United States v. Messerlian

• Decision Date: 29 April 1986
• Docket Number: Crim. No. 85-262 (AET).
• Citation: 633 F. Supp. 1493
• Parties: UNITED STATES of America v. Harry H. MESSERLIAN and Henry F. Wolkowski, Defendants.
• Court: U.S. District Court — District of New Jersey

633 F. Supp. 1493

UNITED STATES of America v. Harry H. MESSERLIAN and Henry F. Wolkowski, Defendants.

Crim. No. 85-262 (AET).

United States District Court, D. New Jersey.

April 29, 1986.

Gregory F. Linsin, Criminal Section, Civil Rights Div., U.S. Dept. of Justice, Washington, D.C., Bruce Merrill, Asst. U.S. Atty., Trenton, N.J., for the Government.

Anthony J. Fusco, Jr., Passaic, N.J., for defendant Messerlian.

Joseph A. Hayden, Jr., Hayden & Perle, Hoboken, N.J., for defendant Wolkowski.

OPINION

THOMPSON, District Judge.

INTRODUCTION

Harry Messerlian and Henry Wolkowski, members of the New Jersey State Police, move before this court for an order overturning the verdict of a jury which sat in judgment over a three-month trial. Messerlian stands convicted of violating the civil rights of Joseph Topolosky by striking him with a heavy, weapon-like flashlight — blows which resulted in Topolosky's death — as well as conspiring to obscure this beating from the eyes of federal authorities and lying to a federal grand jury. Wolkowski was convicted of conspiring with Messerlian "and others" to obstruct the federal investigation.

This jury was urged by the prosecution and defense counsel to adopt conflicting versions of the case. By the prosecution, they were urged to bring to justice men who allegedly abused the power and authority of their offices. By the defense, they were urged to vindicate men who, they argued, were properly performing the most dangerous and least rewarded job society asks of its members. The jurors heard testimony from civilians describing a brutal assault on a shackled, intoxicated prisoner. They heard police officers describe an orderly and proper arrest of a drunk driver who was placing his children—and others — at risk. They heard extensive and dense medical testimony in which distinguished and experienced doctors referred to the same evidence and reached contrary conclusions.

The jury heard considerable character evidence. Witnesses discussed the character of the victim, Joseph Topolosky. The character of the fact witnesses was made a significant issue on a number of occasions. The jurors were presented with an array of witnesses testifying to the good character of the defendants: family members, police officers, State Troopers, the Superintendent of the New Jersey State Police, agents of the F.B.I. (the federal law enforcement agency charged with investigating the death) and an incumbent County Prosecutor for the State of New Jersey. By turns these proceedings appeared to be a trial of Joseph Topolosky for having been a troubled, self-destructive and angry man; of the civilian eyewitnesses for their allegedly wrongful accusation that police officers had broken the law; of the New Jersey State Police for allegedly turning inward to protect its own; and of the United States Department of Justice for coming into this state to prosecute police officers who had not been brought to trial by the State of New Jersey.

After sitting through three months of trial the jurors took the case, deliberated for over 40 hours, and returned with their verdicts. They had the difficult task of assessing the credibility of the witnesses, deciding where the truth lay and drawing the legitimate inferences from the evidence. At the completion of their deliberations, they rendered unanimous verdicts.

We may not lightly disturb the considered and obviously conscientious determinations of the jurors. We must, of course, examine the record relied upon by the jurors to ensure that no defendant stands convicted on insufficient evidence or by an irrational verdict. With this tension in mind, we have examined the pending motions. In large part, they are supported by restatements of prior arguments. We addressed these arguments at length prior to trial and at the close of the government's case. We have reexamined the evidence and reconsidered the arguments for the purpose of ruling on the present motions. As is more fully described below, we find that these renewed motions must be denied.

A new issue arose following the return of the verdict, involving the emergence of the testimony of Dr. Marvin Aronson, Medical Examiner for the City of Philadelphia. The nub of Dr. Aronson's testimony is that the Office of the United States Attorney for the District of New Jersey concealed from the defendants evidence which could have aided them in their defense. He asserted, in a hearing before the court, that in 1984 he delivered to an attorney for the government an opinion that Joseph Topolosky's death was caused by a motor vehicle accident and not by a beating. We heard Dr. Aronson describe his version of his professional contacts with the U.S. Attorney's Office. We must find that Dr. Aronson came into court, sat in the witness stand, took an oath, and, for reasons unknown, lied. We find that no evidence of an exculpatory nature was concealed from the defendants.

