The Case Against Carter

Prosecutor's response to Judge Sarokin's decision

This document gives an excellent rundown of the case against Carter. It was filed on Jan. 19, 1987 in response to Federal District Court Judge Lee Sarokin's decision to set aside Carter's conviction. (Due to a technical glitch, apostrophes are missing!)

Statement of the Case

• The Habeas Corpus Petitions

Statement of the Facts

• Preface
• Preamble

Evidence of Petitioners' Guilt Adduced at the 1976 Retrial

• Identification of Defendant Carter's 1966 Dodge Car
• The Shotgun Shell and Bullet
• Movements of the Defendants at the Time of the Murders
• Search for Guns
• The Statements of the Defendants
• Structuring and Submitting a False Alibi
• The Revenge Motive
• The Identification of the Defendants
  • Recantation [Editor's Note: This outlines the questionable roles of Fred Hogan of the Monmouth County Public Defender's office, Selwyn Raab of The New York Times, and Hal Levinson of Channel 5 in New York]

Argument

Point I: Racial Revenge Motive -- It was proper for the trial court to permit evidence and argument as to the motive for the murders.

Point II: Bello Lie Detector Test -- The decision by the district Court that disclosure to the defense of an initial oral report of a polygraph test given an eyewitness would have led to a reasonable probability of an acquittal of petitioners is not supported by the record of the state trial court proceedings.

A. The Habeas Corpus Petitions

The petitions for writ of habeas corpus filed by Rubin Carter and John Artis in the United States District Court for the District of New Jersey relate to their respective convictions of three counts of first degree murder entered on February 9, 1977 following a lengthy jury trial which terminated with verdicts entered on December 21, 1976.

Separate petitions were filed by Carter on February 13, 1985 (1aD 82-138) and Artis on February 28, 1985 (1aD 139-155). Petitioners and respondents agreed that the petitions should be consolidated for consideration by the United States District Court (1aD 158-159; 164-171), and an Order consolidating the petitions was entered on May 6, 1985 (1aD 172-173).

At the time the respective petitions for writ of habeas corpus were filed, there remained pending in the Appellate Division of the New Jersey Superior Court an appeal by petitioners from a ruling by the trial court denying a motion brought by petitioners seeking, alternatively, an evidentiary hearing or a new trial based upon allegedly exculpatory material contained in a personal file maintained by a former prosecution investigator, Richard Caruso. Since the pendency of this state appeal was perceived to raise a threshold issue of non-exhaustion of state remedies (1aD 158-159), respondents filed an answer addressed primarily to the exhaustion of state remedies issue (1aD 178-199).

Before this issue was addressed by the district court, petitioners on May 25, 1985 filed a motion for summary judgment on seven of the grounds asserted in the petitions (1aD 200-202). The motion was supported by oversize briefs submitted by petitioners (1aD 203-208). A hearing date of July 26, 1985 was scheduled on the summary judgment motion (1aD 236).

At the time of this hearing of July 26, 1985, (referred to as the oral argument in the district court's opinion), the district court did not have the benefit of the respondents brief or the trial transcripts. The respondents wished to avoid being drawn into arguing appeals in this case in the state courts and federal courts simultaneously. The district court did not respond to our claim of non-exhaustion of state remedies and directed the respondents to argue the appeal in the federal court while petitioners pursued their appeals in the state courts.

In the interim, the Appellate Division of the New Jersey Superior Court on July 2, 1985, in an unpublished opinion (1aE 154-157), had denied the appeal of petitioners concerning their new trial motion brought on the basis of the so-called Caruso file. The petitioners new trial motion had been dismissed by the trial court.

The Appellate Division determined that the information from the so-called Caruso filed was not "favorable" to the defendants. The court said that it was not "usable" or "significant" and that it did not justify a hearing much less a new trial.

At the hearing before the United States District Court, Petitioner Carter stipulated amendment of his petition to exclude the issue raised by the Caruso file (1aD 4-6; 240-248). Petitioner Artis, however, did not exclude this claim, having filed a notice of petition for certification on July 22, 1985 addressed to the New Jersey Supreme Court (1aE 158-160).

Following oral argument on the motion for summary judgment before the district court, respondents on August 30, 1985 filed an answering brief and filed with the district court the transcript of the 1976 trial proceedings as well as the 1981 remand hearing before the trial court directed by the New Jersey Supreme Court (1aD 237-239).

On October 29, 1985, the New Jersey Supreme Court denied the petition for certification filed by Petitioner John Artis (1aB 161). This Order was received by the parties on November 5, 1985. Two days later, on November 7, 1985, the United States District Court issued its opinion, finding that petitioners had made a sufficient showing in the two grounds considered by the court for the court to grant the writs of habeas corpus (1aD 64-65).*

On March 28, 1986, the respondents-appellants delivered to this Court our brief on this appeal. The brief consisted of 193 pages and an application for permission to file the oversized brief was submitted, at the same time. The appendix which was delivered alone with the brief consisted of approximately 90 volumes per set.

Thereafter the respondents-appellants was required by the Court to revise our brief. Our revised brief was submitted on October 3, 1986. Our repeated application to obtain this Courts permission to file our revised brief of 191 pages have been denied.

In the two aforesaid briefs, the respondents-appellants presented a detailed analysis of the district courts 70-page opinion. Our briefs convincingly demonstrated that the district court judged this case badly and that its decision to vacate these murder convictions amounts to a terrible injustice. The district courts opinion contains errors and misstatements about this case. The district court presents slanted and distorted views of the case and the evidence. These unusual and strong characterizations of the opinion on appeal are amply supported by the briefs which the Court has refused to read. Because of the exceptional circumstances of this case (twenty-year, eventful history; two, lenghty trials, approximately 20,000 pages of appendix; etc.) we cannot make this same showing in a brief of 50 pages. The fact of the matter is that Rubin-Carter and John Artis executed the people in the Lafayette Bar. They were fairly tried and rightly convicted. The respondents-appellants are entitled on appeal to a fair opportunity to show the undeniable truth of these matters and the errors and distortions in the district courts opinion.

A. PREFACE

The United States District Court concluded that the State violated the requirements of the rule in Brady v. Maryland, 373 U.S. 83 (1963) by failing to disclose an oral report of a polygraph test given to an eyewitness which was inconsistent in some particulars with the later written report of the polygraph test (1aD 64). The district court also concluded that the State violated the Due Process rights of petitioners by improperly introducing evidence that the murders were motivated by racial revenge (1aD 64-65).

The determination by the district court that writs of habeas corpus should issue on these grounds was predicated in a substantial degree upon the courts further conclusion that the prosecutions case against petitioners was "sufficiently close" that evidence of racial revenge motive probably contributed to the verdict, and that because the States evidence had been "substantially called into question by petitioners," disclosure of the withheld oral polygraph report would probably have changed the result of petitioners trial (1aD 33, 64).

Respondents contend that the trial evidence overwhelmingly pointed to the guilt of petitioners, that the case could not in any sense have been characterized as a "close" one on the issue of guilt, and that the district court in its opinion gave undue deference to petitioners version of the trial evidence in the face of the total record and jury verdict.

Accordingly, respondents are setting forth a review of the trial evidence at length in the belief that this will assist in placing the district courts conclusions in better perspective, toward the ultimate determination by this court as to whether these conclusions were correct.

B. PREAMBLE

At 2:30 a.m. on June 17, 1966, two black men entered the Lafayette Grill, Lafayette Avenue, in Paterson, New Jersey. One man was armed with a 12-gauge shotgun and the other carried a .32 caliber handgun. They immediately opened fire on the occupants of the tavern. At the trial in 1976, as in the first trial in 1967, the State contended that Rubin Carter was armed with the shotgun and John Artis with the handgun.

There were four persons in the tavern at the time: James Oliver, the bartender, and three customers, Fred Nauyaks, William Marins and Hazel Tanis.

James Oliver was 51 years of age. He was standing behind the bar near the cash register counting the days receipts from the cash register at this time. He sustained a shotgun blast to his back opening a gaping wound and fell dead on the floor behind the bar.

Fred Nauyaks was 61 years of age. He had been a regular customer and was sitting on a stool at the bar. He was shot at close range with a single bullet from the handgun. He sustained a wound to the stem of the brain and died instantly.

William Marins was 43 years of age and had been at the bar a considerable time before the shooting. He was seated at the bar two stools from Mr. Nauyaks. Like Mr. Nauyaks, he was shot once with the handgun at close range. The bullet entered his head in the area of the left temple and exited from the forehead by the right eye destroying the optic nerve. Mr. Marins survived and died about a year after the shooting.

Hazel Tanis was 51 years of age. She had just come from a banquet hall where she worked as a waitress. Her upper right arm was struck by a blast from the shotgun. She was fired at five times with the handgun and was struck by four of the bullets in the right breast, stomach, lower abdomen and genital area. The bullets perforated her lung, liver, spine and rectum. Hazel Tanis survived four weeks.

On December 21, 1976, the defendants, Rubin Carter and John Artis each were convicted for the second time of three counts of first degree murder for these killings. The record of the testimony and evidence, which is the basis for these convictions, is enormous. The district court has reversed long-standing murder convictions based on two grounds, each of which (as will be discussed hereafter) is premised on the proposition that the jury which convicted the defendants was presented with a close case. This is simply not so and is not supported by a study of the record in its entirety. The respondents contend that the district courts recounting of the evidence is not accuract and does not constitute a fair rendition of the case given to the jury. The respondents cannot demonstrate their position short of a detailed presentation of the voluminous record.

The district courts opinion states:

The picture of the evidence painted by the petitioners and respondents is often conflicting and sometimes exceptionally murkyBut from thousands of pages of testimony spanning two trials and numerous hearings the parties have reconstructed two drastically different versions of the events that tragic night. The conflicting evidence is reviewed below (See Brady violation) but a brief summary of the evidence introduced at the second trial is presented here (1aD 3-4).

Respondents agree with the district court. The defense has painted a picture of the evidence very different than what the respondents contend the evidence was at the trial. The fact that the defense has contested each piece of evidence does not of itself make the evidence disputable. For two months a jury, brought to Passaic County from a foreign county, heard the live evidence in this case. They did not act as if they found the evidence "exceptionally murky" or "conflicting." The deliberations were not protracted or strained. This is particularly significant in light of the considerable length of the trial. The jury did not return to the courtroom to have questions answered or testimony read back. The trial record shows that the deliberations lasted about 8 hours, which included time for lunch and dinner (46aA 10934).

C. EVIDENCE OF PETITIONERS GUILT ADDUCED AT THE 1976 RETRIAL

The prosecution at the 1976 trial presented eight major categories of evidence showing the guilt of petitioners Rubin Carter and John Artis.

The district court determined that "there in considerable dispute as to the identification of the [Carter] car at the scene." (1aD 5).

A compelling component of the overwhelming evidence of the defendants guilt presented by the prosecution before the jury was the positive identification of Rubin Carters 1966 Dodge Polara as the vehicle which left the scene of the Lafayette Grill killings, carrying the two murderer. Since the two petitioners were found in that car a scant ten minutes after the shootings, such identification pointed directly to their complicity.

Rubin Carters car was identified by two witnesses who saw the perpetrators escape as the vehicle used in the flight. This identification was assisted by distinctive identifying features of the car itself and was significantly confirmed by the fact that a shotgun shell and revolver bullet, each matching the respective calibers of the weapons used in the killings, were found in the car. Several hours after the murders, Rubin Carter stated to a police officer at police headquarters that the car was in his possession at the time of the murders and that he had the keys. Carter told the officer that no one else could have used his car (32aA 7080-81).

Patricia Graham Valentine unequivocally identified Carters 1966 leased Dodge Polara as the one which sped away from beneath her bedroom window with the two murderers. She lived directly above the Lafayette Bar and Grill and had been awakened about 2:30 a.m. on June 17, 1966 by shots from the tavern. Upon hearing a womans voice cry out, she looked out her window facing on Lafayette Street. She saw two black men on the sidewalk below her run to a white car parked away from the curb and facing toward East 16th Street. As the car was leaving, she attempted to get a description and the license plate number. She was able to observe that the license plate was dark blue with yellow or gold lettering and the taillights were shaped like butterflies, were triangular, wider at the outside and tapered towards the center (15aA 3346, 3354).

