Petition — Cassesso v. Meachum

. Supreme Court, U.

W138 197

In the MICHAEL RODAK, JF

Supreme Court of the United States.

JcToser TERM, 1976.

No. 76-42

LEWIS GRIECO,

PETER LIMONE,

JOSEPH SALVATI

AND

HENRY TAMELEO,

PETITIONERS,

RESPONDENTS.

Petition for Writ of Certiorari to the

United States Court of Appeals for the First Circuit.

Dav Berman,

100 George P. Hassett Drive,

Medford, Massachusetts 02155.

BATEMAN & SLADE, INC.

Table of Contents.

Citations to opinions below

Jurisdiction

Questions presented

Statutory provisions

Statement of the case

Reasons for granting this writ

Introduction

I. Petitioner Peter Limone was constitutionally

entitled to severance under the rule of Bruton v.

United States, 391 U.S. 123 (1968)

II. Petitioners were deprived of the right to be

informed of the charges pending against them

and further deprived of that right when the trial

court admitted against them highly prejudicial

evidence of virtually no probative value in the

case on trial, which evidence tended to associate

them with other crimes and with criminal or-

ganizations

A. Bill of particulars (not applicable to peti-

tioner Grieco)

B. Baron’s beliefs when he testified before the

grand jury (applicable to all petitioners)

C. The Cosa Nostra question (applicable direct-

ly to petitioner Limone and indirectly to all

petitioners)

D. The loan-sharking question (applicable to

petitioner Limone)

E. Questions about Limone’s friends (applicable

to petitioner Limone)

F. Questions about petitioner Grieco’s domestic

difficulties (applicable to petitioner Grieco)

oo fof} NUN Ne

10

18

21

31

es

TABLE OF CONTENTS. ili

—

TABLE OF CONTENTS.

III. Petitioner Cassesso’s rights under the Fifth and H. Statement about defense interruptions 71

Sixth Amendments were violated by the admis- I. Violation of an agreement p 72

sion of incriminating statements elicited after he J. A “trick” question 73

had been indicted and had retained counsel — K. Asking the jury to use their imagination 74

Massiah v. United States, 377 U.S. 201 (1964) 33 L. Expectation of interruptions 77

IV. Petitioners were deprived of the right to pre- M. The absence of Puopolo 79

sent evidence and cross-examine properly and N. Comment on failure of petitioner Cassesso

effectively the Commonwealth’s witnesses 37 to deny he was in Florida 80

A. Examination on voir dire 37 O. Comments on lack of dignity in courtroom 81

B. Cross-examination of Glavin 39 P. Identification of petitioner Cassesso as de-

V. There was no acquiescence by counsel or by fendant in other case 82

petitioners in the submission of an ex parte brief Vit. Petitioners were constitutionally entitled to

by the prosecutor to the judge; the Supreme have the jury instructed that the testimon’’ of an

Judicial Court having considered petitioners’ accomplice or an informer is to be carefully

argument on this point, it was properly before scrutinized 85

the District Court on petition for writ of habeas IX. It was error to give instructions shifting the

corpus. The submission of such a brief deprived burden of proof 87

petitioners of due process of law 42 X. Petitioner Henry Tameleo was entitled to rest

at the close of the Commonwealth’s case 91

VI. Petitioners were constitutionally, entitled to

see the grand jury minutes of Baron’s testimony 54

VII. Petitioners were deprived of a fair trial by

comments and conduct of the trial judge and the

XI. Petitioners were entitled to a new trial be-

cause of the suppression of exculpatory evidence

and because of newly discovered evidence 93

A. Status of affidavits filed by petitioners and

prosecutor 57

A. Cumulative effect of the judge’s remarks 57 their right to an evidentiary hearing in the

B. Imputing a false statement to defense coun- District Court 93

sel 6l B. Petitioners are entitled to a new trial be-

C. The “birds of a feather” remark 62 cause of suppression of exculpatory evidence 99

D. Remark to observe the petitioners’ physical 1. The Berman affidavit 99

characteristics 63 2. The Stuart affidavit 105

E. Imputing misconduct to petitioner Grieco’s C. On the basis of the Baron affidavit 110

Conclusion 112

counsel on Baron’s military record 65

F. Suggesting that counsel was inconveniencing

the jury 67

G. Remarks about prejudicing rights 69

iv TABLE OF CONTENTS.

Appendix

Opinion of Court of Appeals for the First Circuit,

dated April 7, 1976 113

Memorandum and order of District Court, dated

July 10, 1975 127

Opinion of Supreme Judicial Court in Commonwealth

v. French et al., dated May 4, 1970 137

Opinion of Supreme Judicial Court in Commonwealth

v. Cassesso, dated December 8, 1971 189

Judgment of Court of Appeals for the First Circuit,

dated April 7, 1976 199

Table of Authorities Cited.

CASEs.

American Woolen Co. v. Boston & Maine Railroad,

190 Mass. 152, 76 N.E. 658 (1906) 30

Baxter v. Palmigiano, 96 S. Ct. 1551 (1976) 98

Berger v. United States, 295 U.S. 78 (1935) 74

Betcher v. Hay-Roe, 429 Pa. 371 (1968) 111

Bowen v. Johnston, 306 U.S. 19 (1939) 43

Brady v. Maryland, 373 U.S. 83 (1963) 107

Brookhart v. Janis, 384 U.S. 1 (1966) 97

Bruton v. United States, 391 U.S. 125 (1968)

- 10, 12, 14, 17, 18, 84

Bursten v. United States, 395 F. 2d 976 4 Cir. 1968)

60, 61

Carnley v. Cochran, 369 U.S. 506 (1962) 36

Chapman v. California, 386 U.S. 18 (1967) 14

wa a

TABLE OF AUTHORITIES CITED. Vv

Ciucci v. Illinois, 356 U.S. 571 (1958) 27

Cochran v. Kansas, 316 U.S. 255 (1942) 96, 98, 106, 111

Cole v. Arkansas, 333 U.S. 196 (1948) 19, 25

Commonwealth v. Baker, 348 Mass. 60, 201 NZ. 2d

829 (1964) 18

Commonwealth v. Benesch, 290 Mass. 125, 194 N.E.

905 (1935) 13

Commonwealth v. Byron, 14 Gray, 31 (1859) 23

Commonwealth v. Cabot, 241 Mass. 131, 135 N.E. 465

(1922) 74

Commonwealth v. Cassesso, 360 Mass. 570, 276 N.E.

2d 698 (1971), vacated as to death penalty 408 U.S.

936 (1972) 2, 7, 8, 99, 106, 107

Commonwealth v. Chalifoux, 362 Mass. 811, 291 N.E.

2d 635 (1973) 33

Commonwealth v. DelValle, 351 Mass. 489, 221 N.E.

2d 922 (1966) 22

Commonwealth v. French, 357 Mass. 356, 259 N.E. 2d

195 (1970), vacated as to death penalty sub nom.

Limone v. Massachusetts, 408 U.S. 936 (1972)

2, 7, 8, 11, 12, 14, 16 et seq.

Commonwealth v. Giacomazza, 311 Mass. 456, 42

N.E. 2d 506 (1942) 23

Commonwealth v. Homer, 235 Mass. 526, 127 N.E.

517 (1920) 28, 30, 39, 85

Commonwealth v. Jordan, 207 Mass. 259, 93 N.E.

809 (1911), affd. 225 U.S. 167 (1912) 19

Commonwealth v. Kerrigan, 345 Mass. 508, 188 N.E.

2d 484 (1963) 98

vi TABLE OF AUTHORITIES CITED.

Commonwealth v. Kiernan, 348 Mass. 29, 201 N.E. 2d

504 (1964) 13

Commonwealth v. LeBlanc, 1973 Mass. Adv. Sh. 1091,

299 N.E. 2d 719 (1973) 16, 17

Commonwealth v. Manning, 1975 Mass. Adv. Sh. 1334,

327 N.E. 2d 104

Commonwealth v. McLeod, 1975 Mass. Adv. Sh. 1178,

326 N.E. 2d 905

Commonwealth v. Nassar, 354 Mass. 249, 237 N.E. 2d

39 (1968) 59

Commonwealth v. Phelps, 210 Mass. 109, 95 N.E. 868

(1911) 49

Commonwealth v. Putnam, 2 Allen, 301 (1861) 23n

Commonwealth v. Redmond, 357 Mass. 333, 258 N.E.

2d 287 (1970)

Commonwealth v. Richardson, 354 Mass. 773, 241 N.E.

2d 924 (1968)

Commonwealth v. Rogers, 181 Mass. 184, 63 N.E. 421

(1902) 13

Commonwealth v. Ross, 339 Mass. 428, 159 N.E. 2d

330 (1959)

Commonwealth v. Stone, 321 Mass. 471, 73 N.E. 2d

896 (1947)

Commonwealth v. Sullivan, 354 Mass. 598, 239 N.E.

2d 5 (1968), cert. den. 393 U.S. 1056 (1969)

Commonwealth v. Wallace, 123 Mass. 400 (1877) 35

Commonwealth v. Webster, 5 Cush. 295 (1850) 89, 90

Cornelius v. State, 12 Art. 801 (1852) 24n

D & P Equipment Corp. v. White Spot Construction

Corp., 355 Mass. 787, 243 N.E. 2d 922 (1969) 40

TABLE OF AUTHORITIES CITED. vii

Davis v. Boston Elevated Railway, 235 Mass. 482, 126

N.E. 841 (1920) 49

Davis v. Wechsler, 263 U.S. 22 (1923) 56

Dennis v. United States, 384 U.S. 855 (1966) 54

Douglas v. Alabama, 380 U.S. 415 (1965) 27, 31

Dutton v. Evans, 400 U.S. 74 (1970) 13, 14, 22

Earl v. Commonwealth, 356 Mass. 181, 248 N.E. 2d

498 (1969) 94

Elkins v. United States, 364 U.S. 206 (1960) 35

Escobedo v. Illinois, 378 U.S. 478 (1964) 12

Estelle v. Williams, 96 S. Ct. 1691 (1976) 33, 93

Fay v. Noia, 372 U.S. 391 (1963) 47

Fisher v. Pace, 336 U.S. 155 (1949) 62

Garrity v. New Jersey, 385 U.S. 493 (1967) 72

Giglio v. United States, 405 U.S. 150 (1972) 98, 108

Giles v. Maryland, 386 U.S. 66 (1967) 107

Griffin v. California, 380 U.S. 609 (1965) 81

Hall v. United States, 150 U.S. 76 (1893) 74, 84

Harrington v. California, 395 U.S. 250 (1969) 16

Herlihy v. New York, New Haven & Hartford Railroad

Co., 227 Mass. 168, 116 N.E. 546 (1917), app. dis.

247 U.S. 526 (1918) 23

Hickory v. United States, 160 U.S. 408 (1896) 61

Hoffa v. United States, 385 U.S. 293 (1966) 34, 35, 37, 86

Holt v. Virginia, 381 U.S. 131 (1965) 61

Hoover v. Beto, 467 F. 2d 516 (5th Cir. 1972) 22

Humphrey v. Cady, 405 U.S. 504 (1972) 43, 44

Vili fTABLE OF AUTHORITIES CITED.

Interstate Commerce Commission v. Louisville & Nash-

ville Railroad Co., 227 U.S. 88 (1913)

Jackson v. Denno, 378 U.S. 368 (1964)

Johnson v. Bennett, 414 F. 2d 50 (8th Cir. 1969)

Jones v. Commonwealth, 327 Mass. 491, 99 N.E. 2d

456 (1951)

King v. United States, 372 F. 2d 383 (D.C. Cir. 1967) 74

Kitchell v. United States, 354 F. 2d 715 (1st Cir. 1965) 75

Konigsberg v. State Bar of California, 353 U.S. 252

S&S

(1957) 31

Krulewitch v. United States, 336 U.S. 440 (1949) 27

Lanzetta v. New Jersey, 306 U.S. 451 (1939) 27

Lefkowitz v. Newsome, 420 U.S. 283 (1975) 43

Marshall v. United States, 360 1/.S. 310 (1959) 84

Massiah v. United States, 377 J.S. 201 (1964)

33, 34, 35, 36, 37

Matter of Dyce Sombre, 1 Mac. & G. 116 (1849) 48

McFadden v. United States, 63 F. 2d 111] (7th Cir. 1933) 48

Mesarosh v. United States, 352 U.S. 1 (1956) 112 -

Miranda v. Arizona, 384 U.S. 436 (1966) 12

Moore v. Dempsey, 261 U.S. 86 (1923) 49

Moore v. Illinois, 408 U.S. 786 (1972) 33, 109

Morgan v. United States, 304 U.S. 1 (1938) 49

In re Murchison, 349 U.S. 133 (1955) 51

Napue v. Illinois, 360 U.S. 264 (1959) 98

Nardone v. United States, 308 U.S. 338 (1939) 37

National Association for the Advancement of Colored

People v. Alabama ex rel. Patterson, 357 U.S. 449

(1958) 40

TABLE OF AUTHORITIES CITED. ix

National Association for the Advancement of Colored

People v. Button, 371 U.S. 415 (1963) 31

Offutt v. United States, 348 U.S. 11 (1954) 70

Palko v. Connecticut, 302 U.S. 319 (1937) 56, 112

Patriarca v. United States, 402 F. 2d 314 (lst Cir.

1968), cert. den. 393 U.S. 1022 (1969)

16, 35, 54, 55, 110, 111

Pointer v. Texas, 380 U.S. 400 (1965) 38, 97

Pyle v. Kansas, 317 U.S. 213 (1942) 96, 98, 106, 111

Quercia v. United States, 289 U.S. 466 (1933) 61, 62

Raley v. Ohio, 360 U.S. 423 (1959) 43

Reagan v. United States, 157 U.S. 301 (1895) 90

Sacher v. United States, 343 U.S. 1 (1952) 70

Scales v. United States, 367 U.S. 203 (1961), reh. den.

366 U.S. 978 (1961) 30, 63

Shepard v. United States, 290 U.S. 96 (1933) 22

Smith v. Florida, 410 F. 2d 1349 (5th Cir. 1969) 107, 110

Smith v. Illinois, 390 U.S. 129 (1968) 38, 41, 62, 97

Smith v. United States, 360 U.S. 1 (1959) 48

Spencer v. Texas, 385 U.S. 554 (1967) 85

Starr v. United States, 153 U.S. 614 (1894) 61

State v. Johnson, 221 Iowa 8, 264 N.W. 596 (1936)

State ex rel. Wong Sun v. District Court, 112 Mont.

153, 113 P. 2d 996 (1941) 20

Stewart v. United States, 366 U.S. 1 (1961) 84

Stump v. Bennett, 398 F. 2d 111 (8th Cir. 1968) 91

Sullivan v. Scafati, 428 F. 2d 1023 (1st Cir. 1970), cert.

den. 400 U.S. 1001 (1971) 90

x TABLE OF AUTHORITIES CITED.

Townsend v. Sain, 372 U.S. 293 (1963) 98

Turner v. Yates, 16 How. 14 (1853) 84, 97

United States v. Cruikshank, 92 U.S. 542 (1875) 19, 20

United States v. Glen Alden Coal Co., 4 F.R.D. 211

(S.D. N.Y. 1943) 20

United States v. Gorman, 393 F. 2d 209 (7th Cir. 1968) 69

United States v. Guglielmini, 384 F. 2d 602 (2d Cir.

1967) 61

United States v. Hannon, 105 F. 2d 390 (3d Cir. 1939),

cert. den. 308 U.S. 594 (1939)

39

United States v. House, 471 F. 2d 886 (1st Cir. 1973) 86

United States v. Kelley, 314 F. 2d 461 (6th Cir. 1963) 70

United States v. Keogh, 391 F. 2d 138 (2d Cir. 1968)

108, 109

United States v. Macleod Bureau, 6 F.R.D. 590 (D.

Mass. 1947) 20

United States v. Missler, 414 F. 2d 1293 (4th Cir. 1969)

35, 37

United States v. Procter & Gamble Co., 356 U.S. 677

(1958) 56

United States v. Socony-Vacuum Oil Co., Inc., 105 F.

2d 809 (7th Cir. 1939), revd. 310 U.S. 150 (1940) 73, 85

United States v. Womack, 454 F. 2d 1337 (5th Cir.

1972) 52

Washington v. Texas, 388 U.S. 14 (1967) 18

Williams v. Kaiser, 323 U.S. 471 (1945) 96, 98, 106, 111

Wills v. Russell, 100 U.S. 621 (1879) 41

Tn re Winship, 397 U.S. 358 (1970) 87

Young v. United States, 346 F. 2d 793 (D.C. Cir. 1965) 69

TABLE OF AUTHORITIES CITED. xi

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution

Supremacy Clause 72

First Amendment 31, 63

Fifth Amendment 2, 4, 12, 35, 63, 81

Sixth Amendment 2, 3, 4, 14, 17, 18, 25 et seq.

Confrontation Clause 13

Fourteenth Amendment 5, 19, 27, 51, 63, 81, 95

Due Process Clause 3, 72, 86, 87, 98, 112

28 U.S.C. § 1254(1) 2

Mass. G.L. c. 233, § 240 59

Mass. G.L. c. 268, § 1 lll

Mass. G.L. c. 277

§ 40 5, 21

§ 79 5, 6

MISCELLANEOUS

16 Am. Jur. 2d § 279 49

Anderson, Wharton’s Criminal Evidence (12th Ed.),

vol. 2 86

Black’s Law Dictionary (Deluxe 4th Ed.) lll

Davenport, The Confrontation Clause and the Co-

Conspirator Exception in Criminal Prosecutions, 85

Harv. L. Rev. 1378 (1972) . 14

Leach & Liacos, Handbook of Massachusetts Evidence

(4th Ed.) 105

Massachusetts Superior Court Rule 71 57, 74

McCormick on Evidence 22

xii TABLE OF AUTHORITIES CITED.

