United States ex rel. Haynes v. McKendrick
Decision Date | 14 June 1973 |
Docket Number | Docket 72-2332.,No. 525,525 |
Citation | 481 F.2d 152 |
Parties | UNITED STATES of America ex rel. James C. HAYNES, Petitioner-Appellee, v. Charles L. McKENDRICK, Warden, Wallkill State Prison, Walkill, New York, Respondent-Appellant. |
Court | U.S. Court of Appeals — Second Circuit |
Michael Colodner, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N. Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for respondent-appellant.
Michael A. Meltsner, New York City, for petitioner-appellee.
Before HAYS, MULLIGAN and OAKES, Circuit Judges.
This case is surprising in this day and age since it presents, on appeal by the State from a conditional grant of the writ of habeas corpus in a proceeding under 28 U.S.C. § 2254, the question whether racially prejudicial remarks by a prosecutor in summation constitutionally infected the conviction of appellee. District Judge Motley held that they did so, that there was not harmless constitutional error, and accordingly granted the petition for the writ unless the State within 60 days retried petitioner, the appellee here. Her opinion is printed at 350 F.Supp. 990 (S.D.N.Y.1972). We agree and affirm.
On a rainy evening, December 11, 1965, three men robbed a Niagara, New York, delicatessen. In the process a robber wearing a beige trench coat, a black beret and a mask covering his mouth scooped up $132 from the cash register, hit a customer of the store with a gun, knocking him unconscious, and took his wallet and money. This robber ran out of the store, pursued by two policemen, but escaped. Meanwhile, two other officers came on the scene in a police car, and after briefly losing sight of the suspect, saw petitioner, Haynes, and arrested him. He was wearing a beige trench coat and black beret but he had no gun, no wallet and no $132. Two black stockings, one of which apparently fitted the description of the "mask," were, however, found in petitioner's pockets along with $25 in change and $73 in bills, 20 of which were and 53 of which were not in his wallet.
Petitioner was identified at the trial by four witnesses, three who saw him in lineups1 (two of whom said they had known him before the robbery) and one who testified he saw petitioner in front of the store before he put on his "mask." Petitioner's defense was based on an alibi supported by his own testimony, corroborated by three other players, that he had been playing poker and that the coins and bills were winnings. He explained his having the money in assorted pockets by saying that he had kept $17 rent money separately. The socks he and his wife said were put in his pocket when he had bought new gold ones that morning, to match his shirt. That the case was relatively a close one is partially evidenced by the fact that the jury retired at 6:07 p. m. on Friday, March 18, 1966, and returned at 10:42 p. m. with a series of questions concerning (1) the police log's data on the time of the call to the police car from which petitioner was ultimately seen and the time of the pick-up of petitioner; (2) from which of Haynes' pockets the arresting officer took the socks; and (3) the arresting officer's testimony as to mud on the shoes and pants of Haynes, coupled with a request to have the shoes and pants in the jury room. The jury retired at 11:16 p. m. and did not return with its guilty verdict until 12:55 a. m. on Saturday, March 19, 1966.
The appellant exhausted his remedies in the state courts, arguing in Point II of his brief to the Appellate Division of the State Supreme Court, 4th Department, entitled "Prosecutor's Remarks" that "allusions to race or ethnic background" were prejudicial and referring to the summation as being "replete with racial overtones, undertones, and explicit statements." Indeed, the State did not brief the exhaustion point here.2
What, then, were the remarks of the prosecutor to the all-white Niagara County jury, on which the trial court based its finding of a denial of due process? We repeat them here in extenso as we believe it necessary for better understanding of our decision (all quotations are from Volume 10 of the transcript of petitioner's trial):
We agree with the district court that the prosecutor's remarks introduced race prejudice into the trial and thereby denied petitioner his constitutional right under the due process clause to a fair trial. There can be no doubt that the prosecutor's remarks would have required reversal in a federal court appeal under the decisions of this and other federal courts. See United States v. Grey, 442 F.2d 1043 (6th Cir.), cert. denied sub nom. Williams v. United States, 400 U.S. 967, 91 S.Ct. 380, 27 L.Ed.2d 387 (1970).4See also United States v. Lamerson, 457 F.2d 371 (5th Cir. 1972); United States v. Grunberger, 431 F.2d 1062, 1068 (2d Cir. 1970). Skuy v. United States, 261 F. 316 (8th Cir. 1919), contained a prosecutorial statement comparable in its instillation of racial prejudice with this one; in that case the prosecutor implied that the testimony of one Christian soldier should be believed even though disputed by four Jewish witnesses simply because of the different religious affiliations of the witnesses. In both Skuy and Grunberger, supra, reversal was had despite a failure on the part of the defendant to object properly (perhaps by virtue of unconscious acquiescence on the part of the defense attorney in the prosecutor's objectionable remarks), and here too defense counsel's failure to object does not dispose of the issues raised by this habeas petition. This case goes well beyond the classic United States v. Antonelli Fireworks Co., 155 F.2d 631, 637-638 (2d Cir.), cert. denied, 329 U.S. 742, 67 S.Ct. 49, 91 L.Ed. 640 (1946), where the prosecutor's closing statement was an exhortation in wartime to the jury as patriotic Americans in disparagement of the Italian-American defendant. Judge Frank's eloquent dissent, it will be recalled, argued among many other things that a prosecutor "should not be permitted to summon that thirteenth juror, prejudice." 155 F.2d at 659.5See also Annot., 45 A.L.R.2d 303, 322-68 (1956); ABA Project on Standards for Criminal Justice, The Prosecution Function and the Defense Function §§ 5.8(c) and (d), commentary at 128-29 (1970).
Racial prejudice can violently affect a juror's impartiality and must be removed from the courtroom proceeding to the fullest extent possible. See generally G. Allport, The Nature of Prejudice (1955); B. Bettelheim & M. Janowitz, Social Change and Prejudice (1964); S. Blackburn, White Justice; Black Experience Today in America's Courtroom (1971); J. Kovel, White Racism, A Psychohistory (1970). It negates the defendant's right to be tried on the evidence in the case and...
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