With respects to the taillights, Mrs. Valentine further explained that they did not light across the whole back of the car, that they were wide on the outside, tapering off, and not a direct triangle, since a direct triangle comes to a point and these did not, but tapered and "squared off" (16aA 3544-46).

Mrs. Valentine was taken by Officer Greenough (the first officer at the scene) upstairs to her apartment where she gave him a description of the car she had observed leaving the area and drew a rough sketch of the cars taillights for him on a scrap of paper (15aA 3374-75). After drawing the diagram for Officer Greenough she went downstairs and saw two police cars and a white car they were escorting pull up and stop alongside the Lafayette Bar and Grill. Officer Greenough then asked her to walk to the rear of the white car to look at the taillights, which she did, and which she recognized as "the exact same taillights." She then began to cry and ran around the corner to the front of the tavern (15aA 3380-82).

Mrs. Valentine identified Exhibit S-32 in Evidence, the photograph of the car leased by the defendant Carter, as "the car I saw leave away from my window, the car that they brought back to the tavern" (15aA 3383). Rubin Carters car was quite distinctive. It was all white. It was shiny and new. It was especially conspicuous because, in addition, it had New York license plates which at that time were blue with yellow-orange lettering. New Jersey license plates at that time had a cream-color background with black lettering. A photocopy of a photograph showing the distinctive rear view of the car was submitted to the district court (1aG 183).

Officer Greenough corroborated Patricia Graham Valentines testimony (30aA 6471-72). [In his testimony, Officer Greenough referred to Mrs. Valentine as Ms. Graham, her maiden name.]

Shortly thereafter, Mrs. Valentine went to police headquarters. She was taken by Detective LaConte to the adjacent police garage to observe the Carter car. She again identified the car as the getaway vehicle to Detective LaConte and gave a written statement as to that identification (15aA 3384-86; 24aA 5234-36). This was confirmed by the testimony of Detective LaConte (23aA 5065-67, 5100).

The second witness who identified the Carter vehicle as the one which sped from the crime scene was Alfred Bello. Mr. Bello was in the vicinity of the Lafayette Bar and Grill at the time of the shootings because he and two others, Arthur Dexter Bradley and Kenneth Kellogg, were attempting to effect a break and entry at the Ace Sheet Metal Company located at the other end of the block (19aA 4292-94).

While Bello was acting as lookout, he observed a new white car, highly polished, with two black males seated in the front circling the block. Two black males were seated in the car, the one on the passenger side having what appeared to be a weapon or pipe between his legs (19aA 4294-97). A little later, Bello started walking up Lafayette Street toward the Lafayette Bar and Grill to get cigarettes. As he proceeded further, he heard a volley of shots (19aA 4298-4309). He saw the defendants come from the bar. Rubin Carter was swinging a shotgun. John Artis had a pistol. "They were laughing and talking loud" (19aA 4300-02). Bello stated that while he was walking toward the Lafayette Grill he saw the same white car he had earlier seen, circling the block, now parked "out away" three or four feet, facing toward East 16th Street (19aA 4306-07). After he turned and ran down the street, Bello went into an alleyway. He heard the screeching of a car, came to the front of the alleyway and observed the same car he had been seeing and which had been parked near the bar come past. As it came by, it slowed down when the brakes were applied, and the back of the car "lit up" (19aA 4307-08).

When the police arrived, Alfred Bello described the car to one of the officers, telling him it was a white car, new, highly polished, with New York or Pennsylvania license plates (blue with orange or yellow lettering). He also told him "about a geometric design, sort of a butterfly type design in the back of the car." (19aA 4317). He also told the officer he saw two black males, giving a description of their clothes (19aA 4319).

About a half hour later, the police brought a car back to the scene which he described as the same white car he had seen earlier, the "identical car." (19aA 4320-22). Bello gave a written statement to Lieutenant James Lawless at police headquarters. He had been shown the Carter car which was then at the police garage and identified it, stating, "that was the car that I seen pull away." (19aA 4336).

Alfred Bellos testimony regarding the identification of the Carter car was also corroborated by Sergeant Theodore Capter. (Erroneously spelled Captor throughout the trial transcript.)

Sergeant Capter and his partner who were on patrol, had received the police radio alert at 2:34 a.m. that there had been a shooting at the Lafayette Bar and Grill. They saw a white car with New York plates, followed by a black car, speeding east on 12th Avenue (30aA 6533-37). See street diagram included in appendix (1aF 9). Surmising that the car would be headed for New York (New York plates), Capter then proceeded across 12th Avenue to 10th Avenue which runs parallel to 12th Avenue in an attempt to cut off the escape route. However, when the officers crossed the bridge onto Route No. 4, which leads to New York City, they were unable to see the white car ahead of them. They turned around and came back to Paterson (30aA 6535-37). They saw the white car crossing in front of them, which they stopped at the corner of East 28th Street and 14th Avenue. This was at 2:40 a.m., some six minutes after the initial radio alert (30aA 6537-38). The car which had New York plates (orange letters on a blue background) and "butterfly taillights" was occupied by three men, John Artis who was the driver, Rubin Carter, whom Capter knew and who was in the back seat, and a third man, Bucks Royster (intoxicated), who was seated in the passenger seat. Capter checked the license of the driver as well as the registration, and let them go on (30aA 6538-40).

Sergeant Capter and his partner then proceeded to the Lafayette Grill, where Alfred Bello came up to their car and described how he had been chased by a man with a shotgun. He also described the back of the car he had seen, stating it had an out-of-state plate and taillights that looked like butterflies when they lit up. Capter testified that upon hearing this description, "I looked at my partner and he looked at me and we took off looking for the car again" (30aA 6541-42).

Capter shortly thereafter spotted the same car, and escorted the Carter vehicle back to the Lafayette Grill (30aA 6542-43). When they returned, Capter called Bello over and asked him to look at the car, at which time, Bello said "thats the car." At that point, the two occupants, Rubin Carter and John Artis, were taken out of the car. Capter testified that the only reason he had brought the Carter vehicle to the Lafayette Grill was because of the description which had been given him by Bello (30aA 6581), which conformed to the car they had stopped at 2:40 a.m. (30aA 6590).

In summary, there was little room for doubt left to the jury as to the positive identification of Rubin Carters leased car as the vehicle which carried away the murderers from the scene.

The district court evaluated this record and somehow determined that "there is a considerable dispute as to the identification of the car." (1aD 5). The district court states that this portion of the evidence (identification of the Carter car) is "frayed." (1aD 54). The district court presents the defense arguments attacking the identification of the car, but does not say on what basis the court itself finds this evidence weak.

The district court recites the defense claim that there is nothing in the police reports to indicate that Mrs. Valentine identified the Carter car at the scene. However, the court does not refer here to the fact that when Mrs. Valentine saw the car upon its return to the scene she became hysterical and ran away. Doesnt this evidence clearly mean that when she saw the car, Mrs. Valentine believed it to be the same car she had seen only several minutes earlier and by her reaction stated as much. Her identification of the car is well documented in her statement to the police a short time later at police headquarters. The district court recites the defense claim that at one point in her Grand Jury testimony of 1966 Mrs. Valentine mistakenly referred to the model of the Dodge automobile as a "Monaco" as opposed to a Dodge Polara which, in fact, it was. Mrs. Valentine explained in her testimony at the second trial that she was not knowledgeable about cars or car models and that she did not know the difference between a Monaco and a Polara. However, she had no doubt that the defendant Carters car was the car which fled the scene (16aA 3617-19). See also (16aA 3557-58).

The district courts opinion on this point also repeats the defense claim that in her testimony at the first trial Mrs. Valentine referred to the rear of the Carter car as "similar" to the car she saw, while at the second trial she testified it was "identical." (1aD 54) The fact of the matter is that the district courts reference to Mrs. Valentines use of the term "similar" is mistaken. The district court says that Mrs. Valentines testimony that the taillights were identical was new to the second trial (1aD 54). This is not so. A reference to the sequence of questions in which the term "similar" was used shows that Mrs. Valentine did not upgrade her testimony for the second trial as the district court implies:

Q: Referring gentlemen to Page 2.148, do you remember, Mrs. Valentine, being asked these questions and giving these answers (at the first trial)?

"Questions: And you told Officer Greenough you looked at the car that was brought back and you told him that this was the car?

Answer: That this was the taillights that I had seen.

Question: So what you meant, what you did say to him was it was a similar type of car is that right?

Answer: The same kind of taillights. (16aA 3508).

It was the defense attorney at the first trial in his question who used the term "similar." It was not Mrs. Valentine. She testified that the taillights on the Carter car were the same taillights she had seen. At both trials, Mrs. Valentine testified that the taillights were identical.

The district courts opinion seems to imply that some adjustment was made by her in her testimony, at the second trial. If that is the courts implication, the appellants suggest that it is most unfair to this witness based on this record. While it is theoretically possible that there could be two big, white, highly polished, brand new cars with those distinctive taillights bearing blue license plates with yellow or gold letters in that area of Paterson within those crucial minutes, it presents a proposition that constitutes the most extraordinary coincidence.

The district court opinion states regarding Bellos identification of the car:

While Bello also claimed at trial to have identified the getaway car to police when they arrived at the scene, the police radio merely describes the car as white with two black males inside (30aA 535) (1aD 55).

This statement of the record by the district court simply skirts the truly relevant and probative evidence as to Alfred Bellos identification of the Carter car. What difference does it make as to whether Alfred Bello identified the car at the scene, what information may or may not have been given out on the police radio at some particular moment? There can be no dispute from the record that Alfred Bello did identify the car at the scene. It is clear from the record that Alfred Bello described the car in detail before it was brought back for him to see again in the presence of the police. Aside from his description of the car to the first responding officers, it was what Alfred Bello said about the car to Officer Capter that caused Officer Capter and his partner to go back on the road and relocate the Carter car.

In presenting its position that the evidence of the identification of the Carter car is weak, the district court points out that it is significant that the police chased and stopped several other white cars after the shootings (1aD 55). The officers involved with these other white cars both testified that they were sure that the other white cars had New Jersey plates and that none of these cars had foreign or out-of-state plates (40aA 9240; 41aA 9590). New Jersey plates were not blue with gold or yellow lettering at that time. The murderers car had out-of-state plates. How can the district court attribute significance to the reference to these other white cars, when the undisputed evidence is that they all had New Jersey plates? Why doesnt the district court mention that these other cars had New Jersey plates?

The identification of the car was not based simply on the testimony of Alfred Bello (although there is no dispute from the evidence that Alfred Bello was there and saw the car leave). The car was identified independently by Mrs. Valentine. She had no connection with Alfred Bello or his identification of the car.

There is a wealth of good, hard evidence to support the identification of the Carter car. This evidence cannot be overcome short of making totally adverse credibility assessments of the testimony of state witnesses under circumstances where there is no support for such evaluations in the record. The district court did not have the opportunity to observe the sincerity of Patricia Graham Valentine, Alexander Greenough and Theodore Capter as the jury did.

Additional evidence linking that car to the crime was found in the car itself. This consisted of a shotgun shell and a revolver bullet, each respectively matching the caliber of the weapons used to shoot the four people inside the Lafayette Grill.

The district court opinion states:

Meanwhile, police searched the car in which they later alleged that they found a live 12-gauge shotgun shell in the trunk and a live .32 caliber shell on the floor of the front seat. There was considerable dispute about this evidence. (1aD 5).

The district court determined that this is another area of evidence that is weak ("frayed") (1aD 54). The record suggests just the opposite. Here again the district court does not state why the court concluded this evidence is weak. Rather the district court recites two of the petitioners arguments again this evidence (1aD 59-60). These arguments may be referred to as the "vouchering argument" and the "dissimilar ammunition argument."

