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April 27, 1983

JESSE JOHNSON and CYNTHIA HALL, Petitioners, against CHARLES J. SCULLY, Warden, Green Haven Correctional Facility, and PHYLLIS DURRLY, Correctional Superintendent, Bedford Hills Correctional Facility, Respondents.

The opinion of the court was delivered by: NEAHER


NEAHER, District Judge.

 In 1973, petitioners Jesse Johnson and Cynthia Hall were convicted of criminal possession and sale of heroin in a jury trial in New York State Supreme Court, Kings County. Sentenced to lengthy prison terms, their convictions were affirmed without opinion by the Appellate Division, 46 A.D.2d 739, 361 N.Y.S.2d 325 (2d Dept. 1974), the Court of Appeals denied leave to appeal of February 4, 1975, and the U.S. Supreme Court denied certiorari, 422 U.S. 1048, 95 S. Ct. 2666, 45 L. Ed. 2d 700 (1975).

 In their first joint petition for habeas corpus, 28 U.S.C. § 2254, Johnson and Hall both alleged that the prejudicial conduct and rulings of the trial judge denied them a fair trial as protected by the due process clause. Finding their claims meritorious, on February 5, 1979, this Court granted their habeas petitions, and ordered that they be retried within sixty days of that Order or be released. The February 5, 1979 Order, unpublished at that time, follows as Appendix "A" to the present Order.

 Respondents simultaneously appealed the Order to the Second Circuit and filed a motion in this Court for relief from judgment under Rule 60(b), F.R.Civ.P., asserting petitioners' failure to exhaust their remedies in State court. Although lacking jurisdiction, in the furtherance of judicial economy, this Court expressed its view that petitioners had exhausted their State remedies.That Order, dated March 28, 1979, also unpublished, follows as Appendix "B". Enforcement of the February 5, 1979 Order was stayed, however, pending appeal.

 On appeal, the Second Circuit reversed, holding that petitioners had not exhausted their State remedies. Its precedent-setting opinion, Johnson v. Metz, 609 F.2d 1052 (2d Cir. 1979), is discussed extensively later in this Order.

 Petitioners returned to the New York courts. Their motion to vacate their judgments of conviction was denied as procedurally barred by CPL § 440.10. The Appellate Division denied them leave to appeal, and they again presented their claim to this Court. Constrained by the Johnson v. Metz decision and the State court decision on its own procedural rules, see Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977); Klein v. Harris, 667 F.2d 274 (2d Cir. 1981), this Court denied petitioners' second habeas petition, by unpublished Order dated June 25, 2982, which follows as Appendix "C".

 Petitioners appealed again to the Second Circuit. In this interim, that court issued an en banc ruling on the standards for determining whether a claim asserted in a habeas petition has been exhausted in the State courts. Daye v. Attorney General of the State of New York, 696 F.2d 186 (2d Cir. 1982). Rejecting the standard which had evolved from Johnson v. Metz, the court nonetheless distinguished and did not overrule that case. Less than two weeks later, however, the Second circuit ordered that Johnson and Hall's petition "be remanded to the district court for further consideration in light of the intervening en banc opinion of this court in Daye." Johnson v. Scully, 82 Civ. 2226 (2d Cir., December 22, 1982).

 Accordingly, this Court has again reviewed petitioners' original briefs to the Appellate Division.For the reasons that follow, this Court again holds that the claim or prejudicial judicial bias was fully exhausted in the State courts and is an appropriate ground for habeas relief. Finally, as discussed below, the Court has reviewed its February 5, 1979 Order granting the writ, and now reconfirms that decision.


 At issue on this remand is whether petitioners' claim that they were deprived of their constitutional right to a fair trial by the prejudicial conduct of the trial judge was exhausted in the State courts. This issue was resolved against petitioners in Johnson v. Metz, a decision whose validity was questioned in Daye, 696 F.2d at 195, 197, and was undeniably thrown into doubt by the Second Circuit's decision to remand this petition.

 Section 2254(b) of the federal habeas statute states in relevant part that habeas relief cannot be granted "unless it appears that the applicant has exhausted the remedies available in the courts of the State." Neither Johnson nor Hall specifically mentioned the due process clause in their State Circuit concluded that petitioners were relying on State law and State court supervisory power for relief. 609 F.2d at 1054. The court held:

 "[T]he construction by this circuit of the meaning of the exhaustion dectrine leads us to conclude that the New York State courts have never been given an opportunity to consider whether the pervasive conduct of the trial judge in this case . . . amounted to a violation of federal constitutional due process." Id. at 1055 (footnote omitted).