8 Moore’s Federal Practice (2d Ed.) 112

Note, Criminal Law — Confessions — Bruton Doctrine,

59 Mass. L.Q. 78 17

Note, Harmless Constitutional Error: A Reappraisal,

83 Harv. L. Rev. 814 52

Random House Dictionary of the English Language

(Unabridged Ed.) 26

Toomey, Some Procedural Aspects of the Prosecution of

a Conspiracy in Massachusetts, 53 Mass. L.Q. 207 13, 88

Underhill’s Criminal Evidence, vol. 1, § 181 86

Webster's Third New International Dictionary lll

Wigmore on Evidence (McNaughton Ed.) 23, 24, 51

In the

Supreme Court of the United States.

Ocroser Term, 1976.

No.

RONALD CASSESSO,

LEWIS GRIECO,

PETER LIMONE,

JOSEPH SALVATI

AND

HENRY TAMELEO,

DOUGLAS VINZANT,

RESPONDENTS.

Petition for Writ of Certiorari to the

United States Court of Appeals for the First Circuit.

Citations to Opinions Below.

The opinion of the United States Court of Appeals for the

First Circuit is not yet reported.' Earlier opinions in this case

' The opinions of the Court of Appeals, the United States District Court

and the Supreme Judicial Court and the judgment of the Court of Appeals

are printed in the Appendix hereto.

2

are reported sub nom. Commonwealth v. French, 357 Mass.

356, 259 N.E. 2d 195 (1970), judgment vacated as to death

penalty sub nom. Limone v. Massachusetts, 408 U.S. 936

(1972), and sub nom. Commonwealth v. Cassesso, 360 Mass.

570, 276 N.E. 2d 698 (1971), judgment vacated as to death

penalty 408 U.S. 936 (1972).

Jurisdiction.

The judgment of the United States Court of Appeals for the

First Circuit was entered on April 7, 1976. Jurisdiction of this

Court is invoked pursuant to 28 U.S.C. § 1254(1). The

Circuit Justice extended until July 13, 1976, the time for filing

this petition.

Questions Presented.

1. Was petitioner Peter Limone entitled to severance under

the rule of Bruton v. United States, 391 U.S. 123 (1968), and,

if so, was the refusal to grant such severance harmless error?

2. Were petitioners deprived of the basic constitutional

right to be informed of the charges pending against them, and

were petitioners further deprived of that right when the trial

court admitted against them highly prejudicial evidence of

virtually no probative value in the case on trial, which

evidence tended to associate them with other crimes and with

criminal organizations?

3. Were petitioner Ronald Cassesso and other petitioners

deprived of their rights under the Fifth and Sixth Amendments

when statements allegedly made by Mr. Cassesso after his

3

indictment and outside the presence of his counsel, who had

already been retained, were admitted against him in evidence?

4. Were petitioners deprived of their right to cross-examine

a prosecution witness on voir dire, and was petitioner Cassesso

deprived of his Sixth Amendment right to cross-examine a key

prosecution witness as to prior statements inconsistent with the

testimony given by this witness at trial?

5. Were petitioners deprived of their liberty without due

process of law when the prosecutor submitted and the trial

court received a brief of which no copies were given to peti-

tioners or their counsel and, if so, was such error harmless or

waived?

6. Did the refusal of the trial court to allow petitioners to

see the minutes of a prosecution witness before the grand jury

deprive petitioners of due process of law after that witness

admitted inconsistencies between his testimony to the grand

jury and his testimony at trial?

7. Were petitioners deprived of a fair trial as a result of

comments and conduct of the prosecutor and the court?

8. Were petitioners entitled as a matter of constitutional

law in the circumstances of this case to an instruction that the

testimony of an accomplice should be carefully scrutinized?

9. Did instructions given by the trial judge to the jury

unfairly shift the burden of proof to petitioners on questions of

alibi and conspiracy?

10. Was petitioner Henry Tameleo entitled under the Due

Process Clause of the Fourteenth Amendment to rest at the

close of the Commonwealth’s case?

1l. Were petitioners entitled to a new trial because of the

suppression of exculpatory evidence and because of newly

discovered evidence, and in view of their affidavits in support

of their motion for a new trial in the state court were they

entitled to either an evidentiary hearing on their motion or to

have their affidavits taken as true for all further proceedings?

4 5

Statutory Provisions. Section 1 of the Fourteenth Amendment to the Constitution

of the United States is found at page XLVII of volume 1 of the

The Fifth Amendment to the Constitution of the United United States Code (1958 Ed.):

States is found at page XLVI of volume 1 of the United States

Code (1958 Ed.): “All persons born or naturalized in the United States,

“No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the militia, when in actual

service in time of war or public danger; nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.”

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.”

Sections 40 and 79 (paragraphs “Accessory Before the Fact”

and “Conspiracy”) of chapter 277 of the General Laws of

Massachusetts are set out at pages 3240-3241, 3248 and 3250

respectively of the Tercentenary Edition (1932) of the General

The Sixth Amendment to the Constitution of the United Laws of Massachusetts, vol. II:

States is found at page XLVI of volume 1 of the United States

Code (1958 Ed.): “Section 40. The court may, upon arraignment of the

“In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall have

been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the wit-

nesses against him; to have compulsory process for obtain-

ing witnesses in his favor, and to have the assistance of

counsel for his defence.”

defendant, or at any later stage of the proceedings, order

the prosecution to file a statement of such particulars as

may be necessary to give the defendant and the court

reasonable knowledge of the nature and grounds of the

crime charged, and if it has final jurisdiction of the crime,

shall so order at the request of the defendant if the charge

would not be otherwise fully, plainly, substantially and

formally set out. If there is a material variance between

the evidence and the bill of particulars, the court may

order the bill of particulars to be amended, and may

postpone the trial, which may be before the same or

another jury, as the court may order. If, to prepare for

6

his defence, the defendant desires information as to the

time and place of the alleged crime or the means by

which it is alleged to have been committed, or more

specific information as to the exact nature of the property

described as money, or, if indicted for larceny, as to the

crime which he is alleged to have committed, he may

apply for a bill of particulars as aforesaid.”

“Section 79. Accessory before the fact (under chap.

274, § 2) — Charge principal felony and proceed: That

A. B., before the said felony was committed, did incite,

procure, aid, counsel, hire or command the said (princi-

pal) the said felony to do and commit.

“Conspiracy — (1) That A. B. and C. D. conspired

together to murder on E. F. (2) That A. B. and C. D.

conspired together to commit rape upon E. F. (3) That

A. B. and C. D. conspired together to steal the property,

money, etc., of E. F.”

Statement of the Case.

The judgment of the United States Court of Appeals for the

First Circuit affirming judgments of the District Court dismis-

sing petitions for writs of habeas corpus raises questions of

whether five men, all incarcerated for life, were deprived of

their federal constitutional rights before, during and after their

trial in the Superior Court of the Commonwealth of Massa-

chusetts. The case is voluminous, and not the least of the

problems that it presents is that of dealing adequately and

accurately with the procedural and substantive record without

making it unmanageable, if not unreadable.

7

Petitioners were indicted by a grand jury of the County of

Suffolk, Commonwealth of Massachusetts, on October 25,

1967, in indictments charging them as accessories before the

fact or principals to the first degree murder of Edward

Deegan, conspiracy to murder Deegan, and conspiracy to

murder Anthony J. Stathopoulos. They were tried before a

jury and found guilty on all three indictments. On the indict-

ments charging conspiracy they were sentenced to consecutive

prison terms, and on the indictments charging murder all,

except petitioner Salvati, were sentenced to death. They

appealed to the Supreme Judicial Court which, although

finding at least fourteen errors made in the course of the trial,

affirmed the judgments on May 4, 1970. Commonwealth v.

French, 357 Mass. 356, 259 N.E. 2d 195. On May 5, 1970,

petitioner Limone filed a request for rehearing, which on

May 13, 1970, was denied.

Petitioners Limone and Cassesso filed timely petitions for

writs of certiorari in this Court (No. 70-526). In the summer

of 1970 petitioners also filed motions for new trial in the

Superior Court of Massachusetts. Affidavits were attached to

these motions. Petitioners requested an evidentiary hearing on

the matters raised by the affidavits, but the court refused to

hold one. It denied the motions, and two of the petitioners,

Messrs. Limone and Cassesso, again appealed to the Supreme

Judicial Court of Massachusetts. On December 8, 1971, the

Supreme Judicial Court affirmed the judgments denying the

motions for new trial. Commonwealth v. Cassesso, 360 Mass.

570, 276 N.E. 2d 698. A second petition for writ of certiorari

was filed in this Court seeking to review the second judgment

of the Supreme Judicial Court (No. 71-1139).

Although no question as to the constitutionality of the death

penalty imposed upon four of petitioners had been raised in

either the state court or in this Court in either proceeding, on

June 28, 1972, this Court vacated both judgments in so far

8

as they left the death penalty undisturbed. Limone v.

Massachusetts, 408 U.S. 936 (1972).

The present petitions were filed in the United States District

Court for the District of Massachusetts in January of 1974.

The various respondents filed motions to dismiss, which after

hearing were denied. The judge declined to hold an evidenti-

ary hearing on several of the matters as to which petitioners

requested such a hearing but did hold an evi’entiary hearing

on the question of whether there had been improper submis-

sion of a brief ex parte to the trial judge. On July 10, 1965,

he filed a memorandum and order devoted mainly to discus-

sing this issue and dismissing the petitions. On appeal, the

United States Court of Appeals for the First Circuit affirmed.

The two opinions of the Supreme judicial Court, reported

sub nom. Commonwealth v. French, 357 Mass. 356, 259 N.E.

2d 195 (1970), and Commonwealth v. Cassesso, 360 Mass.

570, 276 N.E. 2d 698 (1971), contain detailed statements of

the evidence and the procedural history ot the case. Although

as petitioners pointed out in their several petitions for writs of

habeas corpus, they do not necessarily accept the Supreme

Judicial Court’s characterizations of the evidence and the pro-

cedure, it would serve no point to state the evidence presented

in the state courts or to give a detailed procedural history

here.

This petition will be unavoidably long even without such a

statement, and in several of the arguments it will be necessary

to focus at length and in depth upon procedural and substan-

tive problems.

9

Reasons for Granting This Writ.

INTRODUCTION.

This is the fourth time, the sixth if we count two previous

petitions to this Court, that this case has come before a court

sitting in a “reviewing” capacity. It thus seems strange that,

given the gravity of this case, the flimsiness of the Common-

wealth’s evidence, the doubts that the Commonwealth’s key

witness has cast upon the veracity of his own testimony in the

Superior Court by his subsequent affidavit, and the severity of

the sentences, that many of the points which we are about to

discuss in argument received only the most cursory review in

the written opinions of the Supreme Judicial Court and the

Court of Appeals and a few of the more important points have

never been discussed in any judicial opinion.

Certain facts about this case are too plain not to be recog-

nized even by the most avid partisan. This was a complicated

case that took an exceedingly long time to hear and try.

Numerous exceptions were taken before, during and after trial,

and these in turn became the basis for lengthy assignments of

error. An appellate opinion discussing both the arguments

and the facts underlying each such assignment would have

been, if we may be excused some hyperbole, of interminable

length. In an age when judges have been rebuked for writing

too much, it is hardly surprising that any judge would wish to

sweep under the broad carpet of generalization the bits and

pieces that appellate counsel wish to exhibit to judicial

scrutiny.

Against this normal enough inclination must be weighed the

requirements of law and justice. Whatever may be said at the

trial level of our courts, where important decisions must often

be made in, as it were, the twinkling of an eye, justice at the

appellate level, we submit, must be more than an intuition

10

that a certain course of action was proper and right. At the

close of his memorandum, the District Court Judge who heard

this petition for writ of habeas corpus stated: “The petitioners

certainly did not get a perfect trial, but they did get a fair one

in constitutional terms.” We do not doubt that the author of

these words intended to convey the fact that he had considered

all of the errors argued by petitioners in support of their peti-

tion for release on writ of habeas corpus and had concluded

that they were without merit. Yet of the sixty-odd points

argued by petitioners in their briefs, only two were discussed

in the memorandum. One of these, the submission to the

state trial judge by the prosecutor of an ex parte brief,

received cursory treatment in an appendix to the opinion of

the Supreme Judicial Court affirming the original judgments.

What cannot be explained in terms of all the facts often

cannot be defended. Five men are serving sentences of

imprisonment for life, having been convicted of a crime of

which they are most conceivably innocent. It should not be

asking too much of the appellate processes that the constitu-

tional arguments which they now raise be given formal con-

sideration.

I. Perirmioner Perer LIMONE was CONSTITUTIONALLY ENTITLED

TO SEVERANCE UNDER THE RULE OF BruTON v. UNITED STATEs,

391 U.S. 123 (1968).

Petitioner Limone argued in the Supreme Judicial Court and

in the Court of Appeals that because statements of co-defend-

ants Henry Tameleo and Ronald Cassesso (co-petitioners here),

neither of whom testified at trial, were admitted into evidence

and because these statements were incriminatory of petitioner,

he was entitled to severance. This evidence was included in

ll

the testimony of Joseph Baron. Baron testified in essence that

Peter Limone had offered him a contract to kill Ted Deegan

(357 Mass. at 363). Baron then allegedly went to Henry

Tameleo to obtain Tameleo’s “consent” to the killing (357

Mass. at 363-364). The following conversation thereupon

allegedly ensued (Tr. 28, 3240-3241):

“I [Baron] said to him that ‘Peter [Limone] offered me a

contract on Teddy Deegan, and that the office okayed it.’

He said, ‘Yes, that’s right.’ 1 said, ‘Even though Peter

said it was all right,’ I said, ‘I want you to okay it, I

won't do it. Whatever you say I will do,’ and he says,

‘He definitely goes.’ He says, ‘No punk like Deegan is

going to push the office around and cause trouble inside

the Ebb Tide the way he has,’ and that he was definitely

involved in a $82,000 burglary in Carmen Puopolo’s

home.’” (Emphasis supplied.)

After this alleged meeting with Mr. Tameleo, Baron

allegedly contacted petitioner Cassesso to enlist his assistance in

carrying out the enterprise (357 Mass. at 364). Baron and Mr.

Cassesso allegedly drove to Providence, and, in the course of

the trip, according to Baron’s testimony, the following conver-

sation occurred:

“I told him that the Deegan contract was an office matter

and that Peter Limone was the one that offered it to me,

and that it was okayed. He said to me that when we

were kids, Peter ratted on some guys and sent them to

Shirley. He said, ‘Do you trust him?” (Emphasis

supplied.)

12

The Supreme Judicial Court offered four general reasons

why Bruton should not apply to the exclusion of Tameleo’s

and Cassesso’s alleged statements. We dispose of them in

ascending order of complexity.

1. The court noted that four of the defendants at the joint

trial testified (357 Mass. at 371-372). This, of course, is true

but the only persons about whose alleged incriminatory state-

ments petitioner complains are Messrs. Tameleo and Cassesso,

who did not testify.

2. The court reasoned that the statements were as to

Tameleo and Cassesso, the persons who allegedly made them

to Baron, admissions rather than confessions (357 Mass. at

371). We assume, arguendo, that if Tameleo and Cassesso

were asserting a Fifth Amendment right against self-incrimina-

tion (cf. Escobedo v. Illinois, 378 U.S. 478 (1964); Miranda v.

Arizona, 384 U.S. 436 (1966)), this distinction might be plaus-

ible. In point of substance, however, it is petitioner Limone

who is asserting a right to confront and to cross-examine

Tameleo and Cassesso, whose statements, incriminatory of

him, came into evidence as their admissions.

3. The Supreme Judicial Court observed that there were

“conspiracy charges, as well as [a] substantive murder charge”

against petitioner. It held, therefore that “[p]rinciples .. .

governing the admissibility of evidence of statements of co-

conspirators, to prove conspiracy and common criminal enter-

prises,* are thus applicable” (357 Mass. at 372).

* Respondent did not allege that petitioner Limone engaged in a “joint

enterprise” with co-petitioner Cassesso and co-defendant Tameleo. Rather

the theory was that each defendant “could be found to have conspired” with

Baron (357 Mass. at 393, 373, fm. 15). Given full scope, respondent's

evidence does not connect petitioner with Cassesso or Tameleo nearly as

closely as the evidence connecting Evans and Bruton in Bruton, supra. See

statement of facts in opinion of Eighth Circuit, 375 F. 2d 355, 359 (Bruton

implicated as “accomplice”). Limone is never shown to have met with or

even talked to co-petitioner Cassesso about the Deegan crime and the only

allegation that he met with or talked to Tameleo was an inference drawn by

the prosecutor in summation.

13

It should be a sufficient answer to this “distinction” that the

crime of being an accessory to murder, for which petitioner is

now under sentence of life imprisonment, is far more serious

than conspiracy, for which he was sentenced to a total of three

years imprisonment. The trial judge having refused to sever

the indictments, petitioner cannot through a joint trial be

imprisoned for life without the opportunity to confront persons

by whose statements he was incriminated, even if, arguendo,

he could on the lesser offense be so deprived of his liberty for

three years.

The argument that the accused in a conspiracy case need

not be given an opportunity to cross-examine the statements of

alleged co-conspirators incriminating him is particularly weak

in Massachusetts; under Massachusetts law not only must the

trial judge first decide that a conspiracy exists before the such

statements can be submitted to the jury against all defendants

(Commonwealth v. Benesch, 290 Mass. 125, 132-133, 194

N.E. 905 (1935); Commonwealth v. Kiernan, 348 Mass. 29,

57-58, 201 N.E. 2d 504 (1964)), but the jury also must be

given an opportunity to redetermine the judge’s finding and

limit the statements if it disagrees therewith. Commonwealth

v. Rogers, 181 Mass. 184, 191, 63 N.E. 421 (1902). Toomey,

Some Procedural Aspects of the Prosecution of a Conspiracy in

Massachusetts, 53 Mass. L.Q. 207, 241. If the accused is

unable to cross-examine the person whose alleged statements

incriminate hin , how can he show the judge and the jury that

the statements should not be admitted against him?

It is true that in Dutton v. Evans, 400 U.S. 74, 86 (1970),

this Court declined to equate the Sixth Amendment's

Confrontation Clause with the evidentiary hearsay rule and

held constitutional a Georgia statute that stated: “After the

fact of conspiracy shall be proved, the declarations by any one

of the conspirators during the pendency of the criminal project

shall be admissible against all.” In part, the opinion may be

14

read as countenancing such an exception to Brute» on the

basis of the overwhelming evidence against the respondent (the

defendant in the state criminal case) and the “peripheral

significance” of the one witness's testimony whose admission

supposedly violated the Sixth Amendment. 400 U.S. at 87.

