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April 2, 1957

Morris MALINSKY, Louis Rapkin, Irving Greene, Albert Pfeffer, Milton Tillinger, David Lustigman, Isidore Schwartz, Robert Barbieri, Robert Felt, Joseph Meglino, Sam Vogel, Sam Stolzenberg, also known as 'Sam Stowe', Defendants

The opinion of the court was delivered by: HERLANDS

The defendants have moved for a mistrial under the circumstances that will now be detailed.

This trial commenced on March 26, 1957, with the voir dire of the jury panel. Proceedings incidental to the selection of the jury continued on March 27, 28, 29, and April 1. On the morning of April 1st the jury, including four alternate jurors, was selected and impaneled. The prosecutor and defense attorneys then made their opening statements.

 The Government's opening took place in the latter part of the morning, concluding at about 12:20 p.m. After the luncheon recess, and commencing at 2:00 p.m., defense counsel made their opening statements. Immediately upon the conclusion of such openings the Government called its first witness, one Joseph Levine.

 He was being examined on direct examination and had given testimony that runs from pages 53 to 58 of the trial record when he suffered a heart attack. This occurred at about 2:46 p.m. His collapse took place in open court in full view of the jury while he was on the witness stand. Court was recessed. The jury was dismissed for the day. Levine was given emergency treatment and was carried out of the courtroom on a stretcher and brought by ambulance to a hospital. This morning the Assistant United States Attorney advised the Court and defense counsel that according to the information given to the Assistant United States Attorney by the hospital doctor, Levine had suffered a heart attack, that Levine had twice before suffered attacks of coronary thrombosis, that Levine has been or is being transferred to some private hospital, and that the preliminary prognosis, which was not detailed, would indicate that at least one week's hospitalization would be required. The probability is that he will require considerable more hospitalization in view of the fact that this is his third heart attack. The Government announced that it is ready to proceed with the trial with other witnesses.

 The defense has moved for a mistrial, and this motion has been made in behalf of all of the defendants. It has been argued at length by all counsel. The legal principles which govern this situation are clear.

 Wigmore, Third Edition, Volume 5, Section 1406, states that any physical incapacity preventing attendance in court, except at the risk of serious pain or danger to the witness, is equivalent to unavailability and that this has been almost universally recognized by the courts. Wigmore also states, Volume 5, Section 1390, that where the witness' illness intervenes to prevent or to curtail cross-examination, that precludes the defendant from his opportunity to cross-examine the witness and the direct examination should be stricken out. Wigmore states:

 'Principle requires in strictness nothing else. But the true solution would be to avoid any inflexible rule, and to leave it to the trial judge to admit the direct examination so far as the loss of cross-examination can be shown to him to be not in that instance a material loss. Courts differ in their treatment of this difficult situation * * *'

 Among the cases cited by Wigmore, Section 1390, Note 4, at page 111, is Matter of Mezger's Estate, 1935, 154 Misc. 633, 278 N.Y.S. 669. In the Mezger case the main witness in an accounting proceeding became so incapacitated as to prevent her subsequent appearance for further cross-examination. It appeared that the witness suffered this stroke on the witness stand and became so incapacitated thereby that the attorney who had produced her stated to the Court and opposing counsel that he would not imperil her by ever producing her for further cross-examination. A motion was made to strike all of the direct testimony of this witness from the record. This motion was granted with respect to the witness' entire testimony.

 Surrogate Feely in his opinion collected all of the authorities dealing with this question. Such authorities include People v. Sugarman, 248 N.Y. 255, 162 N.E. 24; and People v. Cole, 43 N.Y. 508. After reviewing the decisions Surrogate Feely said in 154 Misc. at page 637, 278 N.Y.S. at page 674:

 'The benefit of any doubt should be given to the cross-examiner. His right to cross-examine is guaranteed by the provision for due process of law; and as a practical matter it has been the experience of many familiar with trial work that sometimes the truth is discovered only by the very last question * * *.'

 In the federal courts substantially the same rule would apply. In the present case we do not have a situation where a cross-examination had begun, but was unfinished at the time of the witness' illness and where the purposes of cross-examination 'have been substantially accomplished,' as was the case of Jaiser v. Milligan, D.C.NEb.1954, 120 F.Supp. 599, 604. A motion to strike out the direct examination would, of course, be plainly justified and would present no problem. The more serious question concerns the defense motion for a mistrial.

 The cumulative effect of the following factual features in the present case is decisive:

 1. The prosecutor's opening mentioned Joseph Levine ten times by name and stressed the significance of his prospective testimony. No other witness was mentioned by name in the opening.

 2. Joseph Levine was the very first witness called by the prosecution. He began to testify shortly after the opening statements had been concluded. Thus there was no interval of intervening testimony between the conclusion of the opening statements and the giving of the testimony by Levine.

 3. Levine suffered a stroke in full view of the jury while on the witness stand and these circumstances dramatized and underscored his appearance on the stand and would continue to dramatize and underscore his absence as a prosecution witness in the ...

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