Jersey and opened fire. The bartender, James Oliver and a patron, Fred Nauyaks, were killed immediately. A second patron, Hazel Tanis, died one month later from her wounds and a third, William Marins, was partially blinded after being shot in the head.
Arrested four months later for the murders were Rubin Carter, a well-known professional boxer who lived in Paterson, and who was, at 30 years old, reaching the peak of his career, a contender for the middleweight crown; and 20 year-old John Artis, who was about to enter college on a scholarship.
As the case took a tortuous and often circuitous route through the New Jersey courts, the circumstances surrounding the killings and subsequent prosecution of Carter and Artis have become a mosaic. The picture of the evidence painted by petitioners and respondents is often conflicting and sometimes exceptionally murky. The accounts of many important witnesses, especially that of Alfred Bello, the only "eyewitness" to testify at the 1976 trial, have changed; some witnesses have died; the memories of those who survive have grown hazy. But from thousands of pages of testimony spanning two trials and numerous hearings, the parties have reconstructed two drastically different versions of the events that tragic night. The conflicting evidence is reviewed below (See The Brady violation) but a brief summary of the evidence introduced at the second trial is presented here.
Patricia Valentine lived above the tavern and was awakened by gunshots about 2:30 a.m. She first ran to her window and saw two men leave the scene in a white car, then ran downstairs to the bar. Alfred Bello and Arthur Bradley were in the process of breaking into a nearby factory. Bello, who was standing lookout, was either in or outside of the bar (a main point of contention). Within minutes, police arrived at the scene and took statements from Bello, Marins and Valentine. A description of the car was sent out on police radio. A few minutes later, a Paterson police officer who just given up a brief chase of two cars, one white and one black, speeding out of town, started driving back into Paterson. He stopped a white car leased by Carter about 14 blocks away from the Lafayette Bar. Artis was driving, John Royster was sitting in the front seat, and Carter was alone in the back seat. The car was not speeding and there were no weapons in sight. Carter told the officer that the men were driving to his home, about six blocks away, to obtain money, and the car was allowed to go. Fifteen minutes later, Carter's car was observed outside the La Petite Bar about 10 blocks west of the Lafayette. About five minutes later, the car was sighted for a third time, with only Carter and Artis in the vehicle. This time the police escorted the car and its occupants to the crime scene.
From the evidence, it appears neither Bello nor Valentine identified the petitioners at the scene, and there is considerable dispute as to the identification of the car at the scene and again later that evening at the police station. The petitioners were taken to the station and to the hospital where the two survivors did not identify them. The petitioners were questioned, given polygraph examinations and released about 7 p.m. on June 17.
Meanwhile, police searched the car in which they later alleged that they found a live .12 gauge shotgun shell in the trunk and a live .32 caliber shell on the floor of the front seat. There was considerable dispute about this evidence.
The petitioners voluntarily testified before a Passaic County Grand Jury which did not return any indictments. In July and October, Bello told a Paterson police officer that he had seen Carter and Artis at the crime scene. Bello and Bradley identified Carter as one of the two black men they saw coming from the Lafayette Bar with weapons in their hands. Bello, but not Bradley, identified Artis as the second man. On the basis of these identifications, the petitioners were indicted and ultimately convicted of murder in June of 1967.
In late 1973, Fred Hogan, a state Public Defender's Office investigator assigned to Carter's case began contacting Bello and Bradley about the case. Hogan had communicated with Richard Solomon, a documentary film-maker, Selwyn Raab, who then worked for a New York television station, and Hal Levinson, who worked for Raab at the station. Raab and Levinson eventually talked with Bello about recanting his testimony. After Bradley gave Hogan a statement recanting his identification of Carter, Hogan continued to talk with Bello, who in a written statement from jail in September 1974 first recanted his 1966 testimony (37T125).
The recantation resulted in a hearing and began a series of events that ultimately set the stage for the second trial in 1976.
At the retrial, there was considerable testimony concerning alleged inducements made to Bello by both the prosecution and the defense camp in order to change his story. (See: The Brady Violation, infra) There was also evidence presented, and disputed by the defense, that Carter attempted to create a false alibi for the 1967 trial. (See: The Brady Violation, infra) The petitioners were both found guilty of first degree murder. Carter was sentenced to two consecutive and one concurrent life sentences and remains in prison. Artis, who received a lesser sentence, was released on parole for a ten year term beginning December 22, 1981.
