Petitioner's First Interrogatories and Request for Production

    IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

  

WARREN McCLESKEY, 
No. 1:87-¢cv-1517~J0F 

Petitioner, 

RALPH M. KEMP, Superintendent, 
Georgia Diagnostic & 
Classification Center, 

Respondent. 

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PETITIONER'S FIRST INTERROGATORIES TO RESPONDENT 
  

Petitioner, WARREN McCLESKEY, by his undersigned counsel, 

propounds the following interrogatories to Respondent, pursuant 

to Rule 33 of the Federal Rules of Civil Procedure, Rule 6(a) 

and (b) of the Rules Governing Section 2254 Cases, and the Order 

of the District Court entered June 17, 1988. Respondent 1s re- 

quired to submit written responses to these interrogatories at 

the offices Of Robert H. Stroup, 141 Walton Street, N.W., 

Atlanta, Georgia 30303, on or before July 13, 1988. 

INTERROGATORY NO. 1   

Does the Respondent Ralph Kemp contend that he, his 

attorneys, or anyone else at his direction or under his control 

actively sought to locate Offie Evans between April 1, 1987 and 

December 23, 1987 for use as a witness in connection with 

Petitioner's successive federal habeas corpus proceedings? If 

the answer is affirmative, please describe in detail every action 

 



  

taken, by every individual or entity, on each separate occasion, 

to locate Offie Evans between April 1, 1987 and December 23, 

1987, the outcome of each such effort, and any follow-up actions 

taken as a result. 

INTERROGATORY NO. 2 
  

Does Respondent contend that he ever notified the District 

Court, and/or Petitioner McCleskey or his counsel, of his desire 

or intention to call Offie Evans as a witness during the July or 

August, 1987 evidentiary hearings in this action? If the answer 

1s affirmative, please describe in detail each such incident of 

notification. 

INTERROGATORY NO. 3 
  

Does Respondent contend that he ever made any request to the 

District Court for an additional opportunity to locate Offie 

Evans between July 1, 1987 and December 23, 1987? If the answer 

1s affirmative, please describe in detail such request. 

INTERROGATORY NO. 4 
  

Does Respondent contend that he ever sought to determine 

from Petitioner McCleskey, his counsel, or any employee or agent 

under their control, (1) the precise steps they took between 

April 1, 1987 and December 23, 1987 to locate Offie Evans, 

(11) the leads they had pursued, (iii) the persons they had 

interviewed, or (iv) the places they had been, in order to locate 

Offie Evans? If the answer is affirmative, please describe 1n 

detail such meeting or conversation with Petitioner, his counsel, 

 



  

or any such employees or agents thereof, including the date, 

time, and place of any such meeting or conversation, and all 

information obtained as a result of the meeting or conversation. 

INTERROGATORY NO. 5 
  

Does Respondent contend that he exercised "due diligence" 1n 

seeking to introduce the testimony of Offie Evans into the record 

of this action between June 1, 1987 and December 23, 1987? 1f 

the answer is affirmative, please describe in detail every action 

taken, by every individual or entity, on each separate occasion, 

that respondent believes contributes to his claim of "due 

diligence." 

INTERROGATORY NO. 6   

Identify by time, place, persons present, contents, and all 

other relevant identifying features, every communication, whether 

oral or in writing, between Offie Evans and (1) Respondent, his 

counsel, or any employee or agent acting at his direction or 

under his control, and (ii) any other person known to Respondent, 

his counsel, or any employee or agent thereof, between April 1, 

1987 and July 12, 1988. Please append to this answer —-- pursuant 

both to Rule 33 and to the Rule 34 request submitted 

contemporaneously to respondent by petitioner -- any document of 

any kind whatsoever, including any notes, diaries or diary 

entries, letters, memoranda, transcripts, affidavits, 

 



  

stenographic notes, audio or video recordings, or any other 

record whatsoever, that refers, reflects or relates to any such 

meeting, or to the contents thereof. 

