The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.
ORDER AND OPINION GRANTING WRIT OF HABEAS CORPUS
On November 2, 1981, Dr. John Chase Wood, a young doctor at Columbia Presbyterian Hospital in Manhattan, was shot and killed as he walked to work. Thirteen years later, Darryl Whitley, the Petitioner, and Patrick McDowell were identified by jailhouse informants as the killers of Dr. Wood. Whitley and McDowell were tried separately in state court, but each jury was unable to come to a unanimous verdict. The two were retried, again in separate trials. At his second trial, McDowell, the alleged shooter, was found not guilty. Petitioner, the alleged accomplice, was convicted. On April 18, 2002, Whitley was sentenced to a term of imprisonment of 22 years to life.
Whitley, having exhausted state procedures for relief from the judgment of conviction, timely filed this petition for habeas review. 28 U.S.C. § 2254 (2006). He alleges violations of the Due Process and Confrontation Clauses of the United States Constitution. The issue I have to decide relates to the reading in Whitley's second trial of the testimony given by a key jailhouse informant in Whitley's first trial, without letting the second jury know that the informant claimed a lack of memory, sought to recant his prior testimony, and finally became unavailable after having invoked the Fifth Amendment.
On the evening of November 2, 1981, Dr. John Chase Wood, 31, was on call at Columbia Presbyterian Hospital. Wearing his scrubs and white lab coat and carrying his stethoscope, Dr. Wood hurried home during his shift to comfort his pregnant wife. On his return to the hospital, while walking on Riverside Drive, two men accosted him, demanding prescription drugs. Dr. Wood said he had none. The men patted his pockets, took out Dr. Wood's prescription pad, and a scuffle broke out. One assailant drew a handgun and fired twice, fatally shooting Dr. Wood through his heart and left lung.
The assailants fled and Dr. Wood was taken to Columbia Presbyterian Hospital, and died during surgery. Detective Gennaro Giorgio of the New York City Police Department was assigned to investigate the murder.
b. The Identification of McDowell and Whitley and Their Trials
Thirteen years later, in 1994, a jailhouse informant, Glenn Richardson, identified Patrick McDowell as the shooter, and Petitioner, Darryl Whitley, as the accomplice. Richardson's testimony was corroborated by other jailhouse informants. On March 24, 1995, the two were indicted and then tried separately. Each trial resulted in a hung jury.
The men were retried, again in separate trials. The State presented witnesses who testified that the defendants made inculpatory statements. Other witnesses testified that they heard the gunshots and saw the perpetrators from a distance. An eyewitness identified McDowell as the shooter. No witness to the event was able to identify Whitley. McDowell was acquitted. The jury in Whitley's trial returned a guilty verdict for second degree murder. On April 18, 2002, the Supreme Court sentenced Whitley to an indeterminate prison term of 22 years to life.
i. Testimony of Bernard Barnes
Bernard Barnes, a witness subpoenaed by the State, testified at Whitley's second trial that, during a visit to Whitley at Riker's Island in 1982, while Whitley was being detained in connection with an unrelated crime, Whitley stated that he was arrested for the robbery of a doctor and that, during the robbery, the doctor resisted, a gun was fired, and the doctor was killed. The People argued that Barnes's attribution of his arrest to the robbery, at a time when the police did not know the identity of either suspect, and his recounting of the events of the robbery and murder, showed that Whitley was one of Dr. Wood's assailants. On cross-examination, Barnes admitted that, when he told his story to Detective Gennaro Giorgio, he was facing a trial and heavy punishment for selling "crack" cocaine and that Detective Giorgio had offered substantial benefits by way of a reduced sentence if he cooperated and testified against Whitley and McDowell, and that he had been using drugs heavily when he told his story to Detective Giorgio.
ii. Testimony of Donald Caines
Donald Caines, another jailhouse informant, told Detective Giorgio in 1995 that ten years earlier, in 1985, while he and Whitley were housed at the Mt. McGregor Correctional Facility, Whitley admitted his involvement in Dr. Wood's murder. Caines, elaborating to Giorgio, said also that Whitley stated that McDowell shot himself in the foot during the robbery, and that they had been arrested because the ballistics from McDowell's gunshot wound matched the ballistics evidence from Dr. Wood's murder scene.
