Petition for Writ of Certiorari — Fein v. Deegan

Supreme Court brief1969

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heme PEN PREN TE Sas:

PREME, COURT. U. &

IN THE

Supreme Court nf the United States

October Term, 1968

UNITED STATES OF AMERICA, ex rel. MARK FEIN,

Petitioner;

against

| JOHN T. DEEGAN, as Warden of Sing Sing Prison,

State of New York,

Respondent.

PETITION (WITH APPENDICES) FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

Mitton C. WEISM4N

O. Joun Rocce

1501 Broadway

New York, New York 10036

Attorneys for Petitioner

TABLE OF CONTENTS

PAGE

' Oprnions BELow ....... pea eubalret Ses lage esieieainc oa oe 1

JURISDICTION. .....6........00000- Rca: Ses nebeeieaateinre later ; 4

QUESTIONS PRESENTED ..................... PRR DOAN ON TO eel 4

Comsrivenionat anp Statutory Provisions INVOLVED 5)

Fourth Amendment ........ Sati geansne antes 5

Fifth Amendment .............00:c0ccc0ce Era 5

Sixth Amendment .................. Lee ERPSAAS peels 5

PORTOOEEIE BORIGIRORE .......0..05000..06:0:dbinrrecccs: 5)

STATEMENT OF THE CASB ..................:c::csccecsseeseseeseeeeeseseeteeeess

A. Six Constitutional Violations ......................

| I—The Suppression of Exculpatory Evi-

cs pmhiasasies soph sseiate baoligtssee ss 8

II—The Denial of Pretrial Discovery ...... 33

IIi—The Admission Into Evidence of I-

legally Seized Material ..........00.0....... 34

-IV—New York’s Unconstitutional Blue

Ribbon Jury Statute 00.000. 37

V—tThe Trial Judge’s Statements to the

Jury Violated the Petitioner’s Right

PRAISE SROB RIN eet Pree REED er 41

VI—Prejudicial Publicity, . Emanating

from the Police and the Prosecution ‘42

REASONS FOR Grantinc THE Writ.

III

The prosecution’s Suppression of exculpatory.

evidence, whether due to inadvertence, negli-

gence, willfulness, or an excess of zeal, and

Whether or not defense counsel made a request

for such evidence, and whether more diligent

or more fortunate defense counsel might’ pos-

sibly have come upon such evidence on his own,

is a violation of the due process clause of the

Fourteenth Amendment...” ~

The denial of pretrial discovery and inspec-

tion of the bullets found in the decedent vio-

' lated the due process clause of the Fourteenth

UN ele oicric

The admission into evidence over objection

and without a hearing of a chair obtained as

a result of an illegal search and seizure vio-

lated the Fourth and Fourteenth Amendments

New York’s blue ribbon jury statute, under

which the instant case was tried, violates the

Sixth and Fourteenth Amendments

_The trial judge’s statements. to the jury vio-

lated the petitioner’s right to silence under-the

Fifth and Fourteenth Amendments...

Prejudicial publicity, emanating from the po-

lice and the prosecution, violated the due proc-

ess clause of the Fourteenth Amendment

NN oe aire: tori whsdn sented asa nis tess eae,

APPENDICEs:

APPENDIX I—Opinion of Distriet Judge John R.

Bartels fér the Second Circuit ;

1il

° -

APPENDIX II—Conceurring Opinion of Circuit

Judge Waterman ...........65...0..000. cba disalact

Appenpix II/—Opinion and Order ‘of United

States. District Judge Edmund L.. Palmieri,

RN I I ooo exsinncaccnnsdecrstcensaseensclmect

_Appenpix IV—Opinion ead - Cade “of United

' States District Judge Edmund. Palmieri,

‘December 1, 1967, Granting Petitioner’s Mo-

tion for a Certificate of Probable Cause ........

APPENDIX V—Opinion of Judge Kenneth B. Keat-

ing for the New York Court of Appeals, July

7, 1966, People v. Fei, 18 N.Y. 2d 162, 272

N.Y.S. 2d 753, 219 N.B. 2d 274 0.00.

Appenpix VI—Dissenting Opinion of Judge Fuld

Appenpix VII—Remittitur of New York Court of

Appeals, July 7, 1966, as Amended Pursuant

‘to Order Dated September 22, 1966, 18 N.Y.

hb. Sh ae S "8 een

Appenpix VIII—Remittitur of New York Court

of Appeals, July 7, 1966, as Amended Pur-

suant to Order Dated February 21, 1967, 19

N.Y. 2d 691, 278 N.Y.S. 2d 880 ................ ree

Aprenpix IX—Denial ‘of Review, Fein v. New

York, 385 U.S. 649 (1967) .o.-cccccsssscssssecsssscessssese

APPENDIX X—Opinion of the Appellate Division,

First Department, October 19, 1965, 24 A.D.

2d 32, GIN. YAS. 2d G20 oo, eseseessreseseeness

Apprenpix XI—Opinion of Supreme Comit, New

York County, May 26, 1935, ats Mo-

MR I TR ose esedas bite tsstvecnvicsovecdnescoress

Appenpix XII—Materials, Relating to Blue Rib-

ea ah vio gone Wistconcapssatvcbacleei

PAGE ,

23a

25a

39a .

4la

56a

58a

6la

PAGE

Excerpts from 1952 Report and Study of the

Judicial Council of the State of New York 98a

From Report | Se”, ee | (eee ene en 98a -

From Study (pp. 157-159) ........ CPR Re Se 100a

From Study (pp. 165-166) ............... sane 104a

Excerpts from April 26, 1965 Report of the

Committee on Criminal Courts, Associa-

tion of the Bar of the City of New York .... 106a

Ania X1II—Former Section -749-aa of the

New York Judiciary Law .....0..0.00.0.0c..0.cceee. 109a

Section 813-d3 of the New York Code a

Criminal Procedure ........... sanded inet Ne 11lda

TABLE OF AUTHORITIES

Cases:

Adamson v. California, 332 U.S. 46 (1947) 20000000000... 7,71

Alderman v. United States, 37 U.S.L. Week 4189

I I a 56

Allen v. State, 110 Ga. App. 56, 137 S.E. 2d 711 (1964) 70

Anderson v. Nelson, 390 U.S. 523 (1968) 0.00000... 48

Arnold v. North Carolina, 376 U.S. 773 (1964) ............ 61

Ballard v. United Shite 329 U.S. 173 (1946) ............ 62

Barber v. Page, 390 U.S. 719 ( a cctk esti ot iuaged tn. 6

Baxstrom v. Herold, 383 U.S. 107 (1966)... 50

Betts v. Brady, 316 US. fy SOE RSE ne 61

Brady v. Maryland, 373 U.S..83 (1963) 00000... 45, 47

Brookhart v. Janis,.384 U.S. 1 RARE Se -) a

Bruno v. United States, 308 U.S. 287 (1939) ............. 72

Burgett v. Texas, 389 U.S. 109 (1967) 20. . 48

PAGB

: Chapman v. California, 386 U.S. 18 (1967) i UTP Ree 48, 49

Coppedge v. United States, 272 F.2d 504 (D.C. Cir.

a ip teees RR ROE IAS ele ONT es Se 74

Crawford v. State, 408 P.2d 1002 (Alaska, 1965) ........ 70

Cunningham v. Heinze, 352 F.2d 1 (9th Cir. 1965),

cert. denied, 383 U.S. 968 (1966) ................. eee 58

Delaney v. United States, 199 F.2d 107 (1st Cir.1952) 74

Dennis v. United States, 384 U.S. 855 (1966) ................ 51

Duncan v. Louisiana, 391 U.S. 145 (1968) .................... 6, 7, 60

Eubanks v. Louisiana, 356 U.S. 584 (1958) ............... ae

Fay v. New York, 332 U.S. 261 (1947). ....38, 39, 63, 64, 68, 70

Fontaine v. California, 390 U.S. 593 (1968) ................ 48

Hernandez v. Texas, 347 U.S. 475 (1954) ........ bestantags 62

Hobson v. United States, 226 F.2d 890 (8th Cir. 1955) 57

Gideon v. Wainwright, 372 US. ns) een 60, 61»

_ Giles v. Maryland, 386 U.S. 66 (1967) 00.000 47

Glasser v. United States, 315 U.S. 60 (1942) 000... 62, 66

Griffin v. California, 380 U.S. 609. (1965) 0.02000... 6, 71

Jackson v. Denno, 378 U.S. 368 (1964) ccc. -. 58

Johnson v. Zerbst, 304 U.S. 458 (1938) on... 74

Jones v. Georgia, 389 U.S. 24 (1967) 000000. 61, 68, 69

Jones v. United States, 362 U.S. 257 (1960) ........ 54, 55, 56

Ker v. California, 374 U.S. 23 (1963) °.00000...... 6, 54

Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966), cert.

denied, 386 US. 991 (1967) 62

McKnight v. United States, 115 Fed. 972 (6th Cir.

ROR: Se 72

Malloy v. Hogan, 378 U. S.1 (1964) edaldans reat eae 6,71 ;

PAGE

Mancusi v. DeForte, 392 U.S. 364 (1968) 0000.0. 54, 55

Mapp v. Qhio, 367 U.S. 643 (1961) 00.0000. 53, 54, 59, 61

Mooney v. Holohan, 294 U.S. 103 (1935) oo... 45

Moore v. Dempsey, 261 U.S. 86'(1923) 200.0. 74

Moore v. New York, 333 U.S. ia PD scesvveriscuvas 39, 63, 68

Norris v. Alabama, 294 U.S. 587, (1935) it er Cae. 61

Palko v. Csnnentind, 302 U.S. 319 (1937) PA gall Pai cnr 7

' Parker v.-Gladden, 385 U.S. 363 (1966) o0....0.0.0.ccccc.. 60

People v. Arthurs, 3 A.D. 2d 966, 161 N.Y. S. 2d 971

ne Ee I icc e at ec a 72

People v. Blanchfield, 45 Mise. 2d 536, 257 N.Y.S. 2d

438 (Sup. Ct. N.Y. os at) ee 65, 67

People’ v. DeFilippis, 34 Ill. 2d 129, 214 N.E. 2d 897

I ais erases to srt lea es ease Areue heesar aetna 57

Peopie v. Fein, 18'N.Y. 2d 162, 272 N.Y.S. 2d 753, 219 ©

N.E. 2d 274 (1966), appeal dismissed, 385 U.S. 649

SRR REE REST? AOR RR EM eA NON ONC RM 39

People v. Fein, 19-N.Y. 2d 691, 278 N.Y.S. 2d'880 40

People v. Fitzgerald, 156 N.Y. 253 (1898) 0000000000000... 72

People v. Forte, 277 N.Y. 440 (1938) 00000000000... ace ih 72

People v. Hall, 169 N.Y. 184 (1901) .......... ee en 65

People v. Johnson, 68 Cal. Rptr. 599, 441.P. 2d 111

(1968), cert. denied, 393 U.S. 1051 SOE viccdhcsccs 49

People v. McLucas, 15 N.Y. 2d 167, 256 N.Y.S. 2d 799 ©

SE cle eed tie ele cea ty aa a 72

Peaple v. Manning, 278 N. eh Oe REE Geisissiocoiccin.. 72

People v. Martin, 45 Cal. 2d 755, 290 P. 2d 855 (1955) 57, 60

People v. White, 43 Cal. 2d 740, 278 P. 2d 9 (1954),

cert. denied, 350 U.S. 875 (1955) occas. 70

Pointer v. Texas, 380 U.S. 400 (1965) ..00.0.0......... satanic 60

Pyle v. Kansas, 317 Ms RID iyi ccspcisnsyvissnvebptogenns 45

Rebinooita v. United States, 366 F. 2d 34 (5th Cir..

at er een bert te 63, 69

Redfield v. United. States, 315 F. 2d 76 (9th Cir. 1963) 72

VIlI

PAGE

Schuster v. City of New York, 25 Mise. 670, 205 N. YS.

2d 190 (Sup. Ct. Kings County 1960) Jot... 37, 38

Sheppard v. Maxwell, 384 U.S. 333 (1966) ...... Eee 42,73

Sims v. Georgia, 389 U.S. 404 (1967) 00000. 61, 68

Smith v. Illinois, 390 U.S. 129 (1968) 20000. a.

Smith v. Texas, 311 U8: 106 CORBI) .........:.5.05.:c05000 61

State v. Dodge, 12 Utah 2d 293, 365 P. 2d 798 (1961) 70

State v. Ferraro, 146 Conn. 59, 147 A.2d 478 (1958), |

cert. denied, 369 U.S. 880 (1962) 2.000 ee. 70

State v. Jones, 44 Del. 372, 57 A.2d- 109 (Ct. Oyer &

WIRE Se a a 70

State v. Madison, 240 Md. 265, 213 A.2d 880 (1965) 70

Stoner v. California, 376 U.S. 483 (1964) ...... eens 54

Strauder v. West Virginia, 100 U.S. 303 (1879) ........ 61

Stroble v. California, 343 U.S. 181 (1952) ......: eect 74

Thiel v. Southern Pacific Co., 328 U.S. 211 (1946) ...... 62

Turner v. Louisiana, 379 U. S. 466 (1965) CF RO ta a

Twining v. New Jersey, 211 U.S. 78 (1908) ................ 71

United States v. Accardo, 298 F.2d 133 (7th Cir. 1962) 74

United States v. Jeffers, 342 U:S. 48 (1951) ........ bere a, . 54

United States v. Merritt, 293 F.2d 742 (3d.Cir. 1961) 57

Whitus v. Georgia, 385 U.S. 545 (1967) .............. 61, 68, 69 —

Will v. United States, 389 'U.S. 90 (1967) ................ . §2

Witherspoon v. Mlinois, 391 U.S. 510 (1968)... 65, 66

Wolf v. Colorado, 338 U.S. 25 (1949) 000... a

Work v. United States, 243 F.2d 660 (D.C. Cir. 1957)’ 57

United States Constitution:

Fourth Amendment ........................ sesssssiuy 5, 6, 58, 55, 57

Fifth II Sieiov varia snas rascal leat 4, 5, 6, 42, 71

| ene Paci 4, 5, 6, 50, 60, 61

Fourteenth Amendment 0.000.000.0000... 4, 5, 6, 7, 42, 44, 45,

900, 53, 55, 60, 61,.71

VIII

PAGE

Statutes:

28 U.S.C. §1254(1) 0... Std SOR BA Sire ine eee 4

ae UBM, GRR i cc BNET Sst eee Aah Wess 44

Alabama Code, Appendix (Vol. 14), §§713-719 oo... 7

Delaware Code Ann., Title 10, §§4541-4543 71

Indiana Stat. Ann., §§4-7108 to 4-7114..°.. 71

New Jersey, Stat. Ann., §§2A:75-I to 2A:75-5 ,

Former New York State Judiciary Law §749-aa ........ 5, 37

New York Code of Criminal Procedure $813-d3 .......... 5, 35

Other Authorities: ©

Brennan, The Criminal Prosecution: Sporting*Event

or Quest for Truth?, 1963 Wash. U.L. Q. 279 ........ . 82

Goldstein, The State and the Accused: Balance of

Advantage in Criminal Procedure, 69 Yale L.J.

OE NS ae ee «62

Rogge, A Technique for Change, 11 U.C.L.A. Rev.

481 (1964) 000... AIS ce Ss Ga ee STS OEE ae 7

IN THE

elites Court of the United States

October Term, 1968

Unitep States oF America, ex rel. Marx FEIn,

Petitioner,

against.

Joun T. Derrcan, as Warden of Sing Sing Prison,

State of New York,

Reepondont.

———En- ee

PETITION (WITH APPENDICES) FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT ©

‘ OF APPEALS FOR THE ——— CIRCUIT |

The petitioner, Mark Fein, prays that a writ of certi- —

orari be issued to review the judgment of the United States

Court of Appeals for the’ Second Circuit, entered in the

office of the clerk of that court on March 24, 1969.

Ovinions Below

The United States Court of Appeals for the Second

Cireuit rendered majority and concurring opinions. The

majority opinion was by District Judge John R. Bartels

of the Kastern District of New York, sitting by designation,

It is reproduced as Appendix I, infra, pp. la-2la. The

concurring opinion was by Circuit Judge Sterry I. Water-

man. This opinion is. reproduced as Appendix II, infra;

pp. 22a-23a. These opinions are not yet reported.

The United States Court of Appeals for the Second Cir-

cuit affirmed an opinion and order of October 13, 1967, of

District Judge Edmund L. Palmieri of and for the United ,

States District Court for the Southern District of New

York, denying the petitioner’s request for a writ of habeas

corpus. Judge Palmieri’s opinion and order are repro-

duced as Appendix III, infra, pp. 24a-36a. This opinion

was not reported.

Subsequently, and on December 1, 1967, Judge Palmieri

granted petitioner’s motion for a certificate of probable

cause. J udge Palmieri’s opinion and order of December 1, °

1967 are reproduced as Appendix IV, infra, pp. 37a-38a.

: Judge Palmieri’s opinion and order of December 1, 1967

were not reported.

Prior to the petitioner’s instant habeas corpus proceed-

ings in the federal courts, there were proceedings in the

state courts, and an appeal to this Court.which was dis-

missed for want of jurisdiction. en

The New York Court of Appeals rendered majority and

minority opinions. The majority opinion was by Judge

Kenneth B. Keating. It is reproduced as Appendix V,

infra, pp. 39a-50a. The dissenting opinion was by Judge,

now Chief Judge, Stanley H. Fuld. Judge Fuld’s-opinion

is reproduced as Appendix VI, infra, pp. 5la-52a. These

opinions are reported. People v. Fein, 18 N.Y. 2d 162, 272

N.Y.S. 2d 753, 219 N.E. 2d 274 (1966).

3 .

The New York Court of Appeals amended its remit-

titur of July 7, 1966 twice. The first amended remittitur

was pursuant to an order dated September 22, 1966. It, is

reproduced as Appendix VII, infra, pp. 53a-55a. It is re-

ported. People v. Feim, 18 N.Y. 2d 722, 274 N.Y.S. 2d 159

(1966).

The second amended remittitur was pursuant to an

order dated February 91, 1967. It is reproduced as Appen-

dix VIII, infra, pp. 56a-58a. It is likewise reported. Peo-

- ple v. Fein, 19 N.Y. 2d’ 691, 278 N.Y.S. 2d 880: (1967).

This Court aed review. Fu v. New Y ork, 385 U. Ss.

