Episode 109: Unequal Protection – Part 2: Transcript

May 23, 2017


Last time on Life of the Law we presented Unequal Protection – Part 1, the story of Warren McCleskey’s appeal to the US Supreme Court that his sentence of death had been prejudiced by the color of skin. He pled with the court to uphold his right to equal protection under the law.

Now, we present Part 2 and Sarah Marshall’s report on Warren McCleskey’s life after the Supreme Court ruling and his execution by the state of Georgia. Unequal Protection – Part 2.


In her home in Marietta, Georgia–just a few miles away from the house where her father was arrested–Carla McCleskey pages through a scrapbook she made in the days after her father’s death.

In it is a pressed flower from Warren McCleskey’s funeral, newspaper clippings about the case, pictures of Carla as a baby with her mother and father, and the program from her father’s memorial service, where the choir sang “Leaning on the Everlasting Arms.”

MCLESKEY: I have a grandson that looks just like him. Spittin’ image. We have a bond. And I think it’s mostly because he reminds me so much of my father.

Warren McCleskey was executed on September 25th, 1991. That day marked the end of the legal battle that began with Warren McCleskey’s trial for murder and armed robbery in 1978, and included two appeals that both made it all the way to the US Supreme Court. But that day was the beginning of another story for the people he left behind.

MCCLESKEY: That’s one of the hardest things that a person can go through. It’s not like somebody calls and says, your father just passed away. You know how, you know what time, you know what day. You know everything. It’s a sickening feeling. A very sickening feeling. It was torture. It was.

But the pain that Carla and her family experienced went far beyond the days and weeks leading up to Warren’s execution. It extended through the nearly thirteen years that Warren McCleskey’s family had spent visiting him on Georgia’s death row.

MCCLESKEY: How to tell anybody how it was affecting me. And then one time I just decided to tell my mom. I said, Mom, every time I go see him, the way that they have it set up, once you get through those bars, and you go and you visit, because you’re on death row, you’re confined from everybody else.

And we sit there, we talk, we laugh, but when it’s time to go, they have to sit here and watch you leave. And I always wanted to take him with me. It’s like, why can’t you come with me?

Warren McCleskey was executed on September 25th, 1991, four years after the Supreme Court affirmed his conviction and sentence–the first time. A second appeal, McCleskey v. Zant, arguing that the state had violated Warren’s 6th Amendment right to counsel, and had withheld evidence from the defense, had also reached the Supreme Court earlier that year.

The second appeal was based on one of two testimonies presented at Warren McCleskey’s murder trial in 1978.

You may remember, Warren McCleskey participated in a robbery at which a white police officer responding to a silent alarm was shot and killed. One of the men who testified that he had witnessed McCleskey shoot the officer, was Ben Wright, the man who planned and participated in the robbery. The second key witness who presented evidence against McCleskey was a police informant named Offie Evans. McCleskey’s second appeal to the US Supreme Court, McCleskey v. Zant, was based primarily on the prosecution’s means of securing Evans’ testimony against McCleskey–and then keeping it out of the defense’s hands.

According to McCleskey’s appellate lawyer, John Boger, Evans’ testimony was suspect from the start.

BOGER: The person who testified against McCleskey at trial, and said McCleskey confessed to me and said he would have done it, turned out to be a police informant who was nowhere near McCleskey in the jail, and who was moved by the investigating police officer from another floor in the jail to be right next to McCleskey, and shortly after he was moved, came out and said, miraculously, McCleskey has given me this confession. And there was a twenty-page document, in which he went word for word through what McCleskey ostensibly had said, as if he were a person with a photographic memory. Not literally, He told me this, but Here are McCleskey’s words.

That was all hidden from us, the fact that this person had been moved in the jail, and had basically, ostensibly talked McCleskey into a confession. That’s against the Sixth Amendment, and the judge knows that and knew that. And it was hidden from us by the prosecutor. And when that came out, the judge said, I’m an old prosecutor, that was unfair to Mr. McCleskey, relief granted on that ground. We’re going back for another trial. We went back to the Supreme Court of the United States, and they said, you should have found that earlier.

And we said, we asked the state whether there was any evidence of this, and they denied it. They knew there was evidence. They hid the evidence from us. And now you, the court are telling us that our failure to find the evidence that they deliberately hid from us prevents us from being heard on the merits of this clear constitutional violation.

Boger calls Offie Evans a police informant. But Reverend Billy Moore, who was close friends with Warren McCleskey while both men were on death row, has another word for Offie Evans: Snitch.

MOORE: So they put him in McCleskey’s cell to get information, but Warren did not talk to him because he knew that this guy was a snitch. So the state made up a 21-page statement saying this inmate was told by McCleskey that he killed the police officer and he would have killed more police officers.