In truth, McDowell had previously suffered a gunshot wound to his foot, and the bullet recovered from McDowell's foot did not match the.22 caliber bullet used to kill Dr. Wood. Caines was impeached also by evidence that he previously had lied under oath, and by the substantial benefits that Caines had received from the People for his testimony, including cash payments in excess of $1,000.
iii. Testimony of Gregory Howard and Ricky Darlington
Gregory Howard, another jailhouse informant with an extensive criminal history, spoke to Detective Giorgio in 1995, while in jail for a parole violation. Howard told Giorgio that police had questioned him about Dr. Wood's murder shortly after its occurrence, in November 1981, and that soon after, Howard spoke to Whitley about being questioned "for this doctor thing." Whitley allegedly responded, "[W]hat'd they pick you up for? It was me and [McDowell] down there, we did the doctor." Howard gave this testimony in Whitley's trial, and testified that he and Whitley had had this conversation in the presence of Ricky Darlington, another long-term prisoner.
Howard testified that he was released from prison for his parole violation shortly after providing his statement to Detective Giorgio. He also testified that Giorgio and an assistant district attorney assisted him in obtaining a dismissal of an outstanding warrant. Darlington's testimony was to the same effect, as to both his direct testimony and the manner of his impeachment.
iv. Testimony of Detective Gennaro Giorgio
Detective Giorgio testified that he had been working on the Wood homicide since 1981, that he had interviewed Whitley in 1994 regarding the murder, and that he told Whitley that he and McDowell had been implicated in Dr. Wood's murder. Giorgio then told the jury of Whitley's response: "You don't have no case against [McDowell]. The only way you're going to get [McDowell] is through me." The People argued that Whitley's response constituted an admission of his involvement in the murder.
Four eyewitnesses who saw the crime being committed testified at Whitley's trial. Three testified that they saw the assailants, but that it was too dark to make out their faces. A fourth eyewitness, Dorothy Howze, was closest to the incident, and ran to Dr. Wood's aid after the shooting. As the assailants fled, Howze heard one say "Why did you do that?," to which the other responded, "I didn't mean to; it was an accident." In 1994, Howze was presented with a photo array that contained pictures of Whitley and McDowell. Howze testified that she was "maybe, ninety-percent" sure that McDowell was the shooter, but could not identify Whitley as the accomplice. Tr. Jan. 24, 2002, at 129 (Doc. No. 17).
vi. Testimony of Glenn Richardson
At Whitley's first trial, Glenn Richardson testified that he, Whitley, and McDowell had grown up together and that he lent his.22 caliber revolver to McDowell in the fall of 1981. Richardson testified that Whitley told him, soon after Dr. Wood's murder, that he (Whitley) and McDowell were "on Riverside Drive, and they was looking for somebody to rob, and the doctor came along, and [Patrick] Raynard [McDowell] shot him." In fuller part, Richardson testified:
[THE PEOPLE]: [In November of 1981], [w]ere you aware of an event of a doctor being killed?
[THE PEOPLE]: Okay, and just before that, did there come a time when Patrick Raynard McDowell asked you for something?
[RICHARDSON]: Yeah, he had asked me for a gun.
[THE PEOPLE]: And this was in the fall of 1981?
[RICHARDSON]: Yeah, I guess so.*fn1...
[THE PEOPLE]: And when you, the gun that you gave to him, can you describe that?
[RICHARDSON]: It's a.22; it's a small revolver.*fn2...
[THE PEOPLE]: Mr. Richardson, after you heard about the events did you approach Patrick McDowell again, or did you approach him?