649 (1967). Mr. Justice Douglas was of the opinion that

probable jurisdiction should be noted. This Court also

denied a petition for rehearing. Fei v. New York, 386:

U.S. 978 (1967). These denials are reproduced as Appen-

‘dix IX, infra, p. 59a. :

The New York Court of Appeals, Judge, later Chief

Judge Fuld, dissenting, affirmed the Appellate Division,

First Department, which rendered. a written opinion that

is reproduced as Appendix X, infra, pp. 60a-74a. It is re-

‘ported. People v. Fein, 24 A.D. 2d 32, 263 N.Y.S. 2d 629

vate :

The Appellate Division, First Department, in turn af-

firmed the Supreme Court, New York County, Justice

Gerald T. Culkin presiding. He rendered a written opinion

denying the petitioner’s motion for a new trial, which is

reproduced as Appendix XI, infra, pp. 75a-85a, It was not

reported.

Jurisdiction

The United States Court of Appeals for the Second Cir-

cuit entered its judgment on March 24, 1969. The juris-

diction of this Court is invoked under 28 U.S.C. §1254(1).

Questions Presented

1. Did the prosecution’s suppression of exculpatory

evidence violate the due process clause of the Fourteenth

Amendment! ,

3 2. Did the denial of pre-trial discovery and inspection

‘of the bullets found in the decedent violate the due process

clause of the Fourteenth Amendment? :

3. Did the admission into evidence over objection and

. without a hearing of a chair obtained as a result of an

illegal search and seizure violate the Fourth and Four-

teenth. Amendments 2.

4. Did New York’s blue ribbon jury abt, under which

the instant case was tried, violate the Sixth and Fourteenth

Amendments?

' §. Did the trial judge’s ‘statements to the jury violate

the petitioner’s righi of silence under the Fifth and Four-

teenth Amendments?

6. ‘Did prejudicial publicity, emanating from the police

and the prosecution, violate the due process clause of the

Fourteenth Amendment?

Constitutional and Statutory Provisions Involved

Fourth Amendment

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and - ‘no warrants shall

_ issue, but upon pr obabla cause, supported by Oath or affir-

mation, and particularly describing the place to be searched,

and the persons or things to be seized.

Fifth Amendment |

_ No person * * * 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; * * *.

Sixth Amendment

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, bikie

Fourteenth Amendment

Section 1. * * * 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.

Former Section 749-aa of the New York Judiciary Law

(Printed in Appendix XIII, pp. 108a-115a.)

Section 813-d3 of the New York Code of Criminal Procedure

' (Printed in Appendix XIII, pp. 115a.)

Statement of the Case

A. Six Constitutionai Violations

The petitioner is in custody on a second degree mur-

der conviction with a sentence of 30 years to-life, which is

unlawful for an éven half dozen substantial and funda-

mental federal constitutional reasons. The petitioner urged

all six grounds ‘in the state courts, unsuccessfully. Taken

singly, each of the six grounds is sufficient by itself to re-

quire a reversal of the petitioner’s judgment of conviction?

Taken together, the six grounds present a case’ study of

_ the way in which a prosecution ought not to be conducted.

This Court | ‘ai ler the due process clatise of the Four-

teenth Amendment has given our country a uniform sys-

tem of criminal justice, measured, with the exception of

indictment by grand jury, by the relevant specifics of the

federal Bill of Rights: These relevant specifics-are as fully

- applicable to defendants in state criminal cases as they

are to defendants in federal criminal cases. Moreover, the

constitutional rights of defendants in state criminal cases

are measured by the same constitutional standards and -

| yardsticks as the constitutional rights of defendants in

federal criminal cases. . See, e.g., Ker v. California, 374

U. S. 23 (1963) (Fourth Amendment) ; Molloy v. Hogan,

378 U. S. 1 (1964) (Fifth Amendment privilege against

self-incrimination); Griffin v. California, 380 U. S. 609

(1965) (2bid.) ; Smith v. Illinois, 390 U. S. 129 (1968) (Sixth

Amendment right of confrontation); Barber v. Page, 390

U.S. 719 (1968) (abid.); Duncan v. Louisiana, 391 U. S.

145 (1968) (Sixth Amendment right to trial by jury). See

generally, Rogge, A Technique for. Change, iW UCLA.

Rev. 481, 500-15 bast a citing cases,

Whether one takes the ‘‘absorption’” process reason-

ing of. Justice Cardozo in the Court’s opinion in Palko v.

Connecticut, 302 U. 8. 319 (1937), or the ‘‘incorporation

theory’’ of Mr. Justice Black in his dissent in Adamson v.

California, 332 U.S. 46, 68 (1947), or the more recent ‘‘se-

lective incorporation’’ approach, one will arrive at the

conclusion that the Court in its course of protecting the

individual has reached the point where all the relevant

specifics of the first eight amendments to the federal Con- |

stitution, with the-single exception of indictment by grand.

jury, are fully applicable to defendants in state criminal

cases under the due process clause. of the Fourteenth

Amendment.. Mr.-Justice Black, who still prefers his total

; incorporation theory, said nearly this in the last sentence

of his concurring opinion in Duncan v. Louisiana, 391 U.S.

145, 171 (1968), in which’ Mr. Justice Douglas joined :

‘‘And, most importantly for me, the selective incorporation

_ process has. the virtue of having already worked to. make

most of the Bill of Rights’ protections applicable to the

States. es

Measured by the constitutional yardsticks of the due

process clause of the,Fourteenth Amendment and of the

relevant specifics of the federal Bill of Rights, the peti-

tioner’s prosecution violates these constitutional provisions

in these six particulars:

(1) The suppression of exculpatory evidence;

(II) The denial of pretrial discovery ;

~ ey

(III) The admission into evidence of illegally

seized material ;

(IV) The use of the blue ribbon jury; ” aft

(V) The trial judge’s statements ta the jury which

violated the petitioner’s right of silence; and

(VI) Prejudicial publicity.

I—The Suppression of Exculpatory Evidence

a. Theory of the Prosecution. The instant case illus-

trates that facts, no matter how stubborn, are sometimes

no match for a stubborn theory. Once the prosecution had

settled on its theory, facts pointing to the contrary were

ignored and even suppressed.

The prosecution’s theory was that Mark Fein shot and

killed Rubin Markowitz, a bookmaker, sometime after 4:00

P.M. on October 10, 1963, in ‘apartment 5B at 406 East

63rd Street, which the petitioner rented under the name of

‘“‘Weissman’’ (79-80, 1136).* After the shooting, the peti-

tioner allegedly tied decedent’s legs with a rope and placed

his 180-pound body in a black steamer trunk (1137, 1140,

242, 146). -

‘The only testimony that the petitioner shot Markowitz,

or that the decedent’s body, or any body, was in the trunk,

came from a prostitute, one Carmela Donofrio Lazarus,

_ whom the Appellate Division termed “‘a woman with an

* References are to the record in the state courts; the pagination

is that on the bottom of the pages, except for the “B” pages.

extraordinary number of aliases’’ (App. X, p. 67a). During

_ the trial she was usually referred to as Gloria Kendall, or

Kendal, except that the prosecutor called her Mrs. Lazarus.

She was a madam and a procuress as well as a prostitute,

and had a string of cal) girls. The Appellate Division

described her as ‘‘a completely amoral person, who could

well merit the defense’s description as a depraved char- .

acter’’ (App. X, p.-72a).

Lazarus was the name of her second husband. He had

been convicted of larceny and also arrested for assault with

a_ pistol (1607, 1611-12, 1679). His uncle was Richard

Schlesinger, an ex-convict who, according to a police report,

‘was ‘‘engaged in armed robberies of bookmakers”’ (1687-.-

88). Her ex-husband, Blaustein, had been convicted of

grand larceny and extortion and arrested for involvement

in a murder case. Lazarus, whose existence and relation-

ship to Gloria were at all times concealed, remgined i in hid-

ing until after the petitioner’s a (1612, 1633).

In February 1964, after having spent a month fleeing

from the police, Gloria returned from Canada and asked

the petitioner to meet her; but he refused and sent an

investigator, William J. Whelan, employed by his counsel

(1886-87, 1184-85): Gloria admitted on cross-examination

that she met Mr. Whelan | on February 11, 1964 and asked

him for money but he refused (1379). The blackmail

nature of this demand was established by Whelan’s testi-

— at the trial, that, upon his refusal, she threatened that

‘if it ever comes to a-showdown I am going to protect. the

ones that are dearest to me, not Mark Fein”? (1891). Those

were Lazarus, Schlesinger and Blaustein.

Kight days later she visited’ the police and informed

‘against the petitioner, and they, within two hours, arrested

him on the charge of murdering Markowitz (1187-88, 1516-

17, 1526). They did so solely upon the statement of this

woman, whom they had during the preceding two months

been actively investigating as the possible murderer. Now

they immediately accepted her accusations at their face

value (1612, 1685).

Gloria’s story was that shortly after 5:00 P.M. on Octo-

her 10, 1963 the petitioner telephoned her and urgently

requested her to come to the Weissman apartment. Al-

though admittedly she had not seen or heard from him for

over 10 days, she nevertheless resporided immediately to

his call for help (1331-32). When she arrived, petitioner,

so she says, showed her a trunk and said he had shot

Arhowite, whose body was in the trunk (1135- 40).

The way Gloria contrived ‘is story, she had herself ask

the petitioner whether. he was sure that the man in the

trunk was dead. Thereupon, so she says, the petitioner

lifted the trunk lid, and she ‘‘saw part of an arm, and some

new clothesline, and some white material that looked like

a shirt” (1140).

Gloria offered to help the petitioner remove the trunk

from the apartment, but petitioner insisted that she call

some of her friends also*(1138-39). She telephoned David

Broudy, whom petitioner had never met, at his home in the

~ Bronx (1139, 875, 881). Broudy, an unemployed taxicab

driver and hairdresser, who had been discharged from the

Army because of extreme character and emotional dis-

orders rendering him unfit for service in any capacity,

responded at once to Gloria’s request, although he was

then in bed taking an afternoon nap (881, 75B).

A second friend of Gloria’s, Geraldine Boxer, known as

Geri to her friends, also appeared at the Weissman apart-

ment. At the trial, Geri and Gloria testified that when

Gloria left her apartment to go to the defendant’s aid, she

left a message for Geri, whom she expected to call for her,

with one Sandra Ede. In it she asked Geri to meet her ‘at

the Weissman apartment, and Geri testified that Sandra

gave her the message on the building intercom (706-08).

According to the ‘prosecution, the defendant and Gloria _

obtained a station wagon, and Broudy and the defendant |

loaded the trunk into it (902). Gloria then urged the peti-

tioner to go home, so that he could attend a dinner date with

his wife and some friends (1148-49). After the petitioner

left, Gloria, Broudy and Geri drove to Gloria’s own apart-

ment on 73rd Street, and double parked the station wagon —

‘in front of that building (732, 904-05, 1152). Broudy and

Geri remained in the station wagon while Gloria went up

to her apartment, where she remained for a period of time

which Broudy and Geri Boxer estimated as between one-

half to three-quarters of an hour but Gloria herself esti-

mated as between 10 to 25 minutes. (791, 905, 1370).

After Gloria rejoined the group, Broudy drove the sta-

tion wagon on a long, circuitous journey on the parkways

about the city (907-08), finally stopping at 179th Street on

the Harlem River Drive; and then they lifted the trunk

over the retaining wall and threw it into the river (908).

A month later, on the morning of November 8, 1963, the

decedent’s body was found floating in the river about three —

eee

miles away from where the trunk had been thrown in, with-

out any sign or trace of a trunk. No such trunk was ever

found. Nor was there ever any plausible explanation how

the body separated from the trunk. The prosecution’s case

that the petitioner admitted the killing turned solely on

Gloria’s story.

Petitioner did not testify at the trial. In-an affidavit

which he subsequently. submitted he stated that on October

10, 1963 he had received a telephone call frem Gloria sum-

moning him to the Weissman apartment; that when he

arrived, Gloria told him Markowitz had been murdered and

demanded his assistance in the removal of the trunk, threat-

ening that otherwise he would become involved and his

association with Gloria: would be exposed to petitioner’s:

wife, his family and others; that, panic-stricken, petitioner

had acceded to Gloria’s demands and agreed to assist her;

that Gloria later continued to threaten him and attempted

to extort money from him; and that it was now clear to

him that there had been no body in the trunk but that this

had been told to him to set him up later for a blackmail

scheme (179B-182B). ,

At the trial the prosecutor, after concluding Gloria’s

‘direct examination, Stated, with a deceptive display of

candor, that Gloria had twice recanted her story in his

presence—first on June 30, 1964, and, more importantly,

on September 28, 1964 (1201-1204). But the prosecutor

did not disclose the critical cireumstances which gave the

second recantation its real significance. Nor did he make

_any effort to correct the incomplete and thus misleading

testimony of Gloria and of his own investigator, Detective

James Leman, which carefully omitted the same critical

see REE 9 a ES i Rants be BR NNER

13°

circumstances. These circumstancés involve Mrs. Dagmar

Ingebor g Finch Generazio, whom the prosecution success-

fully edited out of the case. Even District Judge Bartels

conceded: ‘‘The prosecutor advised defense counsel of both ~

recantations but not of the confrontation with Dagmar

prior to the recantation. °? (App. I, p. 11a.)

It was a confrontation between Dagmar and Gloria in

the prosecutor’s office on September 28, 1964 that led to

Gloria’s second recantation. Without Gloria’s story about

the petitioner’ s confession to her of murder; there was no

case against Mark Fein, as the prosecytor himself admitted:

.Q. * * * so that on that day, as matters stood at

that time, the prosecution had no case against Mark

Fein, right? A. That’s right (3494-95)

® The prosecution, in order to hang on to its stubborn theory:

that Mark Fein killed Markowitz, had to suppress Dagmar -

and the testimony. she could give. In an excess of zeal, the

‘prosecution did just this. oy pe he

b. Mrs. Dagmar Ingeborg Finch Generazio. At a new

trial hearing, Dagmar testified that on October 10, 1963,

the last day that the decedent was scen alive, she was living :

at the apartment of Marsha Gail Weiner Tracy, usually

called Gail, on Hast 64th Street; and, between 3:00 and 4:00

P.M., received a telephone call there from Gloria. Gloria

_ told her that she was nearby and had a heavy box to move ;

and she asked Dagmar, without avail, whether Dagmar

~ could borrow Gail’s car, or any other car for her (2547-51).

Dagmar also testified that before the trial she had told this’

to Detectives Leman and Frank Lyons, who were assigned

to ‘the ease (2559-67), as well as to the prosecutor, Mr.

Vincent J. Dermody (2570-72). She edie: testified that

they kept telling her she must be wrong as to the time of

the phone call, that it must have been later (2567, 2585-86,

2592, 2593). . |

- However, Dagmar testified that she was able to fix the

time of the call at between 3:00-and 4:00 P.M. because she-

recalled that it was light outside when the call came; be-

~ cause Gail, who usually went out between 5:00 and 5:30

P.M. was still in the apartment when the call came; and

- because Dagmar also remembered watching the Karly Show

on television some time after the call came, and that pro-

gram started at 5:00 P.M. (2551-52). |

Gail corroborated: Dagmar’s testimony about the call

and the fact that it came between 3:00-and 4:00-P.M. She

fixed the time of the call by reference to the fact that it

came shortly after she had taken her afternoon pill, which

she regularly took. at 3:00 P.M. for her epilepsy (3599-

3600).

On May 8, 1965, 8 days after her court. appearance,

Gail, in a suicide note addressed to ‘‘Whom It May Con-

eern’’, wrote: .

I’m writing this because I know a man’s life is at

' stake—and I know I shall.be dead soon—

For my last words I again want to say I am sorry

to Mark Fein and his family—all of which I do not

- know and never have met * * * but Dee did receive the

phone call from a gal named Gloria on October 10th,

1963 a few minutes after I took my 3 o’clock medicine.

This statement I add to my sworn affidavit and my

sworn testimony in Supreme Coutt.

SoBe RacE ULES BS LLB MRE LG KAR TEA Oe Bs nbibeistia aad

Please forgive me for hiding this evidence by my

constant denials of any knowledge -of this call to Mr.

Dermedy—but I could only think of my parents—and

my husband & then of the baby which I lost anyway.

I hope my testimony has helped clear things up.

I’m not strong enough to face any more pressures .

& embarrassment which this Mark Fein case has’

brought to me—I wanted so much to live, but the

thought of facing people & maybe another trial is more

than I can bear.

Marsha Gail Weiner Tracy

Please just don’t hurt my family & husband any more.

That’s all I ask and pray for (481B- -483B).

The next day she did attempt suicide by taking an grerdose :

of barbiturates; but she was taken to Bellevue Hospital:

and her life was saved.

Dagmar’s husband Sergeant Russell James Generazio,

who was present when Detectives Leman and Lyons inter-

viewed her at their home in New Jersey, confirmed the fact ~

that Dagmar told the detectives that she received the call

in the afternoon between 3:00 and 4:00 P.M. (2469-76).

In. addition, Dagmar testified that in November 1963

and again in January 1964 Gloria came to see her, pleaded

with her. to ‘‘stick with her’’, and promised her that she

would receive something valuable if she did (2552-54) ; and ~

that she told thé prosecutor and the detectives about

these conversations as well (2588-89). Detective Lyons

had even asked Dagmar if Gloria had been trying to

‘bribe’? her (2588-89):

Detectives Leman and Lyons interviewed Dagmar at

length at her home in Red Bank, New Jersey late in Sep- |

16 -

tember 1964 (2299-2307, 2368-73), Thereafter she was in-

terviewed in the District Attor ney’s office on four or five

occasions (2311-19), and on at least three of them she was

interviewed by the prosecutor himself (3354-60). In addi-

tion, Detectives Leman and Lyons were in telephone com-

munication with Dagmar on an almost day-to-day basis.

during October 1964, the month the trial began. Detective

Leman admitted to having had ten telephone conversations

with her during that month, of which five or six were placed

by him from the District Attorney’s office pursuant to the

prosecutor’s instructions, and Leman said he did not know

how many additional times Detective Lyons. had talked to

her (2319-21, 2324, 2438-39). He also admitted that the

detectives discussed with her whether anyone representing

the petitioner had been in touch with her, that they told her

to advise thém if anyone did, and that each time she always

told them no one on behalf of petitioner had been in touch

with her (2321- 24). .

7 At the new trial hearing, both the prosecutor sail Detec-

-_ tive Leman acknowledged that Dagmar had told them about

' Gloria’s telephone call to her. Nor did they - ‘deny that

Dagmar had reported to them Gloria’s two subsequent re-

quests to ‘‘stick with her’’.. They differed only. as to the

time of the call: they testified she had told them the call

was later, between about 6 and 7 p.m., instead of between

about 3 and 4 p.m. (2371-72, 4376- 78, 2430-31, 2451, 3349,

3352-53, 3357- 62).

