"Rubin Carter is a Substantial Threat to the Community"

Filed by the Passaic County Prosecutor's Office in December 1985

Note: After Judge Sarokin set aside Carter's conviction in November 1985, the Prosecutor's Office filed this document in an attempt to keep Carter behind bars. That effort failed. This is the portion of the document that reviews Carter's record. This information is being provided to counter the false depiction of Rubin Carter in the movie.

Part I, INTRODUCTION: A profile of violence, dangerousness and extreme hostility

Part II, JUVENILE RECORD: "His early school records make reference to threats, retaliation and an abhorrence for conformity with the rules of society."

Part III, MILITARY: After 21 months and four courts-martial, he was separated for "unfitness."

Part IV, CRIMINAL RECORD: After eight months in reformatories, "a walking, ticking, short-fused time bomb" explodes.

Part V, PRISON RECORD: "A well-defined picture of consistent, long-standing belligerence, hostility and refusal to adhere to even minimal rules."

Part VI, PSYCHIATRIC AND PSYCHOLOGICAL RECORDS: "'A strong paranoid orientation' projecting responsibiity for his failures on society and the law."

Part VII, THIS COURT SHOULD ORDER PSYCHIATRIC EXAMINATIONS: As of 1970, the record shows "a violent and very dangerous person," and a new examination is urged.

Part VIII, CONDUCT DURING PRIOR RELEASE: "This physically powerful man carried out a brutal attack upon an adult woman of slight physical stature." (the Carolyn Kelley beating)

Part IX, CONCLUSION: The Prosecutor's Office is concerned "that Rubin Carter's liberty, in all likelihood, will cause great harm to the community.:

Begin Document:

The appellants contend that more important, for the purpose of this application, than the fact that there is a substantial basis for and appeal of the District Court's decision, is the fact that there is every reason to believe that the defendant Rubin Carter is a violent and dangerous person and that thereby his liberty during the tendency of the appeal most certainly poses a threat to the community.

Appellate Procedure Rule 23(c) provides that:

Pending review of a decision ordering the release of a prisoner in such a proceeding, the prisoner shall be enlarged upon his recognizance, with or without surety, unless the court or justice or judge rendering the decision, or the court of appeals or the Supreme Court, or a judge or justice of either court shall otherwise order.

This rule was amended in 1967 to recognize that there are circumstances under which a prisoner should not be given liberty pending the appeal of his release order. The District Court refused to exercise its discretion in this regard and ordered the release of Rubin Carter over the objection of the appellants.

Appellate Procedure Rule 23(d) provides:

An initial order respecting the custody or enlargements of the prisoner and any recognizance or surety taken, shall govern review in the court of appeals and in the Supreme Court unless for special reason shown to the court of appeals or to the Supreme Court, or to a judge or justice of either court, the order shall be modified, or an indecent order respecting custody, enlargement or surety shall be made.

The appellants of course, recognize that under ordinary circumstances there is a strong presumption in favor of the release of a prisoner pending an appeal of an order granting a writ if habeas corpus. The applicants contend that the "special reasons" present in this case require that the customary procedure not be followed.

It is evident from the record reviewed heretofore and collected in toto in the appendix submitted herewith, that for almost 30 years Rubin Carter has presented a profile of violence, dangerousness and extreme hostility. There is nothing to suggest that this well-entrenched disposition and behavior should be any different now while the defendant is at liberty pending a review which has the potential to reinstate these murder convictions. The appellants contend that this view of Rubin Carter is well supported by an examination of the record which exists and is available to us concerning every area of Mr. Carter's background, including his juvenile record, his military record, his criminal record, his psychiatric record, his record for the brief time he was at liberty in 1976 pending his re-trail and the record of Rubin Carter's self-proclaimed perception of himself. The appellants suggest that this Court should enter "an independent order of respecting custody."[Top]

While the record available to the appellants suggest that Rubin Carter's childhood had the benefit of a stable and supportive parental and family environment, nonetheless, his early school records make reference to threats, retaliation and an abhorrence for conformity with the rules of society.