Now during the trial they told the court that there was not any written statement it was just live testimony. They didn’t allow the jury to hear that this man was a child molester. That he had molested children three different times, and every time he would get locked up he would testify in a high-profile case and then they would let him go. And they didn’t tell the jury that. And the prosecutor took the 21-page statement that they made, and he took it out of the county files, and they hid it in the city record.

So in 1980, when McCleskey was convicted and his attorney Robert Stroup had asked the judge for a copy of the statement, the judge looked at the record and said, ‘There is no statement.’ And the prosecution said, ‘well, yeah, there’s no statement, this guy’s just testifying in open court.’

And so every case that McCleskey’s case went his attorney filed a motion asking for the statement. So now you got the attorney general of Georgia saying he looked at the record and there is no statement. You have the Justice of the Supreme Court of Georgia saying he looked in the record and there is no statement. And so McCleskey’s case was being denied all the way through.

And then in 1980 in Georgia, there were these child murders in Georgia, where this man, Wayne Williams, was convicted for supposedly murdering all of these children. The mothers of these children petitioned the court so they can get the records open so they can see exactly what investigations the police did. At that time, McCleskey’s lawyer–one of his lawyers–went over to the clerk’s office and asked him, in the city office, did he have anything on McCleskey? And he must have been the new guy, because he said yeah, I do, and he made them a copy.

And he took it to the court, and said look, see, we’ve been asking you for ten years about this statement, and everybody said that there’s not a statement and here’s a statement that looks like a movie script where everybody has their part saying what they’re gonna say in court. So now each juror writes an affidavit saying that they would not have given McCleskey the death sentence had they known that the state had fabricated this.

Moore, who spent years on Georgia’s death row with McCleskey before he was granted clemency in 1990, and paroled a year later, says this information presented the court with obvious proof the state had withheld evidence from the defense. The judge ruled to overturn McCleskey’s conviction.

MOORE: And so the district court judge overturned his conviction and his sentence, and said that this was wrong, and that they didn’t give up their information and that all the information that this guy testified to was false. The state of Georgia appealed it to the eleventh circuit court of appeals, and the eleventh circuit ruled against McCleskey, and their ruling was so crazy that they said that Warren McCleskey should have found this statement ten years ago.

He’s locked up on death row but he’s supposed to find this statement and how can you find the statement when it’s been hid by the district attorney? And the Georgia Supreme Court Chief Justice says he didn’t see it. The attorney general for the state of Georgia said there wasn’t any. You got letters from these two people saying there wasn’t no statement. So it’s clearly shown that it was hidden.

So when it goes to the Supreme Court, they just refuse to hear it and allow McCleskey to be executed.

What could motivate the state to hide evidence from the defense? According to Boger, the answer is a simple one.

BOGER: Because it knew that without the testimony of the informant that they didn’t have a case that McCleskey was the trigger person.

In other words, the case of McCleskey v. Zant came awfully close to satisfying the seemingly impossible rules of evidence that the decision rendered in McCleskey v. Kemp required. Namely, McCleskey v. Zant showed that the state had intentionally withheld exculpatory evidence from the defense.

In McCleskey’s first appeal to the court, McCleskey v Kemp, McCleskey presented evidence from the Baldus Study that the courts in Georgia were racially prejudiced in who was sentenced to death. That defendants charged with killing a white victim were four times more likely to be given the death sentence than defendants charged with killing a person of color.

The Court’s 5-4 decisions denying McCleskey’s constitutionally guaranteed right to equal protection, unless he could prove individual discrimination by individual actors in his trial, sent a message throughout the U.S. justice system. That addressing tthe issue of racial discrimination in the legal system was the responsibility of the states.

ROSE: I think that McCleskey shut the door on racial justice in the criminal justice system in a very pervasive and negative way. The decision itself.

Ken Rose, at the time a staff attorney at the Center for Death Penalty Litigation, witnessed this much when he helped enact the Racial Justice Act in North Carolina.

ROSE: When I first started practicing in 1981…there were study after study that showed that race was a significant factor. But when the United States Supreme Court decided McCleskey, they seemed to shrug at those studies. And say, well, we don’t think that the fourteenth amendment or the eighth amendment requires us to do anything. And as a litigator looking at the decision, it seemed airtight. It seemed that there wasn’t room to challenge what I viewed, and what my colleagues who were doing death penalty work viewed as pervasive racial discrimination.

