The opinion of the court was delivered by: Lasker, District Judge.
Lawrence A. Vogelman, Barry C. Scheck and Ellen Yaroshefsky,
Cardozo Criminal Law Clinic, assisted by Lawrence Reina, Lowell
D. Kern, Andrew Weinstein, Mark Berman, Amy Gladstone, Law
Graduates, Jedidiah Alpert, Law Student, New York City, and
Brian Glick, New Rochelle, N.Y., Michael Spiegel and Judith M.
Rosen, Dechert Price & Rhoads, New York City, for petitioners.
Robert M. Morgenthau, Dist. Atty. for New York County, New
York City, for respondents; Mark Dwyer, Marc Frazier Scholl,
Asst. Dist. Attys., of counsel.
Herman Bell, Anthony Bottom, and Albert Washington were each
convicted in New York State Supreme Court of two counts of
murder in the first degree (former New York Penal Law §§
125.25) for intentionally causing or intentionally aiding in
the death of two New York City police officers, after a second
trial,*fn1 and on May 12, 1975, were sentenced to concurrent
indeterminate prison terms of twenty-five years to life. They
now seek writs of habeas corpus pursuant to 28 U.S.C. § 2254
to set aside their convictions.
Nine grounds for relief are asserted:
1. The state court denied petitioners a fair hearing on trial
witness Rubin Scott's post-trial recantation and his
allegations of improper ex parte contact.
2. The post-trial hearing to determine the biases of a juror
who knowingly engaged in improper conduct was inherently
flawed: bias should be imputed to the juror, rendering
unconstitutional the verdicts on which he voted.
3. The systematic exclusion of women from the venires from
which petitioners' jury was selected violated their right to
a trial by a jury chosen from a cross-section of the community.
4. The trial judge failed to conduct the constitutionally
required inquiry into petitioner Washington's waiver of his
right to counsel.
5. The prohibition of questions concerning FBI directives
showing agent Wanamaker's bias and his motivation to lie denied
petitioners their fundamental right to cross-examination.
6. Prosecutorial comment on petitioners' failure to testify
constituted a violation of their fifth and fourteenth amendment
7. The prosecution's circumstantial case, based solely on
tainted sources, was insufficient to permit a verdict that
petitioner Washington was guilty of murder beyond a reasonable
8. The court's biased and misleading charge to the jury denied
petitioners their due process rights and right to a fair trial.
9. The prosecution (a) failed to correct police ballistics
testimony which it knew, or should have known, was false; and
(b) withheld exculpatory FBI ballistics evidence in its
In early May 1971, Washington, Bell, Bottom, and Francisco
Torres, traveled to New York. There, Francisco Torres' brother,
Gabriel Torres, lived with his wife Linda Torres on Anderson
Avenue in the Bronx. Also living there were Jacqueline Tabb,
Francisco Torres' common-law wife, and Karen Parks, Tabb's
sister. During May
1971, Bell, Bottom, Washington, the Torres brothers, Linda
Torres, Jacqueline Tabb, and Karen Parks, regularly met in the
apartment to talk about "radical politics."
According to the prosecution, shortly after Bell, Bottom,
Washington, and Francisco Torres left California for New York,
Rubin Scott, still in California received a message to ship
some guns to New York, and Scott shipped a .45 caliber
automatic pistol and a .38 caliber pistol to New York City by
Greyhound Bus. In mid-May, 1971, Gabriel Torres went to the bus
station in New York City and signed for a package which weighed
On May 21, 1971, at approximately 10:00 or 10:15 p.m.,
Officers Waverly Jones and Joseph Piagentini, responding to a
routine call, stopped by 159-20 Harlem River Drive, part of the
Colonial Park Housing Project in upper Manhattan. According to
eyewitnesses, about fifteen minutes later as they emerged from
the building, two men shot repeatedly and killed the officers.
A Mustang parked in front of the building was processed for
latent fingerprints because an eyewitness told the detectives
that one of the killers had leaned against it. Five lifts of
latent fingerprints and palm-prints were obtained.
On August 27, 1971, three months after the May 21st deaths of
the police officers, the police arrested petitioners Bottom and
Washington in San Francisco. The gun of one of the slain police
officers was in their possession. Also in the car in which they
were arrested was a .45 caliber automatic pistol, later alleged
to be one of the murder weapons. (Four .45 caliber bullets were
recovered from an autopsy of Officer Jones, and one from an
autopsy of Officer Piagentini. In addition, one .45 caliber
bullet and six .45 caliber discharged shells were eventually
retrieved from the scene of the crime.)