The defendant attended Public School #6 in the City of Paterson to the seventh grade. He was referred several times to the Adjustment School for school misbehaviorism. Records from these institutions no longer exist, however, excerpts from these school records were incorporated in a 1957 Passaic County Probation Department report. (Exhibit H). Rubin Carter's referral to the Adjustment School is noted on page two of that report. The Adjustment School at that time was Public School #22 to which students were referred from each of the other city schools when the students behavior became a problem that no longer could be delete with at the initial school.

The Probation Department reports that the defendant's school adjustments was "very poor." The report quotes the school records describing Ruben Carter as "very wild" with a "bullying attitude". The school's records state that he "terrorized boys and girls in class so that they were afraid to report him to the teacher."

These school records are remote and talk about a child. The appellants suggest no significance to them other than that they are at least worthy of note here since the earliest records available to us show the seeds of violence, threats and retaliation, which is totally consistent with the record that emerges in later years.

The records of the Juvenile Court with respect to Rubin Carter are not available to the appellants since they have been either destroyed or stored away under conditions which makes them practically inaccessible for the purposes of this application. However, references to the defendant's juvenile record are contained in various reports submitted to state courts over the years But the Passaic County Probation Department. The 1957 report (Exhibit H, p. 2) states that the defendant was referred to the Children's Bureau in 1946 and 1949. At that time, the Children's Bureau was the Juvenile Division of the Paterson Police Department. In 1946, the defendant was nine years old. No records are available with regard to the 1946 juvenile complaint.

A Probation Department report prepared in 1977 (Exhibit I) states on page three that Ruben Carter was arrested on March 21, 1949 as a juvenile charges with larceny of T-shirts from a downtown Paterson store. The defendant was given two months probation for this offense.

In May of 1951, a third juvenile complaint was filed against the defendant charging him with breaking into parking meters and stealing the contents. The defendant was place on probation as a result of this complaint.

On June 25, 1951, Rubin Carter, at age 14, was charged with Assault and Robbery resulting from the stealing of $55 and a wristwatch from a man who was struck over the head with a bottle. The victim;s injury required four sutures. A copy of this juvenile complaint is marked Exhibit J. The defendant was sentence to the State Home for Boys on July 3, 1951 as a result of this complaint and paroled on December 13, 1952. He was returned on a parole revocation on September 18, 1953. See Exhibit H, p. 3a. Although on their face these juvenile complaints might suggest profit as the motivation, a study of the records show the defendant's parents to be working people who provided well for their son.

The defendant escaped from the State Home for Boys on July 1, 1954.[Top]

According to prison records (Exhibit K) the defendant entered the U.S. Army on August 27, 1954. He was separated on May 29, 1956 with the designation: "Unfitness." During his 21 months in the military, he was convicted by court-martial on four occasions. The charges are described as "disobeying a lawful order (three times), failure to make reveille, disrespectful in language to a non-commissioned officer and treated his superior officer with contempt." (Exhibit K, PPS. 2-3).

In 1973, while serving a sentence for the Lafayette Bar murders after the first trial, the defendant, Rubin Carter authored a book entitled The Sixteenth Round. (Exhibit L. The appellants have included in this exhibit only the pages excerpted.) The appellants contend that certain facts are not accurately recorded in this book. However, the appellants present this document to the Court because we contend it is relevant as an exposition of the defendant's perception of himself and his relationship with society. He repeatedly portrays his deep hatred and bitterness. The defendant discusses his military experience and at one point records his reflections while traveling from Fort Jackson to Fort Campbell.

America the dirty white racist bitch....I was mad at my mother, my father, at all the niggers who held themselves in contempt of their color.... "Fuck those crackers!"....

I notice something else, too: all these honkies were wearing guns, every last one of them. I decided I would have to get me one too. This Army life was not making me any nastier than what I was, but it wasn't making it any easier for me either. It just made me care a little less than usual, which wasn't really a helluva lot in the first place. pps.119-120.[Top]

Rubin Carter was separated from the military on May 29, 1956. He was arrested on July 23, 1956 in Paterson on the escape charge after he fled from the State Home for Boys at Jamesburg. His account of his feelings at the time two police officers came to his home to make this arrest is stated this way:

I couldn't understand why they were doing what they were doing. Hate burned through me like a million torches. I wanted to destroy something, and my strange mental fog drove me towards the two cops. I wanted to get my hands around their necks and squeeze until their eyes popped out of their skins like grapes. (Exhibit L, The Sixteenth Round, p. 138).

