Medina, Waterman and Kaufman, Circuit Judges.
These habeas corpus proceedings brought by Kelly Wilson, a New York State prisoner, after his conviction of a narcotics violation, present a very narrow issue.
There had been a previous trial that resulted in a hung jury. The principal witness to the sale of the narcotics by Wilson was Detective Pasquale Russo, the under-cover man who made the alleged purchase, and he was corroborated to a considerable degree by three other prosecution witnesses. Before the retrial of the case assigned counsel, Neil Fabricant, Esq., of the New York Legal Aid Society staff, applied for a copy of the transcript of the first trial. This application was summarily denied, but, before the commencement of the second trial counsel stated "At this time I would like to renew my motion for the People's testimony at the first trial," and, he added, a denial of this motion "would deny the defendant equal protection of the laws and due process." Thus we need only decide whether or not the denial of Wilson's application for that part of the transcript of the first trial that contained the testimony of Russo and the other three witnesses constituted a violation of his constitutional rights.
The whole case turned on the credibility of Russo. It was conceded that Wilson did not have the money to pay for this part of the transcript, amounting to something over 150 pages, and we think the transcript of the testimony of these witnesses was "an instrument needed to vindicate" Wilson's legal rights. As it is established that the only obstacle was Wilson's lack of money to pay the reporter, it follows, we think, that the denial of Wilson's motion, under the circumstances of this case, did deprive him of his constitutional right to equal protection of the laws. And this is not only because this partial transcript would be necessary for impeaching the credibility of Russo and the three corroborating witnesses by reason of any discrepancies or inconsistencies that might be found between the testimony of these witnesses at the new trial and the testimony they gave at the first trial, but the partial transcript would also be helpful in connection with a proper and effective preparation by Wilson's lawyer for the new trial.
The latest pronouncement by the Supreme Court on the subject, in Roberts v. LaVallee, 389 U.S. 40, 42, 88 S. Ct. 194, 196, 19 L. Ed. 2d 41 (1967) is decisive:
Our decisions for more than a decade now have made clear that differences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the defendant, are repugnant to the Constitution. See, e.g., Draper v. Washington, 372 U.S. 487, 83 S. Ct. 774, 9 L. Ed. 2d 899 (1963); Griffin v. People of State of Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956). Only last Term, in Long v. District Court of Iowa, 385 U.S. 192, 87 S. Ct. 362, 17 L. Ed. 2d 290 (1966), we reiterated the statement first made in Smith v. Bennett, 365 U.S. 708, 709, 81 S. Ct. 895, 896, 6 L. Ed. 2d 39 (1961), that "to interpose any financial consideration between an indigent prisoner of the State and his exercise of a state right to sue for his liberty is to deny that prisoner the equal protection of the laws."
We think it is not a sufficient answer that Wilson's counsel was permitted to see Russo's testimony before the Grand Jury. A similar argument was rejected in Roberts.*fn1 Nor, in our view, are Wilson's rights defeated by the fact that the same assigned counsel rather than a different one defended him on the two trials. In several of the cases*fn2 involving applications for transcripts of a former trial, or parts thereof, courts have implied that, if the lawyer were the same, he might be expected to remember what testimony was given at the first trial or perhaps he might have notes to refresh his recollection. We think constitutional rights should not be implemented in any such niggardly fashion.
In other cases*fn3 various suggestions are made to the general effect that a trial judge in the exercise of his discretion can avoid any violation of an indigent defendant's right to equal protection of the laws by permitting some sort of limited access, during the second trial, to the reporter at the first trial, to check any specific alleged contradiction. This is not only a case of too little and too late; it is also a breeder of delay and confusion. Worst of all, despite the good intentions of the trial judge, such a ruling is apt to lead the defendant into a trap and gravely prejudice his defense. That is precisely what happened in this case.
The trial judge having denied the motion "in all respects" at the commencement of the trial, there came a time when assigned counsel for the defendant thought he remembered one or two discrepancies between Russo's testimony at the first trial and his testimony on direct examination at the second trial. The following occurred:
Q. Officer, you recall testifying at the previous trial of this action on August 8th; is that correct? A. Correct, sir.
Q. Do you recall testifying? A. Yes, Sir.
Q. Do you recall being asked the question, "Where did you first see Kelly Wilson on that day?" and do you recall making the answer that you saw him inside the bar? Do you recall that? A. Nope.
Having received these answers there was a conference at the bench at which Mr. Fabricant brought up the subject of the testimony at the prior trial. Later the trial judge said that he would reconsider the motion for the transcript of Russo's testimony "at least to the extent that it involved the testimony of this witness with respect to a certain aspect of the testimony as to which he believed that the witness could be contradicted by his testimony at the prior trial, to wit: the place from ...