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Transcript of Proceedings Vol. 2
Public Court Documents
July 9, 1987
172 pages
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Case Files, McCleskey Legal Records. Transcript of Proceedings Vol. 2, 1987. c6f427d0-62a7-ef11-8a69-7c1e5266b018. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e9ec33b5-57b7-47d5-a9ce-130b7d0a5751/transcript-of-proceedings-vol-2. Accessed October 31, 2025.
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION _
WARREN McCLESKEY,
Petitioner,
No. C-87-1517-A
RALPH KEMP,
Respondent.
Proceedings before The Honorable
J. Owen Forrester on July 9, 1987.
APPEARANCES OF COUNSEL:
For the Petitioner: JOHN CHARLES BOGER, Esq.
ROBERT HB. STROUP, Esg.
For the Respondent: MARY BETH WESTMORELAND,
Attorney At Law
REPORTED BY:
MARGIE LARKIN, RPR
Official Court Reporter
107 State Court Building
Atlanta, Georgia 30303
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WITNESS
Detective Welcome Harris
Examination by Mr. Boger
Officer W. K, Jowers
Examination by Mr. Stroup
Sergeant Charles Jackson
Examination by Mr. Stroup
Officer Sidney Dorsey
Examination by Mr. Boger
Russell Parker
Examination by Mr. Boger
David John Kelsey, Jr.
Examination by Mr. Boger
Ulysses Worthy
Examination by Mr. Boger
Examination by Ms. Westmoreland
Eddie Geouge
Examination by Mr. Stroup
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146
153
159
THURSDAY, JULY 9, 1987
IN OPEN COURT
THE COURT: All right, Mr. Boger,
What's your game plan for the morning?
MR. BOGER: Your Honor, we have made
contact with most of the people we dis-
cussed last night with the F.B.I. folk
and Mr. Stroup, my colleague is outside
right now, He's been called by an
Assistant U.S. Attorney who's handling
that matter. We think that evidence will
be available although the witnesses are
not here right now,
Generally, the Fulton County Jail
folk have been contacted last night and
Mr. Stroup can make more precise state-
ments about it, but we will have that
evidence, apparently, this morning,
We also have subpoenas out for a
number of other officials connected with
the Federal Penitentiary.
THE COURT: -1Is that Whitmire and
Gold or Gould?
MR. BOGER: They are being sought
A right now. -
4 THE COURT: Were they Federal
3 Penitentiary officials?
4 MR. BOGER: They were Federal Peni-
3 - tenitary officials. Both of them have
6 | retired and our investigator is tracking
7 them down this morning.
# We have one modest lead that makes
9 us hopeful that we could find Mr. Evans,
10 Offie Evans today, although all our leads
11 thus far have proven unsuccessful.
% 12 THE COURT: Better send a law man after
L3 him.
14 MR. BOGER: Well, if we get close
a enough we'll have some help, I think, if we
16 know where he is. So that's the status.
17 Mr. Stroup, I think, just stepped
18 outside to figure out how many of the
19 witnesses have shown up. There are a
20 number of people who are under subpoena
Lk who were here yesterday, who I understand
Ad are on the way but not here yet, such as
23 Detective Jowers or Russell Parker, who
24 has an arraignment calendar but will
A 25 arrive at some point soon.
— 3 —
My colleague, Mr. Stroup, may be able
to help me more specifically on that.
MS. WESTMORELAND: Your Honor, if 1
might --
THE COURT: Let them confer. They
can't listen to you and --
(Whereupon, a discussion ensued off
the record.)
MR. STROUP: The update on the PFPulton
County Jail, Your Honor, is that we served
a subpoena last evening on a Captain
Brittan, who indicated for the custodian of
records we should name Chief Brownlee, which
we did. We left it in Captain Brittan's
custody.
I've spoken this morning with Attorney
Ellen Hirsch's office in an effort to get
her to help out, I had some indication fron
her it was probably a Sergeant Jackson who
would be available. She didn't know whether
he was coming. I've just called and the
information I had was that he had just left
to come to court; and hopefully it's this
court,
THE COURT: Chief Brownlee owes me
about a million dollars right now in fines
accruing on the operation of his jail.
You might want to suggest that he --
MR. STROUP: I have used your name
quite frequently in the last couple of days,
Your Honor.
THE COURT: It may be a crime to
impersonate me but otherwise that's all
right,
MS. WESTMORELAND: Your Honor, for the
Court's information, Mr. Parker's court
would have had an arraignment calendar this
morning. The information he gave me last
night was that he was going to try to
arrange for someone to take the calendar
for him or at least try to expedite it this
morning and he said as soon as he got to a
point where he could leave he would just
come straight to court this morning.
THE COURT: Well, let me ask
Petitioner's attorney. You got any more
questions of Mr. Parker or are we just
getting him back here for cross?
MR. BOGER: We do have some additional
guestions based on the ten percent of
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documents that he provided to us in the
file that was in his office indeed are
not simply updates but are contemporaneous
records about Mr. Evans. In other words,
it's some additional material that was
in his file that we do want to question
him about.
THE COURT: All right.
MS. WESTMORELAND: For the record, 1
might also note, Your Honor, yesterday
afternoon the box which Mr. Parker brought
which was the official file from Fulton
County, and I believe counsel for the
Petitioner had the opportunity to go
through that in its entirety. Mr. Parker
returned what he referred to as his
personal files and presented, I believe,
I believe, the notes out of then. 1 don't
believe counsel went through that in its
entirety, although it was here and Mr.
Parker represented the remainder was the
subsequent pleadings, et cetera, that
counsel had the opportunity to review it
and the police department files that were
brought were also reviewed by counsel in
their entirety as well,
THE COURT: Mr. Boger, last night it
occurred to me -- as I've indicated to you
I've got to conclude this hearing today. I¢
occurred to me that I probably have the
power to appoint the Federal Public Defender
and their investigator to assist you if that
is necessary in your work today. And I
would be willing to consider that if you
make that request.
MR. BOGER: Well, thank you, Your
Honor. 1 think I will confer about it with
my co-counsel and see if that would be
useful. We will inform the Court maybe
later on this morning if it --
THE COURT: Well, they necessarily
will need some lead time because their
investigator may be out in the field or
something like that, if we don't move
guickly. S0 just simply let me know and
as soon as you can decide that, if you've
got something for him or her to do -- 1
think it's actually a him and a her --
then I will call Ms. Kearns and see {if
we can do something.
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MR. BOGER: 1£f I can confer just a
moment, Your Honor, we --
THE COURT: If you don't have anything
t0 40, let's don't 40 it,
(Whereupon, a discussion ensued off
the record.)
MR. BOGER: ~-- Your Honor's generous
offer and note if you did make arrangements
of that sort we do have some things that
the investigator for the Public Defender
could do, conceivably the Public Defender
as well,
THE COURT: Bll right, Do you have
a witness you can call now?
MR. BOGER: We do, Your Honor.
THE COURT: That knows something about
the case? I'm not inviting =--
MR. BOGER: Well, I know Detective
Dorsey is here.
THE COURT: Okay.
"MR. BOGER: I know Detective Harris
is here and I guess the question is, we had
not planned those as the first two witnesses
but we're certainly ready to proceed with
one or another of them.
THE COURT: I'm going to break long
enough to make a phone call -- why don't you
all come in the chambers, you're welcome to
be there -- to see what can be done to get
that working.
We'll be in recess for about five
minutes.
(Whereupon, a brief recess was taken.)
THE COURT: All right. For the record
I've spoken with Ms, Kearns, who has agreed
to send an attorney and an investigator to
assist counsel. 1 will break when they
arrive to let you give them their missions
if you need for me to break. If one of
you can give them a mission while the
other is examining a witness, obviously
that's preferable, but just tell me what
you need.
Call the witness, please, sir.
MR. BOGER: Detective Harris.
Whereupon,
DETECTIVE WELCOME HARRIS,
having been previously duly sworn, was examined
and testified as follows:
{it /
EXAMINATION =
BY MR. BOGER:
Q Good morning, Detective Harris.
A Good morning,
Q When our testimony concluded yesterday
you had indicated, I believe, that the name
Kennebrow may have meant something to you as a
person you may have gone to see over at the
Federal Penitentiary.
A Kennebrough.
Q Kennebrough, excuse me.
A Uh-huh.
Q Let me ask you about a few additional
names and see if they refresh your recollection
at all. Does Lieutenant F. W. Grouse mean any-
thing to you?
A No, sir.
THE COURT: Or Gould?
MR. BOGER: Pardon?
TBE COURT: You've got your notes in
front of you, but I thought it was Gould.
MR. BOGER: I have another set of
notes, Your Honor, that suggests it may
be Grouse instead of Gould.
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BY MR. BOGER:
Q Does Gould mean anything to you?
A No. These are the names on the right
side of the piece of paper on the fourth page,
right, what I looked at yesterday?
| Q Well, that --
A Idonl't «w=uno, sir, It doesn't mean
anything to me.
MR. BOGER: I have another document
if I could confer briefly with counsel for
the State.
(Whereupon, a discussion ensued off
the record.)
BY MR. BOGER:
Q I'd like to show you a document that
actually has not =-~-
MR. BOGER: Perhaps we need to mark
it for identification.
M8. WESTMORELAND: Can we use a copy
as well of the document? I believe I
gave copies to counsel.
MR. BOGER: Yes, you did.
BY MR. BOGER:
Q Do you recognize that document?
A NO, sir, I've never seen it before
that I can recall. =
Q Do you recognize the handwriting?
A Well, it looks like the same
handwriting that you gave me yesterday, if that's
any indication, I guess Mr. Parker's.
| Q But you don't know that directly, you
know that through =--
A Other than it looks similar to the
handwriting I saw yesterday.
Q Let's examine that document for a few
moments,
MS. WESTMORELAND: Your Honor, at this
point I will have an objection. i1f Mr, ~~
Detective Harris had seen this document
before I would have no objection to him
making some reference to it. Ag he's
never seen it before, he did not prepare
the document, has no knowledge of its
contents, I would object to any questions
of Detective Harris regarding this docu-
ment,
MR. BOGER: I'm trying to use the --
THE COURT: Wait just a second.
I don't think he has to have ever seen
it before to have his recollection refreshed
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by it, but counsel has not asked him any
question that he indicates a lack of
personal recollection about.
So in essence, I'm sustaining your
objection but not for the reason you've
stated.
BY MR. BOGER:
Q Detective Harris, do you have any
recollection of learning that Mr. Evans at any
time was a good informant, that he had provided
information to other authorities?
A Not to my knowledge. I think 1
answered that yesterday. No, sir, not to my
knowledge. I haven't had any previous dealing
with him and I haven't heard anything about it,
80, like I said, that's my first meeting with
him,
Q But after that time? Did you find out
subsequently, either directly or through Mr.
Parker, that he had worked with the Georgia
Bureau of Investigation?
A No, sir. I 4on't recall hearing that.
Q Or that he had worked with the Atlanta
penal officlals to --
A 1 don't recall hearing that.
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Q Did you have any investigative follow-
up responsibilities with respect to Offie Evans?
A As far as the background on him?
Q That's right,
A No, sir, I d4idn't,
Q Who did?
A Other than ~- well, I would say other
than the fact that we talked about the name
Kennebrough. For some reason I went out there
and, you know, that could very well have been the
reason. I'm not sure. I don't recall any
specifics about dealing with Kennebrough.
Now, if I'm allowed to say this, {if
memory serves me correctly, the only thing I
remember Frank Kennebrough saying, and we're
talking about the same person, he at some point
had played football with Warren, with Mr.
McCleskey, and I think he made mention of the
fact that he was an excellent football player and
I think words to that effect. And I see
something on here that indicates that.
Q Did this document help refresh your
recollection about that point or did you remember
that =
A Just about -- just going from reading
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that, just about that right there, I see down
here at the bottom where it say he played
football, was an excellent running back.
Q Okay. 80 you're refreshed about him
talking about being a football player, but you
don't remember anything about Offie Evans?
A Anything being discussed about Offie
Evans, no, I really don't.
Q Because obviously you didn't go out to
talk about whether Warren would make the team in
person.
A No, I'm saying Kennebrough brought this
up.
Q Right.
A I don't recall -- I say it could have
been for that particular reason, but I just don't
really recall the specifics of the conversation.
Q Did you make any police report, a
supplementary homicide report of any sort about
your conversation with Mr. Kennebrough?
A No, because basically I didn't see
where it was really anything that would have any
bearing on anything at that time. As far as I
remember, now, Like I say, I don't have any
notes and I don't think it's anything contained
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in the folder that you have over -there.
Q Okay.
A The one that we had yesterday.
Q Did you -- after you met with Mr.
Kennebrough did you report back to anybody, did
yo report to Mr. Parker?
A No, not really. Not that I recall.
Q Were you simply acting as an
independent agent?
A I'm not -- no, I was working for the
police department, not acting as an independent
agent, but by the same token, I'm not under
constant supervision, you know.
Q No, I understand.
A And I can -- and there is a possibility
that I did talk Russ about going out and talking
to Mr, Kennebrough. I'm pretty sure that I did.
But I'm saying ~-- I can't give you a date and
time when I actually did that, but I'm pretty
sure I might have something to him about
Kennebrough.
Q You had indicated yesterday that by
this time the case had really passed into the
hands of the District Attorney. It has passed
the indictment stage and they had really taken
over the principal responsibilities; is that
correct?
A Well, it was a combined effort, I'll
put {it that way. We were still working on it
actively in the police department and the
District Attorney's office was also working on
it.
Q 80 you say your recollection now is
that it's likely, indeed you think you did talk
with Mr. Parker about going out to Mr.
Kennebrough?
A Well, we had constant communications
all the time.
Q Okay.
A S0 --
Q 50 if you learned anything from Mr.
Kennebrough when you were out there, it's likely
that you passed. that back to --
A Yes, right, Yes, sir.
Q —-— Mr. Parker?
A Right...
Q Do you know whether when you spoke with
him when you got back from speaking with Mr.
Kennebrough he made notes of your conversation?
You recall, do you remember, on July
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the 12th that you watched him take notes?
A lI saw him taking notes, right,
Q Did he take notes when you came back
from speaking with Mr. Kennebrough?
A I don't know whether I had actual
person-to-person contact with him or whether I
talked to him on the telephone. Like I say, I
couldn't tell you a specific date when I went
back and talked with him, if I talked to him at
all about this.
THE COURT: Is there any possibility
he went with you?
THE WITNESS: Sir?
THE COURT: Is there any possibility
he went with you?
THE WITNESS: No, sir. No, sir. No,
sir. Huh~-uh.
BY MR. BOGER:
Q Now, through your conversation with Mr.
Kennebrough, though, did you obtain any judgment
about whether Mr, Evans was reliable as a
witness?
A Well, like I stated before, you asked
me whether or not I went out there to discuss
Offie Evans. I went out there for some reason.
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That could have very well been the reason.
Now, are you asking me whether or not
he knew Offie Evans or what?
Q I'm asking you whether you obtained any
information from Mr. Kennebrough that made you
pelieve that Mr. Evans was a reliable witness?
A Not really, because I just don't recall
it, Buh-uh. 1 don't recall him telling me
anything that -- I don't recall him telling me
anything that would make me think that -- I don't
recall him telling me anything about him.
Q But you weren't sure after you talked
with him whether he might be an unreliable
witness?
A No.
Q Okay. One final set of questions.
You said that you didn't make any
follow-up visits to Mr. Evans between July the
12th and August the 1st; 19787?
A Not that 1 can recall, no, sir.
Q And yet in the intervening period you
obviously knew, as did the other folks who
interviewed him, that he was sitting there in the
cell right next to Warren McCleskey; that's
correct?
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A I would think so, yes, -sir.
Q Yeah. When you finished your initial
conversation with him, you must have realized
that he was the direct witness who would say that
McCleskey had confessed to the shooting; is that
right?
A Well, overheard a conversation, yeah,
Q That's right,
A Between Warren McCleskey and and
Bernard Dupree, yeah. Yes, sir.
Q Did you have any other witnesses like
that, except perhaps co-defendant, Mr. Wright?
A None that I met, no.
Q Okay. At the time of the trial nobody
else came forward that said McCleskey's confessed
to this crime?
A Not to my knowledge,
Q 50 Mr. Evans was plainly an important
witness on the question of who was the trigger
person, at least?
A What he heard, right,
Q Right. So here you have an important
witness sitting in the Fulton County Jail ~--
A Right.
Q ~- why didn't you immediately take down
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a statement from him? I1£f I were .a lawyer 1 ~-
A I think that would be a problem with
the logistics at that point. We didn't have any
-- we didn't have a typist. Like I say, we
talked to him at the Fulton County Jail in
Captain Worthy's office. Captain Worthy made hie
office available to us and Mr. Parker, like I
indicated before, took down the notes.
Q Oh, I understand that, but you've told
us that you all were working night and day and at
one point you said --
A I'm not saying we worked around the
clock. I'm saying several ~- you had several
investigators working on it and different shifts.
We work three shifts,
Q And you finally came up with a person
who can say McCleskey's confessed the shooting to
me, and you go from July the 10th until August
the ist -~-
A When I say =--
Q -~- and nobody can get back out to take
down a statement?
MS. WESTMORELAND: l believe it's July
the lath.
BY MR. BOGER:
Q Excuse me, July the 12th.
A Un~-hub, July 12th. Like I still say,
it must have been a problem with logistics and
I'm saying Mr. Parker had his notes. He is the
one that was going to prosecute the case.
