Application for 90-Day Stay of Execution

    BEFORE THE 

BOARD OF PARDONS AND PAROLES 

STATE OF GEORGIA 

  

  

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

  

  

  

PAUL CADENHEAD, ESQ. 
HURT, RICHARDSON, GARNER, 
TODD & CADENHEAD 
Suite 1400 
Peachtree Place Tower 

999 Peachtree St. N.E. 
Atlanta, Georgia 30309 
(404) 870-6060 

BOB REINHARDT, ESQ. 
REINHARDT, WHITLEY & WILMOT 
1001 North Central Street 
Tifton, Georgia 31794 
(912) 382-6135 

WILLIAM C. RANDALL, ESQ. 

P. 0. Box 121 

Macon, Georgia 31202 
(912) 743-6389 

COUNSEL FOR WARREN MCCLESKEY 

 



    

BEFORE THE 

BOARD OF PARDONS AND PAROLES 

STATE OF GEORGIA 

  

  

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

  

  

  

PAUL CADENHEAD, ESQ. 
HURT, RICHARDSON, GARNER, 

TODD & CADENHEAD 

Suite 1400 
Peachtree Place Tower 
999 Peachtree St. N.E. 
Atlanta, Georgia 30309 
(404) 870-6060 

BOB REINHARDT, ESQ. 

REINHARDT, WHITLEY & WILMOT 
1001 North Central Street 
Tifton, Georgia 31794 
(912) 382-6135 

WILLTAM C. RANDALL, ESQ. 

P. 0. Box 121 

Macon, Georgia 31202 
(912) 743-6389 
COUNSEL FOR WARREN MCCLESKEY 

 



  

   
BEFORE THE 

BOARD OF PARDONS AND PAROLES 

STATE OF GEORGIA 

Application of WARREN MCCLESKEY 
For a 90-Day Stay of Execution NO. 

  

X 
X 

X 

X 
And for Commutation of His X 
Sentence of Death X 

X 

X 

X 

INTRODUCTION 

Warren McCleskey, by his undersigned counsel, applies 

to the Board of Pardons and Paroles, pursuant to Article IV, 

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

of 1983, 0.C.G.A. 49-9-20, 42-9-42(a) and Chapters 

475.2.01 (1) and 475.3.10 (2) (6) of the Rules of this 

Board: (1) for consideration of his application for 

commutation of his sentence of death, imposed by the 

Superior Court of Fulton County on October 12, 1978; (ii) 

for a 90-day stay of execution, presently scheduled for a 

seven-day period beginning September 24, 1991, to permit 

consideration of his application; (iii) for a full and fair 

hearing before the full Board, allowing him to present 

witnesses and to be heard through his counsel; and after 

that review, (iv) for the commutation of his sentence of 

death. 

 



rs 
¥tance 

lospitals, 
10nate load in 

tients. 

should not be used as a 
tc widespread, mandatory 

FS. Congressional advocates of 
B already are trying to do that. 

ao basis for their argument. The rou- 

PPLit of patient testi nm 
it provides to health-care 

N . They will know more about what is 

the Past treatment for the patient and will be 
more aware of the precautions they must take 

to protect themselves from infection while 
caring for the patient. 

The CDC has called for voluntary testing 
of people already subject to other medical 

screening in hospitals. The recommendation 
is entirely appropriate. The inappropriate 
consequences forecast by critics will happen 
only if we let them. 

wicCleskey case needs careful scrutiny 
Today, the state Board of Pardons and 

Paroles will hear the final appeal of Warren 
McCleskey, a man sentenced to death for 
shooting an Atlanta policeman during an 
armed robbery 13 years ago. Unless the 

board grants him a stay or commutes his sen- 
tence, McCleskey will be executed Tuesday 
or shortly thereafter. There is reason to be- 
lieve this would be a':miscarriage of justice. 

McCleskey was 
convicted solely on the 
strength of testimony 
from a man to whom 
he allegedly confessed 
in prison. Other than 
that, the case was 
pure ly circumstantial. 
No weapon was ever 
found, and there was 

testimony suggesting 
McCleskey did not 
himself pull the trig- 
ger. Michael J. Bowers 

During the trial it appeared that McCles- 
key’s fellow prisoner had simply come for- 
ward as a disinterested witness. In fact, he 

was working off his own time as a police in- 
formant. It was in his interest to obtain a con- 

fession. When this came to light, McCleskey’s 
lawyers immediately incorporated it into 
their appeal. 

The federal judge who twice reviewed 
the case found that McCleskey’s conviction 

had indeed been tainted. The state of Geor- 
gia, unwilling to accept his verdict, appealed. 

Incredibly, the Court of Appeals reinstat- 
ed McCleskey’s sentence on the grounds that 
failure to reveal the witness’s status was a 

“harmless error’ that had no effect on the 

jury. Now two jurors have come forward with 

affidavits swearing that had they known the 

truth, they would never have voted for the 

death penalty. 

Incredibly again, the U.S. Supreme Court 
upheld the sentence on the grounds that the 
defense should have found out about the wit- 

ness before it did. This, despite the fact that 

the police, upon being asked, lied and de- 

clared that the witness had not been a planted 

informant. Is a defendant supposed to as- 

sume that the police are lying? 

In recent days, Attorney General Michael 

J. Bowers has publicly hinted that he will 

campaign for quicker, tougher handling of 
capital cases if McCleskey’s sentence is com- 

muted. This implied threat to the board by 
the board’s own lawyer represents uncon- 
scionable political pressure. 

One of Mr. Bowers’s chief concerns ap- 

pears to be that the state has invested too 

much time and money in such cases for death 
sentences not to be carried out. Note, howev- 

er, that it was the state, not the defense, that 
delayed resolution of McCleskey’s case by 
contesting the finding of the federal court. 

Two of the members of the Board of Par- 

dons and Parole are policemen who, under- 

standably, will find it difficult to reconsider 
the death sentence of someone convicted of 

killing a police officer in the line of duty. It 
can only be hoped that they are able to resist 

allowing fellow-feeling for a brother to out- 
weigh their judgment of the merits of this 
case.’ 

\ 

the Hig na 

Otis Nixon's 

In Mark Bf 
‘what if” sports 
one very impor 

What if Otis Nix{ 
problem and end 
by it? 