But whatever the hour. of the call, the suppression of

Dagmar and her testimony violated due process. If Gloria

made her call between 3 and 4 p.m., then she was an accom-

plice; for the decedent ‘had been alive shortly after 4:00

p.m. (278-80), and here was Gloria making plans to dis-

pose of the body before the murder had occurred. More-

over, since 3 to 4 p.m. was considerably earlier than the

time (after 5 p.m.) when Gloria claimed the petitioner

summoned her to the Weissman apartment, this would

have demolished the prosecution’ s case as Gloria presented

it.

Also, if Gloria’s call to Dagmar on October 10, 1963

was between 3 and 4 p.m., the suppressed evidence required

the submission to the jury of the issue whether Gloria was

an accomplice, in which event Section 399 of the New York

Code of Criminal Procedure required that her testimony

be corroborated. The defense requested such an instruc-

tion (2267-68) ; but it was refused by the trial judge on the |

ground that there was no evidence that Gloria was an

accomplice.

However, even accepting the prosecution’s version that

the stated time of the call was between 6 and 7 p.m., the

prosecution’ s failure to disclose it was still highly preju-

dicial to petitioner. First, such disclosure would have

gravely impaired Gloria’s credibility with respect to the

specific events of the day on which the decedent was last

seen alive, as well as her general credibility. Second, Gloria

testified that at this very time (between 6 and 7 p.m.), while ”

she, Broudy and Geri were driving in the station wagon

with the trunk in it, she went upstairs to her own apart-

ment and spent a substantial amount of time there, while

her friends waited outside (1370, see also 791, 905). Had

the prosecution disclosed that it had evidenee indicating

that Gloria had at that -time telephoned Dagmar in an

attempt to borrow a car to remove a box, the jury might

cre

well have inferred that the decedent’s body was not in

the trunk at all but.was elsewhere awaiting removal, and

that, therefore, the entire substance of Gloria’s story was

false. |

It was on September 28, 1964, just three weeks to the

day before the trial began, that there occurred in the

prosecutor’s office a dramatic confrontation between Gloria

and Dagmar; and Gloria’s second recantation. This is

Dagmar’s account of what happened after she told of

Gloria’s call to her on October 10, 1963 at Gail’s apart-

ment:

Q. New tell us what happened, when you repeated

the story. A. After I had finished, Gloria—Gloria

kept interrupting, and she was told to ‘‘shut up”,

you know, so I could finish.

After I had finished, Gloria jumps up, grabs the

phone, and says, ‘‘I’m not going to listen to this.

You’re trying to pin this on me. I am not going

to say anything or listen to this ‘until I call my lawyer

—until I speak to my lawyer.’’

And Mr. Dermody grabbed the phone from her’

and said, ‘‘Well, listen, we’re not going to call any-

body.’’ And he‘told her to-shut up. And after a

couple of minutes they took her out of the room.

Q. Will you describe how ‘she was behaving at

the time. Was she screaming or yelling? ‘A. She

was screaming, I’d say, yelling. (2594-95)

The prosecution’s own descriptions at the new trial

hearing of the confrontation between Gloria and Dagmar

on September 28, 1964 were equally vivid and revealing.

‘Both Detective Leman and the prosecutor testified that -

when Dagmar finished; the prosecutor asked Gloria whether

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this had happened. She called Dagmar ‘‘a goddam liar’’,

got very angry and upset, exploded and ‘‘got very excit-

able,’? screamed hysterically and was told she was upset-

ting the whole building by her lowd noises. Detective Le-

man took Dagmar out of the room, and Gloria said she ;

‘ wanted to call her lawyer (2377-78, 2326-28, 3362-63).

The extraordinary significance of this incident became

apparent when the prosecutor on cross-examination dis-

closed, referring to Gloria:

She then started to yell and scream and accuse,

as I said yesterday, Detective Leman of getting people

to say things that weren’t true. And that’s when she

said that she wanted to speak to a lawyer. We calmed

her down. She spoke with a lawyer. And then after

Dagmar left the room with Detective Leman, she said

to me that she would not testify; and, as a matter of .

fact, she went back to the story she had given us once

before in the end of June that the defendant never

told her that he had shot the deceased and she had

- seen the body in the trunk. | (3496-97)

All of these events, except the bare fact of a recantation

by Gloria on that date, the prosecution in an excess of zeal

concealed from the defense. Both Gloria and Detective.

Leman in their trial testimony concealed the presence of

Dagmar at the September 28, 1964 confrontation.

During Gloria’s cross-examination, trial counsel asked

her who was present when she saw Mr. Dermody on Sep-

Aember 28, 1964. She responded:

A. I think Detectives Lyons and Leman.

Q. Anybody else? A. I don’t remember anyone

else. (1393)

Detective Leman likewise concealed Dagmar’s presence

at the September 28, 1964 meeting in the prosecutor’s

office. When trial counsel questioned him who was present

he answered :

A. There was Mr. Dermody and Detective Lyons, and,

again, there was either Mr. McKeever or Mr. Reynolds

was present. (1638)

Neither during his ‘ cross- examination nor during the

prosecutor’s redirect (1665- -66) did Detective Leman make

any reference whatsoever to the presence of Dagmar

or to her confrontation and-contradiction of Gloria. Like

Gloria, he obliterated every trace of Dagmar from his

. testimony, thereby concealing not only. her but also the

whole: purpose of the meeting.

The Appellate Division in effect admitted the i Amaceuracy

of the testimony of Detective Leman as. well as Gloria in

omitting Dagmar from the: September 28, 1964 meeting

when it stated:

* * * Technically speaking, this testimony was cor-

rect, because, at the time of recantation she was not

. present. But it was not an accurate statement as to -

those present at the interview. (App. X, p. 8la)

But the testimony was not even ‘‘technically’’ correct,

despite the efforts of District Judge Bartels to make it

apped} so (App. I, p. lla). Both Gloria and Detective

Leman were testifying, not about tke time of the recanta-

tion, but about the confrontation between Gloria and’ Dag-

mar, which immediately preceded it. Thus Gloria included |

Detective Leman among the persons present (1392-93).

_ Since Leman was not present during the recantation itself

any more than Dagmar was (1393, 2328), they having left

‘ the room together (3497), Gloria was obviously testifying,

and lying, about the time preceding her recantation, when

Dagmar, as well as Detective Leman, were there. In De-

tective Leman’s case, he could not possibly have referred

to the recantation itself because he admittedly was not

present when-it occurred (1637-38, 3496-97). At the new’

trial hearing Detective Leman expressly acknowledged

that he left the room with Dagmar and did not ‘‘know what

happened after that’’ (2328). At the time when he and

Gloria were present, so was Dagmar.

The respondent cannot possibly claim that the. prosecu-

tion had forgotten about Dagmar. She was the whole

occasion for the September 28, 1964 meeting. Detectives

‘Leman and Lyons were in almost daily telephone communi-

cation with her during Oétober 1964, the month the trial

began. Most important of all,-at the high point of the trial,

on Friday, November 13, 1964, the District Attorney’s office

- concededly made an extensive telephone call to Dagmar at

her home in Red Bank, New. Jersey (Telephone Company

records 2747-49). This particular call demonstrates the

prosecution’s systematic course of suppr essing exculpatory

evidence ; for this cal! was made onthe very same day that

Gloria gave some of her false testimony eliminating Dag-

_ mar froin the September 28, 1964 meeting at the prosecu-

- tor’s office (1323, 1392), and only two court days preceding

Detective Leman’s testimony on November 17 to the same

effect (1558, 1637-38).. Indeed, the call was made on the

_ court day preceding Gloria’s redirect examination on Mon-

day, November 16 (1400), when the prosecutor again re-

verted to the September 28 meeting without in any way

bringing out the suppressed facts (1429-31). It is evident: -

that the prosecution would have handled the matter very

differently if the report from Dagmar had been to the

effect that she had been located by the defense, so that the -

prosecution would have concluded that concealment was no

longer safe.

Moreover, the prosecutor permitted Gloria, not only to

omit all reference to Dagmar; but also to conceal the fact

that the reason for her recantation on September 28 was

her confrontation with Dagmar. Instead, the prosecutor.

let her give as the reason for her second recantation: ‘‘The

idea @f coming here and saying these things that might

hurt this man was against all my. principles’? (1429).

The prosecutor also let Detective Leman conceal the

real reason for Gloria’s second recantation, and on redirect

examination at that. The prosecutor asked Leman to ex-

plain what happened at the time that Gloria had asked to °

phone her lawyer and had requested him to leave the room, ie

and he replied: |

A. Well, she accused me of questioning friends of hers

and being a—she accused me of being a Gestapo agent.

Q. Is that the term she used? A. Yes.

Q: And was it in that connection that she said she

objected to you being present in the room? A. Yes.

(1666)

But the prosecutor knew of Gloria’s less altruistic mo-

tivation; his own account of this event under cross-exami-

nation.at the new trial hearing was:

She was mad at Leman.. She accused Leman of trump-

ing up this story, getting Dagmar to trump up this

23 ad

story about her; and out of spite to Leman, she told

us she wouldn’t testify and said that Fein nevér said

it— (3507)

The prosecutor had to acknowledge at the new trial hearing

that none of these facts had been disclosed either to the

defense or to the court (3509-11).

It is also relevant to note that the petitioner’s counsel

made every effort to obtain Gloria’s attendance at the new

trial hearing so that she could be examined, for the first

time, about the suppressed facts. Three subpoenas. were

issued, but Gloria could not be found (3233, 3235-36). The

prosecutor stated to the court on April 19, 1965 that he

did not have any idea as to Gloria’s whereabouts (3233) ;

but on April 20, 1965 he testified that he had talked to her

on the telephone ‘‘about maybe three or four weeks ago’’

(3386-88). This would have been just about.the time, March

26, 1965, when the trial judge had written both sides setting

_a date for the new hearing (524B-525B). The prosecutor,

knowing of the imminence of the neW trial hearing, which

was largely concerned with events in which Gloria partici-

pated, could. not so easily have lost track of her where-

abouts. The District Attorney had been served with peti-

tioner’s motion papers, and the prosecutor was fully aware

that Dagmar’s testimony in contradiction to that of Gloria,

was to play a cardinal part in the hearing. Concerning

- these circumstances, District Judge Bartels contributes this

observation in his first footnote: ‘‘Gloria was not available

for this hearing and there is no showing that she would be

available for any other hearing.’’? (App. I, p. 2a.)

Further implementing the planned obliteration of every

trace of Dagmar, the prosecution, ‘particularly through

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Detective Leman, frustrated petitioner’s chances of locating

her. Shortly before the trial, defense investigator Whelan

heard of a ‘‘grapevine rumor’’ about a girl named ‘‘Dee’’,

who might have knowledge about the case, and diligently

attempted to obtain information about her (2924-25, 2930).

He ultimately learned, after the trial had commenced, of the

name of Dagmar, and then of Dagmar Finch, and that there

was a rumor that she had told the District Attorney’ s

office that Gloria had called her in order to borrow a car

(2915- 25). However, both the investigator as well as de-

fense counsel were utterly unaware that Dagmar had mar-

ried, that her-name was now Mrs. Russell James Generazio,

and that she had moved to New Jersey (3004-09, 2911-16,

2925-27, 2931). During the trial, this defense investigator

told Detective Leman about the rumor he had heard con-

cerning Dagmar Finch, and asked Leman for her telephone

number and address, so that the investigator could inter-

view her (2914-16, 2918, 2928, 2930, 2936). Leman refused

this request, stating: ‘‘I am not at liberty to give it to

you’’ (2929-30, 2936). The prosecutor, moreover, admitted

at the new trial hearing that he himself had ‘‘become aware

that the defense was looking for Dagmar’’ (3442- 43).

Nevertheless, in his zeal he continued on his course of sup-

pressing any facts which were contrary to what was now

_his stubborn theory that the petitioner had killed the de-

cedent.

District Judge Bartels wrote that ‘‘defense counsel

_knew about Dagmar’’. (App. I, p. 12a.) It is true that

defense counsel in cross-examining Geri Boxer referred

to a. Dagmar Finch; but all that he was trying to do

was to find out the extent of. Geri’s association with °

Gloria’s stable of call girls (765-66). The name had no

particular significance to him; and he never brought it

“ up again, not even when he subsequently — cross-examined

Gloria. Moreover, Geri denied knowing any girl by that

name, although she admitted that she had once met a girl

named Dee (765-66).

Judge, now Chief Judge, Fuld stated the suppression

point with reference to Dagmar in a nutshell in the first

paragraph of his dissenting opinion:

‘IT am reluctant to vote for affirmance in this case

in view of the conceded nondisclosure and conceal-

ment by the prosecution of evidence which, in my

judgment, might well have persuaded the jurors to

reach a different verdict. Although the defendant

points to several. such items, I direct myself to but

one of them. The record revéals that a Mrs. Dagmar

Generazio had given the prosecution information which

was at odds with the trial testimony of the People’s

_ key witness, Gloria Kendal, and that such informa-

tion had not been disclosed to the jury or to the de-

‘fense. Such information suggested—or, at least, so

the jury could have found—that Gloria, rather than

‘the defendant, was responsible for the murder and

thus had a compelling motive to accuse him of the

crime. Since the case against the defendant admittedly |

depended on the testimony of Gloria, there is height-

ened significance in the fact, kewine not revealed,

that Gloria had actually: been confrented with this -

information, as well as by Mrs. Generazio herself, in

the district attorney’s office immediately before: she

recanted (for the second time) her story against the

defendant. (App. VI, p. 56a)

Circuit Judge Waterman found Chief Judge Fuld’s dis-

senting opinion ‘‘most persuasive’’; but nevertheless con-

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curred in District J udge Bartels’ opinion on the erroneous

ground that this was a state rather than a federal prosecu-

tion:

I find the dissenting opinion of Chief Judge Fuld

of the New York Court of Appeals, 18 N.Y. 2d 162,

177, 272 N.Y.S. 2d 753, 763 (1966), most persuasive.

I, with him, believe that it is possible that the jury

might have reached a different verdict if the testi-

mony of Dagmar Generazio gave at the post-trial hear-

ing had heen presented at the trial. Nevertheless, I

recognize that petitioner was convicted’‘in the New

York state courts and not as a result of a federal

prosecution, and as we are not therefore, writing upon -

‘a clean. tate: -I am willing to concur in the affirmance

of the dieiston below. (App. II, p. 23a)

On the prosecution’s suppression of Dagmar and her

account, District Judge Bartels has this comment: ‘Mr.

Blinder, one of the defendant’s counsel, stated at the post-

trial hearing that he did not pursue the matter because he

believed that if Dagmar were important to the defendant’s

case, the prosecutor would inform him of that relevance”?

(App. I, p. 13a). But this comment compounds the un-

constitutionality of the prosecution’s suppression of ex-

culpatory testimony.

What Mr. Blinder actually said, in answer to one of the

prosecutor’s questions on cross-examination, was. this:

‘‘A. And we [defense counsel] had assumed that if she

was a valuable defense witness, you [the prosecutor] would

Pa given us her name, as you had the name of Sandra

ae (3026).

Defense counsel did place reliance on the prosecutor ;

and the prosecutor spoon-fed defense counsel just enough

information to preserve this reliance. But the’prosecutor

did not tell defense counsel what he did not want them to

know. He did not tell them about Dagmar and her con-

frontation with Gloria; and this despite. the fact that he

knew ‘‘that the defense was looking for Dagmar.’’ (3442-

43)

In this connection, Mr. Blinder further testified that he

did not know of Mrs. Generazio until he read Mr. Louis’

Nizer’s motion for a new trial (3003). This was weeks

after the trial was over. Mr. Blinder and his co-counsel,

Mr. Kleinman instructed their investigator Mr. Whelan

to see if he could find a witness described as D (3004-05).

Mr. Whelan reported back to them from time to time on -

his efforts to locate the witness described as D; but he was

never able to trace her (3005). If the prosecution’s sup-

pression of Dagmar and her confrontation with Gloria do

not make out a due process violation, then it would be

difficult to conceive of a suppression of exculpatory evi-

dence which would.

c. Sandra Ede. The prosecutién’s zealous suppression

. of Dagmar and her exculpatory testimony was but one of

a number of such instances. It was simply the most glar-

ing of the lot. Another instance of suppression was that

of Sandra Ede’s exculpatory testimony.

Gloria testified that when she received the call from the |

petitioner on the afternoon of October 10, 1963, the last

_ date the decedent was seen alive, Sandra was in Gloria’s

apartment (1133-34). Geri testified that when she went to’

p eeaereecren

DEN

te he aie APR Kees

Gloria’s apartment on that day to meet Gloria she was told

by Sandra over the intercom to meet Gloria at the Weiss-

man apartment, and that was the oceasion for her going

there (705-707, 783-86).

After the prosecutor rested his case, he furnished de-

fense counsel with Sandra’s name and address; but at the

same time,he represented to the defense that when Sandra

had been interviewed at the District Attorney’s office, she

‘claimed to have had no recollection of the events that

allegedly transpired on October 10, 1963’’ (1747). He.

asserted that ‘‘it is for that reason that the People did not

call her as a witness’’ (1747). In the light of this repre-

sentation, the defense did not call her as a witness either.

The prosecutor’s representation about Sandra’s lack of

knowledge was, to say the least, disingenuous. Although

Sandra had said that she had no recollection one way or

the other about the events of October 10, 1963, she had also

said that she was not in Gloria’s apartment on October 10,

had never given messages on the intereom (3175-76), could

not have. given a message to Geri to mect Gloria at the

Weissman apartment because its existence was then un-

known to. her (3151), and that on the afternoon in question

she was in her own apartment.to see to the installation of

a telephone. _

Shortly after her first interrogation in March 1964,

Sandra was brought to the District Attorney’s office where -

she repeated what she had stated before, and added that

she was not even certain that she had been in Gloria’s

apartment at all on October 10. In October she had moved

out of her mother’s home in the Bronx and taken an

apartmént of her own on Palisades Avenue in Riverdale.

On one day in either the first or second week of the month

she had had a telephone installed in her new apartment.

She knew that on that day she had not gone to Gloria’s

apartment. The telephone installation had taken much

longer than it ordinarily would because of equipment diffi-

culties, and it was late in the afternoon by the time it was

completed. She could not possibly have gotten to East

73rd Street by 5:30 p.m. » aitBougn she did not know what

date it had been.

Detectives checked with the New York Telephone Com-

pany and discovered that her telephone had been installed

on October 10, 1963. Sandra was again called to the Dis-

trict Attorney’s office and learned this fact from the prose-

cutor. She again insisted that the installation had taken

place in the-afterroon so she could not have been in,

Gloria’s apartment at all on October 10. At the new trial

hearing she testified: |

A. The only thing I can reniember about October 10th

is that I had a telephone put in.