After his arrest, Rubin Carter was returned to Jamesburg. He was then transferred to Annandale Reformatory. This is how he records his feeling at that time:

My urge for revenge now almost choked me up with its bitterness. Somebody would have to pay for putting me back in jail. Even more than that, somebody would have to pay for destroying my self respect. For mutilating the "newly found" Rubin, the "at-peace-with-himself" Rubin. Somebody had to pay for that!

I wanted to see this insidious juvenile labor system demolished from stem to stern and I wanted to see it happen out of pure hatred and vengeance at atonement for the crimes committed against me, and other just like me who have never had the nerve to voice their legitimate grievances as members of the human race. I wanted to be the Administrator of Justice, the Reveler of Truth, the Inflicter of All Retribution. I gloried in these thoughts. (exhibit, The Sixteenth Round, p.139). [Emphasis added].

Rubin Carter was paroled from Annadale on March 29, 1957. He describes his feelings at the time of his release this way:

On that Tuesday morning when Annadale set me free, they might not have known it (or maybe they did) but they had just unleashed a walking, ticking, short fused time bomb set to explode on contact with an unsuspecting public. A society which fooled itself into believing that this miniature penitentiary sitting in the hills of its community was really an honest-to-God rehabilitation center. (Exhibit L, The Sixteenth Round, p. 156) [Emphasis added].

The "time bomb exploded in just over a month. On July 2, 1957, he was arrest and charged with two counts of Robbery and one count of Assault with Intent to Rob. (A woman's purse forcibly was taken from her and in two unrelated incidents, two men, ages 61 and 30, were struck, knocked down and suffered head injuries.) The defendant was sentenced on September 20, 1957 on these three charges to a term totaling two to six years in State Prison. Rubin Carter's account of this incident to the prison authorities is recorded in Exhibit K, p.2.

We snatched a pocketbook off a woman June 30th, on the street in Paterson. Then we seen a man and got him too, a young fellow about 30, got his money-he was knocked down. We was running away from the last fell and another fell was standing in the middle of the sidewalk and I hit him and he fell up against a tree and we kept running. Harris got caught about ten minutes later and I got picked up about 2 a.m. that night-was lead man in a plastic place, an extruder operator. It was unnecessary. I had $9 or $10 in my pocket and the next day was pay day. It just come on the impulse. I met Harris after I got out of Annadale. He was on parole from Bordentown. We were going with girls that were friends of each other. We were drinking that night. [Emphasis added].

According to prison records the defendant's conduct, during the time he spent at Trenton State and Rahway State Prison, serving these sentences, was tumultuous. For that reason, he was ordered to serve out his maximum sentence and was mandatory released from State Prison on September 16, 1961.[Top]

Rubin Carter's confinement at New Jersey State Prison covers three time periods. They are as follows"

1. October 10, 1957 to September 16, 1961;
2. October 1, 1967 to March 20, 1976; and,
3. February 10, 1977 to November 8, 1985.

The appellants have collected the available records as to the defendant's comportment at the correctional institutions and have submitted them here as Exhibit M. The appellants apologize to this Court for the poor quality of the photocopies of some of the documents contained in Exhibit M. We have compared our file with that of the correctional institution and have submitted to this Court the clearest copy of each document.

The appellants contend that this record is exceptional. A study of this record in its entirety unquestionably presents a well-defined picture of consistent, long-standing belligerence, hostility and refusal to adhere to even minimal rules of day-to-day conduct and procedure at the institutions.

The first nine pages of Exhibit M appear to be a form of log-book-type-entries. The remaining pages consist mainly of reports dealing with specific instances of disciplinary problems.

The appellants were not able to locate any individual reports which pertain to the first period of incarceration. That incarceration occurred as a result of the Robbery and Assault convictions referred to previously. Nevertheless, certain of the log-type-entries pertaining to this period are relevant.