 Cognizant of New York's strict post-conviction relief statute, CPL § 440.10, the court did add:

 "It is difficult for this panel to believe . . . that no post-conviction remedy whatever will be available by way of state collateral relief when a serious federal constitutional issue is involved.

 "We have been cited to no case, nor have we found any, in which the intervention of trial judge in the conduct of trial has been found so prejudicial as to amount to a violation of constitutional due process. Particularly because of the lack of authority, we think it appropriate that the state court should be allowed, in the first instance, to pass on the constitutional point fairly presented to it. We say this without attempting to suggest the result in this obviously serious case.

 "We trust that upon a post-conviction hearing careful attention will be given to this record by the state courts in terms of the serious allegation of contitutional deprivation of the right to fair trial." Id. at 1056 (footnote omitted).

 As previously noted, however, the New York courts did find petitioners to be procedurally barred from a collateral attack on their convictions. See Appendix C.

 Concurring, Judge New man clarified his view of petitioners' claim. Noting that they alleged more than mere excessive judicial intervention, he characterized their petition as asserting that "the nature of all of the trial judge's conduct -- his questions, his comments to defense counsel, his comments to the defendants, and his comments to the -- combined to deny petitioners the "fair trial in a fair tribunal" that is "a basic requirement of due process." 609 F.2d at 1057 (citation omitted). He added, "A claim of this nature is well within the mainstream of due process adjudication." Id.



 William Daye, convicted of intentional murder, felony murder, and armed robbery in the Supreme Court, New York County, brought a habeas petition in federal court alleging that his sixth and fourteenth amendment rights to a fair and impartial trial had been violated by the conduct of the trial judge.Daye had not specifically cited the federal Constitution in his State briefs. The district judge held that Daye had nonetheless exhausted his State court remedies because the very nature of Daye's claim alerted the State courts to a constitutional question. Cf. Twitty v. Smith, 614 F.2d 325 (2d Cir. 1979) (claimed lack of "effective assistance of counsel" impliedly raised sixth amendment issue). Reaching the fair trial issue, the judge dismissed Daye's petition as meritless.Daye, 663 F.2d 1155, 1156 (2d Cir. 1981).

 A divided Daye panel affirmed the dismissal but without prejudice to the merits. Writing for the court, Judge Newman stated the Second circuit rule that "the exhaustion requirement is not satisfied unless the habeas petitioner explicitly refers to a federal constitutional standard in presenting his claim to the state courts." Id. at 1155. Judge Newman traced this rule to the Johnson v. Metz decision:

 "Just two years ago we applied this strict approach to exhaustion to a habeas corpus petition indistinguishable from Daye's. Johnson v. Metz, 609 F.2d 1052 (2d Cir. 1979). Like Daye, Johnson sought habeas corpus relief because of the excessive and prejudicial intervention of the state court trial judge, and, like Daye, his state court briefs, which made no express mention of the Sixth and Fourteenth Amendments, referred to the denial of a fair and impartial trial and characterized a fair trial as a fundamental element of the judicial process. Though the District Court in Johnson had concluded that the exhaustion requirement had been met and that the petitioner was entitled to relief on the merits, this Court reversed, ruling that Johnson had not presented a federal consitutitional claim to the state courts. Even though Johnson's brief in the Appellate Division cited ten decisions of federal courts, his fair trial claim was deemed to be an appeal only to state law or to the supervisory power of the state appellate court, and thus not the "same claim," Picard v. Connor, 404 U.S. 270, 276, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971), that he was presenting to the federal courts. Johnson v. Metz, supra, 609 F.2d at 1054." Id. at 1157.

 Judge Newman continued by effectively criticizing the strict labeling requirment. First, he observed that renewed consideration of expressly labeled federal claims did not meet notable State court enthusiasm. He added:

 "Nor is there much reason to believe that the articulation of facts (here, excessive and prejudicial court questioning) and consequence (here, denial of a fair and impartial trial) and inadequate to afford state courts, fully aware of their constitutional responsibilities, a fair opportunity to decide whether a conviction accords with constitutional requirements." Id. at 1157.

 He also expressed concern that a pleading deficiency could cause a delay of years in vindicating a meritorious claim, or could cause the claim to be forever forfeited. Bound by Johnson v. Metz, however, Judge Newman concluded:

 "Whatever our disagreements with an exhaustion requirement that entails explicit labeling of a federal claim, we are obliged to affirm this judgment without prejudice, solely on grounds of failure to exhaust state court remedies, and await a petition suggesting rehearing en banc, which we assume Daye will present." Id. at 1158.

