The Case Against Carter
Prosecutor's response to Judge
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
Statement of the Facts
Evidence of Petitioners' Guilt Adduced
at the 1976 Retrial
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.
OF THE CASE
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
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
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.
STATEMENT OF THE FACTS
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.
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
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
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
1. IDENTIFICATION OF DEFENDANT CARTERS 1966 DODGE
The district court determined that "there in considerable
dispute as to the identification of the [Carter] car at the scene."
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,
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,
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
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
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
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
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
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
2. THE SHOTGUN SHELL AND BULLET
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
"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.
3. MOVEMENTS OF THE DEFENDANTS AT THE TIME OF THE MURDERS
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.
4. SEARCH FOR GUNS
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
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.
5. THE STATEMENTS OF THE DEFENDANTS
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 ).
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
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
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
Q. How long had you known Rubin Carter at that time (time
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).
6. STRUCTURING AND SUBMITTING A FALSE ALIBI
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
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.
7. THE REVENGE MOTIVE
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
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
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"
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,
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.
8. THE IDENTIFICATION OF THE DEFENDANTS
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
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,
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
Answer: I have no doubt that there was discussion of that
Question: And you continued with the investigation after that,
did you not, sir?
Question: And you didnt advise anybody in law enforcement
about that $10,000 to $20,000, did you? $10,000 to $20,000, did
Answer: No, sir.
Question: And when you later reported on this story, you didnt
write that, did you, sir?
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
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.
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
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
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.
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
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
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
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)