Somewhere 
the pennant hoc 

chops we easily 
more important 

Opis | is facin] 

er re 1 a Pe 
ball. Drug a 

A pennant is 

er than a man’s 
freshing to see | 
umn about that 

Schools fz 

The Georg} 
goes on and or] 
followed by or} 

The latest 
cut to local schy 
subsequent ing 
limits, comes wi 
get-woes blues b'¥ 
background. 

Yes, we haveg 
Yes, it’s “just” one 
dren in our classi 
laxation of standar} 
be for one year onf 

What hurts so 
the same song over 
one wants improy 
tion, but no one, } 
not the Legislaturg 
school boards, an 
taxpayers, is wil} 
dollars needed} 
progress.  



      

  
hlden 
lastic 
Inex- 
phted 

4 
b'1g on 
™arred 
Some 

¥ ibove 
x roval. 

#2] any- 
F emed 

um or- 
: was in 
lady in 

} acy Bea 
 shones. 

i ou get 

ned. 

1 ever 

er. All 
play is 

1 

[The Braves] tended to find themselves 

in the wrong place at the wrong time. 

Short center field... turned into a 

veritable free-fire zone for Dodger hits. 

Whenever a Dodger batted even a 

blooper out there, it fell to the grass. 
  
  

dum, dum, dum, dum, dum, dum, 

dum. 

Luckovich: You're very good 
at it. Hey — I have a weird re- 
quest. Will you sign this baseball 
for me? 

And she did, most graciously. 
And as the day wore on she was 
leading charges and kicking up 
her organ’s heels with the theme 
from “The Pink Panther” and I 
don’t know what else. 

Luckovich: Do you think the 

Dodgers will ever trade you? 

Hefley (laughing modestly): I 
don’t know what they’d get for me! 

Sunday wasn’t funny. The 
Braves were on the run from the 

very start. 

In the field, under a hot, 
bright sun, they tended to find 
themselves in the wrong place at 
the wrong time. Short center 
field, in particular, turned into a 
veritable free-fire zone for Dodg- 
er hits. Whenever a Dodger bat- 
ted even a blooper out there, it 
fell to the grass unmolested. 

Braves weren't hitting 

And the Dodgers were hit- 
ting. The Braves weren’t. 

The improbable hero of the 
day — in Los Angeles, anyway — 
was Ramon Martinez. the Dodg- 

ers’ wildly skinny pitcher. He 
slammed a double down the 
third-base line, just inches from 
Pendleton’s glove, and later hit a 
home run. The normally cool sta- 
dium gave him a standing 

ovation. 

So the series ended sadly, from 
Atlanta’s point of view, and the 
Braves flew home into the night. 

A postscript: Forgive me, for I 
have sinned. I have mocked the 
natives for leaving the stadium 
early. But, having stuck it out to 
the end, a couple of times, I now 
understand what a dehumaniz- 
ing bottleneck there is right out- 
side Dodger Stadium, at the en- 
trance to the Harbor Freeway. 

Those drunken Braves fans I 
mentioned the other day yelled to 
the early leavers, “Have a nice 
slow ride home! Have a nice 

| Red 

bumper-to-bumper ride home 

But it’s miserable, horrible to 
get stuck for an hour in plain 
view of the stadium — as Lucko- 
vich and I were the other night 
after two gentlemen from Atlan- 
ta’s Channel 11, Randy Waters 
and Paul Czachowski, offered us 
a lift back to the hotel. 

We sat and sat and sat in a 
cloud of hydrocarbons. So did 
tens of thousands of Dodger fans.   

I 

10,0004 
Tbilisi’s : 
toward the pro 
shouting for his } 
Smaller groups 01 
hurdia supporters 
his defense. 

Former Georgian 1 
Minister Tengiz Sequa, a 1% 
ing figure in the anti-goveri; 
ment movement, first entered 
the radio and TV center with 
about 200 protesters early 
Sunday, government spokes- 
woman Khatia Jinjikhadze 
said. 

They were later joined by 
members of the Georgian Na- 
tional Guard, commanded by 
Gen. Tenghiz Kitovani. The 
general, who broke with Mr. 
Gamsakhurdia after last 
month’s Kremlin coup, has 
vowed to stop government 
troops‘ from attacking civil- 
ians. He claims the loyalty of 
600 to 800 armed troops. 

Meanwhile, after a visit to 
the strife-torn Nagorno-Kara- 
bakh region of Soviet Arme- 
nia, Russian republic Presi- 
dent Boris N. Yeltsin said Ar- 
menia and Azerbaijan had 
agreed to talks over their 

bloody ethnic feud. 

The clashes in Nagorno- 
Karabakh have claimed hun- 
dreds of lives this year, and 
the region remains one of the 
major flashpoints as Kremlin 
authority crumbles. 

Mr. Yeltsin said he and 
Kazakhstan President Nursul- 
tan A. Nazarbayev would me- 
diate at talks today among 
representatives of Armenia, 
Azerbaijan and Nagorno-Ka- 
rabakh. The talks, to be held in 
the Russian town of Zhelezna- 
vad, are aimed at laying the 
grcundwork for an eventua 
peace confergnce. }  



  

   
REASONS WHY THE BOARD SHOULD COMMUTE WARREN MCCLESKEY'’S 

SENTENCE 
  

A. FAILURE TO COMMUTE WILL RESULT IN GRAVE MISCARRIAGE OF 

JUSTICE 

l. Jurors involved in McCleskey’s trial have indicated 
  

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

witness, they would not have authorized the death penalty. 
  

The key witness in Warren McCleskey'’s trial, Offie 

Evans, was a convicted and habitual felon who was promised 

support by the prosecution in his own criminal escape charge 

if he would eavesdrop and spy on McCleskey. The prosecution 

presented Evans as a disinterested witness without ever 

advising the jury of this secret arrangement with him. 

The illicit arrangement with Evans was discovered much 

later, and jurors are angered that this information was 

withheld from them, and state that had the whole truth been 

presented, they would not have convicted McCleskey of malice 

murder and imposed the death penalty. The jurors ask this 

Board to do what they would have done had this information 

been given to them. These jurors state clearly to the Board 

that this evidence (Offie Evans’ testimony) was the sole 

evidence upon which they based the sentence since the other 

evidence was not believable. They now view this key 

evidence as tainted and ask the Board to intercede and do 

what they would have done at trial had they had the complete 

facts. 

