United States ex rel. Fein v. Deegan

• Decision Date: 13 October 1967
• Docket Number: No. 67 Civ. 2514.,67 Civ. 2514.
• Citation: 298 F. Supp. 359
• Parties: UNITED STATES of America ex rel. Mark FEIN, Relator, v. John T. DEEGAN, as Warden of Sing Sing Prison, State of New York, Respondent.
• Court: U.S. District Court — Southern District of New York

298 F. Supp. 359

UNITED STATES of America ex rel. Mark FEIN, Relator, v. John T. DEEGAN, as Warden of Sing Sing Prison, State of New York, Respondent.

No. 67 Civ. 2514.

United States District Court S. D. New York.

October 13, 1967.

Henry Rothblatt, New York City, and F. Lee Bailey, Boston, Mass., for relator Mark Fein.

Frank S. Hogan, Dist. Atty., New York County, New York City, Eric A. Seiff, Asst. Dist. Atty., of counsel.

PALMIERI, District Judge.

This is a petition for a writ of habeas corpus by a state prisoner who was convicted on November 25, 1964, of murder in the second degree in the death of Rubin Markowitz and sentenced on May 26, 1965, to a prison term of thirty years to life. All remedies at the State level have been exhausted by petitioner. The trial court held a hearing of 16 days duration on a motion for a new trial which resulted in a denial of relief. (See opinion of Culkin, J., Record at pp. 3894-3913).¹ In addition, the appellate courts of the State of New York have closely scrutinized the case. 24 App.Div.2d 32, 263 N.Y.S.2d 629 (1st Dep't 1965), 18 N.Y.2d 162, 272 N.Y.S.2d 753, 219 N.E. 2d 274 (1966). Petitioner's application for a writ of certiorari was denied by the Supreme Court, 386 U.S. 978, 87 S. Ct. 1157, 18 L.Ed.2d 140 (1967).

The petition alleges that the petitioner was denied the due process of law because: (1) the prosecution suppressed evidence favorable to the defense and knowingly used testimony that was false, incomplete, misleading and inaccurate; (2) publicity surrounding his indictment and trial resulted in an unfair trial; (3) evidence procured by an unlawful search and seizure was used against him over objection and without a hearing on its admissibility; (4) the court denied a pretrial motion for examination of the bullets found in the deceased's body and (5) a special (Blue Ribbon) jury under former Section 749aa of the Judiciary Law of New York, McKinney's Consol. Laws, c. 30 was used to try his case.

The body of Rubin Markowitz was found floating in the Harlem River in the early morning of November 8, 1963. Markowitz had last been seen by his family on the morning of October 10, 1963, and by associates at 4:00 p.m. the same day. Markowitz was a part-time grocery clerk whose main activity however, was illegal and covert—that of booking bets. His customers were assigned fictitious names which, along with telephone numbers, were used in the placing of bets. One such name was "Shore", the related telephone number being that of Carmela Lazarus, an admitted prostitute and mistress of the petitioner² (hereinafter called Gloria Kendall Gloria, the alias by which she was known during the period relevant to this case). It was through Gloria that the police learned of the petitioner's existence.

The State's case was essentially this. Gloria testified that the defendant telephoned her on October 10, 1963, at about 5:30 o'clock in the evening, urgently requesting her to come to his "bachelor" apartment at 406 East 63rd Street, New York City. She reluctantly complied and when she arrived he told her he had killed his bookie³ and exhibited the body in a trunk. At his behest she procured two of her friends, a Mr. Broudy and a Miss Boxer, to help dispose of the trunk. Petitioner arranged for the rental of a station wagon automobile, but stayed behind as Gloria and her two friends disposed of the trunk by dropping it into the Harlem River. Miss Boxer and Mr. Broudy testified to their part in the disposal of the body.

The various contentions made by petitioner before this Court will now be discussed seriatim.

SUPPRESSION OF EVIDENCE

Petitioner alleges that the prosecution concealed exculpatory testimony in three instances.

The first concerns Miss Sandra Ede (hereinafter Sandra), a friend of Gloria who spent a good deal of time at her apartment. Gloria testified that Sandra was at her apartment when petitioner called. As she was expecting Miss Boxer at the time she left a message for her with Sandra to go to petitioner's 63rd Street apartment. Miss Boxer testified that when she arrived at Gloria's apartment house she called on the intercom and Sandra gave her the message.

