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February 20, 1980

UNITED STATES OF AMERICA ex rel. George Merritt, Jr., Petitioner,
SIDNEY HICKS, Superintendent, New Jersey State Prison at Rahway, and THE STATE OF NEW JERSEY, Respondents.

The opinion of the court was delivered by: MEANOR

George Merritt, Jr., petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeks relief from custody imposed following his third conviction for the murder of John Gleason, a Plainfield, New Jersey police officer killed during riots which erupted in that city in July 1967.


 A. Background

 In July 1967, following a period of racial tension and an outbreak of assaults, arson and looting in neighboring communities, rioting broke out in various sections of the City of Plainfield. The disturbance was so severe that the Plainfield Police Department sought merely to contain it by cordoning off the areas and diverting traffic away from the neighborhoods.

 On July 16, 1967, Officer John V. Gleason, a white patrolman, was directing traffic from his post at the corners of Plainfield Avenue and West Front Street. He was in full uniform and was equipped with a white riot helmet, a night stick, and a gun with ammunition. (R-9 at 2.57/10-18) At approximately 8:00 p.m., two white males informed Officer Gleason that they had been threatened and pursued by a black man wielding a hammer. (Id. at 2.56/25-2.57/21) Gleason left his post and followed the man with the hammer down Plainfield Avenue toward West Third Street, where he was encircled by a crowd variously estimated at between 20 to 40 blacks. (Id. at 2.63/4; 2.75/3; 2.119/23) At some point during the confrontation, Gleason fired several shots from his gun, wounding the man with the hammer in the arm and stomach. Gleason then turned to retreat up Plainfield Avenue, but he was pursued by the crowd, knocked to the ground, and kicked and beaten with a baseball bat, a hammer or meat cleaver, a shopping cart, rocks, bottles, boards and a club. (See id. at 2.63/20-2.64/10; 2.75/4-7; 2.119/3-2.120/6) After a few minutes, the crowd dispersed, but a smaller crowd regrouped and attacked the officer a second time. *fn1" Gleason died as a result of the injuries sustained in the beatings.

 Twelve persons, including petitioner, were charged in four separate indictments with the murder of Gleason. The indictments were consolidated for trial and, following a jury trial before the Honorable Chester A. Weidenburner, J.S.C. from November 12 through December 23, 1968, petitioner and a codefendant were found guilty of first degree murder. *fn2" These convictions were reversed on appeal by the Superior Court of New Jersey, Appellate Division, in an unreported opinion dated June 23, 1971. *fn3" (R-3 at Ra2) The Supreme Court of New Jersey granted certification, State v. Merritt, 59 N.J. 287, 281 A.2d 800 (1971), and affirmed the decision of the Appellate Division. State v. Madden, 61 N.J. 377, 294 A.2d 609 (1972).

 A second trial was conducted before the Honorable V. William DiBuono, J.S.C. and a jury from January 28 to February 15, 1974. Petitioner and codefendant Madden were again found guilty of first degree murder. In an unpublished opinion dated October 6, 1976, the Appellate Division affirmed the conviction of Madden but reversed petitioner's conviction and remanded for a new trial. *fn4" (R-3 at Ra16)

 A third trial of petitioner was conducted before the Honorable A. Donald McKenzie, J.S.C. in September 1977. Once again a jury found petitioner guilty of first degree murder. On October 21, 1977, Judge McKenzie denied petitioner's motions for a new trial, for a judgment of acquittal non obstante veredicto, and for bail pending appeal. (R-3 at Ra31; R-17) The Appellate Division affirmed the conviction in a three page opinion dated March 13, 1979 (R-3 at Ra40-42), and the New Jersey Supreme Court denied certification. State v. Merritt, 81 N.J. 278, 405 A.2d 823 (1979). *fn5" Petitioner is currently serving a life sentence at Rahway State Prison.

 In the third trial, as in the previous two trials, the sole witness who identified petitioner as having participated in the attack was one Donald Frazier, a resident of the neighborhood employed as a laborer for a garbage disposal service in South Plainfield. Indeed, in his opening statement to the jury, the prosecutor stated: "Now, the State rests its case, its proofs against George Merritt/George Hollis *fn6" on the testimony which you will hear from Donald Frazier. You will not hear anyone else identify this defendant as having participated in that killing." (R-10 at 22/5-9)

 Frazier testified that he had witnessed the beating of Gleason and that he knew some of the individuals who had participated in the attack. (R-9 at 2.113/7-2.126/18) He stated that petitioner, whom he knew as George Hollis, *fn7" hit Gleason with a hammer or meat cleaver during the initial attack and again during the second beating. (R-9 at 2.119/1-2.120/6; 2.122/20-2.123/17; R-11 at 3.2/5-3.6/20)

 Upon returning to work on Thursday, July 20, 1967, four days after the death of Gleason, Frazier informed his employer that he had observed the attack on the patrolman and that he knew some of the individuals who were involved in the incident. (R-9 at 2.127/5-2.128/3; R-11 at 3.3/1-12; 3.90/7-15; 3.156/12-3.157/7) Thereafter, *fn8" two police officers, later identified as Detective (now Lieutenant) Richard J. Mason of the Union County Prosecutor's Office and Detective Thomas Walker of the New Jersey State Police, interviewed Frazier at his place of employment with respect to the circumstances surrounding Gleason's death. Frazier testified that he informed the officers that he had witnessed the beating of Gleason and that he recognized some of the persons who had participated in the attack. *fn9" On cross examination, Frazier specifically stated that he named petitioner during this interview as one of the individuals who was involved in the incident:

Q When the police came to your job, the police came to your job. Did you tell the police when they came to your job about this fellow, George Hollis?
Q You told them about that?
A Yes.

