U.S. ex rel. Washington v. Vincent, 248

• Decision Date: 05 November 1975
• Docket Number: No. 248,D,248
• Citation: 525 F.2d 262
• Parties: UNITED STATES of America ex rel. Leon WASHINGTON, Petitioner-Appellant, v. Leon J. VINCENT, Warden, Greenhaven State Prison, Respondent-Appellee. ocket 75-2100.
• Court: U.S. Court of Appeals — Second Circuit

Page 262

525 F.2d 262

UNITED STATES of America ex rel. Leon WASHINGTON, Petitioner-Appellant, v. Leon J. VINCENT, Warden, Greenhaven State Prison, Respondent-Appellee.

No. 248, Docket 75-2100.

United States Court of Appeals Second Circuit.

Argued Oct. 9, 1975.

Decided Nov. 5, 1975.

Patrick M. Wall, New York City, for petitioner-appellant.

Ralph L. McMurry, Asst. Atty. Gen. of the State of New York (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for respondent-appellee.

Before KAUFMAN, Chief Judge, and FRIENDLY and SMITH, Circuit Judges.

IRVING R. KAUFMAN, Chief Judge:

In March, 1967 Leon Washington was convicted of first degree murder. During the trial, Martin Anderson, a key prosecution witness who was under indictment for three felonies, repeatedly denied that he had been offered favorable treatment in exchange for his testimony. The prosecutor, who had indeed promised Anderson special consideration, made no effort to correct the perjurious testimony. That such reprehensible conduct is not only improper but frequently results in a violation of the constitutional right to a fair trial is established beyond dispute. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). The difficult question we must decide is whether Washington should not be permitted to raise such due process claims because he and his counsel had reason to suspect the falsity of the witness's answers, but failed to make their suspicions known. We must also, of course, determine whether Washington's challenge to the integrity of his trial must fail because the prosecutorial misbehavior did not affect the ultimate outcome.

We have concluded that Washington's petition must be granted. Although we do not view the performance of the appellant and his counsel as a model to be emulated, we are of the view that, under the particular circumstances of this case, Washington may challenge the prosecutor's misconduct. We have also determined, after a careful examination of the State trial record, that the State's misbehavior substantially prejudiced the defendant. Accordingly, we reverse.

I.

To provide the necessary background for our holding, a full exposition of the facts and procedural posture of this case is required. On February 4, 1966 at approximately 10:45 p. m., 68-year old Max Regenstrich, ¹ manager of the Gates Wine & Liquor Store in Brooklyn, was standing near the store's cash register. Also present in the store were Sam Silver (the owner) and Silver's wife Anna. Four individuals entered, and while one went through the motions of purchasing a bottle of wine, the other three departed. Immediately upon paying Silver for the wine, the "customer" drew a revolver from his pocket and announced, "This is a stickup." He ordered the 73-year old Mr. Silver to stand off approximately seven feet from the cash register, while Mrs. Silver fled from the store. Regenstrich, meanwhile, lunged at the intruder with an iron pipe. The robber thereupon shot and killed Regenstrich. The gunman escaped immediately, disappearing before the police arrived.

Shortly thereafter, the Silvers were questioned at the scene by Detective Robert C. Free. Their descriptions of the killer were vague. They could not recall whether the gunman had a moustache, a beard, or was clean-shaven. Based upon their accounts, Detective Free issued a bulletin seeking a suspect 5'4 tall, weighing 125 pounds. Two weeks after the crime, the Silvers were asked to make a photographic identification of the murderer. Seated together to study the array, they jointly selected the mug shot of Leon Washington. The police unsuccessfully attempted to locate Washington, who then surrendered voluntarily in April, 1966. Although Washington remained in custody awaiting trial for almost a year, the Silvers were never requested to identify Washington at a line-up.

Washington's trial commenced on February 21, 1967. Mr. Silver testified that the killer was somewhat shorter than the 5'6 Silver, and "a little taller" than Regenstrich, who was 4'11 in height. In fact, Washington stood 5'91/2 and weighed 160 pounds. The Silvers, nevertheless, pointed to Washington, who apparently was seated at the defense counsel table, as the murderer. Washington took the stand in his own defense and denied any involvement in the crime. ²

II.

