United States of America Ex Rel. Thomas Meers, Relator-Appellee v. Walter H. Wilkins, Warden of Attica State Prison, Attica, New York

Amеrica UNITED STATES of Relator-Appellee, MEERS, Thomas WILKINS, of Attica H. Warden

Walter York, Prison, Attica, New State Appellant. No. Docket 28178. United States Court Second Circuit. Argued Oct. 1963. Decided Jan. 1964. City Zuckerman, Gerald New York (Anthony Marra, City, F. New York brief), relator-appellee. Esterman, Atty. Lester Asst. Gen. (Louis Lefkowitz, Atty. Gen., J. York, brief) (Pax-

State New Blair, Gen., counsel), ton Sol. appellant. WATERMAN, Before HAYS

MARSHALL, Judges. Circuit MARSHALL, Judge. Circuit ‍‌​‌​​​‌​​​‌‌‌​​‌‌​​‌​​‌‌​​‌‌​‌​‌‌​‌​​​‌‌​​​​‌‌‌‌‍robbery was Relator convicted degree after a

first the Erie County February 1937, Court and was years term of 40 to sentenced February 23, admitting prior 1937 after petition alleges felonies. His that his federally-protected to a fair prosecution’s sup- violated pression of evidence material to his de- This claim rests on fense. the affidavits crime, of two witnеsses Cecilia Christopher Colosanti, Colosanti her husband. Cecilia Colosanti’s affidavit employed states she the store robbery pres- where the occurred and was occurred, night ent at the time 1936; October she observed hearing, revolver, a writ was denied without a the store enter Di- Appellate denial was affirmed the rear to to that her move he ordered vision, Court to to the did, and leave she store, that she and by judge of that denied times several same man observed the corpus prog- for habeas court. then moved robbery He inwas thereafter while the courts. in the federal relief Christopher affidavit ress. Colosanti’s opinion, order memorandum waiting Burke’s wife for his states that he was hearing, relator store, after finds that entered parked short- in a car outside the remedies,1 and night had exhausted his state rob- ly 10 P.M. on that inside, bery, that it dark noticed leaving it, men observed three “prosecution time of at the knew carrying bag or suit case. whom was had that both these they were called Both affiants state opportunity observe to see 1936, police headquarters in December to which would at a man who and were to look asked petitioner’s de- been material to the Meers, they Thomas testimony later learned was fense, and that they herein, were asked relator petitioner aided night they had him seen knowl- That with such his defense. they positively robbery, and edge they to disclose failed they police stated petitioner either the court or to They night. cоntinue him on that seen counsel, his that because be- were asked testi- failure grand jury trial, and or at the fore mony bene- which would further contact petitioner defense, in his ficial attorney’s peti- office. At or the district rights preju- were introduced tioner’s an of unfairness diced and element Zeiger, man- testimony of Ferdinand dep- existed, which amounted ato ager of store and of one wit- right petitioner’s rivation ness, positively both of whom identified to a Constitution under Federal crime, participant as a while Meers hearing.” fair tending Meers introduced Judge Burke’s are in accord with an alibi. establish order view of this case and affirm his sustaining the writ. conviction, Meers After has been law established for a and offered the moved new trial Mooney Holohan, 103, support v. U.S. since affidavits of the Colosantis affi L.Ed. his motion. He also submitted repre prosecuting attorney officers conduct davit finding grounds him, a defendant’s he had not who stated that sent and to au fair trial violated Colosantis’ until existence learned grant writs the federal courts trial was concluded. After de thorize after the corpus. motion, appealed That stands nial of Meers Division, obtained Appellate conviction which affirmed the through knowingly false trial and the use of the new denial permitted People Meers, App. perjured cannot be conviction. Pyle Kansas, (4th Dep’t See also N.Y.S.2d 708 to stand. Div. sought way 1938). L.Ed. then Relator relief Ragen, (1942) nobis state courts in and White coram August pressing 89 L.Ed. 1348 on which 65 S.Ct. Mooney application His sinсe have extended he relies here. Decisions Fay Noia, apply remedies. for a writ of 1. Petitioner 391, 435-38, 9 L.Ed.2d 837 certiorari Court to re- proceedings. view of the state This be considered failure to cannot exhaust although where, us differs from case before cover the rule never in ‍‌​‌​​​‌​​​‌‌‌​​‌‌​​‌​​‌‌​​‌‌​‌​‌‌​‌​​​‌‌​​​​‌‌‌‌‍that here not solicited false requested from cor- the disclosure is made prоsecution, no effort falsity. prosecution, that such discovery but we think it after rect qua request 264, sine to establish is not a non Illinois, Napue S.Ct. 360 U.S. prosecution’s part. It the Curran 1173, L.Ed.2d 1217 opin Supreme (3 Court’s Delaware, Cir. 259 F.2d 707 agreed Maryland cert, Brady ion the denied, 79 S.Ct. 358 U.S. Recently, U. S. and Court that the decisions Baldi, relevantly, Supreme Almeida v. Court held most that, the cert, 1952) 904, 73 though 345 U.S. no falsehood was еven trial, ex and U. S. L.Ed. “the at a offered Thompson Dye, rel. prosecution of evi- suppression the Pennsyl Cir.), sub nomine upon denied to an accused favorable dence Thompson, ex v. United States evi- vania quest due where violates guilt 100 L.Ed. 350 U.S. to is material either dence good constitutional state the correct punishment, irrespective of the obligation regarding Brady prosecution.” rule bad faith exculpatory evidence. Maryland, 83, 87, case, Brady, im