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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

  

WARREN McCLESKEY, 

Petitioner, 

- against - 

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

Respondent. 

No. 1:87-cv=1517-J0F 

  

PETITIONER'S RESPONSE TO RESPONDENT'S MOTION FOR 

RELIEF FROM FINAL JUDGMENT PURSUANT TO RULE 60(B) 
  

ROBERT H. STROUP 

141 Walton Street 
Atlanta, Georgia 30303 
(404) 522-8500 

JOHN CHARLES BOGER 
99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900 

ATTORNEYS FOR PETITIONER 
WARREN McCLESKEY



  

TABLE OF CONTENTS 
  

Page 

INTRODUCTION cevccovsececssnesenne ce cevseerse vais sieves 1 

I. RESPONDENTS CANNOT MEET RULE 60(B)'s 
REQUIREMENT THAT A MOVING PARTY DEMON- 
STRATE THAT THE EVIDENCE HE OFFERS WILL 
ACTUALLY BE "NEW" ..... “ose vene vison woes ans oie 3 

Il. RESPONDENT HAS SHOWN NO DILIGENCE AT ALL, 
MUCH LESS "DUE DILIGENCE," IN SEEKING 
MR. EVANS ..cevveesse tees venissnanierse sisie a vines 6 

III. RESPONDENT HAS NOT SHOWN THAT MR. EVANS' 
TESTIMONY WOULD BE MORE THAN CUMULATIVE AND 
IMMATERIAL cccctccenecenness ssceessceeinse "oid un’ 10 

CONCLUSION ..... seas ssnsvesshersone NL TE PRO EE 14 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

  

WARREN McCLESKEY, 

Petitioner, 

- against - No. 1:87-cv-1517-JOF 

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

Respondent. 

  

PETITIONER'S RESPONSE TO RESPONDENT'S MOTION FOR 
RELIEF FROM FINAL JUDGMENT PURSUANT TO RULE 60 (B) 
  

INTRODUCTION 
  

On April 12, 1988, Respondent Ralph M. Kemp ("respondent"), 

sought leave of the United States Court of Appeals for the 

Eleventh Circuit to remand its appeal in McCleskey v. Kemp, Civ. 
  

No. 1:87-cv-1517-JOF, to this Court for further evidentiary 

proceedings. On May 2, 1988, a panel of the Court of Appeals 

denied that motion in a two-page order which is appended to this 

response as Appendix A. 

Respondent has now moved this Court pursuant to Rule 60 (b) 

of the Federal Rules of Civil Procedure for "relief from the 

 



  

final judgment of this Court" in McCleskey. (Resp. Motion, 1).1 
  

The motion should be denied. Respondent is unable to 

satisfy the strict standards required to prevail under Rule 60 in 

this Circuit. The evidence he seeks to adduce, the belated 

testimony of Offie Gene Evans, 1s not "newly discovered" under 

Rule 60(b) (2). Further, no diligence at all, much less the "due 

diligence" required by Rule 60(b) (2), was displayed by respondent 

in seeking to call Mr. Evans during the 1987 hearings. Moreover, 

respondent has not demonstrated that Evans' testimony would be 

"material" and "not merely cumulative or impeaching," as the 

leading cases require. Still less can respondent show that 

Evans' testimony "would probably produce a new result." Id. 

Respondent's motion, in short, is legally insufficient. 

Moreover, in light of (i) the generous opportunity this 

Court provided to respondent last summer to offer any rebuttal 

witnesses they chose, (ii) the utter failure of respondent, prior 

to the Court's judgment granting habeas relief, ever to 

communicate a desire to call Mr. Evans, and (iii) Mr. Evans' 

remarkable and well-documented mendacity, any equitable 

considerations strongly weigh against prolonging this litigation 

to allow respondent yet a third hearing on petitioner's Massiah 

claim. 

  

1 All references to the respondent's Motion for Relief from 
Final Judgment Pursuant to Rule 60(b), dated May 6, 1988, will be 
indicated by the abbreviation "Resp. Motion." All references to 
the accompanying Brief in Support of Motion for Relief from 
Judgment, dated May 6, 1988, will be indicated by the 
abbreviation "Resp. Brief." 

 



  

I 

RESPONDENT CANNOT MEET RULE 60(B)'S REQUIREMENT 

THAT A MOVING PARTY DEMONSTRATE THAT THE 

EVIDENCE HE OFFERS WILL ACTUALLY BE "NEW" 

Rule 60(b) of the Federal Rules provides in pertinent part: 

On motion and upon such terms as are just, 
the court may relieve a party . . . from a 
final judgment . .. '. for “the following 
reasons: (2) newly discovered evidence which 
by due diligence could not have been 
discovered in time to move for a new trial 
under Rule 59(b): . «. . Or (6) any other 
reason justifying relief from the operation 
of the judgment. 

The Eleventh Circuit recently has restated its standard for the 

consideration of an application under the second subdivision of 

Rule 60 (b): 

For newly discovered evidence to provide a 
basis for a new trial under subsection (b) (2) 
a party must satisfy a five part test: (1) 
the evidence must be newly discovered since 
the trial; (2) due diligence on the part of 
movant to discover the new evidence must be 
shown; (3) the evidence must not be merely 
cumulative or impeaching; (4) the evidence 
must be material; (5) the evidence must be 
such that a new trial would probably produce 
a new result. Ag Pro, Inc. v. Sakraida, 512 
F.2d 142, 143 (5th Cir. 1975), rev'd on other 
grounds, 425 U.S. 273 (1976). 

  

  

Scutieri v. Paige, supra, 808 F.2d at 793. "A motion for a new 

trial under Rule 60 (b)(2)," the Court emphasized, "is an 

extraordinary motion and the requirements of the rule must be 

strictly met." Id. 

In this case, respondent cannot satisfy any of the five 

requirements set forth in Scutieri. First, it is far from clear 
  

that any "new evidence" has come to light with the reappearance 

 



  

of Offie Evans. Mr. Evans, as the Court doubtless remembers, is 

no stranger to this case. He gave sworn testimony: (i) during 

Warren McCleskey's trial; (ii) during the state habeas corpus 

proceedings; and (iii) in a secret 2l1l-page statement given to 

Atlanta Police in August of 1978. All of this prior testimony 

was introduced into evidence in this proceeding. (See, Pet. Exh. 

4 (trial testimony); Pet. Exh. 16 (state habeas testimony); and 

Pet. Exh. 8 (August 5, 1978 statement)). 

Perhaps the most extraordinary thing about respondent's 

present motion is that it contains no concrete proffer of 

anything from Mr. Evans beyond what has gone before. On the 

contrary, in an effort to suggest that Mr. Evans' testimony will 

be "untainted," (Resp. Brief, 6-7), counsel for respondent has 

expressly acknowledged in her brief that she "does not know 

precisely what Mr. Evans would say were he to testify before the 

court." (Resp. Brief, at 6).2 

How could respondent, in good faith, move this Court for 

Rule 60(b) relief -- without ever having talked with the witness 

whose testimony now constitutes the basis for his motion? The 

answer, we suggest, flows from Offie Evans' near-flawless, 

decade-long record of cooperation with the State. If Offie Evans 

  

4 The representations of Ms. Westmoreland and the Attorney 
General's Office in Resp. Brief about their contacts with Mr. 
Evans, while unquestioned by petitioner or his counsel, do not 
and, we suspect, could not extend to all contacts that have taken 
place between Offie Evans and members of the Atlanta Police 
Department and/or the District Attorney's Office since April 8, 
1988, when Mr. Evans apparently reappeared in custody. It is, of 
course, during just such contacts that the Massiah violation 
previously uncovered in this case was hatched and carried out. 

4 

 



  

is now in custody, and if the State has pending charges against 

him (as it apparently does now), respondent knows to a virtual 

certainty that he's a surefire State's witness -- no need even to 

check. 

Indeed, from the outset of this case, as the Court no doubt 

recalls, Offie Evans has followed true to pattern, consistently 

seeking to accommodate his testimony to the State's evidentiary 

needs, all the while concealing or down-playing his underlying 

informant relationship with the Atlanta police. As this Court 

found last December, Evans 

repeatedly lied to McCleskey [during their in-jail 
conversations during 1978], telling him 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. 

  

(Dec. 23 '87 Order, at 20; see also, id. at 28). 

At trial -- contrary both to Mr. Evans' 21l-page Statement 

and the testimony of Fulton County jailor Carter Hamilton before 

this Court (see, Fed. I, 180-82, 189; Fed III, 78) 3 -- Mr. Evans 

assured McCleskey's jury that he had informed on McCleskey to 

police only when "[t]lhe deputy out there heard us talking," (Pet. 

  

3 Each reference to the transcript of the July 8, 1987 
hearing in this Court will be indicated by the abbreviation "Fed. 
I References to the transcript of the July 9, 1987 
continuation of the hearing, which is separately numbered, will 
be indicated by the abbreviation "Fed. II." References to the 
transcript of the August 10, 1987 hearing will be indicated by 
the abbreviation "Fed III." 

 



  

Exh. 4, at 872), and "asked me what did I know about it . 

said it sounded 1like a conspiracy." (Id., at 880). Evans 

blithely denied ever having sought to "get [his] escape charges 

altered or at least worked out." (Id., 882). 

Respondent now seeks a new hearing now because he is certain 

that Offie Evans will continue this consistent pattern of denial, 

forswearing any informant relationship with Atlanta Detective 

Sidney Dorsey. Yet, the only thing "new" about further denials 

from Offie Evans would be the additional chapter and verse Evans 

would invent to controvert the major points in Ulysses Worthy's 

testimony. Given five or more months since this Court's judgment 

to pore over newspaper accounts and, conceivably, even the 

transcripts of the 1987 hearings, Mr. Evans' performance would be 

polished, and quite predictable. 

That testimony, however, even if it had been properly 

proffered by respondent, does not suffice to meet Rule 60(b) 

standards. 

11 : 

RESPONDENT HAS SHOWN NO DILIGENCE AT ALL, MUCH 
LESS "DUE DILIGENCE," IN SEEKING MR. EVANS 

In its brief to the Eleventh Circuit, respondent's argument 

on "due diligence" focused, misleadingly, (i) on petitioner's 
  

efforts to locate Offie Evans prior to the 1987 hearings before: 

this Court and (ii) upon the expedited nature of the 1987 

hearings. (See Motion for Remand, appended to Resp. Brief, 2- 

 



  

5.)4 In response, petitioner set forth the history of 

respondent's failure to seek Mr. Evans' presence at either of the 

two hearings held in this case. (See Petitioner's Response To 

Motion for Remand, annexed to this document as Appendix B.) That 

history includes: 

(i) respondent's failure to request Mr. Evans’ 

presence during the initial, two-day hearing 

on July 8-9, 1987; 

(ii) respondent's failure to mention Mr. Evans in either of 

two letters sent to petitioner, pursuant to the express 

order of this Court, listing all rebuttal witnesses 

respondent hoped to call at the rebuttal hearing 

(copies of these letters are annexed as Appendix C);°> 

(iii) respondent's failure to mention Mr. Evans or 

the desirability of his testimony during the 

August 10, 1987 rebuttal hearing before this 

Court; and 

(iv) respondent's failure, following the Court's 
’ 

  

4 Respondent represented to the Court of Appeals that this 
case warranted a remand, because "the evidentiary hearing in the 
district court was conducted in a two day period of time with an 
execution date pending only a few days away" (Resp. Motion to 
Remand, at 5). Respondent did not once mention that this Court 
subsequently conducted a rebuttal hearing after allowing 
respondent over a month to assemble any rebuttal witnesses it chose. 

5 The Court's precise direction to respondent was as 
follows: "I want you to have decided by Tuesday prior to 
[August] the 4th, whatever that date is, whether or not you're 
going to put on evidence, and if so, give Mr. Boger some notice 
of who you're going to call and the fact that you're going to put 
on evidence and also notify my personnel." (Fed. II, at 168). 

 



  

hearings and prior to judgment, to ask the 

Court to hold the record open in case Mr. 

Evans had been located. 

Faced with this consistent record demonstrating no diligence 

at all -- not even a lukewarm interest -- in locating Offie Evans 

in 1987, respondent now suggests to this Court that "when all of 

the[] efforts from the Petitioner were unavailing, it would seem 

absurd to argue that the movant somehow could have obtained the 

testimony of Mr. Evans through any further efforts." (Resp. 

Brief, at 6). 

The argument totally misses the point. The "due diligence" 

prong of Rule 60(b) does not require proof that new evidence 

could not have been found: it requires proof that the moving 

party diligently looked. Petitioner knows of no "transferred 

intent" theory whereby his own efforts to find Offie Evans could 

somehow be imputed to respondent. 

Moreover, the record itself does more than chronicle 

respondent's failure to act: it affirmatively demonstrates that 

respondent had no desire to call Offie Evans on his own behalf 

during 1987. For example, in his brief to this Court, respondent 

has quoted testimony by Assistant District Attorney Russ Parker 

that "he had no other information concerning Mr. Evans 

whereabouts" in the summer of 1987. (Resp. Brief, at 3). What 

respondent has omitted, however, is Mr. Parker's telling response 

to a follow-up question by this Court: 

MR. PARKER: I understand he's just gotten 
out of jail, your honor, but I do not know 

8 

 



  

where he is. I assume he's in the Atlanta 

area somewhere. 

THE COURT: You have no information or leads? 

MR. PARKER: No. I could probably find him. 
I have spent enough time with him. 
  

  

(Fed. Tr at 174) (emphasis added). Petitioner's own 

representations to the Court during the 1987 hearing are fully 

consistent with Mr. Parker's impression: Offie Evans was in the 

Atlanta area during July of 1987. Petitioner's problem was in 

finding him to effect service. Mr. Parker is also undoubtedly 

correct in surmising that, had the word gone out that the State 
  

needed him, Offie Evans would have been far more obliging than he 

ever was to petitioner's process servers. 

Even more decisive as evidence of respondent's intent, 

however, are two letters forwarded to petitioner prior to the 

rebuttal hearing. In those letters, sent at the direction of 

this Court, respondent recited six witnesses whom he might call 

at the rebuttal hearing; never once did he mention calling Offie 

Evans. Had respondent actively been searching for Mr. Evans in 

late July, he could not have known for certain, two weeks before 

the rebuttal hearing, whether Evans would be found. It is 

inconceivable =-- had any diligent, good faith search for Evans 

been underway on July 29th, that respondent, under orders from 

this Court to give petitioner a list of all possible witnesses, 

would have omitted Mr. Evans' name from the list.® 

  

© Furthermore, in his motion to the Court of Appeals, 
respondent referred, to "a deposition [of Offie Evans, taken] in 
the state habeas corpus proceeding [of Warren McCleskey's co- 

9 

 



  

This record evidence establishing respondent's intentions in 

1987, moreover, is quite consistent with the carefully phrased 

position respondent now takes before this Court. Respondent does 

not actually contend that he did search for Mr. Evans; instead, 

his argument is that, if he had been looking, Mr. Evans may not 

have been found. 

That argument falls far short of Rule 60(b) (2) standards. 

The "due diligence" requirement obviously would mean nothing if 

it allowed a movant who did not actively seek evidence, later to 

reopen a settled case on nothing more than his post hoc 
  

speculation that post-judgment evidence, belatedly proffered to 

the Court, may not have turned up had he exercised the necessary 

diligence when the courtroom doors were wide open. 

IX 

RESPONDENT HAS NOT SHOWN THAT MR. EVANS' 
TESTIMONY WOULD BE MORE THAN CUMULATIVE AND IMMATERIAL 

Under Rule 60(b), the facts (i) that respondent's "new" 

evidence is not really new, and (ii) that respondent exercised no 

"due diligence" in seeking it, suffices to defeat his motion. 

Nevertheless, it is appropriate for petitioner to address the 

  

defendant, Bernard Dupree] which . . . would apparently relate 
to the Massiah claim." (Motion to Remand, at 5). This deposition 
apparently was taken long before the 1987 hearing in this Court. 
It was plainly available to counsel for respondent, who recites 
that she was "counsel of record in the [Dupree] case." 
Respondent chose not to introduce the deposition in July of 1987. 
That failure provides further evidence of respondent's 
disinclination to place the testimony of Offie Evans before this 
Court. 

10 

 



  

other three statutory criteria, which only serve to confirm that 

a new hearing is unnecessary and procedurally improper. In 

Scutieri, the Eleventh Circuit directed that Rule 60(b) motions 
  

be denied if the proffered evidence was "merely cumulative," if 

it is not "material," or if its admission would not "probably 

produce a new trial." 808 F.2d at 793. 

Respondent makes its case to satisfy these standards on the 

narrowest of possible grounds: that since "Mr. Evans himself has 

never testified concerning any move that may have taken place or 

any purported agreement," (Resp. Brief, at 7), his testimony 

would be new, material, and non-cumulative. 

This entire case, however, has turned upon one key issue: 

whether the testimony of a disinterested, contemporaneous witness 

-= former Fulton County Deputy Sheriff Ulysses Worthy-- 

supplemented by documentary evidence =-- including Offie Evans' 

2l-page statement, his trial and state habeas corpus testimony-- 

demonstrate the existence of a secret informer relationship 

between Atlanta police officers and Offie Evans. This Court 

found in December of last year, 

[a]fter carefully considering the substance 
of Worthy's testimony, his demeanor, and the 
other relevant evidence . . . that it cannot 
reject Worthy's testimony 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 no affirmative evidence that 
Worthy is either lying or mistaken. The lack 
of corroboration by other witnesses is not 
surprising; the other witnesses, like 
Assistant District Attorney Parker, had no 

te 8 

 



  

reason to know of a request to 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. 

(Dac. 23, 87 Order, 22-23). 

All the State now offers as additional evidence is 

confirmatory testimony by the informant himself, a proven liar, 

who will be motivated, as was Detective Dorsey, by "an obvious 

interest in concealing any such arrangement. "’ Can respondent 

seriously urge that this Court -- which has already weighed 

Ulysses Worthy's credibility against that of an active Atlanta 

police officer =-- should change its judgment because of further 

testimony from this persistent felony offender, a "professional 

snitch" (in the words of Atlanta Penitentiary officials, see Pet. 

Exh. 10, at 2) who doubtless will do nothing beyond elaborating 

upon a basic story -- the outlines of which have long been 

perfectly clear? What respondent now offers, in short, is 

testimony virtually guaranteed to be self-serving, redundant, 

immaterial and unworthy of belief. 

%* * %* * * * * * * * 

Then-Justice Rehnquist wrote in Wainwright wv. Sykes, 433 
  

U.S. 72, 90 (1977) that state criminal trials should be "'the 

  

7 Indeed, under present circumstances, Mr. Evans motivation 
to testify falsely obviously extends beyond his desire to fulfill 
an old, illicit agreement. Since he is once again in custody, 
apparently facing new criminal charges, he has the additional 
motivation once again to please Fulton County authorities by 
offering testimony that might, plus ca change, once again result 
in favorable treatment. 

  

  

a2 

 



  

main event,' so to speak, rath*er than a 'tryout on the road.'" 

Justice Rehnquist condemned procedural rules that "encourage[d] 

'sandbagging"” on the part of defense lawyers, who may take their 

chances" on a favorable verdict in one forum, while reserving 

additional claims or evidence for a later forum "if their initial 

gamble does not pay off." 433 U.S. at 89. 

Petitioner respectfully suggests that the principle behind 

Sykes, if not its precise holding, is equally applicable to 

respondent's actions and to his present Rule 60(b) motion. This 

Court has already conducted not one, but two evidentiary hearings 

on petitioner's Massiah claim. Respondent -- represented by two 

well-regarded members of the Attorney General's Office and 

assisted by the Assistant District Attorney who initially tried 

this case -- had over a month in 1987 to choose their witnesses 

and take their chances. They obviously made no serious effort to 

obtain Offie Evans' testimony. Instead, the August 10th hearing 

ended as follows: 

[THE COURT]; I realize it's an important 
case, so I will try to give it some urgency 
when I get it. Anything else at all? 
  

MR. BOGER; Nothing, Your Honor. 

MS. WESTMORELAND; Nothing, Your Honor. 

(Fed. III, at 122) (emphasis added). 

Nothing, indeed, has occurred since that moment on August 
  

10th which would justify reopening these proceedings or 

disturbing the finality of this Court's well-considered judgment 

in this case. 

13 

 



  

® CONCLUSION 

Respondent's motion pursuant to Rule 60(b) should be denied 

in its entirety. 

Dated: May 12, 1988 Respectfully submitted, 

ROBERT H. STROUP 

141 Walton Street, N.W. 
Atlanta, Georgia 30303 
(404) 522-8500 

JOHN CHARLES BOGER 

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

BY: 
  

14 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that I have this day prior to filing, 

served a copy of the within Petitioner's Response to Respondent's 

Motion for Relief from Final Judgment Pursuant to Rule 60(B) 

upon: 

Mary Beth Westmoreland, Esq. 
Assistant Attorney General 
132 State Judicial Building 
40 Capitol Square, S.W. 
Atlanta, Georgia 30334 

counsel of record for Respondent, by depositing a copy of same in 

the United States mail, first-class postage affixed thereto. 

This day of May, 1988. 

  

ROBERT H. STROUP 

15 

 



  

APPENDIX A 

 



  

  

  

FILED 
U.S. COURT OF APPEALS 

NE Cd ELEVENT. 19 

MAY 21988 
| B 
WHGUEL J, CORTE 

  

IN THE UNITED STATES COURT OF {APPEALS CLERK 

FOR THE ELEVENTH CIRCUIT 

  

No. 88-8085 

  

WARREN MCCLESKEY, 

Petitioner-Appellee, 
Cross-Appellant, 

versus 

RALPH M. KEMP, 

Respondent-Appellant, 
Cross-Appellee. 

  

Appeal from the United States District Court 
for the Northern District of Georgia. 

  

Before RONEY, Chief Judge, KRAVITCH and EDMONDSON, Circuit 
Judges. 

ORDER: 

Appellant/Cross-Appellee's motion for a limited remand. 

of this appeal to the United States District Court for the 

= Northern District of Georgia is DENIED WITHOUT PREJUDICE, to 

  

 



  

allow the movant to file a proper motion in the district 

court pursuant to Federal Rule of Civil Procedure 60(b). See 

Scutieri v. Paige, 808 F.2d 785, 793 (11th Cir. 1987) 

(requirements for Rule 60(b) motion); Ferrell v. Tra 

Inc., 223 F.2d 697, 698-99 (5th Cir. 1955) (district court 

has jurisdiction to consider Rule 60(b) motion while appeal 

is pending). If the district court indicates that it is 

inclined to grant the motion, then application can be made to 

this court for a remand. See Ferrell, 223 F.2d at 698-99; 11 

C. Wright & A, Miller, Federal Practice & Procedure: Civil § 

2873, at 265 (1973). If the district court denies the 

motion, the movant may appeal the denial together with its 

appeal from the grant of habeas corpus. See C. Wright & A. 

