*1 H55 it clear that the stan We think is abuse of discretion. DAYE,

dard for review Petitioner-Appellant, William 1299, Zannino, United States v. 468 F.2d denied, 1972), (1st 1303 cert. 410 U.S. 1419, 954, (1973). 35 L.Ed.2d 687 93 S.Ct. ATTORNEY GENERAL OF the STATE if, however, accept appel we Eugene Even were to OF NEW Le- YORK S. argument require somehow the Fevre, lants’ Superintendent, Clinton Correc- applied, ments of 28 2255 an eviden U.S.C. Facility, Respondents-Appellees. tional tiary hearing would not be mandated. 906, No. Docket 80-2292. upon the claim is based facts with [I]f court, through review of which trial Appeals, United States Court of trial, fa- the record or is observation Second Circuit. miliar, may findings the court make with- and, hearing, an out additional is Argued 20, March 1981. findings gener- court case for 28, Decided Oct. 1981. findings ally, those will not be overturned they clearly unless are erroneous. DiCarlo,

United States v. 575 F.2d 954- (1st Cir.), denied, cert. 439 U.S. 99 (1978).

S.Ct. L.Ed.2d just court district finished forty-six day jury trial at which Ciulla principal witness. It the news

paper evidentiary article it. An before

hearing would not have increased the grasp

court’s of the facts and the issues. and,

We have read the article based knowledge

what is now intimate an transcript, agree with the Government

that it does not to show show tend

Ciulla lied on the witness stand. At it best impeachment

would have minimal value.

It was neither an abuse of discretion nor

clearly erroneous for the district court to

deny the motions for a new trial without

evidentiary hearing.

CONCLUSION objec

We have all of considered the other by appellants

tions raised do not feel they merit discussion. “A defendant perfect to a

entitled fair but not a States,

one.” Lutwak v. United 344 U.S.

604, 619, 481, 490, S.Ct. L.Ed. 593

(1953). Winter,

The convictions of Howard T. Martorano, Goldenberg,

James Melvin

Elliot Paul Price are affirmed.

The convictions of DeMetri James

Charles DeMetri are reversed.

1156 appeal

leave to to the New York Court of Appeals was denied. determining Daye whether had ex- remedies, Judge

hausted state court Pollack Daye’s Appellate examined brief in the Di- Twitty Smith, 325, vision. See v. 614 F.2d (2d 1979). 331-32 n.7 Cir. District Legal Phylis Bamberger, The Skloot Aid acknowledged Court made Unit, Society, Federal Defender Services express no reference to a denial of federal City, petitioner-appellant. New for York rights constitutional nor cited federal Feinman, Meredith Anne Asst. Dist. But, noted, Judge cases. Pollack the state Atty., (Robert City Morgan- New M. York court repeatedly brief had argued that the thau, Atty. County, Dist. New York Nor- judge’s questioning ‘deprived the de- Atty., Barclay, man Asst. Dist. New York deprived fendant of a fair trial” and him of City, brief), on for respondents-appel- right his “fundamental to a trial.” fair lees. District Court concluded these refer- ences must Appellate have alerted the NEWMAN, Divi- Before LUMBARD Cir sion to the METZNER,* unstated basis of claim— Judges, cuit District that he impar- had been denied a Judge. fair and tial trial rights violation of secured NEWMAN, Judge: Circuit the Sixth and Fourteenth Amendments. Daye appeals judgment Judge William from a Twitty Smith, Pollack relied on v. Court supra, 332, District for the Southern Dis- 614 F.2d in which this Court (Milton Pollack, trict of Judge), New York ruled that Appellate reference in an Divi- dismissing petition merits his sion brief to lack of “effective assistance of corpus challenging habeas validity counsel” purposes sufficed for of exhaustion murder, his state court conviction for rob- to tender implicit state court an bery, and related crimes. We affirm the claim that the defendant had been denied prejudice solely dismissal without on the Sixth Amendment “to have the ground that state court remedies have not Assistance of Counsel for his defense.” 2254(b) been exhausted. 28 (1976). merits, U.S.C. Turning to Judge § Pollack con- cluded that judge’s the state trial role had 26, was convicted on June 1976 af- been prejudicial “active” but not and that Court, ter a Supreme trial in the New the cross-examination of the accused in- (Burton Roberts, County York Judge), of volved no error of constitutional dimension. murder, murder, felony intentional and two robbery degree. counts of in the first This frequently Court has ruled that the was sentenced to concurrent terms of im- exhaustion requirement is not satisfied un prisonment years 20of to life on petitioner each mur- less the explicitly habeas refers der years conviction and 8V3to 25 on each to a federal constitutional standard in robbery appealed conviction. He Ap- presenting his claim to the state courts. Division, pellate Department, First alleging Fogg, Wilson v. (2d 1978); 571 F.2d 91 Cir. primarily the trial toff, excessive (2d Cameron v. Fas 543 F.2d 971 Cir. prejudicial questioning 1976); had denied him Zelker, United States ex rel. Gibbs and, addition, a fair trial (2d that he 1974). 496 F.2d 991 Cir. espe We have improperly impeached been by evidence cially emphasized of a importance of identi prior conviction on which adju- fying he had been a claim as a federal constitutional youthful dicated a The Appellate offender. challenging claim when the conduct of a opinion, Division affirmed without judge. Fielding state court v. Le- * York, sitting by designation. The Honorable Charles M. Metzner of the Unit- trict of New ed States District Court for the Southern Dis-

H57 (2d 1977); panel, Fevre, continuing F.2d 1102 Cir. United unless until its 548 validi- Zelker, ex 465 F.2d ty rel. Nelson is properly upon States a rehearing reexamined denied, Cir.), (2d cert. U.S. en banc. Kremer v. See Chemical Con- (1972). 34 L.Ed.2d S.Ct. Corp., (2d struction 623 F.2d 1980). years ago applied we this strict Just two