Q You were pretty confident, though, that
during that period between July the 12th and
August the 1st that Mr. Evans wasn't going to
change his story, weren't you?
A That I was confident? No, I was not
confident, I wouldn't believe it until I saw it
on paper, and that way I know for a fact that
it's there, we have it on paper. But I mean, you
know, people have a right to change their ming
and when you're talking about a situation like
this, people do change their minds. People lie,
I understand that.
Q But when you have an important -- like
a key witness in a cop killing such as this --
A Yes, sir.
Q -=- dO you normally wait a month or two
before going back to get the statement?
A Sir, we're talking about circumstances.
I don't know, just certain circumstances did not
dictate at that particular time that we do it,
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guess, But like I still say, bear in mind that
you got an effort being -- a combined effort
between the City of Atlanta Police Department and
the Fulton County District Attorney's office, and
the Assistant D.A. was there present when the
first interview with Evans was conducted. That's
all I can tell you about it.
Q Did Mr. Evans make any statements to
you during that July 12th meeting that gave you a
sense that he would stick by his story?
A Well, I guess we had to go on the
assumption, you assume he would.
Q All right. Did you ask him at that
time, if we come back and ask for a statement,
will you give us a statement in writing?
A I believe that was asked. I believe
that would be safe to say. I can't say
specifically I say it but to me it's common sense
to ask a question like this.
THE COURT: Well, that's beside the
point. Let's move on ahead.
BY MR. BOGER:
Q And you told him obviously to go back
to the cell and continue his conversations with
Mr. McCleskey?
M5. WESTMORELAND: Your Honor, that
question states facts that are not in
evidence before this Court and certainly
does not reflect the testimony that's been
given by this witness.
MR. BOGER: I didn't say he'd
previously testified to that, Your Honor.
THE COURT: Overrule the objection.
BY MR. BOGER:
Q You told Mr. McCleskey -- Mr. Evans,
Obviously, to go back to the cell, keep his eyes
and ears open for whatever Mr. McCleskey might
tell him?
A You're asking me did I tell him that?
No. I didn't hear anybody else tell him to go
back and keep his eyes and ears open.
Q Did you tell him not to continue
conversations with Mr. McCleskey?
A I didn't make any suggestion to him at
all,
Q Did he ask you what he should do?
A He did not ask me, as far as I recall,
what he should do.
Q Did you express appreciation for the
evidence that he had already brought to you?
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A Did I say thank you? Yes.
Q Yes.
A 1 diag.
Q Did you tell him you appreciated
getting that information, it would help the case?
A Yes, 8ir.
Q Okay. Did you make clear to him that
his evidence was an important part of the case?
A I didn't go into detail like you're
saying right now. I was not as, maybe as
eloquent as you are, lI said thank you, like I
said before, thank you for your information.
Q But it was plain between Mr, Evans
and --
A That we appreciated his help, yes.
Q Okay. And it was plain that you were
going to be back on some occasion to take the
statement or at least would have him in the
Atlanta Police Department to take the statement?
MS. WESTMORELAND: Your Honor, I'm
going to have to object. Mr. Boger has
asked the same question numerous times,
simply phrased it in different ways, and
I believe Detective Harris has answered --
THE COURT: Sustain the objection to
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asked and answered, =
Mr. Booger, where we are right now is
that Mr. Parker's contemporaneous notes
show that the piece of evidence that you
are challenging was in the hands of the
police officers on the 12th. That's what
you've got to deal with,
MR. BOGER: I'm aware of that, Your
Honor. What I'm trying to do is to
establish a different but related point.
THE COURT: If he came back on August
the lst and told him the same thing all
over again and McCleskey had said it again,
all over again, and if they had put him
back in the cell as a snitch after the
12th, it don't make any difference because
I can suppress that evidence and the
evidence is still in the hands of the
District Attorney.
Do you see what I'm saying? I mean
that's the problem. You're a smart lawyer,
I Know that, but let's don't take up
precious time with things that are really
off the mark.
The problem you've got, let's face it,
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here right now, is Ms, Westmoreland has let
you go into the ab initio issue and then
you've got to deal with that July the 12th
memorandum, What happened after that --
I mean even 1f they violated -- where the
evidence is right now it don't matter if
they violated it after July the 12th.
MR. BOGER: All right, Your Honor.
I don't have any further questions
of this witness.
Oh, forgive me,
(Whereupon, a discussion ensued off
the record.)
MR. BOGER: One final question.
BY MR. BOGER:
Q Do you know of an F.B.I. agent named
Rick Kelsey or Dick Kelsey?
THE COURT: David Kelsey.
BY MR. BOGER:
Q Excuse me, David Kelsey?
A No, sir,
Q Did you have any contact with him in
1978?
A Not that I recall, huh-uh.
THE COURT: About your build and as
I remember very blond-headed with receding
hair?
THE WITNESS: No, Sir.
BY MR. BOGER:
Q Do you know any F.B.I. agent named Rick
Barry?
A I've met him. I've met him.
Q At what time?
A Oh, God, years ago. I'm saying ~- I'm
saying when I first met Rick -- I don't him -- I
called him Rick because he used to come to the
station all the time, it must have been around
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Q Did you have any contact with Agent
Barry in this case?
A Not that I can recall.
Q Did you ever speak with him about Offie
Evans?
A Not that I can recall.
Q Why was Mr. Barry's card in your file
then in this case that you let us have --
A Well, I mean, let's go back to what 1I
was saying before, Several pecple worked on it
other than me. Couldn't somebody else have put
it in there besides me?
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Q But your testimony 18 that you didn't
put =—-=-
A I'm saying that I don't recall putting
it in there, I don't recall discussing Offie
Evans with Rick Barry, no, sir.
Q Did you discuss the McCleskey case
generally with Rick Barry?
A I don't recall, sir. I don't believe 1
did. Me personally, I don't believe I did.
MR. BOGER: Okay. No further questions
of this witness.
THE COURT: All right. Thank you, sir.
Are you going to need to cross him?
MS. WESTMORELAND: Your Honor, we're
not going to have any questions of
Detective Harris.
THE COURT: All right, You're excused.
Thank you, sir.
(Whereupon, the witness was excused
from the witness stand.)
TBE COURT: Call your next witness.
I believe this lady is trying to get
your attention, Mr. Stroup.
MR, STROUP: Your Bonor, I'm sorry.
(Whereupon, a discussion ensued off
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the record.)
MR. STROUP: All rignt. We'll call
Detective Jowers,
THE COURT: All zight. Have your
Assistants arrived?
MR. STROUP: I'm not aware that they
have.
Whereupon,
OFFICER W., K. JOWERS,
having been first duly sworn, was examined and
testified as follows:
THE CLERK: Have a seat and state your
full name.
THE WITNESS: My name is Officer W. K.
Jowers.
EXAMINATION
BY MR. STROUP:
Q Officer Jowers, my name is Bob Stroup.
We haven't had a chance to talk previously. I'm
here representing Warren McCleskey.
You're presently employed with the
Atlanta Bureau of Police Services?
A Yes, sir,
Q And how long have you been employed
there?
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A I was employed in 1971+ 1 resigned in
1983. I returned in 1986.
Q During the 1971 through 1983 time
period did you have a period of time when you
were employed in a detective capacity?
A Yes, s8ir.
Q And for how long were you a detective
with the Atlanta Bureau?
A From 1975 to 1983.
Q Okay. Did you also, while you were a
detective with the Bureau, have occasion to be
involved in the investigation of the Frank
S8chlatt murder and Dixie Furniture Store robbery?
A 1-44,
Q All right. What was your role in that
investigation?
A I was one of the investigators that was
responsible for compiling the information,
putting some folders together, and conducting the
investigation.
Q All right. And were you -- of the
investigators, did anyone have any primary
responsibility on this investigation?
A We have what -- a case can be assigned
to an investigator, and it's assigned to him, but
other investigators get involved with the case,
yes. There are other investigators that do get
involved.
Q All rignt, And is it -- then if an
investigation is assigned to a particular
detective, then is he the one who has the primary
responsibility?
A Not necessarily. Usually the officer,
the detective who responds to the call is usually
the first officer on the scene, is respongible.
I believe Detective Walker was actually the
investigator that received the initial call.
However, as when I arrived I became involved and
I started taking over certain responsibilities.
MS. WESTMORELAND: Your Honor, I've
been liberal with my objections to this
point, but I certainly don't see the
relevancy of this whole line of testimony
to the Massiah question, particularly the
limited Massiah question that the Court
has framed.
THE COURT: I was talking to Ms.
Hashami and I didn't hear the question,
MS. WESTMORELAND: We're just generally
dealing with the leadup investigation of the
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whole case and I don't see the relevancy to
that line of questioning.
MR. STROUP: Well, it is simply back-
ground information, Your Honor. I wanted
to just lay as background as to what his
involvement was and leading up to the --
just where we're going.
THE COURT: 1£ you do it quickly, I
don't mind.
MR. STROUP: Yeah, I --
THE COURT: As I tried to emphasize
to you yesterday on a second Federal habeas
you're supposed to be presenting claims
that you can prove, not conducting discovery
in the presence of the Court on background
matters, I don't mind letting you prove
what you can prove but --
MR. STROUP: Right. I can appreciate
that, Your Honor, though I don't need to
state also -- I mean everyone is aware of
the time frame that we're working under
and --
THE COURT: 1 d4on't mind if you put a
picture in there but I don't think you've
got to go through the =--
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MR. STROUP: I intend it to be a very
brief introduction, Your Bonor.
THE COURT: All right.
MR. STROUP: I'll move as rapidly as
possible and I don't think it will be
unnecessary time involved.
BY MR. STROUP:
Q So you were one of the investigators
involved?
A Yes, sir.
Q And you did have a substantial role in
the investigation; isn't that fair to say?
A Yes, sir.
Q All right, And even though there were
a number of other investigators involved, is it
fair to say that you were generally aware of what
was going on with the investigation?
A Yes, sir. At some time the information
is made record and then I'm made aware of it.
But I -- an investigation of the type that we
were conducting there, we had many people
involved. So we can only come back and try to
work with -- you know, I can't just know what
everybody's doing because I'm not a supervisor.
I had responsibility that I was told to take care
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of. i
Q Well, a4)l right, You wouldn't
necessarily have known at the minute every
development as it was taking place, but generally
you were familiar with developments, the major
developments in the case?
A At some point, yes. In other to keep
the -- yes.
Q All right, Did you, during the course
of the investigation, have any contacts with a
gentleman known as Offie Gene Evans?
A NO, Sir.
Q All right, Did you -- let me just make
sure -- ask that question a different way just to
make sure we're clear.
Did you ever talk to Offie Evans during
the course of the Frank Schlatt/Dixie Furniture
8tore criminal investigation?
A TO the best of my knowledge, no, sir.
I couldn't describe him if he walked in here
today.
Q All: right. Can you state unequivocally
that you never spoke with him?
A To the best of my knowledge ~--
MS. WESTMORELAND: Your Honor, that
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same question has been asked for the third
time now and he has answered the same
question, he said no.
THE COURT: The last question got a
response of I couldn't identify him, which
doesn't leave out telephone. I'al let him
ask one more time.
BY MR. STROUP:
Q All right. What I wanted to explore
with you was your response, whether you could
just say no. You said to the best of your
knowledge and he couldn't come in.
Did you, during the course of the
investigation in 1978 regarding the Dixie
Furniture Store robbery, the Officer Schlatt
murder case, have a conversation with Offie Gene
Evans?
A To the best of my knowledge, the answer
is no, I don't recall ever talking to Mr. Evans.
Q All right.
THE COURT: Let me interrupt you. Your
assistants have arrived, Do you wish to
recess so that both of you can confer or --
MR. STROUP: If we could for five
minutes, I did sketch out a couple of
things that I had had in mind.
THE COURT: Come in if you will, Ms,
Hashami.
You all may not have had -- this is
Ms. Hashami, I can render to you as being
a very fine trial counsel. This is your
client, Mr. Warren McCleskey. I have
appointed you for the day to assist lead
counsel in this case.
Callie -- I can't remember your last
name.
MS. JONES: Jones.
THE COURT: This is Ms. Callie Jones,
who is an investigator, and I've known her
for a long time and she's very efficient.
I'm going to take about a five or
ten-minute recess. Let me know as quickly
as we can resume, all right?
MR. BTROUP:; Thank you, Your Honor.
(Whereupon, a recess was taken.)
MR. STROUP: Yes, Your Honor, just to
advise the Court, in light of the produc-
tion of the F.B.I. file we are making some
efforts to call a couple of other witnesses
and as to the F.B.I. file itself we have
identified a number of documents that Ms.
Hunt i8 now copying and will return back
here with them, As I understand it we'll
be needing to have a Privacy Act order
entered at some point regarding the
release of those files.
THE COURT: All right,
BY MR. STROUP:
Q Detective Jowers, I believe before the
interruption I had asked you regarding your
contacts with Offie Gene Evans in July of 1978
regarding the investigation; had I not?
A Yes, sir.
Q All right, And we had established that
you had no recollection of any such contacts.
All right, How about prior to July of
1978, during the course of your work with the
Atlanta Police Bureau? Had you ever come in
contact with Offie Gene Evans?
A No, sir.
MS, WESTMORELAND: Your Honor, I object
to the relevancy of that question. We're
getting back to the ab initio aspects of
this claim again and I don't think it's
relevant to the consideration of the issue
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before the Court. >
THE COURT: You've put me in a bad
position now, Ms. Westmoreland. You hadn't
objected to the ab initio questions they've
been asking all along and 1 would hate to
send the record through half a load.
I don't want you to spend too much
time on it, but I will let you ask the
most pertinent questions.
MR. STROUP; Thank you, Your Honor.
BY MR. STROUP:
Q And I think you did indicate in
response to that question that no, you had no
prior contacts,
A Ro, sir.
Q All right. During the investigation of
this case that we've been talking about that
we're here related to, did you have any contacts
yourself with any F.B.I1. agents?
A On this particular case, no. I don't
recall talking to any F.B.l1. agents.
Q All right. Let me just mention a
couple of names to see if that would in any way
refresh your recollection. An Agent Kelsey?
A 8ir, I don't remember any ~-- the only
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case ~- the only time that I can - recall that I've
ever worked with the F.B.I. was on the murdered
and missing kids. I don't recall working with
any F.B.I. agents on this case.
Q Okay. And when you say you didn't work
with them, let me again just make sure I
understand. Not only did you not work with them,
you have no recollection of any conversations
with them at all about this matter?
A NO, 8ir, I don't.
Q Okay. And how about any conversations
with any -- excuse me -- personnel at an Atlanta
Halfway House? A Mr. Kennebrough? Do you recall
any conversations with a Mr. Kennebrough?
A No, Sir, it doesn't ring a bell.
Q Bow about a Lieutenant Grouse? Does
the name Lieutenant Grouse mean anything to you?
A No, sir, the name doesn't,
Q And how about a Don Whitmire?
A No, sir.
Q Okay.
THE COURT: As far as we know, both
these people are employed at U.S8.P. Atlanta,
United States Penitentiary, Atlanta. Do you
have any recollection of any contacts with
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any personnel at the United States
Penitentiary or at the Halfway House?
THE WITNESS: NO, .8iz.,
BY MR. STROUP:
Q And how about anyone with the Georgia
Buzean of Investigation? Do you recall any
conversations with any G.B.I. agents during the
course of this investigation?
A NO, Sir.
Q Allright. And how about, more
specifically, a Carl Neeley with the Georgia
Bureau of Investigation? Just to refresh your
recollection, if it does, do you recall =--
A No, sir.
Q -—- any conversations with him?
A No, sir.
MR. STROUP: If I might just confer
with counsel again for a moment.
(Whereupon, a discussion ensued Off
the record.)
MR. STROUP: I have nothing further,
Your Honor.
THE COURT: All right. Do you have any
questions of the witness or can I excuse
him.
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MS. WESTMORELAND: Your Honor, he may
be excused.
THE COURT: All right. Thank you, sir.
You're excused.
(Whereupon, the witness was excused
from the witness stand.)
THE COURT: Call your next witness.
MR. STROUP: We call Sergeant Charles
Jackson.
Whereupon,
SERGEANT CHARLES JACKSON,
having been first duly sworn, was examined and
testified as follows:
THE CLERK: Have a seat and state your
full name.
THE WITNESS: Charles Jackson. I'm a
sergeant with the Fuiton County Sheriff's
Department.
EXAMINATION
BY MR. STROUP:
Q All right, Mr. Jackson, have 1 spoken
with you over the course of the past couple of
days regarding a number of records that are or
once were in the possession of the Fulton County
Sheriff's Department regarding events at the
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Fulton County Jail?
A Yes, sir, you have,
Q All right. If I could direct your
attention to records of visitation at the Fulton
County Jail during 1978. At one point in time
records were kept of visitations to inmates at
the Fulton County Jail for 1978; is that correct?
A That's correct.
Q All right, Are those records still in
existence?
A No, sir, they're not.
Q All right. And can you state -- upon
what information do you base that conclusion?
A I have an indication in the record that
according to our records destruction service by
the county that those visitation records for 1978
were destroyed by the Records Center on June
29th, 1981.
Q All right, At one point in time, in
the past couple of days, there was some
indication that records might be in the
warehouse; 18 that correct?
A Yes, that's true, What we do 1is8 we
hold the current records in our current file at
the jail for a designated time according to the
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act, send those records then through the Record
Center whether they have the schedule of the
destruction date over there.