 In contrast, Judge Metzner agreed with the district judge that Daye's peittion lacked merit, and argued that, in the interests of judicial economy, the exhaustion requirement should not apply to meritless claims. Concurring with Judge Newman, however, that the Johnson v. Metz standard dictated dismissal, Judge Metzner added that he found that "the exhaustion requirement in this circuit exalts form over substance." Id. at 1158.

 Judge Lumbard dissented, stating that he would find that Daye's claims had been adequately presented to the State courts and that Daye's habeas petition should be granted. On the exhaustion issue, he observed that Daye's State briefs "repeatedly argued that the trial judge's questioning "deprived the defendant of his right to a fair trial." Id. at 1160. Daye had also cited two New York cases which analyzed fair trial claims on federal constitutional grounds, People v. DeJesus, 42 N.Y.2d 519, 399 N.Y.S. 2d 196, 369 N.E.2d 752 (1977); and People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 (1975), and Judge Lumbard found these citations "sufficient to allert the Appellate Division of his federal law claims." Id. Distinguishing Johnson v. Metz, Judge Lumbard noted the Johnson v. Metz panel's observations that Johnson and Hall had only cited cases that rested on State law or appellate court supervisory power. Moreover, Judge Lumbard noted that Daye's brief cited prior cases in which the same trial judge had been reversed for excessive questioning, which he stated was not a factor in Johnson v. Metz.


 The Daye case was reheard by an eleven-member en banc panel, and ten judges joined in an opinion clarifying the Second Circuit's criteria for determining whether the State remedies have been exhausted. Holding that a habeas petitioner need not have cited "book and verse on the federal constitution" to the State courts, 696 F.2d at 192 (quoting Picard, 404 U.S. at 279), the court summarized:

 "[T]he ways in which a state defendant may fairly present to the state court the constitutional nature of his claim . . . include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like factual situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation." Id. at 194.

 For two reasons, the court held that Daye's claim had been fairly presented to the State courts.

 First, Daye had cited State cases which addressed similar fact patterns and rested on constitutional grounds. Specifically, the court noted Daye's citation to DeJesus and Crimmins. Id. at 195-96. In DeJesus, the New York Court of Appeals had held that a trial judge's excessive intervention had denied a criminal defendant of a fair trial. Citing federal constitutional cases, the New York court depicted the right to a fair and impartial trial as "the law of the land" and "the most fundamental of all freedoms." 42 N.Y.2d at 520, 399 N.Y.S.2d at 197. In Crimmins, a case which did not involve judicial intervention, the New York Court of Appeals in dicta noted that the constitutional right to a fair trial was so fundamental as to require the appellate court to reverse "quite without regard to any evaluation as to whether the errors contributed to the defendant's conviction. The right to a fair trial is self-standing and proof of guilt, however overwhelming, can never be permitted to negate this right." 36 N.Y.2d at 237-38, 367 N.Y.S.2d at 219.

 Distinquishing Johnson v. Metz, the court noted that neither the DeJesus and Crimmins decisions, nor the New York Court of Appeals decision in People v. Mees, 47 N.Y.2d 997, 420 N.Y.S.2d 214, 394 N.E.2d 283 (1979), which also found excessive judicial intervention to be unconstitutional, had been decided when Johnson's and Hall's convictions were appealed through the State courts. The Johnson v. Metz panel, the Daye court noted, had stated that no cases holding that judicial intervention could rise to a due process violation had been cited to it. Id. at 196. Moreover, the Daye en banc court found that the Johnson v. Metz decision did not expressly impose the strict labeling standard; rather, it appeared to allow for an analysis of cases cited in State briefs. In fact, the Johnson v. Metz panel stated that it had considered the cases cited in petitioners' State briefs and had found them to rely on appellate court supervisory powers. Id. at 195.

 Second, Daye's State claim centered on "the trial judge's evident partiality and his assumption of a hostile and prosecutorial stance," which the Second Circuit held to be "sufficient to alert the state court that a federal due process claim was being asserted." Id. at 196. In support, the court noted "a long line of cases" establishing the right under the due process clause to a trial before a neutral judge. The fair trial right was so fundamental, the court added, that "not even the appearance of bias is tolerated." Id. at 196. The court concluded:

 "We regard it as immaterial that none of these cases dealt with a bias manifested through allegedly excessive and one-sided intervention in the trial. The gravamen of a claim of denial of fair trial due to judicial bias does not depend on the source of the bias or the manner of its manifestation. If judicial bias, or the appearance of it, existed, due process was denied. We do not believe it reasonable to assume that state judges presented with a claim of manifested judicial bias would fail to recognize the implication of due process rights simply because half a century of due process cases dealt with the mere risk of bias or with actual bias manifested in other ways." Id. at 197.