So read, the opinion is a reassertion of the harmless error rule.

Chapman v. California, 386 U.S. 18, 24 (1967).

But even if Dutton stands for a broader proposition that a

defendant can be convicted on the basis of hearsay as long as

the hearsay is admitted pursuant to a recognized, or at least a

reasoned, exception to the hearsay rule, its holding can have

no effect in this case in the absence of any evidence, except

the evidence to which objection is made (and then only an

inference from that evidence), that the alleged speaker

(Mr. Tameleo) and the person whom he allegedly incriminated

(Mr. Limone) had had any common dealings whatsoever.

A contrary proposition would nullify Bruton outright.

4. We come now to the final ground upon which the

Supreme Judicial Court held Bruton inapplicable. This was

that the statements allegedly made by Tameleo “do not...

very directly or clearly ... charge [petitioner] ... with

complicity in Deegan’s murder” (357 Mass. at 372). To the

extent that the court was right, petitioner Limone’s argument

for severance was enhanced. As the article, The Confronta-

tion Clause and the Co-Conspirator Exception in Criminal

Prosecutions, Davenport, 85 Harv. L. Rev. 1378, 1402 (1972),

states:

“A declaration is inadmissible whenever it is either

(1) materially ambiguous as to the meaning that would

justify its admissibility or (2) ambiguous in a way that

could be crucial or devastating.”

15

Tameleo’s alleged replies on their face may have incrimina-

ted petitioner Limone by showing that Tameleo (a) supposedly

had prior independent knowledge of Mr. Limone’s offer of a

“contract,” (b) recognized Mr. Limone’s right to offer it and

(c) identified Mr. Limone as part of the “office,” a code word

for an alleged criminal hierarchy. Baron also testified about a

conversation he had with Tameleo regarding Mr. Limone’s

involvement in a contract to murder the witness Stathopoulos

(Tr. 29, 3351-3352) and testified that even before the meeting

at the Ebb Tide Tameleo knew about Mr. Limone’s alleged

plan to have Deegan murdered (Tr. 28, 3266).

While this may not be enough to show that petitioner was

implicated by Tameleo’s statement, the assistant district

attorney in his summation to the jury expended considerable

effort on this point. We quote his argument (Tr. 51, 7407-

7408):

“Now ladies and gentlemen .. . I said +> you that after

this conversation with Peter Limone in the North End,

Joseph Baron went to see Henry Tameleo. Now, we

know that he went there to see him to get an okay on this

contract.

“And what happened? Baron says, ‘Peter offered me a

contract on Teddy Deegan,’ and listen to these words

carefully. They were said a long time ago in this trial,

and there’s been a lot of evidence since then, and there’s

been a lot of interruptions and a lot of attempts to help

you forget it, so | must repeat it for you, but I know some

of you remember it. He said, Peter offered me a con-

tract on Teddy Deegan, and that the office okayed it.’

He said . . . ‘referring to Henry Tameleo’ . . . ‘Yes, that’s

right.. ‘Now, what do we get by the words, ‘Yes, that’s

right?’ Is it not safe to presume, using your common

16

sense, that the only way Henry Tameleo could have said,

‘Yes, that’s right,” was because he had spoken to Peter

Limone and knew that this contract was going to come

about? He admits that he knew something about it.”

If it was permissible for the prosecutor to suggest the

inference’ which he suggested, we submit that petitioner

was entitled to severance so that it could be shown through

cross-examination of Tameleo that either Baron or Tameleo

or both were in error.

It is significant that with regard to this fourth distinction the

Supreme Judicial Court, unlike the Court of Appeals, sedu-

lously avoids using the words “harmless error” or their equiva-

lent. Harrington v. California, 395 U.S. 250, 254 (1969).

The sole evidence that petitioner Limone ever offered Baron a

contract was Baron’s testimony to that effect, and the sole

indication within that testimony of any knowledge aliunde

that such a contract had been offered was the alleged conver-

sation between Baron and Tameleo. And we submit, the

Court of Appeals notwithstanding, uncorroborated testimony

by Baron could hardly be considered “overwhelming” evidence

on any point. Patriarca v. United States, 402 F. 2d 314, 319

(Ist Cir. 1968).

We recognize that the rule of Commonwealth v. French on

this point may no longer be the law of Massachusetts. See

Commonwealth v. LeBlanc, 1973 Mass. Adv. Sh. 1091,

>In view of the prosecutor's statement to the court in his ex parte brief

that Mr. Tameleo was the personal representative of the New England Cosa

Nostra, and in view of the allegation that the “contract” to kill Deegan was

an “office” contract, the prosecutor could hardly have believed that a visit

from Mr. Limone to Mr. Tameleo was necessary to inform Mr. Tameleo of

it or to obtain his approval.

17

1097-1098, 299 N.E. 2d 719 (1973); Note, Criminal Law —

Confessions — Bruton Doctrine, 59 Mass. L.Q. 78, 79-80.

Whether or not it is the law that Massachusetts courts cur-

rently follow, it cannot be squared with the Sixth Amendment

for the very reason stated by Mr. Justice Kaplan in LeBlanc,

supra, at 1098, 299 N.E. 2d at 723: “Indeed, there is danger

that juries will make severe implications even from indefinite

references, for association is all too easy with a defendant who

is conspicuously present in court and who has already been in

some way tied to the criminal episode.”

Finally, the Supreme Judicial Court claimed that the alleged

statement of co-petitioner Cassesso to Barca (“He said to me

that when we were kids, Peter ratted on some guys and sent

them to Shirley. He said, ‘Do you trust him?’” — Tr. 3297)

en route to Providence was not governed by Bruton because it

implied “no charge [directly relating to] the Deegan murder”

(357 Mass. at 373). We do not understand, however, that

the right to cross-examine is limited to situations in which one

co-defendant who fails to testify directly implicates the other

with resect to the crime with which they are charged. Peti-

tioner’s right to cross-examine a person who by innuendo

allegedly accused him of associating with juvenile delinquents

and of being generally untrustworthy is no less clear; indeed

such testimony was so unnecessary to the Commonwealth’s

case that petitioner’s right to cross-examine thereon should be

even clearer.

Petitioner Limone submits that Bruton required severance

and that the distinctions upon which the Supreme Judicial

Court rested its decision range from the inapplicable (the fact

that four co-defendants testified) to the inadequate (the sup-

posed lack of clarity in the accusations) to the downright

‘The Court of Appeals incorrectly described this conversation as one

“which tended to link Limone to the decision to kill Deegan” (p. 3).

18

frivolous (against the makers, the statements were received as

admissions rather than confessions).

The Court of Appeals seemed to view the testimony of

Baron as to his conversations with petitioners Tameleo and

Cassesso about petitioner Limone as admissible evidence

because if “the trials had been severed, the very same state-

ments could have been offered against him [Limone] at his

separate trial, given a proper showing of conspiracy” (page 4).

As to Cassesso’s alleged statements about Limone’s untrust-

worthiness, this proposition is almost certainly incorrect, for

the statement would have been irrelevant. It is probably

incorrect even as to petitioner Tameleo’s statements, given its

ambiguity. We repeat that no conspiracy between Tameleo

and Limone or between Cassesso and Limone was ever shown.

But in any event, if the statement had been offered at a

separate trial, petitioner would have been entitled to summon

Cassesso and Tameleo as witnesses and cross-examine them.

Washington v. Texas, 388 U.S. 14, 22 (1967). Common-

wealth v. Baker, 348 Mass. 60, 62-63, 201 N.E. 2d 829

(1964). He could not do so at a joint trial. See Bruton,

supra, 128; Baker, supra, 62.

II. PEerrrioNeRS WERE DEPRIVED OF THE RIGHT TO BE INFORMED

OF THE CHARGES PENDING AGAINST THEM AND FURTHER

DEPRIVED OF THAT RIGHT WHEN THE TRIAL Court ADMITTED

AGAINST THEM HIGHLY PreyupICIAL Evip—ENCE OF VIRTUALLY

No PRoBATIVE VALUE IN THE CASE ON TRIAL, WHICH Evi-

DENCE TENDED TO ASSOCIATE THEM WITH OTHER CRIMES AND

WITH CRIMINAL ORGANIZATIONS.

A. Bill of Particulars (Not Applicable to Petitioner Grieco).

The Sixth Amendment guarantees that “in all criminal

prosecutions, the accused shall enjoy the right ... to be

19

informed of the nature and cause of the accusation.” The

accused in a state court has the same right under the Four-

teenth Amendment. Cole v. Arkansas, 333 U.S. 196, 201

(1948). We assume, arguendo, that petitioners have no

specific right to be informed of the nature of the accusation

through an indictment and that the right may be satisfied if

the accused is furnished with particulars. Commonwealth v.

Jordan, 207 Mass. 259, 267, 93 N.E. 809 (1911), affd. on

other grounds, 225 U.S. 167 (1912).

In United States v. Cruikshank, 92 U.S. 542, 557-558

(1875), this Court said:

“In criminal cases, prosecuted under the laws of the

United States, the accused has the constitutional right ‘to

be informed of the nature and cause of the accusation.’

Amend. VI. In United States v. Mills, 7 Pet. 142, this

was construed to mean, that the indictment must set forth

the offence ‘with clearness and all necessary certainty, to

apprise the accused of the crime with which he stands

charged;’ and in United States v. Cook, 17 Wall. 174

[21 L. ed. 539], that ‘every ingredient of which the

offence is composed must be accurately and clearly al-

leged.’ It is an elementary principle of criminal pleading,

that where the definition of an offence, whether it be at

common law or by statute, ‘includes generic terms, it is

not sufficient that the indictment shall charge the offence

in the same generic terms as in the definition; but it must

state the species, — it must descent to particulars.’”

(Emphasis supplied.)

All of the present petitioners, except Mr. Grieco, were

indicted as accessories before the fact. How do their indict-

ments, which the Supreme Judicial Court of Massachusetts

20

held adequate without particulars, square with what was said

in Cruikshank, supra? After charging petitioners Grieco and

Wilfred French as principals, the indictments go on to say that

the other petitioners at an unknown place and at some time (a

day, a month, a year, ten years?) before March 12, 1965,

incited (from a soapbox, by nasty innuendoes?), or procured

(through blandishments, by newspaper advertisement?), or

aided (in any of a thousand possible ways), or counselled

(voluntarily or upon request?), or hired (for how much?), or

commanded (by what authority?), these two persons to kill

Deegan. They do not allege a single specific act which these

petitioners are alleged to have committed.

The right to particulars has been held constitutionally

absolute, even in a jurisdiction where there was no statutory

authority to grant them, where an “offense may be committed

under [a] statute in several ways.” State ex rel. Wong Sun v.

District Court, 112 Mont. 153, 156, 157, 113 P. 2d 996

(1941). Moreover, we submit that if petitioners were to

prepare a defense, they were entitled to know at least within

reasonable limits the time of the alleged offense. United

States v. Glen Alden Coal Co., 4 F.R.D. 211, 213 (S.D. N.Y.

1943). United States v. Macleod Bureau, 6 F.R.D. 590, 593

(D. Mass. 1947). “Before March 12, 1965” is not a reasonable

limit for the statement of the time within which the crime was

allegedly committed.

In its brief in the Supreme Judicial Court, the Common-

wealth virtually conceded that petitioner Cassesso was entitled

to particulars but argued that his motion therefor was filed too

late. We assume that the Supreme Judicial Court disposed of

this point adversely to petitioners, or in any event passed upon

the merits uf the constitutional argument, when it said (357

Mass. at 400): “Although the motions were denied as having

been filed late, the indictments were substantially in the statu-

tory forms and were adequate.” To dispose of any doubts

21

that may remain, however, we point out that Mass. G.L.

c. 277, § 40, explicitly notes that particulars may be ordered

“upon arraignment of the defendant, or at any later stage of

the proceedings.” Absent statutory authority, the court could

not foreshorten a time allowed by statute for taking certain

actions.

B. Baron's Beliefs when he Testified Before the Grand

Jury (Applicable to All Petitioners ).

Baron was allowed to testify as to his belief when he testi-

fied before a grand jury (Tr. 36, 4605). To say the least,

these “beliefs” were prejudicial to petitioners. We quote the

transcript (Tr. 36, 4605):

“I believed that the office killed Tash — Arthur Bratsos,

and Tommy DePrisco, my partners. I believed that the

office took $70,000 off of their person which belonged to

me for my bail. I believed that they plotted and tried

to kill my wife and child. I believed that they tried to

kill my brother. I believed that they tried to poison me

in Charles Street Jail with my food, and they tried to kill

me. And I believed that they stepped into my shylock

business.”

These beliefs were immaterial and irrelevant to the issue of

Baron's “motive” to testify against petitioners, for which they

were offered (Tr. 36, 4604). Petitioners were not charged

with murdering Bratsos and DePrisco or attempting to murder

Baron’s family or Baron himself. That the witness believed

that the “office” had mistreated him in no way detracts from

his real motives for testifying, i.e., what he had hoped to

22

achieve. If anything, the witness, if he believed these things,

now had more motive than ever for lying in order to damage

petitioners, since, according to his testimony, they were part of

the “office.”

But not only was Baron’s testimony as to his belief irrelevant

and immaterial; it was also rank hearsay. Shepard v. United

States, 290 U.S. 96, 103 (1933). McCormick on Evidence,

pp. 470-471. Neither Massachusetts (Commonwealth v.

DelValle, 351 Mass. 489, 495, 221 N.E. 2d 922 (1966)) nor

any other authorities recognize such testimony as this as an

exception to the hearsay rule. In a recent case explaining

Dutton v. Evans, supra, the Fifth Circuit held in Hoover v.

Beto, 467 F. 2d 516, 532 (1972):

“Under Dutton, the mission of the confrontation clause

is to assure that the trier of fact is provided with a satis-

factory basis for evaluating the truth of the evidence

presented to it, whether the evidence is hearsay or non-

hearsay and whether the satisfactory basis is provided by

cross-examination or otherwise. The Sixth Amendment is

violated where there is no satisfactory basis.”

We submit that there was no satisfactory basis in this case to

evaluate the truth of either Baron’s belief, or, a fortiori, the

truth of the proposition allegedly believed by him.

Petitioners concede it to be elementary law that a witness

like Baron whose motives® are called into question may intro-

* We should at this point distinguish between a person’s motives for doing

a certain act, e.g., need of money as a motive to rob, and his “motives” for

lying on the witness stand. The former go to the essence of whether the

person actually did the act in question and evidence relevant thereto can

generally be introduced regardless of whether the person becomes a witness

23

duce evidence to show the absence of a motive or, at least, of

a motive likely io lead to mendacity. See Wigmore on Evi-

dence, § 952, p. 510 (McNaughton Ed.). This doctrine has no

application to Baron's testimony in the case at bar. Almost all

of the cases of which we are aware arise in a context in which

a defendant is shown to have testified in a certain fashion out

of an evil or selfish motive and evidence is subsequently intro-

duced in contradiction thereof. See, e.g., Commonwealth v.

Giacomazza, 311 Mass. 456, 469, 42 N.E. 2d 506 (1942). But

a desire for personal revenge has never been considered a

motive more likely to lead to credibility than the desire to

escape punishment; on the contrary, whenever evidence of a

desire for revenge has been introduced, it has been to destroy

the witness's credibility. Commonwealth v. Byron, 14 Gray,

31 (1859). Herlihy v. New York, New Haven & Hartford

Railroad Co., 227 Mass. 168, 173, 116 N.E. 546 (1917), app.

dis. 247 U.S. 526 (1918) (dictum).

Petitioners submit that there is no reported case in which a

witness has ever been allowed, on the pretext of testifying as to

his motives, to have offered his own uncorroborated opinions

as to whether the defendants committed certain hein: ~ acts,

the commission of which is susceptible of logical and rational

proof. Indeed, if such testimony were allowed, it would be

extremely perilous for counsel ever to cross-examine a witness

as to his self-interest in testifying in a certain fashion, for then,

in any type of case, a witness so impeached could testify to his

opinion that the accused was guilty of the most lurid and

in the proceeding. The latter “motives” really represent a bias or hostility

on the part of one who becomes a witness and go to the weight of his testi-

mony. Commonwealth v. Putnam, 2 Allen, 301 (1861). In the case at

bar, the Commonwealth without objection introduced voluminous evidence

tending to show petitioners’ alleged motives for wanting Deegan killed, but

this evidence is not here in issue.

24

revolting conduct imaginable, and offer that opinion as his

motive for testifying. We do not understand that the law of

Massachusetts countenances so absurd an anomaly to the rule

prohibiting a witness from giving his opinion as to the state of

the facts. Commonwealth v. Ross, 339 Mass. 428, 435, 159

N.E. 2d 330 (1959), and cases cited. The exception suggested

by this case would soon swallow up the rule. As Wigmore,

op. cit. pp. 511-512, notes:

“When to a witness is imputed hostility to the opponent,

the true process of explanation consists in showing that

the facts offered do not really indicate the conclusion

suggested, i.e. the hostility.* Thus, when the counter-

evidence does not attempt to do this, but admits the

hostility and desires to show that it was justifiable by the

opponent's conduct, the offer is improper in two ways,

first, because it does not at all explain away, but concedes

that hostility exists, and secondly, because it tends to

prejudice unfairly the cause of the opponent by showing

him to be an unjust man. For these reasons such evi-

dence may be excluded: 1852, Johnson, C.J., in Cor-

nelius v. State, 12 Art. 801: ‘A long and tedious detail

by the witness of the numerous charges which he has

heard against the accused could not aid the jury in the

least possible degree in their deliberations, as they could

not thereby ascertain the extent of his prejudice... .

The question for the jury to determine is not what it is

that constitutes the basis or foundation of the feeling or

prejudice that may be entertained by the witness towards

the accused; but on the contrary, it is as to the existence

*In this context, as the quotation from Cornelius, infra, indicates,

Wigmore obviously uses “hostility” interchangeably with “prejudice.” Fn.

that of petitioners’ counsel.