When we talked yesterday I was not able
to confirm that those records had, in fact, been
destroyed, only that they had been transferred
from our custody at the jail over to the Record
Center. And then I determined from the documen-
tation that I have available that they have been
destroyed.
Q All right. And did I also speak with
you regarding what records would be available
that would show upon what authority Offie Gene
Evans was held in Fulton County Jail in 19787?
A Yes, sir. That -- also those are
records that were subject to being purged at the
expiration of five years. Those records have
also been destroyed,
Q All zight, And do you have some
documentation that indicates that those records
also have been destroyed?
A I don't have documentation on the
inmate, the commitment card itself. According to
the schedule they were to have been destroyed on
January lst of '8B6, but I can't confirm firsthand
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that they were, in fact, destroyed. They were
scheduled January, '86.
Q What would you do to confirm that they
had been destroyed?
A Well, that information would have to
come from the supervisor of documents at our
Records Center, at the county Records Center.
Q Is it possible for you to do that for
us during the course of the day's business?
A It may be. I have a call in to the
Jail to my captain now to see if he can arrange
to have a copy of that information sent over, I
have not yet had word from them.
Q All zight, And could you then just
briefly describe what information you do have
currently available to you regarding the
incarceration of Offie Gene Evans in July of
19787
A For those years officially we have
nothing.
THE COURT: You've got a file folder
in your hand. What 18 {t?
THE WITNESS: This 18 the copy, copies
of the records and the destruction --
actually they're affidavits that show which
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records were destroyed and when,
MR. STROUP: That's all I have, Your
Honor.
THE COURT: All right. Ms. Hunt
showed me a Marshall's document. You may
need to show that to this witness. I
don't suggest that it is, but before 1
excuse him.
MR. STROUP: I don't believe we have
those copies back. It might be if he --
I expect those copies back shortly.
THE COURT: 8tand by, Sergeant Jackson
before I excuse you. There's one document
we may ask you to look at.
(Whereupon, the witness was excused
from the witness stand.)
THE COURT: All right. Call your next
witness, please, sir.
MR. BOGER: Sidney Dorsey, Detective
Dorsey.
Whereupon,
- OFFICER SIDNEY DORSEY,
having been first duly sworn, was examined and
testified as follows:
THE CLERK: Have a seat, please, sir,
pitt
and state your full name.
THE WITNESS: Sidney Dorsey.
EXAMINATION
BY MR. BOGER:
Q Officer Dorsey, what's your current
employment?
A I'm assigned to Zone 2 on the day
watch,
Q That's with the Atlanta Bureau of
Police Services?
A That's correct.
Q And in 1978 what was your responsi-
bility, what were your duties?
A I was a detective in Homicide.
Q Okay. When did you first become
involved in the case of Warren McCleskey, the
investigation into the death of Officer Schlatt?
A I think it was the following Monday.
recall I was working a part-time job in the Five
Points area, and the reason I remember, I
remember the cars going past me rather fast on
that particular day, and I think being as I was
Off on Saturdays and Sundays, apparently I
started my part of the investigation on that
following Monday.
I
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Q And the Pive Point area is near the
Dixie Furniture Store where the crime took place?
A A few miles east of it,
Q Who was your partner at that time?
A Best that I can recall it may have been
Harris. I don't remember exactly.
Q 1 believe Mr. Harris gave testimony
that his partner at the time had been Mr. Jowers.
A It may have been. We get together
occasionally.
Q What was the relationship among the
three of you with respect to this investigation?
Who was in charge?
A Well, Jowers was the lead investigator
primarily because the case was assigned to him.
Q All right, And 80 you took orders in a
sense from Jowers, or did you work independently?
A No, I didn't take orders from Jowers.
We had a very investigative and cooperative
relationship and in that light we shared
information and we worked together. I think
Lieutenant Perry, W. K. Perry, was in charge of
the Homicide Squad, and at that time if there
were any orders given they came directly from
him. But generally we all sort of worked on our
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own. There was very seldom, if any, orders ever
given.
Q 80 it was a sense that you might go
places that they wouldn't go, or you'd all go
together as a team or --
A That's right, That's right. And if we
found it necessary to bring someone along
concerning an investigative matter, then we'd
team up. Sometimes one at a time, sometimes
three at a time, depending on what the subject
matter may have been.
Q And you all must have talked to dozens
of witnesses in this case; is that right?
A Probably more than that.
Q Okay. Did you talk to any of them by
yourself, you know, without other officers
present?
A l don't recall, 1 don't recall, I
probably did.
Q Okay. There was a person by the name
of Offie Evans who ultimately you came in contact
with; is that correct?
A I know Offie Evans.
Q Did you know him prior to this case?
A I think S80.
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Q And what was the basis-of that, from
the street or --
A Again, I don't remember why, for what
reason 1 was investigating something, but it
seems that sometime, I guess prior to 1978, I had
an occasion to go to the Federal institution on
Boulevard and I went to a Balfway House. Now, I
don't remember who was with me. I think I was
accompanied by another detective. I was thinking
it was Harris but I don't know who it was, I
don't recall.
I don't remember why I went there to
investigate or what the investigative inquiry was
about, but I think it was that time that I first
met Offie Evans. And I didn't go there
specifically to meet him. I think I must have
gone in search of something or in search of
someone or to get some information and based on
my -- the little time that 1 was there, I think
it was at that time that I met him for the first
time.
Q And was he at that time incarcerated or
at least housed in that institution?
A I think so, yes.
Q And was this the Federal C.T.P.
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facility, is that what it was called?
A I don't know what it was called at the
time. I think his -- I think where he was housed
as a Halfway House and I think the Federal
institution is right next door.
Q Okay And this was, what, in the spring
of 19787?
A I don't remember whether it was spring,
winter, or anything. I just remember it was -- I
think that was the first time I ever met him. I
remember seeing him again, and this time I think
he was out and he was at some woman's house and I
think he must have called me there. don't
remember how, unless I just happened to have gone
there and he was there, which surprised me,
someplace around Mount Zion or Poole Creek Road,
I don't remember exactly where the location was.
I don't remember who the woman was and I don't
remember why I was there, except I remember
seeing him there and we talked briefly.
And then I think on another occasion
while he was again incarcerated, I saw him again
and just ran into him down at the City Court and
he was there again having recently been
incarcerated and I spoke to him.
And then on another occasion or two he
may have called me when he was incarcerated to
come to see him or something, but I don't
remember why.
Q So you had a kind of acquaintance --
not friendship exactly, but a cordial
relationship?
A Yeah, I knew him and -- I knew him and
he was the kind of person that if he called me
I'd go see him.
Q Right, This was all -- these
encounters you're describing all were prior to
the Officer Schlatt/McCleskey case; is that
right?
A I can't honestly say whether all of
these encounters were before. I'm thinking that
== I'm thinking that the first time I met him
initially was before the McCleskey matter, the
Schlatt matter. I'm thinking that some of the
matters, some Of the times that I talked to him
and saw him came after.
Q All right, Now, when you first met him
at this Halfway House, were you in Homicide then
or were -—-
A Yes. I'm sure of that,
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Q Would this have been a homicide
investigation or it might have been a drug
investigation?
A It was probably a homicide
investigation and I don't remember which one,
because that was all I was doing at the time.
Q Did you interview him when you went out
there, to your best recollection?
A I probably did talk to him and he may
have offered me some information, but I honestly
don't recall what case 1 was working, I don't
remember what he told me, I don't remember what I
had on, I don't remember what he had on. 1 don't
remember anything.
Q But he was the person over the years
that would provide occasionally useful
information to the department?
A He has -- he has -- he has on occasions
that I can recall been cooperative with me.
Q Right, And so when he called you'd
come see him because it might well be the
prospect of some information?
A Yeah, yeah. I'd see him or hear from
him £rom time to time.
Q Now, do you have any personal notes
that you keep about what you do everyday? Any
diary or log or that sort of thing?
A Not now.
Q When you say not now, did you --
A What 1 mean 18 I don't -- I don't have
records, those kinds of records, that 1 may have
had nine or ten years ago. I don't have those.
Q You've looked in response to
subpoenaes?
A Yes, because, you know, since '78 I've
gone through three or four or five different
assignments and I just don't have those any more.
Q Do you have any official files, apart
from the files that the department itself keeps?
A No, Bir.
Q Okay. Have you ever been able to use
Mr. Evans as a witness in a case before? I mean,
if you've gotten information from him, did you
ever actually -- gotten information that wound up
with his testifying in a case?
A No, sir.
Q Okay. But he was -- does the
department keep a list of people who are useful
informants or is it more a question of the
detectives know from their experience who it is
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they can count on in those situations?
A It's generally a detective's individual
relationship with the parties. It's nothing
that's shared Dblanketly throughout the whole
department, There's no file drawer that says
here's the case of a guy -- here are a list of
people that you can contact if you have an
incident out here, no. It's generally the
individual policeman's or detective's own plot.
Q 80 you build up a kind of rapport --
A Rapport with your own people.
(Whereupon, a discussion ensued off
the record.)
THE COURT: Okay. I'm going to have
to suspend in a few minutes. You pick a
break time, I've got a sentencing. You
pick a good time to break.
MR. BOGER: This i8 fine, Your Honor,
to suit your convenience,
THE COURT: All right, We'll recess
for five minutes.
(Whereupon, a recess was taken.)
BY MR. BOGER:
Q Offie Evans, during the spring of 1978
was in a Halfway House in Atlanta.
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A Yes, sir.
Q Serving out the last portion of a
sentence for forgery that had been imposed on him
in 19173. And the information that he provided at
trial was that he was, in part, working with some
agents on a drug case at the same time. When he
was out during the day he was involved in those
activities.
Did you know about his situation in the
spring of 19787
A NO, sir, 1 didn't.
Q Had you been aware that he had served
as an informer and assistant to other agents of
other State and Federal Government in addition to
your relationship with him?
A I was not aware of that.
Q Okay. At some point, apparently, Mr.
Evans walked away from the Halfway House and a
Federal escape warrant went out for him and he
wag at some point in early July apparently
brought back into custody, he was arrested.
THE COURT: Excuse me. You said a
Federal state warrant. I don't think
there is such a thing.
MR. BOGER: I meant to say a Federal
escape warrant, -
THE COURT: To the best of my knowl-
edge it was a Federal warrant.
MR. BOGER: Federal warrant for escape
I meant, Your Honor, excuse me.
THE COURT: Oh, Federal escape. I
misunderstood you,
MR. BOUGER: I may have misspoken.
BY MR. BOGER:
Q You said in the past on occasion he had
given you a call. Did he call you once he was
taken back into custody?
A I don't think I knew that he was ever
wanted to anything or had ever escaped. You
know, what you're telling me now is very much new
to me.
Q Okay. But he found himself in the
Fulton County Jail in July of 1978. Did you go
see him at any point in July?
A Counselor, I do not recall going to see
Offie Evans at the Fulton County Jail during that
time or any time.
Q DO you remember any meeting that might
have been held between Mr. Evans and yourself and
Detective Harris and Russell Parker at the jail?
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A Counselor, in all honesty, I do not.
Q Well, let me show you a document and
see if it will help refresh your recollection.
This is a copy of the Plaintiff's Exhibit 9 which
is in evidence. Do you recognize that document?
A I don't recognize this document as
being my particular document. It appears to be
someone's notes but they certainly aren't mine.
Q Let me ask you to examine it briefly
and see if the contents of the documents at all
refresh your recollection about a meeting that
might have been held with Offie Evans at the
Fulton County Jail.
Let me actually give you the original
of which that's a copy, if you don't mind,
Officer. Let me direct your attention to the
third or rather the fourth page of the little
notes at the beginning, the little white notes
that are appended by staple to the eight-and-a-
half by thirteen legal page.
A Fourth. page?
Q That's right. It says notes at the top
in a box.
A Al) right.
Q Let me direct your attention to the
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bottom of that. It says interview by Detective
8idney Dorsey, Detective Harris, R. J. Park and
Deputy C. K. Hamilton, DO you remember that
interview?
- A 1 don't.
Q No knowledge or recollection at all?
A I'm sorry. I'm sorry.
Q Okay. Now, look over the notes. Those
notes purported to be notes that Mr. Parker took
at a meeting which ended -- 100k over the rest of
the notes and see if that jogs your recollection.
(Brief pause.)
A (Continuing) All right, As I sat
around all day yesterday, last night, this
morning and today and I still don't recall.
Q Well, you testified you knew Offie
Evans, you knew him beforehand and you had,
really, you had kind of worked with him on some
Other matters. And at least with respect to the
Warren McCleskey case you don't remember this
particular meeting. Now, I focused in on one
meeting.
A I'm not suggesting that the meeting
didn't take place, nor am I suggesting that I
wasn't there. I just don't recall being there
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and for some reason no one else remembers my
being there either,
Q How do you know that?
A I had spoken to Russ Parker a couple of
days ago and -- you know, just in talking to him,
I don't recall, you know, being there.
Q Okay. So you and Mr, Parker had talked
over this matter at some point prior to the
testimony here?
A Yes.
Q Well, let me ask you this: You do
recall, don't you, meeting with Mr. Evans at some
point during the investigation of this case?
A During the investigation of this case?
Q This case,
A I've talked to Offie Evans and it's
been a long time since I've seen him anyway, but
I've talked to him over the years during certain
cases, I don't know on what case I spoke to him
about and I certainly don't recall whether it was
this particular case. 1 probably 4id4, but I
don't remember. I probably did, but I honestly
don't remember.
Q If you had some documents or notes that
might help you refresh your recollection?
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A I1f 1 had my own notes, if I had my own
documents, if there was something in the
supplementaries that was brought to you on
yesterday, that is the police documents, that
there was some documentation in the D.A.'s file
that I could look at that would say that that's
something that I had did, that spoke to that,
then yes, that might help me. But based on what
1 -- based on my own recollection, I don't recall
any of that.
Q Now, other folks on the force -- you
said you worked in a way independently and yet
you collaborated with each other. Other officers
on the force must have known that you had this
kind of relationship with Offie Evans, that you'd
known him from the past.
A I don't think so.
Q If they had told you we've got a fellow
that we've heard may have some information, his
name is Offie Evans, you would have volunteered
at that point, well, I know Evans, I've talked to
Bvans before.
A Probably.
Q So if they had given you the
information that they knew that Evans was around,
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you would have conveyed back what you knew of
Evans.
A I may have {if they had wanted -- if
they had asked me whether or not I felt that he
was credible or not or whether he was reliable, I
would give them my opinion.
Q Your opinion was that he was reliable?
A I would think -- I don't recall him
telling me anything that I found to be -- not to
be true. And I don't remember anything right now
that he has told me except that I don't -- based
on my gut feeling concerning what our
relationship was, I don't -- 1 never remember him
having told me anything that I found later not to
be true.
Q All right. Some people you find are
pretty unreliable informants and --
A Yeah, and 80 -- and if that's the case
then if they -- if they -- generally you
disassociate yourself with them one way or the
Other because otherwise it's a waste of time.
Q Right, They're not providing
information that really helps you get to the
bottom of things. You know, Mr. Evans testified
in this case eventually and talked about -- were
you present at that trial? Were you called as a
witness, do you remember?
A No.
Q Okay. Mr. Evans also testified in
state habeas corpus proceedings. Did you attend
that proceedings?
A No.
Q During that proceeding Mr. Evans spoke
about conversations that he had had with you at
the time that the investigation was going on.
And he mentioned a particular conversation, let
me refer you to it, Page 122 of the State habeas
corpus transcript. I know you said you weren't
here and so you didn't have this information.
Let me show you what Mr. Evans said.
If you could read just that into the
record from Mr. Stroup starts asking.
M8. WESTMORELAND: Your Honor, for
the record purposes at this time I would
object to any intent to reopen any Giglio
issue that might be involved.
THE COURT: You're giving it to him
to refresh his recollection --
MSE. WESTMORELAND: If that's the
purpose of it I don't have an objection,
but I do object to reopening the Giglio
claim.
THE COURT: I would obviously sustain
that objection but beyond that it's
unnecessary for him to read it into the
record to refresh his recollection.
MR, BOUGER: Well, Your Honor, of
course our position, and we respect Your
Honor 's ruling on it, is the Giglio matter
could be reopened under normal use if the
kind of principles of newly developed
evidence is present.
THE COURT: I'm with you on that to
begin with and obviously was favorably
disposed and I have given that issue every
ounce of favorable consideration that 1I
can give you and I can't find any way you
can do it.
MR. BOGER: I understand Your Honor's
ruling but I do think this bears on
relationships that --
THE COURT: Because it is an instance
of Office Evans testifying that he talked
with Dorsey I think he ought to be able to
look at it and see 1f that refreshes his
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recollection as to any conversation.
MR. BOGER: That's my purpose, Your
Honor.
THE COURT: To that extent you
certainly may show it to him and he can
read it and state whether his recollection
is refreshed.
BY MR. BOGER:
Q Do you recall that conversation?
A NO, I @éon’'t.,
Q Do you have any reason to doubt the
conversation took place that Mr. Evans testified
under oath at the trial that he had had a meeting
with you at which a discussion of that sort took
place?
A I do not recall this meeting nor do 1
-=- nor can l understand why I would make him such
a promise.
Q But you don't have any recollection of
it at this time is what you're saying?
A NO, 1 don't.
Q Okay. If Mr. Evans of course was
testifying at that point back in 1981 we're here
5ix years later in 1987, Your testimony is, 1
take it from what you previously said, that it's
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possible that you did meet with Mr. Evans on some
occasion during the investigation of this case.