Miller, supra, at 266. 

Appellant/Cross Appellee's alternative motion to 

supplement the record on appeal is DENIED. 

 



  

  

APPENDIX B 

 



             

  

RT OF 

, 4 ih \/ A 

APR 21 1388 

    

THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

  

ATLANTA, GB 

  

NO. 88-8085 

  

WARREN MCCLESKEY, 

Petitioner/Appellee, 
Cross-Appellant, 

VS. 

RALPH M. KEMP, WARDEN, 

Respondent /Appellant, 
Cross-Appellee. 

  

ON APPEAL FROM THE UNITED STATES 

DISTRICT. COURT 

NORTHERN DISTRICT OF GEORGIA 
ATLANTA DIVISION 

  

PETITIONER'S MEMORANDUM OF LAW 

IN OPPOSITION TO MOTION FOR REMAND OR 

TO ALLOW SUPPLEMENTATION OF THE RECORD 

  

ROBERT H. STROUP 

141 Walton -St., N.W. 

Atlanta, Georgia 30303 

(404) 522-8500 

JOHN CHARLES BOGER 

99 Hudson St. 
New ‘York, N.Y. 10013 
(212) 219-1900 

ATTORNEYS FOR PETITIONER 

 



  

IN THE UNITED STATES COURT OF APPEALS 

: FOR THE ELEVENTH CIRCUIT 

  

NO. 88-8085 

  

WARREN MCCLESKEY, 

Petitioner/Appellee, 
Cross-Appellant, 

vs, 

RALPH M. KEMP, WARDEN, 

Respondent /Appellant, 
Cross-Appellee. 

  

ON APPEAL FROM THE UNITED STATES 

DISTRICT COURT 

NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

  

PETITIONER'S MEMORANDUM OF LAW 

IN OPPOSITION TO MOTION FOR REMAND OR 

TO ALLOW SUPPLEMENTATION OF THE RECORD 

  

This is a case in which the District Court granted 

habeas corpus relief to the petitioner under Massiah Vv. 
  

  

United States, 377 U.S. 201 (1964) on the basis of extensive 

evidence developed in two separate hearings before the 

Court. The first, a two-day hearing, occurred on July 8-9, 

1987. After that hearing, the District Court : gave 

respondent a full month to develop its own evidence in 

 



  

defense against petitioner's claims. At the August 10 

hearing the Court heard respondent's defense--police 

officers and a prosecutor who denied any recollection of, or 

denied outeidht the existence of, any informer relationship. 

The informer whom petitioner asserts had a secret 

relationship with Atlanta police officers, in violation of 

Massiah, was one Offie Gene Evans. Although Evans himself 

did not testify during the July or August, 1987 hearings, 

his testimony, contrary to respondent's suggestions, was 

made a part of the record in this case. It was contained 

in: 

(Ys A 21-page sworn statement, given to the Atlanta 

police officers and assistant district attorney on August 1, 

1978 in which Evans described in detail his relationship 

with petitioner McCleskey in the Fulton County Jail where 

the Massiah violation occurred. {Pet. Ex. 8); 

(2). Testimony to the jury in McCleskey's 1978 trial, 

in which Evans described his relationships with McCleskey 

and State officials. (Pet. Ex. 4); 

(3). Testimony in McCleskey's state habeas proceeding, 

in which Evans described details of his relationship with 

the Atlanta Police. (Pet. Ex. 16). 

Respondent gave no indication throughout "the 

presentation of its case in August, 1987, that it had SiLhey 

(1) sought to locate Evans or (2) believed that presentation 

of its defense was limited by Evans' absence. 

 



  

On December 23, 1987 the Court entered its order 

granting relief, and on January 15, 1988, respondent entered 

his notice of appeal. Petitioner cross-appealed January 21, 

1988. 

On the basis of the within authority, the Motion should 

be denied. 

I. RESPONDENT'S EFFORTS TO CIRCUMVENT 
ESTABLISHED PRINCIPLES OF FINALITY 
SHOULD BE DENIED 
  

In his April 12, 1988 Motion to Remand, . respondent 

proposes an end run around established principles of 

finality carefully reflected in the Federal Rules of Civil 

Procedure. Nearly four months after the District Court's 

entry of judgment for petitioner, and almost three months 

after respondent's notice of appeal in this Court, he seeks 

an order remanding this case back to the District Court for 

the receipt of additional evidence or, alternatively, an 

order permitting the record to be supplemented on appeal. 

His motion to remand is procedurally improper. Binding 

precedent in this Circuit requires a party on appeal who 

asserts a claim of "newly discovered evidence" tO make 

application, not" to the Court. of Appeals, but. to the 

District Court under Rule 60(b). See, e.9., Wilson v. 
  

Thompson, 638 : F.24 80%, 803 (5th Cir., Unit B, 1980)("'this 
  

circuit ... has expressly recognized power in the district 

court to consider the merits, and deny, a 60(b) motion filed 

after a notice of appeal, because the court's action is in 

furtherance of the appeal,'") citing Lairsey wv. Advanced 
  

 



  

Abrasives Co., 542 F.2d 928, 930(5th Cir., 1976); ‘accord, 
  

Ferrell v. Trailmobile, 223 F.2d 697 (5th Cir., 1955); AG 
  

Pro, Inc. Vv. Sakraida, 48% ¥.28'°668 - {5th Cir.,, "1973); 
  

Parrott v. Wilson, 707 F.2d 1262, at 1266-67, n. 8 (11th 
  

Cir., 1983). Wright & Miller, Federal Practice & Procedure, 
  

§2873. See also, Moore's Federal Practice, {60.30(2]. 
  

Clearly respondent has opted for this unauthorized 

procedure for the most compelling of practical reasons--he 

cannot possibly meet the strict standards of Rule 60(b). 

This Court has recently restated these strict standards in 

Scutieri v, Paige, 808 F.2d 785, 793 (11th Cir., 1987): 
  

For newly discovered evidence to provide 

a basis for a new trial under subsection 

(b)(2), a party must satisfy a five part 

test: (1) the evidence must be newly 

discovered since the trial; (2) due 

diligence on the part of the movant to 

discover the new evidence must be shown; 

(3) the evidence must not be merely 
cumulative or impeaching; (4) the 
evidence must be material; and (5) the 
evidence must be such that a new trial 

would probably produce a new result. Ag 
Pro, Inc. v. Sakraida, 512 P.24 141,.143 
(Sth Cir., 1975), rev'd on other 
grounds, '425.0.8.°273, 96 8.Ct.. 1532, 47 

L.Ed.2d 784 (1975). A motion for a new 

  

trial under Rule 60(b) (2) is an 
extraordinary motion and the 
requirements must be strictly met. Id. 

Respondent utterly fails to meet any of these Rule 60(b) 

requirements. 

A. Lack of "Newly Discovered Evidence" 
  

As noted above, Evans has given sworn testimony on the 

issue at least three times, and each of those statements was 

 



  

before the District Court. Respondent has made no showing 

that Evans has anything new to say. 

The only ''new evidence" identified by respondent--a 

deposition transcript to which he refers at p. 5 of his 

Motion--is plainly not "newly discovered" by respondent. 

The deposition was apparently taken during a "state habeas 

corpus proceeding” involving another petitioner. By 

respondent's own admission, the same Assistant Attorney 

General involved herein has been involved in the other 

habeas case, apparently long before the August 10 hearing 

below. Respondent cannot, therefore, argue that this 

deposition constitutes newly discovered evidence. 

B. Lack of Diligence 
  

Respondent cannot possibly demonstrate due diligence. 

Although he shrewdly focuses his Motion for Remand on 

petitioner McCleskey's initial efforts to locate Evans, (see 

Motion for Remand, at 2-4), respondent has failed to 

disclose to the Court that he never once sought to call   

Evans in the Court below: 

(i) Respondent gave no indication to petitioner, when, 

at the Court's direction it listed the witnesses it would 

call as part of its case, that Evans was a possible witness 

in respondent's rebuttal case (See Motion by McCleskey to 

Prohibit Recall of Witnesses, filed in the District Court 

August 5, 1987): 1 

  
1 Respondent's representation to the Court, on these facts, 

that the "evidentiary hearing in the district court was 
conducted in -a two day period of time with an execution date 

5 

 



  

(ii) Respondent did not mention his efforts or desire 

to call Evans during the August 10 rebuttal hearing; 

(iii) Nor did respondent request leave to keep the 

evidentiary record open or to supplement the record even 

after the August hearing. 

Rather than a showing of due diligence, the record 

affirmatively demonstrates a lack of diligence. 

Respondent's witness, Fulton County Assistant Attorney 

Russell Parker, stated under oath not only as respondent 

noted in his motion, that "he thought that Mr. Evans had 

just gotten out of jail and ... that Mr. Evans' ex-wife used 

to work for Dobbs House," (Motion for Remand, at 3), but 

also in the same examination, (selectively quoted by 

respondent), the following: 

THE COURT: Do you know where he is, Mr. 
Parker? You are under oath. 

MR. PARKER: I understand he's just 
gotten out of jail, your honor, but I do 
not know where he is. I assume he's in 

the Atlanta area somewhere. 

THE COURT: You have no information or 

leads? 

MR. PARKER: No. 1 could probably find 
him. I have spent enough time with him. 
(Emphasis added). 

  

  

Respondent, furthermore, could have moved under Rule 7 

of the Rules Governing Section 2254 Cases to expand the 

record to include respondent habeas corpus deposition of Mr. 

  

pending," (Motion to Remand, at 5) is both incomplete and 
serious misleading. 

 



  

Evans, mentioned in his Motion for Remand (see Id., at 5) 

that he now cites to prove that Mr. Evans' testimony would 

be critical. ‘He did not do so. 

Under these circumstances, respondent surely recognizes 

that he can never demonstrate either "newly discovered 

evidence" or "due diligence" to the District Court as Rule 

60(b) requires. As an alternative strategy, therefore, he 

has chosen to attempt a bypass of the District Court 

altogether, and obtain from: this Court what he is not 

entitled to under the Federal Rules of Civil Procedure--a 

third chance, beyond the initial July 8-9 hearing and the 

follow-up August rebuttal hearing--to relitigate the facts 

of a constitutional claim he lost below. Moreover, 1 

appears unlikely that respondent could show that additional 

testimony from Evans was (i) not cumulative or (ii) such 

that a new hearing would probably produce a new result. 

Inability to do either would defeat a Rule 60(b) motion. On 

this basis then, the motion for remand should be denied. 

II. DIRECT SUPPLEMENTATION OF RECORD IN 

THIS COURT IS ALSO INAPPROPRIATE 
  

Alternatively, respondent has proposed "that this Court 

allow time for the parties to depose Mr. Evans and to 

supplement the record in this Court with that deposition," 

(Motion for Remand, at 6), relying on the Court's "inherent 

equitable authority to supplement the record in unusual 

circumstances." The suggestion--that this Court authorize 

bypassing entirely the District Court's traditional 

 



  

functions of judging witness credibility and finding facts 

on the basis of credibility determinations--is astonishing 

and unprecedented. 

This Court no doubt has the discretion to supplement 

the record for limited purposes. Dickerson v. Alabama, 667 
  

F.2d 1364 {(11th.Cir., 1982). In Dickerson, the Court of 
  

Appeals noted that the omitted item was a state trial 

transcript, and that '"the proper resolution of the 

substantive issues in this case. . . . is beyond any doubt." 

867: F. +24 at 1367. 

Here the nature of the material offered and its 

relationship to resolution of the case are far different 

from the cases, like Dickerson, supra, where the Court has 
  

permitted supplementation of the record. Respondent does 

not propose that this Court supplement the record with 

evidence omitted by error, on which each of the parties had 

previously relied. Rather, respondent seeks remand for a 

new deposition. And, respondent does not seek to present 

evidence to confirm a matter "not in serious dispute between 

the parties," but rather to cast doubt on a thorough and 

well-founded opinion by the District Court. on:..both of 

these grounds, then, this case is outside the limited 

exceptions contemplated by Dickerson. 
  

Nor does Ross v. Kemp, 785 F.2d 1467 (11th Cir., 1986), 
  

the sole authority cited by respondent, support the result 

sought herein. In that case, the Court supplemented the 

record for the limited purpose of deciding whether or not to 

 



  

remand the case for further proceedings on the merits in a 

case where a Rule 60(b) motion was no longer possible. Ross 

v. Kemp, at 1474-77. 

Here, by contrast, respondent apparently seeks to 

depose Evans for use in this Court in an effort to undermine 

the extensive fact findings which were the basis for the 

District Court's judgment. Conveniently for respondent, 

this would avoid the obvious problems with Mr. Evans' lack 

of credibility.2 By circumventing the District Court's 

traditional fact-finding and credibility evaluation, 

respondent apparently hopes to have this Court credit a 

witness whose testimony is not credible. 

The District Court's judgment below is based, in large 

part, upon its assessment of the «credibility of a former 

Fulton County Chief Deputy jailer, Ulysses Worthy. Worthy 

testified, and the Court found, that Worthy had heard an 

Atlanta police of Eicer, assigned to the McCleskey 

investigation, ask Evans to move to a cell next to McCleskey 

for the purpose of engaging McCleskey in conversation, 

winning his trust, and interrogating him about details of 

the crime. - (Order, at 21-22). Evans' 21 page statement, 

taken together with Worthy's «credited testimony, leaves 

little room to dispute the District Court's findings. 

  

2 Evans has been described in the record as '"a professional 
snitch," whose word one should '"take with a grain of salt." 

{Pet. Ex. 10, at 2). 

 



  

Conclusion 
  

Because respondent has utterly failed to show grounds 

for either a remand or supplementation of the record on 

appeal, the motion should be denied. 

Respectfully submitted, 

Tatert x, XL roce, 
ROBERT H. STROUP 

141 Walton St., Bd 

Atlanta, Georgia 30303 
(404) 522-8500 

  

JOHN CHARLES BOGER 

99 Hudson St. 

New York, N.Y. 10013 

(212) 219-1900 

ATTORNEYS FOR PETITIONER 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that I have this day prior to filing, 

served a copy of the within pleadings upon: 

Mary Beth Westmoreland, Esq. 
Assistant Attorney General 
132 State Judicial Building 
40 Capitol Square, S. W. 
Atlanta, Georgia 30334 

counsel of record for Respondent, by causing a copy of same to be 

delivered by hand to said counsel at the above address. 

This 21st day of April, 1988. 

[ote nt Xe Eoin 
  ROBERT H. STROUP 

 



Then © what SA mentored fo 

og 
ROBERT H. STROUP 

STROUP & COLEMAN 

141 WALTON STREET, N.W TELEPHONE 
ATLANTA, GEORGIA 30309 (404) 522-8500  



  

APPENDIX CO 
  

 



The Hepartment of Lato 

State of Georgia 

Atlanta 
MICHAEL J. BOWERS 30334 132 STATE JUDICIAL BUILDING 

ATTORNEY GENERAL TELEPHONE (404) 656-3300 

        

  

July 29,.1987 

Mr. John Charles Boger 
NAACP Legal Defense and Education Fund 
99 Hudson Street 
New York, New York 10013 

Re: McCleskey v. Kemp, No. C87-1517A. 
  

Dear Mr. Boger: 

This letter is in confirmation of our telephone conversation of 

July 28, 1987, regarding the above-styled case. During our 
telephone conversation I informed you that counsel for 
Respondent will possibly recall for cross-examination all of 
those witnesses who previously testified before the Court on 
July 8th and July 9th. Because witnesses Dorsey, Harris, 
Parker, Jowers, Worthy and Hamilton immediately came to mind, I 
specifically named these individuals. I also informed you that 
our preparation for the upcoming evidentiary hearing is not vet 
complete, and because we are still in the process of talking to 
people the situation may very well arise where someone comes to 
light who has not previously been called to testify. I advised 
you that if this situation occurs, I will apprise you of the 
name of such individual(s) immediately. 

Immediately after our telephone conversation on July 28, 1987, 
I contacted Judge Forrester's office and informed his secretary 
that counsel for the Respondent did in fact desire an 
evidentiary hearing, and that at present the possibility 
existed that Respondent would recall all of those witnesses who 
previously testified on July 8th and July 9th. I also informed 
Judge Forrester's secretary that counsel for the Respondent 
were still making preparations for the upcoming evidentiary 
hearing and that we were not, and had not been operating under 

 



   

  

Mr. John Charles Boger 
July 29, 1387 
Page =-2- 

the assumption that all potential witnesses not identified by 

counsel for Respondent and made known to counsel for Petitioner 
on or prior to July 28, 1987, could not be called by counsel 
for Respondent at the upcoming evidentiary hearing. I further 
informed Judge Forrester's secretary that as the names of new 
potential witnesses became available I would relay that 
information to you immediately. I finally requested that if 
this office's understanding of Judge Forrester's intentions 
with reference to the exchange of the names of witnesses was 
incorrect, that I please be apprised of such as soon as 

possible. 

In concluding, you will also recall that I specifically 
requested that if you, on behalf of Petitioner, are able to 
identify any witnesses that you intend to present at the 
upcoming evidentiary hearing, that you please apprise us of the 
names of these witnesses as soon as they become known to you. 

WILLIAM B. HILL/ JR. 
Senior Assistan 
Attorney General 

WBH/bh 

cc: Honorable J. Owen Forrester 

United States District Court 
2367 U.S. Courthouse 
75 Spring Street, S.W. 
Atlanta, Georgia 30303 

 



The Department of Lato 

State of Georgia 

Atlanta 
MICHAEL J. BOWERS 30334 132 STATE JUDICIAL BUILDING 

ATTORNEY GENERAL TELEPHONE (404) 656-3300 

  

      

  

July 24, 1987 

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

RE: Warren McCleskey v. Ralph Kemp, No. C87-1517A 
  

Dear Mr. Boger: 

As you will recall at the conclusion of the most recent hearing 
in the above-styled case, Judge Forrester indicated that I 

should advise you if I were going to put on evidence in the 
case and, if so, to give you some notice of who I might be 
going to call. This is to advise you that I do intend to put 

on evidence in the matter at such time as Judge Forrester 
schedules a definite hearing date. At this time, however, I do 
not have a definite idea of the exact witnesses I will be 
calling. I have not been able at this time to formulate a 
precise witness list. I do anticipate recalling some of the 
witnesses who testified in the two-day hearing before Judge 
Forrester, particularly those that I did not cross-examine at 
that time. There may be additional witnesses who did not 
testify at that hearing, but if I make such a determination, I 
will attempt to let you know as soon as I can. As I said, I 
simply do not have a definite formulation at this time of the 
witnesses I will call. 

By copy of this letter I am also notifying Judge Forrester's 
office of my intent to proceed with the evidence in this 
matter. I will contact you subsequently to give you a more 

definite idea of the witnesses I may call at the proceeding. 

 



  

John Charles Boger 

July 24, -1987 
Page -2- 

Respectfully submitted, 

MARY BETH WESTMORELAND 

Assistant Attorney General 

   

MBW:caa 

CC: Robert H. Stroup 

141 Walton Street 
Atlanta, Georgia 30303 

Honorable J. Owen Forrester 

United States District Judge 
2367 U.S. Courthouse 
75 Spring Street, S.W. 
Atlanta, Georgia 30303 

 



   



  

I] 

Ld 
v 

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN MCCLESKEY, 

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

v. 

RALPH M. KEMP, WARDEN, 

* 
% 

* 
% 

¥ 
% 

* 
OF 

* 

Respondent . 

MOTION FOR RELIEF FROM FINAL JUDGMENT 
PURSUANT TO RULE 60(B) 
  

  

Comes now Ralph Kemp, Warden, Respondent in the 

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

General for the State of Georgia, and submits the instant 

motion pursuant to Rule 60(b) of the Federal Rules of Civil 

Procedure for relief from the final judgment of this Court 

entered on December 23, 1987. Respondent specifically requests 

this relief based on all the reasons set forth in the brief 

submitted contemporaneously with this motion. 1In particular, 

Respondent asserts that Offie Gene Evans is now available and, 

as the court is well aware, he was not available at the time of 

any of the prior hearings on the instant petition in this 

Court. Respondent specifically requests this relief based upon 

Rule 60(b) (2) and (6). 

 



  

WHEREFORE, Respondent prays that the instant motion be 

granted by this Court and further would request expeditious 

ruling due to the pendency of the appeal in the United States 

Court of Appeals for the Eleventh Circuit. 

Respectfully submitted, 

MICHAEL J. BOWERS 071650 
Attorney General 

MARION O. GORDON 302300 
First Assistant Attorney General 

wv 
LJ 
v 

Wilton? B.A. 
WILLIAM B. HILL, JR. 854723 
Senior Assistant Attorney General 

  

  

: (Le. 2 D0 ¢ 
MARY TH WESTMORELAND 750150 
Assis¥ant Attorney General 

MARY BETH WESTMORELAND 

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

 



  

CERTIFICATE OF SERVICE 
  

I do hereby certify that I have this day served 

the within and foregoing motion, 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. 

Atlanta, Georgia 30303 

2 

* 
4 

John Charles Boger 
99 Hudson Street 

New York, New York 10013 

This GUA day of May, 1988. 
  

      
  

TH WESTMORELAND 

Assis¥ant Attorney General 

 



  

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN MCCLESKEY, 

CIVIL ACTION NO. 
Petitioner, 1:87-¢cv-1517-J0F 

Vv. 

RALPH M. KEMP, WARDEN, 

* 
¥ 

3%
 

HF
 

% 
H+
 

¥ 
¥ 

% 

Respondent. 

BRIEF IN SUPPORT OF 

MOTION FOR RELIEF FROM JUDGMENT 
  

  

As this Court is aware, the instant proceeding involves a 

petition for a writ of habeas corpus which the Respondent has 

consistently asserted is an abuse of the writ. After 

conducting evidentiary hearings, however, this Court deemed 

that at least as to an alleged violation of Massiah Vv. United 
  

States, 377 U.S. 201 (1964), there was not an abuse of the 

writ. In particular, this Court found a Massiah violation with 

relation to the testimony of Offie Gene Evans based primarily 

upon the testimony of Ulysses Worthy at the hearings before 

this Court. In so doing, this Court credited the testimony of 

Mr. Worthy as to a movement of Evans in the Fulton County Jail, 

necessarily rejecting other information available in the 

record. 

Respondent recognizes that Mr. Evans did testify at trial 

and also testified at the state habeas corpus hearing; however, 

 



  

’ 

Ld 
v 

no questions were asked of Mr. Evans concerning whether he had 

been an agent of the state at the time of any conversations or 

particularly whether he had been moved to a particular cell or 

placed in a particular cell with directions to overhear 

conversations of the Petitioner. The Petitioner had the 

opportunity to ask these questions in order to prove his case 

but did not do so. No other evidence was offered by the 

Petitioner in support of his case at that time. 

