Petition for Rehearing
Public Court Documents
February 15, 1985 - March 26, 1985

22 pages
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Case Files, McCleskey Legal Records. Petition for Rehearing, 1985. 7a6a7684-63a7-ef11-8a69-6045bdd6d628. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ee4a11cf-ce80-401d-afc4-d9e9aaef4283/petition-for-rehearing. Accessed June 13, 2025.
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IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT NO. 84-8176 WARREN McCLESKEY, Petitoner-Appellee, and Cross-Appellant, -against- RALPH KEMP, Superintendent, Georgia Diagnostic & Classification Center, Respondent-Appellant, and Cross-Appellee ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION PETITION FOR REHEARING EN BANC ROBERT H. STROUP 1515 Healey Building Atlanta, Georgia 30303 J. LEVONNE CHAMBERS JAMES M. NABRIT, III JOHN CHARLES BOGER, 99 Hudson Street New York, New York 10013 TIMOTHY K. FORD 600 Pioneer Square Seattle, Washington 94305 ANTHONY G. AMSTERDAM New York University Law School 40 Washington Square South New York, New York 10012 ATTORNEYS FOR PETITIONER-APPELLEE AND CROSS-APPELLANT CERTIFICATE OF COUNSEL I express a belief, based on a reasoned and studied professional judgment, that the decision of the Court is contrary to the following decisions of the Supreme Court of the United States and that consideration by the full court is necessary to secure and maintain uniformity of decisions of this Court: Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763 (1972) Napue 'v. Illinois, 360 U.S. 264, 79 5.Ct. 1173 (1959) Pyle .v. Kansas, 317 U.3. 213, 63 S.Ct. 177 (1942) Toba. ROBERT H. STROUP v Attorney for Petitioner Certificat Table of C Statement Statement And Dispo ARGUMENT. . x. CONCLUSION TABLE OF CONTENTS Page e Of Counsel ....... ‘oat aii EN EE En RAR “iv ows ink ET sa RNS CR I Te eT | TT ETE Of The I88Q0B. vies ive cil.” PLAIN OSI I RR, of the Course of Proceedings Bition Of CASE. ves vsevrnssisnssivoveinss ceive SS 99 8 05500 9 0606006060088 906060.060806060600.09000¢0 ® © © © © © 0 0 0 o THE NONDISCLOSURE OF AN UNDERSTANDING BETWEEN ATLANTA OFFICER DORSEY AND OFFIE EVANS, A KEY WITNESS AGAINST WARREN McCLESKEY, VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AME NDI ENT, ets ss sins vs bln nncivesinserivnnnnetesu, A. Well-Established Federal Authority Provides That The Withholding Of A Promise Or Under- standing Of Leniency As To Future Prosecution By Any Member Of The Prosecution Team Contravenes Due Process.. B. Nor Do The Specifics Of The Understanding Between Detective Dorsey And Offie Evans Provide A Basis To Distinguish This Case From Napue or Giglio. ..vveceenes Se canirisens C. The Majority's Harmless Error Analysis Is Also Inconsistent with Supreme Court EL TL SR RIC aa 8 Ne save vivevenas D. Contrary To The Court's Analysis, Georgia Law Holds That The Admission Of A Jail- house Confession, In a Primarily Ld Circumstantial Case, Cannot Be Harmless....1l1 Table of Citations Barbee v. Warden, Maryland Penitentiary, S33 F.20 B82 {4th Cllrs) 1964) veer rvvivavevvnvireisnsssneevs 4 Blanton v. Blackburn, 494 F.Supp. 895 M.D, La., 1980), aff'd, 654 F.24 719 Sth Cir., Unit A., OBO). dieser bsnvssonnsssnnssssocevine 6 Boone v. Paderick, 541 F.2d 447 (41h Cir., 1976) cov oroices iaie seat ven vee in eia Sees 4,6 Campbell. v. Reed, 594 F.28 4 {4th Cir.; 1979) cere ssvevevns 6 Curran v. State of Delaware, 259 F.2d 707 SEA Cr ty 1908). seco cviss ve iisnecnineedsenovnniianssnaoess 3,4 DuBose v. Lefebre, 619 F.2d 973 (2nd Cir., 1980)...ccc.... 6 Freeman v. State of Georgia, 599 F.2d 65 5th CI, T9700) aie snes sens ssssvncsdnnes even sins nannies sie 3 Giglio v. United States, 405 U.S. 150, 92 8.CE. 763 (1072) cancun ivsnnsnssssnsaesnsnsnnas '«.. Passim McCleskey v, Zant, 580 P.Supp. 338 (N.D.Ga. 1984)..cvuvnes 1 Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173 ALS OE ss seis s nin age isis ars aiviioesvsnsinsesesvenivens Passim Pyleiv, Kansas, 317 U.S. 213, 63 S.Ct. X77 (1942)... uv. eu3 Schneider v. Estelle, 552 F. 2d 593 (5th Cir., 1977)...... 