 



  

   

2. Substantial questions exist regarding the identity 

of the triggerman. 
  

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

consecutive life sentences, was imposed upon Warren 

McCleskey on the basis of the prosecutor’s argument that 

McCleskey was the co-defendant who fired the fatal shots. 

However, the only reliable information regarding the 

identity of the triggerman is circumstantial evidence alone, 

and the circumstantial evidence suggests one of the co- 

defendants may well have been the triggerman. 

No murder weapon was ever found; none of the Dixie 

Furniture Store enployses or other persons in the Store 

during the shooting actually saw the shooting occur. The 

prosecution’s argument to the jury was that McCleskey had to 

have been the triggerman because he carried a .38 Rossi (the 

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

was the only co-defendant at the front of the Store when the 

shooting took place. 

However, there is significant evidence not considered 

by the jury which runs counter to this circumstantial 

evidence. There was evidence from witnesses in the rear of 

the Store which indicated that one of the other defendants 

had gone to the front of the store, and was in the front of 

 



  

   
the store, at the time of the shooting. (Statements from 

those witnesses are attached).l 

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

Wright’s girlfriend, Mary Jenkins, told police that it was 

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

before the shooting. 

The other evidence which the jury had before it has 

since been discredited. As United States District Judge 

Forrester has noted, the credibility of co-defendant Ben 

Wright was obviously impeachable, given the circumstantial 

evidence suggesting he was the triggerman. And, Judge 

Forrester has additionally noted testimony of the informant, 

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

Forrester has said about that witness’s testimony before the 

Court: 

  

1 Witness Ben lester Tyson made the following statement to 
police investigators that was never presented to the jury: 
  

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

Similarly, Witness James Grier, Jr. told the police 
investigators the following, which was not disclosed to the 
jury: 

  

"I forgot to say that after the men marched us in 
the storage room, one of the men must have left 
cause I only heard two men talking. I guess they 
all left cause it got real quiet. About two or 
three minutes later I heard two gunshots. I could 
hear footsteps like somebody was running off." 

 



      

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

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

found to be simply not worthy of belief. Given the 

substantial questions which exist regarding the identity of 

the triggerman, the Board should grant McCleskey’s petition 

for clemency. 

B. THE SENTENCE IMPOSED IS EXCESSIVE 

l1. Co-defendants, of equal or greater culpability. 
  

received less severe sentences. 
  

Given the substantial doubts regarding his role in the 

shooting, there is no basis to justify the disparity in 

treatment between McCleskey and his co-defendants. When 

levels of culpability are considered, it is clear that 

persons of equal, or greater, culpability, received lesser 

sentences. 

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

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

some circumstantial evidence strongly suggests, the 

triggerman. Yet, he received only a twenty year sentence. 

He has served his time, been released, and has already 

master-minded other robberies for which he is now serving a 

life sentence. (See copy of sentence, with transcript, 

attached).2 
  

2 Wright pled guilty in June, 1990, to two armed robberies 
of C&S Banks in October, 1989. The District Attorney who 
handled those robberies stated, "Subsequent investigation 

6 

 



  

   
Two other co-defendants, Bernard Dupree and David 

Burney, each received three life sentences. In contrast, 

McCleskey received two consecutive life sentences and the 

death sentence. The facts of the crime, and the reliable 

evidence available simply do not justify such disparities. 

Ben Wright is a man contemptuous of the judicial 

system. He bragged to the Warren McCleskey’s jury about his 

criminal career and he boasted that he would lie whenever 

necessary to save his own skin. He admitted that he 

masterminded the robbery. Yet he received a twenty-year 

sentence. 

Given the disparities in sentences imposed for the 

robbery and shooting at ‘the Dixie Furniture store, Warren 

McCleskey’s death sentence should be commuted. 

C. COMMUTATION IS APPROPRIATE BECAUSE WARREN MCCLEKSEY IS 

NOW MAKING, AND WILL CONTINUE TO MAKE, A POSITIVE 

CONTRIBUTION TO THOSE AROUND HIM 

l. His Early Childhood 

Warren McCleskey is not someone who was given huge 

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

Rather, he started out with substantial disadvantage, and 

has overcome those difficulties to make his life a positive 

contribution to those around him. 
  

and statements made by all parties showed that Mr. Ben 
Wright was the instigator and the planner of those 
robberies." (Transcript of Plea, at p. 40). 

 



  

   
McCleskey was born in 1945 in an impoverished ("skid 

row") section of Marietta, Georgia. The street where he 

grew up featured a number of illegal gambling houses where 

McCleskey and his siblings supplemented their family income 

by helping with the sale of bootleg liquor to those who came 

to gamble, 

McCleskey, who lived his years from age four to age 

nine with his aunt in the country west of Marietta, returned 

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

eight. He came back to a house where gambling occurred 

nearly seven days a week. 

Nor was Warren’s childhood blessed by positive role 

models with respect to family relationships. His stepfather 

and mother quarreled constantly. Differences between 

Warren’s mother and his stepfather were resolved through 

violence. Warren’s sisters recall that nearly every weekend 

for stretches at a time one of the children would sneak off 

to call the police to stop the violence. Warren'’s 

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

mother of wrongdoing and threaten =-- or carry out -- 

violence. 

2. Warren’s Life Since 1978 

Despite these disadvantaged beginnings, Warren’s life 

since his 1978 conviction has been a remarkable one. He has 

broken away from the disadvantages of his childhood, and 

made a life for himself that is truly exemplary. 

 



    

His Religious Study 

Further evidence that Warren McCleskey is deserving of 

commutation of his sentence is reflected in the strong role 

which religious belief now plays in his life. This is not 

an eve-of-execution conversion. His counselor notes from 

prison indicate that, since 1981, on a regular basis, he has 

participated in Bible study and Chaplain’s services. 

Warren’s visitors at the Georgia Diagnostic & 

Classification Center have included Rev. Harris T. Travis of 

the Zion Baptist Church in Marietta and Rev. George Wirth of 

the First Presbyterian Church of Atlanta. Both ministers 

speak of Warren’s deep Christianity. Dr. Travis notes his 

belief that Warren is a special person, who has changed his 

life, and whose life going forward will be a positive 

contribution. 

