Appeal from the United States District Court for the District of New Jersey (Newark) (D.C. Civil Nos. 85-0745 & 85-1007).
Gibbons, Chief Judge, Weis and Aldisert, Circuit Judges.
The major question for decision in this appeal from the district court's grant of a writ of habeas corpus is whether the state of New Jersey violated the requirements of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), by failing to disclose to the defendant certain reports of a lie detector test administered to an important prosecution witness. The district court determined that this evidence was material to the defendant's guilt or innocence and therefore that its suppression denied him due process. We conclude that the district court did not err and therefore will affirm the judgment.
The underlying facts may be distilled from the many recorded opinions in this highly publicized case. At approximately 2:30 a.m. on June 17, 1966, two armed men entered the Lafayette Bar & Grill in Paterson, New Jersey and opened fire. The bartender, James Oliver, and a patron, Fred Nauyaks, were killed immediately. A second patron, Hazel Tanis, died one month later from her wounds and a third patron, William Marins, was partially blinded after being shot in the head.
Patricia Valentine lived above the tavern and was awakened by the sound of gunshots at about 2:30 a.m. She ran to her window and saw two men leave the scene in a white car. At the same time, Alfred Bello and Arthur Bradley were breaking into a nearby factory. Bello, who was standing lookout, was either in or outside the bar, and his location at that time is a main point of contention for the Brady issue. Within minutes, police arrived at the scene and took statements from Marins, Valentine and Bello. The officers transmitted a description of the car on police radio. A few minutes later, a Paterson police officer stopped a white car leased by Rubin Carter, a well-known prize fighter, approximately 14 blocks away from the Lafayette Bar. John Artis was driving, John Royster was sitting in the front seat, and Carter was alone in the back seat. The car had not been speeding and there were no weapons in sight. Carter told the officer that the men were driving to his home about six blocks away to obtain money, and the officer allowed them to proceed. Fifteen minutes later, police observed Carter's car outside the La Petite Bar, approximately 10 blocks west of the Lafayette. Five minutes later, police sighted the car a third time, with only Carter and Artis inside. This time the police escorted the car and its occupants to the crime scene.
From the evidence, it appears that at the original questioning neither Bello nor Valentine identified Carter or Artis at the scene, and there is considerable dispute as to the identification of the car. The police took Carter and Artis to the station and then to the hospital where the two survivors failed to identify them. They were questioned. Both Carter and Artis were given polygraph examinations. They were released about 7 p.m. on June 17. Meanwhile, police searched the car and allegedly found a live.12 gauge shotgun shell in the trunk and a live.32 caliber shell on the floor of the front seat, the same calibers as the weapons used in the Lafayette shootings.
Subsequently, Carter and Artis voluntarily testified before a Passaic County Grand Jury which did not return any indictments. In July and October, however (and apparently for the first time), Bello told a Paterson police officer that he had seen Carter and Artis at the crime scene. Bello and Bradley then identified Carter as one of the two men they saw coming from the Lafayette Bar with weapons in their hands. Bello, but not Bradley, identified Artis as the second man.
At least in part as a result of these identifications, in 1967 Carter and Artis were indicted, tried and convicted of three counts of first degree murder. On June 29, 1967, the trial judge imposed life sentences after a jury recommendation of mercy. The New Jersey Supreme Court affirmed the convictions on direct appeal. State v. Carter, 54 N.J. 436, 255 A.2d 746 (1969), cert. denied, 397 U.S. 948, 90 S. Ct. 969, 25 L. Ed. 2d 130 (1970).
On October 1, 1974, Carter and Artis filed a new trial motion based on the statements of the prosecution's two key witnesses -- Bello and Bradley -- recanting their 1967 identification testimony. The original trial judge denied the motion. State v. Carter, 136 N.J. Super. 271, 345 A.2d 808 (1974). A second new trial motion based on other grounds was made on January 30, 1975 and was also denied. State v. Carter, 136 N.J. Super. 596, 347 A.2d 383 (1975). The New Jersey Supreme Court reversed, overturned the convictions, and ordered a new trial. State v. Carter, 69 N.J. 420, 354 A.2d 627 (1976). The court determined that the prosecution had withheld certain evidence from the defense. Such evidence indicated that prosecutors had offered the key identification witnesses both protection of their persons and assistance with criminal charges that were then pending or contemplated against them. The case was remanded to the trial court where, after numerous motions and hearings, the retrial began on October 12, 1976.