3 Smith v. State of Florida, 410 F.2d 1349 A BEN CA wy 10D) ee even cus esasisnntes ites tnessssessisiwvess 3 Spencer v.. Zant, 729 P.24 1293 411th Cir. 1984) ..cccvereen 1 United States v. Butler, 567 F.2d 885 ED CLT. LOE Yc vce nas ve anise ovens nes snonuiesnoioneestss vies 4 ii United States v. Turner, 490 F.Supp. 583 (E.D. Mich., 1979), aifirmed, 633 F.24 218 (6th Cir., 1980) ..csvsceccccsnnsnsesa Walravan v. State, 250 Ga. 401 (1982) ® © © © ®@ © © © © © © © © © 5 © & ® © O° oo Williams v. Brown, 609 F.2d 216 (5th Cir., 1980)...+444.... Williams v. Griswald, 743 F.24: 1533 (11th Cir., 1984). .4u0s 1ii IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT NO. 84-8176 WARREN McCLESKEY, Petitioner-Appellee, and Cross-Appellant, -against- RALPH KEMP, Superintendent, Georgia Diagnostic & Classification Center, Respondent-Appellant, and Cross-Appellee On Appeal From The United States District Court For The Northern District of Georgia Atlanta Division PETITION FOR REHEARING EN BANC Statement of The Issues. (1) Whether the deliberate failure of a key state witness to disclose an understanding reached between him and an Atlanta police official in exchange for his testimony against Warren McCleskey violated Napue v. Illinois, 360 U.S. 264 (1959) and Giglio v. United States, 405 U.S. 150 (1972). (2) Whether this wilful non-disclosure by a state witness, if a violation of due process, can nevertheless be deemed "harmless error," beyond a reasonable doubt. Statement of the Course of Proceedings and Disposition of Case This habeas corpus proceeding was filed in the United States District Court for the Northern District of Georgia on December 30, 1981. On February 2, 1984, the District : Court granted petitioner relief on the basis of an undisclosed promise to a witness at McCleskey's state court trial. McCleskey v. Zant, 580 F.Supp. 338 (N.D.Ga. 1984). The respondent appealed, and petitioner cross-appealed. This Court, on its own motion, ordered hearing en banc on March 28, 1984. Spencer v. Zant, 729 F.2d 1293 (llth Cir. 1984). 1In its decision dated January 29, 1985, the Court, inter alia, reversed the District Court's grant of the writ. McCleskey v. Kemp, No. 84-8176 (llth Cir. January 29, 1985) (en banc) (hereinafter "McCleskey slip"). Statement of Facts ~ The petitioner, Warren McCleskey, was tried for murder in the shooting death of an Atlanta police officer - during the course of a robbery. Evidence against the petitioner was essentially circumstantial in nature. No murder weapon was found; no witness to the actual shooting testified. The State offered the testimony of a witness, Offie Gene Evans, who testified that, while incarcerated at Fulton County Jail, the pet ibionet confessed to Evans that he indeed was the killer of the police officer, and that he would have done the same thing if it had been twelve officers, rather than one. Aside from the testimony of accomplice, Ben Wright - who was himself the possible trigger person - this was the only direct evidence that McCleskey was the killer. It was the only evidence from any source that McCleskey had expressed pride in such conduct. At trial, the witness denied that his testimony was prompted by any deals or promises made concerning federal escape charges which were then pending against him. In fact, Evans knew that Atlanta Police Detective Dorsey had expressly agreed to speak to federal authorities on his behalf regarding the escape charges, in light of his cooperation in this Petitoner's case. To further diminish the significance of his pending charge, moreover, Evans expressly told the jury it was nothing more than a misunderstanding. ouite to the contrary, however, federal records indicated that Evans had left the federal institution rather