Brady, as In the Almeida In 10 L.Ed.2d 215 determining jury portant of first issue been convicted degree along companion, was degree punishment murder for first murder awith Brady fatal Boblit, separate fired trials. moved whether the defendant Maryland proved caliber for.post- .38 shot. It that a courts was body relief, alleging alia, inter found near bullet was conviction within .45 caliber failed to furnish him slain bullet with a confession made Boblit in the store which was scene firing in was which he admitted the fatal crime. Neither these bullets although copies prosecution, shot, of other confes- troduced evidence although pointed Brady as it was well aware their exist sions slayer provided fact of thеir existence was actual were counsel. ence communicated counsel. claimed that introduction of of the bullets withheld statement have induced Disclosure strengthened jury pronounce Almeida’s sentence of life he death, shots, imprisonment rather not fire the since he was armed than judgment. police in fact .45 and the armed with was Court of with a Were ,38’s. Maryland Aрpeals prosecution apparently in held the fail- particular ure to turn the confession structed witnesses not to over mention attorneys, respond “a to his process,” despite was violation of .38 bullet did not due caliber inquiry fact that to defense counsel’s any apparently honest, cution acted in an other there were bullets than those though unsigned mistaken introduced. belief that the which were The court af grant confession not have been firmed the admis- writ of habeas purpose. corpus, at the sible granted It “the a new favorable to limited the issue of evidence Almeida was a punishment. process.” 226 Md. Thompson due A.2d denial (1962). The opin- prosecution, Court’s also murder an issue above, specifically ion, upheld noted as trial was whether defendant was regarding killing. the decision at the time of to dis- intoxicated An arresting officer, question of the confession closure as a who took him into cus law, objection tody shooting, over the hours after the three Jus- tes White, Harlan and Black appeared tices the effect that tified properly every “perfectly respect.” wаs normal in it. An- connecting pros- officer,however, him with informed eye- testimony of two arrest crime was ecutor time eye- appeared drunk. He was witnesses. Two other disinterested defendant virtually present although witnesses, testify, he was one whom called in during most of the same situation at the time the courtroom called, and known to crime as nor was his made the two who were statement apparently Instead, stated one of had a reason- whom defense. ably good opportunity call other officers to observe in court that he could participants scene, not intoxi- defendant left par- reversed was not a cated. Court of testified that Meers ticipant. According weight aon the district court’s determination contrary, hearing corpus nowas that habeas state court decisions finding evidence, suppression of material it is hard for of other us to think testimony testimony of the officer more second that have establishing helpful of value to would have been substantial in the defense concurring opinion, dispute In a on case. the defense. Judge Since the state did not expressed аrgument judge’s that the view oral finding Hastie case prosecutor identity in a crim- or not the Colosantis testimony his inal case must evidence and disclose the character of the possession given de- to the accused favorable was known case-by- many factors, pends on and a we the time duty must “It seems be made. ‍‌​‌​​​‌​​​‌‌‌​​‌‌​​‌​​‌‌​​‌‌​‌​‌‌​‌​​​‌‌​​​​‌‌‌‌‍think a their ex- existed make likely many will arise situations istenсe known to the defense. prosecutor fairly keep to a can which by many Our conclusion is bolstered knowledge testi- available himself cases, arising in both and mony as mistaken which he views courts, recognized state duty which have a But other circumstances false. there are exculpatory to disclose material certainly must, a which ingredient process. as an testimony should know that even which Although Court did honestly type or is of a disbelieves squarely hold this probability which in all from a source Pyle Brady, Kansas, we that in note very persuasive to a fair make it 213, 214, 177, 178, 317 63 jury.” 221 F.2d at 769. He minded 214 87 L.Ed. a ordered important the fact the with- found corpus hearing granted allega- on testimony Thompson was that of held prosecuting tions authorities noting officer the error a by presenta- his conviction “obtained disclosing compounded it “was not misleading testimony perjured, known to be as affirmative statement suppression and fa- of the available but unused nature petition allege, him.” vorable however, testimony.” of favor- repressed witnesses was in- able under Hastie’s brief We confronting problem and analysis timidation threats the state au- Agаin, Wyoming, pass on thorities. Wilde v. a claim that the asked court 80 4 evidence de- non-disclosure hearing the court 985 criminal of the funda- ordered prived a corpus petition alleging a habeas which an on accused is fairness mental guilty plea at a of counsel lack under the Fourteenth Amend- entitled ment, prosecutor wilfully suppressed “that the the instant believe еase to special of circumstances those involve alleged petitioner’s crime which would meritorious. exoner- make petitioner.” early only important question As Here, as ated Rives, U.S.App. in Curtis 75 Meers was fact was whether store, 66, 123 F.2d stated that robbed the D.C. “What men who