"Vouchering Argument" this argument attributes significance to the fact that while the bullet and shell were recovered on June 17, 1966, they were not vouchered with the property clerk until June 22, 1966. The district court concludes from this vouchering delay that the bullet and shell came from the Holloway murder which occurred several hours earlier. Detective Emil DiRobbio, who was at headquarters received instruction from Lieutenant Lynch, who was at the crime scene, to search the Carter car which was being driven to headquarters. Detective DiRobbio retrieved from the car a live 12-gauge Western shotgun shell and a live .32 caliber S&W long bullet (35aA 7971-77). He entered the bullet and shell in Detective Bureau Property Book under Tag No. 23887 and recorded the same in his report on the morning of June 17, 1966 (35aA 7985-88). Paul Alberta, newspaper reporter with the Passaic Herald News, witnessed the recovery of the bullet and shell and confirmed Detective DiRobbios testimony (35aA 7977-78). Mrs. Valentine and Detective Donald LaConte were entering the police garage to view the Carter car when they met Detective DiRobbio exiting the garage. Detective DiRobbio showed Detective LaConte the bullet and shell. This was confirmed by Mrs. Valentine (15aA 3384-86; 24aA 5234-36) and Detective LaConte (23aA 5064-66). Chief Vincent DeSimone (Lieutenant DeSimone in 1966) testified that he showed Rubin Carter the bullet and shell at headquarters the morning of the murders and Carter replied he had no idea how they had gotten into his car (32aA 7080-81). The defendant Artis testified that he was shown the bullet and shell at headquarters the morning of the murders and was told they came from Carters car (42aA 10016). In the fact of all this evidence of the recovery and presence of the bullet and shell on the morning of the murders, the fact that they were not vouchered with the property clerk until five days later is insignificant.

"Dissimilar Ammunition Argument" The ammunition recovered from the Carter car was the same size and caliber as that used in the murders. This is not an extraordinary coincidence. It is highly probative. No ballistic information was available at the time of the recovery of the bullet and shell. Detective Lintott, the ballistic expert, testified that two different kinds of 12-gauge shotgun ammunition was used in the two shots fired from the shotgun in the murders (36aA 8268-80). The 12-gauge shotgun shell from the car couldnt have matched both shells from the murders. The .32 caliber shell couldnt have been confused with evidence from the Holloway murder since no handgun was involved in that case. The district court presents the empty arguments of the petitioners to support the courts position that the bullet and shell evidence is weak.

The murderers car fled the scene at 2:30 a.m. (30aA 6465; 33aA 7414; 35aA 7971). Officer Capter stopped the Carter car occupied by the defendants at 2:40 a.m. (30aA 6535-38; 6567-68). The evidence shows that there was only one car involved and it was the Carter car. The whereabouts of the car in the aforesaid ten minute interval confirms the culpability of the defendants. The district courts opinion does not deal with the route of travel of the car which takes it to locations which connect to the defendants. The New Jersey Supreme Court opinion affirming the convictions considered this area of the case important enough to warrant including with its opinion, a diagram referencing the route of travel. To understand this area of the case, it is necessary to refer to that diagram (1aF 9). The jury readily understood this part of the case because it heard extensive testimony aided by maps and diagrams. However, this area is not so easily understood from the record. If the Court had accepted our previous brief it would follow the presentation of this important area of the evidence much more readily than it can be shown here within the confines of the page limitation.

The respondents-appellants contend that the evidence shows that after the murders, the murderers car went to the Nite Spot Tavern several blocks away and then to the home of Eddie Rawls. These two locations connect significantly with the defendants and confirm their complicity and the States theory of the case. The defendants were frequent patrons of the Nite Spot. A portion of the tavern was reserved for the defendant Carter (39aA 9094-99). They had spent considerable time at the Nite Spot that evening. The manager, who was Carters personal advisor and chief second, testified that Carter left the Nite Spot 15 minutes before the murders (39aA 9054-55). The respondents-appellants contended at trial that the people in the Lafayette Grill were killed in retaliation for the brutal murder of Roy Holloway several hours earlier. Mr. Holloway was a black man who owned the Waltz Inn, a tavern several blocks from the Lafayette Grill. He was murdered when a white man walked into Holloways Tavern and fired a shotgun blast at his head at close range. He is referred to in the testimony as Eddie Rawls father (actually his stepfather). Eddie Rawls was a bartender at the Nite Spot who was friendly with Carter and Artis and who was with the defendants at various locations, including the Nite Spot, after his fathers murder and before the Lafayette Grill murders (36aA 8343; 8370-72).

Officers Nativo and Tanis saw the white car on East 18th Street turning onto 12th Avenue at 2:34 (40aA 9221-24). Officers Unger and Greenough did not see the white car come past them on Lafayette Street (17aA 3725-27); 3747; 30aA 6500). The car had to enter East 18th Street by Governor Street thus taking it to the Nite Spot at Governor Street and East 18th Street. Because the car was on East 18th Street at 2:34 a.m., it had to have stopped somewhere momentarily. The State contended that it likely stopped at the Nite Spot where the intoxicated Royster was picked up. Sergeant Capter saw the white car with foreign plates speeding down 12th Avenue and six minutes later stopped the Carter car five blocks away proceeding at a slow speed on East 28th Street (30aA 6568). If lines are drawn in the direction the car was going on 12th Avenue and coming from on East 28th Street they intersect at 12th Avenue and East 28th Street which is the location of Eddie Rawls home. The State contended that they stopped at Eddie Rawls home to unload weapons and change clothes and this accounts for the six minute time interval and the fact that the car was speeding on 12th Avenue and going slow on East 28th Street.

The district court recites the empty arguments of petitioners that Sergeant Capter could not identify the Carter car as the one he chased out of town (1aD 58-59). Firstly, Sergeant Capter did not chase the Carter car out of town. Second, while he did not get the plate numbers of the white with out-of-state plates that sped past him on 12th Avenue, he did say "It [Carter car] looked the same" (30aA 6572-73). The district court ignored this. Furthermore, the defense, in effect, admitted it was the Carter car which Sergeant Capter saw travel down 12th Avenue. The defendant Artis testified that he and Carter traveled in the same direction down 12th Avenue in Carters car at about the same time Sergeant Capter made his observations (43aA 10093). It is ridiculous, in the totality of the evidence, to suggest that two cars looking like this car traveled down 12th Avenue within a minute or two of one another.

There is no dispute in the evidence that at the time of the murders, defendant Carter had owned certain guns, including a 12-gauge shotgun. These guns had been missing for about a year. While these guns had been missing all that time, the evidence showed that the defendant Carter was searching for his guns, for the first time, in the space of the few hours from the time that Mr. Carter met Edward Rawls and learned of his fathers murder and the time of the Lafayette Grill murders (36aA 8339-49).

The district court states (1aD 24) that, ""the search [for Carters guns] may have occurred even before petitioners knew of the shooting of James Oliver (36T 140-145)." (Emphasis added). This statement by the district court apparently contains a typographical error. The court must have intended to say that the search may have occurred even before the petitioners learned of the death of Leroy Holloway who was Eddie Rawls stepfather. James Oliver was the bartender at the Lafayette Grill.

The appellants specifically submitted to the district court the pages of Rubin Carters Grand Jury testimony which correspond to the testimony read to the trial jury. This transcript was enclosed with a letter to the district court from First Assistant Prosecutor John P. Goceljak dated October 1, 1985. That letter and the relevant transcript has been included in the appendix as (1aD 335-345). The contents of page 140 of volume 36 of the trial transcript appear on page 150 of the Grand Jury transcript as indicated there.

On page 140, Rubin Carter momentarily says he and Mr. Morrison drove off from the Nite Spot without getting out of the car. However, he immediately takes this back and says that he (Carter) got out of the car, spoke to Eddie Rawls about his fathers death and then drove off to search for his guns. The pages of the testimony which follow do not support the district courts statement that "the search for guns may have occurred before the petitioners learned of Mr. Holloways death". This testimony cannot be made to read that way short of distorting what is clearly stated there.

In his Grand Jury testimony, as read to the jury in the retrial, defendant Carter testified that after he returned again to the Nite Spot there was talk of retaliation concerning the murder of Leroy Holloway, and "It was all around that there was going to be some shaking going on." At the time Eddie Rawls was at the Nite Spot with his brother (36aA 8352-57). Carter further stated that he met Eddie Rawls again at Richies Hideaway at about 1:20 a.m. (36aA 8370-72).

Was this evidence regarding the defendant Carters search for his guns "frayed"? The district court doesnt say that it was and it doesnt say that it wasnt. It avoids any such evaluation. The district court states that the search for guns does not constitute evidence of motive (1aD 23-24) and then when the court goes on to itemize and present each area of the States evidence which the court says is weak ("frayed"), it simply does not include any mention of the area of the evidence that deals with the defendant Carters search for his guns.

The only response to this evidence from the district court is contained in its discussion of the relevance of the search for the guns to the question of motive. The court states:

links of this evidentiary chain are corroded. There was no evidence that Carter found the weapons (1aD 23).

The fact that there was no definitive evidence to show that Carter found his lost guns or located other weapons, does not in the slightest detract from the value of the evidence that he was searching for long-missing guns under all these surrounding circumstances. It is not reasonable to expect that there will ever be a criminal case in which the prosecution can account for every step, every act, every thought undertaken by the defendant during the time leading up to the commission of the crime. This is particularly true in murder cases. The fact that in every criminal case, the prosecution cannot present a universal accounting of the defendants thoughts and acts just prior to the crime, does not of itself constitute a valid basis to assail that information about the defendants activity which has been discovered and can be submitted in evidence.

In his oral statement, as recorded in the notes of Lieutenant DeSimone, and read to the jury, the defendant Artis said that he had met Carter shortly after 10:30 p.m. on the evening before, accompanied him to the LaPetite Tavern where Carter spoke to his manager for about an hour and a half, then went to the Nite Spot at 11:30 p.m. (32aA 7044-47). According to Artiss statement, he and Carter stayed at the Nite Spot until the bar closed, which was at 3:00 a.m., and Carter did not leave the Nite Spot while they were there (32aA 7047-49).

The defendant Carter stated that he had initially gone to the Nite Spot at 10:00 p.m., stayed about 20 or 30 minutes and then went to the Club LaPetite where he spoke to his manager, Nathan Sermond. He talked to him about 45 minutes, left there alone and returned to the Nite Spot, where he met Eddie Rawls (32aA 7054-56). The defendant Artis had said he was with the defendant Carter at the LaPetite Tavern.

The defendant Carters statement continued that he, Eddie Rawls, Artis and another man then went to Richies Hideaway, a tavern located in another section of the city, this being sometime around midnight or thereafter. According to Carter, he left there with Artis and was then stopped by the police. The defendant Artis in his statement maintained that they never left the Nite Spot after he and Rubin Carter arrived there from the Club LaPetite.

Aside from the fact that what each defendant said was inconsistent, what is also significant is what they did not say. The defendant Carters account of his whereabouts began with his eating dinner at 5:00 p.m. on June 16, 1966 and continued to 3:00 a.m. of June 17, 1966 without any mention of his efforts and travelings in search of his long-missing guns, supra.

Two police units, that of Officers Nativo and Tanis and that of Sergeant Capter and Officer DeChellis saw the murderers car traveling down 12th Avenue, supra. In their oral statements both Carter and Artis omitted any mention of being on 12th Avenue. At the second trial, the defendant Artiss testimony put him in Carters car on 12th Avenue at about the time the police units made their observations (42aA 9973).

The district court concluded that this evidence was "frayed" (1aD 54). The district courts statement (1aD 60) that the petitioners dispute the accuracy of the verbal statements of the defendant Carter, creates a credibility question. The resolution of such questions is best left to rest with the good sense and judgment of the men and women who saw and heard the evidence as it unfolded, rather than for one man to overturn such assessments based on his perusal of a voluminous and lifeless record. Rubin Carters statement to Lieutenant DeSimone was not specifically contradicted by him because the defendant Carter did not testify. The district court opinion makes a determination of credibility on this issue in favor of the one party to the conversation who did not testify.

The district court states that the notes do not include any reference to Carters whereabouts during the crucial time between 2:00 a.m. and 3:00 a.m. (1aD 60). The notes of the oral statement by Artis read as follows:

We left and went to Nite Spot (Rubin and I) (about 11:30 p.m.) We stayed at the Nite Spot till the bar closed Bar closed at 3 We were driving in Rubens car on Godwin Ave to Gradys to get something to each when police stopped us.

