481 F.2d 152 (2nd Cir. 1973), 525, United States ex rel. Haynes v. McKendrick

Docket Nº:525, 72-2332.
Citation:481 F.2d 152
Party Name:UNITED STATES of America ex rel. James C. HAYNES, Petitioner-Appellee, v. Charles L. McKENDRICK, Warden, Wallkill State Prison, Walkill, New York, Respondent-Appellant.
Case Date:June 14, 1973
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 152

481 F.2d 152 (2nd Cir. 1973)

UNITED STATES of America ex rel. James C. HAYNES, Petitioner-Appellee,

v.

Charles L. McKENDRICK, Warden, Wallkill State Prison, Walkill, New York, Respondent-Appellant.

No. 525, 72-2332.

United States Court of Appeals, Second Circuit.

June 14, 1973

Argued March 12, 1973.

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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.

OAKES, Circuit Judge:

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

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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 lineups 1 (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):

. . . I know that [petitioner's counsel] Mr. Gold, in his experience, he has dealt with people for many years of the colored race. There is something about it, if you have dealt

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with colored people and have been living with them and see them you begin to be able to discern their mannerisms and appearances and to discern the different shades and so on. Any of you that have never been exposed to them would never be able to. I don't see, I have been exposed to some degree, that isn't what I am getting at. What I am getting at is those who are living with them, dealing with them, and working with them in a sense, have a much better opportunity to evaluate what they see to identify what they see. (27-28.)

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* * *

Now, counsel for the defendants told you, and Attorney Gold is probably as well versed with the colored race as any man I know in the legal profession. He knows their weaknesses and inability to do certain things that maybe are commonplace for the ordinary person to do or remember or know certain things. (38.)

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* * *

. . . Here she is, a young girl about 13 [referring to a prosecution witness who was black]. And I know that you have recalled this young McCray girl who is the tall sister of Jones. That young lady [also black] had her first baby at 15. She is now married at 16 with another baby on the way. The maturity among these people becomes quite evident quite quickly. Here is a young girl interested in all the young-or ought to be, in the young men of her circle of friends or environment . . . (40-41.)

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* * *

It gets confusing when you talk to some of these youngsters like that because they don't express themselves as clearly as you and I might possibly be able to do so. (41-42.)

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* * *

Eyvonne Martin true enough is 13 years old. Again I point to the fact she is a colored girl. She knows her own. She knows the young bucks in that neighborhood and she knew Terry Cox [petitioner's codefendant]. (43-44.)

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I know that it is the custom and the habit of many colored people to try and straighten their hair. I don't know what the reason for it is. But in any event it is not uncommon to observe colored people with a heavy pomade grease or hair dressing in their hair. It is also not uncommon to find colored people with somewhat exotic hair-dos, male and female. Most of the exotic hair-dos take the form of a skull cap type hairdo, plastered down. You may have seen this. Others are taking the trend of the current day, of the long hair. It seems to be a fad. May I say that I cannot participate in that. The tendency on the part of these faddists, if I can call them that, is that they use this black bandana type, you have seen it, to hold the hair down. The effect of this grease is to straighten that hair out. And that would bring the hair down. The long hair as described by Mrs. Balon, being pulled down, plastered down on the side of the head and by Investigator Demler, who described it as long. This is not the type of sideburns that we usually think of when we think of sideburns. It probably operates much as bangs operate on a lady. They do not grow out of your forehead. They come off the top and dress down. . . . (79-81.) 3

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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). 4 See 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.),

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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. 5 See 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...

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