After a lengthy trial at which I presided during April and May 1967 defendants were convicted by a jury of murder in the first degree with a recommendation of life imprisonment. Life sentences were accordingly imposed on June 29, 1967. The convictions were affirmed by the New Jersey Supreme Court (54 N.J. 436 (1969)) and certiorari denied by the United States Supreme Court, 397 U.S. 948, 90 S. Ct. 969, 25 L. Ed. 2d 130 (1970).
On or about October 1, 1974, approximately 7 1/2 years after the completion of the trial, defendants moved for a new trial on the ground of newly discovered evidence. R. 3:20. The application was founded upon affidavits of two state witnesses, Alfred Bello and Arthur Dexter Bradley, recanting significant portions of their trial testimony relating to the identification of defendants at the scene of the murder.
The court thereupon granted an evidentiary hearing to permit defendants and the State to present at a plenary proceeding all the available evidence relevant to the determination of whether a new trial should be granted.
Prior to the evidentiary hearing defendants expanded in their brief upon the asserted grounds for a new trial by alleging that they had been denied due process under the Fourteenth Amendment of the United States Constitution because the State had permitted without correction the same witnesses to perjure themselves in testimony relating to promises of leniency in sentencing on unrelated criminal charges pending against them.
Testimony was adduced on the two facets of attack and the court will deal with both issues herein.
In order to place the new trial application in proper focus it is necessary to review the operative facts as developed at the trial in 1967. First there will be summarized the evidence without consideration of the testimony of the recanting witnesses.
On June 17, 1966, at approximately 2:30 A.M., two black men entered the Lafayette Bar and Grill located at the corner of Lafayette and 18th Streets in the City of Paterson, with one man brandishing a revolver and the other a shotgun. Without provocation and without a clear motive they proceeded to shoot at all the occupants of the bar, as a result of which three persons died and one was severely injured. Because of the nature of his injury and the accompanying shock the lone survivor was unable to describe the assailants beyond the fact that they were Negroes.
Patricia Graham Valentine lived in an apartment on the second floor of the building in which the tavern was located. The noise of the shots awakened her, whereupon she ran to the window facing on Lafayette Street. She saw two black men running on the sidewalk below toward a white
car parked about a car width from the curb. She could not see their faces. However, she observed that it was a white car with a license plate which had a dark blue background with yellow or gold lettering. In addition, she testified that the rear lights had the unusual shape of tapering triangles. When the vehicle took off with the two men she hurried to the tavern, saw the horrible bloody scene and called the police. When she reached the door of the bar she saw the witness Bello and subsequently attempted to give succor to the victims.
When the police arrived shortly thereafter she told them what she saw, including the description of the automobile and providing a sketch of the tail lights. Shortly thereafter a white vehicle was returned to the scene which was identified by Mrs. Valentine as the one she had seen earlier. Further corroborative identification of the tail lights and the license plates took place at the police garage later.
Another neighbor across the street, Ronald Ruggiero, also heard the shots and when he looked out the window he saw the witness Bello running on Lafayette Street from 18th Street toward 16th Street. He also heard the screech of tires and saw a car shoot past his window with two colored men in the front seat.
As a result of an alert to look for a white car with out-of-state license plates and "butterfly" rear lights, and with two black occupants, within a half hour the police located a car in Paterson with defendants in the front seat. The vehicle was owned by Avis Rent-A-Car and had been rented some time before by defendant Carter. It was a 1966 white Dodge with New York license plates and had the odd "butterfly" tail lights described by Mrs. Valentine.
Detective Di Robbia searched the inside of the car at police headquarters at about 3:45 A.M. and found a 32-caliber Smith & Weston long live shell under the front seat. When he showed this to Carter the latter merely shrugged his shoulders. The evidence established without peradventure
that all the spent bullets found in various areas of the tavern and in the bodies of some of the victims were 32-caliber Smith & Weston long ammunition. There were also retrieved from the bar a spent shotgun shell and many pellets and pieces of wadding. Similar pellets and wadding were removed from the body of one of the victims. The expert identified these as having come from a 12-gauge shotgun. During the search of the car Detective Di Robbia also found a live 12-gauge shotgun shell in the trunk. (This shell was excluded from evidence at trial, but was considered admissible by the Supreme Court, 54 N.J. at 450.)