A Yes, this is very possible.
Q And that it in that sense remembrance
of Mr. Evans could reflect that meeting that you
had with him at that time?
A It could be.
Q Okay. Do you ~-- you also testified, I
believe, that you don't recall meeting Mr. Evans
at any time at the jail, because I had said on
July the 12th at the jail.
Did you meet with him anywhere, at the
Atlanta Bureau of Police Services offices or the
Fulton County Courthouse?
A Iiw=-n0,.1 QAon't recall, Am I assuming
he was in custody?
Q Either in custody on the street in the
spring or the summer of 19787?
A No, I don't remember ever meeting him
out. I think the only time I remember seeing
Offie Evans outside of being in custody was at a
woman's house, I think, somewhere around Mount
Zion Road or Poole Creek area, That's the only
time I ever remember seeing him out. I think
every other time I've ever heard mention of Offie
Evans he's always been in custody someplace.
Q Let me ask you one question about
procedure, and I simply don't know the answer to
this. When you go to see an inmate say of the
jail, Fulton County Jail, you're a police
officer, do you have to sign in and sign out?
A Yes.
Q S50 you make a contemporary record at
that point.
A That's correct.
Q SO If we were able to obtain those
records it would conceivably, as you indicated
earlier, help refresh your recollection about
when you had spoken with somebody.
A Yeah.
Q Do you have to write the name of the
inmate at that time or do you simply write
Officer ~--
A NO, I think we have to write the name
of the party that we're to visit.
Q Okay. . Does {t ever happen that you go
to visit one person and you wind up, because you
know several people in the jail, kind of walking
from cell tO cell?
A I think it's happened. I think I've
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been upstairs and asked the deputy {if he would
get some other guy. S01 seem to remember having
done that before.
Q Okay. Instead of going three or floors
back --
| A Rather than come right on back
downstairs I stay up and ask them to let me see
someone else,
MR. BOGER: Excuse me one second,
Judge.
(Whereupon, a discussion ensued off
the record.)
THE COURT: Let me ask you: At any
time did you ever =-- let me give you
context, One of the notes I seen which
isn't in evidence, somebody characterized
Offie Evans as being a professional snitch
and from what you've testified I gather
‘you thought of him normally that he usually
was informing when he was in trouble, from
what you've told me.
Did there come a time when you did
anything, directly or indirectly, to prompt
him to obtain evidence from McCleskey while
they were in jail?
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THE WITNESS: NO, 8ir.,
THE COURT:
being done?
THE WITNESS:
of my own personal knowledge,
Know of anything like that
I don't know of anything
of anything.
heard of TBE COURT: Have you ever
anything like that --
THE WITNESS: No, sir.
THE COURT: -= In this case?
BY MR. BOGER:
Q Let me follow up on that,
testimony has
though. Your
also been you don't even remember
meeting with Offie Evans during this period at
all?
A No.
Q Okay.
been that
documents that reflect that?
A Yes,
MR. BOGER:
guestions of the witness.
THE COURT:
Mary Beth?
MS. WESTMORELAND:
Your Honor.
Just one
Even though it may well have
you did so because there are the
I don't have any further
Do you have anything,
moment,
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I don't have any questions, Your
Honor.
THE COURT: All right. You're excused.
THE WITNESS: Thank you.
(Whereupon, the witness was excused
from the witness stand.)
THE COURT: Call your next witness.
MR. BOGER: Russell Parker, Your
Honor.
THE COURT: In view of all the blioody-
shirt rhetoric that's been associated with
this Court, I feel obliged to observe that
the three investigating officers are all
black,
MR. BOGER: I think most of our
evidence went to patterns of discrimina-
tion.
THE COURT: I don't know what your
evidence was but I have certainly been
inundated by letters from people who are
being stirred up by somebody. I have read
an awful lot of the media coverage and an
awful of legal literature without going
any further, And any semblance between
what I heard in court and what has come in
- TO
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those -- there ain't none.
MR. BOGER: Well, I can assure you
that whatever -- that may be true with
respect to the legal literature, that
letter writing campaigns is a surprise to
me and indeed --
THE COURT: Well, I called somebody
with A.C.L.U. to tell them that the first
bunch of letters that I got I thought were
intended to try to influence my decision in
this case, so then I finally figured out
that a lot of the writers thought that I
had the power to commute Mr. McCleskey's
sentence, and I have since reserved those
letters and if you and Mr. Stroup can pick
them up and send them to the Parole Board
if you want to. They're the only people 1
would assume -- but as far as I am able
to ascertain it is Amnesty International
or somebody else sponsoring.
MR. BOGER: Insofar as anybody asks
us we tell them that writing Courts is
counter-productive, I don't know --
THE COURT: If I was the sentencing
judge it's not counter-productive and I
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would imagine that if they were well
advised that they sent letters ~-- some Of
the letters that I received have been very
heartfelt, very misinformed but very heart-
felt and sincere nevertheless. And you
know, they're the sort of things that
ought to go to the Parole Board because
they're the folks that have that got
that discretionary power in this thing.
All right, Mr. Parker.
Whereupon,
RUSSELL PARKER,
having been previously duly sworn, was examined
and testified as follows:
EXAMINATION
BY MR. BOGER:
Q Mr. Parker, I want to ask you a few
questions about the documents you provided us
with yesterday. This, I think is Petitioner's
Exhibit 8,
THE COURT: That's a four-page --
that's not the one you gave me this
morning.
BY MR. BOGER:
Q Forgive me, Petitioner's 9. I'm
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showing you the original of which the substi-
tuted copy is the one marked for court use.
Let me direct your attention to the
next to the last page of that document. You
testified for us yesterday that you were chasing
down some of the voluminous amounts of
information that Mr. Evans was providing you on
the 12th,
Let me direct your attention to the top
third of that page beginning with six years
sentence forgery or whatever. Can you tell me
what those notes reflect?
A I believe this has to do with what time
he was serving on his Federal sentence. He
apparently got a six-year sentence. He's made
five years and, looks like, two months, and then
was put in the Halfway House. And he says he was
a trusty and gave me the name of Frank
Kennebrough who was supposed to have been a
director, There was supposed to have been
somebody by the name of Barker and there's
supposed to have been a Lieutenant Gould and a
Lieutenant Whitmire who was his counselor out at
the the Federal ~- either the Federal Pen or the
Federal Halfway House.
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Apparently at one time he'd been in
solitary out there at the Federal Pen. Now why
he was out there in solitary, I didn't know.
Q Let me ask you about that, It says can
verify and does that little signal mean numbers
there, that sign there? Or what can they verify?
A What he's telling us, I guess.
Q Well, obviously they couldn't verify
what he purports to have heard from Mr. McCleskey
80 they --
A I think he claimed that he had helped
them and that's why he was put in solitary, and
that "8S" is supposed to be solitary.
Q Okay. So that means solitary confine-
ment, And by help them, he obviously -- he meant
what?
A I assume that he gave them some
information of what was going on in the Federal
Prison.
Q Okay. And that's why he was put in
solitary confinement?
A That's my understanding, yes.
Q Obviously he wasn't put in solitary
confinement as punishment for having helped them
but in order to help them; is that correct?
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A No, because he had already helped them
and they put him in solitary for his own
protection.
Q I see, Is that what -- did he speak
with you about his circumstances in Fulton
County? He was put in solitary in Fulton County;
is that correct?
A I don't know what it was in. All 1
know that he apparently was an escaped Federal
prisoner.
Q You did know he was in the cell next to
Mr. McCleskey?
A That's what I found out when he first
came in. They told me he was in Cell N-14 and
McCleskey was in Cell N-15, that's on Page 1.
Q Did you know that Mr. McCleskey was in
solitary confinement?
A Sir?
Q You knew that Mr, McCleskey was in
solitary confinement?
A No. All I knew that -- is what he told
me. He was in Cell 14 and McCleskey was in Cell
15.
Q Did you have any knowledge then of
whether customarily someone who had been accused
of murder and indicted for murder was placed in
that kind of custody?
A I know nothing about where they're
placed at the jail, sir.
Q Okay. Let me ask you about the next
marke on that paper. There's something about
Deputy Hamilton there.
A Okay.
Q What does that say? It's hard to read
and I want to be sure --
A Evans told me about the bug, didn't ask
for any favors. 80 I verified that Hamilton had
apparently talked to Offie Evans, Offie Evans had
told him some of this and he wasn't asking for
any favors and Hamilton then called the
detectives, they called me and we came out.
Q Okay. Now, on the first page there's
another reference right at the beginning, it
Seems tO me about Hamilton, up in the top right-
hand corner. This is again of the eight-and-a-
half by thirteen.
What ~-- that little note says what?
A You talking about the eight days?
Q This is on the top ~~ I'm 8O0rry, on the
other corner, on the right-hand corner.
A Evans approached Hamilton on Tuesday
7/11/1978. That was my understanding that that
was the first time that anyone knew that
McCleskey had said anything had been overheard
was on July the 1llth, 1978.
Q So Mr. Evans came to Mr. Hamilton
and --
A I don't know. lI take that to mean that
anybody in law enforcement, the first time they
knew that anything was valuable to the State was
on: July the 11th, 1978.
Q But you don't know that much, I take
it, at least that's when you know Evans
approached Hamilton.
A That's the first time that I think
anybody in law enforcement knew anything about
ic, That's what I took it to mean.
Q Okay. That's a fairly sweeping term,
law enforcement, it covers quite a bit. As far
as you know at least?
A As far as 1 know, yes,
Q Okay. Over in the left-hand corner
what do those words mean on that same page?
A Well, it l00KS like I ran in the cell.
I don't know what that means. Eight days. I've
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been talking to them over a six or seven-day
period. I assume that's what Mr. Evans told me,
that he'd been talking to them over a six or
B8even-day period when I talked to him on July the
12th, 1978.
Q Okay.
A I don't know what that means, I ran in
the cell. It doesn't make sense to me now.
Q It must have been something to you at
the time you wrote it,
A I really don't know. I wrote it down
and I don't know what it means now.
Q Well, the basic story with respect to
how he came to you, your notes reflect here, is
that he came to Deputy Hamilton, told him that
he'd heard some information from the people in
the cell, from McCleskey and Dupree. Hamilton
called you and then he was presented to you and
then began to tell his story; is that correct?
A I didn't know Deputy Hamilton and I
didn't know Offie Evans. I met Hamilton when I
went out to the jail with the detective.
Q Oh, I understand. But at that point
Mr. Evans must have told you something about how
-= WDYy yOu were all sitting there.
A I'm sure he did.
Q DO you recall what it was?
A My original notes that I took over the
telephone from Sergeant McConnell and Detective
Harris indicates there's an Offie Evans and he's
heard conversation between McCleskey and Dupree.
These are the small pages. Apparently before I
went to the jail I went down to the record room
or called the record room to see if Offie Evans
had a record, and they gave me two indictments
which is, I guess, the third piece of paper.
Anyway, it's Indictment A-15960, where he had
been convicted for possession of tools and
Indictment A-16523 where apparently he had been
convicted of forgery.
Q Well, now, when you spoke with Evans
and he told you about these prior relationships
out at the Halfway House, in effect, he was
vouching for himself. He was saying you can
trust me, talk to these officers and they will
verify that I've helped them in the past. Is
that the context in which that arose?
A I don't remember. All I can say is
that he told us he was serving a six-year
sentence for forgery and he'd made five years and
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two months, He apparently had been a trusty at
the Halfway House and if I wanted to verify any
of it I could talk to Frank Kennebrough, somebody
by the name of Barker, B~a-r-K-e-r and Lieutenant
Gould, G~o-u-1l-d and a Lieutenant Whitmire, who
apparently was his counselor.
Q Did you subsequently take any steps to
verify that information?
A I think I went out there or called. I
know I went out but I think I called first.
Q When you say went out, went out where?
A Talked to some of these people at the
Halfway House at the Federal Pen. I didn't know
who Offie Evans was. I'd never heard of him
before.
Q Okay. Just a moment,
MR. BOGER: Your Honor, the document
that's been marked but not admitted yet
is Petitioner's 9, it is the document that
we need to show to Mr. Parker.
THE COURT: That's what you're looking
for.
MR. BOGER: I'm S0orcy. Forgive me
again. Forgive me for my problem with
the numbering.
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BY MR. BOGER:
Q This is a document that's been marked
as Plaintiff's Exhibit 10. Do you recognize that
document?
A All that's in my handwriting as well.
Q Okay. What 1s that?
A These apparently are some notes that I
made. I apparently tried to call a Mr. Frank
Kennebrough and I apparently got him because I
see that somebody told me that he had been there
for five years. I see that he probably told me
Offie Evans is criminally shrewd, Offie Evans
escaped, Offie Evans claimed he was working with
an agent with the G.B.I., Carl Neeley. I see
where I apparently tried to call Carl Neeley on
July the 14th, 1978,
Somebody mentioned Agent Dave Kelsey or
David J. Kelsey. I apparently talked to either
Carl Neeley or Agent Kelsey because I have notes
on the right over here that says Evans called
when he first escaped. Evans is a good
informant. He was not working for us but he did
know a lot of information about motor vehicle
thefts. So I would assume that that either is
the G.B.I. or the F.B.I. and I don't know which
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14
15
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18
19
20
21
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one of those told me at that time.
Q 50 you can't independently now recall
whether it was the State G.B.I., or the =--
A Agent Kelsey. One of the two, 1 don't
know which.
And then I've got some more notes that
somebody told me Evans was gone five or six days.
Evans is a nickel and dime forger and drug
pusher. Evans called G.B.I. when he heard we
were looking for him.
And then I apparently talked to a
Lieutenant E. W. Geouge at the Federal
Penitentiary. I apparently tried to talk to a
counselor, Don Whitmire, but I note out on
medical sick leave, so I don't guess I ever
talked to him.
But apparently Lieutenant Geouge told
me on July the l4tch that Offie Evans was
reliable. And he says 1 would rely on what he
said. A professional snitch. Mr. Kennebrough,
take with a grain of salt. I don't know what
that means.
Q Does that mean Mr. Kennebrough has a
different view of him, perhaps?
A I don't know. That would be a logical
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conclusion, And that says Geouge did have Evans
in protective custody, which apparently is what
he told me, he was in solitary confinement out at
the Federal Pen.
And someone told me Evans has been
through the Halfway House twice. The first time
Evans was on probation {it was revoked and he was
sent to the Federal Pen. The second time he was
on parole through the House; 1 assume that's the
Balfway House.
Q Now, there's some information at the
bottom, It says D.E.A. and then some name that's
difficult to read. What's that?
THE COURT: Tyrone Yarn.
MR. BOGER: Thank you, Your Bonor.
THE COURT: It helps if you see these
people all the time. You can figure the
notes out better.
THE WITNESS: I assume that I talked to
Mr. Yarn because I've got a note there, also
knows Offie Evans and Evans is reliable.
BY MR. BOGER:
Q SO these were efforts that you made to
find out about his reliability and whether he had
been helpful to various State and Federal
wn
1
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Government agencies in the past.
A I was trying to determine in my own
mind whether to believe Offie Evans.
Q And your determination eventually was
what?
A That he was telling the truth,
Q Okay. So when he gave you his
statement on the 1st of August you believed what
he said in there?
A Well, he gave me the statement on July
the 12th and in between July the 12th and August
the 1st, 1978 {8 when I was trying to find out
who Offie Evans was,
Q Right, But ultimately he gave a
written statement on the lst of August that we've
talked about in your previous testimony, and it
was your judgment that that statement was true;
is that correct?
A It's my judgment that that statement
was true and it's my judgment that what he told
me on July the 12th, 1978 was true.
Q All right,
A Now, somebody out there knew McCleskey.
I don't know whether it was Mr. Kennebrough or
what, but whoever that was, and I assume it must
have been Mr. Kennebrough, that he had played on
the same football team and this individual had
played quarterback, McCleskey played end and this
Occurred at the Lemon Street High School in
Marietta, And a Larry Rosser, who I also know
has a criminal record, was a defendant — I mean
a defensive and running back. And whoever told
me this had a scholarship at Morris Brown.
Q Did the folks that you talked with as
reflected in this document ever give you any
details why they believed Evans reliable, whether
his information had panned out in the past, or
did you assume that's what they meant?
A All I can state now i8 what I wrote on
this piece of paper.
Q You don't have an independent
recollection?
A No, sir.
Q Do you recall any of the officers of
the Atlanta Bureau of Police Services ever
telling you that -Evans had been an informant for
them or had given reliable information in the
pagt?
A If they did, I didn't make a mental
note of it and I didn't make a written note of
a
a
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On
it.
Q All right.
MR. BOGER: Your Honor, at this time
I'd offer that item into evidence,
Petitioner's 10.
MS. WESTMORELAND: No objection.
THE COURT: Admitted.
BY MR. BOGER:
Q Now, you waited you said until August
the lst to take a statement from Mr. Evans, but
you had checked after your July 12th meeting and
found out that he was a reliable person. Had he
told you on July the 12th that he was going to be
available, that he'd give you a statement when
you needed one?
A I don't remember that specifically. I
am sure we wouldn't have brought him over to the
police department unless we had asked him on July
the 12th if he would give us a written statement.
Otherwise, we never would have brought him over.