INTERROGATORY NO. 7 
  

Does respondent contend that Offie Evans possesses any 

testimony or other evidence that is "material" to this action 

within the meaning of Rule 60(b) of the Federal Rules of Civil 

Procedure and the cases interpreting that Rule? If the answer is 

affirmative, please state every material fact that the testimony 

or evidence of Offie Evans contribute, and describe why 1t 1s 

material. 

INTERROGATORY NO. 8 
  

Does Respondent contend that Offie Evans possesses any 

testimony or other evidence that is "newly discovered" within the 

meaning of Rule 60(b) of the Federal Rules of Civil Procedure and 

cases interpreting that Rule? If the answer is affirmative, 

please state every fact that is newly discovered and state 

separately the date upon which it was newly discovered by (1) 

Respondent, (1i) his agents, (iii) attorneys, and (iv) other law 

 



  

McCleskey. 

June 28, 

enforcement personnel invloved with the prosecution of Warren 

Respectfully submitted, 

Fenty. X 
  ROBERT H. STROUP v 
141 walton Street, N.W. 
Atlanta, Georgia 30303 
(404) 522-8500 
Georgia Bar No. 689175 

JOHN CHARLES BOGER 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900 

ATTORNEYS FOR PETITIONER 

  

|



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN McCleskey, 

Petitioner, 

RALPH M. KEMP, Superintendent, 

Georgia Diagnostic & 
Classification Center, 

Respondent. 

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PETITIONER'S FIRST REQUEST FOR PRODUCTION 
  

Petitioner, WARREN McCLESKEY, by his undersigned counsel, 

requests Respondent to produce each of the documents listed in 

the annexed Schedule A, for inspection .and copying, at the 

offices of Robert H. Stroup, 141 Walton Street, Atlanta, Georgia 

30303, on Wednesday, July 13, 1988, at: 10:00 a.m. This request 

1s made pursuant to Rule 34 of the Federal Rules of Civil 

Procedure, Rule 6(a) and (b) of the Rules Governing Section 2254 

Cases, and the Order of the District Court entered on June 17, 

1988. 

Dated: June 29, 1988. 

 



  

Respectfully submitted, 

  

ROBERT H. STROUP 

141 Walton Street, N.W. 
Atlanta, Georgia 30303 
(404) 522-8500 
Georgia Bar No. 689175 

JOHN CHARLES BOGER 

99 Hudson Street 

New York, New York 10013 

{212) 219.1900 

ATTORNEYS FOR PETITIONER 

 



  

SCHEDULE A 
  

DOCUMENTS TO BE PRODUCED 

As used herein, "document[s]" shall means any communication 

or writing of any kind whatsoever, including without limitation 

correspondence, memoranda, notes, diaries or diary entries, 

letters, minutes, official or unofficial reports, forms, 

worksheets, pamphlets, books, articles, computer disks or tapes, 

films, video tapes, transcripts, stenographic records, 

electronically or mechanically recorded or reproduced 

communications, and all drafts and copies thereof. 

1. All documents or other communications between the 

Georgia Attorney General's Office and: 

(i) the Fulton County District Attorney's Office; {ii) 

the Fulton County Sheriff's Department; (iii) the 

Atlanta Bureau of Police Services; (iv) the City of 

Atlanta; (v) the Fulton County Probation Department; 

(vi) the State Department of Pardons and Paroles; (vii) 

the State Department of Corrections; (viii) any federal 

agency, including the Office of the United States 

Attorney, the Federal Bureau of Investigation, the 

United States Bureau of Prisons, the Secret Service; 

or any employee or agent thereof, or any division or subdivision 

of any of these entities, that refer, reflect, or relate to any 

efforts by respondent, his attorneys, or any of the entities set 

forth above, to locate, contact, or learn the whereabouts of 

Offie Gene Evans between April 1, 1987 and July 12, 1988. 

2. All documents from whatever source which refer, reflect, 

or relate to the legal status, or the whereabouts, of Offie Gene 

Evans between April 1, 1987 and July 12, 1988. 

