McCleskey v. Zant – Transcript of Proceedings
Public Court Documents
January 30, 1981
175 pages
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Case Files, McCleskey Legal Records. McCleskey v. Zant – Transcript of Proceedings, 1981. 4d9ad570-5aa7-ef11-8a69-7c1e5266b018. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/d3673e07-4956-44b9-9ad7-3b6633ec13cf/mccleskey-v-zant-transcript-of-proceedings. Accessed May 18, 2025.
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lest 211-013): Legal: Buf? County Suerior Court, H.C. No. 4927 i Transcript of Proceeding an. 30, | 95
Files: Mcllestey (DO 21 | 5): LA 4a 3 utl3 . wnt Sp p F, H.C. No. 70°) ! 2S
WARREN McCLESKLY BUTTS SUPERIOR CQURT
Petitioner
x ny d
Re 2117
T PFN OITRT ) A TRY NATIMARITY
IN OF SIN COI R i J i R ° ALEX BL Jib X
TITTHYIT STIDTGTAOR CORPS JUDGE, SUPERIOR COURTS
i "MT TF TOT T/T TIN
FLINT J UI AU A LA RUU LY
Transcript of proceedings
held in Butts Superior Court
on January the 30th, 1981
before Judge LR. Alex Crumbley.
For the Petitioner: MR.. ROBERT H, STROUP
Attorney at Law
1515 Healey Building §
= TR y 4 Yn wy ) 17
7 [forsy h Street, N.W.
Atlanta,
For the Respondent: MR. NICHOI.AS 8. DUMICH
Assistant Attorney Ger
Atlanta, Georgla
E
E
—
—
m
-
19
rt
MN
(ORY
J
LA 23
3
1
9s
114 Evans ic Jorri
Y) Betty Jean Myers
154 147
— r
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A
———————_
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7
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INDEX TO EVIDENCE |
|
MARKED FOR ADMITTED |
EXHIBIT IDENTIFICATION IN EVIDENCE |
FOR THE PETITIONER |
i 15 19 |
2 16 19 |
3 16 19 |
l 157 162
5 158 162
6 158 162
7 158 162
38 158 162
J 159 166
10 160 167
11 160 167
12 161 167
13 161 167
| 1 161 167
15 161 168
16 161 168
FOR THE RESPONDENT
1 169 169
2 170 170
-3-
THEE COURT: We have set this morning the case
of Warren MCleskey versus Zant, Habeas Corpus action
number 4909.
First, I want to find out who all is here, and
see 1f there are any preliminary matters we need to
dispose of.
MB. STROUP: i Yes, Yourtilionor.. I'm Bob Stroup and
I am representing the Petitioner. There are a number
of preliminary questions that I {think do need to be
resolved. It may be beneficial for connkal to have
a brief conference with the Court off the record or in
chambers, 1'm not certain, that -may be of some benefit.
THE COURT: I don't believe I know you.
MR, DUMICH: No, sir. My name 1s Nick Dunmieh, I'm
with the Attorney General's Office, here on behalf of the
Respondent today.
I would agree with Mr. Stroup that there are a few
preliminary matters that could be taken care ofl in just
a short span of time and I think it might save a little
bit of Lime later on when we get int.o the hearing,
PI COURT: Well, I would be plad to hold it in
my chambers 1f you want tg but 1 can't imagine what could
PF 4
bata secret about this. Is there any reason? Can't you
say what you want to say?
MR. STROUP: No, no, Your Honor. I thought 1%
might be just as expeditious to do it that way.
THE COURT: ‘Just forget about who else ls here.
Just talk to me... What 18 it you want Lo say?
MR. STROUP: There 1s an :Inltlal question, Your
Honor, with respect to one of the witnesses who has
been supoenaed by Petitloner. The witness 1s Russell
Parker who is the Fulton County District Attorney.
And we tried to take--Mr. Parker has an arraignment
calendar this morning and we have--counsel has been
trying to work out Mr. Parker's problem in terms of being
in two place because he needs to be in two places at one
tine,
THE COURT: I thought somebody had suggested you
might take hls deposition.
MR. STROUP: There are two additional problems. One
is Ff Petitioner as is suggested in taking Mr. Parker's
deposition, one problem with, Your Honor, is the cost of
the deposition for the Petitioner.
The other problem 1s in terms of an immediate
problem today 1s that we also subpoenaed Just a part of
the 1nvestligative flle which Mr. Parker made avallable
to defense counsel. Petitioner wanted that file here
particularly for purposes of cross examination of defense
ld
counsel at the trial.
THE COURT: What would happen to the file defense
counsel had at that time?
ME. STROUP: : IL's the investigative lle, Your
Honor, that was in possession of the District Attorney
himself and was only made available to defense counsel.
THE COURT:r You didn't have a copy fo review, : You
were just allowed to look at 1t?
MR. STROUP : That 1s correct.
THE COURT: Why do you want to cross exanine him
about that?
MR. STROUP: Well, I just-—-
THE COURT: To see if there was something in there
that he night have utlllized better?
MR. STROUP: That is correct, Your Honor. It would
relate to the development of the defenses and the efforts
on defense counsel's behalf. It may be that--
THE COURT: Have you ever seen the file?
MR. STROUP: Yes, Your Honor, 1 saw the flle
Monday afternoon. The Fulton County District Attorney
made hot file available for me to inspect.
THI. COURT: Why do you need the fille here 1f you've
seen it and if there is something in there you want to
question him about--I'm sure you made some notes, why
can't you just ask him?
le
MR. STROUP: We,, I merely, Your Honor--1 would
like to make certain of those statements contalned in
the file a part of the record. I think that 1 have made
notes, Your Honor but it may very well be that an
effective cross examination would require those copies
of the statements themselves rather than my notes, with
respect to the statements. 2
Now, it may very well be as we get into cross
examination of defense counsel that that would not be--
THE COURT: Well, let's proceed and if you need any
part of the file to be made a part of the record, I'm sure
they'll be glad to lend a copy.
As far as Mr. Parker is concerned, what would you
need him for?
MR, STROUP: Vell, there are questions with respect
to the arrangement made with one of the witnesses who
testified at the trial. 1t was essentially a Glgllo
issue, which we would like to cross examine the District
Attorney on, the arrangement that he had with one of the
witnesses prior to the trial.
THE COURT: If you want to question him, you have
the right to do that and you may either do it by a
deposition or arrange for you to do 1t later if he cannot
be here this morning; just contact the Court.
He was given permission not to respond to the
subpoena this morning because of Judge McKenzlie's entire
court was going to have to shut down. And I didn't think
that would be necessary to do that in order for you to
present your case. We'll arrange Somes £0.80 it. If. it
has to be done by deposition, I'm sure the State will be
glad to pay for it. They have plenty of money.
MR. STROUP: Another preliminary matter, Your Honor,
is with respect to a witness that Plaintiff was unable
to arrange to attend, Kelly Fite, who is from the State
Crime Lab. Mr. Fite was in Waycross this week and was
unavailable. I have discussed this with Mr. Dumich and
subject to the same problem Petitioner has in terms of
deposition costs, we have agreed that Peftlftioner would
submit Mr. Fite's testimony by deposition.
THE COURT: What do you want to question Mr.
Fite about?
MR. STROUP: His--as relates to his testimony
with respect to the murder weapon, Your Honor. And
additional defenses that might have been developed had
defense counsel consulted with him, interviewed him
prior to trial.
THE COURT: What witnesses do you have here this
morning?
MR. STROUP: lI. .have, Your Honor, an Officer from
the--a Custodian of the Records from the City of Atlanta
who will be bringing records with respect to. .the
race of--the names and races of Atlanta Police Officers
who have been killed in the line of duty, non-accidentally
since 1960; the names and vldnd of alleged perpetrators
of those crimes; the disposition of those; any charges
that were brought “palates to those killings.
I have herc defense counsel who represented the
Defendant at the trial. One of the witnesses at the
trizl. 2 T expect also to call the Petitioner and
Petitioner's sister,
There are a couple of other preliminary matters,
also, that I would like--one is with respect to I think
a housekeeping detall, that is wlth respect to the
record of the Superior Court proceedings at that trial
and the pre-trial phase. JL have discussed--I would
like to have that record made avallable to the Court as
part of the ana. I've had Sinema any in that regard
with Mr. Dumich. He is willing to make available his
copy of the proceedings, the record and the transcript
of Superior Court below, 1f that is what Your Honor would
prefer.
THI COURT: Well, for the purposes of thls Court
having the materials it needs, that would he fine, You
may stipulate for the record in this proceeding if you
, that the transcript and record on file with the like
Supreme Court will be made a part of the record in this
case. That 1s what we normally do,
Is that what you have in mind?
MR. STROUP: I think so, Your Honor. Yes, slr,
THY COURT: wis that all right with you, Mr,
Dumich?
MR. -DUMICH:¢ Yes, sir. I would prefer to do 1t
that way. I think that would cut down on the voluminous
amount of material,
THE COURT: To the extent that the Court needs fo
look at that, Mr. Dumich will loan me hls Copy.
MR.+STROUP: Thank you, Your Honor.
1 have also filed with the Court a motion for
expenses for expert witnesses on claims--both on the
Eighth Amendment claim and the Witherspoon claim. I
do think that some disposition of those motlons-—-
THEY, COURT: All rignt. The Court wlll deny those
motions.
Is there anything else?
MR. STROU”: One other matter, Your illonor, and
that relates to the line-up issue in thls case and that
ig: 1 would asl the Court to hold tho. rocord open £0
rive me some additional opportunity to make contact with
two addltional witnesses. One==they are both witnesses
who toastified at trial and idont ified Petitioner at trial
after observing him in the Jury box the morning of the
trial, along with the other Co-Defendants and one other
person. I have been since this matter was set down for
trial malting effort to contact those two additional
witnesses, Paul Ross and Dorothy Umbarker and 1 have
simply not been able to reach them at this point in time.
THD COURT: Well, 1f you find additional witnesses,
you let the Court know and we will arrange to let you
take thelr testimony. I ean't give you any specifie
amount of time just to look for somebody. You may never
find them but if you do come up with any.other wlinesses
before the Court has ruled in the matter, just let nme
know.
MR. DUMICH: Your Honor, if l could, 1'4d like to
make a brief response to that last request.
THE COUNT: Al} right. «00 ahead,
MR. DUMICI: That the record be left open for
additional witnesses on the issuc of the alleged
prejudicial line-up was held prior to Mr. McCleskey's
trial. I think that issue has already been dealt with |
|
in the Georgia Supreme Court's opinion. They thoroughly
|
discussed It. And 1 think that would preclude this |
Court reLbting into that issue here in Habeas Corpus, I
think this Court would be bound by the Georgla Supreme
: Court's ruldng on that.alyeudy,
|
ils
THE COURT: Do you have anything else?
MR. 'STROUP:" I think that is all. I have, Your
Honor, in terms of preliminary matters.
THE COURT: So what you're proceeding on 1s the
allegation of Ineffective assistance of counsel. Is
that what--
MR. STROUP: Vell, Your Honor, there are a number
of elaims that really are not evidentiary claims. And
they are claims that we are--the evidentiary claims that
1 an going--the claims that I am presenting evidence
on are claims, the Eighth Amendment claims, that the
death penalty 1s imposed in an arbitrary and capricious
manner. And there will be evidence this morning
presented on that e¢lalim.