Although Carter and Artis contended that their 1976 trial was constitutionally deficient in several respects, we find the Brady issue to be dispositive. At the 1967 trial, Alfred Bello testified that he had seen Carter and Artis carrying weapons on the street outside the bar immediately after the killings. As noted above, however, Bello recanted portions of this testimony in 1974 and continued to revise his story during 1975 and 1976. At a recantation hearing in October 1974, he said he could not identify either Carter or Artis as having been near the Lafayette Bar & Grill after the shootings. During August 1975, Bello made a series of tape recordings with Melvin Ziem and Joseph Miller in which he recounted several additional versions of the events following the Lafayette Bar killings. On October 30, 1975, Bello stated in an affidavit that he had been "in the bar" -- not on the street -- at the time of the shootings, and that immediately afterward he ran outside where he saw Carter and Artis on the street. Bello said he did not remember seeing them in the bar and he did not believe they were the trigger men, but thought they were somehow involved. In another affidavit executed the next day, Bello said that he had not seen Carter and Artis with weapons or in the bar. In another version of the story -- presented to an Essex County grand jury in December 1975 and to the prosecution in June 1976 -- Bello said that he was in the bar where he saw two other men, while Carter and Artis waited outside.
Before the second trial of Carter and Artis, the state arranged for a polygraph examination by Professor Leonard H. Harrelson which took place on August 7, 1976. The purpose of the examination was to evaluate Bello's credibility. As a result of the polygraph, Harrelson concluded that Bello was telling the truth when he said he was in the bar shortly before and at the time of the shooting. He also concluded that Bello saw Carter and Artis outside the bar after the shooting. The same day, Harrelson gave an oral report of his findings to Passaic County Assistant Prosecutor Kayne and Chief of Detectives DeSimone. DeSimone told Harrelson that the polygraph examiner's conclusion was impossible: that Bello could not have been inside the bar at the time of the shooting.
On August 11, 1976, Harrelson repeated his conclusions by telephone. Two weeks later, Harrelson filed a written report with the prosecutor's office. That report summarized his conclusions by stating that: "After careful analysis of [Bello's] polygrams, it is the opinion of the examiner that [Bello's] 196 testimony at the trial was true, and the statement recanting his original statement is not true." App. Vol. 4E at 623. As noted above, however, Bello testified at the 1967 trial that he had been on the street at the time of the shooting; in his oral reports to the prosecutor and police, Harrelson concluded that Bello was telling the truth when he said that he had been in the bar at the time of the shooting. To this extent, Harrelson's written report contradicted his earlier oral reports.*fn1 The prosecution disclosed to the defense Harrelson's written report, but did not disclose the substance of the earlier oral reports. At trial, Bello testified -- consistent with his 1967 testimony but contrary to the finding expressed in Harrelson's oral reports -- that he had been on the street during the shootings. No evidence of Harrelson's polygraph examination was introduced at trial.
On December 22, 1976, the jury returned first degree murder verdicts against Carter and Artis. Carter and Artis appealed to the appellate division of New Jersey Superior Court and the New Jersey Supreme Court. The New Jersey Supreme Court ultimately remanded a new trial motion to the trial court for a hearing on issues surrounding the polygraph test. State v. Carter, 85 N.J. 300, 426 A.2d 501 (1981). The remand hearing lasted 15 days. In an 80-page unreported opinion the judge found against the defense on all issues. On appeal from this decision, the supreme court decided two things: first, and unanimously, that a Brady violation had occurred; second, by a 4-3 majority, that Carter and Artis failed to establish that the suppressed evidence would "have been material to the outcome." State v. Carter, 91 N.J. 86, 119, 449 A.2d 1280, 1297 (1982). The majority ruled that the suppressed evidence was merely cumulative. Id. at 118, 449 A.2d at 1297. The dissent, however, felt that the evidence was material. Id. at 135-40, 449 A.2d at 1307-09 (Clifford, J., dissenting).
Carter and Artis submitted petitions for habeas corpus to the United States District Court for the District of New Jersey on February 13 and 28, 1985, respectively; the actions were later consolidated. On November 7, 1985, the district court granted petitioners' motion for summary judgment, basing its decision on two of the twelve grounds advanced by petitioners: first, that the prosecution violated the requirements of the fourteenth amendment due process clause by asserting a "racial revenge" motive for the murders; and, second, that the state violated the requirements of Brady v. Maryland by failing to disclose the results of the lie detector test administered to Bello shortly before the second ...