3. All documents which refer, reflect, or relate to any 

effort by respondent or his attorneys to inform either the United 

States District Court, or petitioner Warren McCleskey or his 

attorneys, of respondent's desire, or his intention: (i) to call 

Offie Gene Evans as a witness either at the initial federal 

hearing on July 8-9, 1987 in this action, or at the rebuttal 

hearing on August 10, 1987; or (ii) to hold open and/or 

supplement the evidentiary record with testimony or affidavits 

from Offie Gene Evans if he were located prior to December 23, 

1987. 

 



  

4. All documents which refer, reflect, or relate to any 

meetings, conversations, or other communications of any kind 
whatsoever between Offie Gene Evans, or any of his family, 
friends, or acquaintances and any of the entities mentioned in 
Item No. 1 above, including any employees or agents thereof, 
between April 1, 1987 and July 12, 1988. 

5. All documents which refer, reflect, or relate to any 
oral or written statement made by Offie Gene Evans to any of the 
entities mentioned in Item No. 1 above, including any employees or 
agents thereof, between April 1, 1987 and July 12, 1988. 

5! 

 



  

LAW OFFICES 

STROUP & COLEMAN 

141 WALTON STREET, N.W. 

ROBERT H. STROUP 

ELIZABETH J. COLEMAN ATLANTA, GEORGIA 30303 

June 28, 1988 

Honorable Luther D. Thomas, Clerk 

United States District Court 
2211 United States Courthouse 
75 Spring Street, S.. W. 
Atlanta, Georgia 30335 

Re: Warren McCleskey v. Ralph M. Kemp, 
No. 1:87-¢cv-1517~-30F 
  

Dear Mr. Thomas: 

Enclosed for filing please find an original and one copy of 

Petitioner's "Certificate of Service Pursuant to Rule 225.3" 

in the above-captioned civil action. 

Thank you for your courtesy. 

Very truly yours, 

Robert H. Stroup 

RHS/1 
Encls. 
cc: Mary Beth Westmoreland, Esq. 

TELEPHONE 

(404) 522-8500 

(404) 522-3000 

eS AI I RR BER Fi By fe GRR REE EAS 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN McCLESKEY, 

Petitioner, NO. 1:87~-cv=-1517-JOF 

kg RALPH M. KEMP, 
Superintendent, Georgia 

Diagnostic & Classification 
Center, 

Respondent. 

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CERTIFICATE OF SERVICE PURSUANT TO RULE 225.3 
  

Comes now Petitioner, WARREN McCLESKEY, pursuant to Local 

Rule 225.3 and files this Certificate that he has, on this date, 

served upon Respondent Petitioner's First Interrogatories to 

Respondent, by hand delivering a copy of same to 

MARY BETH WESTMORELAND, ESQ. 
Assistant Attorney General 
132 State Judicial Building 
40 Capitol Square, S. W. 
Atlanta, Georgia 30334 

This 28th day of June, 1988. 

[ASST Breociy 
  

ROBERT H. STROUP "~ 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN McCLESKEY, 

Petitioner, NO. 1:87-cv-1517-J0OF 

RALPH M. KEMP, 

Superintendent, Georgia 
Diagnostic & Classification 
Center, 

Respondent. 

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CERTIFICATE OF SERVICE PURSUANT TO RULE 225.3 
  

Comes now Petitioner, WARREN McCLESKEY, pursuant to Local 

Rule 225.3 and files this Certificate that he has, on this date, 

served upon Respondent Petitioner's First Request for Production 

to Respondent, by hand delivering a copy of same to 

MARY BETH WESTMORELAND, ESQ. 

Assistant Attorney General 
132 state Judicial Building 
40 Capitol Square, 5. W. 
Atlanta, Georgia 30334 

This 28th day of June, 1988. 

Tebent 2 Eman 
  

ROBERT H. STROUP! 