than face drug charges which had been lodged against him. After his arrest he admitted to the drug use, and told federal authorities he had been working for the Staté while on escape, and expected to be well paid for his efforts. Following Warren McCleskey's trial, the promise made to witness Evans was evidently kept. All Federal charges against him were dropped. I tte ve i mn However, claim that 1980, Evans ARGUMENT 1. THE NONDISCLOSURE OF AN UNDERSTANDING BETWEEN ATLANTA POLICE OFFICER DORSEY AND OFFIE EVANS, A KEY WITNESS AGAINST WARREN McCLESKEY, VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. A. Well-Established Federal Authority Provides That The Withholding Of A Promise Or Understanding Of Leniency As To Future Prosecution By Any Member Of the Prosecution Team Contravenes Due Process. A majority of this Court rejected petitioner's claim that Offie Evans' deliberate failure to disclose his understanding with an Atlanta police officer that prompted his testimony against Warren McClskey violated the due process clause as interpreted in Napue v. Illinois and Giglio v. United States. There is, however, no appropriate basis to distinguish this case from either Napue or Giglio. See McCleskey slip, 9-10. The Court's suggestion that the Giglio claim fails because a police detective, rather than the prosecutor, made the promise herein, is error. In Pyle v. Kansas,’ 317 U.S. 213, 63 8.Ct. 177 (1942), the Supreme Court rejected such a limitation on the reach of the due process clause. There the Court held that the conduct of police officers which was andisclosed to the prosecuting attorney contravened due process. The fact that police officers, rather than the prosecuting attorney, were the wrongful actors in Pyle, supra, is detailed in Smith v. State of Florida, 410 F.2d 1349 (5th Cir., 1969) and Curran v. State of Delaware, 259 F.2d 307 (374 Cir., 1958}. This Circuit, as recently as Williams v. Griswald, 743 F.2d 1533, at 1542 (llth Cir., 1984) has held that ntilt is of no consequence that the facts pointed to may support only knowledge of the police because such knowledge will be imputed to state prosecutors."). Former Fifth Circuit cases also so held. Smith v. State of Florida, 410 F.2d 1349, 1351 (5th Cir., 1969): Schneider v. Estelle, 552 F. 2d 593, 595 (5th Cir., 1977); ("The petitioner does allege, however, that Nicholson was a state law enforcement officer. As such, he was a member of the prosecution team"); Freeman v. State of Georgia, 599 F.2d 65, 69 (5th Cir., 1979) ("We feel that when an investigating officer willfully and intentionally conceals material information, regardless of his motivation and the otherwise proper conduct of the state attorney, the policeman's Condes must be imputed to the state as part of the prosecution team"); Williams v. Brown, 609 F.2d 216 {5th Cir., 1980). Other circuits which have considered the question have, universally, concluded that an undisclosed promise from a police officer constitutes a due process violation. Curran v. State of Delaware, supra, ("We conclude, as did the court below, that the knowingly false testimony of Detective Rodenheiser . . . was sufficient to cause the defendant's trial to pass the line of tolerable imperfection and fall into the field of fundamental unfairness"); Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842, 846 (4th Cir., 1964) (""Nor is the effect of the nondisclosure neutralized because the prosecuting attorney was not shown to have had knowledge of the exculpatory evidence. . The duty to disclose is that the of the state, which ordinarily acts through the prosecuting attorney; but if he too is the victim of police suppression of the material information, the state's failure is not on that account excused."). Boone v. Paderick, 541 F.2d 447, 449-51 (4th Cir., 1976); United States v. Turner, 4°90 F.Supp. 583, 603 (E.D. Mich., 1979), aff'd, 633 F.2d 218 (6th Cir., 1980); United States v. Butler, 567 F.2d 885 at 891 (9th 'Cir., 1978). Napue, itself, does not limit its holding to the conduct of prosecutors: First, it is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment. . . . 