January 25, 1958 Out of place and suspicion of immoral act.
February 21, 1958 Refusing to report for work.
October 10, 1958 Refusing to obey orders.
December 1, 1958 Fighting with inmate.
May 17, 1959 Refusing to go to his cell.
July 23, 1959 Insolence-disrespect to an officer.
June 23, 1960 Insolence.
January 3, 1961 Disobedience, causing disturbance and stealing.
January 3, 1961 Inciting to riot, participating in major disturbance and stealing.
April 1, 1961 Out of place.

The second term of incarceration covered by these records occurred as a result of Rubin Carter's first convictions for the murders at the Lafayette Bar. These records cite numerous violations involving disobeying a direct order, destroying property, fighting, contraband, out of place and inciting.

During this period, specifically in April 9, 1970, Rubin Carter assaulted an inmate named Wallace. The defendant apparently had an unnatural fear of this inmate and did not hesitate to flatly state to the Disciplinary Court that "he would kill Wallace" and that "if he had a weapon today Wallace would be dead." (Exhibit M, pps. 15-16) In addition to the indication of threats and violence, this incident along with many others joints out the presence of mental problems. The available psychiatric records of Rubin Carter will be examined hereafter. However, it should be observed at this point that the references to grandiose paranoia in the psychiatric reports are consistent with the numerous manifestations of solutions of superiority and inferiority contained in these prison records. See, for example, Exhibit M-42, Rubin Carter's reference to himself as "God" at Rahway prison. See M-44, Rubin Carter tells Captain Hassell that Carter plans to make him Superintendent of the Prison.

The records that pertain to this period also document Rubin Carter's major involvement in efforts to incite a disturbance at Rahway in April 1974. (Exhibit M-44 to 60). It is interesting that according to the records, Rubin Carter claims racism at the prison as motivation for his call of violence. The defendant proclaimed, that through violence, racism would be wiped out forever and that he would be the first to lay down his life and kill or be killed in this effort. (Exhibit M-48).

The second period of confinement covered by these records terminated when the defendant's first convictions for the Lafayette Bar murders were reversed. Approximately one month after his release, Rubin Carter assaulted a prominent black woman, who was, at the time, the National Director of the Carte Defense Fund. This incident will be examined hereafter.

The third period of confinement referred to in this exhibit deals with Rubin Carter's incarceration after a second jury convicted him of the Lafayette Bar murders. These records are consistent with the records for the prior terms, in that they contain numerous citations for disobeying orders, refusing to work or accept program assignments, conduct which disrupts, behavior which threatens the running of the institution and refusing to appear.

These periods of institutionalization have permitted the opportunity to monitor the defendant's conduct. The reports here span many years. They maintain a consistency year after year, in that they project an unchanging image of hostility and contempt. It seems that on every occasion in Rubin Carter's past, whether it be in prison or otherwise, when circumstances were such as to require someone to report about him, the statements memorialized in each instance support the view that Rubin Carter has always been a violent and dangerous person. In the face of this record, what reason is there to believe that he will be a different person while at liberty now pending this appeal.[Top]

During the periods when Rubin Carter was incarcerated as a result of various convictions of crime, professional people in the area of psychiatry and psychology examined him and reported their findings. These reports seem particularly relevant with respect to the issuer of the defendant's disposition for violence and his potential dangerousness to the community while he is at liberty. The various professionals who have had the responsibility to examine Rubin Carter and report their findings about his mentality, uniformly state in the strongest possible terms, that his is a man who presents a great threat to the community.

It appears that many of these mental examinations were done for purposes of parole board consideration. Consequently, these examinations were conducted with the specific purpose of focusing on the ver issue of dangerousness which is before this Court. The typewriter print on the earlier mental status examinations is faint. For this reason, the appellants have retyped the reports verbatim and have captioned them to show retyping. The retyped reports are included here as Exhibit N. The original reports are attached hereto and designated Exhibit N(a).