 Daye's briefs, the court noted, included contentions that the trial judge must "be scrupulously free and above even the appearance or taint of partiality," and that the judge at his trial "set impartiality aside in favor of the prosecution"; "assumed the role of prosecutor"; "demonstrated to the jury that [he] believed the defendant to be guilty"; and "blatantly and repeatedly indicated [his] disbelief in the defendant's testimony." These statements, among others, apprised the State courts of the constitutional aspects of Daye's claim. Id. at 197.

 Finally, questioning but not expressly overruling Johnson v. Metz, the court stated:

 "[T]o the extent that Johnson v. Metz actually construed Johnson's claim as one of bias (i.e., denial of an "impartial" trial, . . .), rather than one simply complaining of the "the overall conduct of the trial judge," . . . we disagree with its conclusion that the claim as one with constitutional thrust was "novel," and with its decision to "giv[e] the state court the first opportunity to pass on whether or not the novel constitutional point is "within the mainstream of due process adjudication."" Id. (citations omitted).


 As Judge Newman observed in writing the Daye panel decision, Johnson and Hall's petition in "indistinguishable from Daye's." 663 F.2d at 1157. For the same reasons that the Daye en banc court held that Daye had adequately presented his claims to the State courts, this Court finds that Johnson's and Hall's briefs to the Appellate Division were sufficient to exhaust their State remedies.

 First, Johnson's and Hall's State briefs both present claims which rest "on a factual matrix that is "well within the mainstream of due process adjudication." Daye, 696 F.2d at 193; see Johnson v. Metz, 609 F.2d at 1057 (Newman, J., concurring). Both briefs, like Daye's, contended that the trial judge's bias was reflected in how he conducted their trial and deprived them of a fair trial.

 Johnson's brief argued that the "prejudicial attitude of the trial court . . . permeated the entire proceeding," Johnson App. Div. Brief at 10, and that the trial judge's intervention amounted to "judicial emphasis necessarily consistent with judicial partiality with the prosecutor." Id. at 25. Johnson asserted that, by his questions and comments, the trial judge "usurped the function of the prosecutor," id. at 13, "identified himself with the prosecutor's theory," id. at 24, "argued on behalf of the district attorney," id., and made "remarks [that] smack[ed] of a prosecutorial summation." Id. at 15. Johnson claimed that "[t]he courtroom was permeated with an atmosphere of judicial prosecution," id. at 23, which amounted to "the antithesis of impartiality." Id. at 19; accord, e.g., id. at 18, 19, 20, 23, 25, 26-17, 28, 29, 41.

 Specifically, Johnson argued that the trial judge's questions and comments bolstered the credibility of the prosecution's witnesses, emphasized and endorsed the prosecutor's theories, and undermined cross-examination. E.g., id. at 9, 11, 13, 14, 15, 17, 19, 20, 22, 23, 24, 25, 26, 29, 31, 32, 34, 35, 36, 37, 41, 42, 43. For example, Johnson argued:

 "By repeating the testimony of the prosecution's main witness, the court hammered it home to the jury as if it were coming from [the judge], indelibly clothing it with judicial endorsement. Id. at 13.

 * * *

 "When a jury hears a judge preface his questioning of a witness with "just listen to my questions," they are invited, if not obligated, to conclude that, with the help of the court, they are receiving the truth. Query, is this consistent with the principles of a fair trial?" Id. at 16 (emphasis supplied).

 Moreover, Johnson claimed that the trial judge admitted clearly irrelevant evidence and hearsay testimony "to allow . . . any inference the district attorney seeks to draw." Id. at 12 (quoting trial transcript).

 Johnson also cited examples of the trial judge challenging the credibility of his co-defendant Hall, id. at 34, attacking the trial tactics of defense counsel and even refusing to allow defense counsel to state the grounds for objections on the record, e.g., id. at 22, 23, 25, 26, 29, 30, 35, 39, 42, and denying requests to exclude the jury, e.g., id. at 30, 40. Most strikingly, Johnson repeatedly noted instances where the trial judge's comments seemingly eviscerated Johnson's entrapment and agency defenses.Id. at 9, 11, 17-18, 28, 32-33, 34, 37, 43. As Johnson argued: "If a judge suggests that a witness [here, a police officer] acted properly in the eyes of the law, thereby judicially endorsing his credibility, how can the defense of entrapment survive?" Id. at 9. Johnson's arguments do not challenge mere excessive judicial intervention; rather, his brief is replete with contentions of manifest judicial bias. See Appendix B at 8-11.