The remaining significant evidence was developed by the testimony of Bello and Bradley.
Around the time of the shootings Bradley was in the process of attempting to break into the plant of the Ace Sheet Metal Co. at the corner of 16th and Lafayette Streets, and Bello was acting as the lookout for the police. Bello testified that while he was standing at the corner of Lafayette and 16th Streets he saw a white car with two colored men in the front seat. He thereafter walked across the street to the northwest corner of that intersection to get a can of soda from a machine located there. He then walked back and spoke to Bradley, who was having trouble opening the door of Ace Sheet Metal. He proceeded to carry on his lookout duties at a tree near the corner when he again saw the white car cruising at about five to ten miles an hour, turning from Lafayette Street onto 16th Street.
He testified that the car at that time had two colored men in front and perhaps someone in the rear. The passenger in the front seat had something between his legs which looked like a rifle or a shotgun. The witness identified the car as the Carter car from a photo shown to him in court. Bello continued his walking tour back to Bradley
and then back to the corner, continuing down Lafayette Street toward 18th Street.
While walking toward the corner location of the Lafayette Bar and Grill for the purpose of getting cigarettes at the tavern he heard two shots and then two more shots. By that time he had reached the end of the building which housed the tavern. At that point he saw the white car parked on Lafayette Street and two colored men coming toward him from around the corner of 18th Street and Lafayette, talking loudly and laughing, with one carrying a shotgun and the other a pistol. They were 12 to 14 feet from him when he observed them. He also noticed a woman in the upstairs window.
He testified that the man carrying the shotgun was defendant Carter and that the other man with the pistol was defendant Artis.
Upon seeing the two armed men he turned and ran toward 16th Street and turned into an alleyway. While he was in this area he returned to the sidewalk. At that time he saw the same white car which had been parked proceeding toward 16th Street, and as it slowed down momentarily he noticed that it had New York license plates and triangle tail lights which tapered toward the outside.
Thereupon Bello proceeded to the bar and went in the side door located on Lafayette Street. He described the scene of the bodies in the tavern and also saw Mrs. Valentine enter for a moment and scream. He then went behind the bar to the cash register, saw one of the dead men lying there and helped himself to some of the cash in the register.
He subsequently left the tavern and joined his partner Bradley in an alley behind the Ace Sheet Metal building. He handed him the stolen cash and then returned to the bar and called the police.
Bello remained at the scene after the police arrived, and shortly other police cars pulled up with a white Dodge car and two black men. At that time and at police headquarters
that morning he failed to identify either defendant, contending that he did not see their faces. However, he did tell police that very morning that the car brought to the scene was the same one he had seen earlier. He did not tell the police at that time about Bradley or the criminal mission being carried on by them, or the fact that he had removed cash from the register in the tavern. In his court testimony, however, he admitted his involvement with Bradley and the theft of the money. In addition, he testified that he recognized defendants Carter and Artis when they were returned to the scene in the white Dodge as the same men he had seen on the street coming around the corner from the entrance of the Lafayette grill with the guns in their hands.
After he was confronted with his failure to identify defendants in his oral statement to the police on June 17, 1966 his credibility was rehabilitated by a written statement given to the police on October 14, 1966. In that statement he recited the facts in detail along the lines of his trial testimony and with positive identification of defendants. When asked at trial why he did not identify Carter and Artis on June 17, 1966 he stated that he realized he was involved in a "conspiracy to break and enter," that he had recognized the two men and that he feared retribution if they had recognized him. He further expressed concern because of involvement as a possible parole violator.