There is also evidence this morning presented on
the line-up issue which is both presented directly,
Your Honor, on the line-up issue as well as it relates
to the ineffective assistance of counsel,
And we are also presenting evidence this morning
on the ineffective assistance of counsel clain,
THE COURT: Do you have any other motions or
anything that need to be diaposed of?
MR. OTROUE: Th doni' i belleve 80, Your Honor,
THE COURT: Mr. Dumich, would you like to make ‘any
preliminary remarks before we proceed?
C
MR. DUMICH:
proceed.
THE COURT:
MR. STROUP:
at this tine”?
THE COURT:
MR. DUMICIH:
THE COURT:
own witnesses?
MR. STROUP:
THE COURT:
way or out in thi
Your Honor, Respondent 1s ready to
You may call your first: witness,
Your Honor, might I. invoke the rule
Do you have any witnesses here?
I have no witnesses here.
Well, do you want to sequester your
Yes, Your Honor, frankly, I would.
All the witnesses go elther out this
Ss hall here.
MR. STROUP: Lieutenant Neilkirk will be my first
witness.
THE COURT: Wheye 1s he?
Are you he?
MR. NEIKIRK: Yes, sir.
THI COURT: Al) right. Just come on up and take
the stand.
All right. You may swear the ‘witness,
MR. STROUP: Raise your right hand,
Whercupon,
was chilled
B. L. NEIKIRK
as a witness and after having first
Pg
been duly sworn was examined and testified as follows:
DIRECT EXAMINATION
BY MR. STROUP:
Q State. your name for the record, please.
A B. L. Neikirk, N-e-i-k-l1-r-Kk.
Q What is your current employment?
A I'm employed by the City of Atlanta Bureau of
Police Services, Detective Lieutenant, assigned to the Homicide
Unite.
Q@ How long have you been with the City of Atlanta
Bureau of Police Services?
A Nearly 20 years.
Q During that 20 years with the City of Atlanta, have
you--how long have you been in homiclde work?
A Approximately ten years.
Q Are you here today responding to a subpoena that
was served upon the Bureau asking that records be brought
reflecting certain information regarding the non-accidental
é
killings of Atlanta Police Officers In 1360 fo the present? I
A Yes, ‘sir.
Q DO you have those records with you?
A Yes, sir,
Q Might 1 seo those, pleane?
(Whereupon, the documents
were handed to Mr. Stroup.)
MR. STROUP: Could I have these documents labeled
for identification purposes Petitioner's Exhlbit 17?
(Whereupon, l'etitioner's
ixhibit number 1 was marked
for identification only.)
BY MR... STROUP:
Q Let me show you this document that's been labeled
for identification purposes Petitioner's Exhibit 1 and ask you
to describe what that document is.
A This is the information that has been compiled from
the official records.
Q This is a summary?
A A summary.
Q All right. What is the information--what are each
of the entries on Petitioner's Exhibit number 17
A We have the Officer's nance.
(3 All right. SWhen tho Officer's name is given, that
ja the Officer who was killed in the line of duty?
A You, sir,
Q All right. What other information?
N is race and ape, tho dato,
Q When-1t shows the date, 1s that the date of the
killing?
A Yes, 81r,
The perpetrator's name, his race and age, a brief
description of the crime and a disposition of fhe perpetrators
or alleged perpetrators.
Q All right. That is the disposition of any charges
that were brought against the alleged perpetrators?
A Yen, sir.
Q All 'vight, Was this compiled under your dlrection
or control?
A Yes, sir.
Q All right. And do you know was it based upor the
records that were maintained within the Atlanta Bureau of
Police Services?
A Yes, sir.
Q How many names are there?
A lcount 17.
Q Did you also bring with you certain documents
upon which this Petitioner's lxhibit number 1 was based?
A Yes, Bir.
MR. STROUP: Would you jfdontify this collectlve
exhibii of documents in this paper clip, as Petitioner's
Exhibit 27 And this other one an Petitioner's Exhibit 37
(Whereupon, Petitioner's
Exhibits numbers 2 and 3 were
marked for identification
only)
BY MR.: STROUP:
Q Let me show you a collective group of papers that
have been labeled Petitioner's Exhibit number 2 and ask you
if you recognize what those documents are. |
A Yes, sir, XI do ‘recognize then.
Q What are those?
A These are City of Atlanta Police Department's
Offense Reports.
Q And those Offense Reports are related to the
shootings of the Atlanta Police Officers since 19607
A Yes, sir. a
Q Then, let me show you a collective group of
documents that have been labeled Petitioner's Exhibit number 3
and ask you if you recognize those documents.
A 1.40.
. 2
Q What are those?
|
A They are Atlanta Police Department's Bureau |
Identification Records.
Q What do those records--do those records show |
disposition of certain charges brought apgalnst persons who were
-17-
accused of shooting Atlanta Police Officers in the line of
duty?
A Yes, sir.
Q All right. Doyu know whether the information
that has been compiled and is reflected in Petitioner's Exhibit
number 1 includes all of the Atlanta Police Officers who were
killed during the line of duty non-accidentally from 1960 to
the present?
A Po the best of my EnouTets . along with the names
that were submitted on the subpoena duces tecum, they should
have included those names.
Q Is it possible that there were a couple of more
that the City simply does not have any current records on?
A It may be possible but I'm assuming that that is a
fairly accurate record. I'm sure it is possible.
Q All right.
MR. STROUP: I would tender into evidence, Your
Honor--
MR. DUMICH: I'd like to examine those 1f 1 could,
please.
MR. SPROUP: I'm sorry.
(Whereupon, the exhibits were
handed to Mr. Dumich.)-
lO
® ®
THE COURT: Do you have any objections to these?
MR. DUMICH: Well, the only objection that I
have 1s to Petitioner's Exhibit number 1 and I don't
believe that that particular exhibit was prepared in the
ordinary course of business. I think the other documents
probably were.
PHI COURT: "What is number 17 The summary?
VR. DUMICH: - The summary and I think it was prepared
specially for this trial. And 801 would object to that
as not being a proper business record.
THE COURT: All right. The Court will admit all
three of them, number 1 over objection.
(Whereupon, Petitioner's
Exhibits numbers 1, 2 and 3
were admitted into evidence.)
THE COURT: Do you hare any other questions?
MR. STROUP: No, I have nothing further, Your Bonor.
THE COURT: Would you like to cross examine, Mr.
Dumich?
MR. DUMICH: 1 Just have a few questions, if I
could.
CROSS EXAMINATION
BY MR. DUMICH:
1G.
Q Sir, ‘who prepared those offense reports? 1.think
that is Fxhibit number 2.
1 believe it 1s==-
A I didn't understand your question, slr.
Q Who actually prepared these reports?
A To he presented here today or the gathering of the
reports—--
THI. COURT: No. As they were made.
BY MR. DUMICH:
Q As they were made, who produced them? {
A They would be, as they were made, would be made or |
prepared by an individual investigator at the time that they
were Piling an-official report or police officers at the time
of occurrence with the police department.
Q Okay.
A It probably would have their signatures and names
on. them,
Q And who prepared these documents here, Exhlbit
number 37
Bn That, to my knowledge--to the best of my knowledge,
was prepared by staff members of the identiTlcation sectlon of
thapolleco dopayrinent.,
—
) And where dld they rel thls InTormitlion in regards
“) todd osposiLion of “cases”
A To the best of my knowledge, that 1s taken from
official records . on final dispositions through the courts,
and transferred to the Atlanta Police Department Identification
Section.
Q Okay. Could if be possible that all of the records
that come from the courts don't get sent over to the Atlanta
Police Department?
A ¥ would assume that 1t could be possible,
Q Do these include any murders of Atlantam--not
murders but, excuse me, any homicides of Atlanta Police Officers--
of ‘Fulton County Police Officers?.
A No.
- Q This is strictly limited to Atlanta?
A The City of Atlanta.
"re
I might,» if permitted, clarify one thing. And I'm not
the keeper of the records. I've been designated by the Police
Chief George Rapper tg deliver these to thls court,
Q Mr. Napper 1s the keeper ol the records, actual
custodian?
A Well, Chlefl George Happer 1s the Chlef of Police
of Atlanta and the official custodian of the records, I'm not
quite certain who he 1s.
Q Do these rccords reflect anything about the
Defendant in the case?
As Tar as. past criminal record?
i
}
* e
A Possibly. I would have to examine them,
Q Do you see anything on there relating to the
Defendant himself and his past criminal record?
A His past criminal record should be~-
(Whereupon, there was a brief
delay whlle the wltness
perused the document, after
which the following transpired: } A
A Repeat the question, sir.
Q In regards to the Officers who were Kllled on
duty and in regard to the Defendants who are accused of killing
those Officers, is there anyihing in those records relating 10
the past records of those Defendants?
A Yes, sir,
Q What is that, sir?
A I observe this as being a past record,
Q Is that the only:ong In. there?
A These are the only two in relation to the
Defendant.
Q Who are those two Defendants? Why don't you just
nance those?
Sao: that | it 1g In the record.
JA Iixceuse nme. Tim Ju error. I'm looking at two
different people. And the answer to your question would be no.
®
Is tha
A
officers that
Q
you.
through there and
you'rll
been d
1-
Kay »
LT cor
7
Do those records go back to 19607?
rect?
been asked to produce records on all of the
were killed back to 1960.
Allright.
MR. DUMICH: ‘1 have no other guestions.
THE COURT: Anything else?
MR. STROUP: No, sir.
THE. COURT: =Al]l right. You may:.he excused. Thank
MB. REIRIRRK: Thank you, Your Honor.
THI COURT Call your next witness.
MR. 3
THE C
ask
MR, 5
Where
Yai oC
niy 's
BY MR.
PROUPR:. Shall 1 get them?
OURT: Well, 1 think the Lleutenant will walk
tell the next one to cpme Forward if
him.
PROUP: Mr. John Turner.
upon,
JOHN MILTON TURNER, JR.
alled a8 a wltness and after having first
worn was examined and tostificd an follows:
DIRECT EXAMIKNATION
oS PROUP
O
A
Attorney
Q
®
Would you stat
John Milton
1
Mr, Turner,
i'm currently
in Fulton County.
How long have
e your Tull name for. .the record,
turner, Jr.
where arc you currently employed? |
employed as Assistant District |
you held that position with the |
Attorney's Office?
A Since approximately the Bth of January, 1981.
Q What was your position or employment prior to
joining the District Attorney's staff?
A Prior to joining the District Attorney's staff, 1
was in private practice of law as a solo practitioner for flve
years.
Q All right. You began private practice
approximately-—-
A 1975,
Q Late 19757
A Yes, October, I buolleve.
Q And prior to roiling into private practice, what
lepral experience dia you have?
IA T had worhedias an Assistant U.S. Attorney ln the
Northern District of Georpia in Atlanta. And I did that for
npnroXimataedy throviyears, 1 bel love
Q September of Y723 ds that whon you Jjolned the U.S,
Attorney's staff?
A Yes, if lis.
Q All right. And left about October of 19757
A Yes.
Q And to go into private practice?