Q. You had a telephone call—a telephone installed?

A. In my apartment. |

Q. In your apartment? A. Yes (3160)

* * *

Q. Well, in that connection can you tell us what

time the installation’ was completely finished? A. No.

But I know I had a lot of difficulty because they. brought

the wrong phone and the wrong extension, so it took

much longer than it ordinarily would.

Q. Yes. And as a result of this difficulty that you

‘remembered, can you give us any idea what time the

+ telephone man completed his work and left? A. Some-

time late in the afternoon. . I don’t remember exactly. |

Pon

DMT ERE 5 FANT AO MLL Ee te AIOE

IEPA SLE LEE GI LY GELS

PREPPY

EEA LGN LE LENO BLEED (ORAL IONE:

i Sa el ae

The Appellate Division itself found, based on the evi-

dence given at the new trial hearing by, among others,

Detective Leman (2358-61, 2413-14, 2420-21) :

On the motion for a new trial it was established

that the district attorney interviewed Miss Ede and

she refused to testify. She stated that if called she

would testify that she was not in the apartment at the

time and consequently never received the message ;

that she had never spoken to Miss Boxer on the inter-

com; and that on the afternoon in question she was in -

her own apartment to see to the installation of a tele-

phone. .(App. X, p. 75a)

This information was highly material. It cast further

doubt upon the testimony and credibility of Gloria. It also

cast doubt upon, Geri and her account as to how she came

to meet Gloria at the Weissman apartment on October 10.

The significance of Sandra’s statements to the prosecu- .

tion is manifest. Since she was not in Gloria’s apartment

and did not give Geri any message to go to the Weissman.

apartment, Geri must have gone there pursuant to instruc-

tions received from Gloria earlier that afternoon. It fol-

lows that Gloria was planning to be at the Weissman apart-

ment prior to and at the very time Markowitz was-allegedly

murdered. This squarely corroborates the statement in

the petitioner’s affidavit, that it was Gloria who called him

to the Weissman apartment, not he who called her.

d. The Bennett-McNair Testimony. A-'third instance

of suppression occurred .with reference to the exculpatory

testimony of Mrs. Bennett and Mrs. McNair. Mrs. Bennett,

a 32-year-old widow, her mother Mrs. Vera McNair, and

her 3-year-old daughter Constance were tenants of an

apartment at 406 East 63rd Street. In the words of the

Appellate Division: :

* * * They occupied an apartment in the rear of the

building, whereas the ‘‘Weissman”’ apartment was in

the front. They were interviewed by the police and

told them that on the afternoon of October 10 they

heard pistol shots which they believed emanated from

the alleyway beneath their windows and in the rear of

the house. Concededly the defense also interviewed

these ladies before the trial but it is claimed they never

revealed this information. (App. X, p. 77a)

The apartment which the .two women occupied was on

the third floor in the rear of the building, while the alleged

murder apartment was on the fifth floor in the front of

the building (2826-27). . Thus it would seem that the shots

‘which these women heard could not have been fired there

(2826-27). Nevertheless, the prosecution concededly did

not disclose the statements of these women to the -defense

(3413). . =e

When Mrs. Bennett and Mrs. MeNair furnished their

information to the police and’ the prosecution, they were

‘told in effect to keep ‘‘their mouths shut about this”? (3413,

2349, 2840, 3076). At the new trial hearing, Detective

Leman confirmed this; and admitted. as well that he con-

sidered the information which they gave him to be ‘‘im-

portant’? (2348). |

Also, at the new trial hearing: one of the petitioner’s

attorneys, who had interviewed the two women prior to.

the trial, emphatically and repeatedly swore that they at

no time told him that they had heard shots on the after-

noon of the murder (2992). This was in conformity with

the testimony of the women that they had been warned by

: _the authorities not to divulge this information to anyone

(2840, 3076). \Andeed, Detective Leman and the prosecutor

both conceded that they had given the women such a warn-

ing (3413, 2349). Consequently, it was not until.after

the trial that Mrs. Bennett ‘and Mrs. NeNair believed it-

permissible to tell the petitioner’s new counsel, who were

interviewing all of the tenants of the building, about the

shots that they had heard coming from the direction exactly

opposite to that of the Weissman apartment.

Mrs. Beniett and Mee, ‘MeNair further told the authori-

ties about a trunk they saw in the building about the time

of the murder, and one of them testified that she inad-

vertently (and contrary to instructions she had received

from. the authorities) _Miscussed the trunk with defense

counsel (2960). She niaintained, however, that she im-

mediately realized she had violated instructions and refused

to furnish any further information to counsel (2961).

e. Detective Kelly’s Ballistics Report. A fourth in-

stance of supptession occurred when the prosecution failed

to make known to the defense, Detective James, E. Kelly’s

ballisties report (150B). This report concluded that there

was no evidence of any bullets in the Weissman apartment.

That tended to show that the shooting did not occur there,

an inference supported by the Bennett-McNair testimony

as well as other evidence.

The New York Court of Appeals took the view that the

Keliy report was ‘fully available to defendant’’ (App. V,

p. 49a). The New York Court of Appeals was mistaken.

Although the defense did serve a gencral subpoena for

reports, which brought them physically into the courtroom,

it could not, under the procedure applied, demand or inspect

one of these reports unless the defense spetifically requested

it, and the defense could not request the Kelly report pre-

cisely because the prosecution had not disclosed its exist-

ence. (Of course, the prosecutor did not put Detective

Kelly on the stand.)

Each of the prosecution’s suppressions and conceal-

ments, and sponsorship of false or misleading testimony,

constituted a violation of the petitioner’s ‘constitutional

rights. Cumulatively, their effect was even greater? «All -

of the suppressed or withheld evidence would clearly have

assisted the defense in probing into the basic facts. “Even _

more importantly, it might have persuaded the jury (a)

that. Gloria’s twice-recanted, crucial testimony against pe-

tioner was false, (b) that Gloria, not petitioner, committed

the murder, or, at least, was directly implicated in it, (¢)

that arrangements, for disposing of the. body were being

made by Gloria or others before petitioner allegedly com-

mitted the crime,.(d) that the crime oecurred elsewhere

than in the Weissman apartment, or (e) that, in'any event,

a reasonable doubt existed as to petitioner’s guilt.

11—The Denial of Pretrial Discovery

The prosecution compounded its suppression of excul-

patory evidence by opposing, and defeating, defense coun-

sel’s effort to have a pretrial examination of the bullets

found in the decedent. One ean ask why in ‘the name of

fundamental fairness defense counsel should not: have been

able to inspect these bullets.

at OO MY 8 Or ee tM

ot lin 5 ade Sade Pa i ai a A a ad oe bewrre

2 * 9

‘Four bullets were found in the body of the decedent.

The defense made a timely motion for pretrial discovery ,

and inspection of the bullets (31A-38A), which the prosecu- '

tion.opposed (7A, 42A), and the court denied (30A). At

the trial the prosecution’s . ballistic witriess, Detective

Walter J. Haase, in testifying about the bullets that he had

examined, stated that they came ‘‘from a firearm with a -

right six rifling’’ (266), thereby conveying to the jury the

impression that ail four. bullets were shot from a single

firearm. Having been denied all opportunity for its own

expert to irispect the bullets before the trial, the defense

was in no position to assess Haase’s testimony or to cross-

examine him adequately. The prejudice hecame apparent

later when,. in support of the motion for a new trial, peti-

tioner. was able to tender expert evidence that Haase’s

testimony had been ‘‘erroneous and misleading,’’ in that

only ‘one of the four bullets could he identified as having

been fired from a firearm with a ‘‘right six rifling’? (271B-

273B). The New York Court of Appeals nevertheless held

(first amended remittitur, App. VII, p. 59a) that peti-

tioner’s constitutional rights*were not violated. . -.

‘I1—The Admission Into Evidence of Illegally

: Seized Material.

- The prosecutor further compounded his suppression of

exculpatory evidence and his successful efforts in defeating

Befense counsel’s motion to have a pretrial examination of

the bullets found in the decedent, by an equally successful

effort in getting into evidence a chair (Ex. 04) which had

been illegally seized. It is not disputed that the- chair, which

had been stored in a storage warehouse under the petition-

teas 35

‘er’s pseudonym Weissman, was seized by detectives with-

out a searth warrant, without anyone’s consent, and over

the protest of the warehouse manager (1536-38, 390B-393B).

When the prosecutor first sought to introduce the chair

in evidence, defense counsel objected specifically on the

ground of unlawful search and seizure and he also moved

_ to suppress the evidence ‘‘and if necessary to hold a hear-

ing’’ (588-89). The prosecutor unequivocally represented

to the court and defense counsél (590) that ‘‘the arrange-

ments to. take the furniture, including this chair, out of the

apartment were made by this Gloria Kendal at the defend-

ant’s request.’’ The court itself confirmed this, sandbag-

ging defense counsel in the jury’s presence with this ques-

tion and comment :

You want to have a nine day hearing on it? He

says Gloria Kendal took the furniture and put it there

at his or (590).

The court nevertheless grudgingly agreed to hold a hear-

ing (591), which under the applicable New York statute,

Code of Criminal Procedure, §813-d3 (App. XIII, p. 115a)

- was required to be held ‘‘in the absence of the jury.’’ The

prosecutor then stated that he would defer the introduction

of the chair until a later time, and it was agreed and under-

stood that petitioner would ‘‘have an opportunity to raise

the question * * * later’? (593). The prosecutor counted on

. the fact that the chair would ultimately slip into evidence;

and this is exactly what happened.

Gloria testified that she arranged for the storage of the

Weissman apartment furniture, including the chair, under

eee

tal

ae | Lal

‘the name Weissman, pursuant to netitioner? s instruction to

her to ‘‘get rid of the furniture’’ (1168-74, 1191-94). At the

conclusion of Gloria’s testimony, the prosecutor again

offered the chair’ in evidence, and the court received it

over defense counsel’ s objection (1193 . Defense counsel

then moved to strike the che air from evidence and reminded

the court of the prior understanding. Nevertheless, the

court denied the motion semmari!y and without a hearing

(1194-95). - ;

The stage was-now, set for another: injustice. The chair

- contained on its seat, who knows from what souree, a speck

of human blood so minute that it could not be typed (1719-

20). The prosecutor in his summation now used this in-

finitesimal trace of human blood on the seat of the chair

to corrobate Gloria’s testimony that Mark Fein had mur-

dered Markowitz in the Weissman apartment. He pointed

to the chair as having been ‘‘tested and found to have

human blood’’ on it (2146-47).

But on the new trial motion the petitioner submitted the

affidavit of Dr. Sidney B. Weinberg, which categorically

stated that, in view of the nature of the bullet wounds, the

decedent must have shed a considerable amount of blood

_(230B-233B).°

The Appellate Division itself ack nowledged that the

tiny speck on the seat of the chair was too minute to serve

as vroof that the homicide had taken place in the apart-

ment:

*** From the medical testimony it is fairly conclusive

that the deceased must have shed a considerable

quantity of blood. None of the three witnesses who

were. in the apartment on the evening of October 10

saw any blood on the furniture, and an examination

of the furniture disclosed oily one minute speck on a

chair. This speck was so smail that it could not be

typed. As proof that the homicide took place in the

apartinent, it can be disregarded. (App. X, pp. 71la- -

72a) .

Nevertheless tlic prosecutor got'his conviction; and the

state courts sustained it.

It was only in denying the motion for a new trial that

the trial judge as an afterthought accepted the theory that

- the petitioner had ‘‘abandoned”’ the chair (App. XI, p.

80a). Relying solely on this ground, the New York Court of

Appeals rejected the petitioner’s constitutional contentions

and upheld the prosecution’s use of the evidence (App. V,

p- 43a). The Second Circuit followed suit (App. I, p. 19a).

- IV—New York’s Unconstitutional Blue Ribbon Jury Statute

~ We are but halfway through the number of unconstitu- a

tional means that the People used in the instant case to

get a judgment of.conviction against the petitioner. Yeta

_ fourth unconstitutional means was the use of a blue ribbon

jury. The prosecution moved for a special jury under the

New York Judicisry Law, §749-aa, as then. in effect and

applicable to counties having a population of one million

or more inhabitants (7.e., only certain counties in New York

City). New York subsequently repealed the special jury

statute in its entirety; but the repeal was effective Septem-

ber 1, 1965, and hence inapplicable to the petitioner’s trial

and conviction. The petitioner opposed the motion (173A-

176A). He urged the court to follow Schuster v. City of

New York, 25 Mise. 2d 670, 205 N.Y.S. 2d 190 (Sup. Ct.,

SEE GON PONE EIEN A SOOO: SALE RI TNE. HINA Oy

NOTES IEG IRA OATS

Sn hat g

PA eT Peete

Kings County 1960), which, in denying the motion. for a _

special jury in a civil case relied on ihe disseriting opinion

in Fay v. New York, 332 U.S. 261 (1947). The petitioner

quoted Schuster: ;

There can be no true equal representation of a com-

munity if jurors are selected because of an alleged

economic, social, or superior educational status. * * *

There is no justification today for a jury system which

divides citizens into special or blue ribbon jurors and

ordinary or general jurors. Such discrimination short-

circuits our democratic processes. * * *-25 Mise. 2d at

684, 205 N.Y.S. 2d at 200.

The petitioner then alleged (175A) that under the Constitu-

tion of the United States and the command of the Supreme

Court of the United States, the New York special jury

statute was ‘‘no longer valid or viable.’’ The prosecution ’s

motion was nevertheless granted (167A), and special jury

was empaneled at the petitioner’s trial (164A-16CA, 177A-

178A).

There were 400 persons on the special jury panels (250

on the original panel and 150 on the additional panel)

from which the special jury was drawn; and it is obvious

from an inspection of the lists that the panels were excep-

tionally. top-heavy with professional and executive people,

that they contained very sparse representation of ordinary

workingmen. or daily wage earners—particularly, ‘‘blue

collar’? workers, and that they contained only 11 women

out of the 400 persons. The result was the selection of a

jury composed of people likely to be unduly influenced by

their moral predilections against the petitioner.

The petitioner. argued the invalidity of New York’s blue

ribbon. jury system both in the Appeilate Division, First

Department, as weil as in the New York Court of Appeals.

The First Department felt that the point did not’ merit

discussion. 24 A.D. 2d at 33, 263 N.Y.S. 2d at 631. The

New. York Court of Appeals held:

Defendant’s contention that the use of a special

jury deprived him of his constitutional right to a fair

trial has been considered before and found to be with- |

out merit (May v. New York, 332 U.S. 261; Moore v.

New York, 533 U.S. 565). 18 N.Y. 2d at 168, 272

N.Y.S. 2d at 756.

' After the federal Supreme Court’s denial of review on

January 23,. 1967, the petitioner by motion requested the

New York Court of Appeals.to amend its remittitur, so as

to state expressly that the Court of Appeals had necessarily

passed upon the question of the validity, under the Con-

stitution of the United States, of the New York blue ribbon

Jury statute (formaer Section 749-aa of the New York Judi-

ciary Law) and had determined that. this statute was‘not _

unconstitutional. Petitioner’s motion in the New York

Court.of Appeals set forth the facts relating to the presen-

tation of the blue ribbon jury issue in the New York courts. ©

The motion showed that the record (174A-175A) left no

doubt that the validity of the New York blue ribbon jury

statuté, under the federal Constitution, had been expressly

drawn in question by a timely pleading filed by the peti-

tioner in the trial court in advance of trial. The motion also

argued that the New York Court of Appeals, in deciding

the blue ribbon jury question on the authority of Fay v.

New York, 332 U.S. 261 (1947), and Moore v. New York,

333-U.8. 565 (1948), must surely have intended to deter-

EEL OY YP ONIN TASTE IPL LIE YIN rH

SOT I ee ee Te Ne eR

AREYOR IRENE epee ENR

mine that the New York biue ribbon jury statute, which

. was applied to petitioner, was a: constitutional, statute—

that is, that the statute was not subject to constitutional -

infirmity under the provisions of the federal Constitution.

In the New York Court of Appeals the District Attorney

vigorously opposed petitioner’s motion to amend the remit-

titur. The District Attorney claimed, among other things,

that the Court of Appeals had not passed upon the validity

of the blue ribbon jury statute. The New York Court of

Appeals, however, which was in a position to state authori-

tatively what it had passed upon, rejected the District

Attorney’s contention, and wnanimously granted petition-_

er’s motion on February 21, 1967. People v. Fein, 19

N.Y. 2d 691, 278 N.Y.S. 2d 880. The New. York Court of

Appeals held: ‘ ; 4

Motion to further amend remittitur granted. Re- |

turn of remittitur requested and, when returned, it will

be further amended by adding thereto the following.

Upon the appeal herein there was presented and neces-

sarily passed upon the following question under the

Constitution of the United States, viz.: Appellant con-

tended that the order of the trial court, subjecting him

to a trial before a special jury rather than a general

jury, denied him a fair trial and- deprived him of due

process and the equal protection of the laws. The

Court of Appeals held that appellant’s constitutional

rights were not violated and that former section 749-aa

of the Judiciary Law authorizing such a trial is con-

stitutional. (App. VIII, p. 62a)

V—The Trial Judge’s Siiaeiieaie to the om Violated

the Petitioner’s Right of Silence.

Yet a fifth violation of the petitioner’s constitutional

rights occurred when the trial judge in his statements to

the jury impaired the petitioner’s privilege against self-

incrimination in violation of the Fifth and Fourteenth

~Amendments. The trial judge misinformed the jury:

When you get to the ‘trial in a civil case and the

defendant does not open his mouth, does not come

forward to defend himself, he has to lose the ease.

That is civil law. But there is no such thing in crim-

inal law. (59) | bane

This gr atuitous i maccuracy (even under “eivil law’’ a de-

fendant’s silence is not fatal) was promptly followed by

other remarks which heightened its prejudice:

If a person accused of crime wishes to testify he

- has the privilege to do so. That he may exercise. He

does not have to. And it may not be commented upon

at any time if he does not do so. Aas

* *% *

In his charge to the jury the trial judge again com-

mented upon the failure of the petitioner. to take the stand:

Now, a defendant has a right to go upon the wit-

- ness stand and testify in his behalf, if he chooses to do

so. If he does not choose to do-so, the law expressly

provides that no presumption niiverse to him is to

arise from the mere fact that he does not place himself

upon the witness stand. Therefore, there will be no

discussion of any kind concerning that. (2179)

SE BAINES SO LOR TUR TH Ee er

These statements in effect indicated to the jury that they

could draw an adverse inference from the. petitioner’s

- failure to take the stand. Thus they violated his right of

silence under the Fifth and Fourteenth Amendments.