In one of the earliest reports conducted by a psychologist named Farrell on September 26, 1958, observations are noted regarding the defendant's involvement in certain incidents referred to earlier (see Criminal Record) where Rubin Carter and a man named Harris assaulted a woman and, in the course of their flight from that crime, assaulted and seriously injured two men in separate incidents. The defendant had explained thereafter that he acted on impulse and not out of financial need. It is noteworthy that this psychologist recorded his observation that it was Rubin Carter as opposed to Harris who was primarily responsible for this spree.

This psychologist describes Rubin Carter as "an emotionally unstable and aggressive individual." He concludes that the defendant "manifests a total lack of insight" and a strong paranoid orientation," projecting responsibility for his failures on society and the law. The psychologist sees Rubin Carter as " a seriously disturbed individual" who "will always be a poor parole risk" and pose "a potential threat to the community." (Emphasis added).

It is interesting that this psychologist observed then that temporarily the defendant's boxing career provided a socially acceptable means for venting his hostility. However, he further states that when "Rubin's ring aspirations do not exist, he will become more aggressive and it is predicted that a repetition of present involvement will occur." If the judgement of two separate juries, ten years apart, was correct when they decided that Rubin Carter murdered the people in the Lafayette Bar in 1966, then, in effect, psychologist Farrell predicted it eight years earlier.

Some note should be made here regarding this psychologist's connection between Rubin Carter's waning ring aspirations and the consequence of a tendency for greater aggression. The District Court in its opinion (p.3) states that at the time of the murder (June 1966), Rubin Carter was "at 30 years of old reaching the peak of his career, a contender for the middleweight crown...." It certainly appears that the District Court was misinformed. Rubin Carter's boxing record is summarized in his book The Sixteenth Round. (Exhibit L, pps. 338 and 339). From 1961 to 1964, he fought 25 fights. He won 21 and lost four. He lost his fight for the middleweight title on December 14, 1964. In 1965 and 1966, he fought 15 matches and won only seven of those. This presents quite a contrast with his record before the title fight in 1964. Undoubtedly, at the time of the murders in June 1966, Rubin Carter was not "reaching the peak of his career" as the District Court stated. His boxing career was in sharp decline and, obviously, he was not " a contender for the middleweight crown" at that time. Consequently, the condition which psychologist Farrell predicted would produce greater aggression--waning boxing aspirations--was in place at the time of the Lafayette Bar murders.

According to the records, just over a year later, another psychologist named Gorlin examined Rubin Carter and reported his findings closely paralleling psychologist Farrell's view and perhaps presenting an even more frightening evaluation. This man's professional opinion was that Rubin Carter was "very unstable" and "extremely aggressive." He described the defendant as "almost completely lacking in controls" and a person prone to act out "the tremendous amount of hostility and aggression that is continuously boiling within him." This psychologist concludes: "This man appears to be extremely dangerous. Prognosis is very poor." (Emphasis added). Again, assuming that two juries were right in finding Rubin Carter killed the people in the Lafayette Bar, was not his psychologist's report, in effect, a forewarning of the murders Rubin Carter was to commit at the Lafayette Bar in 1966.

On August 30, 1960, Doctor Henri M. Yaker (Director of Psychology) reported that in his professional judgment, Rubin Carter "continues to be assaultive, aggressive, hostile" and "sadistic." Exhibit N. (Emphasis added). It is evident that Doctor Yaker believed Rubin Carter's condition to be long-standing. "This individual is as dangerous to society now as the day he was incarcerated." Exhibit N.

Doctor Yaker diagnosed the defendant as a sociopath who "thinks he is superior." He has grandiose paranoid delusions about himself." Exhibit N. Is not the diagnostic impression recorded here in 1960 remarkably consistent with the picture of Rubin Carter which emerges from a review of the prison records of the mid-1970's? (See Exhibit M-42, dated March 7, 1974, where Rubin Carters refers to himself as "Rubin 'Hurricane' Carter 'God' at Rahway Prison." See, also, Exhibits M-43 to 56 for Mr. Carter's references to removing the superintendent of the prison as well as the prison doctor, to resolving future inmate problems by direct contact with the Governor and to killing or dying for the cause of fighting racism at the prison.)

