Appeal from denial by the District Court for the Southern District of New York, Morris E. Lasker, Judge, of petition for writ of habeas corpus by state prisoner, alleging denial of Fourteenth Amendment rights by prosecution's knowing use of false testimony. Reversed and remanded with instructions to issue writ unless State grants petitioner a new trial within 90 days of issuance of mandate.
Before Friendly and Mansfield, Circuit Judges, and Sifton, District Judge.*fn*
This appeal from the denial of a petition for the writ of habeas corpus presents an episode of prosecutorial use of and failure to correct a witness' false testimony in a criminal trial. We reverse.
Petitioner Melvin DuBose was convicted of second degree murder (N.Y.Penal Law § 125.25(2)) on June 5, 1975, after a jury trial in the New York Supreme Court, Bronx County, before Justice Donald Sullivan. The charges arose out of the 1970 death of DuBose's 9-year old son Ronaldo, allegedly as the result of a beating by DuBose. The State's case relied almost entirely on the testimony of one Nancy Edwards, formerly DuBose's girlfriend, an admitted prostitute, cocaine user, convicted of disorderly conduct, who had been held at Rikers Island on criminal charges for several months before she testified. She was the sole witness to the crime, and was under a felony indictment for hindering prosecution and helping dispose of the body. She gave extensive testimony implicating DuBose in the murder.
The State had little other persuasive evidence. Due to the lapse of time between the murder (as described by Edwards) and discovery of the skeleton in a box cemented in the basement of the building where DuBose and Edwards had lived, medical examiners could not identify the remains or determine the cause of death. Edwards' 12-year old son testified that DuBose had sometimes abused Ronaldo and that around the time of the murder (five years earlier) there had been a smell "(l)ike meat rotting" in the apartment. A neighbor testified that in 1974, during the police investigation, DuBose had made an oblique comment to the effect that "all he did was beat him and put him to bed" and referred to "the thing-a-ma-jigs and the rocks and the basement." There was also an incoherent and frenzied statement by DuBose in 1974 when he went to the police station looking for one of the investigating officers, and, while dashing his head on a railing, said something described by various witnesses as "I killed him" or "I kill "im" or "I'll kill him" and later, while rolling on the floor, accused the investigator of tricking him. The prosecution contended this was a confession. The jury acquitted DuBose of intentional murder but convicted him of murder with depraved indifference.
During the cross-examination of Nancy Edwards on June 2, 1975, the defense attempted to cast doubt on her credibility by showing that she had made a deal with the State for reduced charges in exchange for her cooperation. The following exchange took place, in which Edwards denied that the prosecution had offered her anything:
"Q: And what has (your attorney) told you? Has anything been promised to you in return for your testimony ?
Q: You never asked your lawyer, what's in it for me if I testify against the defendant? What about my charges? What's going to happen? You never asked him that?
A: He told me he thought it would go easy for me if I did.
Q: (You're) giving testimony, hoping understandably, that you will be given your freedom? Isn't that it in a nutshell?
A: I doubt that is possible. I'm told hindering prosecution will get you fifteen years.
Q: How many times have you discussed this case with the District Attorney's Office? . . .
A: How many times have I discussed it? The last two days.
Q: Prior to that time, did you have any discussions with the District Attorney?
Q: And your lawyer has told you, that in his opinion your best bet is to testify for the People and hope for leniency?
A: He said it would probably (go) easier on me if I did." (Emphasis supplied).
On redirect, Assistant District Attorney Edward Hayes returned to this matter:
"Q: Have I or any other Assistant District Attorney or anyone offered you any kind of deal or any kind of promise or anything ...