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November 18, 1991


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 ten pounds.

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 of Appeals.


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 ...

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