14. at 269. Giglio, too, speaks in broad terms that "any understanding or agreement as to a future prosecution would be relevant to his [the witness's] credibility and the jury was entitled to know of it." 1Id., at 155 (emphasis added). To the extent the Court's conclusion is based upon the distinction between a promise made by a prosecutor and a promise made by a police detective, the distinction is contrary to established law. B. Nor Do The Specifics Of The Understanding Between Detective Dorsey And Offie Evans Provide A Basis To Distinguish This Case From Napue Or Giglio. A majority of the Court also reasoned that "the detective's statement offered such a marginal benefit, that it is doubtful it would motivate a reluctant witness, or that disclosure of the statement would have any effect on his credibility." See McCleskey slip at 10. This conclusion is contrary to Supreme Court precedent. The benefit offered to the witness in Napue was no greater nor more certain than the benefit offered to Offie Evans in this case. The prosecutor told the witness in Manis that "a recommendation for a reduction of his sentence would be made, and, if possible, effectuated." 360 U.S. at 266. The prosecutor in that case did not have power to reduce the sentence--he could only make a recommendation to the decision maker, in the case of Napue, the Illinois court. In this case, too, the police detective was not the decision-maker (nor, indeed, was the State prosecutor, since the charges pending against Offie Evans were Federal charges). The State authority here, like the prosecutor in Napue, nevertheless agreed that he woud make a favorable recommendation to the official with authority to excercise leniency. Nor was there any binding, enforceable agreement between the witness and prosecutor in Napue, just as there was no binding, enforceable agreement between Detective Dorsey and Offie Evans. Napue clearly demonstrates therefore, that the due process clause applies to situations other than those involving enforceable agreements such as a plea bargain. Other circuits have held that the non-binding, tentative nature of such agreements with a state witness can increase rather than diminish, the risk that the witness’ testimony will be compromised or shaded because of the promise, dangled before him like a carrot, almost within his grasp. In Boone v. Paderick, 541 F.24 447 (4th Cir., 1976) the Court reasoned: Finally, we note that rather than weakening the significance for credibility purposes of an agreement of favorable treatment, tentativeness may increase its relevancy. This is because a promise to recommend leniency (without assurance of it) may be interpreted by the promisee as contingent upon the quality of the evidence produced--the more uncertain the agreement, the greater the incentive to make the testimony pleasing to the promisor." A number of other Circuit Court decisions have recognized this principle. DuBose v. Lefebre, 619 F.2d 973 (2nd Cir., 1980); Campbell v. Reed, 594 F.2d 4 (4th Cir,, 1979); ; Blanton v. Blackburn, 494 F.Supp. 895 at 901 (M.D. La., 1980), aff'd, 654 F.2d 719 (5th Cir., Unit A., 1980); cf., United States v. Butler, 567 F.2d 885, at 888-89 (9th Cir., 1978). 2 2 Nor surely is the majority's characterization of the promise as one conferring a "marginal benefit" an accurate characterization of the escape charges pending against Evans. The pending charges carried a potential sentence of 5 years imprisonment and/or a $5,000 fine. 18 U.S.C.