sources. 

His counselor's notes reflect more than once his positive 

influence on those around him: 

03/28/89: Client made no request this 
reporting period. he has been active in Rec. 
(recreation) activities. He continues to be 
a positive influence in the cell-block. 

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His counselor's notes also repeatedly reflect his good 

relationship with the prison staff. The following entry is 

representative: 

10/19/89: . . . He continues to cooperate 
well with staff and has good relationship 
with peers. Subject active in religious 
studies and yard. 

HIS RELIGIOUS STUDIES 

Further evidence that Warren McCleskey is deserving of 

commutation of his sentence is reflected in the strong role which 

religious belief plays in his life. This is not an eve-of- 

execution conversion. His counselor notes from prison indicate 

that, since 1981, on a regular basis, he has participated in 

Bible study and Chaplain's services. 

Moreover, his Bible study has resulted in completion of the 

following courses: 

- Georgia Baptist Convention, Education Extension 
Program, Special Certificate; 

- Georgia Baptist State Missions, Education Extension 
Program, "Isaiah;" 

- Georgia Baptist State Missions, Education, "Hosea" 

- United Christian International Bible Institute, 
Cleveland, Tennessee, "General Bible Knowledge I;" 

- United Christian International Bible Institute, 
Cleveland, Tennessee, "General Bible Knowledge II;" 

- Source of Light Schools, Bible Correspondence Course 
Certificate 

CONCLUSION 

On behalf of Warren McCleskey, I, Bob Reinhardt, Attorney 

for the Defendant, respectfully requests that the Board order 

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