 Hall's brief similarly attacks the trial judge's conduct, which she asserted "unduly influence[d] the Jury and . . . deprive[d] the Appellant and the Co-Defendant Johnson of the rudimentary fair trial to which they were entitled, a right given to them regardless of the strength of the People's case." Hall App. Div. Brief at 41. Her citations to the trial record paralleled Johnson's, and in her four-page summary of the trial judge's controversial conduct, she included contentions that he

 "injected the question of the race of the Defendants, the undercover Officer, and the informant, for no reason whatsoever, . . . interrupted the Appellant's attorney during his question of her . . . and then again interrupted the Appellant during her cross-examination on another totally unrelated subject to ask her a question which clearly showed to the Jury that the Court did not believe her testimony on the most crucial issue in her case, . . . and then commented on the Appellant's living with another man, saying, "a woman who cares so little about morals, does she worry about lying?" . . . again, during the District Attorney's summation, the Court told the Jury that the District Attorney's argument is "perfectly reasonable." Id. at 40.

 In the same line, she added:

 "There are numerous instances throughout the record where the Court gave the Jury, whether intentionally or not, the clear impression that it believed the Defendants guilty. A striking example is contained on page 2310 where the Court interrupted the Appellant's testimony about an innocuous matter to ask her, in tones of disbelief, which can be heard without having been present in the Courtroom, whether she was curious about what was in the knapsack. This was a proper subject of cross-examination by the District Attorney, and by interjecting the question, at that particular time, the Jury would have to be blind and deaf not to comprehend that the Judge thought the Appellant's testimony incredible." Id. at 41.

 Hall, like Johnson, cited to the admission of hearsay and other challenged evidence to further her argument that the trial, considered in its totality, was conducted in a prejudicial manner. Id. at 43. Interestingly, Hall further alerted the State courts to the nature of her claim by citing People v. Baker, 44 A.D.2d 83, 353 N.Y.S.2d 505 (2d Dept. 1974), a case in which a conviction was reversed as a result of the biased conduct of the very judge who presided over Johnson and Hall's trial. Hall App. Div. Brief at 37.

 Hall's State brief implies that the trial judge may not have intentionally conveyed his predetermination of guilt to the jury. Her arguments to the Appellate Division leave no doubt, however, that she was contending that the trial judge in fact did not believe the defendants, and that his conduct at trial communicated his disbelief to the jury. Hall's State brief, like Johnson's, rested on an allegation of manifest judicial bias and not mere excessive intervention.

 Johnson's and Hall's State briefs used almost the identical phrases to describe the challenged actions of the trial judge that the Daye en banc court held adequate to alert the State courts of "the constitutional implications" of the fair trial claim. 696 F.2d at 197. According to the exact analysis applied to the Daye petition, Johnson and Hall's constitutional claim was clearly before the State courts, and their State remedies have therefore been exhausted.

 Moreover, despite the Johnson v. Metz panel's conclusion that the cases cited in petitioners' briefs were grounded in the supervisory powers of appellate courts, this Court's review of those cases, particularly in light of intervening decisions, indicated that petitioners' citations should have made the State courts cognizant of their constitutional responsibilities. The appellate courts in the cases cited by Johnson and Hall certainly exercised their supervisory powers, but they did so to correct constitutional defects.

 Several of the New York cases cited by Johnson reversed convictions in the face of a record of excessive or prejudicial intervention because the fair trial right was "basic" or fundamental." E.g., People v. Mleczko, 298 N.Y. 153, 163, 81 N.E.2d 65 (1948) ("Vicious though the crime was, convincing though the evidence seems to be, we could affirm only if we were to announce a doctrine that the fundamentals of a fair trial need not be respected if there is proof in the record to persuade us of defendant's guilt."); accord, People v. Schildhaus, 17 Misc. 2d 825, 186 N.Y.S.2d 68, 70 (1st Dept. 1959); People v. Dovico, 6 A.D.2d 457, 179 N.Y.S.2d 379, 380 (4th Dept. 1958); People v. Herman, 255 A.D. 314, 7 N.Y.S.2d 560, 562-63 (2d Dept. 1938); People v. Rafkind, 254 A.D. 742, 3 N.Y.S.2d 997, 998 (2d Dept. 1938); People v. Konopka, 5 Misc. 2d 507, 164 N.Y.S.2d 139, 142 (Suffolk County Court 1957); People v. Man, 5 Misc. 2d 852, 165 N.Y.S.2d 783, 784-85 (Suffolk County Court 1956); People v. Kachadourian, 116 N.Y.S.2d 486, 491-92 (Broome County Court 1952). For example, in People v. DeMartino, 252 A.D. 476, 299 N.Y.S. 781, 787 (2d Dept. 1937), the court stated:

 "[H]owever strong may be the evidence against a defendant, a judgment of conviction should be reversed if the trial was not a fair one. . . . A fair trial is the fundamental requirement in a criminal prosecution. . . . The essential requirements of a fair trial are simple and easily observed. The function of the trial court is to preserve scrupulously the legal rights of both the people and the accused and not to insure the victory or defeat for either contestant. More important than any verdict or judgment are the legal principles which govern the fundamental rights of all."