25

of such prejudice. ... In this case the effect of ihe re-

examination was to disclose the defendant's general

character, and that too by particular acts.’”

The Commonwealth’s argument in the Supreme Judicial

Court that testimony concerning the deaths of Bratsos and

DePrisco was admissible had a curious inconsistency to it.

On the one hand the Commonwealth conceded that there

“was no suggestion that the defendants as individuals were

responsibie for the deaths of the per.as named,” whereas on

the other hand it argued that “the deaths did tend to corrobor-

ate the testimony of Baron” as to motive (Bf., 72). If peti-

tioners as individuals were not responsible for the deaths of

Bratsos and DePrisco, what “motive” did Baron, on the basis

of his own alleged beliefs, have to incriminate them?

Although this issue was the subject of a valid exception and

assignment of error, was briefed in both the original and the

reply briefs of petitioners and had been called to the Supreme

Judicial Court's attention on request for rehearing, its opinion

ignores it entirely. The opinion of the Court of Appeals,

wherein the issue was also briefed, does likewise. But peti-

tioners have nevertheless exhausted their state and federal

remedies and cannot be precluded from raising the constitu-

tional issues here. The introduction of evidence tending to

make petitioners murderers of Bratsos and DePrisco, crimes

with which they were not charged, was of no probative value

and violated petitioners’ Sixth Amendment right to be

informed of the charges against them. Cole v. Arkansas,

supra.

26

C. The Cosa Nostra Question (Applicable Directly to

Petitioner Limone and Indirectly to All Petitioners).

On direct examination, petitioner testified that he fre-

quented a club or “hangout” in the North End of Boston

known as the Doghouse (Tr. 45, 6180). On cross-examination,

the prosecutor asked Mr. Limone (Tr. 45, 6283):

“Was it not true, sir, that in the year of 1965 the Dog-

house was a meeting place for the Cosa Nostra?”

Petitioner answered in the negative before counsel had an

opportunity to object. No proof was ever adduced that the

Doghouse was anything other than wh1t petitioner described.

Random House Dictionary of the English language (Un-

abridged Ed.), p. 329, defines “Cosa Nostra” as follows:

“A secret organization engaged in organized crime in the

United States modeled after and affiliated with the

Mafia.”

But no judge sitting in the year 1970 need consult a diction-

ary to arrive at a workable definition of Cosa Nostra. Though

no one has proven that such an organization exists, though

indeed its existence is doubted by many sophisticated law

enforcement agencies, as the judge himself noted in this case,

Cosa Nostra has become a synonym for “organized crime”

(Tr. 45, 6317). It is of no substance that petitioner answered

this question in the negative. No matter how the question

was answered, the damage was done. By being called upon

to answer the question at all, the witness was forced to admit

(a) that the Cosa Nostra existed and (b) that he was, if not a

27

member, at least someone sufficiently familiar with it to know

where it met. Petitioner had a right under the Sixth and

Fourteenth Amendments to be informed of the nature of the

accusation against him. After this question, Peter Limone was

no longer on trial for being an accessory to the murder of Ted

Deegan or for conspiring to kill Deegan and Stathopoulos.

Rather, he was on trial for being part of “organized crime,”

for being an evil man with evil associates. It is not necessary

to string out citations of cases to show that no such crime is

known to our law. Cf. Lanzetta v. New Jersey, 306 U.S. 451

(1939).

Curative instructions were sought (Tr. 45, 6315), but none

were given. However, in this instance, curative instructions

would probably have served only to emphasize the error, not

to correct it. The error here, we submit, was of such magni-

tude that a mistrial (refused by the trial court) was the only

realistic cure. Krulewitch v. United States, 336 U.S. 440, 453

(1949) (concurring opinion).

The Supreme Judicial Court observed that questions about

the ™oghouse “may have had relevance . . . in view of Baron’s

testimony about meeting Limone near that place” (357 Mass.

at 40’). Indulging the court in giving the widest possible

scope to the doctrine of “relevance” (cf. Ciucci v. Illinois, 356

U.S. 571, 573 (1958)), we assume that questions about the

Doghouse, in so far as they pertained to meetings between

petitioner and Baron or any other meetings pertinent to the

crimes on trial, could be asked and answered. But the ques-

tion here in issue had no such pertinence. The Supreme

Judicial Court also observed that the question was answered in

the negative. Of course it was, but as we have already noted,

by this time the damage was done. See Douglas v. Alabama,

380 U.S. 415, 419 (1965). In a different setting the Supreme

Judicial Court has had no problem seeing how cross-examina-

tion of this type tends to “poison” a jury. As it said in Com-

28 29

monwealth v. Homer, 235 Mass. 526, 535-536, 127 N.E. 517 evidence was introduced to discredit the defendant as a

(1920): witness by showing his conviction of a crime, this fact

“The defendant's secretary and bookkeeper was exam-

ined by the district attorney as follows: “Don’t you know,

Miss Montgomery, and didn’t Mrs. Wilbur when you

went out there to that hotel tell you, that the reason she

sent for you was because the federal authorities were

following her up to find out that Homer had been selling

dope?” She replied in the negative, and although the

defendant objected and excepted, the district attorney was

again permitted to ask, ‘Didn’t she [Mrs. Wilbur] say

some authorities were investigating the sale of dope by

Homer?’ Answer: ‘No, sir.’ And after other questions

bearing on this matter had beer put and answered, the

question was asked, ‘Did Mrs. Wilbur at any other time

except those occasions about which we are now talking,

your visits after Homer had left, say anything to you

about being inquired of as to Homer’s selling dope?’ to

which she answered, ‘No, sir.’ Further inquiries were

made bearing on this subject. The attention of the wit-

ness was then directed to a message referred to in a tele-

gram sent t- the defendant at Chicago, and she was

asked, ‘Was. t that message relating to the matter of the

authorities being after Homer for selling dope?’ This was

objected to and the witness answered, ‘No, sir.’ There

was no evidence whatever to support the intimations

contained in these questions. What we have just said in

discussing the previous exception applies with equal if not

greater force to this question. It was an attempt by

unfair means to belittle the prisoner and render him un-

worthy of respect or credit. We can conceive of no rea-

son prompting these questions except the desire to

discredit him. Even if the charge were true and the

could be shown only by the record.”

D. The Loan-Sharking Question (Applicable to Petitioner

Limone).

On cross-examination petitioner Peter Limone was asked

questions tending to show that he had engaged in loan-

sharking. Any loan-sharking that petitioner may have

engaged in involved “transactions irrelevant to the issue on

trial.” Jones v. Commonwealth, 327 Mass. 491, 494, 99 N.E.

2d 456 (1951). In truth, this line of questioning stands in

naked violation of the principle set forth in Commonwealth v.

Stone, 321 Mass. 471, 473, 73 N.E. 2d 896 (1947):

“Fairness to a defendant in a criminal case requires the

rule that the commission by him of an independent crime

cannot ordinarily be shown as evidence tending to show

the commission of the crime charged.... It does not

follow that, because the defendant committed a similar

offence on another occasion, he committed the crime for

which he is being tried. And there is the danger that,

because a defendant appears to be a bad man capable of,

and likely to commit, such a crime as that charged, a jury

might be led to dispense with proof beyond a reasonable

doubt that he did actually commit the crime charged.

Moreover, it is not fair that a defendant in the course of

a trial should be called upon to defend himself against

accusations not set forth in the indictme:t.” (Citations

omitted. )

30

The same rule applies to conduct that is, although not

criminal, held in low esteem. Commonwealth v. Homer,

supra, 535 (bankruptcy).

In the present case, the Supreme Judicial Court seemed to

feel that the testimony was material on some theory of retalia-

tion; whether petitioner was the same type as his lawyer

described Baron to be (357 Mass. at 404). Petitioner is aware

of no case holding that improper examination of one witness as

to previous misconduct justifies the cross-examination of other

witnesses to show that they had engaged in similar types of

misconduct. The intimation of American Woolen Co. v.

Boston ¢ Maine Railroad, 190 Mass. 152, 156, 76 N.E. 658

(1906), is to the contrary. But even if there were such a

doctrine, it would have no application here, where Baron's

loan-sharking was brought out by the Commonwealth on

direct examination (Tr. 28, 3217), giving petitioner a clear

right to cross-examine him thereon.

E. Questions About Limone’s Friends (Applicable to

Petitioner Limone ).

Over objection and exception the prosecutor was allowed to

ask petitioner Peter Limone: “Tell me some of the other

people that you hung around with there in the year of 1965”

(Tr. 45, 6282). The seeming purpose was to permit the

Commonwealth to show that the defendant was a friend of

Gennaro Angiullo, “[{then] recently acquitted [after a long

murder] trial ‘during which he had been portrayed in the

Boston press as a leader of the underworld’” (357 Mass. at

401). This type of question is constitutionally offensive for

two reasons. First of all, it attempts to show guilt by associa-

tion. Scales v. United States, 367 U.S. 203, 224-225 (1961).

Secondly, it attempts to impose an improper burden upon the

31

exercise of a basic constitutional right, freedom of, and privacy

in, association. Konigsberg v. State Bar of California, 353

U.S. 252, 270, 271 (1957); National Association for the

Advancement of Colored People v. Button, 371 U.S. 415,

430-431 (1963). The names of petitioner's friends and asso-

ciates bore no relevancy to any matter put in issue by the

indictments. Petitioner was not charged with having notori-

ous friends, if indeed such a charge could pass muster under

the First Amendment.

F. Questions About Petitioner Grieco’s Domestic Diffi-

culties (Applicable to Petitioner Grieco).

During cross-examination of petitioner Grieco, the Common-

wealth over objection and exception (Tr. 6551) was permitted

to inject into the trial a series of allegations contained in a civil

complaint brought against him in Florida by his wife. Mr.

Grieco was asked whether his wife had alleged that he had

been absent from home for periods of up to two or three

months; had failed to notify her of his “whereabouts”; would

become extremely angry and argue with her and shout at her

and call her names; that she was in constant fear of personal

injury and was in constant nervous apprehension; that his

actions caused her to become physically ill, caused her to be

unable to sleep, caused her to lose weight and rendered her

unable to continue the marital relation (Tr. 6660). Compare

Douglas v. Alabama, supra.

The Commonwealth argued that the evidence was admissi-

ble (1) with regard to “the timing of this man being in

Florida,” (2) “to impeach his credibility with regard to where

he was living” and (3) to contradict petitioner’s testimony that

he was “in no trouble” while in Florida (Tr. 6652, 6653).

32

The Commonwealth’s position was untenable. The witness,

in his direct testimony, had admitted that in the month of

January, 1965, he did have “domestic difficulties” (Tr. 6605).

The Commonwealth introduced no evidence to show that the

hearsay was material to the time petitioner was in Florida,

when he returned to Boston, or in impeachment of where he

was living while in Florida (Tr. 6652, 6653). Although the

prosecutor promised this evidence was going to show that “this

man was up to his ears in trouble” (Tr. 6652), the evidence

failed to indicate that he was in any more trouble than he had

previously admitted to when he testified that he had “domestic

difficulties.” The allegations contained in petitioner’s wife's

bill of complaint had no place in this murder trial.

The trial court also permitted cross-examination of Mr.

Grieco concerning his knowledge of statements that his wife

had allegedly made to the Florida police. Petitioner denied

all such knowledge. Incorporated in questions, permitted by

the trial judge over defense objections, were the prosecutor's

suggestions that petitioner knew that his wife had “com-

plained” to the Florida police that petitioner “had come into

her house and put an extension cord around her neck and

tried to kill her” (Tr. 6686) and knew that his wife “told the

police at that time [he] took out a pistol from [his] jacket

and .. . said, ‘If you leave me, I will shoot you’” (Tr. 6686,

6687).

The Commonwealth persuaded the trial court that the

evidence was being offered not for “tiie truth of the matter,”

but for petitioner's state of mind (Tr. 6685) and told the court

that “at the right time” it would “offer the proper evidence”

(Tr. 6686). At no time did the Commonwealth offer evidence

from which the trial jury could infer that petitioner knew his

wife made these statements to the Florida police. As a matter

of fact, the Commonwealth introduced no evidence that the

facts themselves were true.

33

Petitioners individually and collectively were not charged

with killing anyone named Bratsos and DePrisco or with cruel

and abusive treatment of Mrs. Grieco or with making illegal

loans or with being part of criminal syndicates or with having

notorious associates. They recognize that in a criminal case

evidence that the accused committed an unrelated criminal

offense is not excludavle if the evidence has some probative

value in the case on trial. Commonwealth v. Chalifoux, 362

Mass. 811, 815-816, 291 N.E. 2d 635 (1973), and cases cited.

But here the evidence was virtually of no probative value and

served only to inflame the jury against them. Under Estelle

v. Williams, 96 S. Ct. 1691, 1692-1693 (1976), a trial tainted

by such evidence does not result in a constitutional conviction.

We cannot agree with the Court of Appeals that such rulings

as these, cumulatively taken, “do not rise to constitutional

dimensions” (Opinion, p. 8). The introduction of evidence “so

irrelevant [and] so inflammatory” indeed raises a due process

issue. Moore v. Illinois, 408 U.S. 786, 800 (1972).

III. Perrrioner Cassesso’s RIGHTS UNDER THE FIFTH AND

StxtH AMENDMENTS WERE VIOLATED BY THE ADMISSION OF

INCRIMINATING STATEMENTS ELICITED AFTER HE HAD BEEN

INDICTED AND HAD RETAINED COUNSEL — MASSIAH v. UNITED

States, 377 U.S. 201 (1964).

In view of the rulings of the Supreme Judicial Court and of

the Court of Appeals on this point, we deem it advisable to

restate the factual situation with regard to the events as to

which Robert Glavin testified. Petitioner Cassesso was

indicted for being an accessory on October 25, 1967, and on

the same date for two conspiracies to commit murder

(R. 375, 397). On November 17, 1967, an appearance was

filed on Mr. Cassesso’s behalf by counsel. Early in November,

34

1967, one Ventola allegedly approached Glavin about “cop-

ping out” (i.e., falsely confessing) to the Deegan murder

(Tr. 40, 5388). Ventola offered Glavin cash (to be held in

escrow) and other emoluments in return. Glavin then

reported his conversations with Ventola to the F.B.I. agent

Hanlon, who told him to speak to petitioner Cassesso as if he

were ready to cooperate in the “cop-out” (Tr. 41, 5415,

5437). It was Glavin who approached Mr. Cassesso, not vice

versa as suggested in the opinion of the District Court

(Tr. 5415, 5437). Contrary to the statement in the opinion of

the District Court, Glavin spoke to Mr. Hanlon before he

spoke with petitioner (Tr. 5436-5437). Thereafter, in Decem-

ber, 1967, Glavin contacted and spoke with petitioner in

prison, holding three conversations with him at all (Tr. 41,

5564-5582). In the course of these conversations, petitioner

allegedly repeated Ventola’s offers, embroidering and condi-

tioning them with the passage of time. It is undisputed that

in December, 1967, and thereafter, counsel was unaware of

these conversations between petitioner and Glavin, who was

permitted to testify at trial about his conversations with peti-

tioner. Petitioner argued that this testimony ought not to

have been received under the plain holding of Massiah, and

both the Supreme Judicial Court and the Court of Appeals

offered several reasons why Massiah should not apply.

The Supreme Judicial Court was obviously correct in

holding that the Commonwealth could take “reasonable efforts

to protect the public interest and an individual from a new

crime” (357 Mass. at 387). Such efforts could include counsel-

ling Glavin to refuse Ventola’s o.fer or, if necessary, moving

Glavin or Ventola to a new place of confinement. We assume

even further, for the sake of argument, that if petitioner's

alleged conversations with Glavin constituted a separate crime,

respondent could introduce the conversations at the trial of

petitioner for that crime. See Hoffa v. United States, 385

35

U.S. 293, 307-309 (1966); United States v. Missler, 414 F. 2d

1293, 1302-1303 (4th Cir. 1969). But here the evidence in

question was received solely as an admission against interest to

show consciousness of guilt. Commonwealth v. Wallace, 123

Mass. 400 (1877). This admussion had been elicited by Glavin

upon express orders from an F.B.I. agent. Why and how

there can be any distinction for Massiah purposes between an

admission of direct guilt and an admission that shows mere

consciousness of guilt, no court has yet even tried, much less

been able, to explain. The rights which Massiah seeks to

uphold, the Fifth Amendment privilege against self-incrimina-

tion and the Sixth Amendment right to counsel, are surely as

applicable to one type of admission as to the other.

The opinion of the Court of Appeals dealing with the

Massiah issue (pages 4-8) has a curiously inconsistent and

unsettled ring to it. First, the court asks whether Massiah

should not be distinguished because, in the case at bar, the

person who caused the elicitation of the incriminating state-

ments, F.B.I. agent Hanlon, did not work for the government

of the Commonwealth, which of course had indicted peti-

tioner. We submit that to allow this distinction to stand

would effectively nullify Massiah by reviving the old and now

thoroughly discredited “silver platter” doctrine. Elkins v.

United States, 364 U.S. 206, 223 (1960). The suggestion of

the Court of Appeals that Hanlon or Glavin or both may not

have known the crime for which petitioner was under indict-

ment is without foundation. For one thing, upon Glavin’s

own testimony Ventola had already told him about the crime,

and Glavin had essentially told agent Hanlon what Ventola

had said to him. Moreover, as agent Hanlon had been active

in pre-trial investigations of cases somewhat related to this (see

Patriarca v. United States, 402 F. 2d 314 (1st Cir. 1968)), it is

exceedingly unlikely that he was unaware that petitioner was

under indictment for the murder of Ted Deegan. In any

36

event, where the question of right to counsel is raised, and

where petitioner has made a prima facie showing that such

rights were violated, the burden, we submit, was on the

government to show lack of knowledge of the indictment.

See Carnley v. Cochran, 369 U.S. 506, 514-515 (1962).