Q All right, You opened, I think, your
statement to the jury at trial by saying that one
Of the critical questions in the McCleskey case
was who was the trigger person. The trigger
person should get death and the others really
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didn't deserve it and that's why they weren't
going to be charged capitally. And this was a
confession, in effect, in the jailhouse by =-- or
a statement that the Defendant had confessed in
the jailhouse, that you had conversations
reflected from this 12th of July. And yet a
month goes by before you reduce that to written
form.
MS. WESTMORELAND: Your Honor, 1 don't
believe the record reflects it was a month,
I believe it was somewhat less than that.
MR. BOGER: I withdraw a month. It was
the difference between the 12th of July and
the 1st of August, 18, 19 days.
BY MR. BOGER:
Q So do you recall now why you let that
20-day gap, 19-day gap go by when the critical
witness had come to light?
A 1 tried to reconstruct what I did, and
the only thing I can reconstruct without finding
my pocket calendar is that I had seven days in
court, and what those other times were, I do not
know.
Q Did it give you comfort when you were
on trial during those seven days to know that in
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the past Mr. Evans had served as informant for
other Federal agencies and State agencies and had
given reliable information?
A I don't think I even considered or even
thought about it. I simply was trying to find
out who Offie Evans was.
Q Let me ask you about one other matter,
Mr. Parker, then we're just about finished. In
these notes, I noticed reviewed them last night,
that they tell a lot about the role of another
person named Mary. Do you recall Mr. Evans’
statements about what Mary Jenkins' involvement
in this case was?
A I think the 21-page statement a number
of times McCleskey allegedly said that she
sometimes took part in robberies, that she
sometimes cased places out and that she was along
on this robbery where Police Officer Schlatt was
killed.
Q That she in fact drove the car or
something; is that --
A Correct. That is what I get out of the
2l-page statement.
Q Also there's a suggestion, I believe,
that someone — the name is blanked out there,
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but your notes reveal that it's Mary Jenkins.
A It would have been Mary Jenkins.
Q Was standing outside as sort of a
lookout and if a police officer was seen, was
supposed to step inside and step back out to sort
Of give a warning to people inside; is that
what --
A That's what Offie Evans said he had
overhead McCleskey say.
Q Okay. And you believe that part of the
statement as well?
A I don't know. Nowhere else does it
ever appear from any of the witnegses or any of
the Defendants, including Bernie who gave the
first statement, that Mary Jenkins was involved.
Q But that's, at least what Offie Evans'
statements to you on the 12th of July and the lst
of August said?.
A I'm sure I was aware of that on July
12th just like I was aware of it on August the
lst, 1978.
MR. BUGER: No further questions of
this witness.
THE COURT: Anything, Ms, Westmoreland?
MS. WESTMORELAND: Just one moment,
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Your Honor.
{Brief pause.)
MS. WESTMORELAND: Your RBonor, ‘I don't
have any questions of Mr. Parker at this
tine, I would like to ask that he not be
excused until we see what remains to be
presented by the Petitioner in this matter.
THE COURT: Can he go back to his
office?
MS. WESTMORELAND: I assume that would
be all right.
THE COURT: They're through with him.
MS. WESTMORELAND: Are you through? If
we can have him subject to call, that will
be all right.
THE COURT: You will be available to us
at your office.
THE WITNESS: Yes, 8ir.
MS. WESTMORELAND: May Mr. Parker take
those original documents at this stage?
MR. BOGER: That's fine, Your Honor.
We've marked the substitutes and I think
we've been through the important parts.
THE COURT: Okay. That will be fine.
MS. WESTMORELAND: And he also brought
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his boxes of files back as well this
morning.
TBE COURT: Please preserve those
documents that were marked as court
exhibits, Mr. Parker, until this case is
resolved finally by the highest court in
the land.
(Whereupon, the witness was excused
from the witness stand.)
THE COURT: All right, Call your next
witness,
MR. BOGER: We'll --
THE COURT: Whoa, whoa. It's
lunchtime, I'm sorry. It is lunchtime.
(Whereupon, a discussion ensued off
the record.)
MR. STROUP; If I might, while the
Court is waiting on that, we do have Agent
Kelsey from the F.B.I. who is here. Nina
Hunt had requested that we put him on as
Soon as possible, that he has some other
business that was pressing.
THE COURT: How long are you going to
be with him?
MR. STROUP: Fifteen, twenty minutes
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maybe,
THE COURT: Well, if you were going to
take five, I would say --
MR. STROUP: Yeah, I fear 1 would be
misleading the Court to say five.
(Whereupon, a discussion ensued off
the record.)
MR. BOGER: Your Honor, it depends, I
think in part, on whether subpoenas that are
being served are to be answered. We see Mr.
Kelsey as a witness, there's a Carl Neeley
at the Georgia Bureau of Investigation who
I think was in the building and therefore
will probably be responsive to subpoena.
MR. STROUP: No. It turns out he's not
in the building.
MR. BOGER: Well, at least he's in
Atlanta. He was in the building at some
point. And there may be one or two other
witnesses. We're still looking for Mr.
Evans,
THE COURT: Are they short -- the other
two witnesses are of short duration?
MR. BUGGER: I believe so. Mr. Whitmire
who is8 Lieutenant Whitmire, and --
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MR, STROUP: We've tried to find both
Lieutenant Whitmire and Lieutenant Geouge or
whatever the varying possibilities on his
name. Our information is that he has
retired or -- both of -- Whitmire has
retired; that Geouge has perhaps transferred
and they cannot give us any information on
such short notice as to his whereabouts.
And actually the Fulton County Jail person,
the Sergeant Jackson who is here, I don't
believe that the documents that you saw in
the F.B.I. file was one that we flagged to
be copied. 50 perhaps we should excuse
him, I haven't let him go at this point
because I thought I needed to bring that to
your attention.
TBE COURT: Well, my recollection from
looking at. that document is that there's
nothing on it that shows an endorsement or
anything like that by the jail. But 1 Just
wanted to make sure that you had every
opportunity to do whatever you wanted. Have
You seen the same document I've seen?
MR. STROUP: I'll] tell you ~- I assume
80.
1 THE COURT: Okay. When Ms. Hunt came
4 into my office she produced two F.B.I. file
3 folders and a long piece of paper which is
4 like the -- yeah, looks like that.
5 MR. STROUP: Yeah, we have seen that,
6 Your Honor.
7 THE COURT: Well, if you want to take
8 it out there and show it to him, you can
9 keep him. Otherwise you can send him home,
10 MR. BOGER: I think the short answer to
11 your question is that we have perhaps as
12 little as 45 minutes and perhaps as much as
13 two hours, depending on who we find.
14 Of course, if Mr, Evans turns up we
15 may have a full afternoon because he's a
16 critical witness.
17 TBE COURT: oOkay. I've got a sentenc-
18 ing this afternoon. Defense Counsel is
19 known for his sentencing presentations.
20 They are at least long and sometimes very
21 fast and I'm trying to figure out what to
44 do. It's scheduled for 2:00 o'clock. I
23 think I will just tell them that if they
24 want to have a shot at me they'll have to
» 25 trail y'all.
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So we'll be in recess in this case
sntil' 1330.
(Whereupon, the luncheon recess was
taken.)
THE COURT: Your next witness is Mr.
Kelsey?
MR. BOGER: That's correct, Your
Honor.
THE COURT: Come up, please, Mr.
Kelsey.
Whereupon,
DAVID JOHN KELSEY, S8R.,
having been first duly sworn, was examined and
testified as follows:
THE CLERK: Have a seat and state your
full name.
THE WITNESS: David John Kelsey, Sr.
EXAMINATION
BY MR, BOGER:
Q Mr. Kelsey, what's your employment?
A Special agent with the F.B.I. here in
Atlanta.
Q How long have you been a special agent?
A Gy J
Q Since 19717?
A Since 1971.
Q In 1978 what were your responsibilities
with the Bureau?
A I was working on the Fugitive Squad.
Q Specifically what does one on the
Fugitive Squad do?
A They arrest fugitives. Are you asking
specifically what I did?
Q No, I just wanted to be clear for the
record.
A I was working essentially at the U.S.
Penitentiary here in Atlanta and I was
responsible generally for apprehending anybody
that escaped from the pen.
Q Did you have responsibility to
investigate the escape of one Offie Gene Evans in
19787?
A Yes, I did.
MR. BOGER: I'm going to mark a docu-
ment or have marked as Petitioner's 11 and
then show it to you and ask if you can
identify it,
(Whereupon, Petitioner's Exhibit No. 11
was marked for identification.)
BY MR. BOGER:
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Can you identify that document?
Yes, I can.
What is it?
>
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©
The document is an interview report
Prepared by myself reflecting an interview with
Frank Kennebrough.
Q Okay. Is that an original of -- or a
copy of the original that's in your files?
A Yes, I believe it is.
Q Have you at any point compared it with
the original?
A No.
Q But you don't have any doubt that we've
got the original there -- or a copy there, an
accurate copy?
A 1 have no doubt this i8 an accurate
copy of an original document in my file.
MR, BOGER: With the State's permission
I'd like to offer it into evidence, substi-
tuting a copy for the originals that I think
have been provided to both of us.
MS, WESTMORELAND: Your Honor, my
problem 18 not with substituting an original
for the copy ~-- a copy for the original. I
don't have any problem with that. I simply
don't see the relevance of this docume
this proceeding whatsoever. It appar
relates to Mr. Evans' original escape
don't see where that relates to the Ma
issue whatsoever.
THE COURT: 1 read the entire fil
I didn't see anything in it that was
relevant except one letter that was ar
relevant to another claim.
Let me see the document.
(Whereupon, the document was give
the Court for his perusal.)
MR. BOGER: Your Honor, let me sa
I'm offering this document primarily ¢t
when the F.B.I. got involved. It's mo
document to clarify the proceedings by
Mr. Evans ultimately came into custody
to the Fulton County Jail, and represe
tions that he made along that way.
MS. WESTMORELAND: Your Honor, 1
see that that document has anything to
with what Mr. Boger represents and I 4
see where that still has anything to d
the issue before the Court.
THE COURT: TO the extent that it
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Tm —— —— —— M— — ar
Kennebrough's testimony, it's hearsay. To
the extent that it's Kelsey's testimony, he
can use it to refresh his recollection and
if necessary you can offer it as a contem-
Poraneous recording. That's the evidence of
what he knew of his own personal knowledge
but it is not -- it does not contain any-
thing that I can see helpful to the Massiah
claim, But in any event you've got some
problems with it.
If you want to ask him whent he F.B.1.
got into the case, I suggest you just ask
him,
MR. BOGER: I'll be glad to do that. I
was simply trying to paper the trail, but
I'll do it through his testimony.
BY MR. BOGER:
Q Agent Kelsey, when did you first get
involved in that case?
A In June.
Q Do you recall the date?
A No.
Q If you looked at the document that's
Petitioner's 11, would that help refresh your
recollection?
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A Yes.
Q What date did you become involved?
A I became involved in the case on June
2,78 or Possibly a little bit sooner than that.
Q And do you have any recollection when
Mr. Evans had escaped, when he had left Pederal
custody unlawfully?
A Let me take a minute to review this,
(Brief pause.)
A (Continuing) Declared Evans a Federal
escapee as of 6:00 p.m. on June 23rd, 1978.
BY MR. BOGER:
Q What was your responsibility once you
learned that Mr. Evans was an escapee?
A Conduct an investigation to arrest Mr.
Evans,
Q And at some point did you arrest Mr.
Evans, some point thereafter?
A I don't believe --
THE COURT: I note from reading the
file that he was ~- I think I noticed from
reading the file that he was arrested by
G.B.I. agents. So I think the more appro-
priate question is did You take custody of
him from the G.B.1.?
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THE WITNESS: Yes, 1 414.
BY MR. BOGER:
Q Well, let me ask about that relation-
ship and let me give you a document that we'll
mark as Petitioner's 12 to help you refresh your
recollection about those events.
(Whereupon, Petitioner's Exhibit No. 12
was marked for identification.)
BY MR. BOGER:
Q Does the document that you've just been
handed, Petitioner's 12, assist You in recalling
when you took custody of Mr. Evans?
A Yes. I took custody of him on July
3rd, 1978.
Q And what were the circumstances? Under
what circumstances did you take custody?
A 1 located him at a G.B,I. office here
in Atlanta and I took him into custody.
Q All right. How did you come to be at
the G.B.1. office?
A l1 received a cail from G.B.I. Agent
Carl Neeley. Neeley told me that he had Evans in
his office and for me to come by.
Q Did he explain to you the circumstances
under which Evans had come to him?
A 01
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A In reviewing the interview report,
apparently Neeley told -- or Neeley told me
that
MS. WESTMORELAND: Your Honor, .1'11
Object to the testimony as to what Mr.
Neeley may have told him.
TBE COURT: Have you got him under
subpoena?
MR. BOGER: We're trying to subpoena
him, Your Honor. I understand that we've
had some difficulty dealing with the Georgia
Bureau on this, that they have twice misin-
formed us about where Mr. Neeley is, We've
attempted -~- we've asked Ms. Westmoreland's
cooperation and she's given it -- to get the
Assistant Attorney General who dealge with
that agency, who represents them. He's at
lunch. So- we're going to try to get the
G.B.I. people here, but at this point it's
not clear whether we'll reach them any time
very soon.
MS. WESTMORELAND: Your Honor, our
position is still that this is still not
relevant to any claim that is before the
Court today.
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MR. BOGER: Your Honor, what we now
have, what we're starting to go into is
the relationship that Mr. Evans may have
had with State officials at the time of his
arrest, certainly well prior to the July
12th interview that Mr. Parker and the
other detectives have reported. It seems
to me quite relevant to know whether Mr.
Evans was acting or thought he was acting
in cooperation with State agente at that
time.
MS. WESTMORELAND; Your Honor, this is
precisely the claim that we already
discussed that the Court deemed to be
abandoned by not having raised it as an
issue, This is the ab initio allegation of
the Massiah violation, which we allowed
testimony this morning from Detectives
Harris and Mr. Parker because =--
THE COURT: And all day yesterday.
MS. WESTMORELAND: -- because they were
present at a conversation with Mr. Evans,
It seems to me that this is taking it far
beyond that, And we submit it's simply not
relevant.
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THE COURT: In view of what has come
in without objection, Ms. Westmoreland, I'm
not going to close the door. I would
certainly expect the State Attorney
General's office to get that F.B.I. —- that
G.B.I. agent over here. Essentially there
are about three questions he ought to be
asked, and that's it. 1 may be being
generous, maybe two.
MR. BOGER: It's very unfair to ask
a lawyer to ask only two questions, Your
Honor, but I agree there's a very short and
focused period of time that would be of
interest,
THE COURT: Let's go ahead and get Mr.
Kelsey's representation as to what he was
told by Mr. Neeley, and I will strike it
upon Mr. Neeley being here. But if Mr.
Neeley is, as Mr. Boger is suggesting to me,
voluntarily absenting himself, I'll just
treat it as ~-
MR. BOGER: Your Honor, let me just
state for the record that I'm not sure that
Mr. Neeley himself has even been directly
informed, There were people in his office
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whom those that we're working with have
spoken to, And those people in their office
directed him to a location within this
building, he was not there. In fact, they
sald they hadn't seen him. And I think they
went back and called the Bureau itself and
they reasserted that that's where he was.
I don't know the full sequence of events,
but they had great difficulty even ascer-
taining that Mr. Neeley was at work for the
Bureau at this time in this city.
So I don't know who is giving
difficulty in this matter. It certainly may
not be Mr. Neeley himself, but that's our
problem.
TBE COURT: Go ahead and answer the
question, Mr. Kelsey. What did Mr. Neeley
tell you at the time he picked up Mr. Evans?
THE WITNESS: Neeley told me that he
had had some conversation with Evans. I had
told Neeley that Evans was a Federal
escapee. Neeley called me on the morning of
July 3rd, '78 and said to the effect that he
had engaged Evans in a Phone call earlier
that morning and during the course of the
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telephone conversation with Bvans he
dispatched a couple of G.B.I. agents to run
by Evans' house.
When the G.B.I. agents arrived at
Evans' house they took Evans into custody
and brought him to the G.B,.1. O0offiova,
Neeley then invited me out to G.B.I, ~~ I
guess it's their headquarters or whatever,
to take custody and interview Evans.
BY MR. BOGER:
Q Let me just clarify one matter on those
representations.
Mr. Neeley indicated that he had been
in conversation with Mr. Evans at some point af
Mr, Evans had escaped, as far as You could tell?
A I don't know about that.
THE COURT: He sald he talked to him on
the phone that morning.
THE WITNESS: Neeley had a conversation
with Evans at some point in time, I don't
know when.
THE COURT: I thought it was that
morning,
THE WITNESS: That's also true. I told
Neeley that Evans was a Federal escapee.
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the morning of July 3rd, 1 don't know how it
came about, but Neeley and Evans became
engaged in a telephone conversation. Neeley
was now armed with the information that
Evans was a PFPederal escapee, Therefore,
Neeley dispatched two agents out to RBvans'
house, who arrested Evans.
TBE COURT: So apparently there were
two phone calls.
THE WITNESS: At least,
BY MR. BOGER:
Q And on the previous occasion when there
had been a telephone call Mr. Neeley represented
that he was not aware that Mr. Evans was a
fugitive?
A I don't know.
Q Okay. Well, you mentioned that you
went to the G.B,I. headquarters and you took
custody of Mr. Evans, Then what did you do with
him?
A I interviewed him,
Q Okay. At the G.B.I. headquarters?
A At G.B.I. headquarters.