In the hearings before this Court, extensive discussions 

were had on the record concerning attempts to locate Mr. 

Evans. Although counsel for the Respondent never stated on the 

record that any attempts had been made by the Respondent to 

locate Mr. Evans, this seemed to be unnecessary as an attempt 

actually would have been futile in light of the numerous 

assertions by counsel for the Petitioner of the attempts made 

on behalf of the Petitioner to locate Mr. Evans. In Fact, on 

July 8, 1987, at the beginning of the hearing, this Court noted 

that the federal marshall had tried to serve Mr. Evans at this 

sister's house, but the sister had no idea of his whereabouts. 

{T. 7/8/87 at 3), At that same hearing, counsel for the 

Petitionss, Mr. Boger, noted that two assistants were trying to 

locate Mr. Evans. id. at ‘17. Mr. Boger later announced that 

the subpoena for Mr. Evans had been returned unserved. Mr. 

Boger stated that he thought Evans was a critical witness and 

was even considering applying for a bench warrant and also 

 



  

observed that Mr. Evans was a fugitive from probation in Fulton 

County at the time. Id. at 22. The Fulton County Assistant 

District Attorney was asked if he had any information concering 

the whereabouts of Mr. Evans and he stated that he thought that 

Mr. Evans had just gotten out of jail and other than the fact 

that Mr. Evans' ex-wife used to work for Dobbs House, he had no 

other information concerning Mr. Evans whereabouts. Id. at 174. 

On July 9, 1987, Mr. Boger noted that he had a "modest" 

lead and was hoping to find Mr. Evans that day. (T. 7/9/87 at 

3). On that same day, this Court noted that the only witness 

that was germane to the issue that had not been called to 

testify was Offie Evans. Mr. Stroup noted that a private 

investigator who was a former F.B.I. agent had been unable to 

locate Mr. Evans and Mr. Stroup also noted that the Petitioner 

had not had the PLATE UAL £0 cross-examine Mr. Evans with his 

prior written statement. ig. at 135, 

From the above it is clear on the face of the record that 

at--least the Petitioner and the court considered Mr. Evans to 

be a critical witness at the time of the proceedings in the 

district court. Certainly, the Petitioner, when he did not 

know if this Court would rule in his favor, felt that Mr. Evans 

was critical to his case. Now that this Court has ruled in his 

favor, the Petitioner seems to feel otherwise based upon his 

response in the Eleventh Circuit. 

 



  

’ 

* 
Ld 

As noted previously, although Mr. Evans has testified in 

other proceedings, Mr. Evans has never testified before this 

Court and has never had the opportunity to offer testimony and 

no party has had the opportunity to examine Mr. Evans 

concerning the allegations made by Mr. Worthy and his testimony 

before this Court which served as the entire basis for this 

Court granting habeas corpus relief. 

On Monday, April 11, 1988, counsel for the Respondent 

learned for the first time that Mr. Evans was back in Fulton 

County Jail. Counsel learned this through a telephone 

conversation with Russell Parker who had received the 

information on April 8, 1988, but had been unable to 

communicate this information to counsel for the Respondent as 

counsel was out of town on that date. On April 12,1988, 

counsel for the Respondent filed a motion to remand in the 

United States Court of Appeals for the Eleventh Circuit setting 

forth the above facts. The motion was filed in the United 

States Court of Appeals for the Eleventh Circuit not only due 

to the fact that the appeal was pending in that court, but 

specifically due to the fact that the briefing schedule was 

lean and Respondent's brief was due in that court on May 9, 

1988. Counsel sought the fenand in order to obviate the 

necessity of pursuing with a briefing schedule if the court was 

inclined to remand the case for further proceedings in this 

 



  

Court. (A copy of this motion is attached to the instant 

document). On May 2, 1988, the Eleventh Circuit issued an 

order denying a motion for limited remand without prejudice to 

allow counsel for the Respondent to file a motion under Rule 

60(b). i 

Respondent hereby requests this Court pursuant to Rule 

60(b) (2) and (6) to grant Respondent relief from the judgment 

previously entered by this Court. This request is made 

specifically based upon the present availability of Offie Gene 

Evans, who to the knowledge of counsel for the Respondent is 

still incarcerated in Fulton County Jail on other charges. 

Counsel for the Respondent has purposely not talked to Mr. 

Evans in order to avoid any allegations of a taint of his 

testimony and has further urged the appropriate Fulton County 

authorities to not have any contact with Mr. Evans for the same 

reason. 

The Eleventh Circuit Court of Appeals set forth the 

standards governing a motion for new trial under Rule 60(b) (2) 

based upon newly discovered evidence in Scutieri v. Paige, 808 
  

F.2d 785, 793 (11th Cir. 1987). Respondent submits that 

although Mr. Evans' testimony does not fit in the normal 

category of newly discovered evidence in the sense of being a 

totally new witness, his testimony would certainly constitute 

  

lit should be noted that this order was not received by 
counsel for the Respondent until May 5, 1988. 

 



  

’ 
* 
r 

newly discovered evidence insofar as it relates to the 

testimony of Mr. Worthy. It is clear that this particular 

evidence from Mr. Evans, whatever it may be, has been newly 

discovered since the time of the hearings inthis Court’ and 

certainly since the time of the entry of judgment. Although 

several months that passed since the judgment of this Court, 

Mr. Evans was only reincarcerated by the Fulton County 

authorities on April 8, 1988. Thus, this satisfies the first 

prong of the test set forth in Scutieri. Secondly, although 
  

the record does not reflect that the movant actually made 

efforts to obtain the testimony of Mr. Evans, the record is 

replete with efforts by counsel for the Petitioner to obtain 

the presence of Mr. Evans at the most recent hearings, 

including seeking information from the assistant district 

attorney as to Mr. Evans' gossible whereabouts. When all of 

these efforts from the Petitioner were unavailing, it would 

seem absurd to argue that the movant somehow could have 

obtained the testimony of Mr. Evans through any further efforts. 

The third requirement set forth by the Eleventh Circuit is 

that the evidence not merely be cumulative or impeaching. The 

evidence certainly would not be merely impeaching and would 

also not be merely cumulative. At this time, as noted 

previously, counsel for the Respondent does not know precisely 

what Mr. Evans would say were he to testify before the court. 

Counsel is purposely not talking with Mr. Evans to avoid any 

 



  

allegations of a taint of his testimony. The testimony would 

not be merely cumulative as there has never been any testimony 

from anyone other than Mr. Worthy concerning this purported 

move or at least anyone who has acknowledged that it happened 

and Mr. Evans himself has never testified concerning any move 

that may have taken place or any purported agreement. This 

certainly would meet the materiality requirement set forth in 

Scutieri as it relates precisely to the issue upon which this 
  

Court granted relief. Finally, it is quite probable that Mr. 

Evans' testimony could produce a different result based upon 

indications from his statement and his prior testimony that 

imply that he might have been placed in the cell next to Mr. 

McCleskey from the outset and had no contact with police 

officers until the time after he overheard the testimony of Mr. 

McCleskey. | 

Under these circumstances, Respondent submits that the 

requirements of Rule 60(b) (2) have been met. Furthermore, even 

if this Court does not find these precise requirements have 

been met, Rule 60(b) (6) provides for the granting of such 

relief for "any other reason justifying relief from the 

operation of the judgment." Respondent submits that under the 

unusual circumstances of the instant case, the present 

availability of Mr. Evans certainly justifies the granting of 

relief from judgment and the conducting of an additional 

 



  

» 
J 
Ld 

hearing by this Court for the purpose of obtaining the 

testimony of Mr. Evans on the exact issue on which this Court 

granted relief. 

Finally, should this Court have some concern as to whether 

the evidence of Mr. Evans may or may not be material, 

Respondent would, in the alternative, request that this Court 

grant leave to take the deposition of Mr. Evans pending appeal 

in order to perpetuate his testimony and to further establish 

the materiality thereof, as contemplated in Rule 27{b) of the 

Federal Rules of Civil Procedure. It is not suggested as a 

primary method for the presentation of Mr. Evans' testimony, 

but suggested only as an alternative should the Court conclude 

that the requirements of Rule 60(b) have not been met. 

WHEREFORE, Respondent prays that the Court grant the 

instant motion or at least Storia sufficient indication that 

it would be inclined to grant said motion so that Respondent 

might apply to the Eleventh Circuit Court of Appeals for a 

remand as indicated in the order of that court dated May 2, 

1988. Respondent further requests that the Court rule 

expeditiously due to the fact that the briefing schedule is 

sll i in the Eleventh Circuit Court of Appeals. “On May 5, 

1988, Respondent filed a motion in that court to stay the 

briefing schedule and will advise this Court telephonically of 

the ruling on that motion. Respondent would also request 

 



  

expeditious ruling so that if the testimony of Mr. Evans is to 

be taken, the possibility of taint by contact with any other 

person can be avoided if at all possible. Respondent would 

also note for the Court's information that the codefendant's 

case of Bernard Depree v. Lanson Newsome, Civil Action No. 
  

1:85-cv-3733-RLV, has previously been remanded to the district 

court by the Eleventh Circuit Court of Appeals, based upon the 

written statement of Offie Evans and the prior developments in 

this Court and is presently pending before Judge Vining on 

questions of the application of collateral estoppel to that 

case on the "agency" issue and the testimony of Offie Evans and 

as well on the Respondent's motion for leave to take the 

deposition of Offie Evans to perpetuate testimony in that case 

as well. 

WHEREFORE, Respondent prays that the instant motion be 

granted. 

Respectfully submitted, 

MICHAEL J. BOWERS 071650 
Attorney General 

MARION O. GORDON 302300 

First Assistant Attorney General 

 



  

tlittiarnB. slice) Jos 
WILLIAM B. HILL, 2 54725 
Senior Assistant Se tornes General 

  

Whee Dss CLA IC 
MARY TH WESTMORELAND 750150 
Assistant Attorney General 

  

MARY BETH WESTMORELAND 

132 State Judicial Building 
40 Capitol Square, S. W. 
Atlanta, Georgia 30334 

(404) 656-3349 

» 

J 
[4 

-10~ 

 



  

CERTIFICATE OF SERVICE 
  

I do hereby certify that I have this day served 

the within and foregoing brief, 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. 

Atlanta, Georgia 30303 

. 

NM 
r 

John Charles Boger 

99 Hudson Street 
New York, New York 10013 

  

pr This __ (pYA day of May, 1988. 

Dleoilotialontnoee fot 
} TH WESTMORELAND / 

nl ant Attorney General 

  

-1]1- 

 



   



    

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

  

88-8085 

  

WARREN MCCLESKEY, 

Vv. 

RALPH KEMP, WARDEN, 

Petitioner/Appellee, 
Cross-Appellant, 

Respondent/Appellant, 
Cross-Appellee. 

  

ON APPEAL FROM THE 
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

  

MOTION FOR REMAND OR TO 
ALLOW SUPPLEMENTATION OF THE RECORD 

  

Please serve: 

MARY BETH WESTMORELAND 
132 State Judicial Bldg. 
40 Capitol Square, S.W. 
Atlanta, Georgia 30334 
(404) 656-3349 

MICHAEL J. BOWERS 
Attorney General 

MARION O. GORDON 
First Assistant 
Attorney General 

WILLIAM B,. "HILL, JR. 
Senior Assistant 
Attorney General 

MARY BETH WESTMORELAND 
Assistant 

Attorney General 

 



  

» 

A 
[ 4 

  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

  

NO. 88-8085 

      

WARREN MCCLESKEY, 

Petitioner/Appellee, 
Cross-Appellant, 

Vv. 

RALPH KEMP, WARDEN, 
« 

Respondent/Appellant, 
Cross-Appellee. 

  

ON APPEAL FROM THE 
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

  

MOTION FOR REMAND OR TO 
ALLOW SUPPLEMENTATION OF THE RECORD 
  

Comes now Ralph Kemp, Warden, Respondent/Appellant, 

Cross-Appellee in the above-styled action, and makes the 

instant motion for’ this Court to remand the proceedings to 

the district court, prior to briefing and argument in this 

Court, for an additional evidentiary hearing or, in the 

alternative, to allow supplementation of the record in 

this case for the following reasons: 

 



  

» 

* 
4 

    

The instant proceedings involve a petition for a writ 

of habeas corpus which the Respondent/Appellant has 

consistently asserted is an abuse of the writ, The 

district court, however, determined that at least an 

allegation as to an alleged violation of Massiah v. United 
  

States, 377-U.S. 201 (1964), was not an abuse of the 

writ. In particular, the district court found a Massiah 

violation with relation to the testimony of Offie Evans 

based upon an allegation that Mr. Evans acted as an agent 

of the state in obtaining statements from the . 

Petitioner/Appellee. An evidentiary hearing was held 

before the district court at which time various witnesses 

testified, but no testimony was presented from Mr. Evans, 

due to his unavailability. Although Mr. Evans had 

testified at trial ane at the state habeas corpus hearing, 

no questions were asked of Mr. Evans concerning whether he 

had been an agent OF the stete at the time, or whether he 

had been placed in a particular cell to overhear 

conversations of the Petitioner/Appellee. 

In the hearings before the district court “in this 

matter, extensive discussions were had concerning the 

attempts to locate Mr. Evans. At the beginning of the 

hearing on July 8, 1987, the court noted that the federal 

marshall had tried to serve Mr. Evans at his sister's 

 



  

Fl 

    

house, but the sister had no idea of his whereabouts. {T. 

1/8/87 at 3). Petitioner's counsel, Mr. Boger, noted 

subsequently that there were two assistants trying to 

locate Mr. Evans. id. at 17. Later Mr. Boger announced 

that the subpoena on Mr. Evans had been returned 

unserved. At that time Mr. Boger stated that he thought 

that Mr. Evans was a critical witness and was considering 

applying for a bench warrant. He noted at that time that 

Mr. Evans was a fugitive from Probation in Fulton County. 

Id. at 22. The Pulton County assistant district attorney 

also provided the little information he had and stated 

that he thought that Mr. Evans had just gotten out of Jail 

and other than the fact that Mr. Evan's eX-wife used to 

work for the Dobbs House, he had no other leads. Ide at 

174. 

At the hearing on July 9, 1987, Mr. Boger noted that 

he had a "modest" 182d and was hopeful to find Mr. Evans 

that day although other leads had proven unsuccessful. 

(T. 7/9/87 at 3). Subsequently that day, the court 

specifically noted that the only witness that was germane 

to the issue that had not been called to testify was Offie 

Evans. Mr. Stroup, counsel for Petitioner/Appellee, noted 

that they had sent out a private investigator who was a 

former F.B.I. agent who had been unable to locate Mr. 

Evans. Mr. Stroup also noted that they had not had the 

 



i | 

  

c
o
n
 

    

opportunity to cross-examine Mr. Evans with his prior 

written statement. Id. at 135. 

From the above it was clear that Mr. Evans was 

unavailable at the time of the proceedings in the district 

court, but was considered to be a critical witness by the 

court and counsel for the Petitioner/Appellee in the 

presentation Of the case. It developed Subsequently, that 

Mr. Evans testimony definitely was crucial to the issues 

being raised, but it was simply unavailable. 

On Monday, April 11, 1988, counsel for the 

Respondent/Appellant learned for the first time that Mr. 

Evans was back in Fulton County Jail. Mr. Evans is 

apparently presently in Fulton County Jail on other 

charges. 

Due to the Cl raat Ane, Of the instant proceeding, 

the fact that the parties deemed Mr. Evans' testimony to 

be crucial to the disteiot court proceedings and, in Fact, 

the district court deemed Mr. Evans’ testimony to be 

important as to those proceedings and the fact that Mr. 

Evans was unavailable in Spite of the efforts by even a 

private investigator and through no cause of the state, 

Respondent/Appellee specifically requests this Court at 

this time to remand the proceedings to the district court 

so that Mr. Evans, who is now available, can present 

testimony to the district court on the issue on which 

 



  

» 

* 
4 

  

relief was granted. In further support of this request, 

below-signed counsel would note that counsel is also 

counsel of record in the case involving Petitioner's 

codefendant, Bernard Depree. In that case, Mr. Evans gave 

a deposition in the state habeas corpus proceeding which 

testimony would relate to the Massiah claim. Based upon 

the testimony given by Mr. Evans at that time, present 

counsel feels that his testimony may very well be critical 

Lo a resolution of the issue before this Court. As that 

deposition was taken by different parties in a different 

proceeding, it has not been submitted to the court in the 

instant case, but is available should this Court wish to 

review it. 

It should be noted that Respondent is not waiving the 

claim of abuse of the writ by requesting the remand, but 

is seeking to have all pertinent information before the 

court, including all avaiiapie evidence on the key issue, 

before the issue is finally resolved. Due to the unusual 

circumstances of this case, the fact that the evidentiary 

hearing in the district court was conducted in a two day 

period of time with an execution date pending only a few 

days away, the fact that Mr. Evans' unavailabililty was 

through no fault of the state, and the fact that Mr. Evans 

has just now become available, Respondent specifically 

requests that this Court remand the proceeding to the 

 



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8 

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4 

1 

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district court with directions to conduct an additional 

hearing solely for the purpose of the presentation of the 

testimony of Mr. Evans and for no other purpose. In the 

alternative, Respondent reguests that this Court allow 

time for the parties to depose Mr. Evans and to supplement 

the record in this Court with that deposition. This Court 

clearly has inherent equitable authority to supplement the 

record in unusual circumstances. See Ross Vv. Kemp, 785 
  

F.2d 1467, 1474 (11th Cir. 1986), Certainly, under the 

circumstances of the instant case equitable principles as 

well as the ends of justice strongly weigh in favor of 

either a remand or the allowance of a supplementation of 

the record by a deposition yet to be taken of Mr. Evans. 

WHEREFORE, Respondent prays that the relief requested 

in the instant motion be granted. Respondent would also 

request that this motion be reviewed expeditiously due to 

the fact that Respondent's brief is presently due in this 

Court on May 9, 1988. 

Respectfully submitted, 

MICHAEL J. BOWERS 071650 
Attorney General 

MARION O. GORDON =::302300 
First Assistant Attorney General 

 



” 
EN CEN oy 

IER] 
ely AEN AA 
Jedi 

  

i W, NA OU ay. ws 
1 WILLIAM B, HILL, JRY 354725 

Senior Assistant Attorney General 

Fra NE I) 
MARY /BETH WESTMORELAND 7150150" 
I Attorney General 

  

  

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

c
o
 

 



      
CERTIPICATE OF SERVICE 
  

I do hereby certify that I have this day served 

the within and foregoing motion, Prior to filing the same, 

by depositing a copy thereof, postage prepaid, in the 

United States Mail, properly addressed upon: 

in
t 

a
t
l
 
l
l
 

5 

Robert H, Stroup 

141 Walton Street 
Atlanta, Georgia 30303 

c
o
 

John Charles Boger 

99 Hudson Street 

New York, New York 10013 

  

This ofA day of April, 1988. 

2 eee Bets /. Vhsbnece brad 
  

Assi 

wi TO WESTMORELAND 
ant Attorney General 

 



   



  

  

FILED 
U.S. COURT OF APPEALS 

ELEVENT!: O'RCUIT 
we 

  

ee D 

MAY 21088 | 
| 
  

MIGUEL J. CORTEZ 
IN THE UNITED STATES COURT OF |APPEALS CLERK 

"CTI Fr 
  

EE i Lo 

FOR THE ELEVENTH CIRCUIT 

  

No. 88-8085 

  

» 
’ 
4 

WARREN MCCLESKEY, 

Petitioner-Appellee, 
Cross-Appellant, 

versus 

RALPH M. KEMP, 

Respondent-Appellant, 
Cross-Appellee. 

  

Appeal from the United States District Court 
for the Northern District of Georgia. 

  

Before RONEY, Chief Judge, KRAVITCH and EDMONDSON, Circuit 
Judges. 

ORDER: 

Appellant/Cross-Appellee's motion for a limited remand 

of this appeal to the United States District Court for the 

Northern District of Georgia is DENIED WITHOUT PREJUDICE, to 

  

 



1 

  

LA
 

Ad
 

  

allow the movant to file a proper motion in the district 

court pursuant to Federal Rule of Civil Procedure 60(b). See 

Scutieri v. Paige, 808 F.2d 785, 793 (11th Cir. 1987) 

(requirements for Rule 60(b) motion); Ferrell v. Trailmobile, 

Inc., 223 F.2d 697, 698-99 (5th Cir. 1955) (district court 

  

has jurisdiction to consider Rule 60(b) motion while appeal 

is pending). If the district court indicates that it is 

inclined to grant the motion, then application can be made to 

this court for a remand. See Ferrell, 223 F.2d at 698-99; 11 

C. Wright & A, Miller, Federal Practice & Procedure: Civil § 

2873, at 265 (1973). If the district court denies the 

“motion, the movant may appeal the denial together with its 

appeal from the grant of habeas corpus. See C. Wright & A. 

Miller, supra, at 266. 

Appellant/Cross Appellee's alternative motion to 

supplement the record on appeal is DENIED. 

 



  

ORIGINAL 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

  

WARREN McCLESKEY, 

Petitioner, 

- against - 

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

Respondent. 

No. 1:87-cv-1517-J0OF 

  

PETITIONER'S RESPONSE TO RESPONDENT'S MOTION FOR 
RELIEF FROM FINAL JUDGMENT PURSUANT TO RULE 60(B) 
  

ROBERT H. STROUP 

141 Walton Street 
Atlanta, Georgia 30303 
(404) 522-8500 

JOHN CHARLES BOGER 
99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900 

ATTORNEYS FOR PETITIONER 
WARREN McCLESKEY 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

  

WARREN McCLESKEY, 

Petitioner, 

- against - 

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

Respondent. 