The opinion of the Court of Appeals next suggests that

Massiah may be inapplicable because in the case at bar the

investigation involved a new and separate crime, subornation

of perjury. There is, to begin with, considerable doubt about

the correctness of the underlying proposition. On what

Ventola had allegedly told Glavin at the time Glavin ap-

proached agent Hanlon, Ventola probably could have been

indicted for subornation of perjury. That, of course, is

entirely a state crime which would have been prosecuted in

the state courts. On the other hand, and this we cannot

emphasize enough (cf. fn. 1, page 5, of the opinion of the

Court of Appeals), when Glavin went to see Hanlon and was

told by Hanlon to interview petitioner, he had never had any

conversations with petitioner at all. Thereafter it was Glavin

who sought out petitioner and not petitioner who sought out

Glavin (Tr. 5439). There was, therefore, no crime to investi-

gate until Glavin, acting on the specific recommendation of

agent Hanlon, talked to petitioner.

Moreover, although both the Supreme Judicial Court and

the Court of Appeals refer to “good faith” investigations by the

government, there was no evidence of such “good faith” and

indeed there is considerable reason to doubt it. Where

subornation of perjury is entirely a state crime, why was the

F.B.I. involved in investigating it at all? Was it merely in the

hope that, given the weakness of the Commonwealth’s case at

petitioner's trial for the murder of Deegan, an elicitation of an

admission against interest from one of the defendants by a

federal officer might render the statements admissible at trial?

The Court of Appeals assumed that the government's intention

37

was not “to obtain testimony against Cassesso for use at the

trial for Deegan’s murder” (p. 7). But there is absolutely

nothing in the court’s opinion or in the record to support such

a finding. In this respect, this case is totally different from

that of Hoffa v. United States, supra, where the informer-

witness, Partlin, found out about the alleged crime when he

penetrated defendant’s quarters and counsel but apparently

played no part in causing it to be committed or in committing

it.

Finally, the Court of Appeals recognized that in both Hoffa

v. United States, supra, 308, and United States v. Missler,

supra, 1302-1303, it was indicated that while evidence

obtained in violation of Massiah and showing commission of a

separate crime might be usable in the trial of that crime it was

not usable in a trial of the crime for which the accused was

already under indictment when the Massiah violation oc-

curred. The Court of Appeals, however, seemed to view this

distinction as insubstantial. We submit that it is not. The

purpose of the distinction is prophylactic; the knowledge that

admissions against interest elicited after the accused has been

indicted and his counsel has been retained cannot be used at

the trial serves as a deterrent from the elicitation of such state-

ments since not only will they be excluded at trial but also,

under the fruit of the poisonous tree doctrine (Nardone v.

United States, 308 U.S. 338, 341 (1939)), evidence indirectly

obtained as a result of such an elicitation may also be

excluded.

IV. Perrrrioners WERE DEPRIVED OF THE RIGHT TO PRESENT

EvmipENCE AND Cross-EXAMINE PROPERLY AND EFFECTIVELY

THE COMMONWEALTH’S WITNESSES.

A. Examination on Voir Dire.

Since Glavin (see argument III, ante) testified as to certain

admissions of petitioner Cassesso, the judge quite properly held

38

a voir dire to determine their admissibility (Tr. 40, 5406).

Jackson v. Denno, 378 U.S. 368, 378-385 (1964). On the

theory that Glavin’s testimony was admissible only against

Cassesso, the court denied other counsel the opportunity to

cross-examine Glavin on voir dire (Tr. 40, 5469). The

Supreme Judicial Court upheld the trial judge, finding no

abuse of discretion (357 Mass. at 402). We suggest that, from

a Sixth Amendment standpoint, the Supreme Judicial Court is

clearly in error.

“[T]o deprive an accused of the right to cross-examine the

witnesses against him is a denial of the Fourteenth Amend-

ment’s guarantee of due process of law.” Pointer v. Texas,

380 U.S. 400, 405 (1965), and cases cited. “‘[A] denial of

cross-examination without waiver . . . would be constitutional

error of the first magnitude and no amount of showing of

want of prejudice would cure it.’ Brookhart v. Janis, 384

U.S. 1, 3.” Smith v. Illinois, 390 U.S. 129, 131 (1968).

The sole question is whether other petitioners had any

cognizable interest in persuading the judge to exclude Glavin’s

testimony. Rather obviously they did. Petitioners and

Cassesso were charged with two conspiracies. To begin with,

the judge charged the jury that “anything that any member of

the conspiracy does or says in furtherance of the conspiracy

binds all of them, all of them” (Tr. 51, 7481). Secondly,

despite the severe limitations which the judge placed on the

cross-examination of Glavin by petitioner Cassesso’s counsel

(see Argument IV, B) after he ruled the testimony admissible

the jury could not fail to infer that Mr. Cassesso would have

had aid from friends with the alleged “cop-out” plan. Who

were these friends more likely to be (in the minds of the

jurors) then those who, like the other petitioners, were

supposed to have had the greatest interest in Glavin’s cop-out?

39

B. Cross-Examination of Glavin.

We come now to what may well be the most grievous single

evidentiary error committed by the trial judge in the course of

this trial. The defendant’s right in Massachusetts to cross-

examine a witness on prior inconsistent statements made to the

grand jury is settled. Commonwealth v. Homer, supra,

532-533. The right to impeach a witness by showing prior

inconsistent statements is elementary. United States v.

Hannon, 105 F. 2d 390, 391 (3d Cir. 1939), cert. den. 308

U.S. 594 (1939). In the trial of a criminal case, it is constitu-

tionally guaranteed.

Petitioner Cassesso tried to show in cross-examination of

Glavin that Glavin, while under oath before a grand jury (not

the grand jury that returned these indictments), gave testi-

mony substantially conflicting with the testimony he gave on

direct examination at petitioner's trial. On direct examina-

tion, Glavin testified that petitioner told him (Glavin) that he

(petitioner) had checked Glavin out, that he (petitioner) would

pay Glavin $50,000 for the cop-out, and that he (petitioner)

would arrange parole or commutation for Glavin. Before the

grand jury, Glavin had testified that “the office” would do

these things. The use of the grand jury testimony on cross-

examination would have served two purposes: first, that of

impeaching Glavin generally by showing prior inconsistent

statements, and, secondly, that of undermining Glavin’s

specific testimony at the trial by (hopefully) getting him to

adopt his earlier statements over his direct testimony. The

opinivn of the Supreme Judicial Court and that of the Court

of Appeals misstate the issue.’ Petitioner Cassesso did not

” “Cassesso’s counsel had obtained from another Superior Court judge

Glavin’s testimony before a Norfoik County grand jury in connection with

indictments of Cassesso and others for attempting to get Glavin to commit

40

contend before the Supreme Judicial Court that he should

have been allowed to introduce the grand jury minutes into

evidence without proving them in due course (Opinion of

Court of Appeals, pp. 8-9). His arguments rather were and

are that the judge erred in refusing (a) to allow petitioner to

ask Glavin whether he had made specific prior inconsistent

statements to the grand jury (Tr. 41, 5652-5661; 5682-5683)

and (b) to allow petitioner to ask Glavin whether he had not

at another time (without reference to the grand jury) stated

that someone other than petitioner (viz., the office) had

“checked him out” and was going to furnish money and other

consideration that were to be Glavin’s reward for “copping

out” (Tr. 41, 5571, 5598, 5608, 5624-5625, 5655, 5657, 5659;

42, 5734).

As to the former point, Massachusetts law has never

required that a party desiring to show on cross-examination a

prior inconsistent statement under oath by the same witness

even produce a transcript, much less a duly proven transcript,

of the proceedings at which the inconsistent statement was

made. D & P Equipment Corp. v. White Spot Construction

Corp., 355 Mass. 787, 788, 243 N.E. 2d 922 (1969). If we

assume that Massachusetts could constitutionally impose such a

requirement at all, it could not nevertheless impose it suddenly

and without warning for purposes of this case. National

Association for the Advancement of Colored People v.

Alabama ex rel. Patterson, 357 U.S. 449, 456-457 (1958).

perjury. Cassesso’s counsel was permitted on various occasions to use these

minutes (marked for identification) to refresh Glavin’s recollection. He was

not allowed to use the minutes themselves to show Glavin’s prior inconsis-

tent statements, unless and until he proved the minutes in usual course.

The judge permitted wide questioning about the prior statements. Cassesso’s

counsel did not make an attempt to prove, through the stenographer or

otherwise, any prior inconsistent statements before the grand jury. He

cannot now complain.” (357 Mass. at 402.)

41

As to the latter point, that Glavin had earlier said that the

“office” was going to pay for the “cop-out,” obtain a reduction

in Glavin’s sentence, and do other things for Glavin — this

was not a collateral issue. Glavin’s testimony, as already

noted, had been admitted on the consciousness of-guilt-theory.

If Mr. Cassesso had said that he himself would get Glavin’s

sentence reduced after Glavin “copped out,” it would have

been absurd, for here was Mr. Cassesso on trial for his life.

If he had said that someone else would do it, exploration of

the question of “who?” might well have shown that the

conversation never took place. In any event, the Common-

wealth having fully opened up this subject on direct examina-

tion (Tr. 41, 5567), it is elementary that petitioner had the

right to cross-examine thereon. Wills v. Russell, 100 U.S.

621, 625 (1879).

The Supreme Judicial Court, although stating that it saw no

need for the judge to have denied petitioner the right to ask

Glavin questions which in answer would have involved the

word “office,” saw no prejudice to petitioner (357 Mass. at

380). We submit that for the reasons already stated the

Supreme Judicial Court was wrong about lack of prejudice but

reiterate that “no amount of showing of want of prejudice

would cure” the error in denying petitioner the right to cross-

examine. Smith v. Illinois, supra. Parenthetically, we are

led to remark that, though the rulings here in question would

have been no less erroneous, it would have been commendable

had the same attitude carried over to the questions and

remarks of the prosecutor and of respondent’s witnesses. In

fact, however, the prosecutor and his witnesses, particularly

Baron, were allowed to refer to the “office” almost, as it were,

in every other breath. Early in the trial the judge said

(Tr. 29, 3285): “I think any connection with ‘the office’ [a

code word for the underworld at least at this trial] has some-

thing to do with this case.” We fear it would be mistaken to

42

imagine that solicitude for the rights of other petitioners

prompted the judge to deny petitioner Cassesso his Sixth

Amendment right of confrontation.

V. THere was No ACQUIESCENCE BY COUNSEL OR BY PeETI-

TIONERS IN THE SUBMISSION OF AN EX PARTE BRIEF BY THE

PROSECUTOR TO THE JUDGE; THE SUPREME JUDICIAL CouRT

HAVING CONSIDERED PETITIONERS’ ARGUMENT ON THIS POINT,

tr WAS Property BerorE THE Districr Court ON PETITION

ror Writ or Haseas Corpus. THE SUBMISSION OF SUCH

A Brier Deprivep PETITIONERS OF DuE Process or Law.

In the course of trial petitioners learned from an off-hand

remark by the prosecutor to the trial judge that the Common-

wealth had been submitting briefs. Several attorneys then

complained about not being served with copies of such briefs.

The failure to give counsel copies of briefs was assigned as

error in the original appeal to the Supreme Judicial Court,

and the assignment was briefed.

The opinion of the Supreme Judicial C<uxt states (357 Mass.

at 403):

“There was no error in the reception by the judge from

the district attorney of a memorandum (not furnished to

the defendants or received in evidence or marked for

identification) apparently concerning questions of evidence

likely to arise during trial. This procedure apparently

arose out of a suggestion during a conference at which

defence counsel were present. No objection to the sug-

gestion was voiced by any counsel.”

The statement “There was no error ... ” can mean only

that the Supreme Judicial Court considered this assignment

43

and found that the practice of submitting an ex parte brief

was not error. That the Supreme Judicial Court may have

believed this practice to have arisen out of a suggestion during

a conference and that no objection to the suggestion was

voiced by any counsel does not detract from the fact that the

court passed upon the error nevertheless.* The passing upon

this assignment by the Supreme Judicial Court sweeps aside all

questions of waiver for purposes of federal habeas corpus.

The true rule, we submit, is analogous to the rule that this

Court applies in determining whether to pass upon federal

questions raised on review of decisions of state courts: “There

can be no question as to the proper presentation of a federal

claim where the highest state court passes on it.” Raley v.

Ohio, 360 U.S. 423, 436 (1959). Indeed, the rule should be

even less strict in habeas corpus cases than on petitions for writ

of certiorari and appeals from state courts to the Supreme

Court of the United States since in those cases the failure to

raise federal questions in the state courts affects the jurisdic-

tion of this Court. Cf. Bowen v. Johnston, 306 U.S. 19, 27

(1939). In Lefkowitz v. Newsome, 420 U.S. 283, 289-292

(1975), this Court held that where state law permitted a

federal constitutional question to be litigated in the state courts

at a time when the state might have foreclosed it (after a plea

of guilty), the same question could be litigated in the federal

courts on petition for writ of habeas corpus.

Moreover, even if petitioners’ counsel at their Superior

Court trial had made a conscious decision to waive the federal

question with respect to the submission of briefs, that waiver

would not be binding upon petitioners absent a showing that

they acquiesced in it. This Court stated in Humphrey v.

* Indeed, there was absolutely nothing in the record before the Supreme

Judicial Court to have supported such a finding.

44

Cady, 405 U.S. 504, 517 (1972): “But such a waiver must be

the product of an understanding and knowing decision by the

petitioner himself, who is not necessarily bound by the

decision or default of his counsel.” It is impossible to accept

the view that petitioners knowingly waived their objections to

the submission of an ex parte brief when that decision was

apparently made during a lobby conference.

But we go further and submit that the finding of waiver

apparently affirmed by the Court of Appeals (Opinion, p. 9)

itself cannot stand. The memorandum of the District Court

states:

“At the hearing before me, Mr. Zalkind, who had been

the Assistant District Attorney prosecuting the case, testi-

fied that at the start of each trial day, he would submit a

two or three page brief outlining the testimony that he

expected to offer during the day, with a brief exposition

of the legal and evidentiary questions that he anticipated

this testimony would generate. He did not give copies to

any defense counsel. He testified that before the trial

began, at an unrecorded lobby conference, the judge and

all counsel agreed to a plan under which counsel for both

prosecution and defense could submit trial briefs to the

court without giving copies to the other side. The reason

for this was supposed to have been the extreme security

surrounding the trial, and the desire of all parties to keep

the court informed without tipping their hands to the

opposition.

“He further testified that defense counsel knew about his

submission of trial briefs, because he submitted them to

the clerk in open court in plain sight. He testified further

that one or more of the defense attorneys had asked for

copies on these occasions, but that he had refused to give

them.

45

“Mr. Zalkind testified that he had searched both the

files of the District Attorney and his personal files for

copies of these trial briefs, but he found none. He did

find a carbon copy of what appears to be a fifteen-page

trial brief. Mr. Zalkind says that this is not a copy of

anything which he submitted, but is the equivalent of a

compendium of the briefs which he did submit over a

period of several days and is typical in form and content

of those he did submit.

“All of the surviving defense counsel, Messrs. O'Donnell,

Balliro, Chisholm, Stanziani and Paris testified that they

had no memory of any such lobby conference as was

described by Mr. Zalkind. They testified that they had

no knowledge of the submission of briefs by Mr. Zalkind,

and that they never would have consented to the submis-

sion of briefs by the prosecutor without copies being

furnished to them. Mr. Balliro testified that he learned

about the trial briefs late in the trial and was ‘outraged.’

Why would experienced trial counsel possibly want to waive

their right to see the brief that the assistant district attorney

was submitting to the judge? This rather basic question Judge

Skinner's memorandum does not answer. It merely states,

paraphrasing the assistant district attorney’s testimony at the

habeas corpus hearing, that the reason for this unusual pro-

cedure “was supposed to have been the extreme security sur-

rounding the trial, and the desire of all parties to keep the

court informed without tipping their hands to the opposition.”

46

This reasoning will not stand up under the strain of analysis.

Counsel for petitioners were certainly not responsible for any

of the security surrounding the trial and indeed they objected

to it constantly. It may be that the trial judge and the

assistant district attorney felt that there would be a breach of

security if copies of briefs were submitted to defense counsel,

but it is exceedingly doubtful that defense counsel would have

shared that belief. Indeed, if one examines the brief that the

assistant district attorney may have submitted to the trial

judge (the prosecutor on examination before Judge Skinner did

not know whether the brief submitted at the hearing of this

petition was actually a copy of all that had been submitted to

the Superior Court), one sees nothing in it that would impair

any security measures that may have been taken by the

Commonwealth with respect to the trial. As for “tipping their

hands,” none of the defense counsel ever submitted a brief to

the trial court, and thus they had no hands to tip. Even if

they had submitted such briefs or had intended to, no one

experienced in the defense of criminal cases would be willing

to trade the opportunity to have the prosecution’s brief in

advance of trial (or while the prosecution is putting in its case)

for the right to keep his own brief vut of the hands of the

prosecution. It should be noted that the affirmative defense

put on by each of petitioners at the trial was short and rela-

tively straightforward, and unlikely to raise any questions of

law concerning which briefs would be necessary. Petitioner

Tameleo put on no defense at all. Argument X, post.

Judge Skinner stated that a certain colloquy occurring on

the twenty-sixth day of trial “lends support to Mr. Zalkind’s

testimony” that counsel was aware of the submission of a

brief. We submit that it does not. If counsel had agreed that

briefs could be submitted ex parte, it would have been sense-

47

less for them to complain about such submission in the middle

of the trial. But they did complain in the plainest terms.

And did the trial judge or the district attorney then “remind”

them that they had agreed to this proceeding at a conference

before trial had beun? Quite the contrary; all that the judge

did was to inform counsel that they too could submit ex parte

briefs if they wished to do so. Counsel did not even accept

the invitation, and it is unnecessary to consider what the

posture of this case would be if they had done so. This Court,

on review of the record, will, we submit, find neither waiver

nor acquiescence, much less a deliberate by-passing of state

remedies. Cf. Fay v. Noia, 372 U.S. 391, 439 (1963).