It couldnt be clearer but that the notes state that Carter was at the Nite Spot between 2:00 a.m. and 3:00 a.m.

The pertinent portion of the notes of the oral statement of Rubin Carter read as follows:

We went to Ritchies Hideaway. I went into Ritchies Hideaway alone and the others stayed outside. This was about 12 midnight or afterStayed about 30-45 min. Left with John Artis went to Bridge St. and a police car pulled us overI asked Officer what was wrong, he said he was looking for a white car (1aF 13-14).

Just prior to his encounter with the police, Rubin Carter according to the notes of his oral statement was at Ritchies Hideaway from sometime after midnight until he left with John Artis and went to Bridge Street where they were pulled over.

Lastly, the district court (1aD 60) refers to the New Jersey Supreme Courts criticism of the admissibility of these notes in Carter I, 54 N.J. 436, 446 (1969). However, the Supreme Courts concern had nothing to do with matters related to this trial. The New Jersey Supreme Courts concern had to do with a Bruton question (Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 [1968]).

In the context in which it is presented, the district courts statement that the New Jersey Supreme Court criticized the admissibility of the oral statements conveys the idea that the criticism obviously relates to the admissibility of the statements at the trial under review, namely, the second trial. The fact is that the criticism related to the first trial and does not pertain to the second trial. Furthermore, since the criticism concerned a Bruton issue which was not involved in the second trial, why did the district court even bother to mention this criticism, except that on its face, but not in fact, it seems to support the courts contention that this evidence is frayed?

The evidence presented at the trial showed that John Artis testified falsely in accounting for his whereabouts in the early morning hours of June 17, 1966. Mr. Artis testified that he arrived at the Nite Spot "around midnight" (43aA 10067). Sometime thereafter, Mr. Artis testified he left the Nite Spot and walked to the home of a friend named Donald Mason. The home was on 12th Avenue. John Artis said he had the keys to Donald Masons home which he had obtained from Mr. Mason some time before (43aA 10071-73). John Artis said that when he arrived at Donald Masons house, Mr. Mason was there with a girl and Mr. Artis had a drink there (43aA 10074-75).

On rebuttal, Donald Mason was called as a witness by the State. He was a very credible witness and his testimony directly contradicted John Artis. Mr. Mason said that he lived on 12th Avenue at the time of the murders. He testified that during the evening and early morning hours when Mr. Holloway was killed and the people at the Lafayette Grill were killed, John Artis did not come to his apartment (44aA 10435-36). Mr. Mason testified that he did not give the keys to his apartment to John Artis on that night or at any time. Mr. Mason said: "I was living with somebody and she had kids, so I didnt give my keys to nobody." (44aA 10436). At the time of the murders this man had known John Artis ten years (44aA 10467).

From this evidence, the jury had very good reason to believe that the defendant Artis lied about his whereabouts and activities in the critical time period just before the murders. This evidence was meaningful to the jury. The district court ignored it.

In his testimony at the retrial, John Artis attempted to misrepresent his relationship and associations with the co-defendant, Rubin Carter:

Q. How long had you known Rubin Carter, or how well had you known him up to that point?

A. Well, I didnt know him well at all. I had only met Rubin personally to have someone introduce us, that is, about two weeks prior to that, three weeks, something in that nature. To the extent like to have him as a personal friend or something like that, it wasnt. He was just a casual acquaintance, really. (42aA 9962).

Q. How long had you known Rubin Carter at that time (time of murders)?

A. Couple of weeks, a few weeks, something like that.

Q. How many times had you palled around with him?

A. Palled around with him?

Q. Yes. How many times were you with Mr. Carter prior to that day (day of Lafayette Grill murders)?

Q. Two or three times. (43aA 10051). (Emphasis added).

The prosecution produced Evonne Seldon as a rebuttal witness. The defendant Artis had dated her sister, Alice, prior to the Lafayette Grill murders (43aA 10238). She testified that she also knew the defendants Carter prior to that time (43aA 10236). Evonne Seldon testified that prior to the Holloway killing and the Lafayette Grill shootings, she had seen Rubin Carter and John Artis together "many times." She said that prior to the killings she had seen them "palling around together" at the Kenya Club, the Paradise Club, Club LaPetite, the Nite Spot, the Polynesian Bar, Richies Hideaway and other bars. She said they were "close friends" (43aA 10236-37).

At the second trial, Rubin Carters friends, Welton Deary (27aA 5805), Anna Brown (27aA 5872) and Catherine McGuire (28aA (a.m.) 5995) all testified that they lied when they gave alibi testimony for Carter at the first trial. William Hardney was a former sparring partner of Rubin Carter, who testified at the second trial that prior to the first and second trials, Rubin Carter solicited him to give false alibi testimony for Carter (27aA 5736). The district court said that this was "the most damaging evidence against Carter" (1aD 60). However, the district court determined that this evidence also was "frayed" (1aD 54).

Without saying why it found the evidence weak, the district court recites the defense argument that the lives of the original alibi witnesses changed between the first and second trials (1aD 62). Welton Deary had become a housing authority officer. Is this a basis for him to admit he committed a crime at the first trial? Can this be thought to enhance his position with the housing authority? The district courts assumption is that because he was a law enforcement officer this is the basis to assume he deliberately testified falsely about the defendant. Catherine McGuire was engaged to a black police officer at the time of the second trial. The district courts implication is that engagement to a policeman is the basis to conclude she testified falsely at the second trial. Anna Mapes Brown is the mother of Catherine McGuire. The district courts implication here must be that being the mother of a girl who is engaged to a policeman is the basis to assume that Anna Mapes Brown lied at the second trial. Mr. Hardney did not testifiy at the first trial. The testimony of each of these witnesses confirms that of all the others.

In support of its position that this evidence is frayed, the district court states:

Finally, petitioners point to Unites States v. Burse, 531 F.2d 1151 (2 Cir.. 1976) to underscore the point that the jury should not have utilized disbelief of an alibi defense to lessen the states burden of proving guilt by a reasonable doubt. (1aD 63).

The State has never suggested that the fabricated alibi evidence lessens the burden of proof. Burse does not relate to any issue in this case. As the district court did with its reference to Bruton, supra, it refers to Burse in a way to make it appear to support the district courts position when, in fact, it is totally inappropriate. Contrary to what the district court says, the petitioners never have pointed to or cited Burse in any brief in any appeal in the history of this case. The only time Burse ever was mentioned was when the district court itself raised it in the so-called oral argument of July 22, 1985.

The prosecution offered to introduce evidence that the motive for the shooting of the Lafayette Grill bartender, James Oliver, was as retaliation for the similar shooting committed several hours earlier when a white man fired a close-range, shotgun blast at the head of Leroy Holloway, a black bar owner who was the stepfather of Eddie Rawls, a close acquaintance of both defendants. Further, that the other three persons who happened to be in the Lafayette Grill at that time were shot to eliminate witnesses to the event. The prosecution alerted the trial court and the defense to this at a pretrial conference (14aB 1620).

The prosecution avoided any reference to the matter of motive in its opening statement and well into the trial, until the trial court ruled on the question after a proffer of evidence and after argument from both sides. Early on in the trial and well in advance of the courts ruling, the defense introduced to the jury, in no uncertain terms, the theory that the motive for the killings at the Lafayette Grill was to avenge the earlier killing of Mr. Holloway at the Waltz Inn.

Specific reference to the revenge motive was contained in a tape-recorded interview of State witness Alfred Bello by Detective Lieutenant Vincent DeSimone and Detective Robert Mohl. This tape recording and its accompanying transcript were offered to the jury by defense attorney, Myron Beldock who requested that the entire tape be played (21aA 4661).

The district court is mistaken when it says that the transcript to this interview was offered by the State. The district court is also wrong when it says that "Bello suggested that revenge was the motive" (1aD 22, n. 5). It was Lieutenant DeSimone (not Bello) who states:

"I firmly believe that these men went in there simply for the reason of revenge because there had been a shooting earlier. I firmly believe that these men just wanted to get even." (Emphasis added) (2aF 232-233).

The "shooting earlier" referred to in the above excerpt was defined for the jury by the defense when, very shortly after the aforesaid tape was introduced, defense attorney Myron Beldock cross-examined Detective Donald LaConte. As noted by the district court (1aD 22, n.5), this "Paterson Police Detective testified under cross-examination that he was present during the funeral of Holloway in his capacity as an investigator in the Lafayette Bar murders." The fact that the investigation of the Lafayette Grill murders was connected with the murder of Mr. Holloway was opened to the jury by the defense.

The defense would want to have it both ways. They wanted the jury to hear the tape in its entirety and to read the transcript. But, at the same time, they want to preclude the State from offering evidence of the revenge motive which is specifically recited on the tape. Why didn't the district court deal with the significant factor that the revenge motive was introduced to the jury by the defense? That may be because the district court thought that the tape and transcript were offered to the jury by the State (1aD 22, n. 5).

If the trial court had ruled against the State and not permitted the State to offer evidence and argument as to the motive, the jury nevertheless would have known of the theory of the revenge motive because it specifically was delineated for them by the defense. The prosecution recognized the sensitivity of the issue of motive and dealt with it in a responsible way. It was the defense who injected numerous statements about race into the case. If the district court had read the voir dire it would have learned that it was the defense who insisted that, in addition to numerous other questions regarding race, jurors by questioned about racial riots and tensions in Paterson and Newark during the mid-sixties. It also would have learned that the prosecution insured that blacks be included on the jury (two blacks deliberated on the verdicts). The racism in this case was the awful crimes the defendants committed. It is a travesty, in the face of this record, for the district court to make sensational statements attributing racism to the prosecution. The prosecution has an obligation to disclose the truth in a fair way. Justice is not served by hiding the truth because it is unpleasant to hear.

From the totality of the evidence it was clear that the people in the Lafayette Grill were shot in retaliation for the murder of Mr. Holloway. The evidence presented at the trial eliminated robbery as a motive. Two people from the Lafayette Grill were still alive when the police arrived. William Marins told Officer Unger that it was not a holdup (17aA 3789) and that two black men came in and just started shooting (17aA 3728-32, 3789). Hazel Tanis told Detective Callahan the same thing (33aA 7515-20). The district court does not discuss the significant consideration (clearly shown by the evidence) that this was not a robbery but a premeditated murder in the style of an execution.

It is not surprising that the investigation of the Lafayette Grill murders almost immediately looked toward a connection with the murder of Mr. Holloway. Two bartenders were murdered. Each man was killed by a single blast from a shotgun fired at close range. The murders occurred in Paterson, several hours apart while the victims were tending bar at taverns down the street from each other. Neither murder involved a robbery. While there was considerable evidence beyond this basic information to link these murders, just these bare facts raise a natural projection that there is a connection between the killings and a competent investigation should look in that direction.

Detective Callahan (32aA 7192-94) and Officer Charles DeFranco (31aA 6865-69) testified that Frank Conforti, the man who murdered Mr. Holloway, was removed from the Waltz Inn only after police officers formed a cordon through a predominantly black crowd to convey Conforti to the police car.

Defense witness Clarence Carrs testimony does not contradict the detective and the officer as the district court claims (1aD 20-21). Mr. Carr confirmed that there was a large crowd (black except for a "few whites") around the police. He said these people were upset about the killing of Mr. Holloway and that when he came out of the tavern there were "quite a few (police) cars" there and that there were two rows of police officers leading right up to the car in which Mr. Conforti was being placed (41aA 9435). This testimony was a confirmation rather than the contradiction suggested by the court.

Rubin Carter told the Grand Jury that after Mr. Holloways murder there was talk of retaliation (a "shaking") at the Nite Spot (36aA 8356-57). Carter and Artis went to the Nite Spot together. Eddie Rawls was at the Nite Spot at this time. He took off work as the bartender because of his fathers murder but spent much of the evening at the Nite Spot (39aA 9057-58; 9094). The first thing Rubin Carter did after talking to Eddie Rawls about his fathers death was to try to find his guns which had been missing almost a year. The district court ignores the obvious significance of the context and timing of Carters search for guns and offers the ridiculous statement that the "search [for guns] adds nothing to the evidence of motive" (1aD 24).