Q Let me show you a document that welll
mark as Petitioner's 12 ~- the court reporter is
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temporarily absent, Let me just show you the
document, I intend to mark it eventually as
Petitioner's 12.
MS. WESTMORELAND: I believe it would
be marked ~- you had one marked as 12.
MR. BOGER: 13,
(Whereupon, Petitioner's Exhibit No. 13
was marked for identification.)
BY MR. BUOGER:
Q Can you identify that document?
A This appears to be a copy of
information recorded by myself,
THE COURT: After talking with Evans?
BY MR. BOGER;
Q Was this information that You recorded
during the interview with Mr. Evans or --
A Yes.
Q All right. What kind of notes did you
take? Were you trying to take down everything
that was said?
A No.
Q What is it, then, It's a summary --
A It's just some notes that I took during
the course of the interview with Evans,
Q Why don't you describe that interview
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for me, if you would. What did you do and what
did you say to him, and what did he say back?
TBE COURT: Did he say anything about
Mr. McCleskey?
MR. BOGER: Fine.
THE WITNESS: No.
THE COURT: Did you all discuss the
McCleskey case?
THE WITNESS: No,
THE COURT: Did you discuss whether or
not he had been cooperating with the Atlanta
Police Department and the G.B.1, in the
Period immediately preceding your arrest?
THE WITNESS: No.
THE COURT: All right.
MR. BOGER: Let me ask two additional
question, Your Honor, if I might.
BY MR. BOGER:
Q Did he tell you that he had cooperated
with Drug Enforcement Administration agents and
Prison officials in a drug matter?
A He told me that during the interview.
Q Okay. At what point in the interview
did he tell you that?
A In the middle.
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Q Did he tell you that he had attempted
to cooperate with official at the Federal
Community Treatment Center?
MS. WESTMORELAND: Your Honor, I'll
object. Once again, we're getting far
afield from the issue before the Court.
THE COURT: I suppose -- I've been
trying to figure out over lunch what Mr.
Boger is trying to do and I think that the
argument is going to be that this fellow is
a preconditioned police officer informant
at large who has a constant commission to
gather evidence for any police activity. I
personally don't believe that comes under
the Massiah thing. If that's what he's
after I'll let him ask --
MR. BOGER: That certainly is the
direction that we're headed, Your Honor,
and indeed what we hope to call the Georgia
Bureau of Investigation people for is to
show that he was actively cooperating or
believed he was actively cooperating with
State officials at this time.
MS. WESTMORELAND: Then I would just
like to note an objection for our part,
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that clearly comes under the category of
abuse of a writ allegation. We don't intend
to waive that in any fashion. I don't think
this relates to the Massiah claim before
this Court.
MR. BOGER: Your Honor, our contention,
of course, is --
THE COURT: That issue would be
different from what I have already ruled on
the ab initio issue, in that there {is
absolutely no indication whatsoever of
record that Mr. Stroup or anyone else on
Mr. McCleskey's part made any investigation
into Evans' general background and I would
certainly agree that that is abuse of the
writ and it is separate from and apart from
the earlier ruling that I made on the ab
initio part of the writ.
1, nevertheless, will let him ask the
one question he wishes to ask.
MR. BOGER: Thank you, Your Honor.
BY MR. BUGER:
Q Did he make representations to you
about attempting to assist D.E.A. agents at the
Federal Community Treatment Center on drug
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matters?
A 1 have to look at my interview report
to answer that question.
Q Is that not the document you have in
front of you?
A No. This is just some kind of notes I
took at some time, I presume during the course of
the interview.
Q Do those notes reflect anything about
this subject that we asked about?
A Yes.
Q What do they reflect?
A Evans stated to me that he attempted to
assist D.E.A., agents in some sort of an
investigation but he was not cleared to do so by
the Federal officials that Operated the Community
Treatment Center.
Q Ari tight, Just so the record is
clear, let me have marked as Petitioner's Exhibit
14 a typed document.
(Whereupon, Petitioner's Exhibit No. 14
was marked for identification.)
THE COURT: Likewise, so that the
record will be clear, 1 let him ask that
last question that we got the answer as a
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proffer of what he would testify to if 1
had allowed him.
MS. WESTMORELAND: Mr. Boger, could I
ask to see which particular document you're
referring to?
THE COURT: Is that the 302 on the
interview? It's the 302 of the interview of
Evans.
BY MR. BOGER:
Q Agent Kelsey, let me ask you to examine
that document and identify it if you can.
A 13.0 147
Q 14.
A 14 is an interview report prepared by
myself on July 3rd, '78 reflecting information
told me by Offie Gene Evans.
Q Is that the interview report that you
mentioned to me just a moment ago on the stand
that would be useful for you to review?
A Yes,
Q Okay. Does that confirm the testimony
that the handwritten statements an interview
notes that you made contained as well about Mr.
Evans' proffers that he had been invo,ved in
D.E.A. drug investigation matters?
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A You have to run that by me again.
Q 1'm sorry. You said it would be useful
to get that document, Petitioner's 14 in hand.
Does that confirm the testimony you gave absent
that document about Mr. Evans’ professions that
he was a D.E.A. assistant informant on some drug
matters?
A I don't know. I'll have to take a look
at 14 and see.
Okay. Yes, 1t does.
MR. BOGER: Your Honor, 1 would offer
Petitioner's 14 into evidence.
MS. WESTMORELAND: Your Bonor, I have
the same objections to 14 as I had to the
Other exhibits proffered to this witness.
They're totally irrelevant to any issue
before this Court at this time.
TBE COURT: That's hearsay and I'll
sustain the objection on that basis.
MR. BOGER: Your Honor, I'm not clear
about the ruling on hearsay.
THE COURT: That's his statement.
That's the witness's statement which he made
cout of court which you're offering to prove
the truth of the matters asserted therein.
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That's hearsay.
MR. BOGER: Can 1
business record.
BY MR. BOGER:
Q Did the document,
that a --
THE COURT: Come,
come,
do you?
happened?
All MR. BOGER:
I've got that.
like the document
right,
l1 think I've got that.
lay a foundation for
Petitioner's 14, is
come, come, come,
You don't seriously believe that,
Why don't you just ask him what
Well, 1 think
I'd
in evidence but I don't
think we need to belabor it {Ff we do have
his testimony that that's what Evans told
him.
THE COURT:
BY MR. BOGER:
All right,
Q Did there come a time, Agent Kelsey,
when your office made a report to the United
States Attorney with respect to Mr. Evans'
escape?
A Yeah.
Q Let me show you a document that 1'11
have marked as Petitioner's Exhibit 15,
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(Whereupon, Petitioner's Exhibit No. 15
was marked for identification.)
THE COURT: While he's having that
marked, after you took custody of Mr. Evans
where did you take him?
TBE WITNESS: I don't have any specific
recall as to where Evans went, as to
remembering exactly what happened after 1I
interviewed him at G.B.I. At that time {in
1978 anyone that I arrested I took to the
Fulton County Jail.
THE COURT: That was your habit and
custom?
TBE WITNESS: That's what I did in
every instance. I don't know of any
instance where I arrested someone and didn't
take them to the Fulton County Jail.
BY MR. BOGER:
Q I was going to ask a few questions
about that, Let me just follow up. When you --
did you consult with any State officials prior to
placing him in the custody of officers at the
Fulton County Jail?
Once you had arrested Mr. Evans or once
You had Mr. Evans in your custody --
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A Okay.
Q == lt's your testimony that ultimately
he was taken to the -- or it was Your custom at
least to take all such prisoners to Fulton County
Jail,
A Yes,
Q Do you recall any conversations with
State officials or with Atlanta Bureau of Police
investigation officials or the District Attorney
of Pulton County or any of his assistants prior
to -- prior to your transfer of custody?
A No.
Q And when you --
A 1 did not consult with anybody as to
where I'm going to take a Federal prisoner. I
Just take the Federal Prisoner to the --
Jefferson Street, the Fulton County Jail.
Q And into whose custody then do you
deliver him?
A I suspect he's in Federal custody in a
county facility.
Q All right, But you physically transfer
him to some deputy 1n the jail; is that ~~
A Usually I put him in a holding cell
right out in front of where you fill out the
information card as to who the individual is.
Q Do you recall making any recommendation
in Mz, McCleskey's case about the kind of
custody?
A I don't know anything about the
McCleskey case.
Q Forgive me, Mr. Evans' case, about the
kind of custody that he was to be held under in
Fulton County? In other words, whether he was in
solitary or not?
A Say that again, now.
Q DO you recall whether YOu made any
recommendations to officials at the Fulton County
Jail in Mr. Evans' case about the kind of
custody, the kind of restraint to which he was to
be held?
A No.
Q Would it have been Your practice to
make such recommendations?
A No. I would usually indicate to the
people at the Fulton County Jail, the deputy
sheriff that's working the desk, that I've got a
Federal prisoner that I wished to lodge at his
jail, and they've always accommodated me,
Q All right, Now, let's look at --
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THE COURT: Would you find it unusual
if the Fulton County Jail incarcerated an
escaped Federal prisoner in solitary, based
on your prior dealings?
TBE WITNESS: I don't know if I can
answer that because I've never known what
Fulton County does with the people that
I've lodged there.
THE COURT: You just leave them at the
front door?
THE WITNESS: I leave them at the front
door. They've got a couple of holding cells
right there across from where you register
them inside the sallyport at the Jail, so I
just put them in there. I never know if
they've put them in solitary or they put
them in with the regular population or if
they have a Federal section. I have no idea
what happened to an inmate or a Person that
I placed in the facility.
BY MR. BOGER:
Q Mr. Kelsey, let me get back to
Petitioner's 15, Have you had a chance to look
at that document?
A Yes,
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Q Can you identify it?
A Yes, It's a letter to the United
States Attorney's office here in Atlanta
regarding the Offije Eugene Evans escape case.
Q Do you recall who Prepared that letter?
A I dia,
Q For whose signature?
A For the special agent in charge of the
Atlanta office.
Q And what was the purpose of this
letter?
A To confirm, the fact that the U.S.
Attorney's office here in Atlanta had declined
Federal prosecution of Evans for violating the
escaped Federal prisoner statute.
Q I'm sorry. This was to -- you were
writing as the F.B.I. to Confirm that the U.B, w=
You were writing to the U.S. Attorney's office to
confirm that that was what their disposition of
the case, is that --
A That's correct.
Q So this was -- was this a
recommendation by you or simply a confirmation --
A No. This is merely a confirmation of
what they told me. They were declining this
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case.
Q All ‘right, Did they explain when they
told you what circumstances had led to the
judgment?
A Yes. I had listed them in here, in the
letter.
Q Let me refer you to the second numbered
paragraph. Do you recall that was one of the
Circumstances which led them to make that
judgment?
MS. WESTMORELAND: Your Honor, I don't
believe the witness can testify as to what
led them to make that judgment. All he's
referring to is what he was told led them to
make that judgment.
MR. BOGER: Well, fine.
BY MR, BOGER:
Q Does that -- was that Your — was that
one of the reasons you recall being informed that
the decision had been made not to prosecute Mr.
Evang for being on escape?
A Say that again, now. I'm sorry,
Q Number two, the second numbered
Paragraph of this letter --
THE COURT: Quit pussyfooting.
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N MR. BOGER: Pardon?
2 THE COQURT: Quit pussyfooting.
3 BY MR. BOGER:
4 Q Did you have information --
5 THE COURT: Did Mr. Bartee tell you
b that Mr, ~-
7 What's his name?
8 MR. BOGER: Parker.
9 THE COURT: ~-- Parker had called you up
10 and so and so is the question you want to
31 ask, and you have an objection?
Y: MS. WESTMORELAND: Your Honor, I do
13 object to this hearsay.
14 THE COURT: Ali right. I have read jt
ih and obviously that's evidence on the Giglio
16 claim. I think if you wish to proffer it --
17 MR. BOGER: 1 do wish to proffer it.
18 THE COURT; 1 am obliged because of the
19 basis of the objection that it not
20 admissible evidence in form to overrule it
21 but 1. will let vou put it in the record in a
24 proffer, so you can do whatever you wish to
23 do with {¢.
24 MR. BOGER: All right, I will proffer
w 25 the -- proffer the -- let's see. At this
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1 point I haven't offered the document.
4 BY MR. BOGER:
3 Q Mr. Kelsey, was one of the reasons that
4 you had been informed that the Evans escape
. Prosecution was being dropped is because of the
6 letter from --
7 | THE COURT: I told you you could put
8 the letter in evidence.
9 MR. BOGER: Oh, I'm sorry, Your Honor.
10 Then IT will ~~
Li THE COURT: Not in evidence but as a
Ld marked exhibit which I have declined which
13 will remain a part of this record if you
14 want. If the Court of Appeals wishes to
15 elther ~-- if fit gets to thig ~- overrule my
16 evidentiary objection that it is hearsay or
17 my relevancy objection in that that ig --
Le that evidence is as to a claim as to which
LY this petition is Successive, if they want to
20 get over all of that, then they can look at
21 the exhibit. If they want to admit jt into
22 the evidence, overrule my evidentiary ruling
23 then they'll have it there and they can lock
24 at it. Let's not waste any more time on it
w 25 is what I'm trying to say.
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MR. BOGER: No, I didn't -- it wasn't
clear to me that you'd permitted me to
proffer that into evidence and I will do so.
I have no further questions of this
witness.
THE COURT: Anything, Ms. Westmoreland?
MS, WESTMORELAND; No, Your Honor, I
have no questions for Agent Kelsey,
THE COURT: Mr. Kelsey, we appreciate
You being with us, It's a pleasure to see
you. I didn't know there was a single
F.B.1. agent left in Atlanta that I knew.
THE WITNESS: Very few.
M8. HUNT: Your Honor =--
TBE COURT: When I saw who did the
report I looked at Ms. Hunt and I says, well
I guess he's either retired or been trans-
ferred and she said no, he's here. I was
amazed. I just knew that was going to be
another witness problem for Mr. Boger,
All right.
MS. HUNT: Your Honor, Nina Hunt with
the U.S. Attorney's office for the record.
May this witness be @Xxcused permanently?
THE COURT: Yes,
MS. HUNT: He's got some thing that
he has to do.
THE COURT: Yes.
MS. HUNT: Thank you.
(Whereupon, the witness was excused
from the witness stand.)
THE COURT: Call your next witness,
MR. STROUP: Your Honor, we're at a
Point in the Proceedings to where we wish
to request some additional time as to
witnesses, I would like to report to the
Court our efforts to Obtain some additional
testimony. One, we wish to offer the
testimony of G.B.I. agent Carl Neeley who
we dispatched personnel to subpoena him
this morning immediately after identifying
his name from the F.B.I. file. We were
advised initially that he was on the
eleventh floor. When our investigators
went to serve him on the eleventh floor they
were advised that he hag never been heard of
and that he was simply not around.
In the last 15 or 20 minutes I was able
to reach Gail Robinson at the Attorney
General's office at Ms. Westmoreland's
Suggestion, as he was the Attorney General
assigned to the G.B.I. I spoke with him.
He has, in fact, confirmed that Mr. Neeley
is assigned to the eleventh floor. I have
simply not been able Physically to --
THE COURT: The eleventh floor, I
believe, is the Drug Task Force. They're
very secretive, so they --
MR. STROUP: Right, Well, I have not
been able to get a body headed back down in
that direction to make a separate run at Mr.
Neeley. Secondly we ~~ we, this morning
have tried upon the mention of one
Lieutenant Ulysses Worthy whose office --
who was at the Fulton County Jail in 1978
and was identified a the officer in whose
office this statement was taken, We have
attempted to subpoena him for 2:00 o'clock
and unfortunately my information is simply
that the investigator from the Public
Defender that was made available to us was
on her way to serve the subpoena. That
was approximately an hour ago that I had
that information, Just before we cane back
into the courtroom,
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As to more long-term request, I simply,
given the Court's disposition or not
disposition but Court's indication of where
we were and the Court's view of the time
frame, I understand this fequest is probably
for the record but I would like to make it
for the record, we have since last night
when we obtained the names of a Lieutenant
Whitmire and the Lieutenant whose name I
think is actually Eddie Geouge, G~e-u~g-e,
but {it --
THE COURT: There was a U.S.pP. employee
by that name. I remember him as being
witnesses -- witness.
MR. STROUP; Okay. Well, after some
difficulties we have Come up with that name
a8 perhaps Grouse or the Gould who is the --
who is mentioned in the memoranda he -- our
information -- our most recent information
is that Whitmire has retired. The Public
Defender's office is making some effort to
locate him through other counselors who
they have had dealings with at the Federal
Prison, but at this Point in time they
haven't, as of noon, they had not been able
to give us any information as to his where-
abouts,
And Mr. Geouge, the information we
have is that he has been assigned to a
facility in Wisconsin, We think that they
are material particularly as to their
Conversations with Mr. Parker and therefore
we would request additional time to permit
us to bring their testimony in.
THE COURT: Unless you know something
that I don't know, the records don't
indicate anything other than Offie Evans
furnished that information, that it was
reliable and that's why he =--
MR. STROUP: Well, I think that the
only other information --
THE COURT: If you're trying to prove
that he was a snitch for them, I think
it's of record. If you're trying to find
out something else, I don't know what it is.
MR. STROUP: l == 1 ==
THE COURT: Let me say this to you:
One way we can handle the Geouge matter is
1f you fellows can find him I can authorize
You to take a telephone deposition which I
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will just sit there and listen to.