Vil—Prejudicial Publicity, Emanating from the Police

' and the Prosecution

The People engaged in yet one more violation of the

petitioner’s. constitutional rights in order to get his con- *

‘viction: prejudicial publicity. In this case, as in Sheppard

v. Maxwell, 384 U.S. 333 (1966), the news media had a field

day. . Immediately after the petitioner’s arrest.on February

21, 1964, .the police launched an avalanche of eharges, in-

_ formation and misinformation to the press which had the

effect of convicting the petitioner in the eyes of the public

before he was tried, and of vitiating his right to a fair trial.

The police even made claims of evidence which the prosecu-

_tion never was able to proffer at the trial. For ‘example,

the newspapers were given ‘‘information”’ that petitioner

had put the murder gun in the duffle bag (103A). At the

trial the prosecution was unable to produce any such evi-

dence. Or again, information was given to the press that

the rug cut out of the floor was ‘‘bloodstained’’ (103A).

Even Carmella, alias Gloria testified, however, that she did

not see any blood on the pieces of carpet (1355-56).

Indeed, the avalanche of charges, information and mis-

information began with a two-hour press conference held

by detectives on the morning of the arrest (S9A).

These circumstances were brought to the court’s atten-

tion in connection with a bail application filed by defense

43 | '

counsel on Mardh 2, 1964 (S5A-89A), The court denied bail

(89A, 7A), but took no steps whatsoever to halt the police

press campaign nor to institute safeguards to assure that

such severely prejudicial activities by the prosecution

would cease. In fact they did not cease. Defense counsel

on June 1, 1964, in renewing the bail application, brought

to the court’s attention two lengthy and lurid artieles which

had appeared-in the June issues of True Detective Maga-

zine and Official Detective Stories (90A-108A). Examina-

tion of these articles makes it clear that the authors were

materially as sted by Detectives Leman and Lyons—the:

Same police detectives who were later involved in the Dag-

mar episodes. These detectives were quoted at length in

a demonstration of their ingenuity and brilliance in solving

the case. Again, the court took no steps to bring a halt to

such activities. Later, even during ‘the trial, it would

appear that the detectives maintained a close relationship

with the press, and publicly prejudicial to the petitioner

continued to be printed. A lengthy article was published

in the New York Herald Tribune of November 18, 1964

(174B), which from its pallet,

> must-surely have been

inspired by Detective Lyons. Because of its particularly

prejudicial nature, defense counsel promptly brought it to

the court’s attention (1675-78). One of the jurors actually

admitted having seen this article, though he claimed he had

not ‘read’? it (1677). Despite this, and despite the pres-

ence of alternate jurors from whom a substitute juror

could have been selected (1678), the court did not remove

that juror.

PRA i I re atm

The ‘petitioner’s new trial motion urged the constitu-

tional question under the due process clause of the Four-

‘teenth Amendment (28B, 140B-147B, 154B-174B). The

New York Court of Appeals {App. v,>. 43a) sustained

the trial judge’ s ruling (App. XI, p. cea rejecting this

contention.

B. Basis for Federal Juslediction

The basis for federal jurisdiction in the federal court of

first instance is 28 U.S.C. §2254. All six of the petitioner’s

constitutional deprivations were argued in the state courts.

All six were argued before Judge Palmieri, either on the

petitioner’s request for a writ of habeas corpus or on his

motion for a cértificate of probable cause. Indeed, the

petitioner in support of his motion for a certificate of prob-

able cause submitted to Judge Palmieri as well as served «

on the respondent, the page proof of what became his brief

in the United States Court of Appeals for the Second Cir-

cuit.

° : . —

REASONS FOR GRANTING THE WRIT

The prosecution’s suppression of exculpatory evi-

dence, whether due to inadvertence, negligence, will-

fulness, or an excess of zeal, and whether or not de-

fense counsel made a request: for such evidence, and

whether more diligent or more fortunate defense coun-

sel might Possibly havé come upon such evidence on

his own, is a violation of the due process clause of

the Fourteenth Amendment.

The trial of a criminal case is no longer a game. It is

an effort to do justice. To an ever greater extent. prosecu-

2 5 ’

tors have been required to furnish defense: counsel with ,

exculpatory evidence in their possession. In Brady v.

Maryland, 373 U.S, 83 (1963), the federal Supreme Court -

explained its progression from Mooney v. Holohan, 294 U.S.

103 (1935), through Pyle v. Kaisas, 317-U.S. 213 (1942), to

_ the point where any suppression of evidence favorable to

the defense by a prosecutor constitutes a violation of due

process. In Brady the petitioner and a companion Boblit

were involved in a murder. Boblit gave a‘statement to the

prosecution that he was the one who did the actual killing.

This statement was withheld by the eprosecution. Both

the Maryland Court of Appeals as well as the United States

Supreme Court ruled that this suppression constituted a

violation of due process. The federal Supreme Court held

and said:

We “agree with the Court of Appeals that suppres-

sion of this confession was a violation of the Due

Process Clause of the Fourteenth Amendment. The

SSL aS a

Court of Appeals relied in the main on two decisions

from the Third Circuit Court of Appeals—United

States ex rel. Almeida v. Baldi, 195 F. 2d 815, 33 A.L.R.

2d 1407, and United States ex rel. Thompson v. Dye,

221 F. 2d 763—which, we agree, state the correct con-

stitutional rule. 373 U.S. at 86.° = *

The law on the duty of the prosecution to disclose to the.

defense evidence favorable to it, Judge, now Chief Judge,

Fuld stated well in two paragraphs in his dissenting opinion *

in the instant case:

The concept of fairness, of due process, imposes

upon the prosecution a duty to apprise the defense

of evidence favorable to the accused, particularly when

*such evidence contradicts the testimony given by the

People’s witnesses in open court. (See Brady v. Mary-

land, 373 U.S. 83, 87; Napue v. Illinois, 360 U:S. 264;

‘Alcorta v. Texas, 355 U.S. 28; Mooney v. Holohan, 294.

U.S. 103; ‘Levin v. Katzenbach, 363 F.2d 287; Barbee

v. Warden, 331 F.2d 842; People v. Robertson, 12 N.Y.

2d 355; People v. Zimmerman, 10 N.Y. 2d 430; People

v. Savvid+3, 1 N.Y. 2d 554.) This duty persists even

though the defense might, by dint of a little more

effort, have independently uncovered the evidence in

question and even though the district attorney regards

it as lacking in probative force or worthless. The

_ prosecution is not privileged ‘‘to decide for the court’

- what is admissible or for the defense what is useful’’.

(Grifin v. United States, 183 F.2d 990, 993.) coe

The argument that disclosure would not have -

_ changed the verdict ‘‘overlooks the variant functions

to be performed by jury and reviewing tribunal’’.

(People v. Savvides, 1 N.Y. 2d 554, 557, supra.) It is

for jurors, not judges of an appellate court such as

ours, to decide the issue of credibility, and we should

be particularly observant of this principle in the case

47 ee

before us, where disclosure might well have impeached

the one witness without whom there would admittedly

have been no prosecution. In this view, it ‘‘matters

little’? that the district attorney’s silence was not the

result of guile or a desire to prejudice. (People v.

Savvides, 1 N.Y. 2d 554, 557, supra.) ‘‘The principle —

, of Mooney v. Holohan [294 U.S. 103, supra],’’ as the

. Supreme Court has pointedly observed (Brady v.

Maryland, 373 U.S. 83, 87, supra), ‘‘is not punishment

of society for mipdosile of a prosecutor but avoidance

' of an unfair trial to the accused.’’ .

I would reverse and order a new trial. (App. VI,

pp. 56a-57a, 18 N.Y. 2d,at 177-78, 272 N,Y.S. 2d at 764,

281 N.E. 2d at 281-82.)

Nor is a request for the specific exculpatory evidence

required before the government,has a duty to disclose.

As Mr.-Justice Fortas stated in his concurring opinion in

Giles v. Maryland, 386 U.S. 66, 102 (1967):

.* * * T see no reason to make the result turn on the

adventitious circumstances of a request. If the de-

fense does not know of the existence of the evidence,

it may not be able to request its production. A murder

trial—indeed any criminal proceeding—is not a sport-

: ing evert. . ?

Nor. is it the prosecutor’s job, as Judge, now Chief

Judge, Fuld also indicated in his dissenting opinion in the

instant case to pass upon the worth of exculpatory evidence

or its credibility. That job is for defense counsel and the

jury. ‘Or as this Court put it in Brady v. Maryland, 373

U.S. 83, 88 (1963), a course.which permits a prosecutor

to pass on the worth or credibility of exculpatory evidence

“easts the prosecutor in the role of an architect of a pro-

ceeding that does not comport with standards’ of justice.’’

District Judge Bartels writing for the Second Circuit

chose to treat this point as if it were a motion for a new

trial based on newly discovered evidence (App. I, p. 15a).

He is mistaken. It is not. This is a case of suppres-

sion; and presents a federal constitutional question gov-

erned by Chapman v. California, 386 U.S. 18 (1967), and

the cases which followed it. Chapman specifically held ‘‘that

before a federal constitutional error can be held harmless, .

the court must be able to declare a.belief that it was harm-

less beyond a reasonable doubt.” 386 USS. at 24.

The Court has repeatedly reaffirmed its Chapman rul-

ing. In Burgett v. Texas, 389 U.S. 109 (1967), the Court

reversed a conviction because of a reference to a constitu- —

tionally infirm prior criminal conviction, and did so despite

-the fact that the trial judge had instructed the jury to dis- .

regard it. . ;

In Anderson v. Nelson, 390 U.S. 528, 525 (1968),-the

Court ordered habeas corpus relief because the Court could

not say that a violation of one of petitioner’s constitutional

rights was ‘‘harmless beyond a reasonable doubt,”’ in the

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

Again, in Fontaine v. California, 390 U.S. 593 (1968), the

Court ordered habeas corpus relief for a state prisoner

because the Court could not say that a violation of one of:

the petitioner’s constitutional rights was har mless beyond a

reasonable doubt. The Court reasoned:

Subsequently, we decided Chapman v. California,

386 U.S. 18 (1967), which disapproved of California’s

harmless error rule as applied to federal constitutional |

errors. Thereafter, we granted a petition for a writ

of. certiorari in the instant case, vacated the judgment.

below, and remanded for further consideration in light

of Chapman. 386 U.S. 263 (1967). On remand, the

District Court of Appeals reinstated its former opinion

except that it rewrote the portion dealing with harm-

less error. This time it recited that the constitutional

error in this case was harmless ‘‘beyond a reasonable

doubt’’—the standard announced in Chapman.

*° * _ #

* * * it was error for the court below to hold that the

comments of the prosecutor and the trial judge were

harmless ‘‘beyond a reasonable doubt.”’

* * *

> these circumstances, the State has not met its

burden of proving beyond a reasonable doubt that the .

erroneous comments and instruction did not contribute

to petitioner’s conviction. Chapman v. Catifornia, 386 -

USS., at 24, 25-26.

390 U.S. at 595, 596.

The California Supreme Court. finally g gave Chapman

v. California, 386 U.S. 18 (1967), full application in People

v. Johnson, 68 Cal. Rptr. 599, 441 P. 2d il (1968), cert.

denied, 393 U.S. 1051 _—- ,

The effect of the formulation of District Judge Bartels’

would be that, while issues of credibility are normally to

be tried by the jury in criminal cases, nevertheless an excep-

tion exists which permits the judge to determine such

credibility matters once and for all when, as here, the

prosecution has suppressed or concealed or withheld ma-

terial evidence until.after the trial. This would be not only

a fundamental invasion of the right to trial by jury and a

violation of the due process clause, but a violation of the

equal protection clause as well. For then the question |

would go not only to whether the Constitution requires

a state to accord a Sixth AmendMent type of jury trial -

to a defendant charged with murder, but also ‘‘to the.

nature of the jury trial which the Fourteenth Amendment

commands when trial by jury is what the State has pur-

ported to accord’’. Turner v. Louisigna, 379 U.S. 466,

471 (1965). It would involve a totally arbitrary and un-

reasonable ciassification. Compare Baxstrom v. Herold,

383 U.S. 107 (1966). It would take away a substantial

portion of the benefits of trial by jury from those de-

fendants, and only from those defendants, who had the

misfortune to be victimized by the prosecution’s wrong-

’ ful conduct./ Moreover, it would reward the prosecutor for

indulging in such wrongful conduct. If the prosecutor’s

suppression were not detected, the conviction would stand;

and if it were detected, the prosecutor would then obtain

a determination solely from the judge, rather than from

a jury, as to the credibility of the witnesses he concealed.

Surely there is no room under the Constitution for such

a scheme.

The denial of pretrial discovery and inspection of

the bullets found in the decedent violated the due

process clause of the Fourteenth Amendment.

We submit that the traditional view that denials of pre-

trial discovery lack constitutional dimension is anomalous,

unjust, obsolete, and contrary to the modern trend towards

full disclosure. The modern trend is indicated for example

in the. enlarged discovery rights in federal criminal trials in

the 1966 amendments to Rule 16 of the Federal Rules of

—

Criminal Procedure. Moreover, a.few days before this

amendment went into effect, the Court in Dennis v. United

States, 384 U.S. 855, 870-71 (1966), took occasion to praise

this amendment and the broadenirig of disclosure in crim-

inal cases. The Court, after commenting that lower fed-

eral courts had made grand jury testimony available to de- ‘

fendants in a variety of circumstances continued:

These developments are entirely consonant with

the growing realization that disclosure, rather than

suppression, of relevant materials ordinarily promotes .

the proper administration of criminal justice. This

realization is reflected in the enactment of the so-called

Jencks Act, 18 U.S.C. §3500 (1964 éd.), responding to

this Court’s decision in Jencks v. United States, 353

U.S. 657, which makes available to the defense a trial

witness’ pretrial statements insofar as they relate to

his trial testimony. It is also reflected in the expanding

body of materials, judicial and otherwise, favoring dis-

closure in criminal cases analogous to the civil prac-

tice.'7

Then in footnote 17 the Court praised the amendments to

Rule 16: i

17. See, e.g., the Amendments to Rule 16- of the Federal

. Rules of Criminal Procedure, approved by this Court on Feb-

ary 28, 1966, and transmitted to Congress, which authorize dis-

covery and inspection of a defendant’s own statements, the results

of various tests, and -the recorded: testimony of the defendant

before the grand jury (and see the Advisory Committee’s Note

thereon). See also, cases anticipating this broadening of crim-

inal discovery: for example, Cicenia v. Lagay, 357 U.S. 504,

511; United States v. Peace, 16 F.R.D. 423 (D.C. S.D.N-Y.

_ 1954) ; United States v. Willis, 33 F.R.D. 510 (D.C. S.D.N.Y.

1963) ; United States v. Williams, 37 F.R.D. 24 (D.C. S.D.N.Y.

1965) ; United States v. Nolte, 39 F.R.D. 359 (D.C. N.D. Cal.

1965) ; State v. Johnson, 28 N.J. 133, 145 A.2d 313 (1958);

People ex rel. Lemon v. Supreme Court, 245 N.Y. 24, 156 N.E.

84 (1927). . ~

Among the commentators who have argued in favor of broad-

ening criminal discovery are Brennan, The Criminal Prosecu-

8 Y :

tion: Sporting Event or Quest for Truth? 1963 Wash. U.L.Q.

- 279; Traynor, Ground Lost and Found in Criminal Discovery,

39 N.Y.U.L. Rev. 228 (1964); Goldstein, The State and the

Accused: Balance of Advantage in Criminal Procedure, 69 Yale

’ L.J. 1149 (1960) ; Note, Developments in the Law—Discovery,

74 Harv. L. Rev. 940, 1051-1063 (1961). Of particular rele-

_*vance to the question of grand jury secrecy are: Sherry, Grand

Jury Minutes: The Unreasonable Rule of Secrecy, 48 Va. L.

- Rev. 668 (1962) ; and aaa Grand Jury Secrecy, 63 Mich. L.

Rev. 455 (1965). ,

Subsequently, in Will v. U nited States, 389 U.S. 90

(1967), the Court overturned an order of the Seventh Cir-

cuit which would have prevented a federal’ district judge

from requiring the government to. furnish a list of its in-

formants to a defendant. | ry

In the instant case, petitioner’s inspection of the bullets

before trial was important to-the preparation of his defense.

It was important in order for him to have ‘‘the scales evenly .

balanced in his contest with the state’’. See Brennan, The

Criminal Prosecution: Sporting Event or Quest for Truth?,

1963 Wash U.L.Q. 279, 285; Goldstein, The State and the

Accused: Balance of Ad vantage in Criminal Procedure, 69

Yale L.J. 1149, 1192 (1960). The murder weapon or weap-

ons were never found, so that the bullets were of crucial’

importance. The impression conveyed to the jury by the

prosecution’s expert witness that all four bullets had been

fired from one firearm might have been disproved if such

discovery had been permitted. Moreover, evidence tending

to show that there was more than one weapon would have

compelled submission to the jury of the requested accom-

plice. instruction with respect to Gloria. Nor could the.

legitimate interests of the prosecution have been prejudiced

by the granting of such limited discovery.

The circumstances make this murder case a most appro-

priate vehicle for articulating the limitations which the due

process clause imposes on the states in the interests of

achieving a substantial degree of fundamental fairness in

this area.

III

The admission into evidence over objection and

without a hearing of a chair obtained ‘as, a result of an

illegal search and seizure violated the Burth and

° :

Fourteenth Amendments.

The chair (Hx. 54) was illegally seized, without a search

warrant, without anyone’s consent, and over the protest

of the warehouse manager. Moreover, this illegal search

and seizure was directed specifically against the petitioner,

whom the police had already arrested. Nor was there the

slightest showing of necessity or emergency to justify this

arbitrary and unreasonable seizure. - The police had seén

the chair in the warehouse about two weeks before (1536),

and had had ample time to apply for a search warrant if

they thought they were entitled to one.

- There is likewise no doubt but that the Court under the

due process clause of the Fourteenth Amendment has made

- the Fourth Amendment as fully applicable to the states as

to the federal government. A large step in this direction

was Mapp v. Ohio, 367 U.S. 643 (1961), where the Court

held that material illegally seized by state officers was in-

admissible even in a state court proceeding. This involved

a major change; for in Mapp v. Ohio, 367 U.S. 643 ( 1961),

the Court overruled its earlier and oftcited case to the

contrary, Wolf v. Colorado, 338 U.S. 25 (1949). The Court

i SAAD NAN bit ies Wty ag: 2 hil an ae . da

‘

completed the change in Ker v. California, 374 U.S. 23

(1963), where it announced that its Mapp holding was en-

forceable against the states not only by the same sanction

of exclusion ‘as against the federal government, but also

by the same constitutional standard prohibiting unreason-

able searches and seizures.