Bradley testified at the trial that he was in the process of attempting to pry open the door of Ace Sheet Metal Co. with a tire iron when a car passed by. As a result he threw the tire iron into the weeds. After a conversation with Bello he found the tire iron and went through an alleyway facing Lafayette Street. At that time he saw a car proceeding on Lafayette toward 18th Street. It was a new
white car which he thought to be a 1964 Ford. In the car at that time he saw four Negroes with two men in the front seat. The passenger had something between his legs which was long and thin. A photograph of the Carter car was identified by him as being similar to the vehicle he saw. He recognized the driver of the car as Rubin Carter. He knew his face from having seen his picture in magazines and from having seen him in Paterson. (Carter was a well known professional boxer).
Bradley then returned to his activity at the Ace Sheet Metal door without success, at which time he heard what sounded like backfiring or rifle or gun shots. He left the Ace door and again went through the alleyway to Lafayette Street. As a result of a prior conversation with Bello he knew that Bello had gone toward the Lafayette grill and so he started running on Lafayette Street in that direction. He saw someone walking further down the street toward the tavern but wasn't sure whether it was Bello. He did not wish to call out to him in the dead of night and so attempted to catch up with him. At a point about halfway toward 18th Street he heard more noises which sounded like backfiring or gun shots. As he continued he saw two Negroes coming toward him with one carrying a rifle or shotgun. He was not sure what the other man had in his hand. One was short and the other tall. Rubin Carter was identified by him in the courtroom as the one carrying the shotgun. He did not recognize and could not identify the second man. Bradley ran to his place of refuge in the alleyway, whereupon Bello ran up to him and gave him some money.
Sometime later he walked to the corner scene at the Lafayette grill where a crowd had gathered and spoke to Bello. While there he saw Carter and another man standing on Lafayette Steet near the side of the bar building and the car which was similar to the one he had seen previously. He said nothing to the police at that time about what he
had seen or about his own criminal activities. He was given a ride downtown in a police car and from there took a taxi to the house of a girl friend.
Subsequently that same morning he returned to the Ace Sheet Metal door in a car owned by a friend, Kenneth Kellogg, and managed to break the lock and enter the premises. He found no money and left by the rear door, ultimately driving home.
The defense had available two written statements of October 14, 1966 and November 18, 1966, the report of an oral statement of October 6, 1966 and Bradley's grand jury testimony of October 31, 1966. On cross-examination Bradley stated that he thought he was "giving them the whole truth" when he appeared before the grand jury.
The defense testimony consisted of the denial of the charges and a vain effort to establish an alibi. The character of the alibi testimony is well described in the Supreme Court opinion of Chief Justice Weintraub:
As already noted, one of the grounds urged for a new trial is the recantation by the witnesses, Bello and Bradley, as presented under oath at the evidentiary hearing.
Bello testified at this hearing that he lied during the trial with respect to his identification of Carter and Artis as the persons whom he saw with guns in hand shortly after the shooting at the Lafayette bar. He did not, however,
recent any other trial testimony as to his actions or observations during the morning of the crime. He asserted that he was "molded" by "Passaic County" to become a "stool pigeon" mainly through the pressure exerted by Lt. DeSimone, the prosecutor's detective in charge of the investigation.
The first time that he told anybody that he lied in his trial testimony was in a statement given to an investigator of the Public Defender's office on September 19, 1974.
Bradley was more expansive in his recantation, claiming that in fact he did not see any black males that morning in the involved area and more particularly did not see or recognize Carter as he had testified at the trial. In fact, he asserted that he never heard any shots and did not proceed on Lafayette Street toward the bar so as to be in a position to observe any persons coming from the entrance. Furthermore, he denied the truth of the testimony relating to his observations of a white car and the identification of the Carter car.
In effect, Bradley contended at the hearing that all his testimony concerning the cruising vehicle and the presence of two black males on the sidewalk and the recognition of Carter was false. He testified that it was all made up as a figment of his imagination recreated from what he had heard from others. He also stated, however, that his trial testimony was not the result of any threats or pressure from anyone. Nobody told him what to say, whether it concerned his actions, his observation of the car and its occupants, his observation of the two black males on the street or his recognition of Carter. In toto , he testified that between the time that he first admitted some knowledge of the events in October 1966 and his trial testimony in May 1967 no one had directed him what to say or testify.