MR. STROUP: Thank you, We will push
ahead with those efforts but we still have
our situation with Mr. Neeley and former
Lieutenant Worthy we understand is employed
at Spellman, at Spellman College at this
point in time and that's where the Public
Defender's investigator has gone to see
if he can be brought in.
THE COURT: Let me say this to you:
Based on what I know, unless You all know
something I don't Know, the only witness
that is out there that's germain to this
to this case that You haven't called,
reasonably germain to this case that you
haven't called is Offie Evans, And I
appreciate the fact that you're doing all
you can --
MR. STROUP: Right, Actually, also,
for the record -- right -- I'm sOorry. His
name did get off -- and 1 would like to make
clear for the record we again sent our --
the private investigator who we have hired
Previously, we sent him again --
THE COURT: Who I understand is a
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former F.B.1I. agent.
MR. STROUP: Correct, correct. And
again he has cone up empty-handed. And 1I
expect for the record I should move then for
Some stay and some additional time for us
to obtain his testimony.
MS. WESTMORELAND; Your Honor, might I
tespond to the request briefly?
THE COURT: Certainly,
MS. WESTMORELAND: First of all, as to
Mr. Evans, he was in the State habeas corpus
hearing and he testified there and they had
every opportunity to question him about
anything they could imagine at that point in
time. We have no indication that he will
ever be found, much less that he will be
found in some reasonable time frame,
THE COURT: Well, he's been on cross
twice by the Petitioner.
MS. WESTMORELAND; And secondly, as to
the other witnesses listed, Particularly
Lieutenant or Captain Worthy I believe one
witness testified before the Court that the
interview was held somewhere besides Captain
Worthy's office. One witness did indicate
it was in Captain Worthy's office. No one
has testified that Worthy was anywhere near
by, talked to Evans, talked to anybody, had
anything to do with it except providing an
office.
I see absolutely no testimony that he
could provide that would be relevant to the
Proceedings whatsoever,
THE COURT: Well, the only -- if he
came in here and said yeah, I had an office
out there and I know all these people and
they never under any circumstances ever used
my office, I guess that would be
interesting,
MS. WESTMORELAND: It might be inter-
esting, but I'm not sure what it would have
to do with the question before the Court.
TBE COURT: Well, it would tend to
undermine some of the other testimony in
the case, I guess.
MS. WESTMORELAND: As 1 indicated, Your
Bonor, I think one witness's recollection is
somewhat different an I believe it was
Detective Harris that recalled it was in his
office.
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But once again what that has to do with
the Massiah claim, I fail to see. I also
fail to see what any testimony from either
== 1 believe it was Lieutenant Whitmire or
Lieutenant Geouge would have to do with the
Massiah claim at this Point in time. We're
back to talking about the information they
may have provided to Mr. Parker, We've had
Mr. Parker testify and we've had the detec-
tives testify. We have this information
they obtained after the statement was
obtained relating to Offie Evans.
I simply don't see the relevancy of any
of these witnesses’ testimony at this point
Or prolonging these Proceeding any further
than they have been prolonged.
THE COURT: I'm guessing that Mr. Boger
wants to go on his informant Plenipotentiary
theory, would like to Justify Mr. Evans’
status as an informant on two other
occasions. That's the only conceivable
relevancy. As I've indicated, I don't think
that gets it.
MR. STROUP: Well, and, Your Honor, as
well I think that to the extent they may
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be able to add information regarding any
conversations they themselves had with Mr,
Parker that he himself doesn't recall or
indeed if they had conversations with
Atlanta Bureau of Police Services Personnel
that the Atlanta Bureau of Police Services
said they didn't have.
THE COURT: I will -- to answer your
question, let me put it to you this way. I
appreciate the fact that this is a death
Penalty case and I don't know how you all
feel about it, but the way I feel about it
is that I've been letting y'all conduct
discovery at my expense for the last two
days just out of an abundance of caution
and there is some end, not to my patience
but to the extent to which this can go. I
will leave the record open for the balance
of the day and require the parties to be
in attendance, but I am not disposed to
believe that it is necessary to do so beyond
that time. I think it would be nice and
tidy if you had F.B.I. Agent Neeley; that
way we will have completely closed the
arrest sequence of Mr, Evans to the extent
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any of us know how to do it.
I really feel like those Penitentiary
employees are -- except on the informant
Plenipotentiary issue are really not
directly helpful to the ~- I mean you can't
even make a proffer of how they'd be
helpful, you don't know.
MR. STROUP; That is correct. I've not
spoken to any of them and --
THE COURT: So I don't think that would
be any reason to continue it, I don't know
that there is any reason to suppose that
somebody that is as street wise as Offie
Evans is is going to fall out of the sky on
a given day. And certainly you all have had
opportunities to cross him twice, both at
trial and on a previous date. I'm not
disposed to continue it past today just to
let that happen.
MR. STROUP: Well ~~
THE COURT: If you were in a position
to make a proffer as to what he would
testify to, I might have a different opinion
but you're not --
MR. STROUP: 1 appreciate that, Your
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Honor. I simply would note for the record
really in response more to what Ms.
Westmoreland said, that again in terms of
our opportunities to Cross-examine him, we
in fact have not had Opportunity to cross-
examine him with his Prior written state-~
ment, which, of course --
THE COURT: AS you have as much as
completed the Massiah issue Occurred to you
early on and you indicated one or two
reasons why you got discouraged, but I don't
know what that would prevent You from
asking -- I can't remember now, Did you
ask him about --
MR. STROUP; Well, there was examination
with him -- examination of QOffije Evans was
in an effort to develop the Massiah claim,
You know, I didn't ask him about prior
written statements, You know -- THE COURT: Well, the bottom line --
YOu may be able to play good lawyer games
with him ang the written statement, but the
yes, Mr. Stroup, they put me in there ang
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they said listen and ask, and you have had
a chance to ask that question you haven't
and you have no reason to believe that he
would say yes if you asked {t today.
MR. STROUP: But, for that matter, 1I
had no reason to expect he would say yes in
response to the question of did you have
any understanding with Offie -- with any of
the Atlanta Police officers.
I really think that given the critical
nature of his role in this situation and the
additional information that we have that we
ought to be permitted additional time. I
would note that for the record.
THE COURT: If you were in a position
to proffer that if he was here he would
testify --
MR. STROUP: Right.
THE COURT: =-- I think you would have a
basis.
MR. STROUP: Right. Right.
TBE COURT: But you've had two bites at
the apple, didn't do it, you didn't do it
and you've got no reason to believe he's
going to testify to it and I'm not going to
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leave the record open any longer than today
on ie,
Why don't we recess. I am particularly
interested in agent -- G.B.I. Agent Neeley.
Would you use your good offices to find him
and get him here?
M8, WESTMORELAND: Your Honor, I --
apparently Mr. Robinson has better contacts
than I do in doing that. I don't know --
I'll check and see what Success he has had.
MR. STROUP: If it was left that he
didn't have any Particular power with
respect to the eleventh floor and --
THE COURT: The eleventh floor is under
the auspices of the United States Attorney.
Give Mr. Barham my regards and tell him to
get the agent up here if that's --
MR. 8TROUP: All right, Thank you.
I'll proceed with that directly.
TBE COURT: Ms. Hashami is here. Do
You have anything of recent vintage to
report to Mr. Stroup?
(Brief pause.)
MR. STROUP; The only information that
we have to report is that Ulysses Worthy was
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to be here at 2:00 o'clock. Apparently he
has been served.
THE COURT: I've got a host of Other
People who are trying to get my ear 80 I'm
going to go in Chambers. You all run Mr.
Worthy down, run Mr. Neeley down. If vou
want to try to get Mr. Geouge on the
telephone we'll take @ telephone conference
call and that ought to wind it up.
Bll right. We'll be in recess until
further orders,
(Whereupon, 4 recess was taken.)
MR. STROUP: == in touch with Mr.
Neeley and I think the parties have entered
into some agreement with respect to what
his testimony would be were we to call
him instead of calling him, Is that fair
to say?
MS. WESTMORELAND: The problem is I
think Mr, Neeley is out at Stone Mountain
and it takes some time to get here, I
think I generally understand, aside from
the one document that is here, that we
have discussed Previously 1 don't think he
would have much additional to offer and I
think we just sort of worked out a general
agreement as to what his testimony would be
if he were here.
THE COURT: You all had an opportunity
to ask him if he set him up to go {in --
MR. STROUP: Right. One of the
additional points was that he -- the
stipulations as to his testimony I think
are all basically with respect to what's
been previously identified ag Plaintiff's
Exhibit 12, which was not previously
admitted,
Correct me if I'm wrong in any of my
representations, He indicated when I read
that statement to him that indeed all of
that did sound to correct to him as to
what transpired. As to conversations -- as
to the statement contained in Plaintiff's
Exhibit 12 to the effect that he recently
had several conversations with an
individual known to him as Offie Evans,
he indicated he had no Prior dealings with
Offie Evans prior to those conversations
referred to in that gentence,
Was there anything else? I'm sorry,
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MS. WESTMORELAND: I believe he said
he didn't -- indicated he did not recall
any of the substance of any of those.
MR. STROUP: Correct, correct, And
I think that that is it.
TBE COURT: What is the stipulation?
MR. STROUP: That his testimony
would -- were we to call him his testi-
mony would be as the statements are
recited in Plaintiff's Exhibit 12 as to
what transpired, that he recently --
shall I read it into the record or -- he
recently had several conversations with
an individual known to him as Offie Evans.
Be also had recently been advised
subsequent to these conversations with
Evans that Evans was a Federal escapee by
Special Agent David Kelsey of the Atlanta
P.B.1. Office.
On the morning of July 3, 1978 he
had occasion to speak with Evans on the
telephone in his office. Since Evans
resided near his office he dispatched
G.B.I. Agents Bruce Pickett and Moses
Ecter to 2905 Springdale Road, Southeast,
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Atlanta, Georgia while he was still
speaking with Evans on the telephone
Pickett and Ecter arrested Evans,
Evans was detained at the G.B.I.
office until the arrival of Special Agent
David J. Kelsey.
MS. WESTMORELAND: I think the only
addition to that would be that he had no
prior dealings with Mr. Evans before the
conversation referred to in this document.
THE COURT: You accept that as an
amendment to the stipulation?
MR. STROUP: Correct,
THE COURT: All right, The stipula-
tion will be received. Now, gentlemen, you
believe that you have obtained as much
truth from Mr. Neeley as you would have had
you had him under oath on cross-examination?
MR. STROUP: I think we can say yes,
Your Honor.
THE COURT: I don't mind insisting upon
his appearance.
MR. STROUP: I was satisfied to the --
I was satisfied on the phone that he was
telling it as he would tell it if he came
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here.
THE COURT: Fine.
MR. STROUP: Now, the other situation
is in addition to Mr. Worthy is that we have
through the Public Defenders I tried
directly to speak with Mr. Gould and from
the pay phone I got hung up on, being held,
you know, I was put on hold three times and
no one came back. S80 rather than keep
putting the quarters in the phone I asked
the Public Defenders investigator to call
and make contact with him and state
specifically only -- inquire only as to
whether he had a recollection of Offie
Evans, Offie Gene Evans and with no further
details.
She did reach him, he is available at
the office. He indicated that he -- the
name Offie Gene Evans did not mean anything
to him, however if we had more specifics to
offer maybe something would come to his
mind. And that's where we have left it, I
would propose that we go ahead with the
phone conversation as you suggested. We
just have not done anything further because
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of my difficulties with the phone and my not
wanting the investigator to get into the
details herself about the matter.
(Whereupon, a discussion ensued off
the record.)
MR. STROUP: Yeah. Or alternatively
Jack suggests perhaps 1 get back onto the
phone and try to reach him directly and see
whether he has anything to say before we all
get on.
THE COURT: Well, I will take you into
my office now and give you an F.T.8. line so
you don't have to waste your quarters. We
may do either. I can either take a court
reporter in there and you can take it down
and get the contemporaneous reactions of the
witness or you can interview him first.
(Whereupon, a discussion ensued off
the record.)
MR, STROUP: We would prefer to do it
with the -- do it just extemporaneocusly with
the court reporter taking it on the record.
THE COURT: All right, And then aside
from that the only other witness you've got
is Mr. Worthy?
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MR. BOGER: That's right, Your Honor,
and I think he'll be quite brief.
THE COURT: What's your preference.
You want to go get Gouch first or second?
MR. BOGER: I think perhaps Mr. Worthy
has been here waiting and he's got I think
some family obligations. I'd be happy to
accommodate him if we could do that.
THE COURT: All right, Mr. Stroup,
give Mrs. Page the number that you have been
given for Mr. Gouch so that she can go and
have my secretary call him and tell him to
stay put until we get there,
All zight, sir. If you will, get Mr.
Worthy in and we'll do that.
MS. WESTMORELAND: Your Honor, there's
one problem. Mr. McCleskey 18 not in the
courtroom. He wasn't here when we made the
stipulation. I don't know if that's a
problem,
THE COURT: I don't know if he's got a
constitutional right to be present at this
proceeding.
MR. BOGER: He does actually have such
4 -—- it's not a constitution right but it's
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a statute. We'll certainly waive his
presence for the stipulation, assuming he's
on the way back and it's just a matter of
his coming, I think we'll waive his
presence.
THE COURT: Open the door, Mr. Stroup
and see if they're in there. I heard
coughing just a moment ago.
MR. BOGER: There were witnesses to
whom I believe his presence was quite
important.
THE COURT: Well, he's been here except
for the last five minutes.
MR. BOGER: That's correct, If the
Court is inclined to wait, I'll be -- that's
obviously fine by us and the client --
THE COURT: Apparently he'll be here in
a minute or two, Just go get worthy and
let's get him sworn and we'll be ready.
Come up front to be sworn if you will.
(Whereupon, a discussion ensued off
the record.)
Whereupon,
ULYSSES WORTHY,
having been duly sworn, was examined and testi-
fied as follows:
EXAMINATION
BY MR. BOGER:
Q Mr. Worthy, what's your current
employment status?
A I'm clerk at Spellman College,
Q All right. And prior to 1981 what was
your employment?
A Fulton County Sheriff's Department.
Q What was your role at Fulton County
Sheriff's Department?
A I was a captain of the day watch in
charge of the jail detention.
Q That's at the Fulton County Jail?
A Fulton County Jail, yes, sir.
Q And captain of the day watch meant
what? What was your basic responsibility?
A Supervising of the employees and
inmates.
Q How long did you serve at the Fulton
County Jail?
A Approximately 19 years, 18 or 19 years.
Q And how long were you captain?
A Twelve.
Q All right. Do you recall an inmate in
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your institution in 1978 named Offie Gene Evans?
A Yes, sir I recall the name.
Q Okay. Do you remember ever having
conversations with Mr. Evans yourself?
A Yes, sir. I remember talking with Mr.
Evans. The nature of the conversation I just
can't really remember at this particular time.
Q Do you remember whether you ever spoke
with him about the death of police officer Frank
Schlatt?
A I believe we did mention that.
Q Did he ever tell you -- were You in the
presence of any other official, State -- City of
Atlanta, Atlanta Police or District Attorney or
someone from their office?
A You mean during the course of that
particular conversation?
Q During those conversations.
A 1 really don't recall during those
conversations,
Q Let me be more specific. Do you recall
any time when you may have met with Mr. Evans and
Detective Sidney Dorsey?
A Yes, sir, I believe so.
Q Okay. And do you recall during that
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conversation that you think you recall, whether
Or not you discussed the McCleskey case or the
Schlatt murder?
A If I can remember correctly, that
conversation was brought up between Detective
DoLaay and Mr. Evans. If I can recall.
Q And you were simply present, you were
not a participant?
A No, I was not a participant. I was
present.
Q Okay. Were any other people there at
that time or was that the three of you together?
A I don't recall whether his partner was
with him or not. I really don't know.
Q Okay. Do you recall Mr. Dorsey saying
to Mr. Evans that he wanted him to -- let me
withdraw that question.
Do you recall whether Mr. Dorsey asked
Mr. Evans to listen to what he heard in the jail
from those who may have been near him?
A No, sir, I don't recall that.
Q Do you recall whether he asked him to
engage in conversations with somebody who might
have been in a nearby cell?
A Seems I recall something being said to
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that effect to Mr. Evans.
Q Okay.
A But I'm not sure that it came from Mr.
-- from Detective Dorsey or who.
Q In other words, somebody present in
that conversation said that but you're not
certain whether it was Mr. Dorsey or perhaps his
partner or somebody else there?
A I'm really not sure.
Q Okay. Did Mr. Evans, to your
recollection, agree that he would do that?
A I'm not sure.
Q Now, during earlier proceedings in this
case Mr. Evans gave some testimony, I'd be glad
to show it to you if you'd like to read it, in
which he said at one point Mr. -- Detective
Dorsey promised to speak a word for him.
MS. WESTMORELAND: Your Honor, I'll
object to getting back into the Giglio
issue again.
THE COURT: If the purpose is refresh-
ing his recollection only, I'll allow it,
if it does,
BY MR. BOGER:
Q That he would speak a word with him
- 149 -
with respect to Federal charges, pending Federal
charges if he gave testimony against Mr.
McCleskey at trial, Do you recall whether
Detective Dorsey said that during this
conversation?
A NO, 8izx, 1.40 not.
Q Do you recall whether they discussed at
all what might be involved for Mr. Evans if he
would serve as a listening post during any of the
conversations with Mr. McCleskey?
A l:don't recall that, sir.