It seemed that just in this one area, the courts blinked, and said we’re not going to look at race discrimination in anymore in these cases. Because if we did, it wouldn’t just be a problem in capital cases. It would be a problem in the entire criminal justice system. And that’s too far…

It did seem to leave a crack, and that was that the decision in McCleskey invited legislatures to enact their own laws

So in 2009, North Carolina became the second state in the country to pass a racial justice act aimed at addressing the systemic discrimination highlighted by McCleskey. Yet even the North Carolina Racial Justice Act had limited power, Rose says.

ROSE: The hope, the idea that legislature could fix this what I considered injustice in the decision in McCleskey was one I held onto, and I think a lot of the people that I worked with held onto, but it was not, as the years went by, after McCleskey was decided, was not something that we were winning on.

There was an effort to encourage congress to pass legislation—its own racial justice act—and congress came close. The house of representatives passed a version of the racial justice act, that would essentially be used to show statistical evidence of racial prejudice in charging and sentencing. But the senate did not pass that, and so nothing passed congress. Then there was one state before North Carolina, Kentucky, that had a version of the racial justice act, but it was written so broadly that you could just read it as a codification of McCleskey. It didn’t give any teeth to the antidiscrimination provisions in the statute…

North Carolina law read that if you could show race was a significant factor in the state, or in the judicial division, the county, or the prosecutorial district at the time of your sentencing, then you could win a life sentence under the act. And that was a key provision.

So the remedy under the proposal we had was not that you’d get a new trial, not that you’d get to walk free, not that you’d get to be the neighbor of somebody in North Carolina, but that you’d get a life sentence without possibility of parole.

So it was a very, in many ways, very small relief, for persons who were the victims of race discrimination in their cases. But the senate did not and so nothing passed congress. But even that was too much, because what it meant to prosecutors was that they were perpetrating this racial discrimination.

I think they [prosecutors] felt threatened by this, and I think they responded as if we were saying they were racists.

The Racial Justice Act was signed into law in 2009, and the backlash it inspired was almost immediate.

ROSE: And the backlash was inflamed by political partisanship. It was used in elections. Republicans used it as a cudgel against democrats who had voted for the law.

There were attempts to amend the RJA almost as soon as it passed. Certainly as soon as the first set of pleadings were filed…

North Carolina’s racial justice act was repealed in 2013. But Ken Rose sees the discrimination it exposed during the four short years it was in effect as essential to the larger battle against the death penalty.

ROSE: Part of what the racial justice act has allowed us to do is lift up the lid that’s been covering up this decay that is racial discrimination in capital cases, and we’ve taken a hard look at it, and we don’t like what we see, and the legislature’s shut the lid on it, but you can’t forget what you saw.

But all too often, people try to do just that.

In the case of McCleskey v. Kemp, in the case of McCleskey v. Zant, and in the cases brought the public’s attention by the Racial Justice Act, America’s courts were confronted with painful questions about how the American legal system functioned–or, more the point, failed to function. And in all of these cases, both regular citizens and legal insiders–including prosecutors, judges, and Supreme Court Justices–pushed those difficult questions away.

Reverend Moore was one of the last people to speak to Warren McCleskey before he was executed. He was no longer on death row by that time, but was still incarcerated: the year before, his death sentence had been commuted to life. This meant that, hours before he was executed, Warren McCleskey placed one of his final phone calls to another prison. Moore was one of the few people Warren could have called who knew exactly what he was going through.

MOORE: In 1974, I went over on death watch, and I was there for three days, and I came within seven hours of being executed. And I got a stay and came back to the cell block, and he was asking me, how can you do that? How can you come within seven hours of being executed and not fall apart? And I was explaining to him that it’s not where you are physically that makes the difference, it’s where you allow Christ to be in you. That is the difference.

So, when he went to death watch, and I had been moved to another prison, cause I had got off death row, his last, his phone call, half an hour before he was executed, he called me, and amazing as it was, the prison allowed me to talk to him. And he told me, he said,  “Listen, I want you to understand that I know. I know now, being here on death watch, that it’s not where I am. Physically, this is not causing me to be upset, because I’m at peace with God.”

…And he said he just wanted to call me and make sure I understood that he understood, so I wouldn’t be upset about the state executing him.

Hours before his execution, Warren McCleskey’s family visited him on death row. Among his visitors were his sister Betty Myers, and his daughter, Carla. Earlier that day, she had visited the pardons and paroles board, looking for one last chance to petition the state to spare her father’s life.

MCCLESKEY: We went to the pardons and paroles board, and they said we would hear from them by ten o’clock the next day. Well, we get there, it was way before 10 o’clock, they had already made a decision…

Walking into the prison, I was the first one, and I walked in, and his lawyers were walking toward me, and I was looking at them, and I said what’s wrong. And they said, they denied him. And I just dropped to the floor. Just screaming and crying and like. They really gonna kill my dad. And we went—they had a holding cell…my whole family was there except my grandmother. My grandmother, she just couldn’t take it.