The petitioners were originally tried and convicted in 1967 of three counts of first degree murder. Life sentences were imposed after a jury recommendation of mercy on June 29, 1967. The convictions were affirmed on direct appeal to the New Jersey Supreme Court. State v. Carter, 54 N.J. 436, 255 A.2d 746 (1969) (" Carter I "), cert. denied, 397 U.S. 948, 25 L. Ed. 2d 130, 90 S. Ct. 969 (1970).
On October 1, 1974, the petitioners filed a new trial motion based on the statements of the state's two key witnesses recanting their 1967 identification testimony. The original trial judge denied the motion. State v. Carter, 136 N.J. Super. 271, 345 A.2d 808 (Cty. Ct. 1974). A second new trial motion was made on January 30, 1975 and that motion was also denied. State v. Carter, 136 N.J. Super. 596, 347 A.2d 383 (Cty. Ct. 1975). That decision was appealed to the New Jersey Supreme Court, which, on March 17, 1976 overturned the convictions and ordered a new trial. State v. Carter, 69 N.J. 420, 354 A.2d 627 (1976) (" Carter II "). The Supreme Court ruled that the prosecution had withheld from the defense exculpatory evidence which demonstrated that prosecutors had offered the key identification witnesses protection and help with criminal charges pending and/or threatened against them.
The case was remanded to the trial court, where there were numerous motions and hearings. The retrial began on October 12, 1976 and concluded on December 22, 1976 when the jury returned first degree murder verdicts. The judgments were appealed to the Appellate Division of New Jersey Superior Court and the state Supreme Court. During the pendency of these appeals, there was a federal habeas corpus order for a state court hearing on allegations of juror misconduct. These hearings were held in 1979 by the second trial judge, who found against the defense on all issues.
Among the new trial motions pending before the New Jersey appellate courts was a motion seeking an evidentiary hearing to determine whether the prosecution had misrepresented the results of a 1976 pretrial polygraph test given to Alfred Bello. (See: The Brady Violation, infra) The Appellate Division affirmed the convictions in an unreported opinion issued October 22, 1979. The New Jersey Supreme Court reversed, however, remanding the issue to the trial court for a hearing on issues surrounding the polygraph test. State v. Carter, 85 N.J. 300, 426 A.2d 501 (1981) (" Carter III ").
The remand hearing before the trial judge lasted 15 days. In an 80-page unreported opinion dated August 28, 1981 ("Opinion on Remand"), the judge found against the defense on all issues. One year later, following further briefing and oral argument, the New Jersey Supreme Court affirmed the convictions by a 4-3 majority. State v. Carter, 91 N.J. 86, 449 A.2d 1280 (1982) (" Carter IV ").
Subsequently, petitioners filed another application before the trial court for an evidentiary hearing relating to allegedly exculpatory material contained in the file of a former prosecution investigator. That application was denied and appealed to the Appellate Division, which affirmed the trial court in an unreported decision dated July 2, 1985.
THE HABEAS CORPUS PETITIONS
The instant petitions for habeas corpus were filed February 13, 1985 by Carter and February 28, 1985 by Artis. The actions were consolidated in an order dated May 6, 1985. A motion for summary judgment on seven of the petition's twelve grounds was filed by petitioners on May 25, 1985 and oral argument on the motion was held July 22, 1985, after which the court received further submissions from counsel.
The petitioners allege:
1. The state violated the requirements of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) by failing to disclose the results of a lie detector test given to the state's only "eyewitness".
2. The state violated the Equal Protection and Due Process rights of petitioners by improperly appealing to racial prejudice during the trial by claiming the killings were motivated by racial revenge.
3. The jury considered material not introduced as evidence and members of the jury had preexisting racial prejudice.
4. The prosecution misled the defense as to its theory of the case, withheld discovery, improperly cross-examined and unfairly denigrated defense witnesses.
5. The prosecution violated the Due Process rights of petitioners by exerting improper pressure on certain witnesses to support a false alibi claim.
6. The prosecution violated the Due Process rights of petitioners by using Bello as a witness despite proof of his "monumental" untrustworthiness.