approach corpus to exhaustion to a habeas surely argument There is room for fair petition indistinguishable Daye’s. from labeling requirement, whether a federal (2d Metz, v. F.2d 1052 Cir. Johnson 609 component exhausting a of state court rem 1979). Daye, sought Like Johnson habeas edies, serves either the interests comity of corpus of the excessive relief because and justice. or Evidence does not abound to prejudicial of intervention the state court indicate state op that courts welcome the and, judge, Daye, trial court like his state give portunity to renewed to consideration briefs, express which made no mention of a criminal conviction after the “federal” Amendments, or Fourteenth re- Sixth nature of a claim has been explicitly identi impartial of ferred to the denial a fair and fied. Nor is there much reason to believe trial and characterized a fair trial as a (here, that the articulation of facts exces judicial proc- fundamental element of the sive prejudicial and questioning) court Though ess. the District Court in Johnson (here, consequence of denial a fair im require- had concluded that the exhaustion partial trial) are inadequate to afford state petitioner ment had been met that courts, fully aware of their constitutional merits, was entitled to relief on the this responsibilities, a opportunity fair to decide reversed, ruling Court that Johnson not whether a conviction accords with constitu presented a federal claim constitutional requirements. tional standpoint From though the state courts. Even Johnson’s accused, obviously of the it is burdensome Appellate brief in the cited Division ten to be delayed years two or three in the courts, decisions of federal fair presentation may of what be a successful only claim be appeal was deemed to an challenge conviction, simply because of supervisory power state law or to the a pleading deficiency by his state court courts, appellate state and thus not Moreover, counsel. strict adherence to a claim,” Connor, “same v. Picard 404 U.S. labeling requirement, federal after Wain 270, 276, 509, 512, 92 S.Ct. 30 L.Ed.2d 438 72, 2497, Sykes, v. 433 97 U.S. S.Ct. 53 (1971), presenting that he feder- (1977), L.Ed.2d 594 placing runs the risk of Metz, supra, al courts. Johnson v. 609 F.2d permanently federal claim beyond the at 1054. possibility of in vindication event Smith, Twitty supra, may v. be viewed as pleading deficiency counsel’s state court slight requirement relaxation the strict procedural deemed a forfeiture. requires explicit that exhaustion federal appear adopted Some courts to have claim; labeling of a appellant’s state court half-way relaxing approach, exhaustion re however, decision, justify cannot over- quirements only when satisfied Metz, ruling ignoring supra. Johnson v. See, claim on unavailing. the merits is e. Twitty pointedly drew the distinction be- Bara, g., 651, Reese F.Supp. v. 479 653 tween the effective assistance of counsel (S.D.N.Y.1979); Wyrick, Boothe v. 452 claim in that case the fair claim in F.Supp. (W.D.Mo.1978); 1309 Wine Johnson, observing claim, the latter gar Department, F.Supp. Corrections 435 infrequent presentation because its as a (W.D.Mich.1977), 291 aff’d without claim, federal constitutional alert (6th opinion, 1978). F.2d 1281 simply state courts to its federal nature technique judicial While this conserves re by reference to denial of a fair trial. Twit- sources, Smith, analytically ty supra, it is unsound and cre F.2d at 332 n.8. recently With ates the Johnson so decided and ex- anomalous result the better plicitly distinguished prece- petitioner’s merits, Twitty, from its claim on the recognized by longer dential force must be him it it will take to have vindicated. disagreements with an ex- our Whatever F.Supp. (S.D.N.Y.1979). See also Sha- explicit' that entails requirement piro, haustion Corpus: Federal Habeas A Study in claim, obliged are Massachusetts, we labeling of a federal 87 Harv.L.Rev. prejudice, (1973). without judgment to affirm this exhaust of failure to state solely grounds on Applying the in exhaustion rule this case petition remedies, sug- and await a court creates two-year delay least a banc, rehearing en which we as- gesting disposition ultimate of the issue occasioned present. Daye will sume by a new proceedings round collateral dispo- Prompt federal courts. the state and concurring: METZNER, Judge, District sition of criminal is in matters the best to reach the preferred have I would much parties, justice interest of the the criminal appeal and affirmed the on this merits system society. problem I find no petition dismissing the court below adopting a rule which achieves this end in a *4 the merits. case where the defendant been properly has convicted. complete as to the matters The record is by petitioner. par- complained of however, must, I in concur the result argued the mer- fully ties have briefed and find, though even case, on the of facts presented argument was No issue or its. that the exhaustion rule in this circuit ex- before the the District that was not Court alts form over substance. The footnote in judgment, It is considered state courts. Smith, Twitty (2d 614 F.2d 332 n. 8 record, petitioner reviewing after 1979), Cir. distinguishing Metz, Johnson v. in deprived of a fair trial violation was not (2d 1979), 609 F.2d 1052 leaves the Fourteenth Amendments. of the and Sixth applicable decision in Johnson the law here. circumstances, the basis for the In such out, Judge As points Newman Johnson v. exhaustion rule nonexistent. doc- only Metz may be upon reexamined a judicial on the exercise of trine is bottomed rehearing en banc. created the friction when restraint to avoid upsets a state lower court court LUMBARD, a federal Circuit Judge (dissenting): system court conviction without the state Daye dissent. William claims that he opportunity being given correct first was denied a fair trial reason of the trial errors. alleged own constitutional Preis- its judge’s constant interruption partici- of and 475, 490, Rodriguez, er v. 411 U.S. 93 S.Ct. pation in his trial for murder. The record 1827, 1836, (1973). 36 L.Ed.2d indicates raised this claim in his However, possibility there is no of of- Moreover, state appeals. court crystal it is fending the court when federal review state clear that the claim in made the state judgment of conviction un- leaves courts Daye’s asserted violation of consti- Furthermore, petitioner, rep- touched. rights by tutional reason of the state’s fail- counsel, obviously here able as- resented ure give Daye a fair trial. We should remedies have been ex- sumes state pass on the merits of claim as did only relief be hausted and that can obtained Judge Pollack in the district court. As a appeal in the federal court. The brief of, review the record that Daye’s shows holding does not take issue of the founded, claim is grant well I would been court below that exhaustion has satis- petition for writ corpus. of habeas merits, only It addresses the and we fied. appeal. reviewed the merits on this have I.

