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April 19, 1967

UNITED STATES of America ex rel. Warren HILL, Relator,
John T. DEEGAN,* Warden of Sing Sing Prison, County of Westchester, State of New York, Respondent

The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

 On the afternoon of May 17, 1961, in the course of an armed hold-up on a New York City street, the driver of a United Parcel Service truck was shot to death. The petitioner, Warren (also known as Eddie) Hill, along with three others - Lonergan, Catanzaro and McChesney - was indicted for murder in the first degree. The trial of Lonergan, himself a United Parcel driver, was severed, and he testified to his role in the planning of the crime. Petitioner moved before trial for a severance, as did Catanzaro and McChesney, but the motion was denied. A jury found the three defendants guilty, recommending mercy only in the case of McChesney. Hill and Catanzaro were both sentenced to death. *fn1"

 On appeal to the Court of Appeals, the conviction of Catanzaro was unanimously affirmed. Hill's conviction was also affirmed, but three judges (Desmond, C.J., and Fuld and Scileppi, JJ.,) dissented, voting "to reverse and to order a new trial in the interest of justice." 13 N.Y.2d 842, 242 N.Y.S.2d 358, 359, 192 N.E.2d 232 (1963). A motion by Hill for reargument was denied, with two dissents (Desmond, C.J., and Foster, J.) "upon the ground that in this capital case there should be further argument and further consideration as to the effect on this conviction of the nondisclosure to the jury of the criminal record of the principal witness, Gibbs." 13 N.Y.2d 901, 243 N.Y.S.2d 683, 684, 193 N.E.2d 509 (1963). On June 22, 1964, the Supreme Court denied certiorari. 377 U.S. 998, 84 S. Ct. 1928, 12 L. Ed. 2d 1049. A habeas application to this court, filed on June 29, 1964, was withdrawn by stipulation while Hill sought rehearing of his certiorari petition. After calling for a response from the State (379 U.S. 897, 85 S. Ct. 183, 13 L. Ed. 2d 174), the Supreme Court denied rehearing, 379 U.S. 951, 85 S. Ct. 435, 13 L. Ed. 2d 549 (December 14, 1964).

 Beginning in June 1965, Hill attempted unsuccessfully to obtain a state coram nobis hearing on his claim that a key prosecution witness had given a statement recanting his testimony and asserting that he had given false evidence at the trial under police pressure and threats. The circumstances of that coram nobis application *fn2" are considered more fully below in connection with the first of the issues now before this court.

 Of the three contentions petitioner makes here as grounds for habeas corpus, two were considered and rejected on their merits by the state courts. The remaining claim - the only one on which there is a threshold problem as to whether petitioner has adequately pursued state remedies - arises from the alleged recantation mentioned just above. Concluding preliminarily that respondent's exhaustion argument could not prevail - and noting, in any event, that two of the petitioner's claims were undisputedly ripe for adjudication here - this court held an evidentiary hearing. Upon the record thus made, together with the state trial record, the court concludes that the petition must be granted upon the ground considered under heading IV, infra.

 I. Pertinent Aspects of the Trial

 For present purposes, among the most significant features of the state trial record is the substantial amount of evidence which either contains no reference to the petitioner or was admitted with the admonition that it would be considered only against one or both of his co-defendants, Catanzaro and McChesney. Thus, the State's first witness dealing directly with the crime - Joseph Lonergan, the severed co-defendant who participated in the conception and planning of the robbery - supplied lengthy and detailed facts incriminating McChesney and Catanzaro, but had no evidence to give against Hill. A grocer who reported damaging evidence against Catanzaro was similarly without information touching Hill. Four police officers testified to extensive oral admissions by the co-defendants, including detailed statements incriminating Hill which the jury was cautioned to disregard as they affected him. Later, two court reporters read question-and-answer confessions by Catanzaro and McChesney (two for each), with an "X" substituted for either co-defendant's name whenever it appeared. Hill made no admissions to the police.

 In the end, the case against Hill rested upon three portions of the record, unquestionably sufficient in their setting to sustain the jury's verdict unless one or more of the constitutional issues posed here must vitiate the result:

(1) The testimony of Norman Rackoff to incriminating admissions by Hill on the morning after the crime. Hill's (and Rackoff's) contention that this testimony was the false product of police coercion poses the first of the questions here.
(2) The testimony of an evidently disinterested eye-witness, Randolph Gibbs, who (with periodic revisions on vital questions, made in highly unusual fashion) reported Hill's participation in the attempted holdup, killing, and flight. The undisputed perjury of this witness and the tardy (post-trial) revelation of his prior criminal record give rise to the second of the questions before this court.
(3) The evidence that Hill, when apprehended, attempted to flee, and fought a gun-battle with the police in which he himself was critically wounded. No issue presented here relates to this aspect of the evidence.

 In addition to the issues noted above, Hill presses in this court the claim, rejected by the state courts, that his right to due process was violated because he was denied a severance and convicted upon a record that contained damaging admissions by his co-defendants, including detailed accounts of his guilty participation. The admonitions to the jury on this subject, Hill contends, were inadequate in the circumstances to afford him due process and, more specifically, to prevent a denial of the right of confrontation guaranteed by the Sixth Amendment as it reaches the States through the Fourteenth.

 II. The Allegedly Coerced Perjury of Norman Rackoff

 As noted above, the petitioner, beginning in June 1965, sought a state coram nobis hearing on his claim that Norman Rackoff testified falsely at the trial to damaging admissions by petitioner on the morning following the crime, and that Rackoff had given such false evidence as a result of coercion by police and prosecution officials. Also mentioned earlier is the respondent's contention, which this court has rejected, that this issue is not open here because petitioner has an adequate state remedy still to exhaust. At this point, before reaching the merits of the problem, it is appropriate to record the grounds for dismissing respondent's procedural argument.