 Although none of these cases expressly cited the Constitution, their analysis appears indistinguishable from the rationale adopted by the New York Court of Appeals in Crimmins, 36 N.Y.2d at 238, 367 N.Y.S.2d at 218-19, and DeJesus, 42 N.Y.2d at 520, 522-24, 399 N.Y.S.2d at 197, 198-99, as discussed in Daye, 696 F.2d at 196-96. The DeJesus decision, rendered subsequent to the Johnson v. Metz decision, demonstrates that the analysis contained in Johnson's and Hall's State briefs, and in the State cases they cited, depicted a constitutional claim. See also Mees, 47 N.Y.2d at 998, 420 N.Y.S.2d at 215.

 Moreover, although the majority of the federal cases cited by Johnson and Hall do not expressly mention the constitution, these cases similarly treat the right to a trial before an impartial judge as fundamental. E.g., United States v. Fernandez, 480 f.2d 726, 738 (2d Cir. 1973) ("we doubt that a quilty verdict after the judge had told the jury that he considered a defense witness an unmitigated liar would be sustained by the Supreme Court today."); United States v. Guglielmini, 384 F.2d 602, 605 (2d Cir. 1967) ("the defendants did not receive the fair trial to which our law entitles them."), cert. denied, 400 U.S. 820, 27 L. Ed. 2d 48, 91 S. Ct. 38 (1970); United States v. Hill, 332 F.2d 105, 106 (7th Cir. 1964) ("a fair and impartial trial is guaranteed to every defendant, and fundamentally means a trial before an impartial judge and by an impartial jury."); United States v. Carmel, 267 F.2d 345, 350 (7th Cir. 1959) (same); United States v. Hunter, 62 F.2d 217, 220 (5th Cir. 1932) ("It is vastly more important that the attitutde of the trial judge should be impartial than that any particular defendant, however guilty he may be, should be convicted."); see Starr v. United States, 153 U.S. 614, 626, 38 L. Ed. 841, 14 S. Ct. 919 (1894), quoted in Quercia v. United States, 289 U.S. 466, 469, 77 L. Ed. 1321, 53 S. Ct. 698 (1933); United States v. Nazzaro, 472 F.2d 302, 303-04 (2d Cir. 1973); United States v. Grunberger, 431 F.2d 1062, 1067, 1069 (2d Cir. 1970); United States v. DeSisto, 289 F.2d 833, 835 (2d Cir. 1961); United States v. Marzano, 149 F.2d 923, 926 (2d Cir. 1945).

 In two cases cited by Hall, however, the courts did state that the deprivation of fair trial claims had been raised to vindicate constitutional rights, and analyzed the claims accordingly. In United States v. Lanham, 416 F.2d 1140, 1145 (5th Cir. 1969), the court concluded that:

 "The impartial trial atmosphere, the cold neutrality of an impartial judge, the defendant["] . . . credibility, his presumption of innocence, and any chance whether guilty or innocent that he had of a successful defense, all were denied, along with his Fifth Amendment right not to be deprived of his liberty without due process of law."

 Additionally, in United States v. Bursten, 395 F.2d 976, 982-83 (5th Cir. 1968), cert. denied, 409 U.S. 843, 34 L. Ed. 2d 83, 93 S. Ct. 44 (1972), the court addressed the "contention that on many, many occasions the trial judge over-stepped the bounds of judicial propriety, by repeatedly injecting himself into the trial, in questioning the witnesses and wrongly expressing his personal opinions" in disregard of basic principles encompassed in "the fair trial rights . . . guaranteed by the Consitution."

 Johnson similarly cited United States v. Hoker, 483 F.2d 359, 360 (5th Cir. 1973), which in turn quoted and relied upon Lanham, supra. In fact, Johnson's brief to the Appellate Division expressly stated that "[t]he totality of the circumstances . . . denied the Defendant his constitutional right to a fair trial." Johnson App. Div. Brief at "Table of Contents" and at 72 (emphasis added); see Appendix B at 9.