Consequently, in a case where the federal indictment, five-count the state charged a federal Daye court cannot find constitutional with the robbery armed of infirmity proceedings state the E court af- & D Luncheonette at 144th Street and ter full submission of the issue review Seventh Avenue on 19,1974, March record, petition of the should be dis- with the killing of the cook, restaurant’s Bara, missed on the merits. Reese Stanback, Isaac in the course of the rob- identification, Daye’s place hand was still bery. years His trial took over two bleed- later, ing finger convicted him from the wound he suffered in felony of murder, murder, robbery, Daye exactly intentional and two dressed counts restaurant, degree as he had been in the with one robbery. of first armed The trial Roberts, exception corduroy jacket judge, black Honorable Burton B.’ —the missing. And Detective Daye sentenced to concurrent indetermi- Leotta found this jacket years apartment in a fourth floor nate terms of from 20 at about life for the eight murder the same time that Detective spied convictions and to and one- Grant years Daye Moreover, robbery. drainpipe. third to 25 on the outside gun, a wallet taken from one trial, produced At the state fourteen wit- patrons, paper in bag cash in a $36 nesses, including present six who were apartment were all found in a third floor the E & D Luncheonette when William building same within minutes of Daye They cook, entered. testified that the Daye’s Immediately Daye’s arrest. after Stanback, Isaac telephone was on the at the arrest, a bullet which had been fired from rear Daye of the luncheonette. ordered Daye’s bleeding removed from get phone Stanback to off the and when he finger. Finally, in addition to the above so, did not immediately do put an testimony, eyewitness-victims four pistol automatic to Stanback’s side and robbery positively identified as their through fired it. The bullet went Stanback assailant. lodged ring finger left *5 defense, In his Daye testified that he was Daye hand. then took Stanback’s wallet bystander an innocent and himself a victim. patrons and collected from all the He said another man committed the rob- employees and of the restaurant. In the bery and fired the bullet that killed Stan- robbery, Daye gun course of the aimed his back Daye’s and hit hand. He said he ran Dorothy Taylor, a co-owner of the lunch- away because he had been arrested before eonette, pulled trigger; fortunate- being present when a crime had taken ly, later, gun did not fire. Moments place and he was police. scared of the On Daye pistol patron’s held the to a head and his testimony Daye direct pre- admitted to squeeze tried to off a round and once petit vious convictions for larceny and rob- gun jammed. bery. $360, Having Daye collected about ran Daye’s murder, conviction for intentional Gibbs, out. Juanita patrons one of the who felony murder and two counts of first de- robbed, had been followed him and saw him gree robbery was unanimously affirmed nearby apartment enter a building at 160 opinion without by Appellate Division West 142nd police Street. She directed the 1979, People Daye, October v. 72 A.D.2d building they began where to search 669, 955, 421 N.Y.S.2d appeal and leave to suspect. for the Detective Grant went to month, was the following denied 48 N.Y.2d Daye the roof and from there he saw climb 978, 1034, 425 N.Y.S.2d 401 N.E.2d 421. out of a third floor window and down a Daye’s corpus petition habeas was filed in drainpipe. downstairs, Grant ran broke April, 1980, Southern District in alleg- through a hall landing, window on the ing, alia, inter that he deprived had been pulled Daye window, through the and ar- judge’s fair trial the trial repeated robbery victims, rested him. One of the interruptions interrogations of witness- Miller, waiting David behind Grant on es. The district Daye court held first that landing, immediately and he identified had exhausted his state remedies and so Daye as the man who had terrorized the relief, was entitled to seek habeas restaurant a few minutes earlier. second that on the merits was not Although Daye had neither the opinion nor entitled to the writ. In his of June any money 6, 1980, arrested, Judge on him when he was Pollack found that the trial tying extensive, evidence him to the questioning, although crime overwhelming. prejudicial, Besides on-the-spot merely Miller’s was not but “aimed at

1160 clarifying

bringing out or the facts.” He the principle that fundamental, there is a noted that on several occasions the trial right trial, constitutional to fair untainted jurors ques- instructed the that his judicial partiality: Sheppard Maxwell, v. expression taken tions were not to be as an 333, 350-51, 384 U.S. 1507, 1515-16, 86 S.Ct. opinion part. of an on his After the district (1966); Texas, 16 600 L.Ed.2d Estes v. 381 probable cause, court denied certificate of 532, 540-41, 1628, 1631-32, U.S. 85 S.Ct. 14 granted assigned this court a certificate and (1965); L.Ed.2d 543 Louisiana, Turner v. counsel. 466, 472, 379 549, 546, U.S. 85 S.Ct. 13 (1965); Oliver, L.Ed.2d 424 and In re 333 agree Daye’s with the district court that 278, 257, 499, 510, U.S. 68 S.Ct. 92 L.Ed. 682 claim received unfair (1948). Moreover, prior ap the numerous rights violation his constitutional peals that the New York courts have heard appeal raised his to the Appellate Divi- claiming Judge deprived Roberts had sion petitioner thereby ex- through defendant of a fair trial exces hausted his remedies in the state courts. questioning1 sive undoubtedly alerted the argued Daye’s repeatedly appeal brief Appellate Division here to the nature of “deprived judge’s questioning the trial Daye’s special claims. No such circum right of his to a fair trial.” The defendant stance was shown to exist in Johnson. recognized New courts have York Therefore, I do not find Johnson an obstacle merely rests on constitutional and not to federal court review. see, Mees, grounds, g., e. People state law 997, 998, 420 47 N.Y.2d N.Y.S.2d 394 agree, however, Judge cannot Pol- Jesus, (1979); People N.E.2d 283 v. De 42 lack’s conclusion that had a fair trial. 519, 520, 523-24, N.Y.2d 399 N.Y.S.2d It is undisputed that the trial contin- Crimmins, (1977); People 752 N.E.2d ually thrust himself into the examination of 230, 237-38, N.Y.2d N.Y.S.2d witnesses. The issue whether con- (1975), citation N.E.2d fined himself to the ambigu- clarification of of such cases was sufficient to alert ities or whether he abandoned role his Appellate Division of federal law claims. judge for that of prosecuting attorney. A *6 Smith, 325, Twitty v. 614 See F.2d 332-22 close testimony examination of the of the (2d 1979). Cir. witnesses, state’s particularly the four vic- Daye, tims who identified and of the testi- Metz, (2d v. 609 F.2d Johnson 1052 mony Daye himself, leaves no doubt that 1979), controlling by Judge cited as here judge the participated trial in such man- Newman, Johnson, distinguishable. is In ner that the must have concluded that primary support “the line of cases cited the court was on the prosecution side of the prejudicial were state cases in which con- and believed the defendant guilty. to be by judges by duct trial resulted in reversal appellate the courts of the state as a matter II. supervisory pow- of state law or their under Here, leading ers.” F.2d at 1054. the WILLIAM WRIGHT by Daye case Appellate cited to the Divi- sion, Jesus, 519, People v. De Wright N.Y.2d 399 William testified that on March 196, 19, (1977), 1974, N.Y.S.2d 369 N.E.2d 752 rested he was at the E & D Luncheon- Jesus, ette, on both federal and state law. In De sitting booth, in the last facing the Appeals the Court of a criminal reversed door. eating, someone, While was whom prejudicial by Daye, conviction conduct the later identified as came use following telephone. judge, citing United At point, judge the trial Supreme support interrupted prosecutor cases in States Court to elicit from Appellate appeal 1. Prior Divi- People Tartaglia, on three occasions. sion, Judge Roberts been reversed for ex- N.Y.2d (1974); 364 N.Y.S.2d 324 N.E.2d 368 cessive the conduct of the People Kelly, interference in 65 A.D.2d Mr. Russo using phone Your Wright [defense counsel]: Stanback Honor, excuse me. Wright Stanback. knew and The Court: I it. struck Wright prosecutor to nar- then asked Mr. application. Russo: I have Wright what stated rate had occurred. The Court: What? that, lunch, eating his began when he Mr. Russo: Based the Court’s state- sitting said some- with whom he friend ment. thing Wright to him. turned around and a The Court: I said “a man.” I struck again interrupted gun judge went off. The what I said. Wright he had seen asked whether Mr. make my application Russo: I’ll gun, this man was man with a where later. anyone with the man. whether right. Court: All Attorney The Assistant District resumed You say a gun man with a was stand- using telephone. asked who was ing him, right? behind “Ike,” Wright replied, took When again. Right. over Witness: record should indicate Ike. right right hand —did hand you saw this So saw Ike and man? gun? have a Yes, did. Right. gun? had a Court: The man hand Court: The Yes, sir. right side, against right? and it was both They The Court: were tele- Right. phone? the left hand was as And it, have was on left front? right. The Court: All The Witness: Correct. Then, when the asked about the left shoulder Over positions people relative two fingers pointing on the left front with the standing telephone, near downward on side of the the left individ- again: came phone ual who was at the who[m] Q Now, [by prosecutor]. what I’d have Ike. identified as do, permis- like the Court’s with Right. sion, by demonstrating indicate right. standing Court: All the court officer next standing questioning how Ike was and the man was further prosecutor, standing. Wright testified that announced a stick-up Wright attempted telephone that the The Court: Assume to secret *7 some of money against is Use the wall in his that wall. as the shoe. When de- fense telephone objected wall Wright’s on which the located. to saying what do, he trying to the court (Indicat- [by Wright]. A Like this. broke in. ing-) The words, Court: He looked your The Ike the Court: In other di- rection? the standing by cook was wall? Yes, The Right.