139 existed, charges ence really not denial the Colosantis appellant is such, case. Formulation this of confrontation wrong of wilful or evi- terms but or concealment ful confuse to him. conduct seem dence or favorable gov here, necessary may is not under this assume erning it.2 law as we understand clause violation of the due ex- Fifth Without Amendment.” Significant support for our decision ception, consider other circuits fed exists also in cases three reсognized that cases sustained writs eral district courts have may be in which non-disclosure arise largely grounds of corpus of habeas grounds on crim- attack collateral of material evidence. non-disclosure Ward, inal Turner v. convictions. See Montgomery v. United States ex Cir.1963); 321 F.2d Ragen, (N.D.Ill.1949); F.Supp. Wiman, F.2d 275 Powell v. Warden, Maryland Peni Smallwood v. remand, F.2d from tentiary, F.Supp. (D.Md.1962); v. Lawren- Application F.Supp. Kapatos, son, (4 Cir.), par (S.D.N.Y.1962). last ticularly one, noteworthy, since, like this (1962); 812 Palakiko v. Har- any proved not include elements of 1953), (9 per, F.2d Cir. 94 overreaching prose bad faith or cert, denied, 956, 74 S.Ct. part. cution’s The withheld 98 L.Ed. 1101 Woollomes was that of a who shots ‍‌​‌​​​‌​​​‌‌‌​​‌‌​​‌​​‌‌​​‌‌​‌​‌‌​‌​​​‌‌​​​​‌‌‌‌‍heard (9 Heinze, Cir. 198 F.2d 577 being below, looked on street fired the cert, 929, 73 denied 344 out, jump two men into a car saw also оur 97 L.Ed. 715 See de- along proceeding the without street Kling cision lights. This tend LaVallee, 1962). Cir. support story that he ed defendant’s case, state relies on the Woollomes responsible killing. for the Landeros, supra, Application and on witness, Danise, was called to F.Supp. (D.N.J.1957), Jury, but before the Grand the of evi- cutor did not inform either the court ground proper for dence constitutеs of his he because has been con- lease “where there credibility. lacked confidence by prosecu- or actual fraud nivance thoughtful opinion Palmieri’s by preventing use tion concluded that: However, at his trial.” accused purpose “The of a trial is as much in Woollomes indicates that af- court person acquittal of an innocent by alleged provided witnesses to fidavits guilty as it is the conviction of a “knowledge do crime not state average usually one. The accused possessed affiant favorable to the manpower does not have the or re- proper to the accused made known sources available the state in trial,” prior and con- officials investigation of Nor crime. newly at mоst disclose cludes does have access all of he evidence. Whether discovered evidence, much which has usual- have found such deliberate ly been removed obliterated suppression if affiants wilful is time learns he be tried knowledge of their informed In crime. view of this dis- open question. of course is investigating parity between event, rest our decision on powers we and the de- fendant, imposes duty I do not think it ground that the exist- explanation material evidence be excused. no offered the state 2. Since Kyle States, evidence, v. United Cf . failure disclose 1961). K.2d not consider whether with- need we shortly too of them thereafter. onerous a burden availability require it to disclose the exist- investigations signifi- through ence of its own a witness of the consideration, do is a but we cance instant case. relevant Danise judge ordinarily very least, At think it is determinative. supra. Application Kapatos, This should have been made aware See evidence, ruling particularly this and a should true requested by of de- have been this where the affidavit respect made to his fense counsel indicates Meers premises. representation His unilateral deci- efforts to secure other keep sion to undisclosed between the time he was the evidence finally invited the risk of 208 F. the time agree and did error.” Supp. until about use his services for trial. week before Although case came on Finally, Fisher, People we note find- the court below made (Gen- 23 Misc.2d 192 N.Y.S.2d ings question, do not think the we Sessions, County, 1958), erаl York New importance in this is of such suppres- where the court held that “the require for that case as to purpose. a remand withholding sion or by of material evidence prosecution which is favorable person accused of is a an alibi. The crime violation Petitioner’s defense was positive of due of law and renders a con- identifica- relied void,” Fugаte State, eyewitnesses. prosecu- viction Neb. N.W.2d tion knew two other positive who made statements to person L.Ed.2d 1733 which states the effect that was not the generally Note, Duty same rule. no See The involved question the crime. can There be Exculpa- of the Prosecutor to Disclose tory Evidence, speculate cannot Colum.L.Rev. been material. We to the effect this have jury oppor- had on if had an points Other raised tunity jury it. hear was denied require little discussion. We have opportunity virtue argument already disposed of the that a acquaint cution’s failure coun- showing of faith or conscious bad over judge sel and with the names reaching required allega to sustain of the witnesses. the circumstances suppressed. A tions that evidence was of this that denial was inconsist- argument is that further the Colosantis’ proper fairness, ent with standards of inadequate affidavits foundation are and constituted the of convic- However, court’s conclusions. process denial of law. court record alone suf the state Therefore, appealed the order from is to sustain the writ ficient affirmed. hearing corpus, full without a even See, g., district court. e. Judge WATERMAN, (concur- Circuit Jackson, ex rel. Wade ring) : 1958); (2d Cir. United States ex LaVallee, (2d Corbo v. opinion Judge I concur in the 1959). Here, the record is suffi opinion and also in MARSHALL peti sustain the elements cient Judge HAYS. rendering claim, tioner’s further unnecessary. Finally, disposition I think it suppres argues that there was counsel uncertain he was to since Meers’ have trial sion shortly sponsibilities until Colosantis advance learned trial, just Although in fact came for trial. as he learned case I concealing judge put position to be belief am fairness, findings doubts, should, have made could well them, extent situation, revealed least I informing the conflict. facts MARSHALL affirm can speak and we for themselves by suppressing evidence Thus remаnding for without the order below know was he had reason to findings. further defendant, by pre available senting must evidence about which he Judge (concurring): HAYS, Circuit gravest doubts, have had the ais lies this case area in which that fair denied to this defendant and one and difficult area delicate proc requirement ness which is a of due to exceed be careful which we should ess. the limits еstablished heed to take well Court. would do warning in of Mr. Justice White’s Maryland, (1963) (con- 1194, 1199, 10