We also find that Dr. Aronson's testimony is not "new evidence" giving rise to a basis for a new trial. His opinion testimony—for he offered no new facts — adds nothing of substance to that previously before the jury. His opinions are tied to the well-developed factual record of this case in only the most attenuated fashion; he did little more than connect selected portions of the evidence to an academic theory, while rejecting that factual evidence which he found inconsistent with his opinions.

I. Testimony of Doctor Aronson

Following the return of the jury's verdict, but prior to the return date of the post-trial motions, we received a letter from Gregory Linsin, prosecuting attorney for the United States Department of Justice, regarding his contact with Richard Sprague, Esquire, of Philadelphia, an attorney for Dr. Marvin Aronson. By this letter, Mr. Linsin notified the court and defense counsel of Dr. Aronson's stated belief that the Office of the United States Attorney for the District of New Jersey had improperly concealed information from defense counsel in connection with this prosecution. Mr. Linsin indicated in his letter that Richard Sprague had communicated to him that "Dr. Aronson was of the view that the opinion he rendered orally to a member of the U.S. Attorney's Office was arguably exculpatory and Mr. Sprague inquired if Dr. Aronson's name had been provided to the defendants."

Mr. Linsin went on to state that Dr. Aronson, a forensic pathologist, had in fact been consulted by the U.S. Attorney's Office in 1984 in connection with its investigation into Joseph Topolosky's death; his name was not provided, however, because he "had never stated that he possessed any opinions that were exculpatory or arguably exculpatory in nature."

On February 26, 1986, counsel for defendant Messerlian conducted an oral deposition of Dr. Aronson. On the strength of the sworn statements taken at that time, defendants Messerlian and Wolkowski moved for a judgment of acquittal, or in the alternative for a new trial, or for a hearing to determine whether there had been a violation of the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). They argued that the statements of Dr. Aronson reveal the failure of the prosecution to turn over exculpatory information in violation of Brady, or that the opinions of Dr. Aronson constitute new evidence of a magnitude sufficient to warrant a new trial pursuant to FED.R. CRIM.P. 33. The United States responded with the affidavits of Assistant United States Attorney Anne Singer and former Assistant United States Attorney Robert Fettweis. These affidavits appear to contradict Dr. Aronson's assertion that he offered an exculpatory opinion to Ms. Singer. The United States argued that Dr. Aronson's statement in this regard was incredible, or in the alternative that any information provided was not material to the issues involved in the trial. It therefore argued that defendants' motion should be denied.

On March 6, 1986, we determined that the deposition testimony of Dr. Aronson and the affidavits of Ms. Singer and Mr. Fettweis raised genuine issues of material fact on the Brady issue, and we scheduled a hearing. See United States v. Dansker, 565 F.2d 1262, 1264 (3d Cir.1977), cert. denied, 434 U.S. 1052, 98 S.Ct. 905, 54 L.Ed.2d 805 (1978); Government of the Virgin Islands v. Martinez, 780 F.2d 302, 306-08 (3d Cir.1985). On March 14, 1986, Dr. Aronson and Ms. Singer testified at some length.¹

A. Brady Violation

In Brady, the United States Supreme Court analyzed the duty of a prosecutor to disclose exculpatory information to a defendant. The Court determined that the Due Process Clause of the Fourteenth Amendment guarantees that a guilty conviction be based on a defendant's guilt, and not on gamesmanship or deception practiced by the prosecution. The Court noted that it had long been recognized that a prosecutor who "deprives a defendant of liberty through a deliberate deception of the court and jury by the presentation of testimony known to be perjured," 373 U.S. at 86, 83 S.Ct. at 1196, quoting Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 341, 79 L.Ed. 791 (1935), or who "allows perjury to go uncorrected when it appears," 373 U.S. at 87, 83 S.Ct. at 1196, quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959), violates the defendant's rights to due process. The Court extended this rule in Brady to

hold 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 punishment, irrespective of the good faith or bad faith of the prosecution.

373 U.S. at 87, 83 S.Ct. at 1196. The prosecutor's duty to disclose was subsequently extended to situations in which either a general Brady request is made or no request is made. "Elementary fairness requires" that material exculpatory information in the possession of the prosecution be disclosed regardless of a failure of the...