 Additionally, in dismissing the present petition to allow the State courts to address the express constitutional claim, Judge Newman, concurring in Johnson v. Metz, characterized the nature of that claim by quoting United States v. Marzano, 149 F.2d at 926:

 "Petitioners' claim, now returned for what will surely be sensitive examination by the state courts, is that the trial judge failed to observe the enduring admonition of Judge Learned Hand: "[The trial judge] must not take on the role of a partisan; he must not enter the lists; he must not by his ardor induce the jury to join in a hue and cry against the accused.Prosecution and judgment are two quite separate functions in the administration of justice; they must not merge." 609 F.2d at 1057.

 Judge Newman apparently viewed the Marzano case as establishing the constitutional framework in which the State courts should address Johnson and Hall's due process claim. Notably, Johnson's State brief had also quoted Marzano. Johnson App. Div. Brief at 48.

 Johnson and Hall thus appear to have cited cases, both State and federal, that are in the long line of precedents safeguarding a constitutional right to a fair trial. For this reason, and because both petitioners' State briefs cast their claim in language which places it in the mainstream of due process, and because Johnson's brief expressly refers to the Constitution, this Court finds that petitioners exhausted their State remedies on this claim.


 Petitioners have steadfastly sought habeas relief because they claim that they were denied a fair trial in contravention of the due process clause. The Court has reviewed its February 5, 1979 Order holding that petitioners were entitled to habeas relief, and the Court now adopts that holding for the reasons expressed in that Order. See Appendix A.

 Defendants incorrectly contend that the 1979 Order rested on four grounds to support the grant of the writ. In the March 28, 1979 Order, this Court expressly stated that although petitioners "advanced four constitutional grounds in support of their petition, only one -- their claim that the State trial judge conducted their trial in a manner inconsistent with their due process right to a fair trial -- forms the basis for the order conditionally granting the writ." Appendix B at 7. To the extent that the February 5, 1979 Order alluded to other constitutional deficiencies in petitioners' trial, those findings are provided only as support for the holding that the trial judge's actions, considered in their totality, deprived petitioners of a fair trial. By letter dated February 24, 1983, petitioners abandoned all other claims. Cf. Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982).

 The petition is conditionally granted solely because petitioners were deprived of their due process right to a fair and impartial trial; of course, the Court anticipates that if the State elects to retry either or both petitioners, it will do so in a manner not inconsistent with the Court's citation to other obvious constitutional defects in their first trial. See Appendix A.

 Accordingly, defendants are ordered to release petitioners from custody and to relieve them from all disabilities attributable to this conviction unless the State grants them new and separate trials within sixty (60) days.




 JESSE JOHNSON and CYNTHIA HALL, Petitioners, against PAUL METZ, Warden, Great Meadows Correctional Facility; JANICE WARNE, Correctional Superintendent, Bedford Hills Correctional Facility, Respondents.

 76 C 442



 ALBERT C. ARONNE, ESQ., Brooklyn, N.Y. Attorney for Petitioners

 LOUIS J. LEFKOWITZ, ESQ. Attorney General of the State of New York, New York, N.Y. Attorney for Respondents BY MARK C. RUTZICK, ESQ. Assistant Attorney General

 NEAHER, District Judge.

 Petitioners Jesse Johnson and Cynthia Hall, State prisioners, seek a writ of habeas corpus, alleging they were denied due process of law in their State trial by reason of claimed prejudicial conduct and rulings on the part of the trial judge which, they contend, deprived them of a fundamentally fair trial and their right of confrontation. They were each charged in separate indentical indictments with a single sale and possession of a quantity of heroin and, on motion of the District Attorney, were tried jointly before a jury in the New York Supreme Court, Kings County, in August 1973 and found guilty. They were sentenced by judgment entered October 16, 1973, and their convictions were affirmed by the Appellate Division, without opinion, 46 App. Div.2d 739, 361 N.Y.S.2d 325 (2d Dept. 1974); leave to appeal to the Court of Appeals was denied by Judge Wachtler on February 4, 1975, and the Supreme Court thereafter denied certiorari, 422 U.S. 1048, 95 S. Ct. 2666, 45 L. Ed. 2d 700 (1975).

 Petitioners' principal claim is that they were deprived of a fair trial by the judge's usurpation of the prosecutor's function and constant interference in the trial, which inevitably manifested to the jury the court's belief in their guilt. Additional claims of Johnson are that he was denied the right of confrontation by the erroneous admission of prejudicial hearsay testimony and subjected to the burden of proving his innocence by erroneous jury instructions on the defense of entrapment. Hall, who testified in her own defense, additionally claims that the joint trial, the trial judge's conduct in cross-examining her and the use of certain claimed impeachment evidence, which the court had ruled inadmissible before she took the stand, made a fair consideration of the evidence as to her impossible under the circumstances.