A Yes.
Q Now, when you were in private practice, was there a
period of time you were with a group of other lawyers?
A That's correct. When 1 Sl LA went into private
practice, 1 was assoclated wlth Murray Silva on an office sharing |
arrangement basis but there were several other attorneys in the
office, also.
Q All right. How many other attorneys were there?
Do you recall?
A Yes. There was Danny Zebbon, Linda Sheffield and
Jeff Sewell besides Murray Silva.
Q And yourself?
A Yes.
Q All right. Was that the arrangement that you had
at the time that you represented Warren McCleskey?
A Yes, 1% was.
Q That assoclation of lawyers, did you individually
or jolntly retian the services of an Investigator for use in
your criminal cases?
A No. It would all depend on the circumstances. In
most cases, © he clients weren't able to afford them and then,
too, ‘in most cases, they were probably routine criminal matters.
So on some occasions, an Investigator was used by Murray Sllva
but as a general rule, there was none employed by the group.
Q Do you recall when it was that you were--were
you retained to represent Warren McCleskey on murder charges
and armed robbery charges sometime in 1978°9
A
Q
Yes, LL was,
And those were charges arising out of an incident
at a Dixie Furniture Store in Atlanta, 1s that correct?
A
qQ
That 1s correct.
Do you recall when you-were retalned to represent
Warren McCleskey?
A
the month but it was a few days
prior to
Q
1978 and
3)
that you
how much
A
his
it w
lI believe if was in October--well, 1 can't tell you
after he ‘was arrested initially,
reliminary hearing in the matter.
Okay. The preliminary hearing was June 7th of
ould have been a few days prior to that?
No. lt would have been, 1 think, the latter part
It would have been at least, 1 would say, a week prior
were
you
Do you recall for the time period, from the time
retained throuph the time of trial, do you recall
were pald for your services?
I vajuely recall, I think 1t was something like
Dw
(7 (@®
$2500.00 but I'm not sure.
Q Is the $2500.00 figure in terms of acutal payment
or what the agreement was for pay?
A I honestly don't remember, no.
@, Okay. What pre-trial contact, Just talking about
pre-trial contact, now, did you have with your client?
A Are you talking about prior to the preliminary
hearing?
Q Well, including before the preliminary hearing.
Prior Lo the October 9th trial,
A I would say that it was fairly extensive. 1 can
706 bell you how many times. My guess would be well over a
dozen put I couldn't tell you precisely how many.
Q Okay. With respect to--how about prior to the
preliminary hearing, do you recall today meeting with your
client prior to the preliminary hearing?
A Yes, I would think probably about three times prior
£0 the preliminary hearing.
Q Okay. Do you recall where those meetings were?
A Yes, those meetings would have been in the Atlanta
Q All right. What happened at the preliminary
hearing?
A Well, at the preliminary hearing, several of the
witnesses who were Involved in the Dixie Furniture Store robbery
presented testimony concerning what transpired. i
7
Q Do you recall how many witnesses testified at that
hearing?
A Approximately four or five as best as my
recollection serves me.
Q All right, Just %0 refresh your recollection, let
me show you is this a copy of the--]1 mean, lis that a transcript
of the preliminary hearing in that case?
A “It is.
Q A] right. Why don't you Just look {0 the contents
pages, does that indicate the number of witnesses who testified?
A Yes, i does.
Q All right, and how many? |
A l. count seoven., |
Q All right, And of those seven, three were onmployees
of the Dixie Purnitiure Store?
A That's correct,
Q And three were investigating officers for the
City of Atlanta?
A I think 1 miscounted. IT think ic was six, 1
counted Sidney Dorsey's name twice. Two apparently were
investigators.
Q All: right. Ang one other person, S50 that there
were six witnesses, three employees of the Dixie Furniture
Store and two investipntive officers and one othal.
A Correct.
® NC
Q The ond other, was she a sister of one of the
Co-Defendants?
A I think she was, yes.
ao. Prior to--again, let me get that period prior to
the October, 1978 trial, what contact did you have with Warren
McCleskey's family now? Do you recall?
A Yes, I dealt primarily with hls sister, Betty
Myers. talked with her several times on the telephone and I
talked and met with her a couple of times.
Q Okay. She was in fact the family member who paid
you, is. that correct?
A Yes, she was.
Q Do you recall what pre-trial motions you filed?
A 1 riled, I believe, approximately eleven or twelve.
I don't remember the whole list now.
Q All right. Do you eczll when those were flled?
A No, I don't recall the date but it was fairly well
in advance of trial 1 think.
Q A11 right. Just to refresh your recollection, 1
refer you to a portion of the record on appeal in the contents
page which indicates a number of defense motions being Tileq.
A Okay. On September 6th, 1978, according to that.
Q All vight. Those were [lled on September 6th of
1678. Was not the case originally net for trial September 25th?
A Yea, I beliove it was but 1 had falrly extensive
hc +
pre-trial conversations with the Prosecutor and 1 believe that
either at or about the time I filed the motions, we had made
arrangements for me to review the file and we had discussed a
ood bit of it; so. I knew that the trial wasn't going to go off
on the 25th because the Prosecutor filed a motion asking for a
continuarice,
{
Q All right. Could I just look at the papers I Based
you to bring with you?
A sure.
(Whereupon, the documents were
handed to Mr, Stroup.)
Q In fact, one of those papers shows the District
Attorney moving for a continuance on the 7th of 175. 74s that
correct?
A That.is correct.
Q You mentioned--let me go back. Among the motions
that you filed was a motion to proceed In rorna pauperis,
Is that correct?
A It probably was.
Q And a motion for--at the sare time, a motion for
an appointment--a motion for expenses ‘or an expert and for a
criminal investigator.
Is that correc?
A Correct.
«30
‘® ®
Q Why did you file those motions?
A Well, 1 filed those tions because I thought that
every motion that was reasonable under the circumstances shoulc
be attempted and I flgured that if I' could get an investigator
that would help the situation--
Q All right. And that was the motion that was flled
on September the 6th, is that correct?
A Correct. |
Q Along with those other motions. |
What was the disposition of that motion?
A The Judge, Judge McKenzie, denied that request.
Q Subsequent to your filing that motion on September
6th, did the State file a supplemental list of witnesses that
might be called at trial?
A Yes, the State did. The witness list, however,
was for witnesses for all three of the Defendants.
Q All right,
A SO 1t wasn't just limited to Mr. McCleskey's
particular aspect of things.
Q DO you know how many witnesses were listed on that
may call list: by the Prosecution?
A Approximately 96, I belleve.
Q And that was in addition to the four or five
witnesses who were listed on the indlectment.
Is that correct?
-31=
A That is correct.
Well, I think that I might be wrong but I think maybe
some of those same witnesses were listed but I'm not sure.
Q Okay. You also filed.a motlon for a severance.
A That is right,
Q You filed this motion on September 6th.
Why did you file that motion?
A Because 1f the Defendants had been {ried together,
~
I think the defense would have been inconsistent, that is Mr.
McCleskey, I think, would have been contending that they were
involved in the robbery and not he, as well as the fact that
there was an indication they were going to ask for the death
penalty possibly. 50 those WO reasons motivated me to file
that motion.
Q All right. And that motion was also filed on
September 6th of 19787
A Phat 1s correct.
Q Do you recall now when it was that you learned that
your client would be tried scparately from the other Defendants?
A No, 1 don't. If would have been roughly in that
same time period.
Q Sometime after September 6th but vour recollection
would be sometime carly to mid September?
| Well, 1 would think it probably would have been
sometime after September 6th. I'nmaaot surc-but I Lhink wn
consideration in the matter was apprehending the individual who
was involved in this and had fled out of state and they hadn't
caught him at that point in time.
Q Then there was one Co-Defendant who had not yet
been captured?
A That's correct.
Q And that -Co-Defendant was Ben Wright, is that
correct?
A That's corract,
Q Do you recall when it was that the State served
the additional witness list that included the 96 additional
names?
A It was sometime in the latter part of September but
I don't recall the exact date.
Q fet me, again, just refer,you to this to refresh
your recollection. Let me show you from the record page 36 and
following.
A September 20th, 1978 according to the record.
Q All right. Andwas that malled to you so. that it
came in the mail to you sometime subsequent to September 20th?
A That is correet, from hc D.A.
Q Okay. Do you recall how many of those State
witnesses you Interviewed?
I Probably nobody on the list, I.don't think the
Co-Dofondants were listed as witnesses. Those were the only
people that I had talked to directly. The reason I did not
interview anyone was because I had already been privy to the
Prosecutor's file and I had read all of thelr statements that
had.
Q All right. Are vou absolutely certain that you had
already read the Prosecutor's file as of September 20th of 1978?
A No, I'manot, If 1 nad not read: it then, we had
already made arrangements for me £0 pick. lit up and it was more
Or less at my discretion, It was one of those situations where
TI think the first thing I 41d was {ogo over the list with Nr,
type © McCleskey to see 1T he knew any of the people and what
testimony or what he might expect from some of those people.
And then--well, basically, I just don't remember the time frame,
Your Honor,
Q Isn't it possible that you looked at the File for
thei first time ot Qatober 5th, 19782
A It's possible.
Q And the trial began for Mr. MceCleskey on what 4ay?
Do you recall?
A I don't recall. I know lt .wag in Ociober,
Q Did it. start on--do you recall, did 1t start on a
Monday?
A Itintarted on no Monday.
Q Ig:1t possible twin 14 was Monday, Cetobor’ 9th?
A That 1s ponsibla.
f
As. T'salid, the Prosecutor had more or. less left lt ND to
me as to when 1 came by to get the flle and we had had extensive
talks prior to that.
Q All right. The file that we're talking about is
the District Attorney's investigative file that includes
statements of a number of witnesses, isn't that correct?
A That's correct.
Q Did you prior to trial interview any of the
employees of Dixie Furniture Store who were there at the time of
the shooting?
A No, I didn't because lI had cross examined them at
the preliminary hearing, at least the ones who were majorly
involved; those who were elther robbed or participated in it
in terms of being able to make some form of identification.
Q All right. Do you recall how many Dixle Furniture
Store cmployees were in Tact at the store at the time of the
robbery?
Ji NG, I.don't. I recall that. I think approximately
the three or four witnesses testified at the preliminary hearing
and I think there might have been three other witnesses or three
other people who were at the store at the iLlne,
Q All right. S50 that we're clear on that, Mamie
Tomlin was a store employee and she testifled at the preliminary
hearings.
A I think 80, yes.
Q All right. And Danlel Oliver was a store employee
and he besiition at the preliminary hearing.
A I believe he did.
Q And Ronald Dukes was a store employee and he
testified at the preliminary hearing.
A Yes, he 414.
Q All right. Now, let me show you the witness
list again and ask if you can identify any other employees of
Dixie Furniture Store on that list who had not testified at
the preliminary hearing.
A Let's see, I think Mr. Malcolm, Marshall Malcoln.
Q How about Classie Barnwell?
A Classie Barnwell, perhaps. Her address is listed
as 948 Fisher Road. I assume that she was employed there.
Q And Mamie Tomlin and Dan Oliver are listed but
they testified at the preliminary hearing.
Ben Tyson, wasn't he an employee of Dixle Furniture Store?