§751. In fact, of course, the charges were dropped after Evans testfied, as agreed, against McCleskey. The promise itself, in sum, was sufficiently clear and meaningful to Evans that it plainly should have been disclosed to McCleskey's jury. C. The Majority's Harmless Error Analysis Is Also Inconsistent With Supreme Court Standards. The majority also concluded that, "Evans' credibility was exposed to substantial impeachment even without the detective's statement and the inconsistent description of his escape. . . " (McCleskey slip. at ll) and that "in light of that substantial impeachment evidence, we find it unlikely that the undisclosed information would have affected the jury's assessment of Evans' credibility." Id. This conclusion is contrary to Napue and Giglio. Both of those cases recognize the critical nature of an undisclosed promise to a witness, made by a member of the prosecution team. The Court's decision in this cite fails to recognize that the testimony regarding a promise of a recommendation of leniency represents impeachment of a fundamentally different character from festinohy regarding prior convictions. Prior conviction evidence does not suggest to the jury that the witness has a present motive to Vie. By contrast, a promise of leniency (or a recommendation of leniency) from a member of the prosecution team, does just that. Applicable Supreme Court cases turn on this very distinction, stressing that false evidence which keeps from the jury evidence that a witness had possible motivation to lie violates due process. Napue, 360 U.S at 269: The jury's estimate of the truthfulness and reliability of any given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend. Accord, Giglio, 405 U.S. at 154. The facts in Napue indeed would have provided a stronger basis for a finding of harmless error than the facts in this case. In. Napue, the jury was informed of one promise made to the witness of a favorable recommendation in exchange for his testimony. Therefore, the Napue jury had some incomplete + knowledge that the witness had a possible motivation to lie. The Supreme Court, however, reversed the Illinois Supreme Court's conclusion of harmless error, reasoning that the promise from a member of the prosecution team provided stronger motivation to lie than a pronase from a public defender. 360 u.s. at 269. | In this case, the jury was informed of no evidence whatsoever Wien suggested that Evans had any motive to lie about his testimony. Indeed, he elenrly had reason to welcome the detective’ s offer to put in a good word with federal authorities--as noted above, the escape charged carried a potential sentence of 5 yeh imprisonment and/or a $5,000 fine. | 18 u.s.C. §751. The revelation to the jury of Evans' prior convictions is simply not the kind of impeachment evidence about which Napue and Giglio, are concerned. The jury could have viewed the prior conviction evidence as indicating that Evans' had nothing to hide, and had no motive whatsoever to lie. This is evidenced by the prosecutor's own reliance upon Evans' testimony in closing-- the prosecutor in this case clearly did not believe his witness had been impeached by the evidence of the prior convictions. -10< Napue and Giglio hold that the State may not conceal, . through false testimony, evidence indicative of motivation to lie. The undisclosed promise from Detective Dorsey is precisely the kind of impeachment evidence the Supreme Court in Napue and Giglio indicated the jury was entitled to know. D. Contrary To The Court's Analysis, Georgia Law Holds That The Admission Of A Jailhouse Confession, In A Primarily Circumstantial Case, Cannot Be Harmless. In concluding that the jury's deliberation was not affected by admission of Evans' testimony of McCleskey's jailhouse confession, the Court also relied upon Georgia law regarding the sufficiency of an accomplice's testimony alone to establish the proof of an element of the crime. - The Court overlooks, however, a case directly on point, Walraven v. State, .250 Ga. 401 (1982). In that case, a statement by an inmate that the defendant had confessed to the killing while incarcerated had pea improperly admitted into evidence. - The issue before the Georgia Supreme Court was whether that error required a new trial. The Georgia Court held that it did, concluding: | | . « .