7. The prosecution withheld a memorandum in violation of Brady showing how Bello was persuaded to change his mind.
8. The prosecution violated the petitioners' rights to a Speedy Trial by making last-minute presentations at trial of a new theory.
9. The evidence presented at trial did not meet the reasonable doubt standard.
10. The petitioners' Due Process rights were violated because public funds were not made available for investigative and expert services and because the trial judge did not properly exercise judicial discretion to limit cross examination regarding Carter's criminal record.
11. The petition's Due Process rights were violated by the trial judge's bias.
12. The state committed a Brady violation by failing to produce a file by a former investigator in the case.
Petitioners seek summary judgment on Grounds 1, 2, 4, 6, 7, 8 and 10.
During oral argument, counsel for Petitioner Carter represented that the complaint would be amended to exclude Ground 12, the identical issue rejected by the Appellate Division on July 2, 1985, so that there would be no dispute that he had presented only exhausted claims to his petition. Respondents agreed to the amendment of the complaint.
Petitioner Artis has not amended his petition to delete Ground 12, and argues that technical exhaustion of his state remedies is unnecessary because the corrective process in the New Jersey state courts is so clearly deficient as to render futile any efforts to obtain relief. That issue is discussed below. (See: Exhaustion of State Remedies, infra).
THE RACIAL REVENGE THEORY
A. The State's Arguments
The court first turns to Ground 2, that the petitioners' Due Process rights were violated. During the 1967 trial, the defense argued that the state had not established any reason or motive for Carter and Artis to have committed the murders. Anticipating the same tactic at the 1976 retrial, the state contended the shotgun murder of James Oliver, a white bartender at the Lafayette Bar, was motivated by racial revenge. The state theorized that the other three bar patrons were shot only because they had witnessed Oliver's killing, and that there was no robbery, because their money was scattered about the bar after the rampage. (16T44, 19T174, 32T167-171).
The genesis for the state's theory began about six hours before the Lafayette Bar killings, when Leroy Holloway, the black owner of the Waltz Inn, another Paterson tavern, was shot and killed by Frank Conforti, a white man who had previously owned the Waltz Inn. The state introduced testimony from police officers that a large and "angry" crowd gathered outside the Waltz Inn shortly after the shooting. (32T194, 31T136-141) Within the next few hours, according to the Grand Jury testimony of Rubin Carter himself, there was talk of a "shaking" or some sort of retaliatory action among the black community. (36T153-154)
In order to tie the two killings together, the state argued that the Lafayette Bar had served primarily white patrons and was an ideal target of this anger. (31T69-71) It was located on the fringes of a black neighborhood and Oliver, its bartender, had on occasion refused to serve black customers, according to the testimony of one officer. (17T75-80) The state alleged that Carter and Artis were both aware of the murder of Holloway and the ensuing tense atmosphere in the streets, and that they were driven to action out of their friendship with Edward Rawls, Holloway's stepson and a part-time bartender at the Nite Spot, a Paterson bar frequented by Carter. (39T257-258) After he learned of the Waltz Inn shooting, Rawls took the night off from his job at the Nite Spot and went to the hospital where his stepfather had been taken, then to police headquarters, where, according to police officers' later testimony, Rawls demanded to know what the "police intended to do about the guy who killed his stepfather." One of the same officers testified that Rawls became agitated and was ordered to leave. (33T5-8) Afterwards, Rawls met Carter at the Nite Spot, where Carter extended his condolences. The state asserts that Carter then set out to search for weapons stolen from his training camp a year earlier, found the guns and committed the murders. (36T136-149).
B. Proper Use of Motive
At trial, the defense objected strenuously to the introduction of the racial revenge motive, on the grounds that such evidence would be prejudicial and that its probative value was outweighed by its prejudicial effect (31T120). The trial judge, relying on State v. Rogers, 19 N.J. 218, 116 A.2d 37 (1955), ruled that in criminal prosecutions, wherein the motive is important and material, a somewhat wider range of evidence is permitted. (31T121). In Rogers, the court allowed evidence showing loans made by a murder victim to the defendant were never repaid. Similarly, the Carter trial judge held that the proffer of motive was material and probative and had a tendency to explain conduct which would ordinarily or otherwise probably be unexplainable. (31T122). The New Jersey Supreme Court agreed, citing Rogers and its progeny, and ruled that "There is nothing inherently wrong with advancing a theory of revenge as a motive for murder, if the facts bear out the theory." Carter IV, 91 N.J. at 106.