A I'm not sure. He was there on the scene, 1 belleve.
I think he was helping them load some trucks. I don't know
whether he was just a casual laborer or an employee but he
was there at the time of the robbery.
Q George Alvin Malcolm, was he an employee?
A I don't remember.
Q Do you know whether he was there at the time of
the robbery and the shooting?
~36=
A 1 think he was but, again, I don't recall.
Q All right. James Grier, do you recall whether he
was there at the time of the shooting?
A No, sir, I don't recall,
Q And Henry Nellums, do you recall whether he was
there at the time of the shooting?
A No, I Just recall that he testified at trial but
what his: involvement: is, I don't recall.
Q Was it not true that a number of store employees
or persons who were at Dixie Furniture Store at the time of
the shooting, other than the three who had testified at the
preliminary hearing, 4ld testify at the trial?
A As my memory recalls, yes.
Q Now--
A Of course, I think their testimony was peripheral
to the main issue and our defense at that point in time was
that Mr. McCleskey wasn't at the store anyway. So that
affected part of my reasoning for why I didn't talk to then.
Q Okay. Did you interview any investigative
Officers prior to the time of the trial?
A Other than conversations probably at the
preliminary hearing, no.
Q All right.
A Again, before the trial, I had full access to their
investigative reports.
-37-
Q Okay. Your full access to the investigative
reports, were you given coples of the investigative reports
yourself?
A No. I was given the file with the stipulation
that I would not make any copies. What I did was make notes--
Q Your full access was the abllity to read the
file and take notes from it.
A Yes, sir.
Q All right. And: just s0 that we're clear salsoson
that aspect, do you recall how many times you did look at the
file prior to trial?
A lI. only looked at it once.
Q Okay. The--as to the investigative officers, 1
believe your earlier testimony was there were two investigative
officers who testified at the preliminary hearing.
A That 1s ny recollection based on the witnesses,
Q Mr. Dorsey and Mr. Giles, is that correct?
A Yes.
Q The actual witness list listed quite a number of
other investigative officers who might testify, 1s that not
correct?
A Yes, 1t 41d but from reviewing the witness list,
I could tell right off the bat that some of them had no direct
bearing on the case such as the P.B.I. Agents. All they could
testify to was thelr involvement with Ben Wright and his
~383-~
i
3
R
apprehension.
Q Okay. Do you recall how many people just for the
Bureau of Police Services, City of Atlanta, were listed as
may call witnesses by the State?
A No, 1 don't,
Q Let me, again, $0 refresh your recollection dlirect
your attention to the witness list at page 39. May 1 ask 1f
that refreshes your recollection?
A Well, those are the names that were on the witness
Q There were some 23 names, is that right?
A Approximately, yes.
Q AYliright.
PHIE COURZ2: Did 1 understand you to say the
supplemental list had 96 names on it?
THE WITNE33: That's. gorrect.
THE COURT: Who in the world were those people?
TH I
TL HITNES3: "Well, as. IL recall) the situation, the
supplemental witness 1l1lsf included the other two
Defendants! also. 30 in looking at it, 'I could telliin
some respects, you know, who was involved 1n my aspect
of the case and some of the witnesses I think might
have been involved in testifying against the other
:, WY aviv ode . ie Co-DCondants.,
|
(9
) ~
NO
) |
* RC
THE COURT: low many witnesses were called by the
State at that trial?
THE WITNESS: . 1 don't remember, Your Honor.
THE COURT: They didn't. call 96, did they?
THE WITNESS:. Ho, they didn't.
Q Let me just refer you back to the same list ol
23 investigative OTB nar listed for the City of Atlanta. Were
you able to tell which of those investigative officers related
solely to the Co-Defendants and had nothing to say with respect
to your client?
A Well, I knew which ones were the major actors
insofar as my client was concerned. For Instance, Lieutenant
y
Perry, he was the individual who had picked Mr. McCleskey up
and I had obtained that from Mr. McCleskey what was involved 1n
that and Sergeant lMéConnell, also. Detective Dorsey, 1 already
knew his involvement from the preliminary hearing.
The rest of then at the time, no.
Q All: right. And a number of the other officers oF
persons from the Bureau of Police Services dla tostify at trial,
did they not?
A Yes, they testified to things such as taking
statements from him or the rnanner In whieh it was done. For
instance, Marjean Turmey was listed nnd she was the typist.
if (Fe
Q All right. And you had not talked with her ahead
of time.
A No.
Q And Sergeant McConnell testified, did he not?
A I believe he did. If I recall Sergeant McConnell,
I think was with Lieutenant Perry when they picked Mr.
McCleskey up in Marietta.
Q All right. And McConnell had not testifled at
the preliminary hearing.
A NG, ‘sir.
Q And Lieutenant Perry himself testified at the
trial and had not testified at the preliminary hearing. |
A That's correct but I also knew what his testimony ey
going to be based on my discussiors with Mr. McCleskey.
Q And I think you mentioned Marjean Turner testified
from the Police Bureau. You already testified to that.
A Right. 1 think some of the witnesses were
generated by some of the motions I filed. For instance, I
filed the motion to Suppress the statement. So that kicked
into operation the people who were peripherally involved in
such things as typing the report and that type of thing. |
Q And Patricia Ann Olsen testified from the Bureau
of Police Services though she had not testified at the
preliminary hearing.
A I don't remember to be honest with you. 1 know she |
“it
‘®
didn't
testified at the t
Q Just
an index
A Okay,
Q
that correct?
A Yes,
Q
A That!
to. picking up Mr,
surrounding that,
All might.
he
testify at the preliminary hearing. Whether she
rial or not, I'can't say.
to refresh your recollection, let me show you
Of the trial transcript.
name is there. her
And HMalcoln Harris testified, isn't
id.
And he did not testify at the preliminary hearing.
s correct. As 1 recszll, hls testimony related
Ben Wright though and the circumstances
rather than anything happening with Mr.
McCleskey and his individual circumstances.
Q But he did ‘testify at your: client's trial?
A Yes.
Q He did. All right. Okay. Did you nave a number
Of conversations with the District Attorney prior to {rial with
respect to the State's theory about the case?
Is that correct?
A That ls corract.
Q Do you recall how many you discussed with--how many
times had you et with the Distrlet Attorney with respect to
your client's canoe prior to Ltrinl?
A Probably somewhere between three and six.
Q Okay. What do you recall of the elrcunmsiances
regarding each of those meetings with the District Attorney?
A Well, I don't recall the circumstances for each one
but each time was prompted by some different conslderation such
as there was a discussion about the possibility of a plea in the
case and that ran through the--up untll the Friday prior to the
case. That was the last time, at least 1 belleve, I discussed
with Mr. McCleskey the possibility. So that would have been
maybe the lssue of at least maybe two or three meetings. The
motions that I filed were basically done--1 felt that as a
result of my discussions with the Prosecutor, 1 had a pretty
good grasp of the facts but 1 filled the motions as a protegtion
for myself.
Q Okay. And during the course ol these meetings wlth
the Distriel Attorney, you.dliscovered what the State's theory
OP the case was, dld you not?
A Yes.
Q All right. Briefly, would you describe what the
State's theory was?
A Well, the State's theory simply stated was that
I belleve three or I believe four individuals attempted a robbery
of the Dixie Furniture dStore. Three went Into the back. One
went into. the Tront. Phe police officer was shot ashe walked
into the door after the silent alarm. And Mr. McCleskey was the
Lrirser man who perpetrated the shooting.
Q Okay. Is 14 falr to say that the State's thoery. was
-4 3
‘® -@
that McCleskey was the trigger man because the three other
persons were in the back of the store at the time the shots were
fired and there was only one person in the front of the store
at the time the shots were fired?
A That is correct. I believe Mr. McCleskey's
; !
statement indicated that he was in the front of the store.
I remember one aspect of something he said involved
hiding under a sofa that was in the front Of the store,
Q I'm Just trying £0 determine what you understood
prior to trial of the State's theory of the case.
A Okay.
Q Is it correct that part of the State's theory was
that the other three persons in the store were in the back of
the store at the time of the shooting and therefore, because
the Officer was in the front of the store at the time that he
was shot, he had to have been shot by one Co-Defendant was 1n
the front of the store?
A Yes, that was the State's theory.
«Q Okay. Also, part of the 3tate's theory that came
out at trial, was 1t not, was that the murder weapon was &
.38 Rossi?
A Yes, I belleve a silvaor weapon,
Q All right. Do vou recall when it was that you
learned that that was. the State's theory as to: the murder
weapon?
A No, =l don't recall that. No, Idon't.
Q Okay. Was Shi murder weapon introduced at the
trial?
A I don't recall.
Qe Okay.
A My best recollection on that lis that it wasn't. I
don't think the weapon was recovered but that is just simply my
recollection.
Q All right. Wasn't if the case that the State's
evidence with respect to the murder weapon was the opinion of
the. State Crime lab person, Kelly Plie, based on his inspection
Of the bullet remains that were recovered?
A That das well as the staterents from the Defendants.
I believe. that was--in each statement, there was something
indicating who had which weapon.
Q kay. Do you recall what Co-Defendants' statements
were introduced at trial?
A I don't think any Co-Defendants' statements were
introduced but again, I don't remember that precise point.
Q All vight.: Given the 3tate's theory of the case
that the other three Co-Defendants were in the back of the
stoveial Lhe tine of the shooting, 1f there was testimony from
cmployees 0» other persons who were In the back of the store at
the Lime off the vobhery to the effect that one.or more of .the
Co=-Defendants. had left the back ol the store at the time of the
shooting, you would agree, would you not, that that would have.
been useful for the development of a defense?
A yell, I would agree. I would also state that was
part of the theory of the defense in that that information was
developed during tlie cross examination of several of the
State's witnesses and one of the theories that the defense put
forth was the fact that Ben Wright had come from the back into
the front and was in fact the person who shot Officer Schlatt.
Q Did you interview any of the persons who were in
the back of the store at the time of the shooting?
A I thine that--no, I 4id not Interview them bug 1
think several of them were prcsent and testified at the
preliminary hearing.
Q A1L vight., "In facet, one of the people who was in
the hack of the store was Mr. Dan Oliver, isn't that correct?
A IT think so." I don't remembar precisely.
Q Okay.
A If Iipocall, there were only three people in Lhe
front of the store and two of them were females. So most of the
gentlemen involved would have been-in the rear.
Q All right. Do you recall what the testimony was
at trial as to how many persons were in the back of the store at
tho time of the robbery?
A No. * My recollection ia possibly three or four but
tin not sure,
-l6-
‘® ‘®
Q All right. Let me Just dlrect your attention 10
the trial transcript testimony of Mr. Oliver, at 264 and
following, for the purpose of refreshing your recollectlon.
If you look on to 265, does that indicate that he was one of fhe
persons who was brought into the back of the store and that then
Tyson James Greer and one other person was brought back in there
with him also?
A Yes, 10 does.
Q Were there statements in the District Attorney's
investigative file from Oliver, Tyson, Greer and lenry Nélloms,
the, other person who was in the back of the store”?
A 1 have not reviewed the file. My best
recollection is that all of them were but, again, 1'm not sure.