No. 1:87-cv~1517-J0F 

  

PETITIONER'S RESPONSE TO RESPONDENT'S MOTION FOR 

RELIEF FROM FINAL JUDGMENT PURSUANT TO RULE 60(B) 
  

ROBERT H. STROUP 

141 Walton Street 
Atlanta, Georgia 30303 
(404) 522-8500 

JOHN CHARLES BOGER 
99 Hudson Street, 16th Floor 
New York, New York 10013 

(212) 219-1900 

ATTORNEYS FOR PETITIONER 
WARREN McCLESKEY 

 



  

TABLE OF CONTENTS 
  

Page 

INTRODUCTION «ce ctnvc verve vsntsons snnsotneevesdonsnserense 1 

I. RESPONDENTS CANNOT MEET RULE 60(B)'s 

REQUIREMENT THAT A MOVING PARTY DEMON- 

STRATE THAT THE EVIDENCE HE OFFERS WILL 

BOCTUALLY BE YNERY of ccc vr ectsssnsonssnesnsnresens 3 

1. RESPONDENT HAS SHOWN NO DILIGENCE AT ALL, 

MUCH LESS "DUE DILIGENCE," IN SEEKING 

MR: BVYANS. oo vvreinvet snore veneers osesosssevies 6 

111. RESPONDENT HAS NOT SHOWN THAT MR. EVANS' 

TESTIMONY WOULD BE MORE THAN CUMULATIVE AND 

IMMATERIAL vc o vino ns evs os cs ter toes totvesovis os 10 

CONCIUSION eco necescresesnsesesenrossesetonsmssnsnsnnssnsnness 14 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

  

WARREN McCLESKEY, 

Petitioner, 

- against - No. 1:87-cv-1517-J0OF 

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

Respondent. 

  

PETITIONER'S RESPONSE TO RESPONDENT'S MOTION FOR 

RELIEF FROM FINAL JUDGMENT PURSUANT TO RULE 60(B) 
  

INTRODUCTION 
  

On April 12, 1988, Respondent Ralph M. Kemp ("respondent"), 

sought leave of the United States Court of Appeals for the 

Eleventh Circuit to remand its appeal in McCleskey v. Kemp, Civ. 
  

No. 1:87-cv-1517-J0F, to this Court for further evidentiary 

proceedings. On May 2, 1988, a panel of the Court of Appeals 

denied that motion in a two-page order which is appended to this 

response as Appendix A. 

Respondent has now moved this Court pursuant to Rule 60(b) 

of the Federal Rules of Civil Procedure for "relief from the 

 



final judgment of this Court" in McCleskey. (Resp. Motion, 1).1   

The motion should be denied. Respondent is unable to 

satisfy the strict standards required to prevail under Rule 60 in 

this Circuit. The evidence he seeks to adduce, the belated 

testimony of Offie Gene Evans, is not "newly discovered" under 

Rule 60(b) (2). Further, no diligence at all, much less the "due 

diligence" required by Rule 60(b) (2), was displayed by respondent 

in seeking to call Mr. Evans during the 1987 hearings. Moreover, 

respondent has not demonstrated that Evans' testimony would be 

"material" and "not merely cumulative or impeaching," as the 

leading cases require. Still less can respondent show that 

Evans' testimony "would probably produce a new result." Id. 

Respondent's motion, in short, is legally insufficient. 

Moreover, in light of (i) the generous opportunity this 

Court provided to respondent last summer to offer any rebuttal 

witnesses they chose, (ii) the utter failure of respondent, prior 

to the Court's judgment granting habeas relief, ever to 

communicate a desire to call Mr. Evans, and (iii) Mr. Evans’ 

remarkable and well-documented mendacity, any equitable 

considerations strongly weigh against prolonging this litigation 

to allow respondent yet a third hearing on petitioner's Massiah 

claim. 

  

1 All references to the respondent's Motion for Relief from 
Final Judgment Pursuant to Rule 60(b), dated May 6, 1988, will be 
indicated by the abbreviation "Resp. Motion." All references to 
the accompanying Brief in Support of Motion for Relief from 
Judgment, dated May 6, 1988, will be indicated by the 
abbreviation "Resp. Brief."  



  

I 

RESPONDENT CANNOT MEET RULE 60(B)'S REQUIREMENT 

THAT A MOVING PARTY DEMONSTRATE THAT THE 

EVIDENCE HE OFFERS WILL ACTUALLY BE "NEW" 

Rule 60(b) of the Federal Rules provides in pertinent part: 

On motion and upon such terms as are just, 
the court may relieve a party . . . from a 
final judgment . . . for the following 
reasons: (2) newly discovered evidence which 
by due diligence could not have been 
discovered in time to move for a new trial 
under Rule 59(b); . . . Or (6) any other 
reason justifying relief from the operation 
of the judgment. 

The Eleventh Circuit recently has restated its standard for the 

consideration of an application under the second subdivision of 

Rule 60 (b): 

For newly discovered evidence to provide a 
basis for a new trial under subsection (b) (2) 
a party must satisfy a five part test: (1) 
the evidence must be newly discovered since 
the trial; (2) due diligence on the part of 
movant to discover the new evidence must be 
shown; (3) the evidence must not be merely 
cumulative or impeaching; (4) the evidence 
must be material; (5) the evidence must be 
such that a new trial would probably produce 
a new result. Ag Pro, Inc. v. Sakraida, 512 
F.2d 142, 143 (5th Cir. 1975), rev'd on other 
grounds, 425 U.S. 273 (1976). 

  

  

Scutieri v. Paige, supra, 808 F.2d at 793. "A motion for a new 
  

trial under Rule 60 (b)(2)," the Court emphasized, "is an 

extraordinary motion and the requirements of the rule must be 

strictly met." Id. 

In this case, respondent cannot satisfy any of the five 

requirements set forth in Scutieri. First, it is far from clear 
  

that any "new evidence" has come to light with the reappearance 

 



  

of Offie Evans. Mr. Evans, as the Court doubtless remembers, is 

no stranger to this case. He gave sworn testimony: (i) during 

Warren McCleskey's trial; (ii) during the state habeas corpus 

proceedings; and (iii) in a secret 2l1-page statement given to 

Atlanta Police in August of 1978. All of this prior testimony 

was introduced into evidence in this proceeding. (See, Pet. Exh. 

4 (trial testimony); Pet. Exh. 16 (state habeas testimony); and 

Pet. Exh. 8 (August 5, 1978 statement)). 

Perhaps the most extraordinary thing about respondent's 

present motion is that it contains no concrete proffer of 

anything from Mr. Evans beyond what has gone before. On the 

contrary, in an effort to suggest that Mr. Evans' testimony will 

be "untainted," (Resp. Brief, 6-7), counsel for respondent has 

expressly acknowledged in her brief that she "does not know 

precisely what Mr. Evans would say were he to testify before the 

court." (Resp. Brief, at 6).2 

How could respondent, in good faith, move this Court for 

Rule 60(b) relief -- without ever having talked with the witness 

whose testimony now constitutes the basis for his motion? The 

answer, we suggest, flows from Offie Evans' near-flawless, 

decade-long record of cooperation with the State. If Offie Evans 

  

4 The representations of Ms. Westmoreland and the Attorney 
General's Office in Resp. Brief about their contacts with Mr. 
Evans, while unquestioned by petitioner or his counsel, do not 
and, we suspect, could not extend to all contacts that have taken 
place between Offie Evans and members of the Atlanta Police 
Department and/or the District Attorney's Office since April 8, 
1988, when Mr. Evans apparently reappeared in custody. It is, of 
course, during just such contacts that the Massiah violation 
previously uncovered in this case was hatched and carried out. 

4 

 



  

is now in custody, and if the State has pending charges against 

him (as it apparently does now), respondent knows to a virtual 

certainty that he's a surefire State's witness -- no need even to 

check. 

Indeed, from the outset of this case, as the Court no doubt 

recalls, Offie Evans has followed true to pattern, consistently 

seeking to accommodate his testimony to the State's evidentiary 

needs, all the while concealing or down-playing his underlying 

informant relationship with the Atlanta police. As this Court 

found last December, Evans 

repeatedly lied to McCleskey [during their in-jail 
conversations during 1978], telling him 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. 

(Dec. 23 '87 Order, at 20; see also, id. at 28). 
  

At trial -- contrary both to Mr. Evans' 2l1-page statement 

and the testimony of Fulton County jailor Carter Hamilton before 

this Court (see, Fed. I, 180-82, 189; Fed III, 78)3 -- Mr. Evans 

assured McCleskey's jury that he had informed on McCleskey to 

police only when "[t]he deputy out there heard us talking," (Pet. 

  

3 Each reference to the transcript of the July 8, 1987 
hearing in this Court will be indicated by the abbreviation "Fed. 
I. References to the transcript of the July 9, 1987 
continuation of the hearing, which is separately numbered, will 
be indicated by the abbreviation "Fed. II." References to the 
transcript of the August 10, 1987 hearing will be indicated by 
the abbreviation "Fed III." 

 



  

Exh. 4, at 872), and "asked me what did I know about it . . . 

said it sounded 1like a conspiracy." (Id., at 880). Evans 

blithely denied ever having sought to "get [his] escape charges 

altered or at least worked out." (Id., 882). 

Respondent now seeks a new hearing now because he is certain 

that Offie Evans will continue this consistent pattern of denial, 

forswearing any informant relationship with Atlanta Detective 

Sidney Dorsey. Yet, the only thing "new" about further denials 

from Offie Evans would be the additional chapter and verse Evans 

would invent to controvert the major points in Ulysses Worthy's 

testimony. Given five or more months since this Court's judgment 

to pore over newspaper accounts and, conceivably, even the 

transcripts of the 1987 hearings, Mr. Evans' performance would be 

polished, and quite predictable. 

That testimony, however, even if it had been properly 

proffered by respondent, does not suffice to meet Rule 60 (b) 

standards. 

I 

RESPONDENT HAS SHOWN NO DILIGENCE AT ALL, MUCH 
LESS "DUE DILIGENCE," IN SEEKING MR. EVANS 

In its brief to the Eleventh Circuit, respondent's argument 

on "due diligence" focused, misleadingly, (i) on petitioner's 
  

efforts to locate Offie Evans prior to the 1987 hearings before 

this Court and (ii) upon the expedited nature of the 1987 

hearings. (See Motion for Remand, appended to Resp. Brief, 2- 

 



  

5.)4 In response, petitioner set forth the history of 

respondent's failure to seek Mr. Evans' presence at either of the 

two hearings held in this case. (See Petitioner's Response To 

Motion for Remand, annexed to this document as Appendix B.) That 

history includes: 

(i) respondent's failure to request Mr. Evans' 

presence during the initial, two-day hearing 

on July 8-9, 1987; 

(ii) respondent's failure to mention Mr. Evans in either of 

two letters sent to petitioner, pursuant to the express 

order of this Court, listing all rebuttal witnesses 

respondent hoped to call at the rebuttal hearing 

(copies of these letters are annexed as Appendix Cc); 

(iii) respondent's failure to mention Mr. Evans or 

the desirability of his testimony during the 

August 10, 1987 rebuttal hearing before this 

Court; and 

(iv) respondent's failure, following the Court's 

  

4 Respondent represented to the Court of Appeals that this 
case warranted a remand, because "the evidentiary hearing in the 
district court was conducted in a two day period of time with an 
execution date pending only a few days away" (Resp. Motion to 
Remand, at 5). Respondent did not once mention that this Court 
subsequently conducted a rebuttal hearing after allowing 
respondent over a month to assemble any rebuttal witnesses it chose. 

5 The Court's precise direction to respondent was as 
follows: "I want you to have decided by Tuesday prior to 
[August] the 4th, whatever that date is, whether or not you're 
going to put on evidence, and if so, give Mr. Boger some notice 
of who you're going to call and the fact that you're going to put 
on evidence and also notify my personnel." (Fed. II, at 168). 

 



  

hearings and prior to judgment, to ask the 

Court to hold the record open in case Mr. 

Evans had been located. 

Faced with this consistent record demonstrating no diligence 

at all -- not even a lukewarm interest -- in locating Offie Evans 

in 1987, respondent now suggests to this Court that "when all of 

the[] efforts from the Petitioner were unavailing, it would seem 

absurd to argue that the movant somehow could have obtained the 

testimony of Mr. Evans through any further efforts." (Resp. 

Brief, at 6). 

The argument totally misses the point. The "due diligence" 

prong of Rule 60(b) does not require proof that new evidence 

could not have been found: it requires proof that the moving 

party diligently looked. Petitioner knows of no "transferred 

intent" theory whereby his own efforts to find Offie Evans could 

somehow be imputed to respondent. 

Moreover, the record itself does more than chronicle 

respondent's failure to act: it affirmatively demonstrates that 

respondent had no desire to call Offie Evans on his own behalf 

during 1987. For example, in his brief to this Court, respondent 

has quoted testimony by Assistant District Attorney Russ Parker 

that "he had no other information concerning Mr. Evans 

whereabouts" in the summer of 1987. (Resp. Brief, at 3). What 

respondent has omitted, however, is Mr. Parker's telling response 

to a follow-up question by this Court: 

MR. PARKER: I understand he's just gotten 
out of jail, your honor, but I do not know 

8 

 



  

where he is. I assume he's in the Atlanta 

area somewhere. 

THE COURT: You have no information or leads? 

MR. PARKER: No. I could probably find him. 
I have spent enough time with him. 
  

  

(Fed, I, at 174) (emphasis added). Petitioner's own 

representations to the Court during the 1987 hearing are fully 

consistent with Mr. Parker's impression: Offie Evans was in the 

Atlanta area during July of 1987. Petitioner's problem was in 

finding him to effect service. Mr. Parker is also undoubtedly 

correct in surmising that, had the word gone out that the State 
  

needed him, Offie Evans would have been far more obliging than he 

ever was to petitioner's process servers. 

Even more decisive as evidence of respondent's intent, 

however, are two letters forwarded to petitioner prior to the 

rebuttal hearing. In those letters, sent at the direction of 

this Court, respondent recited six witnesses whom he might call 

at the rebuttal hearing; never once did he mention calling Offie 

Evans. Had respondent actively been searching for Mr. Evans in 

late July, he could not have known for certain, two weeks before 

the rebuttal hearing, whether Evans would be found. It is 

inconceivable =-- had any diligent, good faith search for Evans 

been underway on July 29th, that respondent, under orders from 

this Court to give petitioner a list of all possible witnesses, 

would have omitted Mr. Evans' name from the list.® 

  

© Furthermore, in his motion to the Court of Appeals, 
respondent referred, to "a deposition [of Offie Evans, taken] in 
the state habeas corpus proceeding [of Warren McCleskey's co- 

9 

 



  

This record evidence establishing respondent's intentions in 

1987, moreover, is quite consistent with the carefully phrased 

position respondent now takes before this Court. Respondent does 

not actually contend that he did search for Mr. Evans; instead, 

his argument is that, if he had been looking, Mr. Evans may not 

have been found. 

That argument falls far short of Rule 60(b) (2) standards. 

The "due diligence" requirement obviously would mean nothing if 

it allowed a movant who did not actively seek evidence, later to 

reopen a settled case on nothing more than his post hoc 
  

speculation that post-judgment evidence, belatedly proffered to 

the Court, may not have turned up had he exercised the necessary 

diligence when the courtroom doors were wide open. 

IIT 

RESPONDENT HAS NOT SHOWN THAT MR. EVANS' 
TESTIMONY WOULD BE MORE THAN CUMULATIVE AND IMMATERIAL 

Under Rule 60(b), the facts (i) that respondent's "new" 

evidence is not really new, and (ii) that respondent exercised no 

"due diligence" in seeking it, suffices to defeat his motion. 

Nevertheless, it is appropriate for petitioner to address the 

  

defendant, Bernard Dupree] which . . . would apparently relate 
to the Massiah claim." (Motion to Remand, at 5). This deposition 
apparently was taken long before the 1987 hearing in this Court. 
It was plainly available to counsel for respondent, who recites 
that she was "counsel of record in the [Dupree] case." 
Respondent chose not to introduce the deposition in July of 1987. 
That failure provides further evidence of respondent's 
disinclination to place the testimony of Offie Evans before this 
Court. 

10 

 



  

other three statutory criteria, which only serve to confirm that 

a new hearing is unnecessary and procedurally improper. In 

Scutieri, the Eleventh Circuit directed that Rule 60(b) motions 
  

be denied if the proffered evidence was "merely cumulative," if 

it is not "material," or if its admission would not "probably 

produce a new trial." 808 F.2d at 793. 

Respondent makes its case to satisfy these standards on the 

narrowest of possible grounds: that since "Mr. Evans himself has 

never testified concerning any move that may have taken place or 

any purported agreement," (Resp. Brief, at 7), his testimony 

would be new, material, and non-cumulative. 

This entire case, however, has turned upon one key issue: 

whether the testimony of a disinterested, contemporaneous witness 

-- former Fulton County Deputy Sheriff Ulysses Worthy-- 

supplemented by documentary evidence =-- including Offie Evans' 

2l-page statement, his trial and state habeas corpus testimony-- 

demonstrate the existence of a secret informer relationship 

between Atlanta police officers and Offie Evans. This Court 

found in December of last year, 

[a]fter carefully considering the substance 
of Worthy's testimony, his demeanor, and the 
other relevant evidence . . . that it cannot 
reject Worthy's testimony 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 no affirmative evidence that 
Worthy is either lying or mistaken. The lack 
of corroboration by other witnesses is not 
surprising; the other witnesses, like 
Assistant District Attorney Parker, had no 

1 

 



  

reason to know of a request to 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. 

(Dec. 23, '87 Order, 22-23). 

All the State now offers as additional evidence is 

confirmatory testimony by the informant himself, a proven liar, 

who will be motivated, as was Detective Dorsey, by "an obvious 

interest in concealing any such arrangement. "’ Can respondent 

seriously urge that this Court -- which has already weighed 

Ulysses Worthy's credibility against that of an active Atlanta 

police officer -- should change its judgment because of further 

testimony from this persistent felony offender, a "professional 

snitch" (in the words of Atlanta Penitentiary officials, see Pet. 

Exh. 10, at 2) who doubtless will do nothing beyond elaborating 

upon a basic story -- the outlines of which have long been 

perfectly clear? What respondent now offers, in short, is 

testimony virtually guaranteed to be self-serving, redundant, 

immaterial and unworthy of belief. 

* * * * * * * he * * 

Then-Justice Rehnquist wrote in Wainwright v. Sykes, 433 
  

U.S. 72, 90 (1977) that state criminal trials should be "'the 

  

7 Indeed, under present circumstances, Mr. Evans motivation 
to testify falsely obviously extends beyond his desire to fulfill 
an old, illicit agreement. Since he is once again in custody, 
apparently facing new criminal charges, he has the additional 
motivation once again to please Fulton County authorities by 
offering testimony that might, plus ca change, once again result 
in favorable treatment. 

  

  

12 

 



  

main event,' so to speak, rath*er than a 'tryout on the road.'" 

Justice Rehnquist condemned procedural rules that "encourage[d] 

'sandbagging"” on the part of defense lawyers, who may take their 

chances" on a favorable verdict in one forum, while reserving 

additional claims or evidence for a later forum "if their initial 

gamble does not pay off." 433 U.S. at 89. 

Petitioner respectfully suggests that the principle behind 

Sykes, if not its precise holding, is equally applicable to 

respondent's actions and to his present Rule 60(b) motion. This 

Court has already conducted not one, but two evidentiary hearings 

on petitioner's Massiah claim. Respondent -- represented by two 

well-regarded members of the Attorney General's Office and 

assisted by the Assistant District Attorney who initially tried 

this case -- had over a month in 1987 to choose their witnesses 

and take their chances. They obviously made no serious effort to 

obtain Offie Evans' testimony. Instead, the August 10th hearing 

ended as follows: 

[THE COURT]; I realize it's an important 
case, so I will try to give it some urgency 
when I get it. Anything else at all?   

MR. BOGER; Nothing, Your Honor. 

MS. WESTMORELAND; Nothing, Your Honor. 

(Fed. III, at 122) (emphasis added). 

Nothing, indeed, has occurred since that moment on August 

10th which would justify reopening these proceedings or 

disturbing the finality of this Court's well-considered judgment 

in this case. 

13 

 



  

CONCLUSION 

Respondent's motion pursuant to Rule 60(b) should be denied 

in its entirety. 

Dated: May 12, 1988 Respectfully submitted, 

ROBERT H. STROUP 

141 Walton Street, N.W. 
Atlanta, Georgia 30303 
(404) 522-8500 

JOHN CHARLES BOGER 

99 Hudson Street 

New York, New York 10013 

(212) 219-1900 

BY: 
  

14 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that I have this day prior to filing, 

served a copy of the within Petitioner's Response to Respondent's 

Motion for Relief from Final Judgment Pursuant to Rule 60(B) 

upon: 

Mary Beth Westmoreland, Esq. 
Assistant Attorney General 
132 State Judicial Building 
40 Capitol Square, S.W. 
Atlanta, Georgia 30334 

counsel of record for Respondent, by depositing a copy of same in 

the United States mail, first-class postage affixed thereto. 

This day of May, 1988. 

  

ROBERT H. STROUP 

15 

 



  

APPENDIX A 
  

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN McCLESKEY, 

Petitioner, 

- ‘against - No. 1:87-cv~-1517-J0F 

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

N
e
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S
n
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N
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N
m
 

a
 

a
 

a
 

“
a
 

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Respondent. 

PETITIONER'S BRIEF IN RESPONSE TO RESPONDENT'S SUPPLEMENT TO 

RULE 60(b) MOTION 

In its June 17, 1988 order, this Court declined to grant 

Kemp's motion for relief from final judgment under Rule 

160(b), holding that "the motion fails to satisfy the 

requirements for the relief sought: . . . [because] [tlhere is 

‘neither a showing of due diligence nor a showing as to what 

Offie Fvans would say." (Order of June 17, 1988, at 1). The 

court did allow a period of discovery until August 1, 1988 

"on the two issues of due diligence and of Offie Evans' 

knowledge." (Id.) The period for discovery has now expired, 

‘and respondent Kemp has submitted a short supplement to its 

‘earlier motion, once again requesting Rule 60(b) relief. 

As petition will show below, the discovery period has, 

if anything, merely strengthened his argument that the Rule 

Pp 

1 60(b) motion should be denied. In response to 

interrogatories, Kemp has admitted that he took no actions at 

 



  

all to locate Offie Fvans during 1987. A deposition of Evans 

| taken July 13, 1988, reveals that the substance of his 

testimony is not new, but instead tracks his oft-repeated 

denial that he ever served as an informant in this case. The 

| deposition, moreover, 1s riddled with internal 

contradictions, with testimony contrary to his own earlier 

sworn statements, and with statements contrary to other key 

witnesses in this action, including Officer Dorsey, Russell 

I Parker, and federal officials. In short, 1t is inherently 

| incredible. 

Finally, peitioners have learned that Mr. Evans had 

| previously given a deposition, in the habeas case of Warren 

McCleskey's co-defendant, Bernard Dupree, long before the 

11987 hearing in this case. This deposition was known to 

respondent Kemp's counsel, Mary Beth Westmoreland, who has 

defended that case representing respondent Kemp. Thus that 

i testimony is not only not material; it is not "newly 

discovered," since it was available to Kemp in deposition 

form long prior to 1987. 

For these reasons, which petitioner elaborates below, 

‘the Court should adhere to its June 17th ruling and deny 

respondent Kemp' motion for Rule 60(b) relief. 