The instant state case thus presents the “question

whether the petitioner, who was already charged and in

custody, has standing to object to an illegal search and

seizure’ because the search was directed specifically against

him. One would havé thought that under United States

v. Jeffers, 342 U.S. 48 (1951), Jones v. United States, 362-

U.S. 257 (1960), Stoner v. California, 376 U.S. 483 (1964),

and Maneusi v. DeForte, 392 U.S. 364 (1968), he did. How-

ever, the lower courts held otherwise.

In Jones v. United States, 362 U.S. 257 (1960), the

Court, while it was able to rest its ground of decision on

possessory considerations, also declared that a defendant

does have standing if he was the target of the search and

seizure, that is, if he was the victim of the search. The

Court after quoting Rule, 41(e) of the Federal Rules of

Criminal Procedure continued :

In order to qualify as a ‘‘person aggrieved by an

unlawful search and seizure’’ one must have been a

victim of a search or seizure, one against whom the

search was directed, as distinguished from.one who

claims prejudice only through the use of evidence

_ gathered as a consequence of a search or seizure di-

rected at someone else. * * *

Ordinarily, then, it is entirely proper to require

_of one who seeks to challenge the legality of a search

- as the basis for suppressing relevant evidence that he

allege, and if thé allegation be disputed that he estab-

lish, that he himself was the victim of. an invasion of

privacy. * * * ae

> * x

** * We are persuaded * * * that it is unnecessary and

— ill-advised to import into the law surrounding the con-

stitutional right to be free from unreasonable searches

and seizures subtle ‘distinctions, developed and refined

by the common law in evolving the body of private

property law which, more than almost any other branch

of law, has-been shaped by distinctions whose validity

is largely historical. * * *

362 U.S. at 261, 266.

Then in Mancusi v. DeForte, 392 U.S. 364 (1968), the

Court in its full application of the Fourth Amendment to

the states under the due process clause of the Fourteenth

Amendment, extended Jones v. United States, 362 U.S. 257

(1960), to give standing to an indicted union official to ob-

ject at his state trial to documents seized from the .union

office that he shared with others. Mr. Justice Black, in a

dissent which Mr. Justice Stewart joined, complained that

the Court was preparing the way to use Jones to eliminate

entirely the requirement for standing:

* * * In fact the Court’s opinion indicates to me that

the Court is preparing the way to use Jones to elimi-

nate entirely the requirement for standing to raise a

search and seizure question and to permit a search

to be challenged at any time, at any place, and under

all circumstances, regardiess of the defendant’s rela-

tionship to the person or place searched or to the

things seized. * * * |

392 U.S. at 376.

However, from the Court’s recent opinions in Alder-

man v. United States, 37 U.S.L. Week 4189 (March 10,

1969), it would appear that the question of standing of one

against whom an illegal search was directed is still open.

Mr. Justice Fortas in Part II (in which Mr. Justice Douglas

joined) of his opinion, concurring in part and dissenting in

part, found it necessary, after quoting from Jones, and

underscoring the words ‘‘one against whom the search was

directed,’’ to say:

It is my position that this quotation read ig light of ©

the Court’s rejection of property concepts, requires

that we include within the category of those who may

object to the introduction -of illegal evidence ‘‘one

_ against whom the search was directed.’? Such a per-

“son is surely ‘‘the victim of an invasion of privacy”’ —

and a ‘‘person aggrieved,’’ even though it is not his

property that was searched or seized. As I think the

Court recognized in Jones, unless we are to insist upon

property concepts, it is enough to give him ‘‘standing’’

to object that the government agents ‘conducted their

unlawful search and seizure in order to obtain evi-

dence to use against him. The Government violates

his rights when it seeks to deprive him of his liberty

by unlawfully seizing evidence in the course of an

investigation of him and using it against him at trial.

See Rosencranz v. United States, 334 F.2d 738, 741

(C.A. Ist Cir. 1964) (concurring opinion).

37 U.S.L. Week at 4198.

Indeed, Mr. Justice Fortas went further and indicated

that he might be persuaded to eliminate entirely the re-

quirement of standing: .

* * * The Fourth Amendment, unlike the Fifth, is

couched in terms of a guarantee that the Government

. i

.will not engage in unreasonable searches and seizures.

It is a general prohibition, a fundamental part of :the

constitutional compact, the observance of which is

essential to the welfare of all persons. Accordingly,

commentators have urged that the necessary implica-

tion of the Fourth Amendment is that, any defendant

_ against whom illegally acquired evidence is offered,

whether or not it was obtained in violation of his right

to privacy, may have the evidence excluded... It is also

contended that this is the only means to secure the

_ observance of the Fourth Amendment. | |

I find these arguments cogent and appealing. *.* *

. 37 U.S.L. Week at 4197.

The California Supreme Court has in fact taken this

advanced position: it has held that a defendant has stand-

ing to challenge the admissibility of evidence produced

by an illegal search and seizure, irrespective of whether

the particular defendant had any kind of possessory in-

terest or was the target of the search. Reople v. Martin, —

45 Cal. 2d 755, 290 P. 2d 855 (1955) ; ef. People v. DeFilippis,

34 Ill. 2d 129, 134-135, 214 N.E. 2d°897, 900 (1966).

Even assuming Gloria’s testimony about the chair to be

correct and conclusive, there are decisions which have held,

on facts more compelling for the prosecution, that there

was no ‘‘abandonment”’ for Fourth Amendment purposes.

Hobson v. United States, 226 F.2d 890 (8th Cir. 1955) ;

Work vy. United States, 243 F.2d 660 (D.C. Cir. 1957) ;

‘United States v. Merritt, 293 F.2d 742 (3d Cir. 1961).

In any event, under the Constitution, the petitioner was

at least entitled to a hearing on the unlawfulness of the

seizure of the chair, and at such a hearing any factual

issue of abandonment, if relevant, could have been fully

explored and actually and reliably determined. The New

York courts totally denied the petitioner such a hearing,

despite a New York statute which.mandated it, and despite

a distinct understanding with the trial judge and the

prosecutor that a hearing would be held. This contra-

vened the most basic principles of due process and fair

play. It plainly conflicted with Jackson v. Denno, 378

U.S. 368, 376-77, 380 (1964) where, in connection with

New York’s procedure for determining admissibility of

confessions, the Court held that the defendant had a ‘‘con-

stitutional right at some stage in the proceedings to object

_to the use of the confession and to have a fair hearing

and a reliable determination on the issue of voluntariness”’

as well as ‘‘a fair hearing in which both the underlying

factual issues and:the voluntariness of his confession are -

actually and reliably determined’’. Certainly the applica-

ble principles can be no different for an unlawful search

and seizure. |

Petitioner should have been accorded a fair hearing

en which both the lawfulness of the seizure and the under-

lying factual issues, including any claim that he abandoned

the seized propefty, were ‘‘actually and reliably deter-

mined’’, In was in effect so decided by the Ninth Circuit’s

decision in Cunningham v. Heinze, 352 F.2d 1, 3 (9th Cir.

1965), cert. denied, 383 U.S. 968 (1966): ©

* * * The district court is therefore required to hold

an evidentiary hearing ‘‘unless the state-court trier

of facts has after a full hearing reliably found the rele-

vant facts’’. Townsend v. Sain, 372 U.S. 293, 313, 83

“ $.Ct. 745, 757, 9 L.Ed. 2d 770 (1963). .

Sa Arh hOt be a had ns te ea ces eleiih Teepe

The trial court never even intimated during the trial

that it was basing its ruling on the ground that the chair

had been abandoned; its abandonment theory first ap-

‘peared in its opinion denying the motion for new trial.

If the abandonment issue had been raised, Gloria could

have been fully cross-examined on it. Moreover, if the

court had proceeded to conduct the hearing it wa» obli-

gated and had committed itself to conduct, then the peti-

tioner, besides adducing other evidence, could have testified

in the absence of the jury as to whether he had abandoned

the chair or whether the chair had merely been placed

in storage for him.- Denial of the hearing prevented the ,

petitioner, who was the only other party to the alleged

conversation, from testifying as to what occurred. A trial

judge who has absolutely refused to conduct such a hearing

cannot justly determine that abandonment occurred. <A

state court criminal proceeding which rides roughshod over

the right to a hearing should not be allowed to stand. _

The lower courts by their decisions in the instant case

have utilized the doctrine of no standing as a handy means

for circumventing the policies which Mapp and succeeding :

cases were intended to effectuate. .

The teaching of the lower courts for the New York

police—one of the largest police forces in the world—is that

any search and seizure conducted in contempt of the Con-. -

stitution will nevertheless get by if afterwards it, can be

shown that the defendant does not have an interest ‘in the

premises searched or the property seized. ‘*Moreover,

such a limitation virtually invites law enforcement officers

to violate the rights of third parties and to trade the escape °

of a criminal whose rights are violated for the conviction of

others by the use of the evidence illegally obtained against

then..’’ People v. Martin, 45 Cal. 2d 755, 760, 290 P. 2d

855, 857 (1955).

New York’s blue ribbon jury statute, under witch

the instant case was tried, violates the Sixth and Four-

teenth Amendments.

The specifics of the Sixth Amendment have now been

made fully applicable to the states by the due process

clause of the Fourteenth Amendment. This includes the

Sixth Amendment’s guarantee of the right to trial by jury.

Parker v. Gladden,.385 U.S. 363 (1966) ; Duncan v. Louisi-

ana, 391 U.S. 145 (1968). In Duncan the appellant was

convicted of a simple battery, a misdemeanor; and received

a sentence of 60 days and a fine of $150.00: However, his:

sentence could have been as much as two years. The Court

held that he was entitléd to a jury trial, saying through

Mr. Justice White: |

* * * Because we believe that trial by jury in criminal

cases is fundamental to the American scheme of justice,

we hold that the Fourteenth Amendment ‘guarantees a

right of jury trial in all criminal- cases which—were

they to be tried in a.federal court—would come within

the Sixth Amendment’s guarantee, * * *

391 U.S. at 149.

The process of making the specifics of the Sixth Amend-

ment fully applicable to the states began with Gideon ve

Wainwright, 372 U.S. 335 (1963), and Pointer v. Texas, 380

U.S. 400 (1965), where the Court made the Sixth Amend-

ment’s rights to counsel and to confrontation as fully ap-

plicable to the states as to the federal government. Gideon

v. Wainwright, liké Mapp v. Ohio, wrought a great change,

and, like Mapp, overruled an earlier and much cited ease,

Betts v. Brady, 316 U.S. 455 (1942), which had confined

the Fourteenth Amendment’s due process right to counsel

in state noncapital cases to those instanees where the sur-

rounding circumstances demonstrated that the accused

could not adequately present his own defense. .

Accordingly, the systematic exclusion of any recogniz-

able, identifiable group, be it racial, ethnic, sexual, religicus,

. ethical, economic, social, political, or geographical, within

the community from which state juries are drawn, violates

the Sixth Amendment’s requirement for trial by an impar-

tial jury. Women constitute such a group. Daily wage |

earners constitute such a group. And individuals with

scruples against capital punishment constitute such a

group. Moreover, the last group comprises half of the

community—and it is growing. 3

The most numerous cases are those involving the ex-

clusion of Negroes from grand or petit juries, or both. '

. See, ag., Sims v. Georgia, 389 U.S. 404 (1967) (grand and

petit juries) ; Jones v. Georgia, 389 U.S. 24 (1967) (grand

and petit juries); Whitus v. Georgia, 385 US. 545 (1967)

(grand and petit juries); Arnold v. North Carolina, 376

U.S. 773 (1964) (grand juries) ; Eubanks v. Louisiana, 356

US. 584 (1958) (grand juries) ; Smith v. Texas, 311 U.S,

128 (1941) (grand juries) ; Norris v. Alabama, 294 U.S. 587

(1935) (grand juries) ; Strauder v. West Virginia, 100 U.S.

303 (1879) (grand and petit juries).

_ The exclusion of women from jury service was involved

in Ballard v. United States, 329 U.S. 173 (1946), and Glasser

v. United States, 315 U.S. 60 (1942).

In Thiel v. Southern Pacific Co., 328 U.S. 211 (1946),

the Court proscribed the exclusion of daily wage earners

as a class. Accord, Labat v. Bennett, 365 F.2d 698 (5th

Cir. 1966), cert. denied, 386 U.S. 991 (1967). Indeed, in

Thiel the Court stated that the systematic exclusion of mem-

bers of any of these groups was illegal:

* * * the economic, social, religious, racial, political

and geographical groups of the community; * * *

328 U.S. at 220.

In Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966), cert.

denied, 386 U.S: 991 (1967), the Fifth Circuit’s majority

opinion, in setting-aside Louisiana state court convictions

held:

the petitioners’ due process and-equal protection rights

to an impartial jury representing a cross-section of the

community.

365 F.2d at 719-20.

The concurring: opinion on behalf of Judges Bell and

Coleman was rested solely on this ground. 365 F. 2d at.

739-42. It thus seems evident that, in the states comprising

the Fifth Cireuit, a state court blue ribbon jury system

could not now survive the scrutiny of the Fifth Circuit.

The result should not be different elsewhere.

In Hernandez v: Texas, 347 U.S. 475 (1954), the Court

invalidated the systematic exclusion of persons of Mexican

descent from grand and petit: juries.

_ In Rabinowitz y. United States, 366 F.2d 34 (5th Cir.

1966), the Fifth Circuit held that too much of a reliance

on the ‘‘key man’? system of juror selection, and too little

of an effort to obtain a fair cross-section of the community

required the dismissal of the indictments in that case. _

_ these developments, Moore v. New York,

333 U.S. 565 (1948), and Fay v. NewYork, 332 U.S. 261

(1947), the two five-to-four decisions of more than 20 years

: ago, on which the New York Court of Appeals placed its

entire reliance in sustaining New York’s blue ribbon jury

statute (App. V, p. 43a), and on which District Judge Bar-

tels placed his reliance (App. I, p. 20a), no longer repre-

sent the law. ‘The constitutional doctrine which should now

commend itself to the Court is: the doctrine so -powerfully

expressed in the dissenting opinion in Fay (332 U.S. at

299-300) : |

* * * there is a constitutional right to a jury drawn

from a group which represents a cross-section of the '

community. And a cross-section of the community .

includes persons with varying degrees of training and

intelligence and with varying economic and social posi-

tions. Under our Constitution, the jury is not to be

made the representative of the most intelligent, the

most wealthy or the most successful, nor of the least

intelligent, the least wealthy or the least successful.

It is a. democratic institution, . representative of: all

qualified classes of people. * * *

and in the dissenting opinion in Moore (333 U.S. at 570) :

In the light of

The vice lies in the very concept of ‘‘blue ribbon”?

panels—the systematic and intentional exclusion of al]

but the ‘‘best’”’ or the most learned or intelligent of the

general jurors. Such panels aré completely at war

with the democratic theory of our jury system, a theory |

formulated out of the experience of generations. * * *

The Fay majority placed some reliance, 332 U.S. at 285-

Pye 86, on the fact that the data there proffered concerning

actual operation of the blue ribbon jury system consisted |

of New York Judicial Council studies for the period 1933-

1934, instead of later years.. But subsequent to Fay another

Judicial Council study, made in 1952, fully confirmed the

discriminatory and unfair operation of this New York

sfecial jury scheme, and its continued and inherent de-

parture from the principle that juries should be drawn

from a representative cross-section of the community. |

Thus the 1952 study showed (App. XII, p. 104a) that

‘the most significant differen»e between the special and

general panel is occupational® and that ‘‘those who may

be called working people * * * constitute a larger portion -

of the general panel than they do of the special panel.’’

Thus in New York County, business people made up 47% ,

of the special jury panel, although they made up only 23%

of the general jury panel. On the other hand, the lower

economic groups, skilled and unskilled laborers, and the

like, made up 7% of the special jury panel as against 17%

of the general jury panel.. New York Judicial Council’ Re- ~

port 165 (1952). This discriminatory operation of the

special jury was particularly marked in the present case.

The 1952 study likewise reported (App. XII, p. 106a) that

in New York County women constituted 2% of the special

panel but 11% of the general panel; in this case, too, the

exceptionally low representation of women (11 out of 400.

‘in the two special panels) has been maintained.

65 —

New York’s blue ribbon jury system resulted in panels

which not only severely discriminated against lower eco-

nomic groups and women, but also totally discriminated

against scrupled individuals. Indeed, the object of this

statute was to effect the exclusion from ‘blue ribbon jury

panels of all those individuals who had conscientious ‘scru-

ples against capital punishment. See People v. Hall, 169

N.Y. 184, 196 (1901) ; People v. Blanchfield, 45 Mise. 2d 536,

_ 538-39, 257 N.Y.S. 2d 438, 441-2. (Sup. Ct. NY. County

1965).

But as Mr. Justice Stewart pointed out in thé Court’s

‘opinion in Witherspoon v. Illinois, 391 U.S. 510, 519-20

(1968), serupled jurors constitute ‘about one-half of the

people in this country: ‘ Yet, in a nation less than half of

‘whose people believe in the death penalty,’ a jury com-

posed exclusively of such people cannot speak: for the com-

munity.’*s In footnote 16 he added: *

It appears that, in 1966, approximately 42% of the

American public favored capital. punishment for con-

victed murderers, while 47% opposed it and 11% were

undecided. Polls, International Review on Public Opin-

ion; Vol. II, No. 3, at p. 84 ( 1967)., In 1960, the com-

parable figures were 51% in favor, 36% opposed, and

13% undecided. Ibid. |

On November 3, 1964, while the Mark Fein trial was under

way, the People of the State of Oregon at a general election

voted to abolish capital punishthent by 455,654 to 302,105,

‘or more than 60%. Ore. Laws 6 (1965). Thus New York’s

blue ribbon juries represented only a small fractional sec-

tion of -the community.

But as both Mr. Justice Stewart in the Court’s opinion

in Witherspoon, and Mr. Justice Douglas in his concurring

4 opinion, recognized in citing Glasser v. United States, 315

WS. 60, 84-86 (1942), the Sixth Amendment’s provision for

trial by, an impartial jury, made fully applicable to the

states by the due process clause of the Fourteenth Amend-

-mept, requires a panel which fairly represents ‘‘a cross-

section of the community.’’ 315 U.S. at 86. ;

Even Mr. Justice White in his dissenting opinion in.

Witherspoon recognized that jury panels from which jurors

who determine guilt or innocence are chosen, must repre-

sent a fair cross-section of the community, when-he com-

mented in his first footnote:

tds a sitleeaalintee walle ee en ee

a aha sansa pag J obiaigs

White I agree generally with the opinion of Mr.