I think they were. As I recall, the police took statements from
everybody who was on the scene, So 1t should have been there.
Q All right. You did not call Tyson, Greer or RNellons
For the purposes of developing a defense that McCleskey was not
the only person in the front of the store contrary to the
State's theory, dld you?
A No 3 because ny theory was that Mr. lMeCleskey wasn't |
even there,
Q All right. yell, ll think yousindleated carliler
you did try Lo daovelop the defense at trlal that thore was more
than one person in the front of Lhe store.
) A Oh, that's truc.,
Q For those purposes, did you--you didn't call
Greer, Tyson and Nelloms to the stand? |
A After I read their statement, as best as I can
recall, they were blindfolded and laying down in the back and
they had no information and no ldea who was doing what All
they could do was make observations based on sounds.
Q All right, ‘Directing your gttention to the
circumstances of Mr. Cleskey's arrest—-
THE COURT: Mr. Stroup, how long are you going
to. be with him?
I'm not trying to huryvy you but we need to take
a break at some point.
MR. STROUP: TI ‘have no ldea, Your Honor.
THE COURT: Why don't we just go ahead and do that.
We'll take about a ten minutes recess.
(Whereupon, there was a recess,
after which the following
transpired: )
THE GOURT: Come back up, Mr. Turner.
You may proceed.
BY MR. STROUP:
Q Mr. Turner, do you recall what law enforcement
authority originally arrested Mr. McCleskey in late May of
—t 8
%
19782
A Yes. I believe it was the Cobb County Police
Department, cither that or Powder Springs. I'm not sure,
Q He
was interrogated by Powder Springs or Cobb County law
enforcement officials with respect to another robbery.
Is: that correct?
A Thats correct.
Q All right. And then, Atlanta--in fact, Atlanta
Police accompanied the Cobb County Police at The time that that
warrant for the Cobb County incident was executed.
Is that correct?
A That's correct.
Q Andithen, the Atlanta officlals shortly after
McCleskey was brought in to custody of Cobb County law
enforcement personnel, interviewed McCleskey up in Marietta.
Isn't that correct?
A That's correct,
Q Alls right. Was there an arrest warrant for his
being picked up by the Powder Springs or Cobb County Police?
A T would imagine so. 21 don't recall seeing ii.
had a copy. of the search warrant thoy executed but as 1 sald,
I" Just dont recall now whether of not 1 saw.n copy of the
2 All right. Yon had a copy of the return?
ay { 1 4 0
e was originally arrested up in Marietta and he
I
‘® e
A Yes, sly,
Q All right. Is that all that you had that fanmlly
members were able to give to you with respect to the 1
»ircumstances surrounding his arrest?
A That's correct,
Q All right. Just to make sure that welre clear.
‘oul had a copy of the return but not the actual arrest warrant?
A Phat!s correct.
Q All right. And--
THE. COURT: The return on what? What are you
talking about?
MR. STROUP: It was theTreturn actually on the
‘search warrant.
BY MR, STROUP:
Q Isn't that the return we're talking about?
A Yes, it ls.
THE COURT: 7. didn't know there was any such
thing as a return on an arrest warrant.
¥R. STROUP: Your Honor, 1'm-sorry.
BY MR. SYPROUP;
Q And there was actually a search warrant, also?
A That's correct.
Q All right. Which you did not have a copy--you did
WA
not receive a copy of.
A I don't remember whether 1 received a copy. 3
think 1 reviewed that in the file at a subsequent time but I'm
not sure.
Q All right.
A But I did receive a copy of the executed return on
the search warrant.
Q All right,
THE COURT: "Was there a Fourth Amendment issue
in. the cage, Mr. Turner?
THE WITNESS: No, sir.
THE COURT: Or was there a search that: affected
your client's rights in the case?
THY WITNESS: Not insofar as the Atlanta situation
was concerned. The search warrant that was executed
was for a robbery in Marietta. And all that was found
was some money if 1 recall the situation. 1 wasn't
involved in that angle or aspect of the case.
THE COURT: Woll, wan. anything taken in that
search introduced 1inio evidence in Mr. McCleskey's trial?
THE WITHERS: No.» Ro, 10 wasn't.
BY MR. STROUP:
Q Well, you have acknowledged there was testimony
introduced at the {rial wlth respect to what was taken during
‘® ®
the course of this search.
Wasn't there?
A Okay. Yes.
Q All right. And there was testimony introduced, was
there not, that there was $600.00 in cash seized from Mr.
McCleskey's girl friend's purse at the time of the search of
the house?
A That's correct.
Q And that $260.00 in cash Fis taken from the top
drawer of the bureau where Mr. McCleskey was asleep at the
time of his. arrest?
A Yes,
Q All right. And there was also testimony that
$665.00 in cash was taken from underneath the pillow where
Mr. McCleskey was sleeping. Is that not correct, at the time of his arrest?
A 1 belleve there was.
Q All right. So the testimony wlth respect to what |
was taken was introduced at his trial.
A In connection with attempting to show a prior
similiar act, yes, slr.
Q All right. You had not filed. any motions at all
with respect to that search warrant. Is that not correct?
A No, sir. |
Q Allright. $And in fact, if you had even seen the
search warrant before--did you know whether there was an
affidavit submitted to accompany the search warrant?
A As I understand 1, there was.
Q When did vou learn that? :
A ~ The search warrant itself reveals, l believe, that
there was an accompanying affidavit with it.
Q All: right,
A As I stated, the situation was one vherepy that
evidence got in as.a prior similiar act which 1 did object to.
I felt that the circumstances surrounding hls original arrest
in Marietta had nothing to do with the Atlanta case,
Q A1Y right. When 414d you first see a copy of the
affidavit that accompanlied the search warrant?
A I don't recall,
Q ALl right. Did any family member bring you a copy
of that affidavit”?
A T-don't think that they did.
Q All "right. And you don't have--i%'s not in any of
the papers that you brourht today or the notes that you still
have related to your represcntation of Mr. McCleskey.
Isn't that correct”?
Q All rirht. If you saw a copy of ‘tha affidavit,
fantt 34 true that you saw ag cony in the D.A.'s Investipative
file just a few days prior to trial?
A That probably would be true.
Q All right. Do you know at all whether there was any
basis to challenge the search warrant itself in an effort to
keep out the testimony regarding the cash that was taken at the
time of the execution of the warrant?
A I knew of no basis. My understanding for 1t was
that they had received information from a confidential informant.
At least [rom what I could see on the face of it, 1t didn't
raise any legal issues.
Q All right. That was based on your review of the
affidavit a few days prior.to trial.
A That dis correct.
Q What about the timing of the actual robbery in
Powder Springs? Do you recall when that alleged robbery occurred?
A No, I:sdon't, "1 think it was a couple of months
prior to the Time that theyreXecuted the search warrant.
Q Really close to two and a half months prlor to the
actual executlon of the search warrant.
A Well, that sounds: right, yes.
Q All right. Now, you indicated that you--I think
vou indicated that you met with your client on the weekend prior
to the October 9th trial.
[3
Isn't that truce”?
x A You,
@ ®
Q All right. What were you able to advise him at
that time that the State had against him if he were to go to
trial”?
A As best as 1 can recall, we just had a general
conversation. 1 think we had discussed the matter all along
so in my opinion, he was as well advised or versed on the
facts of the case as 1 was. My advice to him throughout the
whole episode was to attempt to enter a plea.
Q Right. During any GoRTerRn Long that you had
with Warren McCleskey prior to trial, whether it was the last
conversation prior to trial or some of the others, what
specific evidence did you tell him the State had that you
anticipated that they would introduce into evidence against him?
A 1 don't recall any specifics, As I sald, we
had discussed the matter several times. In fact, we probably
did not talk that much about evidence at that particular meeting.
My last meeting with him, 1 think, was more In the nature of
attempting to see 1f he had changed his mind about entering
a plea and discussing that, more so than the evidence.
Q All right. What about any prior meetings?
A Well, as 1 sald, we had discussed 1ft all along but
l can't tell you any specifics. 1 just can't remember.
Q All right.
THE COURT: Were you ever able to wrok out any kind
of plea for him with the Distyvict Attorney?
THE WITNESS: Well, Judge, the Prosecutor was
indicating that we might be able to work out a life
sentence if he were willing to enter a plea. But we
never reached any concrete stage on that because Mr.
McCleskey's attitude was that he didn't want to enter
8 plea. 80 1t nover got any further than Just.talking
aboul it.
The last discussion I had with the Prosecutor on
3t was to try and get back with him on that Priday prior
to the commencerient of the trial on Monday to let him
know if it looked like we had something that we could
work out. And on that Friday, li called him back and
told him that we had not' been able to work out anything
and everything vas going ahead as scheduled,
THE COURT: * So you tried the case not £0 Lry.£0O
avoid the death penalty but on the theory that he was not
gullty of having committed the offense at all.
THE WITNESS: Yes, Sir,
BY MR. STROUP:
Q What evidence were vou able to ndvise your client
2
that the State had that Lne murder weapon wiz a .38 Rossi prior I i
to trial?
A Well, the only thing - that Tiocan recall about thal 2
and I can't give you any specifics is that the gun was never
found and our discussions along that line basically--everything
he said to me was of the situation that "I wasn't there anyhow"
So any conversation wc had about the gun would have been probably
in connection with the statement he had given the police and
the statements that his Co-Defendants had given the police. He
was aware of what the nature and content of that was but
specifically, I can't tell you anymore.
Q All right. 'Did you adiride hin at all with respect
to the Crime Lab findings regarding the murder and what the
murder weapon was?
A I honestly don't remember,
Q “Did you advise him at all with respect to the
statements of any potential witnesses regarding the theft of a
A That was something we had discussed. Again, 1
can't give you any specifics. As best as 1 con recall, in one
of the robberies that they introduced as a prior similiar act,
one of the robbery victims stated that a particular handgun was
stolen and I believe iL was a theory of the State that the gun
that was stolen in that robhery was the one that was used in
the Dixic Furniture tore situntion. 30 us hest as I can recall,
we discussed that but, again, I cun't tell you what the detalls
wWeY'e,
Q All vipht. What you're saying is that you recall
testimony coming out at that trial regarding the «38 Rossi.
A That's right.
Q Do you have any specific recollection of advising
McCleskey prior to trial that such evidence might be put in?
A No, I don't have that specific recollection.
Q All right.
A What I did advise Mr. Mclleskey of was the fact that
I thought they had almost an air tight case against him. And 1
used every amount of persuasion in my power to try to get him to
enter a plea but he insisted he wasn't there and he wasn't
guilty.
Q All right. Turning your attention to the trial
itself, did anything happen during the course of the trial that
took you. by surprise?
A Yes. JI can't remember the lady's name now but she
was one of the people who testified initlally at the preliminary
hearing. And standing next to Mr. McCleskey, she 8ald he vas
not the man who came into Shi store on that particular day. That
same lady, I think her name was Classie Barnwell but I'm not
SUre=-
Q Mamie Thomas?
A Okay. Mamie Thomas.
Mamie Thomas testified at trial that she had lled during
hor testimony ai the preliminary hearing and that Mr. MeCleskoey
was In fact the man who came into the store and she wap afraid
Tm
L
testify to that point.
