Schell and Arlen and his business relationship with members of organized crime; (c) his knowledge of Sutton's "specific hatred for Norman Dansker and Sutton's suggestion for murdering Serota"; (d) Sutton's partnership with Comras, their bank account at Security National Bank, and Comras' expensive cocaine habit.
Thereafter, he said, the United States Attorney's office contacted him and he met with them for the first time on January 30, 1975.
The initial focus of that first meeting, he stated, was to review his letter that he had written on January 24, 1975. According to his affidavit, he elaborated on the points raised in the letter and gave certain additional information. Thus he elaborated on Schell's involvement with Arlen and Sutton; and told the government that Sutton had boasted that Sutton's building was without unionized maintenance personnel because of his underworld ties. Silver also said that he told the government that Diaco and Valentine had met Sutton through Comras, and that one of Comras' employees at Sonnenblick had received a mortgage application from Valentine Electric for a loan of $3.5 million. He later turned over a copy of this application to the office.
He met with the government again, he said, on February 5, 1975. This meeting focused almost exclusively on Arlen Realty and its connection with Sutton and organized crime. The third meeting took place on February 11, 1975, and consisted of various topics previously covered.
Following submission of this affidavit to the Court of Appeals, the United States responded with an affidavit of Bruce Goldstein, sworn to August 19, 1975 (Exhibit K). This affidavit purports to show several inconsistencies between the F.B.I. Nitel letter and the averments in Silver's affidavit. Goldstein's affidavit stated that at no time before the conclusion of the trial had he received any information from the F.B.I. concerning Silver or concerning any interview of Silver by the agents of the F.B.I.
The Goldstein affidavit also pointed out differences between the letter Silver wrote to the United States Attorney on January 24, 1975, and what he said about this letter in his affidavit. Thus, contrary to his affidavit, Silver's letter to the United States says nothing about Sutton having a "specific hatred for Norman Dansker" or indeed for any other defendant; and there is nothing in the letter intimating that Sutton at any time suggested murdering Serota or had discussed with Silver accomplishing such, with or without Schell. Goldstein pointed out that there was nothing in the letter suggesting even remotely that any defendant was innocent of the crimes charged, or that Sutton bore any animosity toward any defendant, or that Sutton had ever engaged in or suggested that anyone engage in any violent conduct directed at any defendant or anyone else. Goldstein further stated that the letter was primarily concerned with charging that Comras was also involved in the conspiracy for which the defendants were being prosecuted, but it did not suggest that the other defendants were innocent. Goldstein also said in his affidavit that at the interviews conducted of Silver, Silver never gave any exculpatory information and furnished little information that was germane to the case. Consistent with the January 24 letter, Silver never stated in words or substance that Sutton had a specific hatred of or harbored any animosity toward any defendant or that he had suggested murdering Serota or anyone else. Based upon the information he had received, stated Goldstein, he did not feel the information received from Silver "even arguably was required to be disclosed pursuant to Brady v. Maryland and its progeny."
ii. Contacts between Silver and the defendants:
After his last interview by the government, nothing was heard from Silver for a few weeks. Meantime, the trial began. Then, on Sunday, March 23, 1975, Judge Bauman, Dansker's trial counsel, received a telephone call from his client, and as a result, met that evening with Dansker, Silver, and Foster Wollen, Esq., a partner of Judge Bauman's, for approximately two hours. Mr. Wollen took notes. The next morning, March 24, Silver came to Judge Bauman's New York City offices at Shearman & Sterling, where Mr. Wollen interviewed Silver again and took notes.
Judge Bauman could not be present. He was, of course, in my court, engaged in trial.
Thereafter, before the conclusion of taking of evidence on March 26, 1975, the IFC defendants and their counsel met and discussed the interviews of Silver by Judge Bauman and Mr. Wollen.
It is clear that all counsel decided not to bring the matter to my attention or to pursue further cross-examination of Sutton.
After conclusion of the trial, Silver was interviewed again, at Judge Bauman's office, by all IFC counsel.
This meeting preceded the filing of defendants' post-trial motions for judgment of acquittal and for a new trial.
When said motions were made, they made no mention of, or sought any relief based upon, anything related to Silver.
Judge Bauman in his affidavit expressly refrained "from stating the substance of any of the conversations or any of the reasons for . . . [his] decisions" on privilege and work-product grounds.
Mr. Richard Levin, the only one of the IFC trial counsel still involved in this matter, who appears for Orenstein, has filed an abbreviated affidavit in this proceeding.
Mr. Levin states that on March 23, 1975, he learned from Orenstein that James Silver had contacted Dansker to tell him he, Silver, had information about Sutton. Orenstein also told Levin that Judge Bauman was interviewing Silver at the Bauman home in Rye, New York, that evening. Mr. Levin's affidavit continues:
After that interview I was informed by Mr. Bauman and his law partner Foster Wollen, Esq. of the results of the interview of Silver.
Because of the lateness of the date and the impossibility of conducting an adequate investigation of Silver's information relevant to Sutton's credibility before deciding whether or not to call Silver as a witness, and on the basis of the information known and available to the IFC defendants at that time, it was decided that it would not be possible to predict what kind of witness Silver would make. Therefore, it was concluded that it would be too risky to put Silver on the stand at that time.