[S]lince the statement was direct evidence of appellant's guilt in a primarily circumstantial case, we cannot conclude its admission was harmless. Walraven, supra, at 406. Independently of this authoritative State law holding, wl] the majority's conclusion ignores the fact that the testimony offered by Offie Gene Evans--that McCleskey had confessed to him that he had ¥illed the police officer and he would have done the same thing if it had been twelve officers--is testimony of a different character than the testimony of any other witness. The testimony, if believed, was direct evidence of intent. If believed, it would have substantially altered the jury's deliberations. See McCleskey slip, Goldbold, Chief Judge, dissenting in part and concurring in part, 3-4. oe CONCLUSION ¢ ~ For all of the foregoing reasons, the Court should grant rehearing, and affirm the District Court decision on the Giglio issue. Respectfully submitted, ROBERT H. STROUP 7 1515 Healey Building Atlanta, Georgia 30303 (404) 522-1934 J. LEVONNE CHAMBERS ‘JAMES M. NABRIT, III JOHN CHARLES BOGER 99 Hudson Street New York, New York 10013 TIMOTHY K. FORD 600 Pioneer Square Seattle, Washington 94305 ANTHONY G. AMSTERDAM New York University Law School 40 Washington Square South New York, New York 10012 ATTORNEYS FOR PETITIONER- APPELLEE AND CROSS-APPELLANT CERTIFICATE OF SERVICE I hereby certify that I have this day prior to filing, served a copy of the within "Petition For Rehearing En Banc" upon: Mary Beth Westmoreland, Esq. Assistant Attorney General 132 State Judicial Building 40 Capitol Square, S. W. Atlanta, Georgia 30334 counsel of record for Respondent, by depositing a copy of same in the United States Mail, first-class postage affixed thereto. This 15th day of February, 1985. ROBERT H. STROUP Attorney for Petitioner- : Appellee And Cross Appellant . : BY: TT brn Me | DANA E. McDONALD wv Huited States Court of Appeals ELzvENTH Circuit SPENCER D. MERCER OFFICE OF THE CLERK IN REPLYING. GIVE NUMBER CLERK 36 FORSYTH STREET. N.W. OF CASE AND NAMES OF PARTIES ATLANTA, GEORGIA 30303 March 26, 1985 TO ALL PARTIES LISTED BELOW: NO. 84-8176 - WARREN MCCLESKEY v. RALPH KEMP (DC No. 81-2434-A) The enclosed order has this day been entered on petition( ) for rehearing. See Rule 41, Federal Rules of Appellate Procedure and Circuit Rule 27 for issuance and stay of the mandate. Very truly yours, SPENCER D. MERCER, Clerk cc: Ms. Mary Beth Westmoreland v Mr. Robert H. Stroup Mr. John Charles Boger IN THE UNITED STATES COURT OF APPEADS. COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT LED No. 84-8176 | MAR 2 7 1985 : SPENCER D. MERCER WARREN MCCLESKEY, CLERK Petitioner-Appellee, Cross-Appellant, versus RALPH KEMP, Warden, Respondent-Appellant, Cross—-Appellee. On Appeal from the United States District Court for the Northern District of Georgia (March 26, 1985 ) Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON and CLARK, Circuit Judges. PER CURIAM: IT IS ORDERED that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby Doral. ENTERED FOR THE COURT: am ver UNITED STATES CIRCUIT JUDGE Huited States Court of Appeals ELEVENTH CIRCUIT SPENCER D. MERCER OFFICE OF THE CLERK IN REPLYING, GIVE NUMBER CLERK 56 FORSYTH STREET. N.W. OF CASE AND NAMES OF PARTIES ATLANTA, GEORGIA 30303 March 26, 1935 TO ALL PARTIES LISTED BELOW: NO. 84-8176 - WARREN MCCLESKEY v. RALPH KEMP (DC No. 81-2434-A) The enclosed order has this day been entered on petition( ) for rehearing. See Rule 41, Federal Rules of Appellate Procedure and Circuit Rule 27 for issuance and stay of the mandate. Very truly yours, SPENCER D. MERCER, Clerk uty Clerk cc: Ms. Mary Beth Westmoreland Mr. Robert H. Stroup Mr. John Charles Boger