 



  

I 

RESPONDENT KEMP HAS ADMITTED FACTS THAT CONCLUSIVELY 

DEMONSTRATE A LACK OF DUE DILIGENCE 

In his initial brief to the Court, petitioner outlined 

the standards established by the Eleventh Circuit for the 

disposition of Rule 60(b) motions.’ The controlling 

| precedent stresses that "[a] motion for a new trial under 

Rule 60(b) 1s an extraordinary motion and the requirements of 

the rule must be strictly met." Scutieri v. Paige, 808 F.2d 
  

785,793 (llth Cir. 1987). 

One of the essential elements a movant must show is "due 

diligence.” In his initial response filed in this Court, 

petitioner McCleskey argued that Kemp had failed to 

demonstrate such diligence and that, given the circumstances 

surrounding the July and August, 1988, hearings, Kemp could 

not plausibly make such a showing. During the recent 

discovery period, petitioner directed a series of questions 

to Kemp's attorneys, inquiring whether Kemp, his attorneys, 

or anyone else at his direction or under his control ever 

actively sought: (i) to locate Offie Evans during 1987; (ii) 

‘to determine the precise steps petitioner took to locate Mr. 

Evans; (111i) to notify the Court and/or petitioner of his 

  

See Petitioner's Response to Respondent's Motion for Relief 
from Final Judgment Pursuant to Rule 60(b), dated May 12, 
1988," at 3 ("hereinafter "Pet. Br."). 

m
e
 

 



  

desire to call Mr. Evans; or (iv) to request additional time 

to locate Mr. Evans. (See Petitioner's First Interrogatories 

to Respondent, dated June 28, 1988, 1-2). 

Respondent Kemp admitted in response that he took none 

of these steps nor, apparently, any other steps to locate Mr. 

Evans in 1987. (See Respondents' Answer to First 

Interrogatories of Petitioner, dated July 12, 1988, 1-2). 

Respondent's only excuse for this failure is his ostensible 

"reasonable belief that any such action would be futile,” 

since Kemp had "no independent knowledge" of Evans's 

whereabouts, and since, "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.” {18. .1-2). 

The utter insufficiency of this answer is plain from a 

consideration of five factors. First, petitioner's intensive 

efforts, because of his limited resources and the imminence 

| of the federal hearing, occupied no more than a few days in 

late May, early June, and the July 7-8th hearing before this 

Court. Second, those efforts, as the affidavits of 

petitioner's investigator, Delaney Bell, and a volunteer 

attorney, Bryan Stevenson reveal, were potentially very 

useful to Kemp, since they (i) established that Of fie Evans 

was in the Atlanta area; (ii) indicated that he had been 1n 

i frequent, though irregular, contact with at least three of 

 



  

his relatives; and (i111) provided names and addresses of 

ll those relatives. (See, Affidavit of Bryan Stevenson, dated 

July 7, 1987, 44 3, 7, 9, 11) (indicating that Evans had 

  ‘stayed with two different sisters and a brother); see also 

|Affidavit of T. Delaney Bell, dated July 7, 1987, 44 4, 7). 

Third, the State's relationship with Mr. Evans was 

altogether different from petitioner McCleskey's, and Kemp 

had much stronger grounds than did petitioner McCleskey to 

expect cooperation from Mr. Evans. Not only was Evans on 

probation, subject to arrest and reincarceration for any 

| failure to report to the Pulton County Probation; Office, 

| (Bell Affidavit, 4 5), but several of the ‘officials within 

the Fulton County District Attorney and the Atlanta Bureau of 

Police Services who played crucial roles in the July and 

‘August, 1987 hearings had special relationships with Mr. 

‘Evans, known to Kemp's counsel. They obviously could have 

ibeen useful in an attempt to locate him. Detective Dorsey, 

for instance, acknowledged to this Court that Evans had 

regularly served as an informant for him over the years, and 

had "on occasions that I can recall been cooperative with 

ne,” . (Fed. 11, at 233.2 District Attorney Parker testified 

that, while he did not know where Mr. Evans was on July 8th, 

  

2 Fach reference to the transcript of the July 8, 1987, 
proceedings before this Court will be indicated by the 
abbreviation "Fed. I." References to the July 9th and August 
19th transcripts will be indicated by the abbreviations, 
"Ped. I1 and "Fed. I11" respectively. References to the July 
13, 1988 deposition transcript will be indicated by "Evans 

Dep.” 

 



  

he "assumed[d] he's in the Atlanta area somewhere," and 

"could probably find him. I have spent enough time with 

him,” (Fed. I, at 174). 

Fourth, at the opening of the hearing on July 8th, 

| counsel for respondent Kemp sought and received a recess to 

' review the Stevenson and Bell affidavits. {Fed. I, 17-19}. 

| Counsel thus knew, from the outset of the hearing, that Mr. 

| Fvans was in the Atlanta area, in violation of probation, 

subject to a state warrant for arrest as a probation 

| violator. Far from a counsel of despair, these affidavits 

| provided solid leads pointing to Mr. Evans whereabouts 

sufficient for any law enforcement officer or investigator, 

even those without a special relationship, to begin efforts 

to deliver him a subpoena. 

Fifth, and most important, at the close of the July 3th 

hearing, the Court allowed Kemp a one-month recess "to get up 

a rebuttal case.” (Fed. 11, at 164). As we have noted 

earlier, the Court specifically directed counsel for Remp at 

that time to provide notice by early August of all witnesses 

whom he might seek to call at the rebuttal hearing. (See 

Pet. Br. 6-9.) 

Under these circumstances, Kemp has now acknowledged 

that he did not lift a finger to pursue any of the many 

options readily open to him. He 41d not (i) seek to locate 

Mr. Evans personally; (ii) leave word with one of his sisters 

or his brother; (iii) request Detective Dorsey or District 

 



  

| Attorney Parker to attempt to make contact with Evans; (1v) 

| ask for an all-points bulletin directed to Atlanta police 

(and perhaps law enforcement personnel in surrounding 

jurisdictions) to be on the lookout for Evans; (v) seek 

assistance from the Fulton County Probation Office; (vi) 

obtain a warrant for Evans's arrest; or (vii) even, at a 

minimum, notify the Court and petitioner of their desire to 

‘call Evans as a witness. 

A movant who failed to take one or two of these steps 
  

might somehow be able to argue that he had nonetheless showed 

due diligence. A movant who failed to take any of these 

| steps during the rapid pace of a trial might argue that he 

had justifiably relied on opposing counsel. A movant like 

Kemp, who took no steps at all -- even when the Court gave 

him one month after the July hearing exactly for the purpose 

of locating rebuttal witnesses -- has no defensible ground on 

which to stand. His Rule 60(b) motion is subject to denial 

for this failure along. 

11 

MR. EVANS' TESTIMONY, AS HIS JULY 137TH DEPOSITION 

DEMONSTRATES, WOULD BE INCREDIBLE AND CONTRADICTORY. HIS 

PROFFERED TESTIMONY, THEREFORE, WOULD NOT ALTER THIS COURT'S 

PRIOR JUDGMENT 

The second ground upon which relief should be denied is 

the utter lack of credibility of the respondent's witness. 

Federal courts have recognized that lack of credibility of 

 



  

the witness 1s grounds for denial of a motion such as this. g 

La Porta v. United States, 266. F.24 645 (5th Cir., 1959); 
  

Wright, Federal Practice and Procedure: Criminal 24, §557, 

3 

  

jnote. 39, 40. 

The July 13 deposition testimony of Offie Gene Evans 1S 

totally lacking in credibility. Aspects of Evans's testimony 

are reminiscent of the statements of the Mad Hatter, the 

March Hare and the Dormouse, made to Alice at the outset of 

| the Mad Tea Party in Lewis Carroll's Alice in Wonderland. 
  

| Huddled together at one corner of a large table, the three 

repeatedly insist to Alice that there is no room at the table 

| for her when, in fact, there's plenty of roon. So too here, 

Evans's testimony is replete with. statements that just aren't 

SO. 

A. JULY, 1988 DEPOSITION INCONSISTENCIES 
  

l. His cell location in July, 19738, 
  

During the course of his deposition testimony, 

Evans contradicted himself regarding which wing(s) he 

occupled in Fulton County Jail in 1978. He indicated 

initially that he was housed in a different wing in 1978 from Y J 

  

While the direct authority petitioner cites for this 
proposition is from Rule 33, Federal Rules of Criminal 
Procedure, that section has been interpreted by the federal 
courts in a manner similar to Rule 60(b) of the Federal Rules 

of Civil Procedure. See, e.g., United States vv, Antone, 603 

F.2d 566, 568-69 (5th Cir., 1979) (interpreting Rule 33) and 
Scutieri, supra, {interpreting Rule 60(b)). 

  

  

8 - 

 



  

the north wing he occupies presently (Dep. p.88, line 11). 

|| He quickly abandoned this testimony, to say he was in the 

same wing in 1978 as presently (Dep. p.88, line 13).2 

2. Whether he ever was housed in East Wing. 
  

During the course of his deposition, Evans also 

  

gave directly contradictory answers to whether he had ever 

been housed in the east wing of the Fulton County Jail. He 

answered both "yes" and "no" to that question (Dep. 88-89). 

3 Whether McCleskey (and Depree) were moved before 
  

Evans's meeting with Atlanta Police. 
  

Evans testified on July.13, 1988 both that (i) 

| McCleskey and Depree were moved from their cells in 

segregation prior to his meeting with Dorsey and Harris 

(Evans Dep. 23) and that (ii) he had conversations with 

McCleskey and Depree after his meeting with Dorsey and Harris 

(Evans Dep., pP.928). 

This is not possible. If McCleskey was moved away from 

the adjacent cell prior to Evans's meeting with Dorsey and 

Harris, Evans could not have had conversations with him 

afterwards. 

  

Why did Evans indicate initially he was 1n a different wing 
in 1978? Evans 1s unable to explain (Dep. p.892, line 4). 
Perhaps the reason is because he was moved - starting off in 
the east wing and then moving to the north, adjacent to 
McCleskey. 

 



  

Evans's testimony regarding McCleskey's move 

|l inconsistent with Evans's August, 

1S also 

1978 statement wherein he 

recounts alleged conversations with McCleskey after the 

| meeting with Parker, Harris and Dorsey 

iat 14-13%. 

4. Whether he was doling 

(August 1 statement, 

undercover work in June, 1978. 
  

Evans testified most 

"not doing undercover work for 

ii enforcement agencies" while on 

p.49) and that (ii) he "didn't 

iso or not" (Dep., P.-51).. This 

recently both that (i) 

any state or other law 

escape 1n June, 1978, 

he was 

(Dep., 

remember whether he was doling 

inconsistent testimony is 

'' further contradicted by his statement to federal agents in 

September, 1978, that he was involved in undercover 

5 
previous June. (Exhibit 1, attached). 

B. INCONSISTENCY WITH HIS OWN PRIOR STATEMENTS 
  

work the 

Evans's July, 1988 testimony also contradicted a 

number of prior statements given by him: 

i, Timing of Initial Conversations with McCleskey. 
  

Evans stated on July 13, 1988 that his 

conversations with McCleskey began from the first day of his 

being placed next to McCleskey 

further asserted, was July 3, 

  

This Exhibit and Exhibit 2, 

part of petitioner's first habeas 

i978, (Evans Dep., 

referenced later, 

record. Copies 
attached hereto for the convenience of the Court. 

10 

15) 

are 

(Evans Dep., 54) which, he 

are already a 

 



  

This contradicts his August 1, 1978 statement, which 

|| recounts an initial conversation with McCleskey on July 8, 

1978. {August 1, 1978 statement, p18 

2. DA Parker's appearance at Fulton County Jail with 
  

Harris and Dorsey. 
  

Evans states in his July testimony that Assistant 

‘DA Parker never met with him in Fulton County Jail until 

after his written statement was made and signed. (Evans 

\Dep., 21). 

I This is in direct contradiction to his August 1, 1978 

statement that he had met there with Parker, Harris and 

/ 
‘Dorsey. (August 1, 1978 statement, p.l1l4). 

3. Use of cocaine in June, 15878. 
  

Although Evans has previously admitted to federal 

officials that he had used cocaine while at the Halfway House 

in June, 1978, shortly before his incarceration in Fulton 

County Jail July 3, 1978 (Exhibit 1, attached), Evans denied 

using cocaine in his July, 1983 testimony {Evans Dep. 52). 

  

; One explanation of this contradiction 1s offered by Captain 
lWorthy's testimony that Evans was moved. If Evans was indeed 
moved to the cell adjacent to McCleskey on the 8th, then 
Evans is right that conversations began immediately upon his 
lassignment to the adjacent cell -- but on the 8th, rather 

than the 3rd. This also explains the 5-day gap in Evans’ 
August 1 statement, the reason why Evans reported no 

conversations during this 5-day period was because he was 1n 

‘the east, rather than north, wing. 

7 

  

It is also in direct conflict with the testimony of Parker, 
Harris and Dorsey on this point. See infra, Part 11, C.   

1 11 

 



  

4. Travel to Florida while on escape in 1978 
  

In his July testimony, Evans claimed to have stayed 

in the Atlanta area the entire time while on escape status 

| from the Halfway House in June, 1978 (Dep., 49-50). This 

| contradicted his statement to federal officials in September, 

11978 that he had gone to Florida during June (Exhibit 1, 

attached). 

5. Conversation with Dorsey wherein Dorsey promised to 
  

| speak a word. 
  

in January, 1981, Evans told Butts Superior Court 

| Judge Crumbley that Detective Sidney Dorsey had promised to 

"speak a word for him" on his federal escape charges. (State 

i Habeas Tr., 122) At his most recent deposition, Evans denied 

Hiehat this conversation took place. (Evang Dep. 92}. 

Cs INCONSISTENCIES WITH OTHER OF RESPONDENT'S 
  

WITNESSES   

Nor do Evans' July 13, 1988 statements contradict simply 

his own. Several of those statements are contradicted by the 

State's witness. 

1. Who attended first meeting at Fulton County Jail 
  

Evans testified in July, 1988 that his first 

meeting with law enforcement personnel included only Harris 

'and Dorsey, and that this occurred after his conversations 

‘with McCleskey. (Evans Dep. 18). 

 



  

Assistant DA Parker and Detective Harris have all 

testified that the first (and only) meeting with Evans after 

Evans conversed with McCleskey occurred with Parker, Harris 

and Dorsey present (Fed. Tr. I, 130, 193-95). 

2 Number of Meetings with Harris and Dorsey. 
  

Evans declared in July 1988 that Harris and Dorsey 

| came to meet him at the Fulton County Jail "more than one 

| {eimel," (p.57, line 19), and "it could have been more than 

that” (p.56-57). 

Harris and Dorsey, of course, have denied more than one 

‘jailhouse meeting with Evans. (Fed. Tr. I, 193; Fed. Tr. II, 

57-60% 

3. Timing of first meeting with DA Parker 
  

Evans contended that his first meeting with 

Assistant DA Parker occurred "a week or two after" his August 

1 statement was typed up (Evans Dep. p.19). This 1s contrary 

to Parker's and Harris' testimony, as well as Evans's own 

8/1/78 statement (Fed. Tr. I, 141, 159). The 8/1/78 

statement includes Parker as a witness. 

  

Again, one apparent explanation for this testimony 1s that 

Evans testified truthfully in January, 1981 when he said he 

i met with Harris and Dorsey before he met with DA Parker, -- 

the purpose of the prior meeting being to discuss the 

planting of Evans in the adjacent cell. Now, confronted with 

that prior testimony, Evans seeks to avoid the "informer" 

label by identifying the first meeting with Dorsey and Harris 

as the July 12th Fulton County Jail meeting. The problem 

with that evasion, of course, is the prior testimony of 

Parker, et al., that Parker was present for that meeting. 

 



  

4. Prior activities as an Informer 
  

In his recent deposition, Evans denied that he had 

acted as an informer for any law enforcement agencies prior 

to July, 1978. (Evans Dep., 75). This is contrary to 

Parker's testimony (and notes) 1indicting that Evans had been 

an informer for federal agents prior to 1978. (Exhibit P-9; 

Ped. Pr. 11, 74). It is also contrary to Dorsey's testimony 

‘that Evans's informer work for Dorsey preceded July, 1978. 

Fed. Tr. Il, 52-53). 

5. Timing of first meeting with Detective Dorsey 
  

Evans testified that he had not met Detective 

Dorsey prior to July, 1978; that he nad never met Dorsey 

while at the Federal Halfway House. (Evans Dep., 46). 

To the contrary, Dorsey testified that he first met 

Evans at the Federal Halfway House, sometime prior to July, 

1978 (Fed. Tr. 11, 49-51). 

5. Evans's calling Dorsey when incarcerated. 
  

Although Dorsey testified that on a number of 

occasions he recalled Evans's telephoning him when Evans was 

incarcerated, asking Dorsey to come to see him (Fed. Tr. 11, 

52), Evans denied this. (Evans Dep., 48). 

D. MISCELLANEOUS OTHER LIES. 
  

As 1f the above-cited inconsistencies and contradictions 

were not enough to reject Evans's testimony outright, there 

1S more. 

 



  

1. The 1973 drug addiction. 
  

Evans was sentenced in 1973 on both federal and 

state forgery counts (Exhibits 3 and 4 attached to Second 

| Motion to Supplement Record). Both Judge Shaw in Fulton 

| superior Court and Judge Moye in this Court indicated in 

sentencing that Evans was in need of rehabilitation for a 

drug addiction. Judge Shaw expressly noted that Evans was an 

addict (Exhibit 4). 

i 

In his deposition testimony now proferred by respondent, 

he denies that he was an addict, indicating he signed up for 

a rehabilitation class, just "because he'd heard a lot of 

i people talking about it." (Dep. p.43). This is another of 

Fvans's flights of fantasy which, apparently, occur quite 

frequently. 

2. Not really on escape in June, 1978; the man told 
  

him to go home, 
  

Evans insisted in July 13, 1988, that he wasn't 

really on escape in June, 1978, rather, "the man told me to 

go on back home." (Evans Dep. 48,93). 

This 1s utter nonsense. The federal records show he was 

on escape and could not be located. Further, they show Evans 

"admitted to being on escape status (Exhibits 1 and 2, 

llattached). 

- 

 



  

3. Use of drugs in 1978 had nothing to do with escape. 
  

Evans insisted that use of drugs in 1978 had 

J sotRing to do with his escape from the Federal Halfway House. 

(Evans Dep. 48). Federal records show the contrary. 

(Standard Escape Report, included in Exhibit 2, attached). 

4. Whether he talked to DA Parker within the past few 
  

months. 

Evans has denied talking to Assistant DA Parker 

| within the past few months (Evans Dep., 33). The State's 

responses to discovery filed in this case indicate. otherwise. 

(Respondent's Answer to Interrogatory #6). 

| BE. Evans's General Lack of Recollection of Specifics 
  

Evans's July deposition testimony also lacks credibility 

given his inability to recall specifics regarding any number 

of events within the past 10 years. 

For example, he did not recall -- 

1) the month of his July, 1978 arrest 

{Evans Dep., ll); 

2) the circumstances surrounding his 
initial meeting with Harris and Dorsey 
{Dep., 20); 

3) where he lived in 1977 (Dep. 40-41); 

4) how he got to Captain Worthy's 
office for his meeting with Harris and 
Dorsey {(Dep., 58); 

5) whether he got paid anything by the 
DEA for testifying in a case for them 
{Dep., 77); or 

6) whether DA's ever made favorable 

recommendations for him because of his 

cooperation (Dep., 84-86); 

| € Le TW J 

 



  

7) which cubicle he was assigned to at 

the Halfway House 1n June, 1978 (Evans 

Dep., 43). 

Given this total lack of recall for these specifics, his 

testimony on any specifics of his July, 1978 Fulton County 

Jail incarceration is without value. 

F. EVAN'S PRESENT MOTIVATION TO LIE ABOUT INFORMER 
  

STATUS 

Aside from Evans's inherent predilection toward fantasy 

and untruthfulness, he revealed a present motivation to lie 

‘about his informer status during his July deposition. He 

'had, at the time of his testimony, charges pending agalnst 

nim. i(Dep., 63-73) 

Evans, then, is in a position to have Pulton law 

enforcement personnel "put in a good word for him" on his 

pending charges, in exchange for his cooperation here. 

mven more reflective of his present motivation to lie 

about his informer status was Evans's expressions of concern 

regarding news accounts labeling him an informers’ 

"They told me that they had a strip in 

the paper about me concerning the case 

and quite a bit of stuff in there, you 

know, that can get a man killed, you 

know." (Evans Dep.,.25}. 

Evans was so upset about the adverse consequences he had 

encountered from this publicity, that he raised the subject 

of the newspaper story himself (Evans Dep., 24). 

The December 23, 1987 newspaper account of this court's 
  

9 

decision described Evans as an informer (attached as Exhibit 

5) 

 



  

Obviously, Evans was trying to counter this publicity 

| and his perception that his life was threatened, by denying 

his informer status. While this concern may explain why 

Evans chose to lie, it does not alter the fundamental lack of 

credibility’? of his statements. 

111 

MR. EVANS' TESTIMONY IS NOT "NEWLY DISCOVERED," SINCE ITS 

BASIC OUTLINES ARE CONTAINED IN AN EARLIER DEPOSITION BY MR. 

EVANS, CLEARLY KNOWN TO KEMP'S COUNSEL 

A third ground barring Kemp's motion for Rule 60(b) 

‘relief has recently been developed by petitioner. On October 

126, 1981, Mr. Evans gave a deposition in the case of Bernard 

Depree, Warren Mccleskey's co-defendant in the 1979 Dixie 

Furniture Store robbery. Although that deposition was 

defended by an Assistant District Attorney from Fulton 

County, Mr. Depree in 1985 filed a federal habeas petition in 

the Northern district of Georgia, See Depree v. Newcone, 
  

Warden, No. 85-3733 (N.D. Ga. 1985). The State was 

represented in federal proceedings, not by the Fulton County 

Assistant, but by Mary Beth Westmoreland, present counsel for 

Kemp in petitioner McCleskey's case. An answer filed by the 

respondent in the Dupree case on September 19, 1985, annexed 

eleven exhibits, one of them the 1981 deposition of Mr. 

Evans. 

  

10 
Evans even stated at one point in his deposition that one 

of his victims in a prior robbery conviction [a Clarence 
Brantley] "needs killing" (Evans Dep., 82). 

 



  

In that deposition, Mr. Evans was asked about his 

contacts with Atlanta police while in the Fulton County Jail 

in 1978. He denied that he had made any police contacts 

until after he had spoken with Mr. McCleskey and ostensibly 

learned details about the Dixie Furniture Store crime. At 

that point, Evans testified, he contacted Deputy Carter 

Hamilton and soon thereafter gave a statement to Atlanta 

police officers. 