 



  

UNITED STATES: DISTRICT COURT 

NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN MCCLESKEY, 

CIVIL ACTION NO. 

Petitioner, 1:87-cv=-1517-JOF 

Vv. 

HABEAS CORPUS 

RALPH M. KEMP, WARDEN, 28 U,s.C...§ 2254 

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Respondent. 

RESPONDENT'S ANSWER TO FIRST 

INTERROGATORIES OF PETITIONER 
  

  

Comes now Ralph Kemp, Warden, by undersigned counsel, and 

responds to the interrogatories submitted by Petitioner in the 

above-styled case. As the actual Respondent in this matter, 

who 1s no longer even the custodian of the Petitioner, had no 

input, ‘either direct or indirect, into the litigation of the 

habeas corpus proceeding in this case which is the sole basis 

for the interrogatories, the responses are made by counsel. 

INTERROGATORY NO. 1. 
  

Neither Ralph Kemp, nor counsel for Ralph Kemp nor anyone 

at his direction or under his control actively sought to locate 

Offie Evans between April 1, 1987, and December 23, 1987, due 

to the reasonable belief that any such action would be futile 

as no independent knowledge was had by either counsel, or the 

 



  

Respondent, nor any persons that counsel had contact with as to 

the whereabouts of Mr. Evans and because utilizing all the 

resources provided by the federal district court, including the 

Federal Defender's Office and by utilizing private 

investigators, counsel for the Petitioner had been unable to 

locate Mr. Evans. 

INTERROGATORY NO. 2 
  

No. 

INTERROGATORY NO. 3 
  

NO such request was made due to the reasonable belief that 

any such attempt would be futile. 

INTERROGATORY NO. 4. 
  

No such attempt was made based upon counsel's assumption 

that the representations made by counsel for the Petitioner to 

the court were an accurate reflection of those efforts being 

made on behalf of the Petitioner and the indication given by 

counsel for the Petitioner that all efforts were being made to 

locate Offie Evans. 

INTERROGATORY NO. 5. 
  

Respondent asserts that due diligence has been shown by the 

record in this case even though Respondent did not 

independently make an investigation of Mr. Evans' whereabout 

due to the fact that the court provided all possible resources 

 



  

to the Petitioner in an attempt to locate Mr. Evans including 

the Federal Defender's Office and the Petitioner made specific 

factual assertions to the court that an investigator had been 

sent and waited at Mr. Evans' home and that all attempts to 

locate Mr. Evans had been unsuccessful. Relying upon these 

factual statements by counsel for the Petitioner, Respondent 

concluded that any such further attempts would be equally 

futile and actually knew of no further attempts that could be 

made. 

INTERROGATORY NO. 6.   

Respondent nor his counsel nor any employee or agent acting 

at his direction or under his control has had any contact with 

Offie Evans: at any time, between April 1, 1987, and July 12, 

1988. The only further contact with Offie Evans with which 

present counsel is aware 1s one occasion after the court was 

advised of Mr. Evans apprehension at which time Mr. Evans 

personally telephoned Russell Parker. Other than that one 

occasion, counsel does not know of any such contact. Counsel 

does not have any notes, diaries, diary entries, letters, 

memoranda, transcripts, affidavits, etc. relating to any such 

meeting, although Mr. Parker may have such in his possession. 

As he is not being represented by present counsel and is not a 

party to this action, Respondent does not deem it appropriate 

to make any further inquiry as such could also be classified as 

 



attorney work product, although counsel has been advised that 

no substantive conversation was had. 

INTERROGATORY NO. 7. 
  

Yes. Based upon Mr. Evans' prior testimony in the state 

habeas corpus proceeding in the case of Bernard Depree and the 

inferences that can be drawn from Mr. Evans' own testimony and 

his statement, Respondent thinks that it is reasonable to 

conclude that Mr. Evans may very well testify that no one 

directed him to obtain any statements, that he was not moved in 

the jail and he was not acting as an agent for the State. 