THE COURT: : She
THE WITNESS: «Yes, 8]
Q And you--I think it's
to her at alliprior to trial.
A NO, Bir.
Q But did anything else
talked to her A Well, I
C1’OosSS
THLE COURT:
hearing, Mr. Turner?
Did she say that Mr.
sald that during
examined her at the preliminary
McCleskey was
the trial?
clear that you had not talked
hanpen—-—
of —~
within the context
hearing.
What did she say at the preliminary
not the person
who fired the shot?
TIE WITNESS: Yes, she did.
She sald that he was not the man who came Into the
store that particular day and she couldn't identify him
as being any wav involved in the sltuation.
THE, COURT: = She was the witness you thought would
be very favorable to him hou,
HE WITHESS: Yas, «ln aed, 1 would say. that that
Was one of the main
based on knowledge 1\V my
banking on because
Up until that point
in time, nobody had conclusively identified Mr.
McCleskey as being involved in the robbery. She was the
only eye witness identification person that they had and
} she had said that this wasn't the man.
BY MR, STROUP:
Q And in fact, wasn't that what your advice $0
McCleskey had been with respect to the facts--as to the facts
that the State had against him, at least with respect to
identification. None of the employees out at the store were
able to identify hin.
A We discussed that. Mr. McCleskey was standing
right there and heard the whole thing himself. Again, my
advice to him was to enter a plea. He had given a statement
saying he was involved and I told him that 1 didn't sce any way
possible that a Jury was going to disregard that entirely... So,
again, based on my assumption of the evidence, at every stage,
T told him to enter a plea,
Q All right. So at least with respect to the
identification by store employees or persons there at the
store at the time ofl the shooting, your advice to him to Mr.
McCleskey was, look, no onc can ldenilfy you. This was your
advice prior to trial, isn't that true?
A I woulan't say it was advice in that veln. We
discussed it within the context of--1ike I sald, he was standing
nly Qe
right there and heard the whole thing himself. As a matter of
fact, that was something that he kept saying to me. At a
subsequent point in time after the case had concluded, 1 sald to
Mr. McCleskey, I said, "I bet you wish you had taken my advice
now." And he sald, "Well, based on what I thought the evidence
was in terms of no identification, 1 thought 1 had a good
chance" or words to that effect.
We discussed it, like I said and 1 probably did say
something in that vein to him but dn it was within the
context of he repeatedly mentioned that as why he should not
enter a plea more so than me telling him that that was a piece
of evidence that was strongly in his favor.
Q While we're still on identification, were you
able prior to trial to advise him with respect to identification,
prior identifications, made of him by either a witness 1n the
Powder Springs robbery or the Red Star Grocery Store robbery,
both of which came into--identifications that came into
trial,
A Yes, we discussed that, also, within the context,
as best as. 1 recall 1t now, no one had concretely, I belleve,
identified Mr. lMcCleskey from any of the picutre show-ups that
they had given those people. At least I know insofar as one or
two were concerned that was particularly true. I don't
remember 1f it was all of them. I think 1t was, though.
Q Your recollection 1s that no one had 1ldentified
“OY w=
L -®
McCleskey out of any photo layout and that you relayed that
information to Mr. McCleskey?
A I believe so.
Q 211 right. Now, still going back to surprises. at
the trizl, did anything, other than the Mamle Tomlin change lin
testimony, did anything else happen at the trial that took you
by surprise?
A Yes. The morning, the Monday morning, that the
trial started, Mr. McCleskey and the two other Co-Defendants lin
the case and a third individual were seated in the Jury box. And
unknowing to me, the Prosecutor conducted what I considered to
be a line-up in terms of he brought the people in who were
involved in the various robberies and I don't know what manner
he did this in. But in any event, they viewed Mr, McCleskey In
the jury box with the other people and made identifications of
them based on that.
T don't think the Tull gravity of that situation hit ne
until after the trial, in terms of reviewing the transeript. 1
was aware--well, I didn't know that it had happened with several
witnesses until after the facet. One of the witnesses made a
comment during the trial, I believe, about viewlng him in the
witness box but it was more after the fact that that situation
really jumped out at me.
Q Lot me--when you say witness box, don't you mean
jury box?
A Jury box, yes.
Q All rights And in fact, wasn't it true that up in
jury box as the evidence developed at the trial that McCleskey
and the three other Co-Defendants, all three of the other
Co-Defendants, were there along with one other person sitting up
in the jury box surrounded by Marshalls?
A Yes,
Q All right.
A Well, 1 don't think all three of them--1 don't think
Ben Wright was there. He might have been. I just don't recall.
HG) Okay. An added development, in fact there were
three—--
MR. DUMICH: Your Honor, 1 hate to object but 1
wish that counsel for Petitioner would restrain himself
from leading the witness with some of these questions he
has.
THE. COURT: "All right.
BY MR. STROUP:
Q Do you recall who the first witness was who
testified during the trial regarding an identification she had
made of McCleskey while he was sitting in the Jury box that
Monday morning?
A No,. I don't recall,
| c wo
|
THY, COURT: Counselor, let me ask you a question.
The Supreme Court of Georgia has been into all of this.
What is the purpose ofl going into if here? Are you
trying to show as counsel he was Ineffective for not
doing something at that point?
MR. STROUP: Yes, Your Honor,
PEE COURT: Al) right. 1 think. that would be
something that you could go into.
MR. STROUP: I would ALEo submit, Your Honor, that
to the extent that we can develop additional evidence
with the respect to the line-up issue itself, and that
issue should be considered directly but it also vivo |
it. is presented primarily with respect to what was done |
during the course of the trial as 1t developed as it
relates to the ineffective assistance claim.
PHY, COUR: All right. Well, you may proceed put
tell me what it is you're trying to show. 1 might
understand better if I understand where you're going.
MR. STROUP: 1 think that counsel should have moved
for a continuance in order to deal with this line-up
issue as 1t developed in order to gather sufficient
witnesses and to develop the facts surrounding the
line-up that happened--
THE COURT: Do you mean prior to the beginning of
the trial?
we OU ue
MR. STROUP: That Monday morning. Right. The
line-up, quote, unquote, in the jury box that occurred
Monday morning just before the trial started, three
witnesses testified during the course of the trial that
they identified the Petitioner for the very first time
while sitting in the Jury box and there is other evidence
in the record itself with respect to the suggestive
nature of it.
THE COURT: How could he ae moved for a
continuance in the middle of a trial?
MR. STROUP: Well, then, to move alternatively for
a mistrial, that there were other efforts that needed to |
be made to Afequately develop the record to show to |
the Jury through expert testimony if necessary the very
suggestive--what is the result of the suggestive process
such as was experienced in this case, It's Petitioner's
position that not enough was done and given the surprise--|
THE COURT: Are you saying that wiltnesses testified
that they had seen him the first time in the jury box?
MR. STROUP: « Oh, no, Your Honor. 1 did not say
that. |
Counsel's testimony 1s that his advice to McCleskey
prior to trial was that no one had previously ildentifled
him. In fact, if we are able to complete the record as
we would like to complete the record, we would show that |
the record would show otherwise. And that in fact,
in each of the three situations where people came and
testified based on the jury box identification, each of
those three had ‘previously geen plctures of the Petitioner
and that it is that whole process that needs to be
developed to the Jury and that the suggestive influences
that arise by prior viewing of the Petitioner in two
cases without any identification at 211. stems from prior
viewing.
And in one situation, a very tentative identificatio:
that becomes much more definite after viewing him in the
jury boX.
THE COURT: Mr. Turner mentioned something a moment
\
ago that Mr. McCleskey had given the police a statement
to .the effect that he was there.
Is that true?
MR. STROUP: That 1s correct, Your Honor.
THE COURT: What difference does all this
identification business which later came 1f he had
admitted that he was there?
MR. STROUP: Well, what 1t goes to--there was a
coerced confession claim, Your llonor. And what 1t also
goes to is simply the effect on the Jury of all this
evidence that 1s not explained away, that should have
! been dealt with properly.
ES OF
THE COURT: How would you explain away his own
statement that he was there?
MR. STROUP: The theory of the whole case was not
that he was--the theory of the State seeking the death
penalty was not simply that he was there but that also
that he was the trigger man. The statement that he had
previously made .to the police did not indicate that he
was the {rigger mari.
THE COURT: Did these witnesses that you're talking
about who saw him in the Jury box nak morning testify
that he was the trigger man?
MR. STROUP: No. No witness--only a Co-Defendant
testified that he was the trigger man.
THE COURT: Well, If the only issue were whether
or not he was the trigger man and that these people,
these witnesses, who saw him in the jury box that
morning did not testify that he was the trigger man,
how was he prejudiccd by what happened?
MR. STROUP: Well, he was--all right. One of them
testified that he was the person that she saw come 1nto
the front; door, that being offered by the State as part
of thelr proof that he was the one in the front who did
the shooting. Another testified’ that he was a person--he
was the person who had taken a Rossi 38 from him in a
robbery some weeks previously. And the third one--the
third identification was offered for the same purpose.
So that all three of them while not identifying him as
the trigger man that morning, were offered as part of
the State's theory that he was the trigger man and that
the Jury should infer that he was on the basis Of the
evidence that they presented.
THE COURT: Well, what is the difference in what
you're saying and what the Supreme Court has already
dealt with on direct appeal?
MR. STROUP: Well, I think there was additional
evidence that was available that would have showed the
suggestive nature of the process. Nowhere in the
record that the Supreme Court viewed was there evidence
with respect to one--I want to get my facts straight,
Your Honor. With respect to one of the witnesses, the
record befor- the Supreme Court was silent with respect
to prior viewing and failure to identify the Petitioner.
With respect to the other, if 1s sllent wlth respect
to the difficulties with which that witness identified
the Petitloner.
And therefore, I think that just on the direct
question of the line-up itself what I was trying to
develop here, Your Honor, in addition to the ineffective |
assistance clalm 1s the fact that there was--there were
prior dealings in non-identification which would have
«65
created suggestion or could have created suggestion 1n
these witnesses" minds that it was the Petitloner who
they had seen earliler.
THY. COURT: And you feel that Mr. Turner should
hsve pursued that?
MR. STROUP: Yes, sir.
THE COURT: Why don't you asi him about that?
MR. STROUP: All right.
THE-COURZ: Mr. Turner, why 4&idn't you question
the people about having been unable to identify Mr.
McCleskeyv before?
Tn WITNESS: Well, Your Honor--
THE COURT: Well, 1'm assuming you dldn'z,
Did yOu Or not?
THEE WITNESS: Ro, 181d. .1 think that the record
will be rather clear on that point because 28 it started
to develop, 1 got in the questions with them. For
instance, one guy had ldentifled Mr. McCleskey as being
a light complexioned Negro... And part of my cross
examination dealt with the fact that he was the only
light complexlioned Negro in the jury box. It's been
a while since I have looked at--well, I haven't looked
at the transcript since 1 did the appeal butl am pretty
sure that my cross examination on those people got into
the identification 1ssue.
THE COURT: Do you remember the names of those
witnesses?
THE WITNESS: No, lL. don't.
THE COURT: Do you know, Mr. Stroup?
MR. STROUP: Yes, Your Honor.
THE COURT: (Give me those names.