Eddie Rawls had gone to police headquarters demanding to know from Detective Callahan what the police "intended to do about the guy that killed his stepfather." Rawls told the detective that if the police didnt take care of it "we will goddamn do something about it." Rawls was aggravated and ordered to leave by the detective (33aA 7315-16, 7317-18).

The testimony of defense witness William Johnson did not contradict the testimony of Detective Callahan as claimed by the district court (1aD 20-21). It confirmed it:

Q. What did he [Eddie Rawls] tell the detective?

A. Well, he asked the detective could he see the man that killed his father. And the detective told him no. And he asked him what were they going to do about it. And the detective told him, the detective told him, we are going to handle it. And he said, if you dont, I will (34aA 7649-50).

The district court states that "there was no evidence that either petitioner knew that it was a white man who killed Holloway(1aD 22). This is an incredible statement for the district court to make. The murder of Mr. Holloway was a horrifying event. The news of this was well known in the black community. There was an angry crowd outside the Waltz Inn. There was talk of it all around Paterson according to the defendant Carter. The defendant Artis admitted that the first time he spoke with Rubin Carter that evening they talked about Eddies father having his head blown off (36aA 8334-36). The defendant Carter stated that he spoke with Eddie Rawls at the Nite Spot after Mr. Rawls returned from the hospital where he found his father dead. Carter and Artis were with Eddie Rawls at Richies Hideaway at 1:30 a.m. (36aA 8370-72). The defendant Carter said the murder of Mr. Holloway was being talked about at the Nite Spot. He said there was talk of a "shaking" which means retaliation. How could anyone look at this evidence and suggest that from all the defendants heard and from all the defendants talked about and from all that was being said about the awful murder of Mr. Holloway, the defendants did not learn that the murderer was white? How could the defendant Carter be a witness to the talk of a "shaking" and now know that the victim was white?

Eddie Rawls connection with the defendants involvement in the Lafayette Grill murders was further evidenced by the fact that prior to the first trial he had been instrumental in taking fake alibi witnesses to defense counsel to assist the defendant Carters case. These witnesses testified at the trial that their original alibi testimony was false. STRUCTURING AND SUBMITTING A FALSE ALIBI, supra.

Officer John Unger had responded to the Lafayette Grill, since he and his partner, Officer Greenough, were regularly assigned that area of patrol. He had been assigned this area for two years preceding June 16, 1966 (17aA 3747-49). He, therefore, was familiar with the Lafayette Grill, as well as the Nite Spot and Waltz Inn Tavern, as well as the ethnic and racial make-up of the area (17aA 3749-51). He described the Lafayette Grill as a "white" bar while the Waltz Inn and the Nite Spot were patronized by blacks (17aA 3753-56). Officer Unger previously had responded to the Lafayette Grill on complaints resulting from Olivers refusal to serve blacks (17aA 3757-58).

The district courts opinion seems to undertake a character study of the defendants as some basis for the projection that it is not likely that these particular defendants would commit these crimes for these reasons. The district court states:

Arrested four months later for the murders were Rubin Carter, a well-known professional boxer who lived in Paterson, and who was, at 30 years old, reaching the peak of his career, a contender for the middleweight crown; and 20 year-old John Artis, who was about to enter college on a scholarship (1aD 3).

The implication suggested by the district court is "why should these defendants shoot total strangers" (1aD 17, 19-20, 22, 33). This is even more inexplicable, the district court suggests, when one of the murderers (the defendant Carter) is "well-known in the community and easily recognizable" (1aD 20). It might be suggested that when the perpetrator of the crime is "well-known in the community and easily recognizable," that presents especially strong motivation for the elimination of all witnesses.

The district courts view that at the time of the murders the defendant Carter was reaching the peak of his career and was a contender for the middleweight crown is mistaken. There was no evidence presented at the trial to show that, at the time of murders in 1966, Rubin Carter was "reaching the peak of his career" as a middleweight boxer or that he was about to fight for the championship. John Artis had been out of high school for two years at the time of the murders in June 1966. He was not arrested until October 1966 and he had not begun college at that point. There was no evidence that he ever had submitted any papers towards college enrollment. There was no evidence to show that, at the time of the murders, John Artis had a college scholarship. How can the district court say he was "about to enter college on a scholarship"? In fact, John Artis testified that, at the time of murders, he had been unemployed for some time and was about to be drafted into the armed services (42aA 10024-25).

The prosecution contended that James Oliver was the target of retaliation and that the rest were shot in an effort to eliminate witnesses. James Oliver was not a "stranger" in the sense that the prosecutions theory suggested (as the district court wrongly implies) that he was murdered just because he was white. A well-liked black man was killed by a white man in Paterson during a period of racial tension. The black man was a bartender. James Oliver was not just any white man, he was a bartender. His bar was on the boundary line of the white and black communities. His bar was down the street from the bar where the black man was murdered. Mr. Olivers bar was on the white side of the boundary. Mr. Holloways was on the black side. Mr. Oliver had a history of being prejudiced about serving blacks. James Oliver, therefore, was not just any white man in the sense that he was "a stranger" as suggested by the district court. He was, in fact, the perfect target as argued by the prosecution at the trial.

There is one reference in the opinion where the district court points out a racially prejudicial statement from the testimony of State witness, Alfred Bello:

In fact, the only blatantly racial statement placed before the trial court was Bellos testimony that while he was being interviewed by a prosecutors detective in October 1966, that detective referred to blacks as "niggers" and "animals" (1aD 26).

The way the district court presents this statement conveys the natural understanding that Mr. Bello testified at the trial to these racial slurs being made and that it was "placed before the trial court" by the State. The fact of the matter is that these racial slurs were "placed before the trial court" by the defense. The fact of the matter is that, in his testimony at the second trial, Alfred Bello, said that it was not true that racial slurs were made by the detective (21aA 4618). The fact of the matter is that this statement, attributing racial slurs to a county detective, is part of a statement taken from Mr. Bello by a defense investigator in 1974 (21aA 4612). This statement has come to be referred to as the "recantation." In it Alfred Bello recanted his identificaqtion of the defendants Carter and Artis as the murderers. This is discussed in the next section. The trial judge at the first trial presided over hearings in 1974 based on this recantation. In a lengthy and sound opinion. State v. Carter, 136 N.J. Super. 271 (Cty. Ct. 1974), that court determined that Alfred Bellos recantation was not true. That opinion has never been questioned by any reviewing court. At the retrial in 1976, there was considerable, persuasive evidence to support Alfred Bello' testimony that the recantation was untrue and solicited by bribe offers from the defense. This is outlined, infra.

Why didnt the district court say that this evidence of racial slurs was "placed before the trial court" by the defense? Why didnt the district court say that, in fact, Mr. Bello said it was untrue? Why didnt the court mention the ruling of the first trial court that found the statement containing racial slurs to be untrue? This reference by the district court to racial slurs is not a fair presentation. It distorts the true facts of the record.

At the 1976 trial, eyewitness identification testimony was given by Alfred Bello, who testified positively that he saw the defendant Carter, swinging a shotgun and the defendant Artis carrying a pistol,come from the Lafayette Grill moments after he heard a series of shots emanate from the bar (19aA 4300-06). The district court views Mr. Bellos testimony as the "crucial" evidence against the defendants and the "pillar" of the States case (1aD 17, 43). Respondents-appellants maintain that the compelling evidence against the defendants was the strong circumstantial evidence presented at the trial. Mr. Bello was subject to the most extensive cross-examination. He was questioned for days by two teams of experienced defense attorneys. He was confronted "ad nauseam" with his unsavory past and volumes of contradictory statements. If Mr. Bellos testimony was the "crucial" evidence of the defendants guilt, 24 detached and unrelated civilians could not have unanimously so readily voted to convict the defendants of these murders. In order to evaluate Alfred Bellos role in this case, it is necessary to understand the complicated and extensive sequence of events involving Alfred Bello over a period of many years. In our previous briefs which the Court rejected because of oversize, 26 pages were required in order to present an overview of this part of the case. Since we cannot present our position in the space available here, we respectfully ask the Court to permit us to resubmit the presentation from our previous briefs in this area.

Mr. Bellos testimony was tested in a courtroom by means of confrontation and cross-examination. Each side will present its selected references from his statements in this case. Nothing can substitute for a review of the entire record at the trial tracing Alfred Bellos involvement in this matter. One thing is clear, while Mr. Bello is certainly not the pillar of the community, he was at the scene and he saw the getaway car and the murderers. Mr. Bello described the car before it was returned to the scene where he identified it. Within five minutes of the murders, Mr. Bello described the kind of weapons (shotgun and pistol) seen by him in the hands of the murderers, Mr. Bello described the kind of weapons (shotgun and pistol) seen by him in the hands of the murderers before there was any ballistics information or any other way to know the kind of weapons used. Ronald Ruggerio testified that he saw Bello running down Lafayette Street and saw a white car speeding down behind him (40aA 9275-82; 9300-04).

The district court makes repeated references to the fact that Mr. Bello changed his testimony several times in the course of his involvement in this case (1aD 56). At the first trial in 1967, Alfred Bello testified that he was on the sidewalk outside the bar when he heard shots and saw Carter and Artis come from the bar carrying the murder weapons and flee in Carters car. In 1974, he recanted his identification of Carter and Artis. In 1975, he recited a rather sensational story of being in the bar during the shootings and escaping unscathed. At the retrial in 1976, he maintained that his original testimony in 1967 was true and he explained the origin and basis of each account. Mr. Bello explained that he recanted his identification of the defendants in 1974 because he had come to receive a Passaic County Jail sentence after his efforts to have authorities intercede for him had failed and after becoming ill in jail he was approached by people associated with the defense who offered him money to take back his identification. At the trial, the jury heard a great deal of evidence to support what Mr. Bello said about how the recantation came about. This whole side of Mr. Bellos testimony was not dealt with by the district court.

At the trial, Mr. Bello explained how after the recantation, he became associated with two men, named Joseph Miller and Melvin Ziem, who attempted to exploit Mr. Bellos situation as a witness by turning a profit from the release of a more sensational story and who during the course of this venture maintained close association with the defense. There was considerable independent evidence at the trial to support this explanation. The district court ignored this area.

Recantation: In September 1974, seven years after the first trial, the defense obtained an affidavit from Mr. Bello in which he stated that his identification of the defendants Carter and Artis was a mistake, that he had identified the wrong persons, and that he had been pressured and confused into his trial testimony by the prosecution and the police (22aA 4866-74). This recantation was solicited from Bello by public defender investigator Fred Hogan and journalists Selwyn Raab and Hal Levinson. The defense moved for a new trial and surprisingly did not produce any of these three people as witnesses at the recantation hearing. The presiding judge determined that the recantation was untrue. State v. Carter, 136 N.J. Super. 271 (Cty. Ct. 1974). The district court does not mention this ruling.

The State learned from Alfred Bello the circumstances behind the recantation after Professor Leonard Harrelsons polygraph examination of Bello in August 1976. In the period of less than two months prior to retrial, the State receovered considerable evidence, long known to the defense, to confirm Alfred Bellos explanation of how the recantation came about. Alfred Bello explained how he was visited in jail by Hogan, Raab and Levinson who were soliciting his recantation. Bello said that Hogan offered him money if he would recant. Hogan told him he had a "piece" of Rubin Carters book and that Bello could get a "piece" if he recanted (22aA 4834-41).

The prosecution produced evidence to confirm the fact that public official Hogan had a financial interest in Rubin Carter. Philip Salinardi, the treasurer of The Viking Press, produced a contract between his company and the defendant Rubin Carter for the publication of the defendants book The Sixteenth Round. The contract contained the incredible revelation that Fred Hogan was designed therein as the agent for the defendant Rubin Carter. Mr. Salinardi further testified that $10,000 of advance money was given to (public official) Hogan in his capacity as the defendant Carters agent (25aA 5565-68). The most startling relevation came when Mr. Hogan admitted that he listed the $10,000 as income on his (Hogans) tax return (37aA 8490-95). This man paid taxes on Rubin Carters money.