Respondent has not talked with Offie Evans in order to avoid 

any question of impropriety or tainting of his testimony to 

ascertain precisely what his testimony might be. This is the 

whole basis for the deposition to be taken of Mr. Evans. 

INTERROGATORY NO. 8. 
  

Respondent does not contend that the information that could 

be supplied by Offie Evans is "newly discovered," but contends 

that Mr. Evans himself is a witness who was previously 

unavailable and in that sense his testimony would be newly 

discovered. Respondent had reason to believe what Mr. Evans' 

testimony might be, but he was simply not available to present 

that evidence previously. His whereabouts were not located 

until the date previously established when it was ascertained  



  

that Mr. Evans was back in Fulton County Jail. This response 

is being made based on the information presently available to 

counsel and is subject to revision should additional 

information be obtained. 

WHEREFORE, Respondent submits these responses to 

Petitioner's first interrogatories. 

Respectfully submitted, 

MICHAEL J. BOWERS 071650 
Attorney General 

MARION O. GORDON 302300 
First Assistant Attorney General 

Le Litas. Aor gl ft yl putt 
  

WILLIAM B. HILL, JR, 7/7 354725 

Senior Assistant Attorney General 

gs LN Ll inl rt 
  

MARY /BETH WESTMORELAND 750150 
Assistant Attorney General 

MARY BETH WESTMORELAND 

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

 



CERTIFICATE OF SERVICE 
  

1 do hereby certify that I have this day served 

the within and foregoing response, prior to filing the 

same, by depositing a copy thereof, postage prepaid, in 

the United States Mail, properly addressed upon: 

Robert H, Stroup : 
141 Walton Street, N.W: fad 
Atlanta, Georgia 30303 

This [J// - day of July, 1988,   

MARY /BETH WESTMORELAND / 
Agsilstant Attorney General 

  

 



  

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN MCCLESKEY, 
CIVIL ACTION NO. 

Petitioner, 1:87-cv-1517-JOF 

Va 

HABEAS CORPUS 

RALPH M. KEMP, WARDEN, 28-U.8.C. § 2254 

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OF 

Respondent. 

RESPONSE TO PETITIONER'S FIRST 

REQUEST FOR PRODUCTION 
  

  

L. 

No documentation to this effect is in existence. 

2. 

No such documentation to this effect is in existence to the 

knowledge of present Respondent and is not within the 

possession of the Respondent or counsel for the Respondent. 

Respondent has no way to determine if any documents are 

available from "whatever source." 

3 

No such documentation exists. 

 



  

4, 

To the knowledge of Respondent and counsel for the 

Respondent no such documentation exists. 

5. 

To the knowledge of counsel for the Respondent and the 

Respondent, no such documentation exists. 

WHEREFORE, Respondent submits that as no documentation set 

forth in the request for production is available, none will be 

produced at the date in question. This completes the response 

to Petitioner's request for production of documents. 

Respectfully submitted, 

MICHAEL J. BOWERS 071650 
Attorney General 

MARION O. GORDON 302300 

First Assistant Attorney General 

(ty Lr A HAY Cys vS 
  WILLIAY B. 3, 35. rr IsIs 
Senior Assistant Attorney General 

  

09.0/Y, 
aR WESTMORELAND/ 750150 

Assistant Attorney General 

MARY BETH WESTMORELAND 

132 State Judicial Building 
40 Capitol Square, S. W. 

Atlanta, Georgia 30334 

(404) 656-3349 

 



  

CERTIFICATE OF SERVICE 

1.40 hereby certify that 1 have this day served 

the within and foregoing response, prior to filing the 

same, by depositing a copy thereof, postage prepaid, in 

the United States Mail, properly addressed upon: 

Robert H. Stroup Sa 
141 Walton Street, N.W. ford 
Atlanta, Georgia 30303 

John Charles Boger 
99 Hudson Street 
New York, New York 10013 

This _ day of July, 1988, 

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es WESTMORELAND 7 

tant Attorney General Ass