Q SO generally your testimony is then, as
I understand it, is that you're not sure about
those aspects of the conversation but you do
remember a conversation where Mr. -~- Detective
Dorsey was present and perhaps some other officer
as well and Mr. Evans and someone of those
officers asked Mr, Evans to engage in
conversations with McCleskey who was being held
in the jail?
A I believe so.
Q Okay. Now, did you ever have any
subsequent conversations where -- Or subsequent
meetings with Mr, Evans where he reported back to
either Mr, ~-- Detective Dorsey or his partner?
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A If I'm correct, I believe that he had
requested to call them.
Q In other words, after this meeting Mr.
Evans requested at some later occasion to call
those detectives?
A Correct.
Q And they came back out and met with him
or what?
A Well, they were out several times.
Q Okay. And do you remember at one point
Russell Parker or Detective Welcome Harris coming
and using your office to interview Mr. Evans?
A Yes, sir.
Q Was Sidney Dorsey there on that
occasion?
A I can't remember.
Q You weren't present during that
meeting, were you?
A At one time I was in the office but I
wasn't part of the meeting.
Q Okay. And sO that may well have been
the occasion you're talking about where Mr. Evans
called subsequently and came back -- they all
came back out?
A Could have.
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Q Now, Mr. Worthy, was there ever an
occasion during your twelve years as captain
where the police would ask to have someone placed
in a cell near another person on the
understanding that one of the people was likely
to listen in on the other inmate and maybe get
some information that would be useful to the
police?
MS. WESTMORELAND: Your Honor, 1
would object unless it's related to this
specific case. What may have happened
in other cases is totally irrelevant.
THE COURT: Overruled.
BY MR. BOGER:
Q You can answer.
A Yes, I have had that request.
Q And when a request like that was made,
would you honor it?
A Yes, sir.
Q Okay. Did that request need to be from
Louis Slayton or the head of the Atlanta Bureau
of Police Services or could any detective or
other person make that kind of request?
A Usually it would be determined by the
officer that's handling the case.
-ilB53
Q Okay. Do you recall specifically in
this case whether such a request was made?
A Yes, sir.
Q Who made the request?
A 1 really don't know, sir,
Q And was Mr. Evans put in a cell next to
Mr. McCleskey?
A To my recollection he was.
Q Okay. And that was at the request of
some officer who made the --
A The officer on the case.
MR. BOGER: Excuse me one second,
Your Honor.
(Whereupon, a discussion ensued off
the record.)
MR. BOGER: No further questions.
TBE COURT: Okay, cross,
EXAMINATION
BY MS. WESTMORELAND:
Q Mr. Worthy, let me see if I understand
this. Are you saying that someone asked you to
specifically place Offie Evans in a specific
location in the Fulton County Jail so he could
overhear conversations with Warren McCleskey?
A Yes, ma'am.
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Q When was that request made and by whom?
A I don't know exactly who made the ~~
who asked for the request but during this
particular time there were several interviews of
Mr. Evans by various officers.
Q All right. And --
A And the exact one that asked that
request be made, I really can't say now, I
really don't know.
Q All right. Now, 80 you're saying they
did -- they wanted Mr. Evans to go in and serve
as a listening post? 1s that what they asked you
to do?
A Well, they asked that he be placed near
Mr. McCleskey.
Q Was that when Mr. Evans first came into
the jail?
A I'm not sure whether that was when he
first came in or not. I'm not sure.
Q Mr. Worthy, do you remember having a
conversation with me out in the hall shortly
before this hearing began, early this afternoon?
A Yes,
Q DO you remember my asking you if anyone
ever asked you to plant someone in a jail cell or
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have them planted there to serve as an informant?
A Well, now, when you said plant I looked
at that differently than from someone who was
already in jail and being requested to be placed
in jail.
Q S80 you're saying that placing somebody
there you don't mean the same thing that you did
when you said -- when you were talking about
planting someone in jail?
A No, that's different.
Judge, may I clarify that?
Usually when they said plant someone in
jail, that someone is brought in off the street
and placed in there and in this particular case
this particular person was already incarcerated.
They just asked that he be moved near where the
other gentleman was.
Q Where was Mr. Evans housed when he was
originally brought into the Pulton County Jail?
A I really don't know. That's the casing
officer that take care of that, I really don't
know,
Q Do you -- you don't recall when {t was
that you were asked to move Mr. Evans then?
A No, not after he came into the jail, I
- 155 =
do not.
Q Do you have any idea how long a time
period might have passed?
A No, ma'am.
Q Do you know if he overheard any
conversations based on anything at that point in
time?
A At that time, I do not.
Q And you don't recall who made this
request of you?
A No, ma'am, I don't,
MS. WESTMORELAND: If I may have a
moment, Your Honor.
(Brief pause.)
MS. WESTMORELAND: Your Ronor, I don't
have any further questions of Mr. Worthy.
THE COURT: Redirect?
MR. BOGER: No questions, Your Honor.
THE COURT: All right, You can be
excused.
(Whereupon, the witness was excused
from the witness stand.)
THE COURT: Anything else for the
Petitioner?
MR. BOGER: I guess we have the
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telephone call to make lf that's been
arranged.
THE COURT: We'll adjourn to chambers
and find out.
(Brief pause.)
THE COURT: Mr. Geouge?
THE WITNESS: Yes, sir. Can I help
you?
THE COURT: This is Judge Forrester. I
don't know whether you remember me or not,
THE WITNESS: I do. I've been in your
courtroom.
THE COURT: I thought that was the
case. I am in the midst of conducting a
habeas corpus proceeding in the death
penalty case involving Warren McCleskey.
This is involved in what we know as the
Massiah claim, that is, whether or not
somebody was planted or placed nearby him in
the Pulton County Jail for the purpose of
getting information from the Petitioner.
Your name shows up on some records and
that we why we're calling you. I'm going to
have somebody under cath and technically
we're going to consider this to be a
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telephone deposition since I don't know if there's
anything in the Federal Rules of Civil Procedure to
allow this to be done otherwise, which will be admitted
for its content.
Mr. Robert Stroup will be the male speaker. He
represents the Petitioner. Ms. Mary Beth Westmoreland
will be the female speaker. She represents the
Attorney General of the State of Georgia and the
warden who has Mr. McCleskey in custody.
Do you understand what these proceedings are
about? Do you have any questions? Are you there?
THE WITNESS: Sir?
THE COURT: Are you there?
THE WITNESS: Yes, sir.
THE COURT: Did you hear me?
THE WITNESS: I heard you real plain. We have
a bad connection on my end, maybe.
THE COURT: Did you hear me say, do you have
any questions about what these proceedings are about?
THE WITNESS: Yes, sir, I did.
THE COURT: Mr. Stroup will be gin the
questioning.
MR. STROUP: How about placing him under oath?
THE COURT: Ms. Page will administer the oath
long-distance to you.
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Whereupon,
EDDIE GEOUGE,
having been first duly sworn via telephone, was examined and
testified as
record.
follows:
THE COURT: First, spell your name for the
THE WITNESS: Last name G-e-o-u-g—-e, E-d-d-i-e.
TEE COURT: Speak up good and loud. This cheap
telephone I have got doesn't work real well.
THE WITNESS: All right. I'll dothat
EXAMINATION
BY MR. STROUP:
Q
A
Q
dealing with
19782
A
Q
position?
A
Can you hear me?
Yes, I can,
What's your middle initial, while we're still
your name?
Yes, sir. That's "W" for Wayne.
Okay. Good enough. Where were you employed in
U. S. Penitentiary, Atlanta, Georgia.
And what was your job position?
I was a special intelligence supervisor.
What were your job responsibilities in that
That was to investigate criminal activity
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within the institution.
Q Okay. Just generally how did you go about
doing that?
A It would be according to what it is. There's a
lot of your activities cited in the institution that would
be considered criminal, the same as the street; narcotics,
narcotics dealing, possession of weapons, assault. There's
numarcua different things. Anything that could be criminally
prosecuted fell under my jurisdiction.
Q Okay. During your work in thatposition did
you have occasion to use informers?
A Absolutely.
Q All right. Do you have any recollection of
using a gentleman named Offie Gene Evans as an informant
during that time period?
A The name Evans rings a bell. I honestly can't
sit here and say I either did or I didn't. All I can say is
it's possible. I'd have to know -- it would have to be
something that I could put a particular case to, a bust
maybe or where we have actually busted someone doing some-
thing illegal.
Q How about a Counselor Whitmire? Does that
name mean anything to you?
A Absolutely.
Q Who was Counselor Whitmire?
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A He was one of the counselors at the institution,
a correctional counselor.
Q If I -- all right. Do you have any recollection
of working with Counselor Whitmire in investigating drug
matters in the prison?
A Absolutely. I worked with numerous staff and
especially the counselors.
Q Ail right. But that, in terms of refreshing
your recollection of Offie Evans, does that fact -- that
fact doesn't mean anything to you?
A Sure doesn't.
Q Okay. Does the name Russell Parker ring a
bell?
A No, sir, it doesn't, not offhand.
Q A Fulton County Assistant District Attorney by
that name?
A No, sir.
Q Do you have any recollection of a call to you
during 1978 by any Fulton County District Attorney asking
you for information regarding Evans working for you as an
informant?
A No, sir, I don't, not off the top of my head.
I just can't put anything with it at all.
Q Okay. Any recollection of telling anyone that
you thought one of the people who you worked with who might
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have turned out to be Evans was a professional snitch?
A I'm sorry, sir. I don't think I understand
what you're saying.
Q All right. I'm just trying to refresh your
recollection to see if Offie Evans comes back into your
mind about any of these details at all. Any recollection
that you are asked about Offie Evans and indicated that you
thcught he was a professional snitch?
A No, sir. I don't have any recollection of it.
THE COURT: Let me tell you everything we
think we know.
THE WITNESS: Okay, sir.
THE COURT: Offie Evans was serving a six-year
forgery conviction.
THE WITNESS: Yes, sir.
THE COURT: He was released C.T.C. He escaped
from there. Russell Parker, Assistant District
Attorney in Fulton County, apparently called a number
of people involved in law enforcement to find out
whether or not they considered Offie Evans to be
reliable. His notes reflect a contact with you and
Whitmire and some indication that you, one or the
other of you, said he was a professional snitch, that
he had provided you information and that you had him
in protective custody or solitary on account of that.
- 162 -
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Now, I think that's all we know about him.
THE WITNESS: Yes, sir.
THE COURT: Does any of that ring any bells?
This would have been in '78.
THE WITNESS: No, sir. I just can't -- nothing
fits. Honestly I'm not saying the conversation didn't
take place, but I just -- the particular name is not
significant. Neeley and Parker doesn't ring any bells.
THE COURT: Anything else?
MR, STROUP: I don't have anything further.
THE COURT: Mary Beth?
MS. WESTMORELAND: No, sir, I don't have any
questions.
THE COURT: All right. Pardon the
interruption.
(Whereupon, a brief recess was taken.)
THE COURT: Do you have any other evidence
for the Petitioner?
MR. BOGER: None, Your Honor.
THE COURT: You rest?
MR. BOGER: One moment , Please.
(Whereupon, a discussion ensued off the record.)
MR. BOGER: We do, Your Honor.
THE COURT: Ms. Westmoreland, I give you three
choices. I will stay the execution and let you brief
the record as exists. I will stay the execution and
let you put on a rebuttal case in Auqust, or I will
rule and you can go on to the Eleventh Circuit.
MS. WESTMORELAND: Your Honor, I don't think
it has very good choices along those lines, obviously.
May I have a moment to confer with counsel,
Your Honor?
(Whereupon, a discussion ensued off the record.)
MS, WESTMORELAND: Your Honor, I'm in sort of
an awkward position at this point because obviously
we don't think that the case has been proven at this
stage. It's my understanding that the Court is going
to stay the execution at this stage.
THE COURT: Wel, even if you had won I was
going to stay it for a few days. And I will rule right
now if you want to get it over with and get to the
Circuit, but I know you were surprised by Mr. Worthy's
testimony.
Do you want to have time to get up a rebuttal
case? I'm going to je out of the district for 20
days. I had arranged to get an opinion done if we
finish today, but I can't -- I haven't got time to
take any more evidence or to get right on top of a
brief. If we want to argue the record, we may, but
I'm going to have to stay it until August if you want
- 164 ~-
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anything other than a ruling right now.
MS. WESTMORELAND: Your Honor, I'll be frank
with the Court. At this point I'm not certain what
other evidence we would have. The witnesses that we've
had testify contrary to what Mr. Worthy said -- and
Mr. Worthy's testimony was a surprise to us at this
late stage in the proceedings. I am reluctant to
give up the record without any hunting -- sort of like
Mr. Boger's two-day fishing expedition --
THE COURT: You now need to go fishing.
MS. WESTMORELAND: I don't know if I need to
go fishing. This is my problem, Your Honor. Certainly
I -- I certainly am not in a position to conceding to
the stay of execution yet. Yet, on the other hand,
I'm in the position of having to --
THE COURT: Well, I don't want -- I'm not trying
to put you in the position of consenting to a stay. All
you have to do is tell me which one of the three you
want to do and I will act accordingly. I am not trying
to put you in the position of saying I agree to a
stay. I realige that that has consequences, but if the
State wishes either to -- I earlier held that this
issue was abused and let the evidence in -- the evidence
was proffered and at some point in time you objected
and I told you I wasn't going to send up a half loaf
er
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at that point, and here we are. If you want to try
to brief and convince me that my original ruling shoul
stand, notwithstanding the fact that we have this
evidence of a constitutional violation, you can do
that.
But I can't rule on that until August when I
get back. You probably couldn't even get in a brief
quick enough to really stay within the window, as a
practical matter. If you want to hold the record open
for your rebuttal case until August, I'll let you do
that. Or if you want me to rule and you can appeal
at your own leisure, then I'll do that.
MS. WESTMORELAND: Your Honor, I think out of
choices probably the most preferable choice is to
leave the record open to see if we can obtain a
rebuttal case. Like I said, I'm reluctant to represen
to the Court that them is something that I can find.
I simply don't know.
THE COURT: Well, I haven't asked you to. I
have indulged Mr. Boger in a fishing expedition for
two days and he has caught a nice-size fish. I think
that you're entitled to the game opportunity.
All right. Stay the execution in the case of
McCleskey versus Kemp, it will be stayed indefinitely.
The first order of business that I have when
- 1168 w
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I return is a case in which I have a speedy trial
problem, U.S. versus Sun. You will follow that. At
that time, whatever day that ends, and that's a three-
day case, you'll be next and you'll then do whatever
you're going to do or else.
MS. WESTMORELAND: Can I ask when the Court
is expecting for that case to begin, so I'll have a --
THE COURT: It begins on the 4th, doesn't it?
MS. WESTMORELAND: Your Honor, I have an
Elaventh Circuit on the 6th, but it sounds like the
Court is still tied up on the 6th.
THE COURT: Unless Mr. Sun pleads guilty, and
I doubt it. As an aside, he has sued virtually
everybody in the State of Georgia and I don't see that
kind of person pleading guilty.
MS. WESTMORELAND: I doubt it, Your Honor.
THE COURT: Most recently he sued all of the
attorneys in the private civil case, the judge, the
court reporter, the courtroom deputy and all the
jurors. So I don't think he's going to plead guilty
and it's about a three-day case. We may get started
on a Friday and it may be the followign Monday. But
so there is a time certain by which the State must
respond, I will set that and let you follow that.
MS. WESTMORELAND: The only commitment I know
- 167 =
I might have is that Eleventh Circuit argument. But
if need be -- it happens to be the case of Bernard
Dupree, Mr. McCleskey's codefendant, actually.
THE COURT: It's here?
MS. WESTMORELAND: It's in the @leventh Circuit,
Your Honor.
THE COURT: I'll work around you with that.
HS. WESTMORELAND: Due to the lengthy record
in that case, I would hate to have to ask someone
do that argument and would appreciate the consideration.
THE COURT: Anything further for the
Petitioners?
MR. BOGER: Nothing, Your Honor.
THE COURT: All right. Ms. Westmoreland, if
you determine sometime shortly before that time -- let's
put a time table. I want you to have decided by
Tuesday prior to the 4th, whatever that date is, whether
or not you're going to put on evidence, and if so, give
Mr. Boger some notice of who you're going to call and
the fact that you're going to put on evidence and also
notify my personnel.
If you determine that you're not going to put
on any evidence, but wish to brief, notify Mr. Boger
of that fact and also my personnel; and your brief
will be due ten days from that Tuesday.
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MS. WESTMORELAND: The Tuesday before the
4th?
THE COURT: That's right. If you determine
that you wish to do neither, simply notify my personnel.
We will have no hearing, no briefing, and I:will render
an opinion, of course, after I return. Is that clear
to everybody?
MR. BOGER: Yes, Youxr Honov.
THE COURT: All right. If nothing else, this
Court will stand in recess until further orders.
(Whereupon, the proceedings were adjourned.)
-169-
EERTIIFICATE
UNITED STATES OF AMERICA,
NORTHERN DISTRICT OF GEORGIA:
I, Margie Larkin, Official Court Reporter
Pro Tem for the United States District Court for the
Northern District of Georgia, do hereby certify that the
foregoing 16% Pages constitute a true cvranscript of
proceedings had before the said Court, held in the City
of Atlanta, Georgia, in the matter therein attached.
In testimony whereof, I hereunto set my hand
on this, the 13th day of July, 1987.
MARGIE LARKIN, CCR-B-686
Official Court Reporter Pro Tem
and Notary Public