Fred Hogan was not a private investigator. He was a public official. This $10,000 belonged to a client of the Public Defender. Mr. Hogan could produce no documentation to account for how he disbursed the funds. If he was acting on behalf of the defendant Carter with regard to the receipt of this money, he served in a fiduciary capacity and certainly should have records to account for his disbursements.

On the witness stand Fred Hogan became trapped by his own efforts to withhold evidence and conceal the truth. At the 1976 trial, Fred Hogan was called as a defense witness on December 9, 1976. On the witness stand, he produced typewritten reports of his meetings with Alfred Bello at the Passaic County Jail in 1973 and 1974. Mr. Hogan testified that he prepared the typewritten reports the evening before, i.e., December 8, 1976. Originally, he said the typewritten reports were prepared from handwritten notes which was discarded (37aA 8507-13). However, when pressed by the trial court, Mr. Hogan admitted that although he had said the original notes had been discarded, they might still be available. He assured the trial court that the typed reports had been coped "verbatim" from the original notes (37aA 8540-41). The typewritten notes of Mr. Hogan were marked D-332 (37aA 8528). They were not returned to Mr. Hogan when he left court on December 9, 1976. They were retained by the prosecution with the approval of the court.

Two days later, public official Fred Hogan returned to the witness stand for further cross-examination. He had retrieved his original notes (39aA 8870-73). Mr. Hogan is exposed. His original notes state that Alfred Bello would testify for the highest bidder and that $20,000 was mentioned. This information was withheld from his typewritten notes and would never had come out before the jury if the trial court had not expressed outrage and directed Mr. Hogan to produce his original notes.

At the time of the Harrelson polygraph examination in August of 1976 when Alfred Bello told the prosecution about how he came to recant his identifications of Carter and Artis, he (Alfred Bello) didnt know the prosecution would uncover the contract at The Viking Press and locate the canceled checks for $10,000. He didnt know what was in Fred Hogans notes.

Hal Levenson was initially called to the stand by the defense on December 10, 1976 (38aA 8800). Mr. Levenson indicated that he had records and notes regarding his involvement in this case. He selectively brought to court certain of the documents (38aA 8800-8801). He was excused from the stand at that point to permit him to go to Maryland to retrieve his notes as directed by the court and to permit him his request to consult with an attorney (38aA 8801-19).

In the interim, the defense called Selwyn Raab as a witness. Mr. Raab had refused to testify at the recantation hearing, according to defense attorney Myron Beldock (38aA 8823). Mr. Raab testified that he had no recollection of any conversation with Hal Levenson about Alfred Bello asking for money (41aA 9508). Selwyn Raab stated that it would have been very significant to him if Alfred Bello had talked to Fred Hogan about money in exchange for his testimony (41aA 9508-09), and he (Raab) would have looked into it (41aA 9509). Mr. Raab was definite: "Nobody told me anything about an offer of money or a request for money" (41aA 9510).

Hal Levensons diary (located in Maryland) noted at least 30 conversations with Hogan in the five month period ending in August of 1974. When Mr. Levenson returned, he testified that Selwyn Raab was his superior and that, during this investigation, he reported to Mr. Raab and kept him "closely advised" (44aA 10319). Hal Levensons diary showed Mr. Raabs testimony was false. Mr. Levensons records showed notations for November 21, 1973 and November 23, 1973 with a reference that, Bello could cut Carter loose for $20,000 (44aA 10312-15):

Question: And when you learned early in the investigation from Mr. Hogan that Mr. Bello had said that he could cut Carter loose for $10,000 or $20,000, you, of course, told Mr. Raab that, didnt you?

Answer: Yes, surely.

Question: So that Mr. Raab knew that early in the investigation Mr. Bello had indicated that he could cut Carter loose for $10,000 and $20,000?

Answer: I have no doubt that there was discussion of that item, sure.

Question: And you continued with the investigation after that, did you not, sir?

Answer: Yes.

Question: And you didnt advise anybody in law enforcement about that $10,000 to $20,000, did you? $10,000 to $20,000, did you?

Answer: No, sir.

Question: And when you later reported on this story, you didnt write that, did you, sir?

Answer: No.

The recantations provided the basis for an extensive public relations campaign on behalf of the defense directed in part by a large public relations firm from New York City headed by a man named George Lois. Two major fund-raising events were conducted just prior to the argument before the New Jersey Supreme Court. An event called the Night of the Hurricane (Rubin "Hurricane" Carter) was held at Madison Square Garden on December 8, 1975. A second event was held at the Astrodome in Houston, Texas, on January 25, 1976, called the Night of the Hurricane Concert. Numerous celebrities appeared and entertained. The strength and majesty of our judicial system is founded on the exposition of the truth through a process of submission of evidence and argument to a body of neutral citizens and not through a process of imagery conjured by Madison Avenue public relations and the collection of uninformed celebrities.

In September 1975, a black assemblyman named Eldridge Hawkins met with Governor Brendan Byrne regarding a pardon for these defendants. The Governor asked Assemblyman Hawkins to investigate the matter and report back to him. A black investigator named Prentis Thompson was assigned to work with Assemblyman Hawkins. (It was Investigator Thompson who later obtained from the Carter alibi witnesses the admission that they had lied at the first trial). (Assemblyman Hawkins ultimately did not recommend a pardon).

It was during the investigation conducted by Assemblyman Hawkins and Investigator Thompson that Alfred Bello changed his story again. He gave statements and testified before a Grand Jury impaneled in Essex County to memorialize testimony. Alfred Bellos new account involved his being in the Lafayette Grill at the time of the murders and included a rather sensational story of his escaping harm by using the body of Hazel Tanis as a shield.

After the polygraph examination of Alfred Bello by Professor Harrelson, Mr. Bello disclosed to the State how this in-the-bar version supplied during the Hawkins investigation came about. Mr. Bello explained how he became associated with two local businessmen named, Joseph Miller and Melvin Ziem, who worked in close association with the defense while attempting to exploit Mr. Bellos situation as a witness in this case. Alfred Bello testified that these men expected to make hundreds of thousands of dollars through the promotion of Mr. Bellos new version of his observations (22aA 4891). Mr. Miller conceded on cross-examination that Mr. Bello had commercial value by reason of his connection with the Lafayette Grill murders (41aA 9642). Mr. Miller conceded that his interest in case was solely to gain financial benefit through the use of Alfred Bello to promote books and move rights (41aA 9641). Mr. Zeim stated on cross-examination that he had no experience in such publishing and filming productions. Mr. Ziem operated a furniture store (41aA 9738). Mr. Miller was a real estate salesman with an office above Mr. Ziems store.

In the two months after the Harrelson polygraph of Alfred Bello and before the trial, the States investigation secured considerable evidence to support Bellos explanation of the origin of the in-the-bar version. In the very affidavit which Alfred Bello gave to Assemblyman Hawkins, Bello inserted the handwritten reference to his agents Melvin Ziem and Joseph Miller (2aF 197-198). On the occasion when Alfred Bello went to Essex County to testify before a Grand Jury where he recited the sensational in-the-bar story, Mr. Miller accompanied him and spoke with the authorities on Bellos behalf (41aA 9676-77).

Jerry Leopaldi, a theatrical agent and film producer, testified that Joseph Miller and Melvin Ziem south him out and met with him on several occasions in November and December 1975 to discuss producing a script and arranging financial for a book and movie that had to do with the Carter-Artis case (26aA 5642-45). They told Mr. Leopaldi that they had tapes of Alfred Bello which were "dynamite" and that they were going to make quite an exciting story (26aA 5646). Mr. Miller testified that he approached a publishing firm named Chelsea House. He testified that he met with people at Playboy Magazine and Penthouse Magazine in that same effort (41aA 9670).

The prosecution produced letters which Joseph Miller wrote to Sherry Lansing of MGM Studios and Socha Metzler of The Viking Press, attempting to sell publication and film rights to Alfred Bellos new story. The letters, both dated September 2, 1975, were marked S-46 and S-47 in evidence. According to Melvin Ziem, Mr. Miller sent out many letters like this (41T 9735). Mr. Miller says in his letters that they have "sensational" tapes of Alfred Bello. "There is information on the tapes too sensitive and spectacular to mention in this letter," says Joseph Miller (41aA 9657, 9755).

Alfred Bello testified that while he was involved with Joseph Miller and Melvin Zeim in the taping and promotion of a new version, Messrs. Miller and Ziem obtained the transcipts and records of the case from New York from defense counsel Myron Beldock (22aA 4895). Mr. Miller admitted on cross-examination that he met with Mr. Beldock at his (Beldocks) office in New York and that he obtained the transcripts, police reports and other records of the case from Mr. Beldock (41aA 9663). Mr. Ziem testified likewise (41aA 9731). In the two letters dated September 2, 1975, which the States investigation recovered and which were referred to previously, Mr. Miller says:

We have over 15 hours of tape recordings from Bello which are uncut. They reveal things that cannot be put in this letter. I have been in touch with Mike [Myron] Beldock and I am sure he will verify that we are on the right track (41aA 9651).

Mr. Miller testified that he spoke to Mr. Beldock three or four times while the taping of Alfred Bello was going on and that he told Mr. Beldock of the taping (41aA 9674). During his involvement with this promotional work, Mr. Miller stated on cross-examination that, he went to New York to meet with George Lois, an advertising executive, who was heading the Carter-Artis Defense Committee (41aA 9665). Mr. Miller stated on cross-examination that he also talked with the defendant Rubin Carter in prison and told him of the taping of Alfred Bello (41aA 9670-71).

At some point during their involvement with Alfred Bello, Messrs. Miller and Ziem came into substantial sums of money, according to the testimony of Mr. Bello (23aA 4966-67).

The tapes of Alfred Bello which Miller and Ziem produced recorded their efforts to rehearse several different accounts of Alfred Bellos observations. A journalist named Blake Fleetwood, who was preparing an article on the Carter-Artis case for Rolling Stone Magazine, talked with Joseph Miller and Melvin Ziem. Mr. Fleetwood was called as a rebuttal witness by the State and he testified that his conversation with Messrs. Miller and Ziem lasted for several hours (44aA 10514-15). Messrs. Miller and Ziem told him that they had Alfred Bellos complete story on tape and that it contained startling new information (44aA 10515). Mr. Fleetwood spalled out five different versions as they were presented to him by Messrs. Miller and Ziem (44aA 10515-18). He explained that this was a very lengthy conversation and they did not begin by saying they had four or five different versions. He said they would present a version and when he would raise questions about it or the proof for it, they would suggest another version (44aA 10518-21). Mr. Fleetwood testified that they were clearly out to sell a story (44aA 10518). This witnesses testimony was very credible. It was in direct contrast to that given by defense witness Melvin Ziem who definitely testified that several different versions were not given to Blake Fleetwood (41aA 9751).

Joseph Miller and Melvin Ziem couldnt expect to profit from Alfred Bellos connection to these murders if Alfred Bello simply repeated a version of this incident which he had already given. No one would pay these men for a story of Mr. Bello saying what he had already said about these murders and these defendants. There was no money in that. The only way for them to make money out of Alfred Bellos involvement as a witness in the Lafayette Grill killings was to promote a new and sensational versionAlfred Bello in the bar at the time the killers are blasting away and as the shots fly all around him and the victims fall dead, he (Mr. Bello) escapes by shielding himself with the body of 51 year old Hazel Tanis (who was hit at close range, four times from the handgun and once from the shotgun).

It was in the course of Alfred Bellos association with these men and their (Messrs. Miller and Ziem) association and close cooperation with the defense, that Mr. Bello came to recite this "sensation" story of his being in the bar during the murders to the Hawkins investigation.

This in-the-bar story is the basis for an argument which the petitioner-appellees have formulated regarding the Harrelson polygraph examination of Alfred Bello. The district court accepted the petitioners-appellees argument based on the in-the-bar story, but made no effort to deal with the substantial portion of the evidence which relates to the background and emergence of the in-the-bar story.