The defendant's autobiography, authored in the mid-1970's, also presents much to suggest (as shown by various excerpts submitted herein) that the defendant's self-perception is distorted by delusions of superiority. While discussing his youth and a position of leadership he supposedly held with a street gang called the Apaches, the defendant, in a chapter entitle "The Birth of Vengeance," expresses feelings of superiority even with the deity:

I was proud of my position. It made me feel like a god. In my mind, I was vaguely recalled some misbegotten slogan that went "Equality for all under God." I couldn't accept that. What was the position I held, and the gangs dependence upon my fighting skills, I felt uniquely superior. In the Apaches I was, in fact, accepted as a god, and there could be no equality in the world that I lived in--a world of conflict and confusion, where only the strong survived. (Exhibit L, The Sixteenth Round, p. 16).

Mr. Carter gives further expression to these grand delusions and feelings of superiority in another chapter entitled "Vindictiveness," when the philosophizes his view of total unaccountability to society regardless of his actions.

I believe that everything I had done in my life had been the natural and logical thing for me to do, under the circumstances. If by chance I performed a gracious deed, I laid claim to no credit. If I committed a crime in the eyes of society, I took no blame. I felt no more responsible for my actions than for the winds. I believed that the omnipotent entity, the capricious ruling power, that had fiendishly set cyclone and hurricane forces free on this earth with the same fickle energy that had created me. If I overturned a basket of social concepts, or violated a few rigid conventions in pursuit of my destiny, it was not my fault, but Fate's. I felt no compunction for the act that I had been forced to commit, which, according to society's standards, was a crime. (Not a reference to Lafayette Bar murders). At the time it happened, my behavior seemed to me to be natural, just as natural as a cyclone wind will demolish a building standing in its way. (Exhibit L, The Sixteenth Round, p. 78). (Emphasis added).

The appellants content that the record submitted here must be viewed in its totality. We suggest no significance to references such as those presented above (from the book and the prison record) when viewed in isolation. They must be viewed in the context of the entire record. In that sense they are significant because they are insightful and consistent with a diagnostic impression recorded over a dozen years earlier.

In addition to the fact that the mental status examinations remain consistent over many years, it is significant that each examination as conducted by a different professional. When Doctor Hubert Hoffman (Consulting Psychiatrist) examined Rubin Carter on April 20, 1970, he stated that the "inmate's hostility and aggression are easily triggered....." Doctor Hoffman also concluded that: the psychological examinations of 1958 and 1960 "sum up this man very well." Exhibit N. (Emphasis added). Consequently, this psychiatrist believed that the impressions and diagnoses rendered over a decade earlier were just as valid at the time of his examination.

The examination performed by Doctor Hoffman was the result of the incident referred to earlier involving Rubin Carter's assault on an inmate named Wallace and the defendant's threat to kill Wallace. See Exhibit M-15 to 17. It is true that Doctor Hoffman also states that he did not detect psychotic symptomatology. However, in an examination conducted four days later (April 24, 1970) by Doctor Sidney G. Fine (Acting Medical Director), Doctor Find stated that Rubin Carter "is beginning to show psychotic behaviour....." Exhibit N.

Doctor Fine prescribed 150 mgs. of Thorazine three times a day indefinitely. Thorazine is a psychotherapeutic drug which was used in treating mental disorders at that time. This prescription was for a high dosage.

Doctor Fine's report concludes with this statement:

I'd like to see this inmate in about two or three weeks. I feel certain that something will probably take place. (Exhibit N.).

Consequently, there is good reason to expect that further examination or examinations of Rubin Carter were performed. However, the appellants were unable to recover any further reports of mental examinations of the defendant and were repeatedly told of poor or non-existent recordkeeping at the correctional institutions and various state offices at that time.

