Perry v. Mulligan

• Decision Date: 19 September 1975
• Docket Number: Civ. A. No. 75-79.
• Citation: 399 F. Supp. 1285
• Parties: Andrew PERRY, Petitioner, v. William F. MULLIGAN, Chief Probation Officer Essex County Probation Department, Respondent.
• Court: U.S. District Court — District of New Jersey

399 F. Supp. 1285

Andrew PERRY, Petitioner, v. William F. MULLIGAN, Chief Probation Officer Essex County Probation Department, Respondent.

Civ. A. No. 75-79.

United States District Court, D. New Jersey.

September 19, 1975.

Stanley C. Van Ness, Public Defender, Trenton, N. J., by Anthony M. Mahoney, Designated Counsel, Newark, N. J., for petitioner Perry.

Joseph P. Lordi, Essex County Prosecutor by Kenneth Ply, Asst. Prosecutor, Newark, N. J., for respondent Mulligan.

OPINION

STERN, District Judge.

Andrew Perry, a former Newark policeman, was convicted of attempted extortion in violation of N.J.S.A. 2A:85-5 and 2A:105-1. He is presently serving two years probation, and petitions for a writ of habeas corpus.¹

The petitioner appealed his conviction to the Appellate Division of the New Jersey Superior Court and to the New Jersey Supreme Court. Both courts affirmed his conviction.² Since the issues raised by this petition are identical to those passed on by both appellate state courts, the petitioner has fully exhausted his state remedies. Title 28 U.S.C. § 2254(b); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

Perry's claims for relief relate to the conduct of the state prosecutor during his summation. The prosecution commenced its case against Perry by showing that he was involved in the arrest of one Willie Lee Jones on March 22, 1968. The arrest was for possession of heroin, a charge which later resulted in Jones' conviction. At Perry's trial, Jones testified as a prosecution witness. Jones stated that Perry approached him after the arrest and offered to prepare a favorable probation report for $1,000.

Jones testified that he immediately reported the offer to the Essex County Prosecutor. The prosecutor equipped Jones with $300 in marked money and a recording device. Four plainclothes detectives then accompanied Jones to a meeting with the petitioner Perry at a tavern. Jones testified that he and Perry conversed briefly at the bar and and then entered the men's room. The detectives broke in almost immediately.

The officers testified that Jones and Perry spoke at the bar, and that Perry showed Jones a probation report. Only one detective claimed to have overheard any part of the conversation at the bar. He stated he heard the words "$300" and "ah ha." The three other detectives, including the officer closest to Jones and Perry, testified that the conversation was inaudible. The tape recording of the conversation proved to be unintelligible. At the time of the arrest the bait money was still in Jones' possession.

The defense argued that the actions of petitioner were consistent with police procedure. Their theory was that the meeting was an attempt by Perry to gain narcotics information from Jones. In addition to the testimony of the petitioner, the defense presented Captain Steinberg, Perry's superior on the police force. Steinberg testified that Perry had submitted a report indicating that Jones had approached him with a request for assistance at his court appearance. Steinberg stated that he told Perry to "play along with Mr. Jones" in order to obtain narcotics information. Finally, the defense presented the testimony of Willie O. Hopkins. Hopkins was an acquaintance of both Jones and Perry. He stated that Jones told him, prior to the contact with the Essex County Prosecutor, that if he (Jones) had to go to jail Perry would go with him.

A careful review of the trial record indicates that the trial resolved itself into a contest of credibility between the petitioner Perry and his accuser Jones. The jury was forced to make their judgment without the aid of any substantial corroboration for the testimony of either party. As the trial judge noted at sentencing, "it was a difficult case for the jury to make a decision in." (Tr. 7/26/71: 7) In oral argument before the New Jersey Supreme Court the state itself characterized this as a close case on its facts. State v. Perry, 65 N.J. 45, 55, 319 A.2d 474, 479 ((1974) (Clifford, J., dissenting).