[RICHARDSON]: Yeah, I seen him uptown.
[THE PEOPLE]: This is on 159th Street?
[THE PEOPLE]: Can you describe that for us?
[RICHARDSON]: I was walking uptown looking for him. I seen him on 159th Street. And I asked him about the gun he had borrowed from me, and he said that he had used it, so he couldn't return it to me.
[THE PEOPLE]: Did he use any particular phrase --
[RICHARDSON]: It was dirty.
[THE PEOPLE]: -- about the gun?
[RICHARDSON]: Said the gun was dirty.
[THE PEOPLE]: The gun was dirty. What did that mean to you?
[RICHARDSON]: That he had used it.
[THE PEOPLE]: Now, what did you do as a result of that conversation? What did you do next?
[RICHARDSON]: I didn't believe him, I thought that he was just trying to get over on me. I went down to see -- I went to 158th Street to see Darryl [Whitley], asked Darryl, did he know anything about what Raynard did with the gun.*fn3...
[THE PEOPLE]: What did Darryl say?
[RICHARDSON]: We talked for a while, then he -- I asked him about the gun, did he know if Raynard had my gun. He told me, did I hear about the doctor? I didn't get it right away. Then he told me that -- he asked me, did I hear about the doctor being killed on Riverside Drive? I said, yeah. Then he got silent after that.
[THE PEOPLE]: Sorry, I missed that phrase.
[RICHARDSON]: He had got silent after that.
[THE PEOPLE]: He got silent?
[RICHARDSON]: Yeah, he told me in pig latin, he didn't have to do that.
[THE PEOPLE]: He, is who? Who told?
[RICHARDSON]: Darryl told me, in pig latin, that he didn't have to do it.
[THE PEOPLE]: And when Darryl was speaking, did he use the word, he didn't have to do it?
[THE PEOPLE]: And did he elaborate on what occurred there?
[THE PEOPLE]: Did Darryl -- Now, did Darryl say anything about what happened on Riverside Drive?
[RICHARDSON]: I think that he said that they was on Riverside Drive, and they was looking for somebody to rob, and the doctor came along, and Raynard shot him.
[THE PEOPLE]: And when he related that, he used -- you used a plural pronoun?
[RICHARDSON]: What you mean?
[THE PEOPLE]: Well, you said that
--[RICHARDSON]: From the best of my recollection, he was telling me that they was walking.*fn4...
[THE PEOPLE]: What did Darryl say about Riverside?
[RICHARDSON]: I think he said that they was walking on Riverside Drive, looking for somebody to rob, and the doctor came along.
[THE PEOPLE]: Did he say anything about what happened, at that point?
[RICHARDSON]: I think that the doctor resisted, and Raynard shot him.
[THE PEOPLE]: Now as a result of that conversation, what did you do?
[RICHARDSON]: That was it, the conversation ended. I walked downtown.
[THE PEOPLE]: Did you ever get the gun back?
[RICHARDSON]: No. I don't want nothing to do with the gun. I was kind of messed up about the situation....*fn5
Like all the witnesses who testified that Whitley had admitted his involvement in the Wood homicide, the cross-examination brought out that Richardson had an extensive criminal history and that his cooperation was procured by Detective Giorgio. At the time Richardson agreed to cooperate, he was facing a prison sentence of twenty years to life for an unrelated federal drug charge. As part of a plea bargain in the federal case, which led to a substantial reduction in his sentence, Richardson signed a cooperation agreement, obligating him to cooperate with federal, state, and local prosecutors.
Richardson was subjected to extensive cross-examination regarding his history of drug use, his drug distributions, his incentive to lie under oath, and the pressure he felt from Detective Giorgio to testify against McDowell and Whitley.
[WHITLEY'S COUNSEL]:... [E]ach and every time that you met with Detective Giorgio, you did you utmost ...