After trial, petitioners filed various appeals and motions to
vacate, and on October 29, 1982, petitioners moved to vacate
their convictions, on the basis of newly discovered evidence
obtained from the FBI through a Freedom of Information Act
request — FBI ballistics test results. On the basis of these
documents, petitioners claimed that exculpatory information had
been withheld from them by the state prosecutors. Petitioners
also contended that a new trial was required because a
principal witness, Rubin Scott, had recanted his trial
testimony.*fn2 In 1984, petitioners requested that the trial
judge recuse himself from hearing their motion to vacate
because their motion included allegations that he had had
improper ex parte communications with Rubin Scott. The judge
declined to recuse himself, and on October 9, 1985, denied the
motion to vacate. On January 14, 1986, the Appellate Division
of the Supreme Court, First Judicial Department, denied
petitioners appeal and denied permission to appeal to the Court
However, the evidence on which petitioners base their
allegations of improper ex parte contacts is extraordinarily
weak, and Scott's recantation is neither credible nor material.
Rubin Scott was arrested in New Orleans on August 24, 1973,
in connection with a bank robbery. According to Scott's 1977
affidavit, upon his arrest, he was tortured and repeatedly
beaten by the New Orleans police, and interrogated by
detectives from the NYPD about his knowledge of petitioner
Herman Bell. In October 1974, after Scott was convicted of bank
robbery and sentenced to fifteen years in a state facility, he
asked the New Orleans police to contact the NYPD for him.
According to his 1985 affidavit, because of constant abuse and
threats, he "finally agreed to tell the police what they seemed
to want so much for [him] to say." Scott told the NYPD
detectives that he had been with petitioner Bell when Bell
buried a gun he described as "hot" in Mississippi. He agreed to
accompany NYPD officers to look for the gun that Bell had
buried, and on November 18, 1974, a member of the excavating
party found a .38 caliber gun which turned out to be the
service revolver of Joseph Piagentini, one of the slain New
York police officers.
On January 7, 1975, Scott was brought to New York to testify
in petitioners' trial. On either January 17, 1975 (according to
petitioners) or February 21, 1975 (according to respondents),
Scott asked again for a lawyer, and ADA Robert K. Tanenbaum,
the chief prosecutor at petitioners' trial, told him that it
would take too long to get him a lawyer but that he could speak
to the trial judge instead. (Scott 1977 Affidavit). Scott was
then taken to the judge's office and was left alone with him,
at Scott's request. Scott stated in his 1977 affidavit that he
told the judge that the testimony he had been planning to give
— that he had watched Bell bury the gun of one of the murdered
police officers — was false; that he had received the gun from
someone unconnected with the killings; and that he himself had
buried the gun.
Scott claims that in the days that followed, a number of
prosecutors and the investigating officers came to see him and
told him that he was lying and that he would be better off
telling the truth. (Scott 1977 Affidavit) According to Scott,
in the end, out of fear, he decided to change his testimony
back to the one the police wanted to hear. "I was scared. I
didn't know what Fenton or the others would do or if this would
be just a continuation of what happened to me in New Orleans.
Because of this fear, soon after I changed around and testified
the way they wanted me to which is that Herman Bell did bury
the gun in Mississippi." (Scott 1977 Affidavit).
On February 25, 1975, only four days after the date
respondents contend the meeting between Scott and the trial
judge occurred and over a month after the date petitioners
claim the meeting took place, the trial judge met with defense
counsel and informed them on the record of the conversation he
had had with Scott. On March 24, 1975, Scott took the stand and
testified about Bell's burial of Officer Piagentini's gun in
Mississippi, Scott's shipment of guns to Bell in New York by
Greyhound, and discussions he had had with the petitioners
about "scoping pigs" in order to set them up to kill them.
After petitioners' convictions, in 1977, Scott submitted an
affidavit recanting his trial testimony. On the basis of that
affidavit, petitioners made a motion to vacate in July 1977
pursuant to New York CPL § 440.10. That motion was denied on
September 26, 1978, by the trial judge.*fn4
In 1982, petitioners again moved to vacate their convictions,
primarily on the basis of FBI ballistics reports; they also
asserted claims that Scott's trial testimony was false and had
been coerced and that the trial judge had engaged in improper
ex parte contacts. In 1984, petitioners made a motion to
disqualify the trial judge from deciding the motion to vacate.
The judge declined to recuse himself and on October 9, 1985,
denied the motion to vacate. In his written opinion, the trial
judge stated, with regard to the recusal issue, that "were
there the slightest shred of truth to any of these allegations,
or even if there were material disputed questions of fact
raised" he would recuse himself, but since there was not, he
declined to do so. On January 14, 1986, the Appellate Division,
First Department, determined that there was no question of ...