His Role as a Peacemaker 
  

The saying that "actions speak louder than words" has 

particular force in Warren McCleskey’s situation. It is the 

words of prison staff members, prisoners, and others who 

have come into regular contact with Warren McCleskey which 

prove the dramatic change in his life. 

Warren has become a prisoner on death row who acts as a 

positive influence with those with whom he is in contact. 

This has been a gradual evolution over time -- while his 

counselor’s notes universally have noted that he has had no 

9 

 



  

   
disciplinary problems and his behavior is appropriate, by 

1988 those notes reflect his more positive role with both 

staff and other inmates. The counselor’s notes for March, 

1988 indicate: 

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

  

  

  

His counselor’s notes reflect more than once his 

positive influence on those around him: 

3/28/89: Client made no requests this 
reporting period. He has been active in 
Rec. activities. He continues to be a 
positive influence in the cell-block. 
  

  

His counselor’s notes also repeatedly reflect his good 

relationship with the prison staff. The following entry is 

representative: 

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

These observations from prison staff members are 

affirmed by certain prisoners at Jackson: 

Warren became a person that a lot of 
people chose to talk to when things 
would get them down or if someone was 
having a problem with someone else, 
Warren has that special ability to calm 
people down and at times he is able to 
defuse a very powerful problem before 
things get out of hand! 

10 

 



    

   
(Statement of Dennis Dick). 

I knew Warren for approximately 8 years. 
« « « I can’t recall having ever seen 

‘him argue or fight with anyone, but 
countless times I did observe him help 
everyone who asked. 

(Statement of Mike Berryhill). 

I met Warren in July of 1980. I lived 
in the same cellblock with Warren and 
during that time I found him to be kind, 
considerate and understanding toward 
everyone he came in contact with, 
including myself. 

(Statement of Freddie Davis) 

His Help to Persons Outside Prison 
  

The value of Warren McCleskey’s life is graphically 

demonstrated by his ability to provide help even to persons 

outside prison. One of the persons who met Warren through 

his correspondents, is a high school teacher from Snellville 

named Becky White. She has said the following of the help 

McCleskey has provided to her personally: 

He has Dbolstered my faith as a 
Christian, always including in his 
letters his prayers for myself, my 
family, prayers for world situations, 
looking beyond his own interests and 
needs and to what other people are 
concerned about. He has been 

particularly helpful in some very 
difficult times in our lives. In 
particular, what stands out in my mind 
is when we lost a baby and a lot of 
people seemed to think that it was 
something we should get over very 
quickly. Warren was very supportive in 
his letters and didn’t say "Let go; it’s 
God will," which is a horrible thing to 
say to someone whose child has died, 

11 

 



  

   
even though it died before it was born. 
Instead, he prayed that we would have 
the child that would be the desire of 
our heart, and as you can see, we have 
that now. But he was with us and didn’t 
dismiss our pain and suffering. 

CONCIUSION 
  

Because Warren McCleskey has demonstrated that his 

sentence constitutes a miscarriage of justice and is 

otherwise excessive, this Board should order commutation of 

his death sentence to life imprisonment. 

This case is uniquely deserving of relief to prevent a 

miscarriage of justice. The United States Supreme Court 

has, on two occasions, indirectly atknowiedued the 

correctness of McCleskey’s position, but denied him relief 

on technical grounds. Two jurors who participated in 

McCleskey'’s case have indicated that, if they knew at the 

time of the trial what they know now, they would not have 

imposed the death penalty. 

The evidence suggests that the co-defendant most 

culpable in planning the armed robbery, Ben Wright, received 

only a 20-year sentence. The other co-defendants 

12 

 



  

   
received only life sentences. This Board should grant 

Warren McCleskey’s plea for mercy. 

Respectfully submitted, 

  

A. Paul Cadenhead 

  

Bob Reinhardt 

  

William C. (Billy) Randall 

A. Paul Cadenhead, Esq. 
HURT, RICHARDSON, GARNER, TODD & CADENHEAD 

Suite 1400 

Peachtree Place Tower 
999 Peachtree St. N.E. 

Atlanta, Georgia 30309 
(404) 870-6060 

Bob Reinhardt, Esq. 
REINHARDT, WHITLEY & WILMOT 
1001 North Central Street 
Tifton, Georgia 31794 
(912) 382-6135 

William C. (Billy) Randall, Esq. 
P. O. Box 121 
Macon, Georgia 31202 
(912) 743-6389 

COUNSEL FOR WARREN MCCLESKEY 

13 

 



  

   

BRIEF AND ANALYSIS 

IN SUPPORT OF 

APPLICATION OF 

WARREN McCLESKEY 

 



  

   
BEFORE THE 

BOARD OF PARDONS AND PAROLES 

STATE OF GEORGIA 

BRIEF AND ANALYSIS 

Application of Warren McCleskey Application 

For a 90-Day Stay of Execution And No.   

Commutation of His Sentence of Death 

ever to 

country. 

you and 

granted 

stating 

because 

  

  

For two reasons this case is perhaps the most unique 

appear before this Board or any such forum in the 

Here (l)jurors who tried the case now appear before 

urge clemency; and (2) a Federal District Judge twice 

habeas corpus relief in two separate proceedings, 

that Mr. McCleskey was improperly sentenced to death 

evidence favorable to the defendant was withheld from 

the jury. In summary, the ones imposing the sentence cry out 

for its correction, and the Judge reviewing it states that it 

should be corrected. Yet, procedural rules preclude judicial 

relief, 

serious 

and this Board bears the responsibility to correct this 

error. 

As pro bono counsel, we appeal for clemency because 

both legally and factually we are convinced of its merit. 

Volunteer counsel here look beyond procedure to ultimate 

merits, and urge this Board to do likewise. 

 



  

   
The existence of the Board of Pardons and Paroles is 

based on the sound legal presumption that some cases having 

exhausted judicial procedures still warrant non-judicial 

relief. In a word, even where guilt has been affirmed by the 

judicial system, the law still dictates that some do not 

deserve imposition of the ultimate punishment imposed. If such 

were not the case, there would be no need for the Board of 

Pardons and Paroles. 

Clearly, therefore, the Board's duty requires it to 

review and, where appropriate, remedy that which the judicial 

system, because of different rules, could not. The functions 

are different, and the powers of the Board become operative and 

plenary only after the powers of the judicial system are 

exhausted. Thus, this Board has supreme authority and ultimate 

responsibility. 