The Witness: Witness: he did. The The Court: defendant —with- After he your looked in gun. direction, drawn. A man with what he do say? Ellis, (1978); People N.Y.S.2d 730 v. deprive 62 A.D.2d it did not the defendant of a fair 469, (1978). then, Biondolillo, People 610, 404 N.Y.S.2d 862 Since he trial. 63 v. A.D.2d 404 People (1978); People Ohlstein, has been reversed twice more. v. Yut N.Y.S.2d 864 v. 54 Tom, 44, 896, 109, Wai (1976); 53 People N.Y.2d 439 N.Y.S.2d 422 A.D.2d 860 387 N.Y.S.2d v. Mees, (1981); People Williams, N.E.2d 556 997, 47 N.Y.2d A.D.2d N.Y.S.2d 86 (1979). Kee, (1976); People 420 N.Y.S.2d 394 N.E.2d 283 45 A.D.2d cases, Appellate (1974). four other the Division has N.Y.S.2d 81 conduct, Judge criticized Roberts’s but found pointed gun He whether anything The Witness: the the robber said about his said, you you me I’ll hey, kill if move. hand. said, just trying get money. I’m the Well, during A. Yeah. sometime put money on the table and he came said, robbery my he all made me hurt got

back and it. something that. . hand or like . . put money all Court: You said Court: He what? the table? The Witness: He said made me Yes, sir. going hurt hand and I’m to kill all of The Court: How much was it? you. The Witness: $250. prosecutor then asked appel- about Wright When testified that collect- lant’s conversation with others in the lunch- money patrons, ed from the restaurant eonette, again spoke the court up: interrupted ask, always court “Did he What was [The Prosecutor]: [the thief] gun?”, eliciting exhibit the an affirmative doing gun]? with [the response. A. pointing He was people, just it at Wright then testified that an old man pointing like this. (Indicating.) entered sustaining the luncheonette. After Indicating a movement of objection speculative to a bit of testimo- left, the hand to right. left ny, the court asked: Yes, that’s correct. . . . man What did old do? he Did have [The Prosecutor]: Well, sit down in him lady counter, words with the behind the pounded a chair and he him in head the man who this'gun? gun with butt of the two three Yes, A. he did. maybe. times say What did he to her? You saw the man with the The Court: Do know her name? gun elderly hit the man on head No, I don’t. I think it gun? Dorothy. I think. Exactly. Witness: The Court: it Dorothy? You think was .After money a few more collected' or whatever The Witness: I think it was. said, well, up picking he was and then he The Court: Is she one of the owners of it, go, that’s let’s and he was out door. place?

The Court: He went out same The Witness: She was a waitress. door? She a waitress? door, yes. The Witness: The same Right. just pointed said, gun at Leading give her and to the sidewalk? me that going you. or I’m to kill The Witness: Yes. That’s correct. Q [by prosecutor]. Approximate- Then, after the asked his first ly many people how were inside the robbery, question about the used in the luncheonette; do remember? court took over: people. From 12 Now, you be would [The Prosecutor]: including yourself? Court: Is that gun; able to what did the describe gun look like? including person Court: And *8 gun plated A. The is a nickle .32 auto- gun with the as well? matic black handles. Yeah, say. The Witness: I’d That’s an plated? The Court: Nickle approximation. The .32 Witness: automatic. people The Court: About or [sic] The Black? there, including people worked that The Witness: handles were black. deceased, gun person with the Next, yourself, elicited correct? rob- bleeding. He then asked ber’s hand Yes. see you The Court: Did what he did Daye as the identified Wright then After money? with the judge intervened: gun, the with the