When Rubin Carter was returned to prison in 1977 after the second convictions, he repeatedly refused to submit to psychiatric examinations. On each date listed, Rubin Carter refused to submit to a psychiatric evaluation by the particular doctor designated below:

The reports relating to the above-mentioned refusals are legible and have not been retyped. They are included in chronological order in the exhibit containing the documents in their original form. Exhibit N(a). [Top]

The last record of a professional evaluation of Rubin Carter's mental status dates back to 1970. However, in 1970, Doctor Hoffman concluded that the frightening reports of 1958 and 1960 "sum up this man very well." The total record presented here shows that for decades, Rubin Carter was a violent and very dangerous person. The psychological and psychiatric examinations conducted over a period of a dozen years consistently advise us that this is an "aggressive," "assaultive," "hostile" and "extremely dangerous" man "almost completely lacking in controls." If these assessments were valid at the time and persist today, then the District Court has set at liberty a person who poses a serious threat to the community and a person who in all likelihood will act out violence. In the terms of Rubin Carter's earlier description of himself, is the "short-fused time bomb "ticking" now?

Is there anything in the record of Mr. Carter's behaviour after the last available recorded psychiatric evaluation to suggest that these projections are no longer valid. Certainly not in the prison records (Exhibit M) discussed previously. And certainly not in the record of his conduct while he was briefly at liberty in 1976 prior to the second trial. At that time, about a month after his release, he assaulted a woman associated with his defense. This incident will be discussed hereafter.

On the one hand, there is strong spanning decades to show violence and dangerousness. All that can be pointed to on the other hand is the absence of recent mental status evaluations. As shown above, a void has emerged over recent years by the systematic refusal of Rubin Carter to permit psychiatric evaluations. Should the defendant now be permitted to argue for some benefit by reason of a void in the records which he methodically created?

The appeliants contend that under the circumstances, the long-standing psychological and psychiatric evaluations persist today. We contend that in light of the total record, this case presents a compelling and exceptional situation so as to require the defendant to remain in custody while this appeal is pursued.

Should this Court be inclined to some reservation regarding the currency of these existing mental status assessments, the appeliants strongly urge this Court to order an independent psychiatric examination of Rubin Carter. After examining the existing psychiatric reports, this Court must want to know the nature of the defendant's present psychiatric picture. If this Court can not reach a conclusion in that regard based on all the surrounding circumstances as suggested by the appellants, then it seems there can be no reason why this Court should not appoint its own psychiatrist to independently advise the Court in this regard. [Top]

The defendant's behavior when last at liberty seems a natural consideration in the process of projecting how the defendant will conduct himself while at liberty now. Rubin Carter was last at liberty for a brief time in 1976 following the reversal of the first triple murder convictions. Rubin Carter was released on bail on March 20, 1976. In the space of about a month, i.e. April 29, 1976, the time bomb exploded again--Rubin Carter assaulted a woman named Carolyn Kelley.

Prior to the assault, Carolyn Kelley was actively involved in the defense of Rubin Carter. She was a prominent community leader in the Essex County area and had been actively involved in various issues concerning the black community. She had been a Muslim for many years. She knew and had worked with various community and political leaders as well as with Mohammed Ali, a well-known heavyweight boxing champion. At the time of this assault, she had become the head of what was called the Carter Defense Fund--Freedom For All Forever.

The assault occurred on April 29, 1976 in Maryland. Rubin Carter, Carolyn Kelley and others associated with the defense were there to view a heavyweight boxing match involving Mohammed Ali. Very soon after the attack, the incident became known to counsel for the defense and to certain media people and others sympathetic to the defense. The Prosecutor's Office did not learn that any incident had occurred until the end of May 1976. In the interim, Carolyn Kelley later testified that efforts were made to pacify her and persuade her not to disclose the matter.

This assault was the subject of a bail revocation hearing conducted in camera at defense requests by the Honorable William J. Marchese. The hearing was conducted from June 29, 1976 to July 12, 1976. The Court concluded that Rubin Carter did assault Carolyn Kelley and ordered that the terms of the defendant's release on bail be modified. (A copy of Judge Marchese's opinion is attached as Exhibit O). Notwithstanding the judge's finding, the Maryland authorities chose not to pursue criminal charges stemming from this assault. The assault had occurred within the context of a pending trial involving triple murders. The case had received national attention and the defense at that point had the vocal support of numerous celebrities.