If in legal and divine wisdom there are no cases 

worthy of commutation at the end of judicial procedure, the 

genius of our law would not entrust such cases to this Board. 

The overall question presented, therefore, is whether 

non-judicial circumstances in the given case warrant the 

ultimate sentence: forfeiture of life. 

In May of 1978 Warren McCleskey was involved in 

conspiracy and ultimate execution of robbery of an Atlanta 

5105G/bl/13.44 

 



furniture store. This was a crime which he now admits, and for 

which he should and will pay a severe legal penalty. The 

judicial system has examined the circumstances and imposed its 

sentence for that crime, and we willingly submit to that 

penalty. 

Accordingly, we address the Board not concerning Mr. 

McCleskey's sentence for robbery, but concerning his conviction 

of malice murder and the death sentence for his alleged role in 

the fatal shooting of Officer Frank Schlatt, who was shot by 

one of the perpetrators during the robbery. 

Mr. McCleskey then and now denies that he fired the 

fatal shot. 

There were no eyewitnesses to the shooting, and the 

murder weapon was never found. 

Some of the jurors who imposed the death sentence have 

since learned that the jury was misled by the State's 

withholding from the jury evidence known only to the State, and 

which evidence would have resulted in a different verdict. As 

pro bono counsel, therefore, we entered -the case at this point 

and join with jurors in their plea that you correct a mistake 

the jury made in good faith, but on flawed evidence. 

The central issue is whether the Board will honor the 

request of jurors, a request which has twice been honored by a 

federal judge, and impose the sentence which jurors would have 

imposed if the state had in fairness presented the whole truth 

5105G/b1/13.  



  

   
to them. The jurors are emphatic that no death sentence would 

have been imposed, and a federal trial judge twice likewise 

1,6 The ruled that the sentence was illegally imposed. 

federal judge was reversed by federal appellate courts on 

procedural grounds without ever considering the merits, 2 and 

the jurors plead with you in your plenary power to correct this 

mistake. 

The testimony of Ben Wright, overall mastermind of the 

robbery, was unbelievable to the jury, 3 and totally 

impeached in the eyes of the U. S. District Judge, Owen 

Forrester. 

Knowing that the only evidence identifying McCleskey 

as the "triggerman" was testimony of Ben Wright, a 

co-conspirator, and that conviction under the law may not be 

obtained on such testimony alone, police made a deal with Offie 

Evans, a felon inmate, that the police would "put in a good 

word" for Evans if he would get information on McCleskey. In 

order to accomplish this mission, the police arranged to have 

Evans placed in a cell adjoining the cell of McCleskey. 3 

The bedrock on which this conviction of malice murder 

rests, therefore, is testimony of Offie Evans, since under the 

law a conviction could not have been obtained without his 

testimony. Yet his secret mission was not made known to the 

jury, even though evidence of his mission was necessary for the 

jury to judge his credibility. Counsel much later learned of 

Evans' mission and partnership with police, and that he had 

5105G/bl/13.44 

 



  

   
been so used on other cases. 6 Yet this simple but 

controlling fact was never made known to the jury, but instead 

he was presented as a disinterested witness with nothing to 

gain from his testimony. 

In his endeavors for the police, Evans admittedly lied 

in his efforts to gain McCleskey's trust and obtain statements 

from McCleskey. 7 He utilized information obviously given him 

3 He reported by police when they made the deal with him. 

his conversations to the police, culminating in his giving 

convicting testimony at the trial of McCleskey. Clearly, he 

was an agent of the police and utilized information given him 

by police, 3 but his status as such was never made known to 

defense counsel or the jury. Instead, he was presented as a 

disinterested witness with nothing to gain by his testimony. 

This unbelievable witness was thus made by the police to appear 

credible, and the jury had no opportunity to know of his 

interest by earning a promise from the police in exchange for 

his mission. The jurors now plead with this Board to correct 

this error. 

Mr. McCleskey then and now denies that he made 

statements attributed to him by Evans. 

The genius of our law adopts a rule of fairness that 

requires the prosecution to reveal not only those facts 

indicating guilt, but also those facts which might be helpful 

to the defendant. In short, the prosecution must reveal not 

5105G/bl/13.44 

 



  

   
only that portion of the evidence desired by the prosecution, 

but the whole truth. The State revealed the incriminating 

portions of Evans' statement, but at n i Ir yd 

cCleskey' nsel or h ial jur h 

circumstances under which Evans acted as a police spy with 

promise of beneficial help from the police for his efforts. 

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

Supreme Court of Georgia, there was no indication of this 

secret arrangement with Evans. 

Had defense counsel and the jury known at that time 

what has since been learned, it is uncontradicted that the 

death penalty would never have been imposed. It takes a 

unanimous verdict for such sentence, and at least two of 

McCleskey's trial jurors now state emphatically that this 

verdict would never have been returned had Evans' status been 

revealed to the jurors. 1 

The jury heard testimony from Ben Wright, Jr., the 

felon who masterminded this robbery. These jurors state that 

Ben Wright was unbelievable, and his testimony was totally 

disregarded. 3 Judge Forrester found Wright "obviously 

impeachable." g In summary, the sole evidence on which the 

jury based the conviction and sentence was the testimony of 

Offie Evans. 1 

At the trial jurors viewed Evans as a witness with no 

interest in the case, and with no reason to give damaging 

5105G/bl/13.44 

 



  

   
testimony except to assert the truth. There was no indication 

in his testimony or otherwise that his testimony was given 

pursuant to an agreement with police that they would "speak a 

good word for him" if he would carry out his assigned mission. 

With this now revealed, some jurors clearly establish that had 

they known this truth about Evans, they would have discounted 

his testimony and would not have imposed the death penalty. 

Thus, had the prosecution presented the whole truth, this case 

would have terminated at the trial level without ensuing 

appeals. 

In short, this case would never have come before this 

Board had this simple act of required fairness occurred. 

According to jurors who judged and sentenced McCleskey, his 

case would have ended at the trial level with at most a life 

sentence. 