man Wright, I Q put pocket. Mr. it [by prosecutor]. The Witness: He in his around this courtroom you jacket look put pocket. want I think it in able to see that or you’re tell me if paper money? The Court: Was it you see the court- identify that who[m] The Witness: Yes. room? cross-examination, defense On counsel A. Yes. that, years elicited than two more out, please? him Q. you point Will trial, crime day between the of the Indicating the defendant? The Court: Wright appellant. had had no observation Yes, I’ll concede that the Mr. Russo: The court intervened: the defendant who witness has indicated make you The Court: Can an identifi- sitting in the well only man is the black cation? at the counsel table! of the courtroom The Witness: Could make an identifi- that; Any question about The Court: cation? is that the man? object Mr. Russo: question. to that No doubt. The Court: Overruled. your mind? doubt in No The Court: Can make an identification of the No. person who killed Isaac Stanback in the inquired whether prosecutor then luncheonette? accompanied, the court Daye was alone up questioning: again took person is the And who during the time that this de- And killed him? conducting robbery af- fendant was guy right Witness: This here. Stanback, was there ter he shot Issac Indicating the defendant. robbery, assisting him in the anybody else Mr. Objection noted, Russo: your as far as know. Honor. knowledge. Not to Later, inquired Wright wheth- only one with a He was The Court: er he approximate knew of the locations in saw? the courtroom of partici- the various trial pants. purpose His towas show that correct. The Witness: That’s witness identified because only taking one The Court: He was sitting seat, in the defendant’s and not be- patrons in the money from the various cause the witness remembered Daye. restaurant? Again, judge interrupted counsel’s ex- correct. Witness: That’s amination: prosecutor’s inquiry, response Court: Do know the man who employee of the restau- Wright that an said did the shooting in the restaurant? tray money. gave Daye a rant Yes, sir. rested, judge again but prosecutor then it? Who is up: followed guy sitting Witness: This exactly tell us can The Court: You here. (Indicating.) what he said. Indicating the defendant. “Bitch, said, give me Defense counsel once tried more to dis- money.” credit identification, this witness’s but At- Assistant District Mr. Kelton [the frustrated court’s inter- questions. no further torney]: I have vention: out he take The Court: Did Q [by defense You knew counsel]. tray? look, where [in courtroom] *9 Yes, not? he did. it Because I knew was Objection. Kelton: Asked and an- Mr. him. swered. sitting [by the If he was A witness]. Honor, Mr. Russo: Your move back of the courtroom it would be

in the I have no questions. mistrial. further thing. the same prosecutor]: You The Court [to JUANITA GIBBS objection have no to that? Next, Gibbs, who, the state called Juanita No, Kelton: not to that. Mr. relating in addition to details your objec- Court: You withdraw shooting robbery of Stanback and the tion? gunpoint by Daye, following Daye told of Mr. Kelton: Yes. advising police Daye’s flight into right. Court: All 160 West 142nd Street. Q [by Wright, defense Mr. counsel]. only negro sitting male he was in the that, Gibbs testified after she heard the you well of the courtroom when made shot, Daye say going she heard that he was identification; your isn’t that correct? everyone restaurant, to kill that he fingers had shot own and that he want- I don’t whether he know money. ed When she testified that is, what the well of the courtroom knows waving kept gun around, judge noted Mr. Russo. “indicating a right.” movement left and This, [by Mr. Q defense counsel]. then asked Gibbs about the the well courtroom. Wright, clothing by appellant, worn and the court (Indicating.) intervened: Yes. A. [byA He had on a black cordu- Gibbs]. negro only he And was the male coat, roy jacket. short coat on sitting in the well of the courtroom The Court: Short coat? you your when identifica- Friday made long The Witness: Yeah. Not a coat. tion, that correct? isn’t Up to the waist? That’s correct. The Witness: Yes. A corduroy. black you look when Q. And knew where to weapon, People’s Show Exhibit Gibbs you around the Mr. Kelton asked to look crime, identified it as the used in the courtroom, isn’t that correct? explained came af- forward you Court: Did where to know taking money ter from patrons sitting look, look? Did know where in the rear booths. The court her re- to look at a table or to whether certain confirm. “You saw him take some spectators at the look in the or to look from the last booth in the back?” there; or to did box look over saying appellant kept Gibbs testified that where to know look? everyone. Emphasis that he kill should Honor, when I The Witness: Your placed testimony by in- the court’s in, when I that’s the came saw I knew quiry, kept repeating “He it?” Why man. should I look all around that, explained during Gibbs then courtroom. I knew where was. robbery, a man came into the restaurant Why it was did know appellant and that hit him. in- him? terrupted to ask: “What did he hit [the Honor, object Russo: Mr. Your happened? with? .. . What What man] . . . Court’s. objection did the man do?” After counsel’s Overruled, counsel. overruled, continued: any- did know it him based on How Overruled. if What sitting thing gun? he was there or because did the fact do with the What gun? him? knew he do with *10 answering The Court: She’s trigger pulled He Witness: The fast. fire. wouldn’t and it objection. my Note happened? [defense counsel]: What The answering enough Not fast The Court: Nothing happened. Witness: that I can’t catch it. a click? you hear Did The Court: Yes, I did. Witness: When the focused on Stanback, shooting did the court took many occasions howOn The Court: over: that click? you hear I can Only once

The Witness: Gibbs, Q. prosecutor]. [by the Mrs. remember. shot the you said that after the defendant jury what me and the Tell The Court: cook, Stanback, Mr. Mr. fell Stanback brought it click. What occasioned someplace. happened? about? What He doorway right A. fell had realized After he The Witness: trying go over—he was back to the hurt himself— it, kitchen but he didn’t make so he fell Objection. Mr. Russo: steps. between the other very upset. got —He The Witness: youDo see the area indicating the that be Objection. I ask Russo: Mr. doorway doorway or where the would be stricken. in the luncheonette? it. Strike The Court: A. Yes. tell Just happened. us what Just tell doorway to the kitch- The Court: The and did. what he said us en? said, kill “I should He Witness: Yes, right in here. The Witness: my here. I shot every mother fucker Indicating area which finger.” fingers off. I shot up, by you which means which is marked happened? what Then The Court: leading step landing indicates a did he do? Then what kitch- which in turn leads to the the door the aisle came down He The Witness: en? very he was gun, and

there with Right. hurting himself. upset about where Q [by prosecutor]. Is that Objection. Russo: Mr. fell? Mr. Stanback Overruled. The Court: where he fell. A. That’s landing? he do? Right What did on the The Court: trigger. pulled the steps. Witness: Right Witness: across They steps like this. a click? had little you heard And The Court: right across the The Court: He landed Yes. steps? the witness asked prosecutor next Right across it. when police officers had told what she Face— The Court: to the restaurant. returned she The Witness: Face down. he wanted if asked counsel impatiently pointing where? object: The Court: Head that— I told them To the floor. you ob- Do moment. One the kitch- Was it toward ject? en— Objection. get that close. The Witness: I didn’t counsel]:

[defense just object you, Mr. could see— I can’t just lying on the Russo. The Court: He was answering step. ground over the She’s counsel]: [defense quite Right. fast. *11 pants cross-examination, burgundy with a sought stripe, and

On to sneakers. He reliability appellant’s described impeach the of Gibbs’s entrance identifica- robber, shooting of Daye inquired tion of as the Stanback. As Miller was recit- ing given money, description police what she demands the years intervened: previously. the time of the crime two Counsel asked: . pointed . . he Then [The witness]:

Q. you say anything Did weapon you about wheth- to her and could see fin- his wearing glasses? ger er he was moving, trying squeeze off a round pull the trigger. No, did not. That I was not asked. Q. It The Court: Did asked? hear noise? sir, A. No. The Witness: No there was no noise. description gave— The that say, Did him hear “I’ll judge interrupted in The the middle of blow away” phrase is that or is question: counsel’s that the sum and of substance what he The Court: Was the man saw in said? wearing glasses? the restaurant In Witness: essence. I re- can’t The Witness: Not that I can remem- peat verbatim, what he it’s said been two ber. years. Having Daye testified that she followed just giving Court: You’re us what restaurant, of out Gibbs was asked on general. he in said whether, redirect examination as she fol- Daye, anything saw his lowed she hand. The Court: Did he use obscenities pistol, testified that she saw a She at all? Attorney Assistant District terminated his point, yes, espe- The Witness: At one nonetheless, judge, examination. con- cially hand, when my said “I I he hurt questioning: tinued the every just should shoot . . . I go on? ”—do pistol The Court: You saw The Court: You can use the words. walking hand he was toward 142nd my Witness: hurt hand. Street? every shoot should mother fucker in here. Yes, The Witness: Your Honor. hand, You’ve made hurt me I should walking? How he every shoot mother fucker in here. running. The Witness: He was inquired then of Miller running? The Court: He was anyone appellant whether assisted in the The Witness: Uh huh. robbery. replied Miller there was no one else judge began active. Then the The Court: You’re excused. question the witness: point, jurors’ At that pres- and out Anybody collecting else ence, objected defense counsel to smile on money? response face in one No, sir, not that I saw. answers, requested Gibbs’s a mistrial. Anybody else exhibit smiling denied both that he was weapon? application; nonetheless he in- No, sir, not that I saw. jurors opinion structed the had no Anybody giving case. else com- place

mands on the table? No, DAVID sir. MILLER David Miller Daye identified and describ- Miller then testified about search clothing ed the police nearby apartment building. wore at in a luncheonette —a corduroy jacket, black police clip said found a from a .32 green sweater, turtleneck grey, weapon caliber hallway double-knit automatic in the pants The Court: And the was the third floor. what he believed burgundy stripes? floor, recog- apartment next Miller on the young Yes, nized a man had seen sir. put restaurant. He recalled The Court: And the sneakers? man’s young

his hand on the shoulder Yes, sir. laughed. testi- young He also man cross-examination, On counsel tried to es- policeman fied that looked out “one tablish the amount of which elapsed time they window and found the defendant *12 shooting between the and Miller’s arrival at hanging out the window.” Defense apartment building. Although Miller objected, ques- and the took over the question, understood counsel’s the court in- tioning: terrupted began his answer and its own you The Court: Did see this? examination: pull The I saw them man Witness: The Court: the shooting— Between in. Russo shooting Mr. The and the [sic]: police The saw Court: You officers building. time I arrived at the by a window. talking The Court: You are not about police The Witness: saw the officers when defendant left restaurant. by a window. talking You are about the time of the you police The Court: What did see the shooting— officers do? time The Witness: And the we arrived police The Then I Witness: saw the building. at the pull officers reach down and man building. The Court: Arrived at bodily back in window. Q [by defense Arrived at counsel]. The Court: He was outside the window building, right? you pull somebody saw him back you time From the first window; from outside the is that correct? telephone— observed the shot at the Yes. The Witness: The Witness: Until reached build- Who’s you the man saw ing itself. pull? them The Court: Yes. sitting

The Witness: defendant say Witness: I would half an (Indicating.) over there. hour. Q [by Okay. defense prosecutor requested

When the a moment counsel]. notes, “just to check his because he long how man And was the with the finished,” about the court once con- you restaurant recall? questioning: tinued ten, Approximately A. fifteen min- then, wearing The Court: What was he utes, I believe. do recall? Now, woman called thing, The same other Witness: Blondie. than the He coat. didn’t have on coat. Yes, sir. The Court: He didn’t have black— The Court: So it be some would fifteen corduroy Black Witness: coat. minutes after the defendant left the res- sweater, had on the turtle neck the trou- taurant at the building? arrived sneakers, yes. sers and the was thirty If it from minutes the time everything

The Court: He had on but shooting— of corduroy the black coat? The Witness: Yes. Yes, sir. The Court: That’s when first ob- served defendant? green

The Court: He had on the turtle Right. neck sweater— He was in Green sweat- restaurant turtle neck some fifteen minutes thereafter and er. building thirty (Exhibit witness.) some minutes shown were at the shooting— after the exactly A. That looks like it. approximately fifteen Witness: So that, exactly It looks like minutes. you say? Fifteen minutes after the Yes, it looks like it. defendant left the restaurant? Yes, sir. began inquiry about two might others who acting have been cross-examination, during Later Miller’s Daye. objected Counsel to the admission of interrupted to ask the witness the court possibly hearsay testimony, and the court one had been the at which which window took over questioning: began appellant found. When counsel question, ask his next the witness asked they . . . anything; Did [The do Court] answer, permission clarify they talk to the defendant? said, “Certainly”. Shortly, thereaft- er, judge interrupted again ques- ask *13 The Court: Did the defendant answer subject. tions on this what they say? had to DOROTHY TAYLOR The Witness: No. The they