It is against this backdrop that the prosecutor's summation must be viewed. In summing up he stated:

And believe me there is much more on trial here than just Andrew Perry. Everytime you come back with a verdict, everytime that Foreman gets up and addresses to the Court his verdict, whether it be guilty or not guilty, the system has been put to the test. The system of jurisprudence upon which affords to every defendant who will ever be seated at the counsel table before a judge in a criminal action is again put to the test. I submit to you that there is also another system on trial in this case, the system of law which governs every defendant on the street like Willie Lee Jones. The system of law which says to every defendant like Willie Lee Jones, if you commit a crime you are going to be arrested and you are going to be prosecuted and you are going to be found guilty and you are going to be sentenced. The system of law which affords to Willie Lee Jones as it does to Andrew Perry the same rights and privileges, the same equal rights and privleges. Andrew Perry has no more rights under our system, has no more privileges because he is a police officer or was a police officer than does Willie Lee Jones. All the Willie Lee Joneses of the world are on trial here and you by your verdict will say whether or not the Willie Joneses of the world are going to be given a fair shake or whether or not the Willie Lee Joneses of this world are going to be subjected to not only being arrested for whatever crime they may have committed but whether or not they are going to be subjected to further arrest after that and whether or not because of the position which they find themselves in the Willie Lee Joneses of this world are going to have to pay through the nose to everybody. That has got to stop, ladies and gentlemen. It has got to stop.

Tr. 6/18/73: 303-304) (Emphasis added)

* * * * * *

Responding to the defense's attack on the credibility of prosecution witnesses, the prosecutor went on to state:

But, remember one thing, remember the one man who sits here and listens to everything that every single person, every single word said by every single State witness before he even had to open up his mouth, which he knew he had to do. But, the one man who hears everything that every witness produced by the State says is this defendant, every defendant does, the defendant hears it all. The defendant sits right there at the counsel table as does his lawyer and make no mistake about it. I have no objection to Mr. Maurer counseling his witness, his defendant. That's his obligation to do so, and he is a good lawyer, and he has been around a long time. Make no mistake about it, he tells his man what to say and how to say it and in a certain context . . .

At this point the defense counsel immediately interposed an objection:

MR. MAURER: Now, if the Court please, my God, how far are we going to let him go.

THE COURT: Yes, I find that objectionable and I ask that it be stricken.

MR. MAUTONE: Mr. Maurer, as does his defendant, has every opportunity to sit here and listen to all of the testimony. He not only has a right, but he has the obligation to discuss testimony with his client as do I and as I do, I not only have the right to talk to the witnesses I'm going to produce, but I have the obligation to talk to them before they testify. So when Mr. Maurer makes his implication that I tell Investigator Davis what to say and to be honest with you, Mr. Maurer's objection is well taken, I did not mean to imply, although I worded it so it sounded that way, I didn't mean to imply that Mr. Maurer puts words in his client's mouth or tells him to lie. I don't mean to imply that for a minute and I'm sure that Mr. Maurer got that impression as did the Court obviously from the objection, and its being sustained. But, my point is that Mr. Maurer and his client sit here all the time and listen to everything and then he testifies. There is nothing wrong with his counseling him, but you must be aware of it and yon can't blot it out of your mind. You must be aware that I have talked to my witnesses too.

Tr. 6/18/73: 335-336) (Emphasis added) Finally, the prosecutor returned to his original theme:

Andrew Perry took a dive for him and Andrew Perry was trying to take another dive for him right here and for it he was looking to get some money and that's why he was indicted and charged for it. That's why he is being tried and he is on trial for that charge and this time he is on trial and all the Willie Lee Joneses of the world are on trial.

I'm asking you now that after you listen to his Honor's charge come back with a verdict of guilty relative to Mr. Perry. I'm telling you to come back and tell Mr. Perry and every other dishonest cop, and there are some unfortunately, no we are sick and tired of the Willie Lee Joneses in this world being taken advantage of, the Willie Lee Joneses in this world who have enough of their own problems, that they need our help and that we are sick and tired of making more problems for them.

Tr. 6/18/73: 348-349) (Emphasis added)

It is petitioner's contention that this summation worked to deprive him of due process of law and of the effective assistance of counsel.

At the outset, it is appropriate to comment that this Court approaches its duty well aware of the fact that the courts of the State of New Jersey have already brought their accumulated experience and learning to bear on the very issues presented here. But this Court is likewise cognizant of its Congressional mandate:

In exercising the power thus bestowed, the District Judge must take due account of the proceedings that are challenged by the application for a writ. All that has gone before is not to be ignored as irrelevant. But the prior State determination of a claim under the United States Constitution cannot foreclose consideration of such a claim, else the State court would have the final say

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