This bail revocation hearing was extensive. It involved testimony from 23 witnesses. Transcripts of the hearing have never been ordered by either side.

On June 7, 1976, Carolyn Kelley made a public statement about the assault. By that time, news of the incident had begun to circulate and she decided to respond to inquiries from the press. Carolyn Kelly made this statement from the Crippled Children's Hospital in Newark, New Jersey. Investigators from the Prosecutor's Office were assigned to respond to the hospital and tape-record her statement once it was learned that Carolyn Kelley intended to respond to the inquiries. The transcript of that tape recording is included here as Exhibit P.

In this statement, Carolyn Kelley said that at one point while in Maryland, she had tried to speak with the defendant by telephone from her hotel with regard to financial arrangements at the hotel. She was surprised that the defendant hung up on her and went to see him. She described the circumstances of the assault this way:

So I immediately got dressed got in my car drove around the divider to the Sheraton, knocked on his door, and he asked who was it. I told him. He opened the door, I went in. He just started laughing, just laughing, laughing. So naturally I relaxed. I thought it was some kind of joke or something, just laughing. Then he went into the bathroom, he left the door open, and I walked to the edge of the door, and I was asking him what the hell is the matter you, what's wrong. At that point he was gargling with a bottle of Charlie cologne (inaudible) he spit the cologne out, he came out of the bathroom and I was standing by he edge of the bed and he just burst out laughing again. The next thing I knew he had hit me in my face and spun me around, I felt myself turning and spinning and I felt myself going down and fighting to hold on to consciousness because the walls, I went in between the wall and a regular sized bed in the room. And then he raised his foot to kick me, still laughing all the time and I managed to turn over, and he started kicking me in my back. Things were vague at that point and then I remember saying to myself, is this for real. I guess I must have turned back over, and he wasn't laughing then, but he was in a stooped position with his hands around my throat telling me he was going to kill me. (Exhibit P, p.5).

The appellants contend that this incident is significant obviously because of the defendant's display of violence. This physically powerful man carried out a brutal attack upon an adult woman of slight physical stature. This kind of violence is more disturbing, we suggest, because it was not prompted by any possible perceived physical threat to the defendant. Was this beating like those described earlier, that the defendant explained by saying: "It was unnecessary....It came on the impulse." (See Exhibit K, p.2).

This incident is also significant, the appellants contend, in connection with our alternate application for independent psychiatric examinations of Rubin Carter. Aside from the business of gargling with cologne, the inappropriate laughter and abrupt mood shift, the assault itself suggests questions about Rubin Carter's mentality. In that latter sense, are there not comparisons here between the defendant's assault of this slight woman and the assault and expressed intent to kill the slight and severely retarded inmate named Wallace six years earlier? The later assault was discussed previously. (See Exhibit M,pps. 15 and 16). Does not this incident suggest that perhaps the earlier diagnostic evaluation of severe emotional instability still persist or at least held true in 1976? Does not this incident in the context of the total record, at least require that the Court find out what the current mental status shows? Rubin Carter himself has never denied or presented any different version of this incident. [Top]

Liberty is precious to every American and it is the special responsibility of our judicial system to be circumspect about the protection of that American right. However, the appellants contend that this case is exceptional. The appellants are concerned that Rubin Carter's liberty, in all likelihood, will cause great harm to the community. The appellants have made every effort to produce for this Court to believe that Rubin Carter will act out of violence while outside the environment of a correctional institution.

The appellants contend that there is good reason to believe that the District Court ruling will be reversed.

The appellants contend that in retrospect, the mental status evaluation of Rubin Carter done prior to the murders, in effect, constituted a forewarning of the slaughter at the Lafayette Bar. The appellants contend that Rubin Carter cannot fairly respond that the reports of mental examinations submitted to this Court are remote since it is Rubin Carter who is exclusively responsible for the absence of current psychiatric examinations. The appellants contend that, at the least, this Court should satisfy itself about Rubin Carter's present mental status by appointing its own psychiatrists to examine him and advise the Court.

Respectfully submitted

JOSEPH A. FALCONE
PASSAIC COUNTY PROSECUTOR