This witness also failed to tell anyone that his trial testimony was untrue until May 1974, when he signed a statement for an investigator.
The foregoing recantations present to the court two conflicting versions under oath of both witnesses. Does the mere fact that State's witnesses give recanting post-trial testimony necessarily entitle defendants to a new trial? Obviously not! If mere recantation in itself dictates a new trial, the entire judicial process could be frustrated by the mere whim of a witness recanting his testimony.
Initially, a motion for a new trial on the ground of newly discovered evidence must meet three basic criteria. The new evidence must be: (1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the original trial and not discoverable by reasonable diligence prior thereto, and (3) of the sort which would probably change the jury's verdict if a new trial was granted. State v. Artis , 36 N.J. 538, 541 (1962); State v. Johnson , 34 N.J. 212, 222 (1961); State v. Vaszorich , 13 N.J. 99, 130 (1953); State v. Puchalski , 45 N.J. 97, 107 (1965); State v. Bunk , 4 N.J. 482, 486 (1950); State v. Sullivan , 43 N.J. 209, 233 (1964).
As conceded by the State, the nature of the recanting evidence herein and the facts relating to its discovery are such that defendants meet the judicial criteria set forth above.
However, in addition to the necessity of finding that the new evidence complies with the foregoing criteria, the court has an additional burden and function when the newly discovered evidence consists of recanting testimony. The court must determine whether the new testimony is true and the trial testimony false by application of a standard of reasonable probability. Manifestly, the essence of the grant of a new trial based on recanting testimony is not that a witness says he lied at trial but whether the new evidence is probably true.
The Supreme Court of New Jersey in Puchalski, supra pointed out:
The test for the judge in evaluating a recantation upon a motion for a new trial is whether it casts serious doubt upon the truth of the testimony given at the trial and whether, if believable, the factual recital of the recantation so seriously impugns the entire trial evidence as to give rise to the conclusion that there resulted a possible miscarriage of justice. His first duty is, therefore, to determine whether the recanting statement is believable. [45 N.J. at 107-108]
See also, State v. Vaszorich, supra , 13 N.J. at 130; State v. Bunk, supra , 4 N.J. at 488-491; State v. Johnson, supra , 34 N.J. at 227-228; State v. Sullivan, supra , 43 N.J. at 232-233; State v. Smith , 29 N.J. 561, 574-575 (1959).
Thus the trial judge must himself consider where the truth probably lies, and if the trial court is satisfied the present testimony of the recanting witness is unbelievable, the application must be denied. [at 400]
The sequel to the denial of a new trial in Baldwin was an application to the Federal District Court of New Jersey for a writ of habeas corpus which resulted in an opinion by Judge Whipple denying the writ. U.S. ex rel. Baldwin v. Yeager , 314 F. Supp. 10 (D.N.J. 1969), aff'd 428 F.2d 182 (3 Cir. 1970), cert. den. 401 U.S. 919, 91 S. Ct. 905, 27 L. Ed. 2d 822 (1971).
The principles applicable to the court's function in the consideration of a motion for a new trial based on recanting testimony cannot be expressed in better terms than the oft-cited language utilized by Judge Cardozo as a Judge of the Court of Appeals of New York in People v. Shilitano , 218 N.Y. 161, 112 N.E. 733 (1916):
"Three witnesses for the prosecution have stated under oath to the trial judge that their testimony upon the trial was false. It became his duty to say whether they were conscience-stricken penitents, or criminal conspirators to defeat the ends of justice . . . I do not mean that to justify a new trial, he must have been convinced -- firmly or with a sense of certainty convinced -- that the first story
of the witnesses was false and that their new story was true. He might act upon a reasonable probability. But if, on the contrary, he was convinced that the second tale was false, that a criminal league had been formed to set at naught the verdict of the jury and the judgment of the court, his duty was clearly marked. People v. Tallmadge , 114 Cal. 427, 46 Pac. 282; Parker v. Hardy , 24 Pick. (Mass.) 246, 249. He was not at liberty to shift upon the shoulders of another jury his own responsibility. That would have been to make the conspiracy triumph. He was charged with a responsibility to seek the truth himself." [112 N.E. at 739; emphasis supplied]
In the same case the majority opinion of Judge Seabury succinctly summarizes the suspect character of testimony of a witness in a criminal trial who subsequently recants:
" There is no form of proof so unreliable as recanting testimony. In the popular mind it is often regarded as of great importance. Those experienced in the administration of criminal law know well its untrustworthy character." (At 736; emphasis supplied).