 A. The exhaustion question.

 On June 14, 1965, petitioner sent a letter to Judge Culkin, who had presided at the state trial, enclosing a signed but unsworn statement from Rackoff (who was then, and had been since some time in 1963, in a state prison other than the one where petitioner was held) asserting that he had been induced by police and prosecution threats, mainly directed against his wife, to testify falsely at the trial. Treating the papers as a coram nobis application, Judge Culkin denied it on June 25, 1965, writing in pertinent part:

"The alleged affidavit [by Rackoff] is unsubscribed and unsworn to. In the absence of adequate moving papers (subscribed affidavits of the petitioner and state's witness), this Court is constrained to deny the motion."

 Barred by state prison regulations from direct correspondence with Rackoff, petitioner then prepared his own sworn affidavit and submitted it to Judge Culkin, again with a copy of the unsworn Rackoff statement. Denying this second application on July 29, 1965, Judge Culkin said:

"He now moves allegedly for a writ of error coram nobis. However, the motion would be actually for a new trial on newly discovered evidence. His papers refer to an affidavit of recantation by a witness who testified at his trial; however, the papers do not contain any affidavit and the moving papers are legally insufficient. It is suggested that the defendant contact the Legal Aid Society for counsel.
"The motion is therefore in all respects denied, without prejudice to a renewal on legally sufficient papers."

 The suggestion that Hill enlist the assistance of the Legal Aid Society, though obviously designed to be helpful, was not in fact a useful one. That agency - engaged in pursuing an issue that appeared then (and, in fact, was) more hopeful (i.e., the question considered under "IV," infra) - had already told Hill it would not undertake other efforts for him until that one had been exhausted.

 Having sought unsuccessfully to obtain review of the decision dismissing his application for coram nobis (or a new trial), petitioner brought the proceeding that results in this opinion. After study of the papers, this court assigned counsel to represent him. On November 16, 1966, a brief was filed for petitioner raising the issues determined herein. In his opposing brief, the respondent, pressing the exhaustion question with respect to Rackoff, made no effort to support the suggestion that legal aid was the answer to petitioner's problem. Instead, he argued that petitioner should apply to the Commissioner of the State Correction Department, and that this official would see to it that he obtained the duly sworn affidavit from Rackoff.

 On December 21, 1966, this court conferred with counsel to consider the shape of the several issues and whether an evidentiary hearing should be held. Questioning whether petitioner should be relegated to use of the state's jail-keeper as his lawyer, the court requested that assigned counsel explore the availability of a Rackoff affidavit. At this point, the Assistant District Attorney made the helpful offer to have Rackoff physically available for that purpose. Two days later, on December 23, 1966, petitioner's counsel had the Rackoff statement in proper affidavit form.

 When the matter came on thereafter for an evidentiary hearing, counsel for respondent urged that it was now clear petitioner should be sent back to the state court since he now had the affidavit entitling him to a hearing there. The argument is untenable for reasons that should be apparent already.

 The state remedy offered now cannot be deemed the kind of adequate procedure barring access to the federal court. Almost two years have passed since petitioner first invoked that remedy. The paper barrier that blocked him has been demonstrated here to have been easy to pierce. Instead of tendering the obviously sensible cooperation given in this court, respondent stuck in the bark of literal formalities throughout the state proceedings, and was permitted to do so successfully. A state remedy so casually and lengthily withheld is not an adequate one; the circumstances detailed above have rendered that remedy "ineffective to protect the rights of the prisoner." 28 U.S.C. ยง 2254; see Bartone v. United States, 375 U.S. 52, 54, 84 S. Ct. 21, 11 L. Ed. 2d 11 (1963); Smith v. State of Kansas, 356 F.2d 654, 656 (10th Cir. 1966); Harvey v. State of Mississippi, 340 F.2d 263, 268 (5th Cir. 1965); Hunt v. Warden, Maryland Penitentiary, 335 F.2d 936, 940-941 (4th Cir. 1964).

 It makes no difference that the door to the state courthouse is now open as a result of what assigned counsel has done so speedily and painlessly in this court. No less could, and should, have been done long ago. The situation is fairly analogous to cases where state remedies have been held inadequate because of undue delay. The fact that the state may finally be ready to move when the federal court raises its hand is no cure for the infection and potentially irreparable injury wreaked by the delay. Cf. Smith v. State of Kansas, supra.

 B. The merits

 After the checkered course it took to reach it, the substance of the issue concerning Rackoff is an anticlimax. Petitioner's claim on this score proves in fact to be without merit.

 Rackoff testified at petitioner's trial that Hill had come to his house on the evening of the crime, spent the night there, and made highly incriminating admissions on the following morning. Rackoff had originally told these things in considerable detail to the police, prosecutors, and a grand jury, very shortly after the crime, when Hill lay near death following his gunfight with the arresting officers. He affirmed those statements at the trial (some six months later), but only with great reluctance and under great pressure from the prosecutor.

 Then, according to his testimony in the present proceeding, in March of 1963, shortly before he began service of the prison sentence he is still completing, he wrote out an unsworn "affidavit" of recantation, recording that what he had told about Hill was all false and had been said only because the police and prosecuting attorneys were threatening to charge his wife as an accessory after the fact. He held the statement, he says, for two years or so, showing it to no one, and then gave it to Catanzaro (Hill's co-defendant) when he and Catanzaro met in Attica Prison.

 Viewed in isolation, Rackoff and his story are not credible. It can serve no purpose to expand here on his unimpressive manner and the fanciful details of his testimony. *fn3" Apart from that, his unlikely account is flatly contradicted by the officials he assails, and the court credits their testimony. Finally, Rackoff's wife, whose alleged plight was a key factor in the tale ...

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