Justice Buack, and so have joined it, I would not whol-:

ly foreclose the possibility of a showing that certain

restrictions on jury membership imposed because of

jury. participation in penalty determination produce

a jury which is not constitutionally constituted for the

purpose of. determining guilt. as

- 391 U.S. at 541, n. 1.

i ail hte Le ite

Moreover, everybody in New York but the courts recog-

nized that blue ribbon juries were not impartial. Every-

; body but the courts knew that blue ribbon juries were hand-

picked by a special system which discriminated against

laborers and other members of the lower economic classes.

| Everybody knew that blue ribbon juries did not represent

_ & cross section of the community. Everybody knew that

the blue ribbon jury system assured the state of juries

_ whose members were partial to the prosecution on the issue

of guilt or innocence. |

. @>

. .67

‘ Prosecutors knew; for in the ten-year period from 1941

to 1950 they requested every special jury that was im-

panelled, save one. New York.Judicial Council Report 164

be .

Counsel for defendants knew ; for in this ter-year period,

with but this single exception, they never requested a blue

ribbon jury. — |

The New York J udicial Council knew : for it repeatedly

requested the repeal of New York’s blue ribbon jury stat-

a : | |

The Commitiee on Criminal Courts of the Association

of the Bar of-the Cjiy of New York knew; for it favored

the abolition of blue ribbon juries. - :

The New York courts themselves began to recognize

the defects “of the biue ribbon jury system when Mr. Jus-

tice Abraham N. Geller in People v. Blanchfield, 45 Mise. 2d .

' 536, 257 N.Y.S. 2d 438 (Sup. Ct. N.Y. County 1965), FY

though granting a motion for a special -jury, in effect de-

clared invalid the machinery set up by the statute for select-

_ ing the blue ribbon jury.

Senator Jeremiah B. Bloom, the sponsor of the legis-

lation which abolished New York’s blue ribbon jury system,

knew; for in his memorandim in support of this legislation

he stated, referring to New York’s blue ribbon statute:

If its constitutionality was to be tested at this time

’ the article would most probably be found to be vio-

lative of the right of citizens to equal protection under.

fe .

the law, as guaranteed by the 14th Amendment. New |

York State Legislative Annual 34 (1965).

The New York legislature itself knew; for in 1965 it

finally abolished New York’s blue ribbon jury system. —

- The exclusive nature of New York’s blue ribbon jury

_ System explains why blue ribbon juries convicted in a sub- |

.stantially greater percentage of cases than general juries.

For example, a study for the defense in Moore v. New York,

333 U.S. 565, 567 (1948), showed that in the ten-year period

from July 1, 1937 to June 30, 1946 special juries in Bronx

County ‘‘convicted in 79% of the cases while the general

juries convicted in 57%.”

The Court in Fay v. New York, 332 US. 261 (1947), was

sensitive to the problem:

But a ratio of conviction so disparate, if it continued

until 1945, might, in absence of explanation, be taken .

to indicate that the special jury was, in contrast to its

alternate, organized to convict. A defendant could

complain of this inequality even if it were shown that

a special jury court never had convicted any defendant

who did not deserve conviction.

332 U.S. at 286.

However, ‘the Court was reluctant to throw the statute

out “because it felt that there was insufficient evidence to

show intentional exclusion. But in Whitus v. Georgia, 385

‘U.S. 545 (1967), Jones v. Georgia, 389 U.S. 24 (1967), and .

Sims v. Georgia, 389 U.S. 404 (1967), the Court held that

the defense did not have to show intentional exclusion. It

was sufficient to show that a fair cross section was lacking.

The Mark Fein blue ribbon jury did not represent a fair

cross-section. | k .

In Whitus, the Court vacated the judgment of conviction

when it was shown that Negroes constituted 27.1% of the

tax rolls, but only 9.3% of the grand jury venire and 7.8%

of the petit jury venire. The Court held that the State

was required to explain this discrepancy. In Jones, the

Court held that the burden was on the State to explain the

disparity between the percentage of Negroes on the tax

digest and those on the venires. The Supreme Court based

its decision on the fact that the tax rolls showed 20%

_ Negroes, and only 5% of the jury list was Negro. It did

Reference may also be niade to Rabinowitz v. United

States, 366 F.2d 34 (Sth Cir. 1966), where the Fifth Cireuit

reversed a conviction of a white defendant because the

system of choosing jurors discriminated against Negroes,

even though there may have been no intent to exclude.

The court held:

In defense of the jury commissioners, it is said that

they did not specifically intend to exclude Negroes from

federal juries. The jury commissioners must be held

to have intended ‘the natural result which flowed from

their conduct.

366 F.2d at 56.

As a result of the 1952 study, the New York Judicial

Council renewed its recommendation that speéial juries be

abolished. The deeper constitutional doubts raised by the

1952 study and Report once again spurred the movement

for legislative reform (see, for example, the excerpt from

the April 26, 1965 Report of the Committee on Criminal

Courts, Association of the Bar of the City of New York,

App. XII, pp. 106a-108a). Meanwhile, post-Fay decisions

in numerous other states had begun to give wholehearted

endorsement to the principle that juries in criminal trials

must be drawn from a representative cross-section of the

community. See, e.g., People v. White, 43 Cal. 2d 740, 752- .

753, 278 P.2d 9, 17 (1954), cert. denied, 350 U.S. 875 (1955) ;

Allen v. State, 110 Ga. App. 56, 137-S.E. 2d 711 (1964);

State v. Ferraro, 146 Conn. 59, 147 A. 2d 478’ (1958), cert.

denied, 369 U.S. 880 (1962), State v. Dodge, 12 Utah 2d

293, 365 P.2d 798 (1961) ; Crawford v. State, 408 P. 2d 1002

(Alaska, 1965) ; State-v. Madison, 240 Md. 265, 272-273, 213

A.2d 880, 885 (1965) ; State v. Jones, 44 Del. 372, 57 A.2d

109 (Ct. Oyer & Terminer, 1947). In New York, legislative

reform was finally accomplished by New York Laws 1965, —

ce. 778, §3; but this was too late for the petitioner’s trial.

The fact that New York has now abolished the blue

ribbon jury system does not render the question presented

by this petition any less substantial. The long-overdue

legislative reform finally enacted in New York is of no avail

to the petitioner, who has been sentenced to serve thirty

years to life imprisonment after being tried under this un-

constitutional jury statute. Moreover, a decision sustaining

the petitioner’s contention will give further notice to the

comparatively small group of states which still authorize

the use of. special or struck juries in criminal cases that

such fundamentally discriminatory and unfair methods of

: selecting juries can no longer be tolerated under the Consti-

tution. There are some states which still have statutes

authorizing. the use of special or struck juries in certain

criminal cases, Alabama Code, Appendix (Vol. 14), §9713- |

719 (counties with population of 400,000 or more); Dela-

ware Code Ann., Title 10, §$4941-4543 ; Indiana Stat. Ann.,

§$4-7108 to 4-7114 (Burns) (1968 Replacement) ; New Jer.

sey Stat. Ann., §§2A :75-1 to 2A :75-5,

The trial judge’s statements to the jury violated the

petitioner’s right to silence under the Fifth and Four-

teenth Amendments.

It was in the Court ’s opinion in Malloy vy. Hogan, 378

U.S. 1, 5, 10 (1964), that Mr. Justice Brennan was at long

last able to say that the Fifth Amendment’s privilege

against self-incrimination Was applicable to the States. In

Malley the privilege, or right of silence as it is more de-

scriptively called, got the Court’s usual broad applica-

tion. BR covered even answers which would furnish only

a link in the chain of evidence, Moreover, it applied when-

ever a witness felt that his answer might. tend to incrim- .

inate him, unless the judge could gee with perfect clearness

that the answer could not possibly. have such a tendeney.

This left the witness pretty much i the driver’s seat,

Malloy v. Hogan overruled not one hut two'earlier lead-

ing Cases: Adamson y. California, 339 U.S. 46 (1947) ;

as well as Twining v. New J ersey, 211 U.S, 78 (1908).

In the yet more recent case of Griffin vy. California, 380

U.S. 609 (1965), the Court held that its ruling in Malloy

that the Fifth Amendment privilege against self-inerim.

nation was to be applied to the states in the same manner

CR ee

as against the federal government, was to be taken literally:

accordingly the federal rule against comment on a defend-

ant’s failure to take the stand governed in the states as well.

Thus Bruno v. United States, 308 U.S. 287, 294 (1939),-

‘becomes fully: applicable to the states. There the Court

held that ‘‘the accused should be allowed to make his own

choice’? as to whether ‘the court should give any instruc-

tion on the right not to testify. If he wants such.an in-

struction, he is entitled to it, but the trial judge may not

call attention to.the defendant’s silence if the defendant

has not requested such an instruction.

Reference may also be made to Redfield v. United States,

315 F.2d 76, 80 (9th Cir. 1963), where the court held that

_adefendant’s right of silence may ‘‘be violated by an official

statement in the presence of the jury that the defendant

is entitled to testify’’. Accord, McKnight v. United States, —

115 Fed. 972 (6th Cir. 1902). 7 -

Indeed, prior to the instant case, New York reviewing

courts repeatedly reversed convictions because of .the re-

marks of trial judges to juries elaborating on the consti-

tutional or statutory language. People v. McLucas, 15 N.Y.

2d 167, 256 N.Y.S. 2d 799 (1965); People v. Manning, 278

. N.Y. 40 (1938) ; People v. Forte, 277 N.Y. 440 (1938) ; Peo-

ple v. Fitzgerald, 156 N.Y. 253 (1898); People v. Arthurs,

3 A.D. 2d 966, 161 N.Y.S. 2d 971 (4th Dep’t 1957). But

none of these authorities, alt of which were cited as well as

quoted in the petitioner’s brief in the New York Court of

Appeals, did him any good.

Prejudicial publicity, : emanating from the police

and the prosecution, violated the due process clause

of the F ourteenth Amendment.

The New York Court of Appeals sought to dispose of

petitioner’s point under Sheppard v. Maxwell, 384 U.S. 333

(1966), about prejudicial publicity, on the grounds (1).

that the publicity in question for the most part took place

at the time of the arrest, nearly eight months prior to trial,

(2) that four months prior to trial, defense counsel had

argued that petitioner was ready to go to trial, and (3)

that petitioner had not sought a change of venue (App.

V, p. 43a). None of these grounds is adequate. Both

| separately and together, they show that the New York -

courts are unprepared to accept the minimum due process

standards expressed in the ‘federal Supreme Court’s de-

cisions. Thus, to say that most of the prejudicial publicity

took place at the time of arrest (on February 21, 1964)

is to ignore both the lurid June 1964 magazine articles, and

the prejudicial publicity during the trial itself. To give

weight to the fact that in June defense counsel had said

petitioner was prepared ‘to go to trial is to ignore the en-—

tire reason why this occurred—namely, that the petitioner

had then been incarcerated without bail for over three

months and petitioner’s only alternative. to a speedy,.trial

appeared to be to remain in prison for an indefinite period

of time until the prosecution was. ready to proceed (47A- -

- 157A). Finally, the fact that a change of venue was not

sought can hardly be held to be a waiver of petitioner’s

constitutional right to a fair trial. Waivers of basic con-

"74

stitutional rights are not to be so easily implied. Johnson —

v. Zerbst, 304 U.S. 458, 464 (1938); Brookhart v. Janis,

384 U.S. 1, 4-8 (1966). While it may be one factor to con-.

. sider in determining whether prejudice actually existed,

petitioner’s failure to make such a motion cannot be dis-

positive of the federal constitutional claim.- Stroble v. Cali-

fornia, 343 U.S. 181, 193-194 (1952). The ultimate test

under the Constitution must be whether the trial was ac-

tually a fair one by due. process standards. Thus in Moore

v. Dempsey, 261 U.S. 86 (1923), no motion had been made

_ for change of venue.

Moreover, the New York Cour. of Appeals wholly

ignored the prejudicial publicity | during the trial itself,

when it was too late to change the venue. Even if the

juror’s word -be accepted that although he saw the par-

ticular article but did not ‘‘read” it, his’ glancing at it

would have been sufficient to.convey its adverse tenor.

_ Thus, the courts have given proper recognition to the fact

that ‘the average jturor’’ is often honestly unaware of

‘the unconscious influence - ‘of. his preconceptions as to

probable guilt’’, Delaney v. United States, 199 F. 2d-107,

112-113 (1st Cir. 1952), and that, even on the conscious

level: -‘‘There is no certainty that all jurors would vol-

unteer information about violating the admonitions ‘or

admit that they were influenced by the publicity.’’ United

States v. Accardo, 298 F. 2d 133, 136 (7th Cir. 1962), citing

Coppedge v. United States, 272 F’. 2d 504, 508 ee Cir.

1959).

—%

_. Conclusion

The suppression of evidence, the denial of pretrial

discovery, the admission into evidence of illegally seized —

material, the. use of a blue ribbon jury, the trial judge’s

statements to the jury which violated the petitioner’s right

of silence, and prejudicial publicity—these were the tech-

niques by which the People unconstitutionally obtained

a judgment of conviction against the petitioner. Such

techniques all have become not only obsolete but also un-

constitutional. The Court should grant the instant peti-

tion for a writ of certiorari; and hold that our country has

a uniform system of criminal justice, applicable alike to

defendants in state as well as federal criminal cases, and

measured, with the exception of indictment by grahd jury,

by the relevant specifics of the federal Bill of Rights.

Respectfully submitted,

- Minton C. Weisman

O. Joun Rocce

1501 Broadway .

New York, New York 10036

Attorneys for Petitioner

APPENDICES

APPENDIX I

Opinion of District Judge John R. Bartels

UNITED STATES COURT OF APPEALS

For tHe Seconp Circuit

No. 303—September Term, 1967.

(Argued February 9, 1968 Decided March 24, 1969.)

Docket No. 31921 °

Unitep STATES oF AMERICA, ex rel, “aan Fern,

| Petitioner-A ppellant,

Joun T. Degcan, as Warden. of Sing Sing Prison,

State of.New York, '

» nme Appellee.

Before:

_ Waterman and Fernserc, Circuit Judges,

; = BarTELs, District i

“An appeal from an order of the United States District

vonet for the Southern District of New York, Palmieri, J/.,

‘denying appellant’s mofion for a wr it of habeas. corpus.

Affirmed.

' O. Joun Rocce, Minton C. Warswax, RicHarpD

SHeErBerG, Apranam L, Wax, Anruur Ket-

LER, Weisman, Celler, Allan, Spett & Shein-

berg, New York City, for Appellant.

* Of the Eastern District of New York, sitting by designation.

Appendix I

Eric A. Serrr, Spec. Counsel to the District

_Attorney, H. Richard Uviller, Asst. Dis-

trict Attorney, Frank S. Hogan, District

Attorney, New York County, for Appellee.

Barte.s, District Judge:

Following his conviction for second degree murder in

the State Supreme Court, Mark Fein, the appellant, moved

for a new trial asserting a number of claims. Those raising

the most serious questions are (i) the suppression by the

' prosecution of the name and story of Dagmar Finch Gene-

razlo; (ii) the admission into. evidence, without a hearing,

of a chair allegedly obtained by means of an illegal search

and seizure; and (iii) the use of a Blue Ribbon’Jury at _

appellant’s trial. Ki

After an extensive hearing! by the trial court (Culkin, .

J.), the motion was denied. The Appellate Division of the

State Supreme Court (24 App. Div. 2d 32, 263 N.Y.S. 2d

629 (1st Dept. 1965) ) unanimously affirmed both the judg-

ment’ of conviction and the denial of the appellant’s motion

for a new trial and that decision in turn was affirmed by .

the Court of Appeals (Fuld, J., dissenting), 18 N.Y. 2d:

162, 272 N.Y.S. 2d 753 (1966). The appeal to the United

States Supreme Court was dismissed for want of jurisdic-

tion (Douglas, J., dissenting) and the petition for a writ

of certiorari denied. Then followed Fein’s application for

a writ of habeas corpus in the United States District Court

for the Southern District of New York, which was denied

1; Gloria was not available for this hearing and there is no show-

ing that she would be available for any other hearing.

_ Appendia I

by Judge Palmieri (United States of America ex rel. Fein °

v. Deegan, No. 67 Civ. 2514, S.D.N.Y. Oct. 13, 1967). In

effect, we are reviewing a State court record which has been

reviewed by 12 State court judges as affirmed by 11 of

-them.?

The story i 1s a sordid one, resulting on October 10, 1963

in the murder of Rubin Markow itz, a one- -time grocery clerk

and bookmaker. Markowitz was last heard from by a client

at 4 P.M. that same day and his death occurred after that

hour.

Fein owed Markowitz $7,000, which he had lost betting

' against the Los Angeles Dodgers in the 1963 World Series.

_He made an appointment with Markowitz to pay the $7,000

and at the same time he made ar ‘rangements with a friend

to pay Markowitz approximately $16,690 owed to Marko-

witz by that friend and another. For this purpose Fein was

~ given $4,690 in cash and a $12,000 promissory note payable

to Fein. The killing permitted Fein not only to write off

his own debt: but ultimately to pocket the $16,690 furnished

by the friend.

' The State’s chief witness against Fein was Gloria Ken-

dal, an admitted prostitute and the some time mistress of

Fein. She testified that Fein telephoned her to come to his

apartment (which he leased in the name of ““Weissman”’

for his extramarital activities) between 5:30 and 5:45 P.M.

on October 10, 1963.. Before responding to this distress

signal, Gloria left a message with another prostitute who

remained in her apartment, one Sandra Ede, This message

was addressed to Geraldine Boxer (Geri), whose custom

2. If we add the State trial judge ond the Federal district judge,

13 judges have approved the record.

metic mpage ste 6 fig URE WMD ne ws MIT

OPO SER TS

oie

4a:

' Appendix I

was to meet daily with Gloria for light supper before each

attended their respective evening classes. Gloria then

taxied the ten blocks to Fein’s seeret lodging. When she

arrived before 6 P.M. at Fein’s apartment ‘‘ile was very

flushed. His hair was messed, and his eyes were enormous.’’:

Fein then told ,her that he had shot his bookmaker Rudy

and asked her to assist him in disposing of the body which

he had stuffed into a steamer trunk. Gloria testified that

‘‘saw part of an arm, and some new clothes line, and

she

some white material that looked-Jike a shirt.’? Responding

to his request, Gloria called one David Broudy, an unem-

ployed taxi eab driver (who did not know Fein), who im-

mediately proceeded by ear to the ‘‘ Weissman’’ apartment.

