Klein v. Harris
| Decision Date | 15 December 1981 |
| Docket Number | No. 883,D,883 |
| Parties | Eugene Jerome Joseph KLEIN, Petitioner-Appellee, v. David HARRIS, Superintendent, Green Haven Correctional Facility, Robert Abrams, Attorney General, Respondents-Appellants. ocket 80-2282. |
| Court | U.S. Court of Appeals — Second Circuit |
Deborah L. Wolikow, Deputy Asst. Atty. Gen. of N. Y., New York City (Robert Abrams, Atty. Gen. of N. Y., Gerald J. Ryan, Asst. Atty. Gen. of N. Y., New York City, on the brief), for respondent-appellant.
Jonathan Marks, New York City, for petitioner-appellee.
Before KAUFMAN and TIMBERS, Circuit Judges, and WARD, District Judge. *
David Harris, Superintendent of Green Haven Correctional Facility ("the State"), appeals from a judgment of the United States District Court for the Eastern District of New York (Nickerson, J.) granting the petition of Eugene Jerome Joseph Klein ("Klein") for a writ of habeas corpus. Following a jury trial in New York State Supreme Court, Queens County, Klein was convicted of felony murder and murder in the second degree. As is described below Klein unsuccessfully pursued numerous avenues toward post-conviction relief in the New York state courts before petitioning the district court for a writ of habeas corpus. Klein's petition alleged, inter alia, that he was denied his due process right to a fair trial when a witness at his trial invoked the fifth amendment's privilege against self-incrimination upon being recalled to the stand and the trial judge failed either to direct the witness to testify or to strike the witness' earlier testimony. Judge Nickerson held, in an unpublished memorandum decision, (1) that the trial judge's challenged conduct constituted "plain error" of constitutional dimension and (2) that Klein was not precluded by any procedural bar from presenting his challenge to the trial judge's conduct in the context of a federal habeas corpus petition. Accordingly, Judge Nickerson granted Klein's petition and ordered that he be released if not given a new trial within sixty days. We agree with both aspects of Judge Nickerson's holding, and affirm the judgment.
The facts of the case before us, as found by Judge Nickerson after an evidentiary hearing, are as follows. During the afternoon of February 23, 1967, Diana Goodman was stabbed to death in her home, located in the Borough of Queens in New York City. On March 2, 1967, Klein and one Max Rabinowitz were jointly indicted for Goodman's murder. Both men were charged with the crime of murder in the first degree. Rabinowitz, who told the police that Klein had done the stabbing, was permitted to plead guilty to a reduced charge of manslaughter in the first degree and was sentenced to a term of ten to twenty years. He has since been released, apparently after serving ten years.
Klein, who maintained that Rabinowitz had suddenly and unexpectedly killed Goodman while Klein was in an adjoining room, went to trial in Queens County Supreme Court on February 15, 1968. At the trial, three police officers testified that, on three separate occasions after his arrest, Klein made statements in which he admitted that he went with Rabinowitz to Goodman's house on the day of the murder, that he knew Rabinowitz would attempt to take money from Goodman if she refused to give it to him, and that he saw Rabinowitz stab Goodman to death. The prosecutor also called one Michael Bartley, a prisoner awaiting sentence on a plea of guilty covering ten robberies. Bartley, in return for a promise of leniency, testified that, while he and Klein were in a detention area, Klein told him that he had stabbed Goodman.
The first degree murder charge against Klein rested on alternative theories of felony murder and premeditated murder. Klein's trial counsel, believing there to be no viable defense to the felony murder charge, adopted the strategy of attempting to obtain a verdict of manslaughter by convincing the jury that it would be unfair to convict Klein of any offense greater than that to which Rabinowitz had been allowed to plead guilty. To this end, Klein's trial counsel, while aware of Rabinowitz's prior statements that Klein had done the stabbing, called Rabinowitz as a defense witness. Rabinowitz, who had not yet been sentenced, testified that he had pleaded guilty to manslaughter. Upon further questioning by Klein's trial counsel, Rabinowitz, asserting no constitutional privilege, testified that he and Klein had gone to Goodman's house together, that he had intended to take money from Goodman if she would not give it to him, and that he had held Goodman while Klein had stabbed her.