It is well-established that the prosecution may introduce evidence of motive. Carter IV, at 102, 1 Wigmore and Tillers, Evidence § 118, at 1697-98 (1983). "Motive cannot be shown directly, but may be inferred from facts in evidence. In the introduction of evidence to show motive, a wide range is permitted. Thus, any evidence which logically tends to show a motive, or fairly tends to explain the conduct of the accused should be permitted" 1 Wharton, Criminal Evidence, § 170 at 317-318 (13th ed. 1972). In State v. Rogers, supra, the court allowed the prosecution to introduce evidence to show the defendant had been indebted to the murder victim. The New Jersey courts have continued to follow Rogers, as have other courts throughout the country. For instance, in State v. Baldwin, 47 N.J. 379, 391, 221 A.2d 199 (1966), cert. denied, 385 U.S. 980, 17 L. Ed. 2d 442, 87 S. Ct. 527 (1966), the court allowed evidence that the defendant's victim was a prospective witness; in State v. Royster, 57 N.J. 472, 484-85, 273 A.2d 574 (1971), the court allowed evidence showing the defendant threatened the victim several weeks before the murder; in United States v. Parker, 549 F.2d 1217 (9th Cir. 1977), cert. denied, 430 U.S. 971, 52 L. Ed. 2d 365, 97 S. Ct. 1659 (1977), the court upheld the introduction of evidence of narcotics dealing as motive to commit a robbery; and in United States v. Michaels, 726 F.2d 1307 (8th Cir. 1984), cert. denied, 469 U.S. 820, 105 S. Ct. 92, 83 L. Ed. 2d 38 (1984), the court allowed evidence of the car bombing death of the defendant's grandfather as motive for a subsequent bombing.
C. The New Jersey Supreme Court's Analysis
The New Jersey Supreme Court majority accepted the racial revenge theory as probative, dismissing the petitioner's claims that irrespective of its relevance, the impact of the evidence involving motive was inflammatory and improperly swayed the jury. The decision, the court said, was within the discretion of the trial judge, and absent abuse of discretion or a manifest denial of justice, should not be disturbed. Carter IV, 91 N.J. at 106-107. "Ordinarily, evidence as to motive is admissible even though it may be prejudicial in the sense that it will arouse or inflame the jury." 1 Wharton, Criminal Evidence, supra, § 170, at 316. This case is, however, far from an ordinary introduction of motive. The court must be especially sensitive to the introduction of motive with racial connotations. When a court is dealing with narcotics use as motive for robbery, or a previous direct threat by a defendant against a victim as an indication of ill-will and motive, then there is a clear relationship between the defendant and the motive. There is no such relationship here.
The New Jersey Supreme Court also rejected petitioner's claims that the interjection of the racial revenge motive, and the state's summation of that motive, was an unacceptable appeal to racial prejudice, and as such violated their due process rights to a fair trial.
Carter IV, at 107. The summation read, in part:
PROSECUTOR: Strand Number Five: Motive. Defense counsel say that is a sensitive issue and it is. It's a very sensitive issue. None of us like to admit that things like race prejudice and anger and hate for people because of the different color of their skin exists in this world. We avoid it. We teach our children the contrary. We support civil rights. We support courses in our schools. We bear in mind the words of Reverend King, in which he had a dream of a day where people would judge his children by the quality of their character, not by the color of their skin. Now ladies and gentlemen, we don't live in that world yet and we certainly didn't live in that world in 1966. It was a world and is a world filled with people who hate. You may remember in the voir dire a number of questions were asked of you about racial prejudice. We wanted a jury which is free from racial prejudice. But, we recognized in making those questions that not everybody is free from racial prejudice and, of course, we know that no group, no class is immune from hate and we know that revenge is one of the most powerful motives that any human being can have. We look around the globe and see it everywhere. We see Greeks and Turks and. . .
COUNSEL FOR ARTIS: Your Honor, I object to Greeks and Turks and things outside this courtroom.