We pass from the procedural to the substantive considera-

tions of this point. We cannot agree with the statements in

the memorandum of the District Court and in the opinion of

the Court of Appeals (p. 10) that there was little in the brief

that went beyond the opening. Not only do statements in the

alleged copy go far beyond anything stated in the opening;

they indeed go much farther than any facts proven by the

Commonwealth at petitioners’ trial or even provable at such a

trial. Specifically, there was no offer to prove in the opening

and no evidence at the trial that Teddy Deegan was maintain-

ing caution due to the murder of his close friends Mannen and

Delaney, that petitioner Grieco ever agreed that “he would

engage Roy French to ‘set up’ Deegan if he could be included

in a ‘piece of the action’,” that on January 10, 1965, Baron

learned from French that Deegan and Stathopoulos planned to

rob a loan company in Chelsea, that Baron’s agreement to kill

Stathopoulos was contingent upon petitioner Tameleo’s ap-

proval, or that Baron after March 10, 1965, enlisted the aid of

petitioner Cassesso in the alleged plot to kill Deegan. Indeed,

according to Baron’s testimony, prior to March 10, 1965, he

drove to Providence with petitioner Cassesso and there enlisted

48

his aid, having previously discussed the matter with him in

Florida in February.

But we save for last some of the assertions made in this brief

that are startling, not only because they were neither men-

tioned in the opening nor proven by any evidence but more so

because they should never have been mentioned at all to the

trial judge, let alone mentioned ex parte. We specifically

refer to the assertions that petitioner Tameleo was the personal

representative of the head of the New England Cosa Nostra,

that petitioner Grieco had asked Baron to help kill his

(Grieco’s) wife, and that Grieco had been told by Baron that if

he cooperated some of the other petitioners might kill

Mrs. Grieco. If ever the accused in a criminal case was

prejudiced by an ex parte communication to a trial judge

about him, surely this was the case.

Lord Cottenham once uttered an important truth: “Every

private communication to a Judge, for the purpose of influ-

encing his decision upon a matter publicly before him, always

is, and ought to be, reprobated; it is a course calculated, if

tolerated, to divert the course of justice, and is considered, and

ought more frequently than it is, to be treated as, what it

really is, a high contempt of Court.” Matter of Dyce Sombre,

1 Mac. & G. 116, 122 (1849). See Smith v. United States,

360 U.S. 1, 17-18 (1959) (separate opinion); McFadden v.

United States, 63 F. 2d 111, 112 (7th Cir. 1933).

It would have been serious enough, certainly serious enough

to require the issuance of a writ of habeas corpus, if the

Commonwealth’s brief to the Superior Court had done no

more than outline questions of law likely to arise at the trial

and give reasons in law why these questions should be decided

in a certain manner. Due process of law, if it encompasses

nothing else, at the very least encompasses the right of a

person accused of a crime to know what issues are being pre-

sented to the presiding judge and what reasons are being given

49

to the presiding judge to decide these issues one way o1

another. The right to be heard is central to due process even

in a civil action. In a criminal case the right is absolute.

Moore v. Dempsey, 261 U.S. 86 (1923). And there is “no

hearing in the constitutional sense where the party . . . is not

given an opportunity to test, explain or refute.” 16 Am. Jur.

2d § 279, page 985. Interstate Commerce Commission v.

Louisville & Nashville Railroad Co., 227 U.S. 88, 93 (1913).

Morgan v. United States, 304 U.S. 1, 18 (1938).

Nor is it significant that the case was tried to a jury that did

not see the brief. The Commonwealth’s brief went far beyond

outlining questions of law and rather deeply into questions

that the Commonwealth regarded as addressed to the judge’s

discretion. In the instant case the judge decided almost every

question of discretion against petitioners. And as the opinions

of the Supreme Judicial Court in this case indicate, decisions

by a trial judge on questions of discretion are rarely if ever

reversed on appeal in criminal cases in Massachusetts. Com-

monwealth v. Phelps, 210 Mass. 109, 114, 95 N.E. 868

(1911). Yet it has also been said that “discretion” is something

more than judicial power to run amuck. In Davis v. Boston

Elevated Railway, 235 Mass. 482, 496-497, 126 N.E. 841]

(1920), the Supreme Judicial Court speaking through Chief

Justice Rugg said:

“It commonly and rightly is said that such a motion is

addressed to the discretion of the court. By such expres-

sion is implied absence of arbitrary determination, capri-

cious disposition, or whimsical thinking. An exhibition of

ungoverned will, or a manifestation of unbridled power is

not the use of discretion. The word imports the exercise

of discriminating judgment within the bounds of reason.

Discretion in this connection means a sound judicial

discretion, enlightened by intelligence and learning,

50

controlled by sound principles of law, of firm courage

combined with the calmness of a cool mind, free from

partiality, not swayed by sympathy nor warped by preju-

dice nor moved by any kind of influence save alone the

overwhelming passion to do that which is just.”

It follows that even if a judge were (subjunctive intended)

permitted to receive a brief served on him ex parte dealing

with pure questions of law, he should not and could not

consistently with the Constitution accept a brief dealing with

questions of discretion since, at least in Massachusetts,

discretion means informed discretion and may be based upon

the judge’s view of the facts as well as his view of the law.

The alleged brief of the Commonwealth to the trial judge

suggested that the judge exercise discretion to deny a motion

for a directed verdict at the close of the opening statement

(page 5), to allow the jury to view photographs of the body of

the deceased (page 7), to refuse to give an instruction that

uncorroborated testimony of an accomplice should be weighed

with great scrutiny (page 7), and to allow Baron to testify on

redirect examination as to his real motive for becoming a

Commonwealth witness (pages 11-14). On the latter point he

is asked to exercise the same discretion with respect to motives

of the witness Stathopoulos (page 14). It is significant that all

of these issues except for that of a directed verdict on the

opening statement are bases upon which petitioners now seek

relief by habeas corpus. The issue of allowing a witness to

testify that alleged hostility to or bias against the accused is

justified by the accused’s conduct is discussed at length in

argument II, B, of this petition. It is interesting to note that

not one of the cases cited in the Commonwealth’s alleged

memorandum to the Superior Court stands for the proposi-

tion that a witness may show that bias or hostility against an

51

opponent is justified by the opponent's previous conduct, let

alone by the witness’ belief as to the opponent’s previous

conduct. It is at least plausible that if the Commonwealth's

brief had been submitted to petitioners’ attorneys at their trial

in the Superior Court, they would have been able to show the

judge that the line of cases relied on by the Commonwealth

was inapposite and that the true rule was that stated in

Wigmore and discussed in argument II, B, ante.

But the brief allegedly submitted by the Commonwealth to

the Superior Court went far beyond outlining the facts that

the Commonwealth hoped to establish and the rulings of law

that the judge should make on questions that the Common-

wealth thought might arise at trial. It is, as already noted,

replete with gross calumnies. Petitioner Tameleo is described

as the personal representative of the New England head of the

Cosa Nostra. Petitioner Grieco is described as a man seeking

to have his wife killed by a paid murderer. The other peti-

tioners are described as men who would help murder Grieco’s

wife in return for his cooperation in the plan to kill Deegan.

These matters were totally extraneous to the trial. If the

Commonwealth had reason to believe that Mr. Grieco had

attempted to hire someone to kill his wife, it should have

sought an indictment against him on this charge. Even then,

the information was totally immaterial, and the trial judge

should not have been apprised of it. It is not true, as the

opinion of the Court of Appeals suggests (p. 10), that the

judge was not the “trier of fact.” In the course of trial he

made several findings, not the least of which the existence of a

conspiracy (357 Mass. ‘at 379-380) and the admissibility of

Glavin’s testimony (357 Mass. at 384-385). See also argument

VI, B, post.

The Fourteenth Amendment to the Constitution of the

United States guarantees the petitioners a right to a trial

before an impartial judge. In re Murchison, 349 U.S. 133,

52

136 (1955). A judge is not unbiased or impartial when he has

received ex parte information about a defendant that is

damaging and derogatory to his personal reputation. United

States v. Womack, 454 F. 2d 1337, 1341 (5th Cir. 1972).

The opinion of the Court of Appeals (p. 9) concedes “that ex

parte communications shadow the impartiality ... of any

judicial proceeding.” Having conceded this, the court was,

we submit, wrong in ruling that such communications are “not

a per se violation of petitioners’ due process rights.” Like the

right to counsel, the right to an impartial judge is absolute.

A uote in the Harvard Law Review, Harmless Constitutional

Error: A Reappraisal, 83 Harv. L. Rev. 814, 820-821, is very

much in point. The note states:

“The overwhelming-evidence test asks whether the error

at trial altered the verdict of the jury that heard the case.

As noted earlier, this question can be answered when

tainted evidence may be segregated and determined to be

merely trivial or cumulative. The effect of some errors,

however, cannot be so segregated since they affect the

entire trial process, and in such cases no answer to the

critical question can be given.

“Such errors are those which bias the machinery for

bringing evidence before the jury and into the record. A

defect in this machinery necessarily raises doubts whether

all relevant evidence is in the record and whether all

evidence in the record is what it purports to be. For

example, if the defendant was denied effective counsel or

was incompetent to stand trial, there is no way of know-

ing what additional evidence could have been mustered

to support his case or what successful attack could have

been made on the evidence of the prosecution. If the

prosecutor has manufactured or suppressed one piece of

evidence, doubt arises whether other evidence has been

53

unscrupulously handled. If a judge was biased against

the defendant, it is uncertain how many of his discre-

tionary decisions were infected with that bias. In all

these cases there is no feasible way of segregating the

tainted portion of the record and determining its effect

on the jury beyond a reasonable doubt. Since there is no

way of deciding that the error was harmless, the convic-

tion must be reversed automatically.”

In the circumstances of this case, for the prosecutor to have

fed such information to the trial judge and for the trial judge

to have digested it without ever informing petitioners or their

counsel that he had done so is as much a violation of due

process of law as this Court is ever likely to encounter. The

Constitution of the United States cannot tolerate such prac-

tices. Under the Sixth Amendment petitioners were entitled to

a public trial, not one heard in part on the basis of private

communications between the prosecutor and the presiding

judge. The right to an impartial jury under the same Amend-

ment presupposes an impartial judge. They were entitled to

be informed of the nature and cause of the accusation against

them and to be confronted with the witnesses against them,

not to be accused privately by the district attorney of being

representatives of organized crime and conspirators to an

uxoricide. They were entitled to have the assistance of

counsel for their defense; that assistance is nugatory where

counsel must meet accusations that they do not know have

been made and argue issues that they do not know have been

briefed. Terms like “fair trial,” “impartial judge,” and “due

process of law” may be at times nebulous. At least, how-

ever, with respect to the conduct of the trial judge in the case

at bar, they are not vague but have identifiable roots within

the language of the Sixth Amendment. Having been deprived

54

of these rights, petitioners were deprived of due process of

law.

VI. PETITIONERS WERE CONSTITUTIONALLY ENTITLED TO SEE

THE GRAND Jury MINUTES OF Baron’s TESTIMONY.

The Supreme Judicial Court recognized that petitioners

probably should have been given access at least to the grand

jury minutes of Joseph Baron’s testimony (357 Mass. at 378).

It held, sowever, that the motions were in effect premature

and that they should have been renewed later in the trial.

We doubt that it will ever be possible to show more “partic-

ularized need” (Dennis v. United States, 384 U.S. 855,

873-874 (1966)) for grand jury minutes than that of petitioners

in the case at bar. In the first place, since the prosecution of

petitioners was for both conspiracy and being an accessory to

murder in the first degree, it falls squarely within the state-

ment in Dennis, supra, 873:

“A conspiracy case carries with it the inevitable risk of

wrongful attribution of responsibility to one or more of

the multiple defendants. See, e.g., United States v.

Bufalino, 285 F. 2d 408, 417-418 (C.A. 2d Cir. 1960).

Under these circumstances, it is especially important that

the defense, the judge and the jury should have the as-

surance that the duors that may lead to truth have been

unlocked.”

In the second place, Baron, a notorious extortionist, robber

and murderer, in exchange for his testimony in this and other

trials, was being shown, not only in this case but in several

other cases (see Patriarca v. United States, 402 F. 2d 314, 319

55

(Ist Cir. 1968), cert. den. 393 U.S. 1022 (1969)), leniency

beyond imagination. The record on this point in the present

case is so fully identical with that in the Patriarca case that

what was written at pages 318-319, supra, in that opinion by

the Court of Appeals might as easily be said in the case at bar:

“The testimony of Baron was central to the prosecu-

tion’s case... .

“Baron was a highly vulnerable witness. Not only had

he spent almost half of his life in prison, but he had been

assured that he would not be indicted for the crime at

issue here if he testified before the grand jury. In addi-

tion he was told that his cooperation in this matter would

be brought to the attention of the prosecution in other

pending criminal cases. Money from his unlicensed loan

operations continued to be sent to him while in prison.

Fears for the safety of his wife and child led to her being

allowed to live with him in protective custody. On at

least two occasions discussions were had on his behalf

with writers relating to a book based on his revelations

and movie rights, both promising large returns. Letters

which he sent from prison referred to FBI representatives

saying to him ‘If you help us, we will help you’; to the

purpose of his transfer to the Barnstable House of Correc-

tion as being ‘to brainwash me’; to having ‘a few aces’ up

his sleeve; to his doing something sensational with the

result that ‘30 would go’ whether innocent or not. After

he began to talk to the FBI about the subject matter of

this case, there were some fourteen visits in each of which

he would add some new detail either previously over-

looked or concealed.”

In the third place, Baron admitted at trial that he not only

had lied to, or concealed part of his story from, the police

56

who investigated this matter in 1967 but also the grand jury

itself.

Petitioners submit that the circumstances of this case are

such that even the pre-trial denial of their motions to inspect

the grand jury minutes would have been constitutional error.

The fact, however, is that petitioners repeatedly, while the

trial was in progress, requested to see the minutes of Baron’s

testimony. See Tr. 30, 3523, 3537, 3538, 3540; 32, 3846.

The trial judge said before trial (Tr. 4/16/68, 41-44) that these

minutes would be made available to petitioners’ counsel after

Baron’s direct testimony was concluded and then whimsically

changed his mind when petitioners renewed their request at

the start of cross-examination. While petitioner Cassesso’s

consel was cross-examining Baron, after Baron’s deals with the

Commonwealth that led to his turning state’s evidence had

been explored and after Baron had evaded a question as to

whether he had told the grand jury the truth (Tr. 32, 3834),

the judge again refused grand jury minutes (Tr. 32, 3846).

There was no hint in these rulings that the judge might

consider changing his mind again. In view of the atmosphere

in the courtroom during trial, to have pressed this point

further after Tr. 32, 3846, would have been a form of lunacy.

Petitioners submit that the assertion of their rights to grand

jury minutes was plainly made and “is not to be defeated

under the name of local practice.” Davis v. Wechsler, 263

U.S. 22, 24 (1923).

We should not imagine that the production of grand jury

minutes upon the showing of a particularized need is related

only to some notion of “fundamental principles.” Palko v.

Connecticut, 302 U.S. 319, 328 (1937). On the contrary, its

purpose is to effectuate one of the most important guarantees

of the Bill of Rights, the Sixth Amendment right to confronta-

tion. United States v. Procter ¢¢ Gamble Co., 356 U.S. 677,

683 (1958).

57

VII. Perririoners WERE Deprived oF A Fain TRIAL BY

COMMENTS AND CONDUCT OF THE TRIAL JUDGE AND THE

PROSECUTOR.

A. Cumulative Effect of the Judge’s Remarks.

In discussing prosecutorial and judicial misconduct, the

Court of Appeals said (Opinion, p. 10):

“Given the length, complexity, and intensity of the trial,

it is not surprising to find evidence of occasional lapses

into ill temper. But we do not find any evidence of

misconduct, singly or collectively, which was so egregious

as to taint the essential fairness of the trial.”

We think that the record will show the contrary, and

although we shall deal shortly with some of the trial judge's

more uninhibited outbursts against trial counsel, we cannot

refrain from first examining in a general way the daily insults,

non sequiturs, and unpleasantries that the judge continually

hurled against petitioners and their counsel.

On one occasion when counsel suggested that Rule 71 of the

Rules of the Superior Court*® might profitably be enforced

against the assistant district attorney (Tr. 27, 2989, 2999; 30,

3551, 3577-3578; 33, 4334; 48, 6963 et passim), the judge,

who had been most stern about enforcing this rule against

defense counsel (Tr. 26, 2882; 38, 4996), stated (Tr. 38, 4334):

* Prior to July 1, 1974, Rule 71 stated:

“Objections to evidence shall be decided without argument unless

the presiding justice calls upon the parties to state the grounds upon

which the evidence is offered or objected to.”

58

“And let it be noted on the record that you kept standing

after I asked you to be seated.”

When counsel properly asked the judge to instruct the jury

that a statement by the prosecutor that counsel had agreed not

to ask witness Glavin certain questions was untrue, the

following colloquy took place (Tr. 41, 5604-5605):

“Mr. Zalkind has suggested in front of this jury some-

thing you know is not true and I ask you to instruct this

jury that I did not make any such agreement as he sug-

gests.

“THe Court: Proceed.

“Mr. CuisHoLm: Will you instruct the jury?

“THe Court: Proceed.

“Mr. CuisHOoLM: Will you instruct the jury? That is

my motion.

“THe Court: Proceed.

“Mr. CHISHOLM: May I have an exception?

“THe Court: Exception.

Exception No. 601

“Mr. CutsHoLM: Would you ask the jury to disregard

Mr. Zalkind’s statement with regard —

“THe Court: Proceed.

“Mr. CuisHoLM: I move you instruct the jury to

disregard Mr. Zalkind’s remarks.

“THe Court: My answer is to proceed.

“Mr. CuHisHOLM: Exception.

“THe Court: Proceed.”

59

In the cross-exar.ination of Glavin, counsel introduced a

record of Glavin’s sonviction of larceny by check resulting

from Glavin’s plea of guilty (Tr. 41, 5667). Though no

sentence was imposed, it was clearly admissible. Mass. G.L.

c. 233, § 240. The assistant district attorney stated (Tr. 41,

5667):

“Of course, your Honor knows that complaints that are

filed cannot be admitted. But let it go in.”

Defense counsel correctly asked the judge to instruct the jury

to disregard the remark. Commonwealth v. Nassar, 354

Mass. 249, 264, 237 N.E. 2d 39 (1968). The judge thereupon

accused counsel of delaying the trial and added (Tr. 41, 5668):

“Now, proceed with your cross-examination if you want

to remain in this case.”