When evidence of this arrangement with Evans first 

came to light in 1987, McCleskey's counsel promptly addressed 

the issue within the judicial system. As a part of that 

endeavor counsel sought habeas corpus relief through the 

federal courts, and was assigned to Judge Owen Forrester of the 

United States District Court for the Northern District of 

Georgia. Judge Forrester heard the case, evaluated witnesses, 

and entered an Order to the effect that this action by the 

State violated required standards of fairness, resulting in his 

setting aside the death sentence unless McCleskey was re-tried 

5105G/bl/13.44 

 



  

   so that a jury could hear and evaluate Evans in his true 

light. Interestingly, Judge Forrester is not known for 

liberality, but instead is one reputed in the Almanac of 

Federal Judicracy to impose heavy sentences. He further found 

that Ben Wright (the overall coordinator of the robbery) was 

totally unbelievable, 4 and that Evans' status should have 

been made available to the jury in order that the jury might 

properly evaluate his testimony. As previously shown, jurors 

without equivocation state that had that arrangement been 

revealed to the jury, the matter would have terminated there, 

without imposition of the death sentence. 

Appeals through the federal system in this case do not 

follow a typical pattern. Generally in such cases the defense 

loses in the lower courts and moves through the appellate 

system. Here the defendant twice succeeded in the District 

Court and the State twice appealed. The appeals dealt 

primarily with procedure and not with merit, and significant 

portions from the appellate decisions are instructive. 

The appellate court speculates that testimony of Evans 

8,14 
was harmless. This is in direct contradiction to 

m jurors wh j w mph 

that it was not only harmful, it was the sole evidence on which 

they relied. Moreover, Judge Forrester heard the evidence,   

viewed the witnesses and asserted that "it is not possible to   

in h h viden Ww rm 5," [Emphasis added] We 

5105G/bl/13.44 

 



therefore have an appellate court who never heard the witnesses 

speculate on what the result might have been, which speculation 

is in direct contradiction to a judge and jurors who heard the 

testimony and found it so harmfulas to be the sole basis for 

the sentence. The jurors now plead for this Board to correct 

it. Had the simple and complete status of Evans been revealed, 

there would have been nothing for the appellate court to 

surmise or speculate, since there would have been no death 

sentence imposed. Simply put, the appellate court speculated 

on what might have been, and the jurors dealt with actuality.. 

Here is where the appellate court elevated procedure 

above merit. The appellate court acknowledged that merits of 

the matter vested in the discretion of the district court 

(Judge Forrester) but that he should not have heard the merits, 

but instead should have dismissed the matter on procedural 

grounds because the issue was not raised earlier. The 

undisputed facts are that the prosecution denied the 

relationship with Evans, and it first "leaked out" much later. 

The matter was dealt with promptly on discovery, and Judge 

Forrester found that it was addressed timely. The important 

fact here is that Judge Forrester did consider the merits of 

the very matters now presented to this Board, and on two 

occasions agreed with McCleskey. Judge Forrester also found 

that McCleskey was illegally questioned by Evans as an agent 

for the police. The appellate courts admittedly did not 

5105G/bl/13.44  



    

5105G/bl/13.44 

consider the merits, but dismissed the petition on twin 

technical points; that (1) the issue should have been raised 

earlier and (2) that it was harmless since it did not affect 

the jury verdict. 

Even in the second appeal, the court acknowledged that 

the State bears the burden of proving that the error at trial 

10 Did it so did not contribute to the sentence of death. 

contribute is the ultimate question, and this Board is the 

ultimate arbiter. In deciding that ultimate question, the 

Board is aware that jurors who know the answer are among those 

crying for this Board to believe them and not to accept the 

speculation of an appellate court. Secondly, the federal trial 

judge joins them in asserting that the conviction rests 

exclusively on this error. No one can now be heard to 

speculate that the error was harmless. If, as even the 

appellate court conceded, the burden is on the State, the Board 

must find that the State has not borne the burden. 

During several rounds of appeals by the prosecution, 

McCleskey's case became a pawn in a technical legal struggle 

over procedure in federal habeas corpus review. The Supreme 

Court of the United States reinstated the death sentence on 

procedural grounds---WITHOUT EVER CONSIDERING whether McCleskey 

was right on the merits of his legal claim. If in fact (which 

neither we nor Judge Forester concede) counsel for McCleskey 

was deficient in procedures so that the appellate courts did 
  

reach the merits of the position, this Board should look beyond 

procedure to the merits. 

 



  

   
The appellate courts ultimately decided not to 

"entertain McCleskey's claim on the merits." 11 Therefore, 

the merits of the claim have never been considered by any court 

except Judge Forrester, who found McCleskey's position 

meritorious. We go into detail here for the purpose of urging 

on this Board its responsibility likewise to hear the 

merits--hear what would have been the outcome had the complete 

truth been presented. Then you will agree with Judge 

Forrester's judicial determination, that, aside from some 

technical construction in a motion to dismiss, the State 

withheld crucial evidence and obtained a conviction of malice 

murder which jurors state could not have been obtained if the 

jury had been given the whole truth. This Board now has the 

whole truth, and the jurors implore you to find as the jury 

would have found had it been so advised. 

Again, as stated earlier in this presentation, had 

this simple fact been divulged to the jury, no appeals would 

have resulted and we would not be before this Board. We 

therefore ask this Board to look back in time and put in place 

that which should and would have been done in the first 

instance. When that is done, McCleskey will serve the sentence 

and pay the debt to society he owes for the crime he committed, 

but he will not forfeit his life at the hands of jurors who now 

state they would never have imposed that sentence had they 

known the true facts. Judge Forrester who heard the merits of 

5105G/bl/13.44 
-11 - 

 



  

   
the matter, and independently of statements from the jurors, 

arrived at the same conclusion. We ask the Board to join with 

them and impose the sentence that would have been imposed 

initially had the truth been revealed. 

Finally, for technical reasons within the judicial 

system, jurors cannot appear before an appellate court and 

argue against the jury's own verdict. There a juror may not 

impeach his or her own verdict by asserting that it is based on 

improper evidence and therefore erroneous. In the judicial 

system the paper on which a verdict is written is the ultimate 

word. Jurors cannot go the the appellate court and state to 

the court that what the court surmises is incorrect and they 

want the verdict corrected. Therefore, the judicial system is 

inadequate for the unique situation here presented. This Board 

is the only forum before which the jurors may make their 

appeal, and this Board is not bound by those restrictions 

imposed on the judicial system. It can and should hear the 

truth from those angry jurors who allege they were not given a 

full deck; that they were not given the whole truth as the oath 

of evidence requires; and had they known facts which were 

withheld from the jury and later revealed, the verdict would 

have been different. The jurors ask this Board, as the 

ultimate authority, to correct that which they are powerless to 

correct within the judicial system. This Board has that power 

and duty and should look beyond procedure to merit. 