MR. STROUP: Classie Barnwell, C-l-a-s-s-1-e€
Barnwell; Paul Ross and Dorothy Umbarger, U-m-b-a-r-g-e-r.
THE COURT: Did you consider moving for a mistrial
when you found out what had happened?
THE WITNESS: I didn't find out. It didn't dawn on
me what had happened I think until after the trial.
No, I dion't move for a mistrial during the trial
because it took--well, I'm trying to remember what my
motivation was. No one ever testified that there was a
line-up or anything to that effect. One wltness said
something about a--well, I think the Prosecutor slipped
up and asked one witness AL the identification and
used the word "line-up". It was that which I seized on
later in terms of doing the appeal and went back and
was able to pull it all together then. But insofar as
the basis of thelr identification, if my memory 1s
correct, I tried to go into that as thoroughly as possible.
In fact, if you will look at the transcript, you will see
that the cross examination of each and every witness
7 Ose
was quite extensive and thorough.
BY MR. STROUP:
Q You were talking about the Prosecutor making some
reference to a line-up Monday morning. Let me direct your
attention to page 736 of the transcript where the Prosecutor is
examining Mr. Ross and I ask you just to read from about a third
of the way down the page, the Prosecutor's question and his
response.
"Have you ever been to a line-up where the people--".
A Okay. "Question: Have you ever been to a line-up
where the people actuzlly stood on a stage?" "Answer: No, sir."
"Question: Have you ever been to a preliminary hearing
and had a bunch of people up there and asked if you could
identify anyone?" "Answer: No- sir."
"Question: So have you ever seen before this week
any live bodies that anybody asked you if you could identify?"
"Answer: No, sir."
"Question: All right, sir. Bow, when 41d you make
the identification, sir, in the living body this week?" "Yes,
sir. Answer."
"Question: And what day was that?" "Answer: Monday." |
"Question: Monday?" "Answer: Yes, slr." |
|
"Question: And where was that, sir?" "Answer: That was |
here in the courtroom."
Ay
Q All righr. Is that the Prosecutor's reference
to--that you were talking about earlier?
A No. If my memory serves me correct, there was 8
comment that he made wath the word, "line-up" but I think that
was in connection with the females. If you've got a copy of the
brief I 41d on appeal, that point 19 outlined in there,
Q All right. Werc you able to develop after Trlal
how the Defendant and the Co-Defendants and one other person
were or cane to be in the jury box that morning?
A No. There was no development of that particular
issue. [That particular Monday was the start of trial term and
one of the Defendants was there because--well, all of them were
7
there because thelr case was on the trial calendar to follow
mine.
Q Did you talk with any other people who were in the
courtroom Monday morning at the time of the line-up in an effort
+a or at the time of the ldentification process ln order fo
develop further what had happened that morning?
A The Prosecutor. Again, that was after the fact.
Q All rirnt. After. the trial, you talked to the
Prosecutor about that?
A Yes.
Q All rirht. Do you recall what he told you?
A As best as 1 can remember, it was Just something Lo
the el'foet that I believe he tried to make 1t sound like the
Why ft
witnesses just came into court and saw. And he sald, "Look
around the courtroom and tell me if there is anyone you can
identify."
Q All right. There: was evidence that came out at
trial that there were a number of people just sitting around lin
the courtroom that morning at the time that this identification
process occurred,
wasn't there?
A Yes, The court. calendar started af about 9:30 80
anywhere from say about nine to 9:30, you had people drifting in
and out.
Q All. right. And weYe you, yourself, there? 5
A I was In and oul, also. When this occurred, I .had
no knowledge of what was going on at the time. I never saw that
particular process.
Q The testimony of the witnesses developed at trial
also showed there were Marshalls sitting in the Jury box with
them. Didn't the testimony not show that?
A I don't--
THE COURT: That thore was what?
MR. STROUP: That there were Sherifl Deputies.
THI? COURT: Oh, Ithought you sald Marshalls. ‘You
sald Marshalls.
MR. STROUP: Oh, ‘right.
Hoy
THE WITHESS: 1 don't recall that any of them were
Sitting in the jury box per se but they were in close
proximity to it.
+. BY ‘MR. STROUP:
Q 311 right. But you 418 not interview any of those
gentlemen in an effort to reconstruct what had happened that
Monday morning?
A No. Again, it was after the trial and into the
appeal when I realized that has was possibly an issue.
Q Okay. Do yO u-—-—
A At the sare time, 1f I might point out, 1 remember
in terms of cross exanining some of the witnesses that they did--
they were specific about the fact that Mr. McCleskey was the
only light complexioned person sitting in the jury box. So 1
tried to get into that issue during the cross examination itself. |
QQ © All right.
hy THE COURT: Were they asked by the Prosecutor |
if they could make an in court identification at the
time of trial independent of any prlor contact with Mr.
McCleskey?
THE WITNESS: 1 believe so but my mind 1s hazy
on that point.
BY IMR. STROUP:
7
Q Did--
A One ‘of the things that he asked, if 1 remember
correctly was are you positive or 1s there any doubt in your
mind and I think he would use 100 percent as a standard in terms
of making identification to. some of the witnesses and everybody
was rather--well, not rather, they were firm that that was the
man at that particular stage of the situation.
Q With respect to your cross examination of Paul
Ross, do you recall today one way or another whether you were
able to examine him regarding whether or not he had actually
been shown a picture of your client prior to the Monday morning
jdentification in the Jury box?
A No, I ponts remember Mr. Ross! testimony.
Q And SLi Linyly with respect to Dorothy Umbarger, do
you recall her testifying,any statement from her In the [lle to
the effect that while she was there she identified your client
froma photo layout, a sort of 60 percent identification or that
there were six chances out of ten that it was him that, who had
done the robbery?
A Again, I don't remember,
Q Rll »iegnt. Hoh ahons with respect, to the
testimony of O-fie Evans, was that testimony also a surprise to
you at the time of the trial?
A Well, yes and no. And the reason 1 qualify that
$ is because one of Lhe first things I said to Nr, MeCleskey when
x
\
1 interviewed him at the Atlanta Jall prior to the preliminary
hearing was not to make any statements to anybody about the
incident. In fact, I went so far as 10 say to glve him the
analory that a fish can't get caught unless 1t Opens its moutt
to bite the hook. I had talked with him constantly aboul that
in terms of have you said anything to anybody. The bottom line
was when I got the witness list, I noticed at some stage that
a Deputy's name was on there. The only thing that I could
conclude was that something had been said or possibly had been
sgid., And I asked Mr. McCleskey if he had discussed the facts
with anyone there as the jail and his Co-Defendants and he said,
1" No—= n
In addition, 1 filed a motion asking for all oral and
written statements within the possession and control of the
Prosecutor. So I did not have any forewarning that Mr. Evans
was going to testify to some statement that he allegedly
overheard based on those circumstances.
Q- All right. Just SO the record is clear, what--
briefly what did Mr. Evans testify to at the trial?
THE COURT: Mr. Stroup, the record will indicate
what he said. That 1s far more reliable than what he
can remember.
MR, STROUP: All right. Your Honor, I hasleally
was--rather than for the record which 1s in.the record,
-] Ge
I will give you a brief introduction about it.
THE COURT: Well, 1 think that the question should
be why did they not give you a copy of the statement he
made if vou made a motion for it.
THE WITNESS: Well, I can't answer that question
even up to this point in time. That was one of the
issues that I raised on appeal, the fact that 1 was never
given any indication that such a statement existed.
THE COURT: Do you mean Vier x to the
Prosecutor six times snd you two never discussed that
at all”
THE WITNESS: We went over the motions, all of
the motions and the only thing that he said to me about
his file was that there were two things that weren't
included in the file, One was the Grand Jury testimony
of a witness-and his logic there was that that was not
discoverable. And the .other was just a statement he had
and that he didn't disclose what it was or who the person
was in that context.
They clearly understood and they knew that the
motion had been filed. So my thinking on the matter
was that 1 had everythlng, particularly relating to the
statements of the Defendant.
THE COURT: Well, what was the law in Georgla at
that time concerning the right of the Defendant to see that
We §
information?
THE WITNESS: To what information? A copy of his
statement?
THE COURT: A copy of his own statement.
1 belleve now he has a right to it, doesn’t he?
THE WITNESS: Yes. As I understand what the law
was then, I think 1{ wds the same thing. But, again,
I'm working on memory Tron something that happened two
years ago. But 1 don't think that is a recent
development.
I filed a brief, I believe, with my motions at
—
the time, citing the authority that 1 was relying on.
THE COURT: Yes, here it is. Ii's division four
of The opinion.
Well, the Supreme Court just discusses 1t in the
context of whether it was required to be disclosed under
Brady. I believe the new discovery statute that has
been enacted since--well, what year was this?
1978 was when the case was tried, 1s that right?
TH Yo
rk
L*WITNESS: Yes,
PHI. COURT: ' All right, . That has been thoroughly
covered here and I don't quite understand thelr
conclusion but--Mr., Dumich, what 1s the law on that now?
Doesn't the Defendant have a »ipht to a copy of
all statements he's made?
-T7. 5m
MR. DUMICH: Your Honor, that statute was just
amended, ves, sir, just last term and didn't go into
effect,iIidon's believe, untill 19--
THE COURT: So that statute was not in effect when
this. case was tried.
MR. DUMICH: It was the State's position on appeal
that Brady versus Maryland was the controlling law at
the {ime and 1% i? was not an: exculpatory statement, that
it was not incumbent upon the State to release that
statement.
THI COURT: Go ahgad,
BY MR. 3TROUP:
Q You indicated you took some took some notice of
the names of the Fulton County Sheriff's Deputies who were on
the witness list?
A As I recall, I think thereswas only one name on
there. And when I saw that, my impression was that the only
thing he could testify to was something that he had observed
or heard at the jall.,
Q All right. And he was not one of the--you did not
eontact him prior to trial elfther,.sdid you?
A No, I didn't. . And my yeason Por that, again, was
the facet that Mr. MeCleskey wan quite adamant in the fact that
he hadn't sald anything ineriminating or even mentioned the case . f
or discussed it with anyone.
And then, too, I didn't think that the Deputy was going
to give me any exculpating information at the same time.
Q What--with respect to the sentencing phase, what
preparations did you make prior to trial with respect to the
sentencing phase?
A Otay. Prior to Ltrizl, I had gone over Mr,
McCleskey's background with him in terms Of what schools he
went to and who he knew and that type of thing. And I had
asked him if he had any witnesses "or knew of anyone who would
be able to testify as to his character at the sentencing phase
if it should come down to that.
In addition, I believe -I had discussed the matter with
his sister. I'm trying to remember his sister's name, now.
THE COURT: You sald it earlier.
THE WITRESS: Yes,
BY MB. STROUP:
Q Betty Myers.
A Betty Myers. In fact, I believe 1 asked Hrs.
Myers if she would testify on hls behalf at the sentencing
phase but she declined to do so. In fact, 1 asked about his
mother in terms of bringing her fo testify and I was told that
she had some type of illness that would pose a problem there,
both from Mr. McCleskey as well as hls sister.
-30-
Q Let me deal directly with your conversatlon with
his sister. Are you absolutely certain that you asked her, were
there any people who could come into court and testify about
Warren McCleskey's character?