IT WAS PROPER FOR THE TRIAL COURT TO PERMIT EVIDENCE AND ARGUMENT AS TO THE MOTIVE FOR THE MURDERS. THE PROSECUTION PROPERLY PRESENTED EVIDENCE AND ARGUMENT AS TO MOTIVE. THE DISTRICT COURTS FINDING TO THE CONTRARY IS IN ERROR.

After 11 state court judges reviewed the very same argument submitted to the district court regarding the motive for the murders and after every state judge found it to be without merit, the district court adopted it as the primary basis for its decision to overturn jury verdicts entered nine years ago on six counts of first degree murder.

The trial court made a conscientious assessment weighing probative value against the tendency to create unfair prejudice in deciding to permit the States theory of motive. This exercise of discretion is a determination which should "rarely be disturbed on appeal." United States v. Robinson, 560 F.2d 507, 514 (2 Cir. 1977); Cotton v. United States, 361 F.2d 673, 676 (8 Cir. 1966). The Robinson Court (p. 515) concluded that the appropriate rule to follow is to uphold the trial judges exercise of discretion unless it is determined that the trial court acted arbitrarily or irrationally. The Court stated that "a similar view was expressed by Judge Adams of the Third Circuit" in Construction Ltd. v. Brooks Skinner Bldg. Co., 488 F.2d 427, 431 (3 Cir. 1973). Regarding the arbitrary-irrational standard, see United States v. Moon, 718 F.2d 1210, 1232-33 (2 Cir. 1983), cert. den. _____ U.S. _____, 104 S. Ct. 2344 (1984) and United States v. Birney, 686 F.2d 102, 106 (2 Cir. 1982).

While the district court disagrees with the trial courts judgement in weighing probative value against risk of prejudice,, the district court makes no showing or even states that the trial court acted irrationally or arbitrarily. If the trial courts determination is one which "should rarely be disturbed" and if, as the respondents-appellants contend, there is even no basis to conclude that it violates the standard (irrational-arbitrary) which is applied to direct appeals of federal convictions, then certainly there can be no justification for the district court to disturb the trial judges ruling, in the much narrower role assigned to a habeas courts review of a state trial judges discretion.

In examining the trial courts ruling to permit the States position on motive, it is important to be mindful of the context in which the ruling was made:

• The court withheld ruling until it had the opportunity to have a feel of the case and a "sense" of the issue. Robinson, supra, p. 515.
• The prosecution had given pre-trial notification to the court and the defense.
• A foreign jury had been empaneled.
• The court conducted an extensive voir dire by questioning each juror individually and privately. The court adopted the entire voluminous questionnaire proposed by the defense which contained many questions about racial matters.
• Blacks were included on the jury (two deliberated).
• The prosecution had withheld any reference to its position as to the motive.
• The defense specifically introduced to the jury the prosecutions view that the Lafayette Grill murders were committed to avenge the murder of Leroy Holloway several hours earlier.
• Evidence showed robbery was not the motive. ("The motive may be inferred from the killing itself or from the actions of the accused." Whartons Criminal Evidence, section 175 pp. 325-326).

As affirmed by the New Jersey Supreme Court (State v. Carter, 91 N.J. 86, 103 (1982), the trial courts ruling constitutes correct application of the law;

In criminal prosecutions wherever the motive or intent of the accused is important and material, a somewhat wider range of evidence is permitted in showing such motive or intent than is allowed in support of other issuesAll evidentiary circumstances which are relevant to or shed light on the motive or intent of the defendant or which tend fairly to explain his actions are admissibleState v. Rogers, 19 N.J. 218, 228 (1955); State v. Baldwin, 47 N.J. 379, 391 (1966); State v. Royster, 57 N.J. 472, 484-5 (1971); 22A C.J.S., Criminal Law, section 614 (1961) and Supp. (1982); 29 Am. Jur. 2d, Evidence, section 363 (1967).

In the introduction of evidence to show motive, a wide range is permitted. Thus any evidence which logically tends to show a motive or which fairly tends to explain the conduct of the accused, should be permittedIt is not necessary that each part of it be sufficient to prove motive. The fact supplying a motive may be adduced in connection with other evidence in the case. (Wharton, Crim. Evidence, section 170 at 314-318 (13 ed. 1972).

Circumstantial evidence is often thought to be the best kind of proof, more forceful and more persuasive than direct evidence. State v. Mayberry, 52 N.J. 413, 437 (1968).

The district court recognized (1aD 15) that Wharton also takes the position that: "Ordinarily, evidence as to motive is admissible even though it may be prejudicial in the sense that it will arouse or inflame the jury." 1 Wharton, Crim. Evidence, supra section 170 at 316. While the district court acknowledges that the trial judges range of latitude in favor of the introduction of motive evidence extends even to information which may "arouse or inflame the jury," the appellants contend that the prosecution presented this matter in a responsible way so that it was not inflammatory.

The district court claims that the prosecution made an insidious and repugnant appeal to racism through the offer of motive evidence and argument which urged the conviction of the defendants solely because they are black and the victims are white (1aD 2, 17,26, 34). This is a strong statement. It compels attention. However, it raises difficult questions. How could a trial court permit the prosecution to obtain convictions based on the position that the defendants committed these murders solely because they are black and the victims were white? How could three Appellate Division judges and seven justices of the New Jersey Supreme Court approve? More than that, the district courts finding assumes the prejudice of the white jurors and the likelihood of their response to the alleged appeal to those prejudices. But, how could the prosecution make such a flagrant appeal to the racial prejudice of the white jurors and, at the same time, not alienate the black jurors?

The district courts opinion embraces the petitioners argument that the prosecutions position on motive rests on three assumptions, one articulated and two unarticulated. The district court repeats the petitioners argument that these assumptions are "unacceptable" and "insupportable." The articulated assumption which is unacceptable and insupportable is that "shaking" meant murder (1aD 25). It is clear from the record that "shaking" meant retaliation. There is no evidence that murder was somehow a specifically excluded form a retaliation. There is a wealth of evidence to support the position that the Lafayette Grill murders constituted the retaliation. The person upon whom it (retaliation) was inflicted and the time and place where it occurred suggests revenge. Murder was the event being retaliated against. The murder committed in retaliation was strikingly similar in its dimensions to the murder being avenged. No other form of retaliation occurred.

According to the district court, the prosecutions position on motive involves the unarticulated assumption that it is reasonable to expect that blacks in general commit murder when one of their own is attacked (1aD 25-26). This is a ridiculous statement. There was never a moment when the prosecution made this argument. The district court cannot show one sentence in all of this massive record where the prosecution recited this position. The New Jersey Supreme Court specifically rejected this argument. State v. Carter, 91 N.J. 86, 108 (1982).

The second "Unarticulated assumption" which the district court copied from the petitioners is that "Rawls was a necessary co-conspirator" (1aD 25-26). Based on the evidence at the trial, there was certainly good reason for the jury to believe that Eddie Rawls was involved in some way or contributed to some extent in the commission of these crimes. Since the district court does not present the citation for a single legal authority with regard to this point, the appellants are hard pressed to understand the particular error identified by the court here. The relationship of Eddie Rawls to the defendants and his association and conversations with them prior to the murders were relevant to the evidence of the revenge motive. This is true regardless of whether or not Mr. Rawls was a co-conspirator and regardless of whether or not he was indicted.

In all the enormous record of the evidence the district court does not identify one prejudicial or racially inflammatory statement. The only reference (1aD 16-17) made by the district court is to a single point in a lengthy summation by the prosecutor (which followed the summation by defense counsel Beldock in which the transcript shows he used terms like "mad racist killer" and "racial revenge killer" on eight of the first 20 pages (45aA 10606-10625). In the context of this case, the prosecutors remarks were balanced and proper. It was appropriate to say we do not live in an ideal world free from racial prejudice; that revenge constitutes powerful human motivation and that in 1966 in the midst of exposing legitimate black grievances, some blacks and some whites violated the law. The district courts opinion, putting fourth the basis for its decision to overrule the trial courts decision and overturn the convictions, contains at least a dozen misstatements of the evidence or omissions of significant areas of the evidence that specifically relate to motive. In our previous briefs to this Court, we outlined 14 such references to the district courts opinion. Because of the page limitation, we are compelled here to rely on the references to the district courts opinion presented in our STATEMENT OF FACTS, supra.

The district court overturned six murder convictions by overruling a trial courts exercise of discretion in an area in which the well-settled law permits wide latitude in the direction in which the trial court ruled. Was the trial judges decision so far off the mark that it should be overturned, not in the context of a direct appeal of the convictions, but in the narrow standards of a habeas review? Donnely v. DeChristofor, 416 U.S. 637, 642, 94 S. Ct. 1868, 1871, 40 L. Ed.2d 431 (1974). See Justice OConnors comprehensive discussion of the role of federal courts in habeas corpus matters in Engle v. Isaac, 456 U.S. 107, 102 S. Ct. 1558, 71 L.Ed.2d 783 (1982). In the disposition of habeas matters the conviction must stand "unless the claimed error amounted to a fundamental defect so great that it inherently resulted in a complete miscarriage of justice." Cramer v. Fahner, 683 F.2d 1376, 1385 (7 cir. 1982) cert. Den. 459 U.S. 1016, 103 S. Ct. 376 (1982); Jackson v. Hutto, 508 F.2d 890, 891 (8 Cir. 1975).

Space limitations permit only a presentation in outline form of each of the cases cited by the district court to support its ruling relating to the motive. We contend that each of those authorities involve holdings and circumstances which are not at all comparable to this case.

The district court relies heavily on United States ex rel. Haynes v. McKendrick, 481 F.2d 152 (2 Cir. 1973), while admitting that in McKendrick the prosecutors remarks in summation were "more overt than in the instant case" and involved "repeated references" to racially prejudicial matters (1aD 29). In determining that the "probability of prejudice was sufficiently great" (p. 161), the McKendrick court repeatedly referred to the fact that a black man was being tried by an all-white jury (p. 155, n. 3). In finding that "the case was sufficiently close" (p. 161), the McKendrick presented a study of the jury deliberations considering their relative length and the number and nature of the jury questions. The district court presented the form and ignored the substance of the McKendrick authority.

Again in Miller v. North Carolina, 585 F.2d 701 (4 Cir. 1978), the district court admits the distinction "remark more overt" (1aD 30). Also the prosecutor in Miller quoted the bible and told the jury that to resist him was to resist God since his powers came from God. The judge was off the bench in chambers, p.704, n. 3.

In Kelly v. Stone, 514 F.2d 18 (9 Cir. 1975), a "highly inflammatory and wholely impermissible appeal to racial prejudice" did not justify the issuance of a writ. The petition was granted because of the cumulative effect of two other improprieties.

Ross v. United States, 180 F.2d 160 (6 Cir. 1950) involved repeatedly overt ethnic slurs by prosecution.

[Customer of defendant] didnt want to do business with a Jew. These boys [defendants] are Jews. Why are they ashamed of what they areWell, I believe it was Hitler that changed his name [defendant had changed his name from Max Rosenfield to Martin Ross] from SchickelgruberThese men are traitors to their race pp. 167-8.

In McFarland v. Smith, 611 F.2d 414 (2 Cir. 1979), the prosecutor introduced false and irrelevant racial considerations.

The district court cites Soap v. Carter, 632 F.2d 872 (10 Cir. 1980) cert. Den. 451 U.S. 939 (1981) for its dissent rather than its holding which denied the petition despite the prosecutors derogatory stereotyping of a class of people and "reprehensible" statement of personal belief of guilt (p. 877). The New Jersey Supreme Court specifically rejected the claim that the prosecution attributed qualities to a generalized class of blacks, 91 N.J. 86, 102-108 (1982). See, also, Butler v. Smith, 416 F. Supp. 1151, 1155 (1976), where Judge Whitman Knapp approved evidence of defendants membership in Black Muslim Organization as relevant to motive and see, also, United States v. Sickles, 524 F. Supp. 506-511 (Dela. 1981), affirmed 688 F. 2d 827 (3 Cir. 1982), permitting introduction of regulations of Adamic Knights of Klu Klux Klan advocating arming of members as relevant to motive on charge of firearms dealing, since defendant was Imperial Wizard of Adamic Knights.