Dorothy Taylor, working spoke who After at to the defendant did the anything defendant co-owner, do that she restaurant testified response they what say; just had to bang saw heard loud lean Stanback yes or no? against the air-conditioner. observed She The Witness: identified, No. Daye, whom she and saw him pocket The reach into Stanback’s Court: He did not. remove Well, his wallet. next demanded all the picking he started money, pull trigger up money and started to of his on the counter. asked, judge gun. pulled “When he right. they Court: All What did trigger, any say prior did hear noise?” to the picking time he started counter; up money on the what did Taylor then asked about they say to him? gun, judge took over: him, said, They they told Q [by prosecutor]. re- Do man, anybody, just don’t kill get the mon- gun member what the looked like? just ey, money. take the very shiny A. was a viv- gun. It It’s picked up The Court: And he the mon- idly kept looking mind at because ey? gun. guess shiny it. It was a about (Indicating.) that size. going permit The Court: I’m it. Indicating six, The Court: about seven cross-examination, On sought inches. Taylor’s test memory concerning the two Now, after Mr. Stanback was shot boys about whom given she had testimony. Mr. defendant see what interrupted counsel: Stanback did or where he went? Q [by defense You have no counsel]. “shiny” By do mean it recollection as to what either of them was plated? was sort of like chrome or nickle wearing? like Witness: Yes. It was silver. No, I don’t. Like silver. The Court: Did either one of them point you, at Taylor? The Witness: Yeah. Mrs. mean Witness: You of the two? Q [by prosecutor]. Can look boys. The Court: Of those two please, People’s at this exhibit Mrs. No, no, they Taylor? didn’t. Addison, pick up any Rodney Either one Police officer on radio The Court: hospital the counter? who took patrol, off Stanback arrival; shortly after where died pick up I didn’t see them testimony interrupted the court on 8 money, no. pages. of 14 threat- one of them The Court: Either you? en to kill Espita, was a waitress at Beatrice No. testimony pages, Her covers 24 restaurant. question. Next 20 of which record the inter- May ruptions. Russo: I continue? Mr. Yes. Ince, part present owner who was Edna during shooting. pages 6 of the 9 attempted to show that On

Defense counsel concerning testimony judge interrupted. identification Taylor’s testimony her prior her faulty, asked her about Bogolan, testify Dr. Lorenzo was called to Taylor testified that she made statements. that he removed a bullet from bro- to the detective and described a statement finger Metropolitan Hospital ken man, “ashy,” as a albeit the robber black by police which was taken on March Afro,” wearing a black a “modem judge interrupted ques- 19th. jacket. leather said that the She robber did Bogolan tioned Dr. pages on 21 of the 23 big Afro, have a but “similar to what recording his evidence. On cross-examina- wearing he’s emphasize now.” As if to tion, counsel, trying to establish an intoxi- point, asked: “Similar to what defense, cation offered into evidence a hos- you see on the defendant’s head at pital report in admitting which the doctor *14 time?” diagnosed Daye suffering drug from a Taylor After counsel asked whether had finger overdose as well as a wound. The participated any pretrial in by eliciting identification court undermined that defense procedures, Bogolan from Dr. response took over: that “that diagnosis was unwarranted.” The court say Is it fair to that since March then underlined the weakness of the de- the first time that have ever theory: fense person you say viewed the who shot and Unjustified and not in ac- killed Isaac in Stanback is this courtroom your cord with observation and examina- today? patient Daye? tion of the William time, yes. The Witness: This is the first true. That’s The Court: Are sure that the de- evidence, The Court: Do offer it in fendant whom see in this courtroom in event? you say is the individual shot Mr. Stan- I still offer that lim- [defense counsel]: gun point back and who robbed at at portion. ited the counter? por- The Court: You offer limited forget The Witness: I could never worth, tion for what it’s it’s received. they way pulled trig- face because he Collins, Police officer police Daniel on ger kept trying on stomach. He to patrol responded radio to call a and subse- pull trigger. forget I could never quently went to 160 West 142nd Street that face. gun clip where he found a which contained Ten other witnesses called the state bullet, Daye emerge a and later saw from a gamut also ran the curiosity of the window and lower himself down a drain- throughout testimony: their pipe. pages The 30 of minutes of his testi- mony judicial participation show on 20 Barry, patrolman pho- Clemens J. a who pages. tographed day the luncheonette the of the shooting, questioned was on 5 of the 6 spent Benedetto Leotta found a Detective pages testimony. of his shell .32 from a caliber automatic at hand,