And we walked in, and the reporter was sitting there, and my dad just automatically stopped talking to the reporter, and I sat next to him, and he said, was that you? Was that you out there screaming and hollering? And I was just bawling, Just boo-hooing.

And he said, Baby, let me tell you something: no matter what happens, I will always be with you. He said, They can take my flesh but they cannot take my soul. I will always be with you.

At the time of his death in 1978, Officer Frank Schlatt, the man Warren McCleskey was accused of killing, left behind a nine-year-old daughter, Jodie. She was twenty-four at the time of Warren McCleskey’s execution–about the same age as Carla.

As Warren McCleskey’s execution date approached, Jodie Schlatt told reporters: “All I want is justice. He believed in the justice system, and it’s about time the justice system takes up for my father. I want the sentence carried out.”

According to Carla McCleskey, no one asked her what she thought about her father’s upcoming execution–or what justice could come from it.

MCCLESKEY: And taking my father’s life—it didn’t bring the police officer back. It did not bring him back. So, she’s without a father, so am I. She was young, and so was I.

But still, there was one person in this entire legal saga who was able, in the end, to accept the most painful reality imaginable.

BOGER: He gave a relatively long statement, at the time of his death, in which he sort of apologized to the family of the officer for all the grief they had endured because of this crime. Didn’t take responsibility for the shooting, but all of that.

And in the middle of that statement, there was a telephone call, and it was a stay that had been granted by the supreme court…and then ten minutes later they came back and said that stay’s been lifted. And back we go. And he was strapped into the chair, giving the statement. They put something over his head and execution occurred.

Warren McCleskey’s lawyers were at his execution, but his family members–his mother, his sisters Betty and Emma Jo, and his daughter Carla–weren’t at the prison that night. They weren’t there because Warren had told them he didn’t want to put them through the experience of witnessing his death.

MYERS: He was our encourager… The days that he was gonna be executed. Just like you and I, that’s the way we were talking. I didn’t see no whimper, I didn’t so no tear, anything…

When they got ready to take him back, he said, didn’t I tell y’all to go home? Live your life to the best of your ability. He said, I’m all right. I’m all right. So when they got him, start taking him down that hall, he turned around and waved and said bye.

After her last meeting with him on the day of his execution, Carla McCleskey didn’t see her father again until she viewed his body at the funeral home. But Warren McCleskey’s lawyers described his final moments to his daughter.

MCCLESKEY: And he sat in the chair, and he helped them buckle, you know. And he said his last words and did a thumbs up to his lawyers and told them that they had done a great job, and he really appreciated them, and they pulled the hood over his head. They said he did not suffer very long. They did the switches. And he was gone.

I really have no faith in the justice system at all. None. No faith at all. And the more I see, the more I lose what little–I could compromise with things, but now I can’t even do that.

Today, every law student knows the name McCleskey v. Kemp. But few know the story behind the case. And Moore says when they do learn it, they are often shocked by what they see.

MOORE: I talk about Warren McCleskey all the time, and then when people individually hear it, it helps them change. Talking to law students, I say, I want you to be the judge on this case. And I will tell them about his case without telling them who he is, because if I tell them who he is, they will think about the statistical study. But I tell them about the other issue, and each one of them say, well this man shouldn’t be on death row.

And then I say, well, you know, this was the Warren McCleskey case. Who was executed. What do you think about that now? And they’re usually upset. But being upset doesn’t change Warren being executed. But it changes them.

Today, Carla McCleskey sits in her bedroom in Marietta. The rain falls outside. Every so often, a train passes by in the distance. And Carla pages through the scrapbook she made to remember her father’s death–and his life.

MCCLESKEY: We were all sitting around in the room, and he talked to each and every one of us with a straight face. He wasn’t crying. He didn’t show fear on his face or anything. He had made himself okay with God. He had been through this for a long time. And it showed. When I saw him laying in that casket, he had a smile on his face, because he was okay. We were the ones that weren’t okay.


Unequal Protection, Part 2 — the life and execution of Warren McCleskeywas reported by Sarah Marshall, edited by Nancy Mullane, and produced by Tony Gannon. Our Post Production Editors are Kirsten Jusewicz-Haidle and Rachael Cain. Music in this episode was composed by Ian Coss.

Our engineers were Paul Ruest of Argot Studies and Katie McMurran at KQED Radio in San Francisco.  

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I’m Nancy Mullane. Thanks for listening.