The district court confuses racial prejudice with racial motive.

THE DECISION BY THE DISTRICT COURT THAT DISCLOSURE TO THE DEFENSE OF AN INITIAL ORAL REPORT OF A POLYGRAPH TEST GIVEN AN EYEWITNESS WOULD HAVE LED TO A REASONABLE PROBABILITY OF AN ACQUITTAL OF PETITIONERS IS NOT SUPPORTED BY THE RECORD OF THE STATE TRIAL COURT PROCEEDINGS. THE DISTRICT COURTS FAILURE TO CREDIT A PRESUMPTION OF CORRECTNESS TO THE FACTUAL FINDINGS OF THE TRIAL COURT MADE AT A SPECIAL REMAND HEARING TO EXAMINE THE ALLEGED BRADY VIOLATION, AND THE DISTRICT COURTS FURTHER FAILURE TO ACCORD THE REQUISITE DEFERENCE DUE TO THE STATE COURT ON HABEAS CORPUS REVIEW LED TO ERROR IN THE GRANTING OF THE WRITS TO PETITIONERS.

A. Background of Remand

A polygrapher, Professor Leonard H. Harrelson, examined Alfred Bello on August 7, 1976, and at the time of a test orally stated to the Prosecutors Office, among other things, his view that Bello was in the bar at the time of the shootings. He then advised by report dated August 24, 1976, his conclusions:

After careful analysis of this subjects polygrams, it is the opinion of the examiner that his 1966 testimony at the trial was true, and the statement recanting his original statement is not true (4aE 623).

The oral and written reports conflict, as the 1967 testimony (Harrelson mistakenly wrote 1966 testimony) placed Bello outside the bar at the time of the shootings. This discrepancy was discovered by the parties after the second trial.

B. Summary of Argument

Disclosure of the oral report to the defense would have presented no reasonable probability of an acquittal at the second trial.

The substance of the oral report would have been cumulative to other impeachment material.

The defense would not have introduced the oral report and opened the door for the devastatingly certain opinion of Harrelson that Bello was truthful in naming Carter and Artis as the "perpetrators of the annihilations." (2aC 466; 454-55); and to the same conclusion of polygrapher Richard Arther (4aE 635-6).

The oral report would have been ineffectual against the overwhelming proof of the defendants guilt.

The district courts inadequate deference to the jurys and remand trial courts findings and rulings is fatal to its sustainability.

C. Controlling Standard

United States v. Pflaumer, 774 F.2d 1224 (3 Cir. 1985), applying the United States v. Bagley, 373 U.S. _____ 105 S. Ct. 3375 (1985) test on Brady material, held that "failure to disclose an immunity agreement, in view of the totality of evidence presented, presented no reasonable probability of a different verdict." 744 F.2d at 1230. Also, the court noted that the trial courts consideration of whether the questioned material was "merely cumulative"; "merits deference from the Court of Appealsespecially given the difficulty inherent in measuring the effect of a non-disclosure on the course of a lengthy trial covering many witnesses and exhibits." Id. At 1229-30.

D. Remand Hearing Testimony

Prior to the 1976 retrial of defendants, Prosecutor Humphreys wanted to determine if Bello was truthful at the 1967 trial in view of his 1974 recantation (2aC 499-500). See S-100 (3aE 470).

Harrelson tested Bello on August 7, 1976 and concluded Bello was truthful in naming Carter and Artis as the perpetrators (2aC 455-66). Harrelson orally reported his opinion that Bello was in the bar at the time of the shootings (2aC 400-405, 407-412, 453). This was followed by a written report (2aC 480). The certainty of Harrelsons conclusion that Bello truthfully named Carter and Artis as the perpetrators was evidenced at the remand hearing (2aC 454-55, 464, 466, 476-77).

The problem at issue here arises from the fact that, unbeknownst to the Prosecutors Office, Harrelson was confused about the vantage point of Be*llos observations according to his (Bellos) 1967 trial testimony. Certainly, the focal point of his test was to determine the credibility of Bellos identification of Carter and Artis in light of his 1974 recantation. Upon receipt of the written report making reference to the 1967 version, the prosecution believed that Harrelson had concluded that Bello saw Carter and Artis outside the bar (Harrelson never had any doubt about the truthfulness of Bellos identification of Carter and Artis. The confusion related to Bellos vantage point.)

Polygrapher Richard Arther, after examining Bello, agreed with Harrelsons conclusion regarding the truthfulness of Bellos identification (4aE 636).

Humphreys was certain that he was never told by Harrelson that he opined that Bello was in the bar during the shootings E.g. 3aC 717, 728; 4aC 1034; 5aC 1063-66). It was only after the trial that he learned that Harrelsons written report, in part, did not mean what it said (5aC 1159).

The testimony at the remand hearing shows that the prosecution team believed that any questions there may have been in Harrelsons mind regarding Bellos location at the time of the shootings were dissipated and resolved by his August 24, 1976 written report, interpreted to mean Bello truthfully placed himself outside the bar per his 1967 version; none were under the impression that Harrelson opined or found Bello was inside the bar at the shootings.

E. Trial Courts Factual Findings and Conclusions on Remand

The findings of fact upon remand are set forth in the opinion (1aE 112-117). They are to be accorded a presumption of correctness. 28 U.S.C. section 2254. Finding No. 18 concludes that use of the oral polygraph report in the Brady context would have been merely cumulative and repetitious (1aE 116-117). Finding No. 11 concludes the prosecution was justified in non-disclosure of the oral report to the defense (1aE 113).

The trial court, in its fact finding capacity on remand, accepted the cumulative evidence that the prosecution team believed the oral report to be preliminary and subject to further review, and the written report as complete and accurate as drafted. The district court did not presume correctness of this finding pursuant to 28 U.S.C. section 2254, but presumed correctness of the defense thesis that the prosecution team believed the written report gave support to a version contradictory to Bellos 1967 version, and they concealed this fact (1aD 45-46). What the district court is obligated to presume is that Finding No. 12 and 13, perceiving no prosecutorial bad faith or manipulation of the polygraph report, are correct. The New Jersey Supreme Court accepted these findings. 91 N.J. at 112.

F. The District Courts Review of the Brady Violation

The district court concluded that the oral report would have been fatal to Bellos credibility and the prospects of conviction. The remand hearing shows that, instead of being fatal to the State, introduction of the oral report by the defense would have been ultimately helpful to the State. Harrelson would have testified Bello was truthful about seeing Carter and Artis with guns (2aC 387). Harrelson would have testified that he (Harrelson) believed Bello was in the bar at the time. Then the door would have been opened to permit Arther to testify Bello was truthful in his identification. Arther would testify he believed Bello was on the street when he made his observations. Both polygraphers would thereby have been permitted to advise the jury that Bello truthfully identified Carter and Artis as the gunmen, and as the only two involved at the scene. By attempting to make issue of a discrepancy as to Bellos claimed vantage point, the defense would have reinforced the identification issue in the States favor.

The district court concluded that the oral report could have been used to attack the credibility of members of the prosecution team for having "concealed" the polygraphers "conclusion." There was no concealment of a conclusion because the oral report was never accepted by the prosecution as a conclusion, only the written report was. Further, the trial court on remand found justification for the non-disclosure for the reasons stated in the remand opinion (1aE 113-114). The district courts recital of the petitioners position that, at trial, the defense could have shown that the Harrelson report was used to manipulate Bello in an argument which doesnt work at all. The argument assumes that Harrelson was manipulated. His appearance dispels such a notion and the evidence shows the exact opposite to be true. Harrelson testified that he was not pressured at all and was encouraged to let the chips fall where they may (2aC 415-6, 478-9, 481-3; 3aE. 470). The prosecution attempted to have Harrelson read the transcript of Bellos 1967 testimony before the test. Harrelson refused (8aC 1838-9, 2aC 498-9). If the prosecution was manipulative and deceitful in securing a misleading Harrleson conclusion, how could the defense account for the Arther polygraph? Having secured the Harrelson conclusion, why would the prosecution even submit Bello to another polygrapher, much less a competitor of Harrelson?

Given the overwhelming evidence of guilt presented by the prosecution, the fact that it was not what might be called a close case, and mindful of the dubious and marginal value the defense could have derived from the oral Harrelson report, the district court had no justifiable basis upon which to find a reasonable probability of a different trial result.

G. Materiality of Harrelsons Oral Report

The standard to define Brady evidence is whether, if disclosed to the defendant, it would lead to a "reasonable probability" of a different result. United States v. Bagley, supra, 105 S. Ct. at 3384.

The district courts opinion evidence a virtual boycott of the trial courts remand findings. The trial court, on remand, concludes "that the prosecutions non-disclosure of Harrelsons preliminary oral report in no way would or could have affected the outcome of the second Carter-Artis trial" (1aE 134). The trial court, in making this determination, referred to Harrelsons testimony that the oral and written reports on Bello were essentially consistent in concluding he was truthful in identifying Carter and Artis as the murderers (1aE 129). The trial court found that assuming both reports were consistent as to Harrelsons belief that Bello meant that he was in the bar during the shootings, the only use the defense could have made of that would be to impeach Bello-a merely cumulative and repetitious endeavor since numerous prior, contradictory statements of Bello saying he was in the bar had already been brought out (1aE 130).

The trial court concluded that introduction of Harrelsons testimony that he was convinced Bello was truthful when he identified Carter and Artis at the scene, each armed, and as the only two persons involved in the shootings would have been "devastating" to the defense (1aE 131). See (1aE 116) as to Findings of Fact regarding what Harrelsons testimony would have been if called to testify at trial. The district courts acceptance (1aD 52) of the petitioners rather incredible but convenient claim that they, nonetheless would have benefited from the introduction of the results of the Harrelson and Arther tests, is insupportable. The district court, thus accepted as a predicate for its decision on this point the untenable proposition that the defense would have been willing to neutralize the impeaching material it had available to use against Bello by testimony from two expert polygraphers, who ordinarily dont work for law enforcement, that Bello was truthful in identifying the defendants as the gunmen. True, Harrelson would have told the jury that Bello was saying he was in the bar, but Bello was already confronted with that proposition at trial; thus, while the jury would have learned of Harrelsons confusion regarding Bellos location, it would also have learned that he was clear about who Bello truthfully identified, irrespective of where he actually was at the moment of the shootings.

H. Presumption of Correctness

The district court in its habeas review obviously did not accord the state trial court the level of deference required by 28 U.S.C. section 2254(d), Marshall v. Lonberger, 459 U.S. 422 (1983) and Miller v. Fenton, 474 U.S. _____, 106 S. Ct. 445, 88 L.Ed. 405 (1985).

The seminal question involved in the Brady issue considered by the trial court on remand, and independently reviewed by the district court is what effect the information in the oral Harrelson report would have had ultimately upon the credibility of Bello, before the jury.

The trial court found that this information would have been cumulative and repetitive alongside other impeachment material used by the defense against Bello and "In no way could have affected the outcome of the trial" (1aE 116-117, 134). United States v. Oxman, 740 F.2d 1298, 1313 (3 Cir. 1984), vacated and remanded sub. Nom. United States v. Pflaumer, supra, holds that any doubt regarding the impact of impeaching evidence on an incriminating witness should be resolved by the trial court. The trial court conclusively resolved the issue on remand. The district court disregarded the foregoing and went its own way without justification in logic or law.

For All Of The Reasons Stated in This Brief And in The State Court Opinions On Review, As Well As Upon A Comprehensive Review Of The Entire Record Of The State Court Trial Proceedings Relating to Petitioners Convictions, This Court Should Find That The District Courts Grant Of The Respective Writs Of Habeas Corpus Was In Error And Should Be Reversed.

Dated: Jan. 19, 1987

Respectfully submitted,

JOHN P. GOCELJAK

SPECIAL DEPUTY ATTORNEY GENERAL-IN-CHARGE

ACTING PASSAIC COUNTY PROSECUTOR

Attorney For Respondents-Appellants

By: Ronald G. Marmo

Chief Assistant Prosecutor

*Carter v. Rafferty, 621 F. Supp. 533 (D.C.N.J. 1985)