In short, this story, though contradictory in certain 

| particulars to his trial testimony and to the testimony of 

other witneses, is in substance what Kemp now offers to place 

before the Court as new evidence, under Rule 60(b). Yet 

Evans's 1981 deposition was available to Kemp's counsel since 

at least 1985, and it cannot plausibly be described as "newly 

pl Kemp slected not to place it before the Court discovered. 

in 1987. Having lost on the merits, however, Kemp has 

changed his mind about the value of Evans's evidence, and now 

seeks to reopen the judgment, hoping for a different outcome. 

  

1 It is almost certainly for this reason that Kemp was 
compelled to respond to petitioner's Interrogatory No. 8 by 
acknowledging that Evans' testimony would not be newly 
discovered. (See, Respondent's Answer, at 4) ("Respondent 
does not contend that the information that could be supplied 
by Offie Bvans 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.") 

ie 19 ot 

 



  

1 

and then, if the court's judgment proves adverse, 

proceedings merely to try a different evidentiary approach. 

Such conduct 

written to forbid. 

doubtful or problemmatic evidence from a federal factfinder, 

For all the reasons set forth above, 

1S precisely what Rule 60(b) has been 

A party may not choose to withhold 

CONCLUSION 

| Response, filed May 12, 1988, the Court should deny 

respondent Kemp's Rule 60(b) motion. 

Respectfully submitted, 

(dled. oe 

reopen the 

and in Petitioner's 

  

ROBERT H. STROUP 

State Bar No. 689-175 

141 Walton Street 

Atlanta, Georgia 30303 
(404) 522-8500 

JOHN CHARLES BOGER 

99 Hudson Street 

New York, New York 10013 

{212) 2319-19040 

ATTORNEYS FOR PETITIONER 

WARREN McCLESKEY 

20 ~- 

 



  

CERTIFICATE OF RECORD 

Barbara Am fatners hereby certify and attest that I am the 
    

ADMINISTRATIVE SYSTEMS MANAGER 
Bureau of Dr isonad : 

of the Southeast Regional Officep,eatedat Atlanta, Georgia . 

’ 
  

  
  

and as such that I am the official custodian of the records of the said Institution whose official 

  

  

  
  

  

  
    

  

  

  

  

  

  

name Ie Southeast Regional Office/Bureau of Prisons 

and that the following and attached records are true and correct copies of records of said Insti- 

tution pertaining to one: 

Offie Gene EVANS _ Register No. 35016-133 

and consisting of: (&XBlokogxaiix X X (2) X K HIgEDpX IK ard X X X (38 XEN R KIRK 

} Institution Discipline Committee Report dated September 6, 197¢ 

IN WITNESS WHEREOF, I have hereunto set my hand and seal at 

this 13tDday of _ May AD. 19532 

Fo a 
ARBARA ANN LATHERS 

Re ad Custodian of Records 

ADMINISTRATIVE SYSTEMS MANAGER 
Title 

STATE OF GEORGIA 

SS 
LTON county or JULIO J 

De Subscribed and sworn to before me this 13thday of May , 19.87 

la Dw LE 
\ 77 Signature aff] — o Te 

i re a ) 

Notary Public, Georgia, State at Large 

My Commission Expires Jan, 23, 1984 

SN | Record Form 92 E EXHIBIT 1 Original (White) - Requestor 

% brs ’ A | Apcil, 1978 : . oy First Copy (Pink) - Central File 

FPI-LOM-7-78.12,700 SETS 1486 

   



             

    

DANN, UOTE 

  

  

  

    

  
The inmete has been advised of his rights before this Committee/ X / eo copy of the 

advisement of rights form 1s attached. 

  

This hearing is held to consider ihe Incident Report(s) dated: 
  

REHEARING ON REPORTS DATED 6/19/78 & 6/23/78. 
  

The following persons appeared before the Committee: 

  
Offiwe Evans 

  

  
Summary of statements meade and information presented to the Committee: 

Inmate edmits the charge(s): / J Yds / flo. 

Evans had asked that Mr. Geouge represent him and Mr. -Geouge declined. 

6/19/78: On this .charge Of using drugs Evans admits he 414 sniff some 

cocain. 

6/23/78 On the escape charge he pleaded guilty. States he went to 
Florids. He related to the committee that he was part of an 

investigation dealing with drugs. States he was doing this on his own. 

States officials were aware of his activities and he was trying to get 

drug officials a lead. Says. he would be well paid for his part. 

STATEMENT OF FACT: 

  

——— - gr 

"he Committee finds that: 

Vi The ade was committed as charged. / Fo prohibited set w 

i. yi {If thin te. the Din 
/ / The following pct was committed: report ond all relet 

be destroyed.) 
cr
 

  

  

Zction Taken: committee confirms the previous findings of forfeiture of 
119 days SCT. Return to USP Atlanta. 

Continue Administrative Detention. 
  

Reason for Action Taken: 

Evans admitted being guilty of both charges held in absentin, 

  

  

/ x / ‘he inmate has been advised of the findings and orders of this Committee. 

    

  

        {= / The inghte hes been advised of his LE ight to EE this action 
to the¢ Chiel E:iecutive Officer. 

J =, FPRTH GOFF 
a MBER) 

within 
del = 
h.9 

    

      

(CHATICY ‘AN    
EEL mn Ant    MALOLAMA Tar Ba n v ahem, 

- 
SD any 

Sx. THSTITUTION DISCIPLINE COMMITTEE REPORT Date: i : : Phan —Se ptember 615 fm { 

TT TI 20 gab 

NAME OF INMATE: EVANS. Qffie ! REG. HO. 39016-1133 

T
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CERTIFICATE OF RECORD 

: Barbara Ann Lathers 
  

a hereby certify and attest that I am the 
nm ——————————————————— — a 

ADMINISTRATIVE SYSTEMS MANAGER 

of the Southeast Regional Office located at Atlanta, Georgia 
  

  

and as such that I am the official custodian of the records of the said Institution whose official 

name is Southeast Regional Office 
  

- 
’ 

  

and that the following and attached records are true and correct copies of records of said Insti- 

tution pertaining to one: 

Offie Gene Evans Register No. 59016-133 
  

and consisting of: RY XIRBOE SEH HI X XX XK FREED {a RK X X XXX KH RTO (1) Incid« 

Report; (2) Notice of Discipline Committee Hearing; (3) Sta yndard Esq 

Report; and (4) Affidavit from Offle Gene Evans. 

ct dh IN WITNESS WHEREOF, I have hereunto set my hand and seal at 

thi s 12th gy of May AD. 182. 

73 2 lac re Firtece 
Barbara Ann Lathers 

BN STR pe 
Custodian of Records 

  

  

  

      

Administrative Systems Manager 
  

Title 

  

STATE OF _ GEORGIA | 
S38 

COUNTY OF _ FULTON | 
  

  

Subscribed and sworn to before me this 12thgay of. May = _ — - J 2! 

i /; 

FE tle av radian id 
tl [ofr Cae 

Notary Public, Georgis, State sth org 

My Commission Expires Jan. 28, Tu 

  

§ drrrrrister—Gushr (18 OA ROUSE 20.75 3 4 

EXHIBIT 2 

a” Record Form 92 
Original (White) - Requestor 

Eres : April, 1978 
First Copy (Pink) - Central File 

FPI-LOM-7-78.12,700 SETS 1486 

 



U.S, DESART ba wo han : it ALLE IINSELIUTL HON 

: Nd 2 HOF PRISONS : ST ; 

  

  

  

    

  

    
  

Bhai fk Hie mes " ( IN; T REPORT ( CC Atlanta 2 

pI do i aia PART 1 - INCIDERY REPORT TY 

0 NAME OF INMATE AE 3. REGISTER NUMBER 4 DATE OF INCIDENT |S TIME 
; . 

EVANS, Offie Gene 39016-13] 6-23-78 | 6:00 PM 

6. PLACE OF INCIDENT 7. ASSIGNMENT 8. QUARTERS 

FCC Atlanta N/A FCC Atlanta 

9. INCIDENT 10. CODE 

Escape 101   
  
11. DESCRIPTION OF INCIDENT 

On June 23, 1978, EVANS signed himself out of our facility at 5:00 AM for work, and 

ro Terurn at 6700 PM on the same date. Evans failed to return as scheduled however. 

All efforts to locate his whereabouts were unsuccessful. Subsequently, the Jocal 

FBI was notified and Evans was placed on Escape status. 

  

  

  

  

  

  

  
12. SIGNATURE OF REPORTI 

a 
14. INCIDENT, REPORT DELIVERED TO ABOVE INMATE BY 15. DATE INCIDENT  |16. TIME INCIDENT 

(1 REPORT DELIVERED | REPORT DELIVERED 
; i — [> { 

Aion) (laho Mouse” iA ISS 
’ PART II - COMMITTEE ACTION 

17. COMMENTS OF INMATE TO COMMITTEE REGARDING ABOVE INCIDENT 

EMPLOYEE 13. NAME AND TITLE (PRINTED) 
Earl Lawson 

LE TP Case Manager 

   

  
  

  
  

    
In absentia. 
    

  

  

  
  

  
  

  

18. IT ISTH SINDING OF THE COMMITTEE THAT: (“X" APPLICABLE BOX)   

iC. OMMITTED YOU COMMITTED THE FOLLOWING PROHIBITED ACT: YOU DID NOT 

r THE OHIBITED penton — COMMIT A 

foxx] ACT AS i | | PROHIBITED 

CHARGED ACT 
  

  
19. COMMITTEE FINDINGS ARE BASED ON THE FOLLOWING INFORMATION 

He committed the act as charged because he failed to return to the Center from sign-out 

  
a 

as scheduled. 
  
      

    

20. COMMITTEE ACTION 
. aay . ? : : : 
Subject's SGT lof 119 days 1s to be lorreited, and upon apprehension, he 1s 

  

to a federal Institut 

  

21. DATE OF ACTION 

mar 6 Je 4% Ve 3 Cl al 2 2nd he 
Ls LA MEMBER ~ ig I MEMBER 

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8P-15-8 30 FOR CENTRAL FILE RECORD rrcoms 
9.72 

 



  

RR A - enn 

( ( 22. DATE 

  

    

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

; 3 v brew vv PART HII". .VESTIGATION 06-27-78 

23. INMATE STATEMENT AND ATTITUDE : 

In absentiay : 

24. OTHER FACTS ABOUT THE INCIDENT 

There are no other pertinent facts about this incident. 

Al ’ N r ‘ Pe \ 
a \_ 7 iy 4 gir 6 Nl 3G si, : 

HIE \ 3 

Sm i : - A) 

  25. INVESTIGATORS COMMENTS AND CONCLUSIONS 

I conclude that this man did commit this act as charged as he failed to return 
  

  

  

  

  

  

  

  26. ACTION TAKEN 

Same as No. 20. 

  

  

  

  

      
  

  
  

  

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LATE, *3L%. : 

RTE ~~ -v HEIR LET & AW 4 . PH SR a gh "ai ’ pin Lr aE A RS TY Sl 
Sha Shaunna ye ELPE By Al Bett Ton Venn 
Br LIF VV pS Pores WS ahs ——— . ——— - ara ~~ Lww - -'e - 

20 « _OFFIE GENE EVANS ea 
3 m—r———— BE LCM. LARCENY FMA ro alae BS MR ITN 4 113: TPN TK. Me YEA 

ALLEGED VIGLATION: USE OF _ DRUGS & ESCAPE 
C—O 4 cn. Cr AS A A J Cnt CL B® BD Wl” A J. | Crt FW 

  

Mr C—O 30.5. gO 

DATE OF OFFENSH: 6/19/78 & 6/23/78 Code No. 203 & 101 

  

— rn 

You are being referred to the Institution Disciplinary Commitcizse 

for tlie dbove charges. 
. 

The haavine wiil ba hald on: Wednesday 9/6/18at 9:00 AM? M 
at tha fo) ASSOCIA" 

o sd 

we Ioliowing locaiion: FSBOCTATE “WARDEN 'S ®RKXX BUILDING 
CITE SU LN et SRA AAT Dn ir 8 tn nl 

You are entitled te have a fall tima giaff ravine reprezant you at 
the hearing. Please indiczie below whatier you desire to nave a 

staff repragantative, end if £5, his op Tov cane, 

I (a0) J {30 not) wish to have a staff representati Cait 

1f so, kha 214800 vencdsantotive's nner lun LL Geau GC ec. Ss in 
hi 2) iT, Geog - fe Nios - AT Peto he : would poe’ wa, of Rep, 

You will also have the ritht to Col’ witagsansan ac Whe heosring 
to prexeant documentary evidonae 1nd 
your witnesses wiil not jeorarvdize iL 

  

Dich 

  

3 0 BG Sl SER Bd 3 Hi 

: Foy * 3 oe WYN cin drt bem i 
witnesses vou wich to call viwiil ony 30008 010, ¢ 

oo p SRD na nal Rg ? EIN Ay Wg a-e Sah x e N 
waat each Props sal WITREES WhHAL of EDael 1.0 XCEILIS WO 

  will IR RY oA =~ ST te $300 pi wri TITRE a A 
Meigs S = PA odie Cre IEC le 

i r— or rr aro FCP A a Sv wa i SO pe ats CS SBP rh. An | Gln © NA — | —-  ——— ——" 

© i + i Sor A Stl   

  

  

2 ————. AAA Ta—— he Toy S—— —— i 

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4‘ 

  

} CNY an yy TY - Y Laiyn tat om TY} 2 3 ome I~. 3 i A o~ 
The Chalrman of the InsL cutis NMisn.piang Cow thes iv, Y) call those 

‘ Pope as — bg Toes “- tea 3 ut LC ad Ndi jad ~~. t “wi y+ ws  - ee Rd Y 

witnesews IISe5fTf or Inmet) WY RTE I4aA00OLST LY dvd 1x: / Id Wd 

are Aovarplisasitveiyim bo me nuaagary Furian appresLonion of tha cir 
: ETI . ile oily rn in gs Caeeigt ar ul eee A Liv whi . - “ ov 3 

CuUnstancen Xalrdundiieg vier CSTR, Tr LR ol Th ET SW Ll eed NOL be 

J : uid - 3 v neq I 3 - 5. a Ae ro 

called, Chavaiilsab:le MILANO JE 2 Dawe :) 13 Savy. 3 t S00 UE Rg TR HR 

mantrs., 

YE Jen li dSRSG 15 RS8aled, UL Le. 8 his Te 4 1.3 ia = 

thie {vis : “uA oY X11 21 &  % vl cut TR 3 te Woe «J 15 ote X Gil: FH ny ol 1 

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al A, 2 { 

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Pato ld 3.8 Ji elie — OFRI1E GENE EVANS Joa 

Form No. v0] 

Stock 10. 2ufi=2480 (a> 735) 

  

   



  

  

  

  

  

EVANS, Offie Gene rNunber 35016-1133 Late 06/26/78 
  

Orig. 6 yrs. Reg. Adult & 5 yrs. Reg. Adult (Concurrent) : 

£ P.V. 1,022 dayspFfense Forge & Utter U.S.Treas. Ck., Custody Clzegs. Community 

Poss. Stolen Mail and Parole Violator 
  

  

  

PRY Resp oument (not work relezse) ( ); work Releese ( ); Stvady 
: 

v
u
 

~~ Spm —— - > -ie < - r gr Conaanity Activity BY PIR eg a 

  
  

  

    
  

  
  

  

Rumler of Irrazes Involved: 1 rime and Dats of Iscedpe: 6:00 p.m. ~ 06/23/7¢ 

Surervieinz Ixpioges: (iF none, Brice none): None - was on work pass from the Center. h 

Ferson Flrst Reporting Escape: Earl Lawson, Case Manacer rine Reporeetff: 11:30 p.m. = Gf, 

sureau Official Notified: Loretta Blackmon, Corr. Svcspzte: 06/26/78 Time: 9:15 a.m, 

If Aprrehended, Date: Time: 
  

  

Circurstences Surrounding Escape: Evans signed out of the Center at 5:00 a.m. on 06/23/78 ar: 
dd TS 

HH :* 

was scheduled to return at 6:00 p.m. on the same date. His destination was listed as 
AS 

He failed to return as scheduled, and was subseguently placed on Escape Status at 11:30 p.m. 

that same night and the FBI was contacted at that time. This was done after attempts were mac: 

to located him in the community, which were all to no avail. 

yum Figemy ae ow . 
EvelLEation: 

had received notification from Fairfield Medical Labs that a urine specimen collected from Ev 

on 06/19/78 had been returned as being Positive for Opium and Quinine. The matter had bear 

discussed with him upon his return to the Center on 06/22/78, and he had been placed on r 

is of the 

~a < 

fa 

tion with an incident report being prepared relative to this incident. The staff 

opinion that this was a contributing factor in his not returning to the Center as scheduiec. 

Chances in Facilities or Procedures Contemplated to Prevent Similar Occurrences: 

None anticipated. 

Other Fertinent Information: 

  
  

  

None 

J ant C ou / Be s Bupstszeds: 08/26/7¢ : \ \N bi 0 ol 
ii ~ -d YT} 3 ™ wrt = Sa NC 4 - Pe 

Ete eo. Bomar Teg J a NTE LLL Te 7 ‘CL We UA oe. IRE, 

J 

ISEEADATE FSCAPE REPSRT, IN DUPLICATE, SHOULD BE Susu -TPD FOZ FACE INMATE INVOLVES) 
  

(Staff Anelysis) Evans has a history of drug abuse, and this more than likely co: 

tributed to his absconding from our facility. On the day just previous to his abscondingc, ws 

fo -~ 
te 4 

 



  

AFFIDAVIT 

On August 31, 1978, Offie Gene Evans was informed by his assigned 

Case Manager that Hy following action was taken in absentia by the 

Institution Disciplinary Committee at the Federal Community Center, 

Atlanta, Georgia on June 27, 1978 as the result of your escaping from 

that facility on June 23, 1978. The action taken by the committee in 

response to the Incident Report charging Escape, dated June 23, 1978, 

was as follows: forfeit 119 days Statutory Good Time and upon apprehension, 

to be returned to a federal institution. 

Mr. Evans was also advised of his rights to have the charges brought 

before the Institution Disciplinary Committee at this facility where he 

was returned to custody. He was informed of the actions taken.2z= result 

of his escape by the Institution Disciplinary Committee at our facility 

and further advised that the IDC would be able to rehear his case at his 

request which may result in the dismissal or modification of the charges 

and resulting action. It was clearly explained to Mr. Evans that the 

sanctions previously imposed by the aforementioned committee could not be 

increased if he opted for a new hearing. 

I, Offie Gene Evans, hereby (z=) (choose to exercise) the afore- 

mentioned rights as advised above and verbally reported to me by my Case 

Manager, Mr. D. K. Adams. 

AA wn & 
  

g#fie Gene Evans 
Reg. No.1: .385016-133 

  

    K. Adams, Case Manager 3 Date 

> A, 
AH NBAL : IC Avmst3y, ere ed 

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  AO 72A © 
(Rev. 8/82)     

LED jy 
Usp phi K'S OFF 

‘tant, 

IN THE UNITED STATES DISTRICT COURT 5 
FOR THE NORTHERN DISTRICT OF GEORGIAN oe 

ATLANTA DIVISION 

  

wy 

WARREN McCLESKEY, : 

Petitioner, : 

VS. : CIVIL ACTION NO. 

1:87-CV-1517-J0OF 
RALPH M. KEMP, Superintendent, 3 

Georgia Diagnostic & 
{Y) —~ re oy Pe hall a 
TV asgificat tion wenvelXl ’ 

Respondent. 

ORDER OF THE COURT   

Before the court is the respondent on a motion for 

relief from final judgment pursuant to Rule 60(b) of the Federal 

Rules of Civil Procedure. In that motion the respondent also 
  

asks leave to take the deposition of Offie Evans. 

As presented, the motion fails to satisfy the 

requirements for the relief sought. There is neither a showing 

of due diligence nor a showing as to what Offie Evans would say. 

The court believes that due diligence is measured by what the 

respondent knew at the time. That would include what the 

respondent knew about the petitioner's efforts to locate Offie 

Evans. That is not necessarily the sum total of his knowledge 

nor do the petitioner's efforts to locate Evans relieve him of 

any obligation to utilize resources available to him. 

Before the motion for relief from final judgment can be 

properly addressed, the court deems it best to allow some 

additional discovery on the two issues of due diligence and of 

Offie Evans' knowledge. Accordingly, both sides may conduct 

  

  

 



  AO 72A © 

(Rev. 8/82)     

such discovery as is reasonable up to August 1, 1988. Response 

times for paper discovery are shortened to fifteen (15) days. 

Petitioner may depose such witnesses of the district attorney's 

office and the Atlanta Bureau of Police Services as he deems 

necessary to prepare on the due diligence point. 

If during the period of discovery there is a dispute 

which arises, the parties are DIRECTED instead of filing written 

pleadings to seek a conference with the court immediately in 

person or by telephone. 

SO ORDERED this 16th day of June, 1988. 

a 

. tila ml al N NACKE] J. QWEN FORRESTER 
IY ws UNITED STATES DISTRICT JUDGE 

  

    

  

 



  

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN MCCLESKEY, 

CIVIL ACTION NO. 

Petitioner, 1:87-¢cv-1517-J0OF 

Vv. 

HABEAS CORPUS 

RALPH KEMP, WARDEN, 28: 0.5.C,. § 2254 

% 
% 

% 
¥ 

NF
 

X 
* 

% 
X 

Respondent. 

SUPPLEMENT TO MOTION FOR RELIEF FROM FINAL JUDGMENT 
PURUSANT TO RULE 60(b) 
  

  

Respondent in the above-styled action previously filed a 

motion for relief from judgment in this Court dated May 6, 

1988. Subsequently, this Court entered an order granting both 

parties leave to conduct discovery specifically addressed to 

the Rule 60(b) motion. Since the time of that order, discovery 

has been conducted, in particular, with Respondent taking the 

deposition of Offie Gene Evans. Respondent hereby supplements 

the previously filed motion for relief from final judgment by 

attaching a copy of that deposition to the instant supplement 

and by noting the following: 

A question arose in the court's most recent order 

concerning the possible materiality of the potential testimony 

of Offie Gene Evans. A review of the deposition will show that 

  

 



  

his testimony will certainly be material to the issue 

previously decided by this Court. In fact, Mr. Evans testified 

in his deposition and, presumably, would so testify before the 

court, that when he was initially placed in the Fulton County 

Jail, he was housed in Cell 14 on the first floor in the North 

Wing. (Deposition at 13-14). He further testified that he 

began talking to McCleskey and Depree from the first day he was 

incarcerated. Id. at 15. . Mr. Evans also testified that he did 

not talk to any officers before he talked to the deputy at the 

jail and relayed to the deputy that he had information 

concerning McCleskey and Depree. Id. at 17. Mr. Bvans never 

talked to Ulysses Worthy about this particular case. Id. at 19. 

