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May 16, 1968

UNITED STATES of America ex rel. Robert LEWIS, No. 42061, Petitioner,
Howard YEAGER, Principal Keeper of the New Jersey State Prison, Respondent. UNITED STATES of America ex rel. Esaw MITCHELL, No. 42060, Petitioner, v. Warren PINTO, Superintendent, New Jersey State Prison Farm, Rahway, New Jersey, Respondent

The opinion of the court was delivered by: MADDEN

 Petitioners, Esaw Mitchell and Robert Lewis, each seek the issuance of a writ of habeas corpus pursuant to 28 U.S.C. ยง 2241 et seq., alleging that they are unlawfully confined in the New Jersey State Prison by virtue of sentences of imprisonment imposed by the Camden County Court. The petitioners each filed separate petitions but the Court will dispose of them in this one opinion.

 Petitioner Esaw Mitchell asserts that he was denied his privilege against self-incrimination by reason of the prosecutor's and the trial court's comment on his failure to testify at trial.

 Petitioner Robert Lewis asserts that at his trial the reading into evidence of an unsigned statement of a defense witness during cross-examination amounted to constitutional error, that a previously convicted co-defendant testifying for the State was the only witness to place petitioner at the scene of the crime and that he received consecutive sentences for a single criminal transaction in contravention of the double jeopardy clause of the Fifth Amendment to the United States Constitution.

 The petitioners, Esaw Mitchell and Robert Lewis, were tried together and were convicted of rape, kidnapping, atrocious assault and battery, and carrying a concealed weapon. Before petitioners' trial, five other of the seven defendants charged with the commission of these crimes had been tried and convicted. Petitioners were subsequently apprehended and tried together, each represented by counsel.

 At this point the Court feels compelled to express a few general thoughts in reviewing this matter after reading and attempting to analyze the two petitions and trial transcript of 361 pages covering six days from June 8th to June 15th, 1964, inclusive.

 The Court factually recognizes that this was an emotionally packed situation where five boys and two girls of one race were accused of coming upon a parked car wherein a boy and girl of another race were parked and they allegedly attacked the boy, beat him up, and took the girl away from him, dragged her to their car where they allegedly assaulted and raped her. Five of the defendants, including the two girls, were apprehended immediately and tried some considerable time prior to the trial of the present petitioners. This was a second trial of the same offense by the petitioners-defendants who had not been apprehended and could not be brought to trial sooner.

 The important thing in the review of the transcript of this trial is an impression that the trial judge was making an extreme effort at fair and equitable conduct of the course of the trial, that it be kept on an even keel, and that the courtroom be strictly a forum for factual disposition of alleged violation of the law. If it is this Court's place to comment upon a trial court's conduct, this Court feels that the trial court's conduct under consideration here was eminently fair and any now alleged violations of the constitutional rights of the defendants were precipitated in the main by the defendants or their counsels' comments or actions.

 The Court will treat the petition of Esaw Mitchell first.

 At trial, Robert Lewis testified in his own behalf but Esaw Mitchell did not. Raymond Forchion, one of the five people previously convicted, took the stand on behalf of Robert Lewis. On cross-examination, counsel for Esaw Mitchell attempted to demonstrate what he claimed to be the marked physical similarity between petitioner, Esaw Mitchell, and Forchion in order to prove that the rape victim was mistaken when she identified petitioner, Esaw Mitchell, as one of the rapists.

 To demonstrate this similarity, counsel asked Esaw Mitchell to arise from his chair, walk around, and stand before the jury. He then had the witness, Forchion, come down from the witness stand and place himself beside petitioner before the jury. As part of its instructions to the jury the trial court charged:

"* * * A defendant in a criminal proceeding may testify in his own behalf if he so desires, although he cannot be compelled to be a witness against himself, but when the accused is upon trial and the evidence tends to establish facts which if true would be conclusive of his guilt of the charge against him, and he can disprove them by his own oath as a witness, if the facts be not true, then by his silence the jury may infer that he could not truthfully deny the charge."

 During summation defense counsel (see page 273 of transcript) and the prosecutor (see page 305 of transcript) also commented on petitioner's failure to testify. The jury returned a guilty verdict.

 The trial judge's and the prosecutor's comments were in accordance with State v. Corby, 28 N.J. 106, 145 A.2d 289 (1958), which was the existing law at the time of petitioner's ...

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