APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CIVIL ACTION No. 912-73
Before: ALDISERT, GIBBONS and GARTH, Circuit Judges.
This appeal poses the question whether the state sentencing judge subjected appellant to an additional penalty because he refused to admit his guilt following a jury verdict of guilty on charges of armed robbery. If the sentence were so increased, a proper claim of punishment without due process of law would be established, entitling appellant to relief. Although severely critical of the allocution preceding the sentence, the Supreme Court of New Jersey nevertheless declined to grant post-conviction relief.*fn1 The court below followed suit upon a petition for habeas corpus. This appeal followed. We reverse and remand.
At the outset we emphasize that no attack on the guilt-determining process is implicated here. A New Jersey bank was robbed. "Poteet was found in the get-away car after it cracked up. He insisted he was a hitchhiker to whom the codefendants happened to give a ride. When thus apprehended, Poteet was wearing gloves - in July."*fn2 He was sentenced to a prison term of 14 to 16 years; codefendant Borowski received a five-year sentence in the Bordentown Reformatory. The proceedings resulting in these sentences were the seeds of this controversy. In the language of the New Jersey Supreme Court: "The scene was extraordinary, and we do not recommend that it become a pattern."*fn3
Borowski and Poteet appeared together for sentencing. When each maintained his innocence, the following exchange between the bench and Borowski occurred:
THE COURT: You don't even admit your guilt. You regret the jury found you guilty, don't you? You don't admit to me you were there or had anything to do with it, do you?
DEFENDANT BOROWSKI: Sir -
THE COURT: I'm asking you. Not interested in indictments. I'm less interested in the Fifth Amendment. I'm interested in you were guilty of this crime [sic]. Your buddy; he says he wasn't. What do you say? I'm the man to impose the sentence. Not your buddy. You tell me. Were you there?
THE COURT: All right. You are getting worse than Poteet because you are under his influence. You ought to tell me the truth. Don't worry about Poteet. He can't get you freedom. He can only get you in jail. You tell me what happened. You are a 21 year old boy. Don't pull any gags with me.
Poteet can't keep you out of jail. I can, if you tell me the truth.
Borowski answered at last: "Yes, sir. I was there." The court pressed:
When were you there? Who was with you? I want everything. Give me Poteet and Cabrera. Let's see if you have the guts to give them ...