5105G/bl/13.44 
12 & 

 



  

   
In summary, the only two tribunals (the jury and a 

federal judge) who heard the facts conclude that the death 

penalty was improperly imposed. Appellate courts dealt with 

procedural matters. This Board has both the power and duty to 

look beyond procedure to merits. In doing so clemency is 

indicated, and this Board should so order. 

Of paramount importance also is the fact that 

co-defendants, whose cases were not affected and thus not 

tainted by this prosecutorial error, received lesser 

sentences. Indeed, Ben Wright, the mastermind of the robbery 

and the one toward whom strong circumstantial evidence pointed 

as the triggerman, received a lesser sentence. He was 

subsequently paroled and committed other felonies for which he 

is now serving a life sentence plus twelve years. Evans’ 

testimony, bolstered by improper withholding of the whole 

truth, is the sole criterion on which the jury sequestered 

McCleskey from the others and imposed the ultimate sentence of 

death for McCleskey. And, it is this witness [Evans] who, 

according to Judge Forrester, is not believable. 12 

The primary purpose of this brief is singular. We 

desire to demonstrate to the Board that clemency here is not in 

opposition to the jury who imposed the sentence, but is in 

accordance with their desires, and that if they had the power 

to withdraw that verdict they would do so. This Board has that 

power, and the jurors urge that such power be exercised by 

granting clemency. 

5105G/bl1/13.44 
- 13 

 



  

   
By urging this singular issue, we do not overlook all 

indications that McCleskey is not at the core of his being a 

bad person. He is a positive influence in the inhospitable 

environment of prison. Prison staff members and correctional 

officers at the prison have informally spoken in glowing terms 

of McCleskey. Counselors there praise his influence as a 

peacemaker. He has attracted attention of leading ministers of 

this city. They affirm his faith, and lack of bitterness at 

what he knows to be an untrue and unfair status on death row. 

From his cell on death row he has been of inestimable value to 

a classroom of students, and has taken great pains to be of 

assistance to them. They validate the genuineness of his 

present commitment. 

We as pro bono counsel became convinced that we must 

intercede and join the trial jurors in an effort to save this 

man from a sentence that should never have been imposed, and 

which would not have been imposed if full legal rights had been 

granted. We acknowledge that under our law the State has 

authority to take a life, but as a vital condition to that 

right, the State must first render full justice to the 

individual, and be convinced that the jury intended that the 

life be forfeited. Here we have the contrary, with jurors 

pleading for the life to be saved. Full justice demands that 

  the convicting jury hear the whole truth, including evidence as 

to the credibility of the witness on whose testimony they 

5105G/bl/13.44 
-iill - 

 



  

   
relied in rendering their verdict. Quite simply put, this was 

not done here and, perhaps unique to this case, the jurors 

plead with you to correct the error they mistakenly made. The 

federal judge who heard the case likewise agreed that justice 

had not been granted to McCleskey. Where justice is denied the 

State lacks authority to take a life. This Board constitutes 

the State in making this determination, and we urge that you 

spare the life that has been thus improperly condemned. Mr. 

McCleskey will then serve the sentence for which he was 

properly convicted, but will not pay with his life for errors 

made by the prosecution and over which he had no control. 

Counsel here very much desire to have McCleskey appear 

before this Board either in person or by video, and have asked 

for this privilege. We of course yield to your direction but 

stand eager to so present him if you permit. 

We respectfully move this Board to put in place that 

which without dispute would have been done initially by the 

trial jury had that jury been afforded the whole truth, which 

is now available to this Board. That result would have been a 

common sentence for all participants, and McCleskey would not 

5105G/bl/13.44 
- 15 

 



  

   
have been singled out for the death sentence based solely on 

incomplete evidence. The jurors now plead with you to correct 

that fatal error. 

  

  

“A Paul Cadenhead 

  

Bob Reinhardt 

  

William C. (Billy) Randall 

A. Paul Cadenhead, Esq. 

HURT, RICHARDSON, GARNER, 

TODD & CADENHEAD 
999 Peachtree Street 

Suite 1400 
Atlanta, Georgia 30309-3999 
(404) 870-6060 

Bob Reinhardt, Esq. 
REINHARDT, WHITLEY & WILMONT 

1001 North Central Avenue 
Tifton, Georgia 31794 
(912) 382-6135 

William C. (Billy) Randall, Esq. 
Post Office Box 121 
Macon, Georgia 31202 
(912) 743-6389 

5105G/bl/13.44 
- 16 = 

 



    

End Notes 

AFFIDAVIT OF JUROR JILL DARMER: 
  

"As I said, this was for me a very close case. It 
took Evans' testimony for the State to prove to me, 
beyond a reasonable doubt, that McCleskey was the 
triggerman. Without Evans' testimony, I definitely 
would not have voted for a death sentence, and 1 
believe at least a few other jurors would have 
agreed. Let me go further. I knew then that it only 
takes one juror to hold out against the rest. I am 
certain that had I known that Offie Evans had an 
arrangement with an Atlanta detective---If I had heard 
Evans' testimony in the State habeas corpus 
proceedings---I would never have voted to impose 

capital punishment." 

2McCLESKEY V. ZANT, F2, 890: 

p. 342, "The ends of justice [do not] require us to entertain 

  

351 McCleskey's claim on the merits" that had the jurors 
known of Evans' complicity no death sentence would 
have been imposed. [Emphasis added] 

3AFFIDAVIT OF JUROR ROBERT BURNETTE: 

"Ben Wright, the other robber who testified for the 
State, said that Warren McCleskey had admitted the 
shooting. I honestly never trusted Wright and I don't 
think the other jurors did either. He seemed like a 

man without a conscience. He was very cool and 
arrogant when he testified. I had the feeling that if 
he had done the shooting himself, he wouldn't have had 
any remorse at all." 