Mr. Evans emphatically stated that he was not moved from 

one cell to another in the Fulton County Jail, that no one 

asked him to go talk with McCleskey or Depree and that he did 

not ‘talk to them at the direction of anyone. 14. at 21-23. 

The above, in addition to the remainder of Mr. Evans' testimony 

clearly establishes the materiality of his testimony. 

Additionally, Mr. Evans gave testimony which reflects on 

the diligence aspect. Mr. Evans testified that the only way he 

heard about the McCleskey case was from being told there was an 

article in the newspaper. He testified that he was not even in 

Atlanta at the time. 14. at 25-27. He had been advised by 

certain members of his family that a man had been to his house 

on numerous occasions trying to locate him. This underscores 

 



  

Respondent's earlier statements to the court that Mr. Evans was 

obviously unavailable at the time of the prior proceedings in 

this Court and any additional efforts on the part of Respondent 

simply would have been a futile gesture. 

Based upon the above, Respondent submits that a sufficient 

basis has been shown for granting the motion for relief from 

final judgment pursuant to Rule 60(b). Wherefore, Respondent 

prays that this Court grant the instant motion, schedule an 

aditional evidentiary hearing at which time the testimony of 

Mr. Evans can be taken and conclude finally that relief should 

be denied in this case. 

Respectfully submitted, 

MICHAEL J. BOWERS 071650 

Attorney General 

MARION O. GORDON 302300 

First Assistant Attorney General 

Aine SO Lott) CL 
  

WILLIAM B. HILL, JR. T3F4725 
Senior Assistant Attorney General 

  y 4 : A 
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 QP SERVICE 
  

I 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: 

This 

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

John Charles Boger 

99 Hudson Street 
New York, New York 10013 

29 day of July, 1988, 
  

  
pl AY flo 

H WESTMORELAND 
Assistant Attorney DAD nl 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN McCLESKEY, 

Petitioner, 

- against - No. 1:87-cv~-1517~J0F 

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

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Respondent. 

PETITIONER'S SECOND MOTION TO EXPAND THE RECORD 
  

Petitioner Warren McCleskey, by his undersigned counsel, 

roves this Court, pursuant to Rule 7 of the Rules Governing 

Section 2254 Cases and Local Rule 225-3(b), to expand the 

records in this case to include the following: 

(1) Docket Sheet, United States v. Offie Gene Evans, 
  

No. 28027, {Northern District of Georgia), attached hereto as 

Exhibit 3; 

{143 Sentence, Fulton Superior Court State v,. Offie 
  

Evans, No. A-16823, {May 15, 1973); attached hereto as 

Exhibit 4); 

(iii) Newspaper clipping, The Atlanta Constitution, 

December 24, 1987, attached hereto as Exhibit 5. 

All of these items are relevant to the Court's proper 

evaluation of respondent's Rule 60(b) motion. 

 



  

WHEREFORE, petitioner urges the Court to grant his 

| motion and to expand the record in this case to include these 

| 1tems. 

Respectfully submitted, 

Tote N Kreeny 
ROBERT H. STROUP Y 
State Bar No. 689-175 

li 141 Walton Street 
ll Atlanta, Georgia 30303 
i (404) 522-8500 

  

JOHN CHARLES BOGER 

H 99 Hudson Street 
New York, New York 10013 

(212) 219-1900 

ATTORNEYS FOR PETITIONER 

WARREN McCLESKEY 

 



    
CRIMINAL DOCKET I HE TROL 

od % 2g eB UNITED STATES DISTR! CT COU 

D J. Form No. 100A Rev. 

TITLE OF CASE : ATTORNEYS 

THE UNITED STATES For U. 3.; 

Gale McKenzie 

  

  
    

  

    

  

vs. 

OFFIE GENE EVANS 
592 Chestnut Street 
Atlanta, Ga. 

  
  
  

  
  

  

  

  

  

  

  

  

      
                    

  

  

      

  

  

| 
(custody) | 

| For Defengans, 
| Michael Russo aptd. 
| 1708 Fulton Natl. Bk. Bldg 

NAME OR || id ¢ ga i 
STATISTICAL RECORD COSTS DATE RECEIPT NO | REC. | DISE. 

| ae 

33. 2mailed  2.6-73 Clerk | 
| 

JS. 3 mailed 5-7-73 Marshal | 
| 

Violation Possess stolen || Docket fee | 

.. mail matter | 
Title 18 

Sec. 1708 | | | 

falsely forge, utter & | 

publish U.S, Trea. Ck. | | 

18:495 I 
I | | 
oor 

19 DATE 7 3 PROCEEDINGS i rE 

Feb. 6 | Criminal indictment in Three (3) Counts, filed. he : 
$1,000.00 appearance bond dated 1-9-73 without surety, filed. 

Peb, 23 ARRAIGNMENT: Case called. No appearance ty deft. Proclamation 
| 

had. Bond forfeited. Benclr warrant issued and 
delivered to USM. 

Peb. 27 Order Forfeiting Bond filed. Motion for Judgment on Forfeited 

Bail Bond, filed. Order setting Show Cause hearing for 4-2-73 

| ‘at. 10:00 i: M., filed. (Cy to USA and USM). 

Mar. 27 Order filed. Writ H. C. Ad Pros issued and delivered to USM. 

Mar, 30 ARRAIGNMENT: Plea of GUILTY to count three, filed. 

Court verbaly dismissed bond forfeiture, 

Apr, 6 | Order appointing counsel, fila. 

Apr. 6 | Order setting aside bond forfeiture of 2-23-73, filed. (cc: U34, 

USM, counsel) 
Apr. 20 . Marshal's unexecuted return on warrant dated Y- is 74 filed. 

Marshal's unexecuted return on order 4-6-73, file 
Marshal's return on writ hc ad pros executed 3- Loa 73, filed 

EXHIBIT 3 (over) 

  

 



uo fA) 40M ar ' 

LES F 21% 
PROCEEDINGS 

  
    
  

  

  
  

May 7 | SENTENCE: C.A.G. SIX (6) YEARS. Court recommends institution for 

service where defendant may receive narcotic rehabilitation. 

(by CAM) 
May 9 | Motion and order dismissing counts one and two, filed. 

July 19 | Marshal's return on judgment and commitment executed 6-26-73 and 

7-10-73, filed. 

    

FPI—88—9-30-71--10M--820! 

 



mi bl Mune fy ene 

SENTENCE: 

Charge Tengey Yn i Te CP Ales aec. FCG 

Fulton Superior Court 

Tai Term, 19.7.3 

  

© 

  

No. [7 [6823 i 

HES (Plea) (Verdict) of Guilty 

Croenl Ll Fy iy 

WHEREUPON, It is ordered and adjudged by the Court that the Defendant, 

    

be taken from the Bar of this Court to the Jail of Fulton County, and be there safely kept until 

a sufficient guard is sent for him from the Georgia Penitentiary, and be then delivered to, and be 

by said guard taken to said Penitentiary, or to such other place as the Director of Corrections 

may direct, where he, the said defendant be confined at labor for the full term ZZ... 

ave Apel il STI 

years to be Cais according to law.    
   

fot Try AL Geren sy Font i Bub rf i 

LEWIS R. SLATON % I 

  

: | i Sn LA 2754 

District Attorney Judge S. C. A. J. C,, Presiding. 

FILED IN THIS OFFICE, THIS MINUTES PAGE 

THE FP2y (S77 73 

Zl | 
Deputy Clerk, S.C., 

      
     AJ.C 

COURT REPORTER: jf Th EXAIAIM 4 ire 18a 70 

 



  

105 ALLANIA VGUNDILIITUILIUN 
For 119 Years, The South’s Standard Newspaper 

  Copyright © IMT The Alasta Constitution 
THURSDAY, DECEMBER 24, 1987 SPORTS FINAL 25 CENTS 
  
  

      fit yi (3. L754 

Warren McCleskey's armed rob- 
bery conviction still stands. 

  

McCleskey murder conviction overturned again 
Role of jail informer cited to reopen 
case used to uphold Ga. death penalty 

By Gail Epstein 
Staff Writer 

For the second time, the same 
federal judge has thrown out the 
murder conviction of Warren 
McCleskey, reopening the nationally 
prominent case that was used to up- 
hold Georgia's death penalty. 

The ruling. issued Wednesday 
by U.S. District Judge J. Owen For- 

rester, gives the state 120 days lo 
retry McCleskey, who was convicted 
in the May 1978 slaying of an Atlan- 
ta police officer during a robbery. 
McCleskey's armed robbery convic- 
tion still stands, and he will remain 
on Georgia's death row in Jackson. 

McCleskey's case gained nation- 
al attention last spring when the 
U.S. Supreme Court ruled 54 that 

—— 

Georgia's death penalty is legal de- 
spite statistical evidence suggesting 
that it is imposed more frequently 
against blacks who kill whites than 
against whites accused of killing 
blacks. McCleskey is black; Atlanta 
police Officer Frank Schlatt, whom 
he was convicted of killing during 
an attempted furniture store rob- 
bery, was white. 

Forrester’s ruling was based not 
on the racial argument but on newly 
discovered. evidence that law en- 
forcement personnel put an inform- 
er in a jail cell next to McCleskey's 

  

olation reasserts “the evils of capi- 
tal punishment” 

“If we had found out about this 
a year from now, we could have 
written McCleskey's family a sad 
note.” Boger said. “We have, I 
think, saved Mr. McCleskey's life 
before an injustice was done.” 

Georgia Altorney General Mike 
Bowers had not seen the ruling, 
but said there is a “substantial like- 
lihood™ of an appeal to the Ith 
U.S Circuit Court of Appeals. 

Forrester previously overturned 
McCleskey's conviction in February 

1984 on different grounds. The 11th 
Circuit reversed Forrester's ruling 
in 1983, and the US. Supreme Court 
affirmed the 11th Circuit in April. 

McCleskey's atiorneys then filed 
a newgpetition for |    

     
Fulton Deputy SherifT Ulysses Wor 
thy testified during a hearing that 2 

law enforcement officer asked him 
to move informer Offie Evans to the 
cell next to McCleskey's. 

Although Worthy's testimony 

was al times contradictory, and de- 
spite testimony from law officers 
disputing Worthy's contention. For- 
rester held that Evans was illegally 
working as an agent for the state 
when he clicited incriminating 
statements from McCleskey. 

It is not possible to find that 
the error was harmless,” Forrester 
wrote, because “Evans' testimony 

about [McCleskey's] incriminating 

statements was critical to the state's 

case” and could have contributed to 
the jury's guilty verdict. 

Evans’ testimony that McCleskey 
confessed to being the triggerman 
also was critical to the imposition 
of the death sentence, Boger said 
Now that Forrester has ruled Ev- 
ans’ testimony was illegally ob- 

tained, McCleskey could be convict 
ed in a retrial but the state would 

have a difficult time reimposing the 
death sentence, Boger said 
McCleskey's attorneys had tried 

2arlier to establish that Evans was 
slanted in the cell next to McCles 

<ey's, bul they had no success 
til June 

un 

Then, armed with a new court 
decision opening police investiga- 
tive files in closed cases, they filed 
a request with the city of Atlanta 
for other documents relating to 
McCleskey's case. City attorneys 
turned over a statement from Evans 
detailing how he won McCleskey's 
confidence and elicited incriminat- 
ing statements from McCleskey 
while they were jailhouse 
neighbors. 

McCleskey's attorneys then in- 
terviewed Worthy for the first time 
and discovered that Evans had been 

planted in the cell as an informant 

State attorneys had argued that 
McCleskey's conviction should be 

upheld because he was too late mn 
raising of new evidence the issue 

EXHIBIT 

[ But Forrester disagreed. 

and later used that informant’s tes- 
timony to help convict McCleskey. 

In 1964, the U.S. Supreme Court 
ruled that using an informer to elic- 
it a confession from an accused 
criminal who is represented by a 
lawyer violates the Sixth Amend- 
ment right to counsel by question- 
ing him without a lawyer present. 

“Unfortunately, one or more of 
those investigating Officer Schiatt's 
murder stepped out of line,” For- 
rester wrote in his 38-page opinion. 

“Determined to avenge his 
death, the investigator{s] violated 

clearly established case law. ... In 

doing so, the investigator{s) ignored 
the rule of law that Officer Schiatt 
gave his life in protecting, and 
thereby tainted the prosecution of 
his killer.” 

McCleskey had been scheduled 

to die in the electric chair in July, 
but Forrester postponed the execu- 
tion. Jack Boger, a lawyer for the 
NAACP Legal Defense Fund who 
represented McCleskey, said the 
fact that the victory stemmed from 
new evidence of a constitutional vi- 

See McCLESKEY, Page 8-A 

  

saying 
there was no reason ior McCleskey's 

| attorneys to have known about Ev 
ans’ statement to police or to have 
interviewed Worthy earlier 

Staff writer Bill Dedman con- tributed to this report 

  

   



  

l CERTIFICATE OF SERVICE 
  

I hereby certify that I served the annexed document on 

| respondent by mailing a copy to his counsel at the following 

' address: 

Mary Beth Westmoreland, Esq. 
Assistant Attorney General 
132 State Judicial Building 
40 Capitol Square, S.W. 
Atlanta, GA 30334 

All parties required to be served have been served. 

ipone this 11th day of August, 1988. 

Cotes N. Lpeay 
  ROBERT H. STROUP 

 



August 1, 1988 

  

Hon. J. Owen Forrester 

United States District Judge 
2367 United States Courthouse 
75 Spring Street, S.W. 
Atlanta, Georgia 30303 

Warren McCleskey v. Ralph M. Kemp 

No, 1:87-cy-1517-J0OF 
  

Dear Judge Forrester: 

Enclosed is petitioner's motion to expand the record of the 
proceedings in this case to include (i) certain discovery taken 
pursuant to the Court's June 27, 1988 order; (ii) two affidavits 
executed and submitted to respondent in July of 1987, reflecting 
petitioner's knowledge, at that time, of the whereabouts of Offie 
Evans, which =-- respondent has since stated -- formed the 
ostensible basis for respondent's decision not to take additional 
steps to locate Offie Evans. Also included is a recent affidavit 
by Suzanne Hashimi, Esq., confirming respondent's admission that 
neither respondent nor his agents ever attempted in 1987 or 1988 
to locate Mr. Evans, at least by contacting his last known 
address at the home of his sister. 

If respondent decides to submit to the Court the deposition 
of Offie Evans, taken on July 13, 1988, petitioner anticipates 
that he will move the Court to expand the record further to 
include certain official records and other public documents that 
contradict, on a number of points, the testimony provided by Mr. 
Evans during that deposition. 

Petitioner respectfully suggests that the most appropriate 
next steps in these proceedings would be to direct respondent-- 
in light of the additional discovery he has been afforded -- to 
file a brief setting forth any additional grounds he might have 
to support his Rule 60(b) motion. Although under some 
circumstances, simultaneous briefing might be feasible, 
petitioner 1s uncertain on the present record -- given 
respondent's admissions that the testimony of Mr. Evans is (1) 
not newly discovered and (ii) was not sought by respondent in 
1987 -- what grounds respondent might proffer in support of his 
Rule 60(b) motion. Once respondent's position is clear, however, 

 



  

Hon. J. Owen Forrester 

August 1, 1988 

Page °C 

petitioner would welcome the opportunity to file a responsive 
brief. Thereafter, the motion would be ripe for final review by 
this Court. 

Sincerely, 
\ 

ra 

John Charles Boger 

Attorney for Petitioner 

cc: Mary Beth Westmoreland, Esq. 

 



CLERK'S OFFICE FILED IN CLERKS FFA 

IN THE UNITED STATES DISTRICT COURT a HRY 

AUG 01 188 
FOR THE NORTHERN DISTRICT OF GEORGIA LUTHER D. THOMAS, Clerk 

  

By: Nenul \ rk 

ATLANTA DIVISION I~. Deputy Cle 

  

WARREN McCLESKEY, 

Petitioner, 

- against - No. 1:87-cv-1517~JOF 

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

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PETITIONER'S MOTION TO EXPAND THE RECORD 

Petitioner Warren McCleskey, by his undersigned counsel, 

moves this Court, pursuant to Rule 7 of the Rules Governing 

Section 2254 Cases and Local Rule 225-3(b), to expand the record 

in this case to include the following: 

(1) Petitioner's First Interrogatories to Respondent, 

dated June 28, 1988; 

(ii) Petitioner's First Request for Production, dated 

June 28, 1988; 

(iii) Respondent's Answer to First Interrogatories of 

Petitioner, dated July 12, 1988; 

(iv) Response to Petitioner's First Request for 

Production, dated July 12, 1988; 

 



  

(v) Affidavit of Bryan A. Stevenson, dated July 7, 1987; 

(vi) Affidavit of T. Delaney Bell, dated July 7, 1987; 

and 

(vii) Affidavit of Suzanne Hashimi, dated July 29, 1988. 

Items (i) through (iv) represent discovery taken by 

petitioner, pursuant to this Court's June 17, 1988 order, to 

determine (i) whether respondent Ralph Kemp took any concrete 

steps in 1987 to locate Offie Evans, the witness whose testimony 

he now seeks to introduce pursuant to F.R.Civ.P. 60(b); (ii) 

whether respondent contends that Evans' testimony would be 

material; and (iii) whether respondent contends that Evans' 

testimony is "newly discovered . The interrogatory answers 

reveal that respondent in fact took no steps whatever to locate 

Offie Evans, that respondent does not claim that his testimony is 

newly discovered, but nonetheless that respondent believes that 

the testimony would be material. 

Items (v) and (vi) are affidavits prepared by petitioner's 

investigators in July of 1987 -- at the time of the initial 

federal hearing on petitioner's successive application -- which 

reveal what petitioner then knew about Offie Evans' whereabouts. 

These affidavits demonstrate that Mr. Evans was in the Atlanta 

area in June-July of 1987, that he had been seen on several 

occasions by relatives and others, but that he simply declined to 

make himself available to petitioner. 

Item (vii) is an affidavit prepared by the Federal Public 

Defender appointed by this Court to assist petitioner during his 

2 

 



  

1987 hearing, confirming that no agent of respondent attempted to 

locate Offie Evans through his sister at any time during 1987- 

1988. All of these items are relevant to the Court's proper 

evaluation of respondent's Rule 60(b) motion. 

WHEREFORE, petitioner urges the Court to grant his motion 

and to expand the record in this case to include these items. 

Dated: August 1, 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 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that I served the annexed document on 

respondent by delivering a copy, by hand, on Monday, August 1, 

1988, to his counsel at the following address: 

Mary Beth Westmoreland, Esq. 
Assistant Attorney General 
132 State Judicial Building 
40 Capitol Square, S.W. 
Atlanta, GA 30334 

All parties required to be served have been served. Done this 

1st day of August, 1988. 

  

 



   



  

To TYLI YS FIAT TITTY CITATTC rT mY ~ mm ~ ~r 

LNT INITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN McCLESKEY, 

No. 1:87-¢cv-1517-JOF 

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 JE
 £ Robert H. Stroup, l41 Walton Street, N.W., 

Atlanta, Gecrgla 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 hls 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 detall every action 

BR Er a TI add dt LT! ~ - a re me ean en 

 



  

[ve 
> 

taken hy suvery individual or entity, on ach scparate 0CCasion, 

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 1n this action? If the answer 

is affirmative, please describe in detail each such 1ncident of 

notification. 

INTERROGATORY NO. 3 
  

Does Respondent contend that he ever made any request to ‘the 

Districti Court for an additional opportunity to locate Offie 

Evans between July 1, 1987 and December 23, 10877 If the answer 

1s affirmative, please describe 1n detail such request. 

INTERROGATORY NO. 4 
  

# 

Does Respondent contend that he ever sought to determine 

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

under thelr 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, (111) the persons they had 

Interviewed, or (iv) the places they had been, 1n order to locate 

Offie Fvans? If the answer 1s affirmative, please describe 1in 

detail such meeting or conversation with Petitioner, his counsel, 

 



  

or any such employees or agents thereof, inciuding 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, 19872? If 

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, EA ahne, and all 

other relevant identifying features, every communication, whether 

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

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

under his control, and (11) 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, 

 



  

3lenographic 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 js "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 1s 
affirmative, please state every material fact that the testimony 
Or evidence of Offie Evans contribute, and describe why it is 
material. 

INTERROGATORY NO. 8 

Does Respondent contend that Offje 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? 1f the answer is affirmative, 
Please state every fact that ig newly discovered ang state 
Separately the date upon which it was newly discovered by "{ i) 
Respondent, (ii) his agents, (111i) attorneys, and (Lv) other law 

 



  

personnel 1nvloved with the p 
enforcement 

prosecution of Warren 

McCleskey. 

June 28, 

Respectfully submitted, 

Fetontsy, noe 
  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 

 



  

CERTIFICATE OF SERVICE 
  

1 hereby certify that I am one of the attorneys for 

petitioner Warren McCleskey in this action, and that I served the 

annexed document on respondent by delivering a copy, by hand, on 

Monday, June 27, 1988, to his counsel at the following address: 

Mary Beth Westmoreland, Esq. 
Assistant Attorney General 
132 State Judicial Building 
40 Capitol Square, S.W. 
Atlanta, Georgia 30334 

All parties required to be served have been served. Done this 

{777 day of June, 1988. 

  

Robert H. Stroup 

 



  

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, ont Wednesday, July 13, 1988, at 10:00 a.m. This request Ui
 

is 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, 

/ 1938. 

Dated: June 29, 1988. 

 



  

Respectfully submitted, 

Retort X(. Bros 
  

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 
2 om om em 

{2123 "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; (11) 

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. 

5. 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. 

a iL - -. - © po gyrA ND Ya + GEA wn vera WT 2d . PIPER, MS PA” Sai Lai 

 



  

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 OT 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, petween April 1, 1987 and July 12, 1988. 

ii 

py “e— BE erat 

 



  

UNITED STATES 

NORTHERN DISTR 

TLANTA 

WARREN MCCLESKEY, * 

* CIVIL ACTION NO. 

Petitioner, % 1:87-¢cv-1517-JOF 
* 

v * 

* HABEAS CORPUS 

RALPH M. KEMP, WARDEN, * 28 0.$.C.§ 2254 
* 

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 

apove-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 1n this case which 1s 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 

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

to the reasonable belief that any such action would be futile 

1S no independent knowledge was had by either counsel, or the p Y 

 



  

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 HO. 3   

No such request was made due to the reasonable belief that 

any such attempt would be futile. 

INTERROGATORY NOC. 4.   