The judge stated, when counsel objected to utterly

immaterial testimony of Baron to the effect that Grieco has

said that his “wife was driving him crazy” (Tr. 29, 3284), “I

think any connection with ‘the office’ has something to do

with this case.” Even if the judge’s ruling had been correct,

this remark was totally out of order as well as totally un-

responsive to the objection. Earlier in the trial, Baron had

attempted to tie in “the office” with the Cosa Nostra (Tr. 28,

3220). So in effect the judge was now telling the jury that

any connection with the Cosa Nostra was relevant to this case.

This statement was plain and palpable error. Apparently, the

judge made it for no better reason than to express his pique at

defense counsel for daring to make a valid objection.

60

Instances of remarks and conduct of this type in the full

hearing of the jury could be extended. The judge lost no

opportunity in this case to insult counsel for the petitioners,

belittle their ability, impugn their motives and challenge their

veracity.

In Bursten v. United States, 395 F. 2d 976, 983 (5th Cir.

1968), the court stated:

“It is well known, as a matter of judicial notice, that

juries are highly sensitive to every utterance by the trial

judge, the trial arbiter, and that some comments may be

so highly prejudicial that even a strong admonition by the

judge to the jury, that they are not bound by the judge’s

views, will not cure the error.

“To be sure, admonition of counsel in hotly contested

cases, such as this one, sometimes becomes requisite, even

essential. Cf. United States v. Sacher, 182 F. 2d 416

(2d Cir. 1950). It is preferable, of course, that such cor-

rections be made outside of hearing of the jury, but, for

such conduct to constitute ground for reversal, it must

appear that in some way the judge’s conduct operated to

deprive the defendant of his right to an impartial trial,

such as to deprive him of effective assistance of counsel,

or adversely influencing and prejudicing the jury. If a

trial court continually intervenes so as to unnerve defense

counsel and throw him off balance, in a supposedly fair

trial, and causes him not to devote his best talents to the

defense of his client, then this is ground for reversal, no

matter what counsel’s experience and equipoise may be.

Even if there is a basis for some criticism of overpartisan-

ship, of defense counsel, this does not justify unwonted

and unnecessary continuous interruption. A trial judge

must strive for total neutrality and complete circumspec-

tion, in the eyes and minds of the jury.”

61

We submit that the judge in the present case substantially

failed to achieve “total neutrality and complete circumspec-

tion, in the eyes and minds of the jury.” We invite perusal of

the Appendix to Bursten, supra, 984-987, and comparisen

with the conduct of Judge Forte in the Superior Court. See

also United States v. Guglielmini, 384 F. 2d 602 (2d Cir.

1967). The Supreme Judicial Court did “not perceive judicial

conduct in any degree comparable to that criticized in the

cases relied on by [petitioner] Cassesso” (357 Mass. at 395).

An attempt to meet this “nonperception” analytically would

soon prove logically and rhetorically futile. The statements

are there, and their intemperateness and hostility must speak

for themselves. We ask in general only that they be read and

measured against the requirements of due process as laid down

in such cases as Starr v. United States, 153 U.S. 614, 626

(1894); Hickory v. United States, 160 U.S. 408, 415-418

(1896); Quercia v. United States, 289 U.S. 466, 470-472

(1933); Holt v. Virginia, 381 U.S. 131, 137 (1965).

B. Imputing a False Statement to Defense Counsel.

Petitioner Limone’s counsel asked Stathopoulos on cross-

examination: “Do you have to look at [the assistant district

attorney] every time I ask you a question?” At: first, the

witness denied that he was looking at the assistant district

attorney but upon persistent questioning began to admit that

this was the case. Finally, he was asked (Tr. 39, 5072):

“So you do admit you look at him before you answer yes

or no?”

62

To this question the judge took it upon himself to answer

(Tr. 39, 5072):

“There’s no evidence whatever of that. The Court has

been watching. That is a false statement.”

Petitioner Limone’s trial counsel continues to believe that

Stathopoulos was looking at the assistant district attorney for

help on each question. At oral argument of this case in the

Supreme Judicial Court the trial prosecutor, Mr. Zalkind,

argued that the witness was indeed looking at him while under

cross-examination but that his physical position in the court-

room in relation to the witness made it unavoidable. We

assume the general holding of the Supreme Judicial Court (357

Mass. at 404), that the trial judge may order counsel to cease

and desist from what he regards an unfair cross-examination,

to be correct. Cf. Fisher v. Pace, 336 U.S. 155, 161-162

(1949). But here the trial judge went far beyond such an

order. He effectively testified for respondent on a matter

controverted by the parties and the evidence. He was not

under oath and not available for cross-examination. Quercia

v. United States, supra. Petitioner’s Sixth Amendment right

to cross-examine a witness for the prosecution were trampled

on. Smith v. Illinois, 390 U.S. 129, 131 (1968).

C. The “Birds of a Feather” Remark.

While cross-examining petitioner, the prosecutor asked him:

“What did you do with the money that you got from the sale

of this business?” Counsel for petitioner objected (Tr. 45,

6244), and a long colluquy followed. We need not at this

point concern ourselves with whether the judge was correct in

63

overruling the objection and shall assume, for purposes of this

argument only, that he was. Cf. argument II, D, ante.

He could not have been more wrong, however, in telling the

jury that the evidence was admissible to show that Baron and

petitioner were “birds of the same feathers,” i.e., that if peti-

tioner associated with Baron he must have been guilty of the

same crimes as Baron and vice versa. For, of course, the

universally known aphorism from which the judge was

quoting goes: “Birds of a feather flock together.” Guilt by

association is a doctrine which the First, Fifth and Fourteenth

Amendments to the Constitution of the United States find most

abhorrent. Scales v. United States, 367 U.S. 203, 224-225

(1961), reh. den. 366 U.S. 978 (1961). The Supreme Judicial

Court found that the “remark was not, in context, to be

construed as approving any theory of guilt by association” (357

Mass. at 404). This ipse dixit would at least seem less disin-

genuous, if the court had not noted one sentence earlier that a

purpose of the whole line of questioning which led up to this

comment was to show that petitioner (357 Mass. at 404) “may

have had closer association with Baron than Limone had

admitted, if they in fact operated in the same business in the

same area.

D. Remark to Observe the Petitioners’ Physical

Characteristics.

Near the end of the assistant district attorney's rather

lengthy opening, he asked the jury: “to look at the defendants

during the\,\.\trial .. . for their physical characteristics.”

When counsel objected and moved that those remarks

be stricken, the trial judge, possibly in a portent of things to

come, ruled as follows:

64

“The remarks may stand. And I'm going to ask the jury

to look at the judge and all counsel and all parties in-

volved, not just the defendants, but all parties, including

the District Attorney.” (Tr. 2976-2977.)

There were six defendants seated in the enclosure immedi-

ately to the right of the jury box. Some of them were elderly

— others were young. Some were tall and some were short.

We would suppose that some could be considered more

pleasing in countenance than others. Some were fair and

some were dark. With the exception wrought by the wear

and tear of everyday living or advancing age, all of them, it

can probably be agreed, had fairly regular features. How-

ever, at no time during the course of the trial was any particu-

lar identifying characteristic relevant to any material issue.

We can only assume that the assistant district attorney felt

that either individually or cumulatively the jury could draw

an inference adverse to the defendants from some physical

characteristic. Speculation in this regard, however, is

needless. Since it did not appear at that point that the

physical characteristics of any or all of these defendants would

be material to some issue during the course of the trial, the

trial judge should have stricken the inappropriate remark from

the record. Instead, however, the trial court — in agreement

with the suggestion that inferences could be drawn from

physical characteristics — instructed the jury to look at himself

and all counsel involvec in the case.

We submit that it was highly improper for the trial court to

risk the probability (“th. rcmarks may stand”) that the jury

would be of the opinion that they had a right to draw an

inference unfavorable to the defendants from the appearance

of the defndants or their counsel.

The Supreme Judicial Court found that judge’s remarks

“amount([ed] to no more than a suggestion that the jurors

carefully watch what was going on as an aid to appraising the

evidence” (357 Mass. at 404). This is one more instance in

which the Supreme Judicial Court found (ruled?) that a dis-

paraging or intemperate remark by the trial judge meant

something far different from what was said. It was gross

error, we su mit, to instruct the jury to look at petitioners’

“physical characteristics”; they had nothing to do with the case

on trial.

E. Imputing Misconduct to Petitioner Grieco’s Counsel

on Baron's Military Record.

The witness Baron, in his direct testimony, had testified

that, prior to arriving at the scene of the murder, he and some

of the defendants had made a trial run and viewed the pro-

spective scene (357 Mass. at 366). In cross-examining the

witness in this regard, counsel asked:

“Q. So that at this eariier time there was no directions

given b, you when you went to so-called reconnoiter

the area for the mission: murder?”

To this the witness replied:

“A. Reconnoiter?” (Tr. 4363, 4364.)

We submit that it is almost universally understood that the

term “reconnoiter” is usually associated in a military sense.

From the querying manner of the witness's reply, it appeared

66

that he did not understand the meaning of the term. Where-

upon, counsel queried:

“Q. I know you were never in the service, but... .”

(Tr. 4364.)

Whereupon, the witness replied:

“A. Oh, I know what reconnoiter means.” (Tr. 4364.)

Although the prosecutor had not objected to this series of

questions, after the latter answer of uie witness, the prosecutor

stated:

“Mr. ZALKIND: I pray your Honor’s judgment to this.

What a cheap, shabby trick.”

The court then stated:

“I am going to ask the jury to disregard these remarks and

to keep them in mind [sic] when you have to believe and

what to disbelieve. Keep in mind the conduct of the

witness and how they answer, and the conduct of the

attorneys, as well.” (Tr. 4364.) (Emphasis supplied.)

The statement of counsel to the effect that the witness had

never been in the service was perhaps unnecessary. However,

it hardly could be considered as sufficiently prejudicial to

warrant the extreme retaliatory attack made by the prosecu-

tion and accentuated by the court. At this point in the trial

67

it must be agreed that the picture the jury had of the witness

Baron hardly measured up to an individual who at any time

had been in the service of his country.

F. Suggesting that Counsel was Inconveniencing the Jury.

Toward the end of a long, hot day, represented in the

record by almost two hundred pages of transcript, the follow-

ing colloquy occurred:

“Mr. Baturro [Counsel for petitioner Tameleo]: If

your Honor please, it’s after 4:00 o'clock —

“Mr. ZALKinD: And I pray, your Honor, that we go on

to 5:00 o'clock.

“THe Court: I want to get through with this cross-

examination here. We are not going to start all over

tomorrow and have him [Ronald J. Chisholm, Esquire,

counsel for petitioner Cassesso] repeat the same questions

to him. [Emphasis added. ]

“Mr. CHisHOLM: I am not going to start —

“THe Court: We are going to continue until he fin-

ishes cross-examination. I know it’s hot but we will —

“Mr. Baumo: The exchanges have been heated be-

tween counsel and the Court, and I think it’s time to

quit... .

“THe Court: The only ones whose comfort I’m going

to look out for is the jurors and the witness. We are

going to continue until the cross-examination is finished.

Tomorrow he will start and ask the same questions all

over again.” (Emphasis added.)

Counsel will be quick to agree that the trial judge, and no

other person, is charged with the responsibility of determining

68

the length of the trial day. In this regard he must be given

the greatest amount of latitude and is responsible for, and

- should see to it, that a sequestered jury is rendered every

comfort and convenience for its onerous burden. All of this

we endorse as measuring up to our common high ideals of the

administration of criminal justice. By the same _ token,

however, any suggestion that counsel is deliberately seeking to

irritate the jury and unnecessarily inconveniencing them can

only result in the most dire of adverse inferences to be drawn

against petitioners. This exchange took place on July 18,

1968. The jury had been away from their homes and families

together with all of the other attendant inconveniences of

sequestration for over fifty days. The day itself had been long

and, as noted by trial judge, was “hot.” Under all of these

circumstances it cannot otherwise be considered but that

counsel’s request to adjourn was reasonable. The court's

retort unnecessarily suggested to the jury that counsel — or

petitioners — were responsible for their inconveniences.

The Supreme Judicial Court disposed of this argument by

saying (357 Mass. at 404-405):

“Toward the close of a hot day, the trial judge declined

to suspend the trial at 4 p.m. but insisted that cross-

examination by Cassesso’s counsel of Glavin, then on the

stand, be completed that afternoon. “We are not going to

start all over tomorrow and have him repeat the same

questions.” Judicial comment upon ‘unusually protracted’

cross-examination has been held permissible... . It was

for the judge to determine, within a wide ranze of discre-

tion, whether there was chance of completing that day

cross-examination of a particular witness and the manner

in which he would encourage avoidance of repetition.”

—-

69

The Supreme Judicial Court’s position on this point is char-

acterized by a total disregard of the issues. It begins with an

assumption, entirely unfounded in the record, that counsel's

cross-examination of Commonwealth’s witness Glavin was

“unusually protracted”; yet Glavin’s testimony, admissible only

against petitioner Cassesso (whose counsel was cross-examin-

ing), was in fact rather concise. It proceeds with a statement

of law that is more than arguably wrong, at least as a matter

of due process, that the court can comment in the presence of

the jury on cross-examination that it regards as “unusually

protracted.” Young v. United States, 346 F. 2d 793, 795-796

(D.C. Cir. 1965). Cf. United States v. Gorman, 393 F. 2d

209, 212 (7th Cir. 1968) (no prejudice in admonition where

given outside the hearing of the jury). Whether the trial

judge was right or wrong in refusing to adjourn at counsel’s

suggestion, his remarks to the jury were totally unnecessary

and highly prejudicial to petitioners.

G. Remarks about Prejudicing Rights.

Prosecution witness Robert Glavin having testified on direct

examination as to conversations between himself and Mr.

Cassesso (Tr. 41, 5564-5575), on cross-examination defense

counsel attempted to question Glavin concerning aspects of the

conversation relating to the Deegan matter (Tr. 41, 5621) that

he admittedly had failed to disclose to the jury (Tr. 41, 5620).

We submit that counsel's right to ask this question was clear

beyond doubt and so argued in argument IV, B, ante. The

judge, however, not only ruled the elicited testimony inadmis-

sible and refused an offer of proof (Tr. 41, 5621), but then

stated that counsel was violating instructions given by the

court. In this the judge was in error; at no time did he ever

instruct counsel that further inquiry into a matter so thorough-

70

ly opened up by the prosecution was out of order. But the

judge went still further and addressed counsel as follows

(Tr. 41, 5641-5642):

“If you are seeking grounds for a mistrial, you are

going to be mistaken, sir... .

“You are not going to prejudice the rights of anyone

else in this court room. Now, that is the reason why I

am excluding it, and the record will speak for itself.”

Here again, the judge, without any basis in fact, seriously

impugned the motives of counsel, who was pursuing a course

of conduct which he had a right, if not a duty, to pursue in

order to protect his client’s constitutional right to “fearless,

vigorous and effective” advocacy. Offutt v. United States,

348 U.S. 11, 13 (1954), citing Sacher v. United States, 343

U.S. 1, 13 (1952). It also implies that petitioner's counsel

lacked faith in winning his client’s case before the sitting jury.

The judge’s remark was patent and obvious error. United

States v. Kelley, 314 F. 2d 461, 463 (6th Cir. 1963). Even

where, as was not the case here, counsel engages in improper

argument, his motives must not be called into question.

The Supreme Judicial Court disposed of the assignment by

saying (357 Mass. at 404):

“On cross-examination, Cassesso’s counsel asked Glavin

certain questions which the judge thought might violate

his instructions not to ask questions which might elicit

answers containing references to the Cosa Nostra or the

‘office’ or to other defendants against whom the answers

were not admissible. At one point after suggesting the

impropriety of the particular inquiry, the judge said, “You

are not going to prejudice the rights of anyone else in this

71

court room. Now, that is the reason why I am excluding

it.. Cassesso saved an exception. In context the judge's

remark was a method of telling counsel to obtain his

information in a manner which would not require men-

tioning defendants other than Cassesso.”

We may begin with the observation that the Supreme

Judicial Court in its opinion had already ruled that the order

which the judge was attempting to enforce (to refrain from

asking Glavin questions that would include “the office” or

“Cosa Nostra”) was erroneous (357 Mass. at 389), although not

a ground for reversal. If a judge must be cautious in repri-

manding counsel for disobedience to a proper order, how

much more caution is indicated when the validity of the order

is doubtful or indeed improper? Be that as it may, we are

again dealing with serious accusations against counsel for the

accused with this accusation. Again it finds a “context” in

which the judge is supposed to have meant something very

different from what he said. If the judge meant to tell

counsel to avoid asking questions in a way that would mention

anyone but his client, he should have told him this plainly and

simply, not accused him of trying to prejudice others’ rights or

obtain a mistrial.

H. Statement about Defense Interruptions.

Early in the trial (Tr. 29, 3303), Baron was asked about a

conversation between himself and co-defendant Grieco.

When it appeared that he was about to testify to hearsay

concerning an utterly immaterial remark that Grieco had

allegedly made, all counsel objected and, thereupon, the judge

said (Tr. 29, 3303).

72

“I am going to ask the jury to draw their own inferences

from the interruptions. Now, if the purpose of the inter-

ruptions is to break the narration and the story, that’s one

thing. Now, I'd like to have the jury get the evidence

which is admissible.”

The Supreme Judicial Court found that (357 Mass. at 394)

in “context, the trial judge’s remark was not criticism of

ordinary or reasonable objections, but merely a comment, in

effect, that the defence objections had been unduly frequent.

The remark, in the middle of a long trial (fn. 2), amounted

only to an admonition to avoid unnecessary delay and inter-

ruption.” This comment on repetitive or unduly frequent

objections comes with singularly ill grace from a court that

seems to hope to require the taking of an exception to each

and every separate question in order to save important consti-

tutional rights. Where the preservation of federal rights

depends upon such exceptions, the Supremacy Clause, as well

as the Due Process Clause of the Fourteenth Amendment,

forbids the “exaction of a price” (Garrity v. New Jersey, 385

U.S. 493, 500 (1967) and cases cited) from those who claim

them in the form of adverse criticism from the bench.