curring opinion): * * * con- cast in “I rule broad form a stitutional Instead, discovery. I criminal INDUSTRIES, INC., Plaintiff- task, DYMO at least leave Appellant, legisla- rule-making now, full after consideration tive bench, by legislators, TAPEPRINTER, INC., bar.” Defendant- ‍‌​‌​​​‌​​​‌‌‌​​‌‌​​‌​​‌‌​​‌‌​‌​‌‌​‌​​​‌‌​​​​‌‌‌‌‍Appellee. aspects However, are No. 18629. bring present which seem to me scоpe rules it within Court of United States have been laid down. Ninth Circuit. prosecution must have aware 6, 1964. Jan. securing difficulty coun- defendant’s assigned counsel and of fact that sel prepare the a week which prosecutor must have defense.

known that defense counsel was unaware eyewit- the existence

nesses whose would have been cir- so vital to the defense. these cumstances failure reveal the exist- ence can be сonsidered equivalent suppression. light directly In the conflict- ing Colosantis, statements strongest reasons questioning reliability of the two upon whom he called to tes- tify not, the trial. he could While course, know certain that mistaken, was false did know of the of contradic- existence tory grave evidence which cast doubt validity of the evidence he chose present. allowing Instead of himself

Case Details

Case Name: United States of America Ex Rel. Thomas Meers, Relator-Appellee v. Walter H. Wilkins, Warden of Attica State Prison, Attica, New York

Court Name: Court of Appeals for the Second Circuit

Date Published: Jan 6, 1964

Citation: 326 F.2d 135

Docket Number: 28178_1

Court Abbreviation: 2d Cir.