No such attempt was made based upon counsel's assumption 

that the representations made by ccunsel for the Petitioner to 

+ 

the court were an accurate reflection of those efforts being H
h
 

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 

 



  

foi, pe PRA TY a ey 3 = = A Big 1X oy Ty : ro the Petitioner in an attempt to locate Mr, Bvans iacludling 

n
 

A
 

Ih
 

Hh
 

C)
 

(D
 

[O)
)] 

5
 Q,
 

1] Defender’ 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 nis direction or under his control has had any contact with 

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

1983, The only further contact with Offie Evans with which 

present counsel is aware is one occasion after the court was 

aavised 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 1s 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 nas been advised that 

no substantive conversation was had. 

INTERROGATORY HNO. 7.   

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

habeas corpus proceeding 1n the case of Bernard Depree and the 

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

nis 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 

tne 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. 

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

INTERROGATORY WO. 4&8.   

Respondent does not contend that the information ‘that coul 

be supplied by Offie Evans 1s "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 

1s being made based on the information presently available to 

counsel ana 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 

Li bitin 2. 72 L ZS 
WILLIAM B, HILL, JR. ¢ 7 3547245 

~ Senior Assistant Atterney General 

  

fl ¢ 

Yl nd LHe atte fn ail, 
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 

 



  

    

  

the within and foregoing response, prior to filing the 

postage prepaid, 1n - a copy thereof, same, by depositing 

the United States Mail, properly addressed upon: 

Robert H. Stroup g fr 
141 Walton Street, vw fy ard 

Atlanta, Georgia 30303 ( 

This LILA day of July, 1988, 

MARY BETH WESTHMOREL     
Agsilstant Attorney General 

 



  

ITED STATES DISIRICT COURT 

IORTHER DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN MCCLESKEY, * 
X CIVIL ACTION: NO. 

Petitioner, ® 1:87-cvy~-1517~JOF 
* 

Vv * 

* HABEAS CORPUS 
RALPH M. KEMP, WARDEN, * 28. 0.8.0. $2254 

* 

* Respondent. 

RESPONSE TO PETITIONER'S FIRST 

REQUEST FOR PRODUCTION 
  

  

1 . 

No documentation to this effect is in existence. 

2. 

NO such documentation to this effect 1s in existénce 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. 

  

 



  

I'o the knowledge of Respondent and counsel for the 

Noo ry FY t= “11 ~ hh 3 t+ 1 NY ovo 
Regponaent nos such qocumentarion €x1sLs, 

[0 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 1s 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 

5 MARION O. GORDON 302300 

First Assistant Attorney General 

Lots Lhitgmndi ABs JAE eh 
  

WILLIS 8B. OIL. JB. 2 Ir T5173 
Senior Assistant Attorney General 

     
  

   TH WESTMORE ND / 50150 M RY/BE 

Assistant Attorney General 
     

MARY BETH WESTMORELAND 

132 State Judicial Building 
40 Capitol Square, S. ¥. 
Atlanta, Georgia 30334 

(404) 656-3349 

 



  

Gs Fo ” NA 
ER. [ ~~. OF SERVICE 

Shh Neng PAE oe : or a 
I do hereby caztify that'll have thls gay served 

the within and foregoing response, prior to filing the 

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

the United States Mall, properly addressed upon: 

Robert H. Stroup = 

nly 141 Walton Street, HN 

Atlanta, Georgia 30303 |) 

John Charles BoOger 

99 Hudson Street 

New York, New York 10013 

This BLA day of July, 1988. 

2 ; i 7 

I eth 7 L rl A 
  

MARY /BETH WESTMORELAND 
Assidtant Attorney General 

4 

 



  

  

FULTON COUNTY, 

ATLANTA, GEORGIA 

N
a
”
 

N
e
”
 

S
e
”
 

  

AFFIDAVIT OF BRYAN A. STEVENSON 
  

I, BRYAN A. STEVENSON, being duly sworn state the following: 

1. I am an attornev engaged in the practice of law at 185 

Walton Street, N.W., Atlanta, Georgia 30303. 

2. In late April of 1987, I was asked by Bob Stroup, counsel 

for Warren McCleskey and by Warren McCleskey himself to assist in 

locating and interviewing Offie Evans regarding Evans' involve- 

ment in Mr. eCletkey' trial. 

3. Shortly after being requested to assist in interviewing 

Of fie Evans I was informed by Mr. Stroup that Offie Evans was due 

to be released from a state prison in Waycross, Georgia on May 8, 

1987, and that a telephone number had been obtained where he 

could be reached upon his release. 

4. The telephone number I was given was at the address of 

Of fie Evans' sister, Lucille Bonner, in Atlanta, Georgia where 

Mr. Evans was expected to reside. On or about the 12th of May, I 

called and spoke with Mrs. Bonner about meeting Mr. Evans. She 

informed me that she had not seen or talked with Offie but he was 

expected at any time. 

5. On the next day I again called Mrs. Bonner and she 

informed me that Offie had arrived and that she had told him to 

 



  

give me a call. 

6. When Mr. Evans did not call me I again called Mrs. 

Bonner who told me that she had told Offie to contact me. She 

told me that she would again tell Offie to call. 

7. When once more Mr. Evans did not call I talked with Mrs. 

Bonner again. She then informed me that Offie was not staying 

with her but that he was staying with his sister who lived on 

Sells Avenue in Southwest Atlanta. She stated that her sister 

does not have a telephone. 

7. I asked her to please tell Offie Evans to call me and I 

informed her that I would check back with her. I continued 

calling the Bonner residence over the next several days in an 

effort to reach Offie Evans while he was there. At no point was 

I able to reach him and he did not return my calls. 

8. During the next week I was able to locate the address of 

Mrs. Bonner's sister on Sells Avenue where Offie Evans was said 

to be living. 

9. I went to 897 Sells Avenue which is in a large section 

of public housing in southwest Atlanta and talked with another 

sister of Offie Evans, Ms. Cooper. She told me that Offie some- 

times stayed at her home and had been at the house earlier in the 

morning but was not there and not expected back until the eve- 

ning. I left my card and told her that I would return in the 

evening to speak with him. When I returned late that evening 

Offie was not there. 

 



  

10. Over the next few days I went to Sells Avenue to locate 

Offie Evans several times, often after 11:00 at night or before 

8:00 in the morning. He was never at home and sometimes had not 

been there for over a day or two. During Memorial Day weekend I 

left a letter with Offie's brother who was at the Sells Avenue 

address one evening asking him to give it to Offie if he came 

by. The letter infcrmed Offie that I would be by the next mor- 

ning at a time certain and I would like to speak briefly with 

him. The next morning Offie again was not there. 

11. Over the next week I returned to the 897 address seve- 

ral times to locate Offie Evans. I was told that he was no 

longer staying there and that no one knew where he was. He was 

said to "come by" every now and then but had not been there for a 

while. I also went to the Bonner residence in Northwest Atlanta 

on two ocassions and was unable to locate Evans. I also went to 

the home of a niece of Offie Evans who lives in Northwest Atlanta 

near Ms. Bonner. Evans could not be found at either place. 

(te Shr— 
Brak A. Stevenson 
  

Subscribed and sworn to before me 

this 27% day of July, 

   
  

Notary Bunk 

Notary Public, Georgla, State at Large 

My Commission Expires Sept. 14, 1987 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN McCLESKEY, 

Petitioner, 

vs. : CIVIL ACTION NO. 

RALPH KEMP, 
  

Respondent. : 

AFFIDAVIT OF T. DELANEY BELL 
  

STATE OF GEORGIA) 

COUNTY OF i 

Personally before the undersigned officer duly 

authorized by law to administer oaths appeared T. DELANEY 

BELL, who, after being duly sworn, deposes and states as 

follows: 

1. My name is T. DELANEY BELL. I am more than 

eighteen years of age, and am under no legal disability of 

any kind. This affidavit is given freely and voluntarily, 

without coercion of any kind. I understand it will be used 

in court proceedings on behalf of Warren McCleskey. 

2. I am self-employed in Atlanta, Georgia as a legal 

investigator. Most of my work is in the area of either 

corporate investigations, or criminal investigations. 

2. At the request of Robert Stroup, counsel for Warren 

McCleskey, I was employed in early June to try to locate 

Offie Gene Evans. 

 



  

3. From the Fulton County Probation Office, I learned 

that he had given his address as 987 Sells Ave, Apt. 62. I 

also learned, through my investigation, that a sister Lives 

at 1206 Wilkes Circle, N.W., Apt. 23, and a cousin lived at 

335 Ashby St., S.W., both in Atlanta. 

4, I visited these addresses in an extensive effort to 

contact Evans during the period from June 4 through June 8, 

1987. Family members advised me that he had spent one night 

at the Sells Avenue address in the two weeks prior to June 

4, and they expected that he would be showing up at some 

time in the near future. On June 5, 1987, I conducted an 

stakeout of these addresses until 2:30 A.M. Saturday morning 

and checked these residences again Saturday morning, 

Saturday afternoon, Saturday evening (for four hours) and 

again Sunday morning. I was without success in making 

contact with Offie Evans, either then or subsequently. 

5. Since early June, I have been in touch with the 

Fulton County Probation Office. They have advised me that 

he is on probation, but as of July 7, 1987 has not reported 

to his probation officer. He is nearly two months overdue 

in his reporting obligations. In conversations with Evans's 

probation officer in late July, I was advised that steps 

were being initiated to place Evans on fugitive status. 

7. On July 6, 1987, I contacted family members at the 

above-listed addresses, and was told that Evans had been 

 



  

there within the past month only once, for a brief period of 

time in the early hours of July 4. I was told that family 

members did not know where Evans was staying. 

lr Lr i 
rel mets | ub 

T. i 

C ot 

— 

This 7 day of July, 1987, 

  

Sworn to and subscribed before me, 

this “/¥~ day of July, 1987. 

TEs 2 pdt 
Notagy” Fy Public ~~ 
  

Kotary Public, Georgian State at arge 

My Commission Expires Sept 10 33% 

 



  

STATE OF GEORGIA 
COUNTY OF DOUGLAS 

AFFIDAVIT 
  

Personally appeared before the undersigned of- 

ficer, duly authorized by law to administer oaths, SUZANNE 

HASHIMI, who after being duly sworn deposes and states: 

(1) 

My name is SUZANNE HASHIMI, and I am an attorney 

at the Federal Defender Program, Inc., 101 Marietta Tower, 

Suite 3310, Atlanta, Georgia 30303. 

(2) 

On the afternoon of June 27, 1988, I accompanied 

BRIAN A. STEVENSON for the purpose of interviewing a witness 

regarding Warren McCluskey v. Ralph M. Kemp, Superintendent 
  

of Georgia Diagnostic and Classification Center, 1:87-CV- 
  

1517 JOF. 

(3) 

We spoke with RUTH COOPER, who is Offie Evans' 

sister, at 987 Sells Avenue, Apartment 62, Atlanta, Georgia. 

(4) 

We questioned Ms. Cooper as to who, if anyone, had 

spoken to her about finding Offie Evans during the summer of 

1987. Ms. Cooper indicated that the only individual she had 

 



  

exes 

  

spoken to regarding her brother, Mr. Evans, was DELANEY BELL 

who is a defense investigator. She was certain that she had 

not been asked by any individual connected with either law- 

ful or the prosecution regarding the whereabouts of her 

brother. 

I have read the foregoing, and it is true and cor- 

rect to the best of my knowledge/and belief. 

A /3uly, 1988. 

rade! 
SUZANNE HASHIMI 
AFFIANT 

    

   
Dated: This 2 

  

Sworn to and subscribed 
before me this.>/* day 
of July, 1988. 

  

: 3 

Sr ra vA Lo 7 7 oo Py Z Jf dh 7 / 

‘WOTARY PUBLIC a 
{ 

My Commission expires 

  
L237. 93



  AD72A © 

(Rev. 8/82)     

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION     
WARREN MC CLESKEY, 

Petitioner, 

CIVIL ACTION NO. 
1:87-Cv-1517-J0OF 

VS. 

RALPH M. KEMP, Superintendent, : 
Georgia Diagnostic and ~ \ 
Classification Center, : IH 1} 

nh AF > 7 4080 TH 
Respondent. : | wd 

He art) 

ORDER 0 10 0 0 0 a a 5 0 08 50 03 AE em 

This matter is before the court on respondent's motion 

to reopen judgment. Fed. R. Civ. P. 60(b). 

I. FACTS. 

This petition for writ of habeas corpus was filed 

July 7, 1987. With the petition was a motion for stay of 

execution. This court granted the stay of execution verbally 

July 9, 1987, and in a formal order July 10, 1987. A two-day 

hearing was held on the petition for writ of habeas corpus 

July 8 and 9, 1987. The court continued the evidentiary hearing 

until August 10, 1987. On December 23, 1987 the court granted 

in part and denied in part the petition for writ of habeas 

corpus, and judgment was entered the same day. Respondent 

appealed, and petitioner cross-appealed. The judgment was 

stayed by the court March 9, 1988. The pending motion for 

relief from final judgment based on newly discovered evidence 

was filed May 6, 1988. The court eftere an order allowing 

discovery until August 1, 1988 on the two issues of due 

  

 



  
AO72A © 

(Rev. 8/82)     

diligence and of the previously unavailable witness, Offie 

Evans' knowledge. 

Respondent seeks to reopen the December 1987 judgment 

based on the present availability of Offie Evans. Evans was a 

witness at petitioner's trial. The evidentiary hearings on the 

petition for writ of habeas corpus revealed that Evans had been 

moved purposely to a cell adjacent to McCleskey's in order to 

elicit information from him. The court found that this was a 

violation of the Massiah doctrine. See Order, December 23, 

1987. Evans did not testify at the evidentiary hearings on the 

habeas corpus petition. 

Petitioner attempted to locate Mr. Evans during the July 

hearings in order for him to testify. An attorney working with 

petitioner's counsel made repeated phone calls to Offie Evans’ 

sister looking for Mr. Evans. He was not able to reach Mr. 

Evans, but did get the address of another sister who he was 

supposedly staying with at the time. The attorney made repeated 

visits to the sister's house in order to try and find Mr. Evans. 

The attorney was told that Mr. Evans came by the residence every 

now and then but was not staying there. Stevenson Affidavit. 

Petitioner also hired an investigator, T. Delaney Bell, to help 

locate Mr. Evans. The investigator visited several addresses of 

both Mr. Evans and relatives, over a four-day period in June 

1987. The investigator contacted family members again on 

July 6, 1987 and was told that they did not know where he was 

staying. Bell Aff. During the July 8th hearing the court noted 

  

 



  AO 72A © 
(Rev. 8/82) 

that the federal marshal had tried to serve Mr. Evans at a 

sister's house but the sister did not know where he was. 

Respondent made no efforts to contact or locate Mr. Evans. 

The respondent sent two letters to petitioner in the 

period between the July and August hearings to notify 

petitioner's counsel of the witnesses he would call in the 

August hearing. Both of those letters referred to the 

respondent's intent to re-call witnesses who had previously 

testified in the July hearings, but neither mentioned any 

desire or intention to call Mr. Evans as a witness. In April 

1988, counsel for respondent learned that Mr. Evans was in the 

Fulton County Jail on other charges. Respondent now seeks to 

set aside the judgment in order to take the testimony of Offie 

Evans. 

II. CONCLUSIONS OF LAW. 

Petitioner has moved this court to expand the record to 

include: discovery conducted pursuant to the court's order of 

June 17, 1988; Affidavits of Stevenson, Bell and Hashimi; Docket 

Sheet, United States v. Offie Gene Evans, No. 28027; Sentence, 
  

Fulton Superior State Court v. Offie Evans, No. A-16523 (May 15,   

    
1973); and a newspaper clipping, Atlanta Constitution, 

  

December 24, 1987. Petitioner's two motions are unopposed, and 

for good cause shown petitioner's motion to expand the record, 

and second motion to expand the record are GRANTED. 

  

 



  AO 72A © 

(Rev. 8/82) 

Rule 60(b)1 defines the circumstances under which a 

party may obtain relief from a final judgment. It should be 

construed in order to do substantial justice, but this does not 

mean that final judgment should be 1lightly reopened. The 

desirability for order and predictability in the judicial 

process speaks for caution in the reopening of judgments. 

Griffin v. Swim-Tech Corp., 722 F.2d 677 (llth Cir, 1984), The   

provisions of this rule must be carefully interpreted to 

preserve the delicate balance between the sanctity of final 

judgments and the "incessant command of the court's conscience 

that justice be done in light of all the facts." 1d., citing 

Bankers Mortgage Company v. United States, 423 F.2d 73, 77 (5th 
  

Cir.), cert. denied, 399 U.S. 927 (1970) (emphasis in original). 
  

Rule 60(b) motions are directed to the sound discretion of the 

district court. Because a motion for new trial under Rule 60(b) 

is an extraordinary motion, the requirements of the rule must be 

strictly met. Seutieri v. Paige, 808 F.2d 785 (11th Cir. 1987).   

A. Rule 60(b)(2). 
  

  

    
1 Respondent's motion is based on Rule 60(b)(2) and (6). 

The rule says, 

On motion and upon such terms as are just, the 
court may relieve a party or a party's legal 
representative from a final judgment, order, or 
proceeding for the following reasons; ... (2) 
newly discovered evidence which by due 
diligence could not have been discovered in time 
to move for a new trial under Rule 59(b); ... 

(6) any other reason justifying relief from the 
operation of the judgment. 

4 

  

 



  AO 72A © 

(Rev. 8/82)     

In order to succeed under 60(b)(2), a party must 

satisfy a five-part test: 1) the evidence must be newly 

discovered since the trial; 2) due diligence on the part of the 

movant to discover the new evidence must be shown; 3) the 

evidence must not be merely cumulative or impeaching; 4) the 

evidence must be material; and 5) the evidence must be such that 

a new trial would probably produce a new result. Seutieri, 808 
  

F.2d at 793; see also, Taylor v. Texgas Corp., 831 F.2d 255 
  

{11th Cir. 1987). 

1. Newly Discovered. 

Offie Evans' identity has been known to the state since 

the initial trial. The respondent contends this is newly 

discovered evidence because Evans has not been able to testify 

about the question which became crucial in this petition for 

habeas corpus; that is, the relationship between himself and the 

police, and whether he was directed by the authorities to elicit 

incriminating statements from McCleskey. Evans has given 

evidence at least three times in this case, in the original 

trial, the state habeas proceeding, and in his statement given 

in August 1978. Moreover, petitioner points out that in October 

1981, Mr. Evans gave a deposition in the case of McCleskey's co- 

defendant, Bernard Depree. That deposition was filed in a 

federal habeas petition on behalf of Depree, in which the state 

was represented by respondent's present counsel. Petitioner 

contends that this deposition includes testimony about his 

contacts with the Atlanta Police while in the Fulton County Jail 

  

 



  AO 72A © 

(Rev. 8/82)     

in 1978, and denials that he made police contacts until after he 

had spoken with Mr. McCleskey. Petitioner points out that the 

testimony in that deposition is contradictory to the testimony 

given in the deposition taken pursuant to this motion, but that 

the essentials are the same. 

In light of the above discussion, it is apparent that 

Evans' testimony is not truly newly discovered but rather is 

merely newly produced. See, Johnson Waste Materials v. Marshal, 
  

611 F.2d 593 (5th Cir. 1980) (checks and records which had been 

misplaced at time of trial were not newly discovered evidence 

sufficient to support 60(b)(2) motion). The fact that the 

essential substance of this testimony was in a previous 

deposition filed in the public records and known to respondent's 

counsel also indicates it is not newly discovered. Seutieri,   

808 F.2d at 794 (evidence contained in public records at time of 

trial cannot be considered newly discovered evidence); Taylor, 

831 F.2d at 255 (evidence cannot be newly discovered if in 

possession of moving party or his attorney prior to entry of 

judgment). Where the movant was aware of a witness's identity 

and knowledge of the transaction, and chose not to track him 

down because of the expense, the evidence is not newly 

discovered because he was aware of the existence of the evidence 

before the trial. Parrilla-Lopez v. United States, 841 F.2d 16   

{1st Cir. 1988). Similarly, in this case, the government was 

aware of the witness's existence, identity and relationship to 

the transaction but did not attempt to have him testify at 

  

 



  AO72A © 

(Rev. 8/82)     

trial. It is evident that Offie Evans' testimony is not truly 

newly discovered under the relevant authority. 

2. Due Diligence. 

In the June 17, 1988 order, the court noted that 

Respondent's "due diligence is measured by what the respondent 

knew at the time. That would include what the respondent knew 

about petitioner's efforts to locate Offie Evans. That is not 

necessarily the sum total of his knowledge nor do the 

petitioner's efforts to locate Evans relieve him of any 

obligation to utilize resources available to him." 

Respondent contends that though he did not make any 

efforts to track down Offie Evans during the summer of 1987, it 

was apparent from the activities of the petitioner that such 

actions would be futile.? Petitioner points out that the 

Atlanta Bureau of Police Services has enjoyed a special 

relationship with Mr. Evans over the years, and that if the 

department had been looking for him, Mr. Evans might have made 

himself available or with those larger resources could have been 

found. Petitioner especially points to the testimony of 

Assistant District Attorney Russ Parker that he had no 

information or leads as to Evans' location, but that he "could 

probably find him. [I have] spent enough time with him." I Tr. 

174. 

  

2 1¢ appears that respondent's knowledge of petitioner's 
efforts to locate Evans came only from petitioner's counsel's 
statements at the evidentiary hearings. 

7 

  

 



  AO72A © 

(Rev. 8/82)     

Discovery pursuant to this motion reveals that 

respondent made no efforts to locate Evans during the summer of 

1087. 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, petitioner'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. 

3. Evidence is Not Cumulative or Impeaching; 

Materiality. 

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 is 

  

 



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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 

informant, because that kind of information could get a man 

killed. Evans Depo., p. 25. 

4. Likelihood of Producing a Different Result. 

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 

recriminations 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]lhe lack of corroboration by other 

  

 



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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 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 

fact that petitioner showed by a preponderance of the evidence 

that a Massiah violation occurred. 

Therefore, 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., U.S. , 56 
  

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

in exceptional circumstances. Id. The party seeking relief 

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

relief, an extreme and unexpected hardship will result. 

Griffin, 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 

  

 



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this motion is denied an extreme hardship will result to 

respondent. Therefore, respondent's motion under Rule 60(b)(6) 

is DENIED. 

III. CONCLUSION. 

In sum, petitioner's two motions to expand record are 

GRANTED. Respondent's motion for relief from final judgment is 

DENIED. 

fon 

SO ORDERED this day of Detttcary , 1989. 
{ 

ST re 
. OWEN FORRESTER 

UNIPED STATES DISTRICT JUDGE