AFFIDAVIT OF JUROR JILL DARMER: 
  

"The testimony from Ben Wright, the other 
co-defendant, didn't impress us much since he 
obviously could have committed the shooting himself 
and had everything to gain by blaming McCleskey." 

4 JUDGE _FORRESTER'S ORDER - 12/23/87: 

p. 89 "The testimony of Ben Wright was obviously 
impeachable." 

5105G/bl/13.44 
-17 = 

 



    

SJUDGE FORRESTER'S ORDER - 1/6/89: 

Pp. 83 "For the foregoing reasons the court concludes 
that petitioner has established by a preponderance of 
the evidence the folloiwng sequence of events: 
Evans was not originally in the cell adjoining 
McCleskey's prior to July 9, 1978; he was moved, 

pursuant to a request approved by Worthy, to the 
adjoining cell for the purpose of gathering 
incriminating information; Evans was probably coached 
in how to approach McCleskey and given critical facts 
unknown to the general public; Evans engaged McCleskey 
in conversation and eavesdropped on McCleskey's 
conversations with DuPree; and Evans reported what he 
had heard between July 9 and July 12, 1978 to 
Assistant District Attorney Parker on July 12." 

6 JUDGE FORRESTER'S ORDER - 1/6/89: 
  

Page 109 "[Evans] had strong motivation in order to 
stay in favor with the police and prosecutors who have 
used him to testify in the past. The numerous 
contradictions within his deposition also lead the 
court to the conclusion that his testimony would not 
be believable." [Emphasis added] 
  

  

7 JUDGE _FORRESTER'S ORDER - 1/6/89: 
  

Pp. 80 "Evans repeatedly lied to McCleskey." 
Pr. 87 "Evans repeatedly lied to [McCleskey] in 

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

8McCLESKEY V. KEMP, 753 F2 877.884; 
  

"We find it [Evans' testimony] unlikely that the 
undisclosed information would have affected the jury's 
assessment of Evans' credibility." Further, even in 
the 1989 appellate opinion in McCleskey v, Zant, (890 
F2 342 @ 353) the court again speculated "the court 
finds no reasonable likelihood that the jury's 
imposition of the death penalty was affected by Evans’ 
testimony....' 'this court finds beyond a reasonable 
doubt that the jury would have convicted and sentenced 
McCleskey as it did even without Evans' testimony." 

  

5105G/bl/13.44 
183 

 



  

   
Yet the jurors and Judge Forrester who saw the 

witnesses disagree. Judge Forrester in note (9) 

says, "it is not possible to find that the error was 

harmless" and the jurors say it was the sole basis for 

their verdict. 

9 JUDGE FORRESTER'S ORDER - 1/6/89: 

p. 89 "It is not possible to find that the error was 

harmless." 

10McCLESKEY V, ZANT F2 2.4 ' 

Pp. 351 The court stated, "under the harmless error doctrine, 

the State must 'prove beyond a reasonable doubt’ that 

the error complained of did not contribute to the 

verdict obtained." [Emphasis added] Thus, clearly 

under the law when a circumstance like this appears, 

the burden is on the state to show that the wrongful 

withholding of this helpful information did not 

contribute to the verdict obtained. Addressing this 

the court went further and stated "in its previous 

opinion, the Eleventh Circuit held that the judgment 

of the jury that convicted McCleskey was not affected 

by the lack of disclosure." Further, at page 353 the 

  

court. .sai@, "ee... the court finds no reasonable 

likelihood that the jury's imposition of the death 

penalty was affected by Evans' testimony.” " oeeltnis 

court finds beyond a reasonable doubt that the jury 

would have convicted and sentenced McCleskey as it did 

even without Evans' testimony." Therefore, the court 

found that the "ends of justice" do not "require us to 

entertain McCleskey's claim on the merits," that, had 

McCleskey's jurors heard the truth about Offie Evans, 

no death sentence would have been imposed. 

11McCLESKEY V, ZANT, 890 F2, 342 (1989): 
  

p. 351 "Therefore, the court found that the 'ends of justice’ 

do not ‘require us t entertain McCleskey's claim on 

the merits,' that, had McCleskey's jurors heard the 

truth about Offie Evans, no death sentence would have 

been imposed." 

5105G/bl/13.44 
-il9 = 

 



    

12 JUDGE FORRESTER'S ORDER - 1/6/89: 

P. 109 "It is unlikely Evans' testimony would produce a 
different result. The credibility or believability 
problems with his [Evans] testimony are evident. He 
has a strong motivation for saying he was not an 
informant, not only because of recriminations from his 

associates, but also in order to stay in favor with 
the police and prosecutors who have used him to 
testify in the past. The numerous contradictions 
within his deposition also lead the court to the 

conclusion that his testimony would not be believable." 

13 JUDGE FORRESTER'S ORDER - 1/6/89: 

Pp. 

Pp. 

78 

89,90 

"In response to questions from the court, Worthy 
stated that he was satisfied that he was asked for 
Evans 'to be placed near McCleskey's cell,' that 
'Evans was asked to overhear McCleskey talk about this 
case,' and that Evans was asked to 'get some 
information from' McCleskey." 

"For the foregoing reason, the court concludes that 

petitioner's sixth amendment rights, as interpreted in 

M jah, were violated by the use at trial of Evans' 

testimony about the petitioner's incriminating 

statements because those statements were deliberately 

elicited by an agent of the state after petitioner's 

indictment and in the absence of petitioner's 
attorney. Because the court cannot say, beyond a 
reasonable doubt, that the jury would have convicted 

petitioner without Evans' testimony about petitioner's 

incriminating statements, petitioner's conviction for 

the murder of Officer Schlatt must be reversed pending 

a new trial." 

14 McCLESKEY V. KEMP, 753 F2, 877 (1985) 

P-. 

  

885 The court in McCleskey v. Kemp, admits that Evans’ 
testimony was important to the prosecution, stating 
sR we agree that his [Evans'] testimony added 
weight to the prosecution's case, we do not find that 
it could 'in any reasonable likelihood' have affected 
the judgment of the jury." It further stated that the 
police offer to "speak a good word" for Evans was 
insufficient to amount to a promise to help (yet they 
did, and his escape case was dropped). Further, but 
if it did amount to a promise, it was harmless since 
"we find it unlikely that the undisclosed information 
would have affected the jury's assessment of Evans' 

credibility." 

5105G/bl1/13.44 
- 30.