I. Violation of an Agreement.

During cross-exar ‘nation of Glavin, when petitioner Cas-

sesso’s counsel asked Glavin about certain prior inconsistent

statements, the prosecutor accused counsel of violating an

“agreement.” See argument VI, A, ante. Nowhere in the

record can such an agreement be found and counsel denied

«1d continues to deny the existence of such an agreement

(Tr. 41, 5604-5605). Where no such agreement appears in the

73

record and where the judge had heard no evidence that any

off-the-record agreement was made, it was his duty to instruct

the jury to disregard the prosecutor’s remarks. . “If counsel

desired to testify he should have gone on the witness stand and

subjected himself to cross-examination.” United States v.

Socony-Vacuum Oil Co., Inc., 105 F. 2d 809, 839 (7th Cir.

1939), revd. on other grounds, 310 U.S. 150 (1940).

J. A “Trick” Question.

The following colloquy occurred on the cross-examination of

Robert Glavin (Tr. 5639):

“Q. Now, yesterday you told us you were going to get

this information of the Deegan matter from Cassesso,

didn’t you?”

“A. I don’t believe so.”

“Q. Well, let’s look at this and see if this helps refresh

your memory: 5441, Mr. Zalkind.”

“A. Where do you want me to start?”

“Mr. ZALKIND: Where are you pointing to?”

(Mr. Chisholm indicating on transcript.)

“Mr. ZALKIND: Trick question, your Honor, again.

ok at what he pointed to, your Honor. It has nothing

to do with what he just asked him.”

There was nothing tricky about this question, and it was

perfectly proper for counsel to ask it. On motion of peti-

tioner, the judge refused to instruct the jury to disregard the

prosecutor's comment (Tr. 5639, 5640). To begin with, the

74

prosecutor's rernark (once again) was in obvious violation of

Rule 71 of the Rules of the Superior Court. Beyond that, it

partook of the conduct strongly disapproved by this Court in

Berger v. United States, 295 U.S. 78, 88-89 (1935).

K. Asking the Jury to Use their Imagination.

“It is elementary that a prosecutor may not import his own

testimony into a criminal trial... . The prosecutor is not free

to offer his opinion in lieu of calling an expert witness” and

even though “the . . . [j]udge did give the jury the customary

caution not to rely on statements of counsel, but to rely solely

on the testimony and their own recollections thereof ...

prejudice cannot be avoided by ‘mild judicial action,’ and

reversal is necessary... .” King v. United States, 372 F. 2d

383, 394 (D.C. Cir. 1967). See Hall v. United States, 150

U.S. 76, 78 (1893).

In his closing argument, the assistant district attorney, after

referring to Baron's testimony that he went to the Ebb Tide

and had a conversation with defendant Tameleo, argued:

“Now, I suppose one might say “Well, why did he go to

Henry Tameleo?’ Of course you have to use your imagi-

nation. There are many things in a court of law that

can’t be introduced.” (Tr. 7402.)

Counsel immediately objected (see Commonwealth v.

Cabot, 241 Mass. 131, 148, 135 N.E. 465 (1922)) and moved

that the remarks be stricken (Tr. 7402).

The prosecutor’s statement urging the jury to use their

imagination was highly improper. Moreover, his “remarks on

the availability of unused ‘evidence’ [were] clearly impermis-

75

sible.” Kitchell v. United States, 354 F. 2d 715, 719 (1st Cir.

1965).

In response to petitioners’ objection and motion, the court

did sustain the objection and ordered the word “imagination”

to be stricken (Tr. 7043). Upon continued urging, however,

that the jury be instructed to disregard the prosecutor’s argu-

ment “that there are many things in a court of law that can’t

be introduced” (Tr. 7403-7404), the court then instructed the

jury as follows:

“Now, Mr. Foreman and member of the jury, first of

all I want to repeat what I said at the very beginning

— that when you were summoned here to serve as jurors

you were not supposed to leave your common sense at

home. You were to contribute your experience, what you

have learned from the facts of life, your intelligence,

your education, your knowledge of world affairs, and vou

are to use those talents in weighing the evidence.

“I wish to add to that now that you are, as far as

proof is concerned, you are limited to the evidence that

was produced in court. You are limited to that evidence,

and you are to decide whether that evidence is true or

not. And if you decide that you can’t accept it as true,

that is the end of it. But if you decide that it is true,

then you have the right to draw all the conclusions and

inferences which reasonable people draw in every day

life.

“Now, that is the ruling I make. Now, any statement

that there are facts which cannot be proved in court —

well, if they cannot be proved in court, they shouldn't

be mem oned in court, so you are to ignore such state-

ments.” (Tr. 7405-7406.)

76

That instruction not only magnified the prosecutor ..»pi *

priety, but it also failed to cure the prejudice. In the fist

place, the trial judge’s charge could have had ory one effect,

that of emphasizing to the jury that, by using their “common

sense” instead of their “imagination,” they could reach the

same result, namely, that Baron went to petitioner Tameleo to

get “the office’s approval” — the very evidence which defend-

ants had sought to avoid by their mciions for severance, and

which the court had attempted to exclude by restricting the

cross-examination of Glavin. In the second place, the instruc-

tion that “facts which cannot be proved in court . . . shouldn't

be mentioned in court, so you are to ignore such statements,”

was grossly inadequate to cure the court-compounded preju-

dice.

In spite of the obvious impropriety of the argument by the

assistant district attorney, he nonetheless failed to heed the

mild admonition of the court and promptly proceeded to

invoke the authority of the court in his insistence that the jury

could speculate as to evidence not before them. After recount-

ing some of the evidence that Baron had testified to, Common-

wealth’s counsel then proceeded to say:

“Now, counsel challenges me to prove these facts. His

Honor wiil instruct you that there are many things in the

case that I cannot even try to introduce in evidence —

“Mr. Bauumo: I object and ask that that argument be

stricken.” (Tr. 7441.)

The court sought to paraphrase the challenged argument

with the following:

“THe Court: Well, you cannot introduce the evi-

dence. Is that what you are trying to say?

77

“Mr. ZALKIND: I am saying that Mr. Balliro [counsel

for petitioner Tameleo] has challenged me to introduce

certain evidence and I am saying it would be improper

to introduce it.” (Tr. 7441.)

Defense counsel, getting the worst of the colloquy that fol-

lowed his objection, insisted:

“All I have done is object and ask that argurnent be

stricken.” (Tr. 7441.)

Upon the court’s indicating that it would “discuss it at the

bench,” the Commonwealth attorney “graciously” withdrew

his argument (Tr. 7441).

A review of the argument that had been made by Mr. Bal-

notte tocned oll itamundy on Gite hes ton

he said counsel had “challenged” him to introduce certain

evidence. In any event, the explanation given by thy Com-

monwealth for its gross impropriety ought to receive short

shrift because obviously, if counsel had improperly called upon

the Commonwealth to prove something, the time for objection

had long since gone past.

L. Expectation of Interruptions.

As we have argued above, counsel objected to the Common-

wealth’s first improper reference to the “many things in a

court of law that can’t be introduced.” Apparently, although

it took some time, the trial court agreed that the objection was

valid and proceeded to give a two-page instruction in that

regard to the jury (Tr. 7405-7406). Obviously, neither the

78

objection nor the court's instruction was much to the prosecu-

tion's liking; immediately after the court concluded instructing

the jury the following colloquy took place:

“Mr. ZALKIND: [ expect a lot of interruptions, ladies

and gentlemen.

“Mr. Batumo: I object to that remark.

“Mr. CuisHoim: I object to that.

“Tue Court: What do you object to?

“Mr. ZALKIND: I said that I expect a lot of interrup-

tious, and I am sure I will get them.

“Mr. Bacumo: I object. There will be no objection

if Mr. Zalkind is proper in his argument, your Honor.

“Mr. CuisHotm: That's righi.

“THe Court: Is he reading from the record? Why do

you object?

“Mr. ZaLxinp: That's what I am doing.

“Mr. McLaucuun: He said ‘I expect a lot of inter-

ruptions.’

“THe Court: And he’s getting them. I see he is and

the jury is seeing he is getting interruptions.

“Now, he has the right to read from the record. I am

going to let him read from the record.”

Of course, the only thing that counsel had objected to was

the prosecutor's snide and completely uncalled for remark to

the effect that: “I expect a lot of interruptions . . . ” to which

he added in further colloguy: “... and I am sure I will get

them.”

Instead of promptly admonishing the prosecutor and in-

structing “he jury that counsel had a right and a duty to object

immediately to improper argument, the court supplied an

excuse for the remark and suggested that counsel was objecting

79

to the prosecutor's “reading from the record.” The prosecu-

tor was not reading from the record. In spite of the fact that

counsel sought to correct the court and direct its attention to

the remark “I expect a lot of interruptions,” the court refused

to be dissuaded from its erroneous position.

M. The Absence of Puopolo.

At the very heart of the Commonwealth's case against peti-

tioners was the Commonwealth's theory, as testified to by

Baron, that the contract to kill Deegan was authorized because

Deegan allegedly killed one Sacramone and had robbed the

home of one Carmine Puopolo (Tr. 7400). There was a

co:nplete and utter lack of evidence to corroborate the witness

Baron in this most important regard. Yer, the trial court per-

mitted the Commonwealth to employ rhetorical questions that

would allow the jury to speculate that Baron’s testimony was

true and, without any evidence to that effect, that petitioners

had secreted Puopolo. The arguments and colloquy were as

follows:

“Now, what is the conversation? Peter Limone says

‘Look, Joe, the office is a little excited about this guy

Teddie Deegan’ and he tells him why. He tells him that

a kid named Sacramone was killed. The Commonwealth

corroborates the fact, and, again, I don’t want to use that

word ‘corroborate,’ is it coincidental that a »:d named

Sacramone was killed? You heard evidence he was killed

some four or five months prior to this incident.

“Now he tells you that Carmine Puopolo, a bookmaker,

got his house robbed of $81,000.00. Is it coincidental,

ladies and gentlemen, that when the Commonwealth calls

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Carmine Puopolo, he’s not anywhere to be —” [Emphasis

added. |

“Mr. Batumo: | object.

“Mr. Paris: Objection.

“Mr. McLavcnun: Objection.

“Mr. CuisHoim: I object, your Honor.

“Mr. Zacxinp: Of course, they object, your Honor.

“Mr. Bauumo: I object and move that his remarks be

stricken.

“Tue Court: All right. Objection overruled.”

(Emphasis supplied.) (Tr. 7400.)

The Supreme Judicial Court found the prosecutor's argu-

ment “not prejudicial” because it was “never finished” (357

Mass. at 403). But it is inconceivable that the jury failed to

supply the unsaid word (“found”) and, in view of the judge's

overruling of petitioners’ objections, to accept the prosecutor's

argument as valid.

N. Comment on Failure of Petitioner Cassesso to Deny

wo cep Soe.

In his summation the prosecutor commented:

“In any event, he [Baron-Barboza] says he met Ronnie

Cassesso down there [in Florida]. There’s no denying

by anyone that Ronnie Cassesso was not [sic] there.”

(Tr. 51, 7412, 7413.)

The Supreme Judicial Court found that this could (357

Mass. at 403) “not be interpreted as comment on Cassesso’s

81

failure to take the stand” because “any person who had seen

[petitioner] elsewhere at the designated time could have testi-

fied to the fact.” This rationalization overlooks the circum-

stance that petitioner would have had to find witnesses to

account for his whereabouts over an alleged four-week period

(Tr. 2254-3279) in the winter of 1965 and the practical

problems of bringing out-of-state witnesses to give such an ac-

counting. Theoretically, perhaps, others could have given this

testimony; practically only petitioner could give it. We shall

not labor the point that the Fifth and Fourteenth Amendments

proscribe any comment, direct or indirect, upon petitioner's

failure to testify. Griffin v. California, 380 U.S. 609, 614-615

(1965).

O. Comments on Lack of Dignity in Courtroom.

The petitioners were entitled to have siricken the inappro-

priate remarks (Tr. 35, 4341-4342) of the assistant district

attorney which suggested, in relation to Baron's allegations

that petitioner Grieco’s attorney was and had long been anti-

Semitic, that counsel rather than the witness was to blame for

the witness's exclamation:

“Mr. ZALKIND: Is there no dignity in this court room?”

“Mr. O’DonneLt: That was brought in by the govern-

ment, not by me.”

“Mr. ZALKIND: Is there no sense of justice in this court

room to permit this type of examination?”

The trial court denied a motion that these remarks be stricken.

If there was at this time a lack of dignity in the courtroom,

it was the Commonwealth’s witness who was primarily to

82

blame. We agree with the assistant district attorney's sugges-

tion that a sense of justice was missing from the court but

submit that it was petitioners who suffered in consequence.

The remarks of the assistant district attorney were entirely

inappropriate.

The suggestion by the Supreme Judicial Court that the

prosecutor was “baited” into this “inappropriate” remark (357

Mass. at 403) lacks a foundation in the record. Indeed,

several minutes appear to have elapsed between the question

of counsel and the prosecutor's gratuitous insult.

P. Identification of Petitioner Cassesso as Defendant in

Other Case.

When counsel attempted to cross-examine prosecution

witness Robert Glavin from grand jury minutes, the assistant

district attorney averred, pointing at petitioner Cassesso

(Tr. 42, 5686):

“This is grand jury testimony in another case where this

man is presently a defendant.” (Tr. 41, 5652.)

Petitioner immediately moved for mistrial. The Supreme

Judicial Court met the contention that the denial of mistrial

was error by saying (357 Mass. at 403):

“A reference by the assistant district attorney to ‘grand

jury testimony in another case where this man [Cassesso]

is presently a defendant’ was not very clear. The judge

promptly instructed the jury that it be disregarded.”

83

We submit (a) that the reference was reasonably clear and

(b) that the judge did not promptly ask the jury to disregard

it.

As soon as the assistant district attorney made his statement,

Mr. Cassesso’s counsel moved for a mistrial (Tr. 41, 5652), a

motion that would have been most unlikely if the reference

had not been to his client. There was the next day the fol-

lowing colloquy among the judge, the prosecutor, and the

defense counsel (Tr. 42, 5685-5686):

“Mr. ZALKIND: I don’t want to belabor this but let me

just say this. First of all, that statement by itself means

absolutely nothing.

“THe Court: It means this man —

“Mr. ZALKinD: Which man?

“Mr. STANZIANI: Cassesso.

“THe Court: Oh, I understand this to refer to

Mr. Cassesso.

“Mr. ZALKIND: I did not use the name Cassesso.

“Mr. STANZIANI: You pointed to him.

“Mr. CutsHotm: The record should reflect that when

Mr. Zalkind made the statement, he turned and pointed

to the defendants’ box and the record should reflect that.

“Mr. STANZIANI: I saw that.

“Mr. CuisHoLm: I would like to see Mr. Zalkind deny

that. He’s here.

“Mr. ZaALkinp: I deny nothing and accept nothing.

I say the record doesn’t indicate anything. And if it does

indicate something, it’s because Mr. Chisholm opened up

the grand jury testimony... .”

It is a familiar rule of law that one who fails to deny a

statement at a time when by natural instincts he would do

84

so may be thought to have acquiesced therein. Turner v.

Yates, 16 How. 14, 27 (1853).

But the judge’s reaction to this incident was even more

astounding. So as not to lose any of the flavor, we quote in

full from Tr. 41, 5652, where this incident occurred.

“Mr. ZALKIND: This is grand jury testimony in another

case where this man is presently a defendant.

“Mr. CHISHOLM: Judge, I move for a mistrial based

on the remarks of Mr. Zalkind.

“THe Court: That’s what you've been working on all

afternoon. I exclude the question [a question put to

Glavin earlier by Mr. Chisholm]. Proceed.

“Mr. CHISHOLM: May I have a ruling on my motion?

“THe Court: I deny the motion, also.

“Mr. CHISHOLM: I except to your Honor’s ruling.

Exception No. 629.

“THe Court: Yes, and I am going to ask the jury to

disregard the district attorney's statement.

“Mr. CHISHOLM: Thank you, your Honor.”

It would be sheer folly to imagine that in these circum-

stances the jury disregarded the prosecutor's comment.

Stewart v. United States, 366 U.S. 1, 10 (1961). Bruton v.

United States, supra, 137.

We submit in the first place that due process generally and

the requirement of an unbiased jury in particular require that

the jury be not informed that a defendant is or was involved

in any other criminal proceeding unless it is necessary to show

such involvement in the case on trial. Hall v. United States,

150 U.S. 76, 81-82 (1893); Marshall v. United States, 360 U.S.

85

310, 312-313 (1959). Cf. Spencer v. Texas, 385 U.S. 554

(1967). But even if the rule were otherwise, such information

ought not in any circumstances to come from the prosecutor,

who is not a witness and not available, as required by the

Sixth Amendment, for cross-examination. United States v.

Socony-Vacuum Oil Co., Inc., supra. See Commonweelth v.

Homer, supra, 536.

VIII. Peririoners weRE CONSTITUTIONALLY ENTITLED TO

HAvE THE JuRY INSTRUCTED THAT THE TESTIMONY OF AN

ACCOMPLICE OR AN INFORMER IS TO BE CAREFULLY SCRUTI-

NIZED.

The trial court had more than sufficient notice that the

Commonwealth’s chief witness, Baron, was not only an

accomplice, by virtue of his plea of guilty to the conspiracy

indictments, but in every sense of the word was an accessory

before the fact to the crime of murder. He was obviously an

informer. By his own testimony, Baron was the central

person in the killing of Deegan and the intended killing of the

witness Stathopoulos. The characterization of Baron by the

Court of Appeals for the First Circuit in Patriarca v. United

States, supra, applied in every respect to the instant case.

Prior to the charge, all defendants had filed requests for jury

instructions. The trial court had indicated that it was going

to allow the defendants’ request to instruct the jury that the

testimony of the witness Baron should be “scrutinized with

care and caution.” Then whimsically changing his mind, the

judge, instead, charged the jury:

“Now, much was said about corroboration. Well, of

course, a person who admits himself to be an accomplice

86

of a crime is a criminal himself, and that in itself raises a

question, but that does not mean t

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