 (R-11 at 3.83/5-10) And later:

Q You tell this Jury, sir, that you told the police eight days later that Hollis was involved. Is that what you tell this Jury, right, in effect that eight days later when the police arrived at the employees' (sic) place, you told them about Mr. Hollis? Is that your testimony?
A Well, yes. I did because I saw him there.
Q So you told them eight days later, right?
A Yes. . . .

 (Id. at 3.92/7-14) *fn10"

 On August 16, 1967, Frazier signed a formal statement at Plainfield Police Headquarters in the presence of Detectives Richard Mason and Richard Drake of the Union County Prosecutor's Office. The statement contained Frazier's account of the incident, and indicated that he had selected petitioner's picture from among those he had examined at the police station. (R-3 at Ra47-49; see R-9 at 2.128/13-2.137/20). *fn11" When asked what role petitioner had played in Gleason's death, Frazier replied that petitioner had beaten the patrolman with a hammer or meat cleaver and had thrown the instrument at the officer. *fn12"

 B. Petitioner's Brady Claims

 Prior to the commencement of the third trial, petitioner's attorney, *fn13" recognizing the importance of any information that would bear on Frazier's credibility, requested that the prosecutor furnish any written report, internal police document or memorandum concerning the July interview at Frazier's place of employment. (P-3 (a copy of which is attached hereto as "Appendix A")). No such report was produced.

 During pretrial proceedings, defense counsel renewed his efforts to obtain a written report of the July interview, and the following colloquy took place:

THE COURT: Is it the representation of your office, Mr. Rachmiel, that you have no knowledge of any prior statements to the law enforcement authorities by Mr. Frazier prior to the statement of August 16 which I understand had been furnished to Counsel for defendant?
MR. RACHMIEL: No other written statements. There was an oral statement. What had happened is the police had spoken to Mr. Frazier at his place of employment this is according to Frazier's testimony at prior trials within days or weeks or two weeks of the killing. He spoke to them and thereafter he gave the formal statement. I have searched my files and they're quite extensive, but I have not found any police report indicating who went to see him at work or anything to that extent. If I had it, I certainly would have given it to Mr. Ashley as I've given everything that I've been able to find which he has sought. . . .

 (R-4 at 38/24-40/11; see id. at 29/7-22) (Emphasis added.) *fn14" However, the prosecutor repeatedly stated that such a report either did not exist, or could not be located. (See, e.g., R-4 at 39/5-24; 40/12-14; R-15 at 6.90/12-6.91/1; R-16 at 7.65/3-17.)

 Following his conviction and during the pendency of his appeal to the Appellate Division of the New Jersey Superior Court, petitioner filed a motion for remand to the trial court. (Petitioner's Reply Brief to Respondents' Amended Answer, Appendix A) In his moving papers, petitioner again stressed the importance of the July interview, and argued that the prosecution had withheld evidence crucial to the credibility of Donald Frazier:

19. While there was some waffling as to how soon that meeting occurred after (Frazier) spoke to his employer (he finally agreed it was about eight days after the incident, which would have made it July 24), he persisted in his claim that he spoke to the police and gave Merritt's name to them when they visited him at his place of work.
20. Counsel for the defense zeroed in on this alleged meeting between Frazier and the police. If he could convince the jury that Frazier had not even met the police or, if he had, that Merritt's name had not been mentioned then Frazier's credibility would have been undercut even more decisively than it previously had been.

 (Id., Appendix A, Affidavit of Morton Stavis PP 19, 20) (Emphasis in P 19 in original; emphasis in P 20 added.) However, the Appellate Division denied petitioner's request for an evidentiary hearing. (R-3 at Ra35)

 In his appeal to the New Jersey Superior Court, Appellate Division, and thereafter in his petition for certification to the New Jersey Supreme Court, petitioner again argued that the prosecutor had withheld evidence which would have seriously undercut Frazier's credibility (Appellate Brief at 18-20; Petition for Certification at 7-13) *fn15" As stated previously, the New Jersey Superior Court, Appellate Division rejected petitioner's argument without discussion (R-3 at Ra40-42) and the New Jersey Supreme Court denied review. (Id. at Ra46)

 On July 23, 1979, Merritt filed the instant petition for a writ of habeas corpus, grounding his application on substantially the same arguments as those presented to the state appellate courts. In his petition, Merritt suggested the following possibility:

. . . Under the circumstances, it is simply not believable that the police would not have filed a report if Frazier, an eye-witness, had identified two suspects in the killing of Patrolman Gleason. As of the date of that meeting, the police apparently had only one identified suspect and there was much documentation by way of reports and signed statements with respect to that identification.
While we accept for the time being the State's version (finally disclosed to the judge but not the jury) that no report was prepared, there is of course another possibility, i. e., that a report was prepared in which is (sic) is clear that Frazier did not implication (sic) petitioner and thereafter that report was made to disappear because it was inconsistent with Frazier's August 16th statement.

 (Petition for a Writ of Habeas Corpus at 6 n.2) *fn16"

 Following an evidentiary hearing on December 28, 1979, this court ordered respondents to search the records of the New Jersey State Police, the Union County Prosecutor's Office and the Plainfield Police Department for the purpose of locating any written report or memorandum concerning any police interview with Donald Frazier prior to the written statement of August 16, 1967. The following document was discovered as a result of that search: a surveillance record dated July 31, 1967 prepared by Detective Richard ...

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