Rabinowitz then left the stand and was taken back to the detention area. Klein's trial counsel also went to the detention area to speak with Klein. As Klein's trial counsel was leaving the detention area, Rabinowitz stopped him and told him that, under pressure from the assistant district attorney, he had lied on the stand. Rabinowitz stated that he, and not Klein, had actually killed Goodman. Klein's trial counsel immediately reported this conversation to the judge and the prosecutor at a conference in chambers. Rabinowitz's attorney was called. Upon his arrival, he told Rabinowitz not to testify further.
The defense thereupon recalled Rabinowitz to the witness stand. At this point, the judge advised Rabinowitz that he had the right to remain silent, and directed Rabinowitz's attorney to stand at his client's side in order to advise him as to each question asked by Klein's trial counsel. Rabinowitz admitted talking to Klein's trial counsel in the detention area. Klein's trial counsel then asked, "Did you tell me at that time that what you had testified to this morning was not true and that my client did not do the killing but that you did the killing?" Rabinowitz refused to answer, invoking the fifth amendment's privilege against self-incrimination. Klein's trial counsel next asked, "Would you tell us what happened on February 23, 1967, at the Goodman house at 81st Avenue?" Rabinowitz again refused to answer on fifth amendment grounds. The judge, though noting that the second question quoted above had previously been asked and answered, allowed Rabinowitz to assert the privilege in both instances. Moreover, he did not strike Rabinowitz's earlier testimony on this subject. No objection was made by Klein's trial counsel at this point.
The judge instructed the jury that it was to return two specific verdicts, one on the felony murder count and one on the premeditated murder count. With respect to the premeditated murder charge, the judge instructed the jury on murder in the first degree, murder in the second degree, and manslaughter in the first degree. In his summation, Klein's trial counsel, pursuant to the strategy described supra, virtually conceded guilt on the felony murder charge. He argued that, in fairness, Klein should receive no greater punishment for the crime than Rabinowitz, and consequently urged the jury to find Klein not guilty on the felony murder count and guilty only of manslaughter on the premeditated murder count. There is no indication in the record that either the prosecutor or the judge questioned the propriety of this argument. On February 26, 1968, the jury found Klein guilty of felony murder and guilty of murder in the second degree. Klein was sentenced to life for felony murder and to twenty years to life for second degree murder, the sentences to run concurrently. Pursuant to the later enacted N.Y.Exec.Law § 259-h(1) & (2), these sentences were subsequently reduced, respectively, to twenty years to life and fifteen years to life.
Klein's case has been the subject of extensive post-conviction proceedings. Before Klein was sentenced, his trial counsel moved, pursuant to N.Y.Crim.Proc.Law § 465, for a new trial, or alternatively for a hearing to determine if perjury had been committed at the trial. In his motion papers, Klein's trial counsel argued that Rabinowitz's exercise of the privilege against self-incrimination upon being recalled to the witness stand "deprived (Klein) of cross-examination and thereby of a fair trial." Klein's counsel also relied upon certain letters written by Rabinowitz to Klein in April 1968, before Rabinowitz was sentenced. In substance, Rabinowitz stated in these letters that he had perjured himself at the trial because the assistant district attorney had threatened to seek imposition of the maximum sentence on him unless he named Klein as the killer. Rabinowitz further stated that, upon being recalled to the stand, he had been coerced into invoking his fifth amendment privilege by threats of a perjury prosecution. At oral argument of Klein's section 465 motion, the assistant district attorney's sole opposition was that "the witness Rabinowitz was not a People's witness, he was not called by the People, he was called by the defense, and I submit that (when) the defense calls a witness who testifies as a defense witness and later recants on his testimony, I don't see why the People should be prejudiced because of that fact." The motion was denied, and Klein was sentenced as described above.
In 1969, Klein sought a writ of error coram nobis, alleging that during the trial the prosecutor knowingly used perjured testimony and suppressed exculpatory evidence, thereby depriving Klein of his constitutional rights to a fair trial and due process of law. This motion was denied by the judge who presided at Klein's trial, on the ground that the matters referred to in Klein's application were "before the Appellate tribunal as matters of record on both review of the conviction and of the order denying a new trial."
In his appeal, Klein claimed that the verdicts were unconstitutionally contradictory, that the judge denied a fair trial by failing to make inquiry with respect to the alleged perjury of Rabinowitz, and that it was error for the judge to refuse to...
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