In the meantimé Geri drove to Gloria’s apartment and was

directed by Sandra Ede over the intercom to proceed to

the ‘‘Weissman”’ apartment pursuant to Gloria’s instrue-

tions. ;

Both Broudy and Geri eventually arrived at the ‘‘ Weiss-°

man’’ apartment. In answer to a question by Broudy, Fein

stated that while he was paying his bookmaker ‘‘somebody

burst in * * * shot this man and scooped up the money

and left.*’ He also told Broudy that he had lined the bot-

tom of the trunk with ‘‘some canvas hags’’ to prevent blood

leakage. Since the trunk would not fit into either Broudy’s,

ear or Geri’s car, Fein arranged for the rental of a station

wagon. After he and Gloria picked up the vehicle, Fein and

Broudy loaded the trunk into it and Fein gave the keys.

to Brody and departed for a dinner date with his wife

and friends. | |

Thereafter the two women and Broudy drove the station

wagon to Gloria’s apartment and double parked while

Appendix I

Gloria entered the apartment, hada drink with Sandra

Ede and obtained some money to pay Broudy for his.

trouble. Half an hour later she returned to the car where

Broudy and Geri were waiting. Thereafter the three dis:

posed of the trunk in the Harlem River. During the weeks

that. followed Gloria and Broudy, in answer to Fein’s plea

for help, attempted to obliterate all- evidence that might

have associated Fein or the crime with the ‘“Weissman’”’

apartment by filling and painting holes in the floor and

wall, destroying the carpet and removing furniture and

furnishings.

The Aileged Suppression of the Testimony of

Dagmar Finch Generazio

* One of the chief grounds for Fein’s application for

habeas corpus was the alleged suppression of the testimony

of one Dagmar Finch Generazio (Dagmar), a prostitute

associate of Gloria, which Fein claims to be exculpatory.

There are two phases of Dagmar’s testimony, the first re-

lates to an alleged phone call from Gloria to Dagmar and

the story Dagmar told the prosecutor pertaining to that

eall, and the second relates to Gloria’s second recantation

on September 28, 1964, three weeks before the trial. Dag- !

mar’s post- trial testimony was to the effect that Gloria had

telephoned her on the day of the murder* before 4 P.M. at

Gail Weiner Tracy’s apartment on 64th Street, where she

was living at the time. In this conversation Gloria tried to

induce Dagmar to assist her in finding a car to move a

-heavy box but: was unsuccessful. The defense claims that

3. As a matter of fact, the prosecutor and the detective testified

that she said the phone call was made in late September or early

« October.

2 PORAPSER PTE EE

Appendix I

the testimony of this telephone call before 4 P.M. would

have been not only damaging to Gloria’s credibility but

might have suggested that Gloria, rather than Fein, was

responsible for the murder. a

Dagmar’s estranged husband corroborated his wife’s

account to the police by testifying at the hearing that ‘his

-wife had said to the detectives that the call was ‘‘in the

afternoon of October, this particular time * * *-She did say

it was in the afternoon.’’ Gail Tracy testified that the

phone call was made shortly after 3 P.M. But prior to

this testimony at the hearing Gail testified that she’ had

called Dagmar a Jiar when Dagmar stated that such a phone

- eall had been made because, according to Gail, Dagmar had

not been.in Gail’s house for six or seven months. She also

admitted that, except on one post- trial occasion, she had

flatly denied the occurrence of any such call and.did so on

one occasion in Dagmar’s presence.

Both Assistant District Attorney Vincent Dermody and

Detective Leman testified that Dagmar had never said that

‘the telephone call was made earlier than between 6 and 7

o’clock. At one time she told pained Leman that ‘‘maybe

it was eight o’clock or nine o ’elock.’? In an effort to fix

the time more precisely she said ‘‘ All I know is that it was.

dark out, and when I entered the building the dry cleaning -

man was getting ready to-close his store.’’ On a second -

visit to the District Attorney’s office, Dagmar related in

front of Gail Tracy the story of receiving a phone call at

her house some time after or between 6 and 7 P.M. Gail

Tracy called Dagmar a liar stating that Dagmar never

received a call on Gail’s telephone at any time.

Appendix I

In his decision on the post-trial motion, the state trial,

judge rejected Dagmar’s testimony as well as that of her

husband and of Gail Tracy as being unworthy of belief,

and denied the motion for a new trial. As to Dagmar, the

judge specifically found as follows:

‘‘Having seen and heard this witness, I reject her testi-

mony as totally unworthy of belief. While under oath

at the hearing, she strained with tireless effort to

avoid telling the truth, whether the examination COvV-

ered ‘her recorded criminal past, the date of her mar- -

riage, the frequency which the police telephoned her,

or the reaction of Gail Weiner Tracy, a witness called

by the prosecution after she submitted a sworn ques-

tion and answer on belaf of the defendant, upon a .

certain confrontation. The for egoing are all measur-

able standards, but of no greater import than the im-

pression this witness created when set against less

tangible marks. I find that she never told the prosecu- -

_ tion of receiving a call on any afternoon. I further find

that insofar as this witness’ credibility is concerned,

her story that she received any call from Mrs. Lasarus

on the day, or month, of the killing does not warrant.

- belief.”? (Emphasis added. )

The state judge, after hearing all the witnesses, thus found

that Dagmar never told the prosecutor of a call received

betw een 3 and 4 P.M.

In United States v. Johnson, 327 U. S. 106 (1946), the

Supreme Court held that it was not the province of a fed-

- eral court of appeals in reviewing orders granting or deny-

ing motions for a new trial, to intervene on the ground of

erroneous findings of fact xmhless it clearly appears that

Ee, EIFS

ne eens Sant ea tae

AIRE AT IEE MEO TE

—_e phe

Appendia I -

such findings are unsupported by any evidence. As the

court observed (p. 113):

‘While a defendant should be afforded the full benefit

of this type of rectifying motion, courts should be on

_ the alert to see that the privilege of its use is not

abused. One of the most effective methods of prevent-

ing this abuse is for appellate courts to refrain from

reviewing findings of fact which have evidence to sup-

port them. The cireuit court of appeals was right in

the first. instance, when it declared that it did not sit

to try de novo motions for a new trial.”’

Where the State court has made 4 full and fair eviden-

tiary hearing with express findings of fact, the district court

may ‘‘and ordinarily should, accept the facts as found in

the hearing’’ (Townsend v. Sain, 372 U.S. 293, 318 (1963) ;

see, Midgett v. Warden, Maryland State Penitentiary, 329

F. 2d 185 (4th Cir. 1964) ; Durham v. Iaynes, 258 F. Supp.

452 (E. D. Mo., N. D. 1966), aff’d, 368 F.2d 989 (8th Cir.

1966), cert denied, 390 U. S. 959 (1968)). This principle

was codified in 28 U.S. C. A. §2254(d), which provides that -

the determination of fact of the State court in a habeas

corpus proceeding, subject to certain other. provisos not

here presenf, ‘‘shall be presuined to be correct,’’.unless the

‘‘factual determination is not fairly supported by the ree-

ord.’’ Since we do not believe that it can be said that the

‘findings of the State court are not fairly supported by the

record and since that hearing was full and fair, we must,

therefore, aceept ‘at least the finding that Dagmar ‘‘never

told the prosecution of receiving-a call on any afternoon.’’

The State also argues with force that since the State judge

' . Appendia I

also found incredible Dagmar’s story that she ‘received any

‘call from Gloria on the day of the killing, that should end

this phase of the appeal. However, Fein points out that

the prosecutor conceded that Dagmar made a statement to

him of a6 to 7 P.M. telephone call, which is not in the

‘fafteronon.’’ . While this is not a concession that Dagmar

actually did receive a call, it does bear on the prosecutor’s

state of mind and his alleged ‘‘unfairness.”’

We turn then to the assumption that Dagmar did tell the

prosecutor of a6 to 7 P.M. telephone call. It is argued that

such information was vitally material to the defense be-_

eause from such a call the jury could draw an inference

damaging to Gloria. The prosecution witnesses testified

that when Broudy, Geri and Gloria drove the station wagon

- containing the trunk from tlte ‘‘Weissman”’ apartment,

they stopped at Gloria’s apartment between 6 and 7 P.M.

Fein suggests that had the prosecutor disclosed that he had

evidence indicating that Gloria had, at the. time she went

upstairs to her own apartment, telephoned Dagmar in an

attempt to borrow a ear to remove a box, the jury might

have inferred that the decedent’s body was not in the trunk

at all but was elsewhere awaiting removal; thus the entire

substance of Gloria’s story that it was at Fein’s request

that she had become involved in disposing of the body of

the man murdered in the ‘‘ Weissmén”’ apartment was false.

A major difficulty with this theory is that there is no evi- —

dence from’any witness that Markowitz’s body was any-

where except in the station wagon trunk at the time.

Broudy testified that Fein said that the body was in the

trunk, Gloria. testified that she had seen the body in the

emery: PRS OEY

- .*

10a

Appendia I

trunk, and Broudy and Gloria-testified that they helped Fein

to remove the damaging evidence from the ‘‘Weissman”’

apartment. Moreover, it was reasonable for fhe prosecu-

tion to conclude that there was no major inconsistency be-

_ tween Gloria’s account and Dagmar’s statement that Gloria

made a phone call to Dagmar between 6 and 7 P.M., because

the call could have been made by Gloria from the ‘‘ Weiss-

man’’ apartment (rather than from Gloria’s apartment) at

the same time Gloria called Broudy (which was around 6

P.M.) in her effort to get a car to remove the trunk. From

the record. it appears that the prosecutor had reason to feel

unsure as to whether Dagmar was telling the truth. Dag-

mar-had mentioned that. she received a eall from Gloria

while at Gail Tracy’s apartment, but Mrs. Tracy had denied

this to the prosecution before the trial. It is true that Dag-

mar’s statement might have been used to attack Gloria’s

credibility but, as indicated below, defense counsel was ade-

quately armed at trial and attacked her credibility thor-—

oughly. Under all the circumstances, even giving credence

to Dagmar’s statement that she had informed the prosecu-

tion about a phone call between 6 and 7 P.M. does not vest

it with the materiality essential to a finding of prosect-

- torial suppression. | ye

The second phase of Dagmar’s potential testimony, al-

legedly suppressed, involved Gloria’s second recantation

on September 28th. Dagmar testified that Gloria had twice

asked her to ‘‘stick with me.” Finally there was a confron-

tation between Dagmar and Gloria at the District Attor-

ney’s office when Dagmar related the story that Gloria

had called Dagmar at Gail’s apartment between 6 and 7

a ele ed

. : aie lla

A ppendia I

P.M. Gloria denied the call and began screaming pand ye ‘l-

ing that Detective T.eman was trying to induce people to

. lie about her. Détective Leman escorted Dagmar from the

room and Gloria demanded to see her lawyer. After Dag-

mar and Leman left, Gloria recanted her story for the sec-

ond time, only to return to the original story given at the

trial. The prosecutor advised defense counsel of both, re-

cantations but not of the confrontation with Dagmar prior

to the recantation. In their testimony neither Gloria nor

Detective Leman mentioned Dagmar’s presence at the meet-

ing prior to the recantation. Based upon these circum-

stances, the defense has accused the prosecution of coun-

tenancing false testimony. R am

Gloria and Detective Leman had conflicting explanations

at the trial’of the case as to the cause of the’second recan®

tation. In each case their testimony was predicated upon .

their respective opinions as to the cause. It cannot be said

whether cither was ‘right or wrong. In all events, Dagmar

was not present at the time of the recantation although she

was present at the meeting. The questions posed by the

defense itself were ambiguous. The Appellate Division

_held that who was present at the interview was not empha-

* sized and the question did not clearly indicate that pres-

ence at the interview rather than presence at the time of

recantation, was the information sought. The Court of

Appeals held that the record amply sustained .the lower

court’s finding that the testimony was not in fact false or

perjurious. We are compelled to agree. The record dis-

closes that materiality of Dagmar’s confrontation under the

BE TRUM OMT OND TY

12a

Appendix I

circumstances is highly speculative and fails to reveal any

evidence of its suppression,

Dagmar’s testimony id net bear directly upon the guilt

or punishment of Fein: Q) At most, it pertained to Gloria’ Ss

credibility, provided aay

incredibility. Gloria’s credibility, however, had been relent-

could bri idge the gap of Dagmar’s

lessly attacked by an exhausting and punishing cross-

examination in which her recantations and’ background

~ were thoroughly explored. Even the prosecutor in his sum-

‘ mation described her, among other things, as ‘‘notorious,’’

‘a moral leper,’’ and ‘‘an old whore.’’ Nevertheless, the

jury believed enough of Gloria’s testimony, as corroborated

by Broudy and Geri, to convict Fein.

Fein claims that he made a request to the prosecutor

for Dagmar’s whereabouts, which poses ‘the question of

prosecutorial suppression. It is admitted that during the

course of the trial the defensecwas aware that Dagmar

had told the prosceutor that she had received a phone’ call

from Gloria on the murder day in an‘attempt to borrow

a car. ‘In fact, the defense counsel knew about Dagmar,

as appears from his cross-examination of Geri Boxer, when

he inquired as to Geri?s acquaintanceship with Dagmar.

In a hallway conversation during the trial, William J.

Whelan, defendant’s investigator and a former policeman,

informed Detective Leman that the defendant knew of the

phone call and asked whether the prosecutor was going to

place Dagmar on the stand, to which Detective Leman

replied that he did not know. When Detective Leman

asked Whelan if the latter had called Dagmar’s mother in’

Baltimore, Whelan requested the mother’s phone number,

13a

Appendix I

to which Detective Leman replied ‘‘T am not at liberty to

give it to you.”’ Ww helan stated that he ‘‘did not expect that.

he. would give it to me.’’ In other words, Whelan as a

.former policeman knew that the request: was not made to

the proper source and th:t a deteetive ordinarily is not at

liberty to furnish information to the defense without the

authority of’the proseentor. Yet the defense neither pur-

sued the matter nor made. an application to the court for...

Dagmar’s whereabouts, Mr. Blinder, one of the defend-

ant’s counsel, stated at the post-trial heari ing that he did

not pursue the matter because he believed that if Dagmat

were important to the defendant’s case, the prosecutor

would inform him of that relevance.

7 The C curt of Appeals found that there was not only no

~ + request for Dagmar ’s full name, address or telephone num-

- ber but also no indication that the defense could not locate

- her. If the request was to fiag the importance of the evi-

dence for. the defense and accordingly impose upon the

prosecutor a duty to make a careful check of*his files, it

‘was not too much to require that such request be made to

someone in authority rather than to a police detective

whom the defendant’s own investigator did hot believe

would supply the information. ai

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

Judge Fr iendly classified the law as to prosecutorial sup-

pression of evidence into three categories: (1) deliberate

bad faith suppression for the very purpose of obstructing

the defense, or the intentional failure to disclose evidence

whose high probative value to the defense could not have

to honor a request for evidence where the evidence is ma-

—_ a ae “Perry ae

OOOO LNG IT M EON AIELLO NEEL SS Pa A ORO LIS

REO LE ET OO APL AE PEN OIE

z . ' peer A PE

LEPESANT LOL IA LO NNT PM SAE LOT A

PEON V4 fhe

14a

Appendia I .

terial to guilt or punishment, irrespective of the prosecu-

tor’s good faith or bad faith in refusing ‘the request; and

(3) where suppression was not deliberate:and no request

for evidence was made, but where hindsight discloses that

it was so material that the defense could have put the evi- -

dence to not insignificant use (pp. 146-148). The best that

can be said for appellant’s point is that the action of the *

_ prosecutor in this case arguably fell within the second cate-.

gory of a deliberate refusal to honor a request for evidence

that is material to guilt or punishment. But in our view,

it would be unfair and inequitable to charge the prosecutor

with the responsibility for any oral request. whié¢h was

made by an employee of the defendant, such as an investi-

gator, to an employee of the prosecutor, such as a detective.’

Aside from. that failure, wé find it hard to evaluate Dag-.

mar’s testimony as material. The third category set forth

in Keogh refers to an anintentional suppression of evidence

without a request where the evidence was so material that —

‘‘the defense could have put the evidence to not insignifi-

cant use.’” But in those cases “the standard of materiality °

must. be considerably higher.’’. As Judge Frieridly re-

~ marked (p. 148): ‘‘To invalidate convictions in such cases

because ‘a combing of the prosecutors? files after ‘the trial

has disclosed evidence possibly useful to the defense but —

not likely to, have changed the verdict would create unbear-

able a, and uncertainties.’’ Dagmar’s testimony was

peripheral in nature and only obliquely affected Gloria’s

credibility. “To say the least, it is doubtful whether such

evidence satisfied the standard: of materiality requiréd by

‘the second category. Certainly it did not satisfy the stand-

ard of materiality in the third’category. It seems to us

a a 15a

Appendix I

that no stretching can force the testimony of Dagmar into

the factual pattern of prosecutorial suppression of material

evidence, condemned in Brady v. Maryland, 373 U.S. 83

(1963); Giles v. Maryland, 386 U.S. 66 (1967) ; Barbee v.

Warden, Maryland Penitentiary, 331 F. 2d 842 (4th Cir.

— 1964).

-It is appropriate to note that upon an sietliidsiias for

a new trial based upon newly discovered evidence, due dili-

gence is an esseytial factor. See, New York Code of Crimi-

nal Procedure, §465(7) and cases cited thereunder; see

‘also, United States v. Costello, 255 F. 2d 876 (2d Cir. 1958),

cert. denied, 357 U.S. 937 (1958), reh. denied, 358 U.S. 858

(1958) ; Kyle v. United States, 297 F. 24 507 (2d Cir. 1961),

cert. denied, 377 U.S. 909 (1964) ; United States v. Capece,

287 F. 2d 537 (2d Cir. 1961), cert. denied, 368 U.S. 847

(1961); United States v. Lombardozzi, 343 F. 2d 127 (2d

Cir. 1965), cert. denied, 381 U.S. 938 (1965). And such

application will not: be granted if the evidence is merely

impeaching. People v. Eng Iling and Lee Dock, 212 N.Y. .-

373, 386, 106 N. E. 96 (1914); Mesarosh v. United States,

352 U.S. 1 (1956); United States v. Aguillar, 387 F. 2d

625 (2d Cir. 1967). To relieve the defendant of his duty

- of due diligence, the evidence of prosecutorial suppression

should be clear and unequivocal. A half- hearted and casual

inquiry made by one ‘subordinate ‘to another subordinate

should not shift the responsibility to the prosecutor. The

prosecutor made many disclosures to the defense and there

is nothing in the record which suggests that his conduct,

as well as that of his staff, under difficult circumstances did

not omply s satisfy the fundamental concepts of due process

necessary in order to provide the defendant with a fair

trial.

~ 2 ceRRNRRRRRMRR REE |

LOGON STE TS,

16a

Appendix I

The Admission into Evidence of the Chair

The second relevant ground for Fein’s complaint is the

admission into evidence of a chai

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