In the framework of this motion for a new trial the burden of proof rests with defendants to establish the believability of the new testimonial version so as to convince the court that there is a substantial possibility of a miscarriage of justice. State v. Baldwin, supra; State v. Smith, supra , 29 N.J. at 573.
In assessing the credibility of the recantations of both witnesses the initial element which casts a cloud of suspicion upon them is the fact that neither one of them came forward with a confession of alleged perjury until seven years after the trial -- a period of time which immunizes them from prosecution for perjury or false swearing arising out of their trial testimony.
Bello attributed his allegedly false identification of defendants to such reasons as the hope of a $10,000 reward, the "molding" by "Passaic County" and the questioning and strain that he was under. In the main, however, he focused his attack upon Lt. DeSimone as the one law enforcement
officer who pressured him into lying at trial. It is significant that in the affidavit upon which the motion was based Bello swore, "The pressure was by the Prosecutor's Office and the Police, namely Lt. De Simone and Assistant Prosecutor Hull." Yet at the hearing he failed to support the charge that Hull exerted any pressure on him. He again demonstrated his present lack of regard for an oath by testifying that at one point Captain Gourley of the Paterson Police "engineered it all" and then on cross-examination reluctantly admitted that his charge against Captain Gourley was untrue.
When Bello was first questioned by Detective Lawless of the Paterson police on the morning of the killings he gave no inkling of his own criminal involvement in the Ace Sheet Metal job or of the participation by Bradley. Furthermore, he failed to identify defendants as the persons he saw in the white car and on the sidewalk contiguous to the Lafayette bar. When confronted with this statement at trial he observed that he withheld the foregoing information because of fear of incriminating himself in the Ace Sheet Metal break-in and fear of physical harm from defendant Carter or his friends.
The uncontradicted evidence produced by the State at the new trial hearing is revealing as to the believability of Bello's current recantation.
In the latter part of July 1966, while the murders were still under investigation and before any arrests were made, Detective LaConte of the Paterson police saw Bello's car in the parking lot of a Paterson tavern known as "Frankie's Playpen." He entered the bar and engaged in conversation with Bello. The latter proceeded to talk about the shooting and for the first time told a police official that someone else was with him that night, namely, Arthur Dexter Bradley, who was supposedly in Massachusetts at the time. This conversation was reported to Lt. Rafferty, the officer in charge, and also to Sgt. Mohl.
The next contact between the police and Bello was on or about August 4, 1966 when further questioning failed to produce anything more relating to identification. Although there was an ongoing investigation, it was not until October 3, 1966 that there was a breakthrough in the police effort. Detective LaConte had been cruising in his car in performance of his duties when at approximately 2:00 A.M. he saw Bello enter a tavern. The detective went in and started a conversation with him. Bello appeared very excited and blurted out, "I'm all messed up since this shooting happened * * * I'm scared." He continued to relate that he had been approached by a black female who told him that he had better not talk to the police about the Lafayette shootings. When LaConte pressed him on whether he knew who was responsible for the shootings, Bello said, "You had the man and you let him go," and ultimately named Carter. When he was asked at that time why he had waited so long to come forth with the information he pointed out, "I'm scared -- Rubin Carter has friends -- I have a brother who is in State's Prison. I have to think of him."
When told that he would have to go to the prosecutor with the information, Bello said, "If you go to Lt. DeSimone I'll deny everything." He ...