 Although only a single heroin transaction formed the basis of the charges against both petitioners, the trial extended from July 30, 1973 to August 22, 1973 -- over three weeks. In that time some 2,713 pages of transcript were compiled, although only six witnesses testified: four police officers and a police chemist for the State, and petitioner Hall in her own defense. The length of the trial was in large part attributable to the extraordinary intervention of the trial judge in the conduct of the State case, the resulting frequent colloquies and controversies between the judge and defense counsel -- mostly in the presence of the jury -- and the court's repetitious explanations to the jury of what the prosecutor was attempting to prove. In contrast to some 1,099 questions put by the prosecutor, the trial judge asked about 1,254 questions. Between them, the two defense counsel asked approximately 1,108 questions.

 The Evidence at Trial

 From the evidence at trial it appears that in July 1972 Richard Brown, a New York City police officer, assumed the role of an undercover agent for the police narcotics bureau. According to Brown, two fellow officers, Martinez and Matera, had informed him that petitioner Johnson was a large-scale narcotics dealer in the Bedford-Stuyvesant area of Brooklyn, and Brown's objective was to attempt to arrange a narcotics transaction with him. Brown subsequently met with one Julius "Pete" Knight, a registered Police Department informant, who told Brown he had worked for Johnson for ten years and could bring about an introduction.

 From July 1972 until February 1973, Brown, using the name "Grady" and a cover story that he was a prosperous dealer from Washington, D.C. looking to buy heroin, stalked the streets without result. Although Brown had "investigated" a catering hall Johnson owned and had seen him on September 14, 1972 at the grand opening of a Brooklyn bar called the "Motown Lounge," also attended by Knight, no progress had been made towards an actual introduction of "Grady" to Johnson. Finally, on February 21, 1973, Knight took Brown to Johnson's home in Queens. There is no direct evidence as to how this home visit was arranged. *fn1" Johnson was asleep when they got there but Mrs. Johnson let them in. Anticipating the conversation hereinafter related, Brown had a tape recorder concealed on his person. Surveilling police officers in a car were nearby to take phtotgraphs of Brown and Knight entering and leaving the house.

  According to Brown and the tape transcript, when Johnson appeared, Knight opened the relevant conversation by saying, "I want to talk to you about a little stuff," meaning heroin in street parlance. The conversation as recorded continued for some time with Knight urging Johnson to get some heroin for "Grady" as he, Knight, wanted to make some money. Johnson at first demurred, saying, "It's too hot . . . with stuff now. . . . Your ass would be in jail in a minute as soon as you turned around." Nevertheless, Johnson finally agreed he would get three-quarters of a kilo of heroin for "Grady" for $23,000. Johnson cautioned Knight, saying, "Look, Pete, if I get this stuff for this boy, I don't want to hear my name on Fulton Street . . . because that [obscenity meaning drugs] put me in trouble." The conversation ended with Johnson saying he would see Knight and "Grady" at the Motown Lounge in a couple of days.

  On February 23, 1973 Johnson appeared at the Motown Lounge. Brown and Knight were already there as was another undercover police officer, Dorothy Richardson, posing as "Grady's" girlfriend.Brown had $23,000 in serialized bills obtained from the Police Department,, which were in a green knapsack in the trunk of a rented new Cadillac Brown used in order to impress Johnson. He also had his concealed tape recorder. Johnson expressed doubt about dealing with Brown, but after Brown complained "if you don't dig me, we can just forget it," Johnson asked if he had the money. Brown took him outside to the Cadillac, showed him the money in the knapsack and placed the knapsack inside a brown paper bag behind the driver's seat of Johnson's car. Johnson then drove off after instructing Brown to be at the Motown Lounge at 3 P.M.

  Surveilling police officers, who were photographing Brown's and Johnson's movements, observed Johnson drive to an apartment house at 950 rutland Road, Brooklyn. Johnson and his wife had leased an apartment there, which was occupied from time to time by co-petitioner Hall, admittedly Johnson's girlfriend. The surveilling officers also observed Johnson enter the building carrying a brown paper bag and later emerge accompanied by Hall. one of the officers testified he saw Hall carrying a green knapsack over her shoulder as she walked towards Johnson's car and then both drove off.

  Johnson drove past the Motown Lounge to the Centaur Club a block away.Hall, who took the stand in her own defense and denied the accuracy of the surveilling officers' observations, testified she first saw the green knapsack when Johnson reached underneath the driver's seat and handed it to her, telling her to sit in the Centaur Club and when "Pete" Knight ...

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