At the post-trial hearing it was established that the district attorney interviewed Sandra and she refused to testify. She stated that if called she would testify that she was not in the apartment at the time and consequently never received the message; that she had never spoken to Miss Boxer on the intercom; and that on the afternoon in question she was in her own apartment to see to the installation of a telephone. The defense was furnished with her name and address but it is claimed that the full extent of her interview was not revealed. It appears from the cross-examination of Miss Boxer, however, that the defense was, in fact, aware of Sandra's potential testimony. (Pp. 780-86).

The second instance concerns information of Mrs. Bennett and her mother, Mrs. McNair, two tenants of the apartment building in which the murder occurred. They occupied an apartment in the rear of the building whereas the petitioner's was in the front. They told the police that they heard shots which they believed emanated from below their windows in the rear of the building. The defense interviewed these women several times prior to the trial but it claims they never revealed this information. It also appears that one of defense counsel dated Mrs. Bennett during this period.

The third concerns Mrs. Dagmar Generasio (herinafter Dagmar), a prostitute associate of Gloria.⁴ She told the prosecution that on the day of the murder she had received a telephone call from Gloria during which she asked for assistance in finding a car to move a heavy trunk. Dagmar placed this call at various times from 3:00 to about 7:00 o'clock in the evening. She testified at the post-trial hearing that she received it at 4:00 o'clock in the afternoon. Gloria never testified to making this call. The defense contends that such testimony would have had a damaging effect on Gloria's credibility, perhaps giving rise to an inference that she was involved in the crime before the victim's death as well as after it.

There also was testimony by Dagmar, at the post-trial hearing, to the effect that twice Gloria had asked her to "stick with her" (p. 2588). Finally there was a confrontation between the two women at the district attorney's office during which Gloria yelled at Dagmar and called her a "goddam liar" (p. 3362). The same day—the record does not make clear precisely how long it was after Dagmar left—Gloria recanted her story, only to recant again two days later to return to her original story— the one given at the trial and summarized above. The prosecutor told defense counsel of both recantations⁵ but not of the confrontation with Dagmar.

The defense was aware of the existence of Dagmar, although it knew her by her maiden name Dagmar Finch and did not know she had moved from New York to New Jersey. During the trial one of defense counsel's investigators asked one of the detectives assigned to the case for her address. He replied that he was not at liberty to disclose it. The defense did not pursue the matter further. No request was made of the district attorney nor was any motion addressed to the court. The investigator had told counsel that there was a witness who claimed she had received a call from Gloria to borrow a car (p. 3004), and before the trial was over counsel learned her name was Dagmar Finch. It is apparent that the defense made no effort to pursue the possible use of Dagmar as a witness at the trial.

The question posed by the petitioner before this Court is substantially the following: whether the prosecution violated petitioner's right to a fair trial under the due process clause of the Fourteenth Amendment and contravened the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by failing to turn over to the defense an account of the three episodes above discussed.

The instances petitioner cites do not amount to a violation of his rights by the prosecutor. Certainly no misconduct can be found in the handling of the Boxer or the Bennett-McNair information as the defense had access to both. The prosecution's behavior in respect of Dagmar is similarly free from constitutional infirmity. The defense knew of her existence and of her possible usefulness as a witness. Yet no attempt, beyond that of the defense investigator, was made to get her name and address from the prosecution.

The doctrine of Brady v. Maryland, supra, does not require the disclosure of such testimony. The Brady rule is that

the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. 373 U.S. 83, at 87, 83 S.Ct. 1194, at 1196, 10 L.Ed.2d 215.

There is no requirement that the prosecution be the guardian of every possible avenue of investigation available to the defense. Even assuming that a defense request is not always necessary, not every lead or story need be turned over. In Brady, the concealed evidence was an extra-judicial statement by the accused's companion, in which he admitted that he had committed the murder for which they were both being tried. This evidence was clearly material to the sentence as the jury was empowered to restrict the punishment to life in prison.⁶ In his summation Brady's counsel's sole request was for just such a limitation.

In Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842 (4th Cir. 1964), the suppressed evidence was a ballistics report and fingerprint tests which indicated that the accused's gun, which was marked for identification and waved before the jury although it was not admitted into evidence, was not the weapon used in the offense committed. In Application of Kapatos, 208 F.Supp. 883 (S.D.N.Y.1962), quoted with...