Except for the testimony of one Martin Anderson, a/k/a Ali Suba, the Silvers' testimony was the only evidence offered to connect Washington with the robbery and murder. Anderson, an 18-year old acquaintance of Washington, had been arrested 21/2 hours after the Regenstrich murder for possession of a gun which proved to be the murder weapon. ³ At Washington's trial, Anderson testified that he had received the revolver from Washington. Anderson said he had been driving with Washington and another friend on the night of the murder. At 10:30 p. m., Anderson testified, Washington left the car and entered the Silvers' liquor store. The witness said he heard a "pop" like the firing of a cap pistol, after which Washington returned to the car carrying a bag filled with cash. Washington, Anderson testified, "just kept saying he had to do it. . . . He said he had shot the man and that, you know, the man tried to hit him with something." Anderson related that a gun had been protruding from Washington's pocket, which Anderson removed when Washington fell asleep in the car. He was merely showing it to a friend in a bar, he claimed, when he was arrested.

On cross-examination Washington's attorney, Patrick Wall, questioned Anderson extensively to determine whether his testimony was given in return for favorable treatment on the weapons charge or on his indictments for first degree burglary and first degree grand larceny stemming from a June, 1966 incident. Anderson repeatedly denied that he had been promised any quid pro quo:

Q. Has any arrangement been made between you and the district attorney's office with respect to that (gun possession) case concerning your testimony here?

A. No, sir.

Q. Do you expect to be rewarded in some way for your testimony here?

A. No, sir.

Q. Has anyone given you an indication that by your testimony here you will be helping yourself in that case?

A. No, sir.

Further cross-examination failed to shake Anderson:

Q. Do you expect to receive any favorable treatment from the district attorney for your testimony in this trial, implicating the defendant?

A. No, sir.

Q. Either on the June indictment or on the other indictment?

A. No, sir.

Q. Have you had any arrangements with anybody so that you will receive the benefit of implicating this defendant?

A. No, sir.

The Court: All right. That's neither nothing was said before you made the statement that you talked about, when you talked to the district attorney and he asked you about a stenographer there, was anything said before that, or was anything said after, at either time?

The Witness: No, sir.

Q. (By Mr. Wall, defense counsel:) At any time, sir, since February 4th of 1966, has anyone offered you anything in return for your favorable testimony to implicate him?

A. No, sir.

Mr. Levine (Assistant District Attorney:) Objection.

The Court: Overruled.

Mr. Wall: I have no further questions, your Honor.

The Assistant District Attorney, Arthur Levine, remained silent during these exchanges, except for the single objection noted. Nor did Washington, when he took the stand, indicate that he had any reason to suspect that Anderson was lying about not having received consideration in return for his testimony:

The Court: Any reason you could think of why (Anderson) should try to accuse you of murder?

The Witness: Well, I know he's not loved me.

The Court: What?

The Witness: He's not in love with me.

The Court: I didn't ask you that. Is there any reason why he would falsely accuse you of murder?

The Witness: He could be trying to protect someone. I don't know.

The Court: But why you?

The Witness: I don't know.

The Court: All right.

Neither Washington nor Wall made any further attempt to challenge Anderson's denials of receiving a promise of leniency from the prosecutor.

Jury deliberations commenced on March 2, 1967. After 14 hours of discussions, the jury announced at 4:45 p. m. on Friday afternoon, March 3, 1967 that it was deadlocked. The judge thereupon told the jurors that both sides desired to have the jury continue its deliberations and arrive at a unanimous verdict. He went on to caution them that their verdict should be the "result of thought, consideration and of reason and an analysis of the evidence and not just blind stubbornness." He also advised that "if there is a minority one way or the other (, they should) reconsider (their) positions." The jury debated for an additional five hours before finally returning with a guilty verdict. Washington was sentenced to life imprisonment and is currently incarcerated at Greenhaven State Prison.

Washington appealed his conviction to the Appellate Division, 32 A.D.2d 613, 300 N.Y.S.2d 525 (1969), and to the New York Court of Appeals, 27 N.Y.2d 649, 261 N.E.2d 905, 313 N.Y.S.2d 869 (1970). Both courts affirmed without opinion.

III.

Although not mentioned at the trial, both Washington and Wall had reason to doubt Anderson's denials of a bargain with the prosecutor. When Washington encountered Anderson in jail, shortly before the murder trial, Anderson revealed that Levine had promised leniency on his gun possession indictment in consideration for Anderson's testimony. Washington informed Wall of this conversation, but it was not brought to the court's (or Levine's) attention before or during the trial. ⁴

Some time in 1970, following the direct appeal to the New York Court of Appeals, Wall inspected the transcript of the proceedings on Anderson's weapons possession charge. He discovered that the following exchange had occurred on April 12, 1967, only one month after Washington's trial:

Mr....