A Yes, because the way I was referred to her in the
First place was through her church and I asked her 1f there were
any members of her church or something to that effect, who knew
Mr. McCleksey and would be able to come forward.
A) And what did she say?
A As best as I can recall, she said that Mr.
McCleskey did not.attend that church or had not. If he was a
member, he had not been:in. any type of reguiar attendance.
Q What other questions did you ask her, specifically
about people who might be available?
A woWwell, no more than just that, Is there anybody
available?
Like I said, I'm pretty sure I asked her because as things
cane down to the wire, she was the only person who was really
giving him any support. And she would have been the most logical
person to serve in that capacity.
Q Did you ask her if she would do:l1lt herself?
A Yes, that's what I'm saying,
Q What did she tell you about testifying herself?
A As T recall, she didn't want to do if because she
hn 321d she was nervous or something to that effect.
Q Are you sure that your question 10 her about
testilfying--your question to her about testifying at the
sentencing phase with respect to Warren McCleskey's character
or rather a question to her about testifying as to his
whereabouts on May 13th?
A We had discussed both.
Q You are absolutely certain today beyond any
doubt that you had a conversation with her about her doing both.
A Yes. In the first place, this wasn't the first
death penalty case I had handled. And 1n the sentencing phase--
this was the second one which 1 have ALWAYS made 1t a practice
to bring some relative or if 1 can get my hands on somebody to
come in and say something good about the Defendant, I want to do
that, And dn this case, 1 couldn't get anyone to 40 ist.
Q All right.
THE COURT: low many murder cases have you tried?
THE WITRESS: .Probably I have been involved in =
Just a rough estimate, 30. Most of my practice was
criminal, about 80 percent of it. And that would be
over roughly a rive year period. Well, thls happened
in 78. ‘30 you're asking me a total, probably about 30,
probably in thereighborheod of 20 about that time.
BY MR, STROU.:
Q Also, with respect to Warren lHeCleskey himself, are
you
where
he
High
absolutely certaln you asked him about character witnesses?
A x08. decause we even discussed his high school and
He went to school and what he did. The basle Facts that
gave me. was that he graduated I belleve In 1965 from Lemon
Sehool~--Lemon Street High School and that he worked wiih
believe, from that"period. up untill 1870. And then, Lockheed, 1
he was in. jall
Q
McCleskey occur
A No
TH
tO reces
this witness, 80 he won't
better for hin.
MR. STROUP: = Could
THE All ri
for the most
red. about the availibllity
sy 2 Aontt. That--no, 1.407
Z-COUMRT: My, Stroup, it's
s for lunch, you think or 1
COURT:
of the remaining time.
Do you recall when thls conversation
have
of
':.
3:30. D0O
or
i we ican
to come back,
with
character
Finish
it
Wal Svs
wavyren
witnesses?
you want
with
would be
T have just a few more minutes?
ght, Well, do as you please. I
am not trying 6 hurry you but there is no need to have
Mr. Turner stay. aftor 1:
MR.
expected
THE
cross cxaminait.lon will be very brie
BY “MR... DPR
8, What conveoranition did jeu have
STROUP: I am
examination,
COURT: All right.
neh ‘47% it
close very
A
J
3
well,
8n'i
LO
1m SEY O
.
the finish
the
necessary.
of my
htate's
3
Warren McCleskey regarding the possibility of his testifying
himself at the sentencing phase?
A 1 don't recall of any conversation along that linc
Q What conversation did you have with Warren
McCleskey at the trial itself regarding his testifying at the
sentencing phase? 5
A Again, I don't remember if we had conversation about
that or not.
Q Did you advise--do you have any recollection today
of
phase worked?
A Yes, 1 can't tell you the time frame bul 3
explained to him what {the mechanics of the situation was in
terms of the trial aspect as well as the sentencing aspect.
Q Do you recall what you told him?
A T can't tell you verbatim but I'm sure that 1 gave
—
J
e
—
sy
lan explanation of what happens at each stage. Well, as
far as. the trial was concerned, he well knew that. As far as
the sentencing aspect, that's why I 2sked him about character
witnesses or anyone who could come forth and {ceoitify about good
character or anything that would be ameliorating or otherwise
mitigating under the ¢clrcumstanceas.
MR. STROUI: hai va all 1 have, Your: Honm,
Dl
* advising Warren McCleksey about how a death penalty sentencing
CROSS EXAMINATION
BY MR. DUMICH:
Q I just have a Tew questions, Mr. Turner.
I believe you testified that you attended the preliminary
hearing of Mr. McCleskey in this case.
Is that correct?
4: That's correct.
Q At that preliminary hearing, did you have an
opportunity to cross examine witnesses for .the State”?
A Yes, that was one of the longest preliminary
hearings that I have been involved in as a matter of fact.
Q What was the result of your plea negotiations
with the District Attorney?
I didn't pet all that.
A Well, it never ripened into a full blown plea
negotiation. He just indicated to me that if my client was
willing to enter a plea that there might be some consideration
of a life sentence. And that basically, was what I had explained
to Mr. McCleskey and was attempting to get him to accept. The
bottom line on that wns that Mr. McCleskey indicated he wasn't
interented in even any further dliccussion of that, So things
pad discovered in Lhe Prosecutor's Piloey
A Yes, we discussed that. In fact, when I got the
witness list, 1 remember that specifically, the witness list as
well as the records of the people who were going to testify. 1
sat down and went over the names with him to ask him if he could
identify any of the people, particularly with criminal records
like Offie Evans. That was the one that 1 can recall
specifically asking him about.
Q Did he say anything at all about Offie Evans?
A No, he didn't know who Offie Evans was.
Q Did you consider at all challenging the validity
of Mr. McCleskey's arrest?
A No. And the reason for that was because as I
understood it, they had an arrest warrant for him. And as 1
said, ithe Atlanta Police Department, I think, got thelr own
arrest warrant In connection wlth the Schlatt case. The matter
in Powder Springs was just peripheral to what 1 was engaged in.
Q Let me ask you, 60 you recall considering whether or
not to challenge the Grand Jury in Mr. McCleskey's case?
A It crossed my mind but based on my understanding of
what the law was and my knowledge of Fulton County's Grand Jury
system, I thought that that would have been unproductive.
THE COURT: Is there any allegation to that in the
petition?
MR. DUMICI: I belleve there was in some of the
-0-
early alle:irations relating to the jury--I'm not sure if
it was the Grand and Traverse Jury--1 mean, I think there
was something in there about the jury.
"BY MR. DUMICH:
Q Did you consider challenging the Traverse Jury at
all?
A NO.
Q Why was that?
A Well, in the--well, again, Fulton County has one
Just ol the more YiheraT ary policies ind on that basis, 1
didn't think that there would be anything fruitful or anything
that could be gained by that. It's been dealt with before as
I understand it in other cases To a negatlve conclusion,
Q Do you recallithe racial composition’ of: Petitioner's
trial jury?
A No,» I:don't. #1 believe. there were some black
people--well, I know there was some black people on the panel.
T:think what happened 1s that the Prosecutor struck most ofl tham.
1:think onc or two black pcople pol on the trial jury itsell but
I'm not sure.
MR.=ESHHOUP: SYouralonor, J :donttathinkthat.-there is |
a rand dury. lagsue, Rhee iury ddssaco:lethink are
\itherspoon danucs,
MR. DUNMICIH: I.-tLhouht, there was, 1 thought, there
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someone had told you or someone had said his name was Ben?
A TI don't remember that.
Q All right. And let me justi show you for purposes
of refreshing your recollection.
A 1tomight-help,
\ § Fn A. ~~. + ~ + ~ srs Q 'Question: Do you know his name?’
NAnswer: Yes, slr.
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somebody said his name was Ben."
Does that refresh your recollection?
A (Shakes head negatively.)
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A I broke probation on that.
Q Okay. Did Mr. Parker ever come up to you and ask
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Did he ever try to make that kind of deal with you?
A No. The reason I got a light sentence on that
Clarence Brantley, was because Clarence Brantley told--he didn't
want me, he wanted the man who really robbed him. He told ne
that if I would give him that fellow!s name and help catch
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give me the five years anyway. That was between me and the
man that got robbed.
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A Yeah. He was the one 1 made a deal with.
Q Okay .
THE COURT: He said he made the deal with the
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Isn‘t:that right, Mr. Evans?
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said he would be back the next week to talk with me.
Q And did he come back out the next week to see you a
second time?
A Yes, ‘he 4.4.
Q Allright. Was thal prior to the preliminary
hearing?
A Right.
) All right. How long 41d he stay The second rine?
A The second time he come, he stayed approximately
45 minutes.
Q How mnay times did you see him--when was the next
timeyou saw him? Was that at the preliminary hearing?
A Right.
Q All right. ‘After the preliminary hearing, how many
Times 41d you 38ee him prior to trial?
A Three.
co
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Q All right. Can you describe briefly the
circumstances and the timing of each of those meetings?
oo A sure.” Okay. The First time alter the preliminary
hearing was I believe it was around July 21st or somewhere along
US Rama : ' i ny 2 mht 4 3 =A YY E 4- Cs a ES TE there. It was after--right after arraignment. We had
5 wa rey eS i . 3 ‘- i analy wk $4. rey Cy A be REL 4 - AT IN 7S vy grrajgnment, I.think 1t was July 21st, J beljeve or 20th is when
we pot arraigned. And he come and see me shortly alter that.
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Q All rirht. Do you recall roughly how long he spent
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went .to trial”
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visit, the evidence. And on the first visit, it was my
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is
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IN 7 B XT roa that they only have ihe conlession.
Q All right. Did he bring anything else to your
t- - 2 wr v 3 - ~ 4 ~ > J - C4 Aa
attention with respect to evidence that he expected the State
| : Fos Aer re ord ; IT RI eYit ok Sa1.9 } would put in evidence agalnst you 1 you went to trial:
: A No.
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1 ~7 IN ~ oo 7 M oy ~ 1 Q Was there any discussion about--
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but I belicve he's leading the witness.
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MR. STROUP: Let me make sure-—--
THE COURT: In any of these cases from now on,
v vr wry yey de : a ~ vio 2 £2 mi SP, -- I'm not going to. give any extensions of any kind. il
- rvs d- de} my 4 4 I JET 4 ~ \ VIXT r 57 rs ves Ys igh SOIR regret that but this 1s &a ver; very serious problen. 5 “ C
It has nothing to do with Mr. Mc(leskey'd case. But
these cases go on for years and years and years. And
the longer they go on, the less heart anybody has to
pursue it, and one place it's not going to get stuck
is there,
MR. STROUP: With respect to that time schedule,
though, I've been operating under the assumption that 1
would have the opportunity to take Mr. Fite's testimony
icion on
by desposition and Mr. Parker's testimony by depo
THE COURT: Allright. .You may do that.
MR. STROUP: And I'm operating within that same
time frame in terms of those depositions?
your evidence or your briefs beyond ten days. After th
ten days and as soon as Miss Alexander gets this record
ready which probably will take more than ten days, to Db
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honest with you, I will get to the case as quickly as >
can but I have found that a 15 day extension develops i
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a 30 or 0 Wilh teiephone calls. I'm not belni critical
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