luncheonette, telephone, pain in began cursing. his near given gun passed a apartment man every- he him and ordered police pick up officer put wallet that he saw to body their Ap- on table. cross-examination, pellant placed counter, On he some on $40 from floor. Jimmy Tyrone cursing Flats and of pain said he saw Scott because in his hand. apartment and took them in a fourth floor Appellant explained that after the man custody, having they into been informed left appellant the"restaurant was afraid be- during the had been in the luncheonette previously cause had been arrested in the shooting. testimony covering 53 Leotta’s reaction, area. In ran a nearby build- subjected judicial pages was intervention and, ing when he police coming heard into pages. on 38 building, went on outside the window seeing told Allen Grant Detective sill. Daye climb a window. ran out down The court then took over the questioning pulled Daye through from the roof and and asked whether he Tyrone knew pages and handcuffed him. His 12 window Appellant Scott James Flats. said that joined testimony on he knew but see Scott did not him at the eight pages. permit- luncheonette. Counsel asked to be Simmons, George police Detective bal- his own ted conduct examination. expert, listics testified that the bullet re- judge participated repeatedly Daye’s finger from shell moved asking appellant, cross-examination him casing gun had been fired from found fifty-six questions prosecutor’s sixty. apartment, in the and also about the mal- He asked in the appellant where restaurant functioning tendency its arrived, sat and whether the food chal- jam. judge questioned witness lenged appellant as to whether he had testi- recording pages 15 of the 18 his evidence. down, fied he went to sit asked wheth- Baden, deputy Michael chief medical ex- er he had looked Mr. after he Stanback aminer, testified that of a Stanback died down, inquired long appellant fell how through bullet which went inches restaurant, and asked whether he pages chest. On of the 19 of his testimo- gun. seen the robber click the Defense ny overtly expressed curiosity. the court its *15 objected interroga- counsel to the court’s remaining witness was Odessa Ha- L. tion, judge and ques- the withdrew his last brother, gler the body who identified of her tion. Stanback, Isaac at the medical examiner’s questions later, Four judge interrupt- the testimony office. Her less two of than again inquire ed concerning appellant’s to pages only is the interrupted evidence not previous testimony that passed a man had judge.2 trial the by him in the restaurant. You pass by saw a man WILLIAM DAYE you? Appellant Daye William his testified on The Witness: Yes. denying any participation own behalf You standing were at [the crime. went to the E D& Luncheon- refrigerator]? ette and food at ordered the counter. He then went to the back of the restaurant to telephone Court: The is in of front telephone job. make a call to his Someone you, correct? using telephone, Daye the and turned area, yes. place to look sit down when a man brushed past him. He heard a shot, felt a ^[*] ^[*] ^[*] ^[*] ^[*] ^[*] 2. The evidence of two stipulated witnesses was entirety by judge. their the trial stipulations and these jury were read to the noticeably angry loud and in a and Court court you tell this Will the defendant about his questioned voice refrigera- standing by you’re if [the and, my opinion, location particular and then by you pass a man can how tor] as to this expressed disbelief witness’s telephone? at the the man shoot of aspects whereabouts and story and his and show Now, get off that stand testimony gave. this witness the be done. that can how permission asked defense counsel When HI. confer- for a sidebar the bench approach principle It is adversary a cardinal of our to be seat- ence, judge counsel directed system trial that the be conducted coun- Counsel exception.” “allowing ed, [him] judge sel and that should maintain record, to make that he wanted protested position at neutral all times. United States a note of “make him to judge told Brandt, v. (2d 196 F.2d 655-56 Cir. ordered the judge then once it.” 1952). jury is persuaded to be by the could have how someone to show defendant judgment evidence its own of the credi- a man by you and shot “passed witnesses; bility of the weight be how the Court telephone. Show given testimony jury’s judg- done.” kept ment is to free of opinion be which judge questions, After several more may judge have regarding relevant appellant had heard about what he asked evidence question or the ultimate guilt. of say, what he had seen in the man’s the man DeSisto, United States 289 F.2d hand, why appellant into the had run (2d 1961). Cir. It paramount is the of duty building. apartment Defense ob- judge only the trial impartial; be jected, judge but continued. Counsel judge must conduct the trial so that objection, continuing for a but the asked jurors will see impartial. that he is pursued judge questioning. his Before Hickman, United States 592 F.2d prosecutor, yielding the floor back to the 1979). (6th Any part failure on of judge story reaffirm judge the trial to conduct fairly the trial bystander was an innocent who had been questions raises fundamental of proc- due robbed, yet fled from the shot Obviously ess. all these well established police. principles apply special force to a trial complet- After re-direct examination was guilty where a verdict carries with it the re-cross, ed, had waived and likelihood a sentence imprison- to life stand, appellant had left the witness the ment, as here the case. question.” called him back for “one arguments. The state makes two ensuing interrogation, In the elic- first is prejudice suffered no appellant from the 19 he ited that on March result questioning. suffering neither from a drunk nor *16 judge’s think it clear that the persistent drug overdose. interrogation of the fatally witnesses preju- appellant left the stand a second After diced By the defendant’s case. ques- his time, counsel, presence defense out of the of tions, judge the unmistakably conveyed to jurors, requested a mistrial: the jury the he that was on the side of the Honor, time,

Your at this I would move prosecution and that he Daye’s believed in juror the and decla- guilt. frequently for withdrawal of a interrupted He prose- the mistrial, upon of a the con- ration based cutor to elicit evidence favorable to the interruptions Court prosecutor emphasize evidence, the made stant toor such during interrupted this witness’s and other witnesses’ and he defense counsel to cast examination. theory examinations cross doubt on defense or a line of judge’s evidence. The trial Honor, partic- bias was specifically, your Most with re- ularly during Daye’s testimony. shown He gard to the cross of Mr. examination interrupted counsel’s direct to examination Daye, I will state for the record the their them on service told not subject that counsel had introduce a .them Daye’s guilt the evidence established “not Daye knew James touched on—whether only beyond a beyond reasonable doubt but questioning his until Flats —and continued all conceivable doubt.” later, A few he objected. minutes again interrupted counsel’s direct examina- Nor, record, give on this we any can Daye drinking. question tion to about weight judge’s the to several instructions to interrupted Finally, judge repeatedly the jury to draw the no conclusions about the Daye prosecutor’s cross-examination of the opinion questions put by court’s from the questions patent- put to a multitude the court. Such instructions do not cure ly jury doubted the that he indicated to overwhelming impression the of bias con- Earlier, flagrant in dis- testimony. veyed by judge’s question- the continuous regard requirements judicial im- the Querica States, ing. for See United 289 U.S. eyewit- judge had two of the partiality, the 466, 472, 698, 700, S.Ct. L.Ed.2d 1321 repeat reaffirm their identifica- (1933). nesses the Wright, To tions of the defendant. The state’s argument second that; is that asked, “Any question

judge about judge’s participation proper was “to clarify Wright’s Not content with that the man?” testimony and jury assist doubt”, under- judge response had “No that he ” standing the evidence. . . . United States your repeated, doubt mind?” “No DeSisto, (2d F.2d 1961). Wright which reaffirmed his identification. Implicitly, the state suggests that we bal- judge interrupted counsel’s cross- later possible ance any prejudice to Daye against Wright elicit examination of an affirma- necessity participation. Daye he Wright tion that identified because record, On this there was no such need. recognized merely and not because Daye The need to clarify the facts might issues at the defendant’s table. was seated arise where the case is complicated, or Then, Tay- coun- during cross-examination of sel unprepared, are or the lor, witnesses Taylor that she are judge reaffirm Here, deficient. the issues were forget” simple; could “never the face of the man the evidence abundant, was clear, restaurant, Daye. who robbed the William and di- rect; and the cooperative witnesses were judge In other rehabilitated questions, and articulate. The state and prosecution witnesses defense accused were represented evidence, impeached, counsel who discredited defense were well prepared to emphasized develop continually dam- evidence relevant facts through testimony aging to the While no one of defendant. exhibits. The trial judge’s interruptions questions necessarily these would con- beyond have went far any bias, reasonable veyed impression clarify the cumulative purpose evidence. impact inevitably never was to convince the waited to see whether counsel fully would judge that the to be develop believed defendant point, or whether there guilty.3 only That have conviction could ambiguity that needed to be up; reinforced when instead, been further in summation cleared jumped he in as a full jury Daye’s dam- participant read in the examination of witnesses. aging questions put answers to revealing one exchange, the court inter- rupted as where and what defense counsel’s cross-examination, doing when heard the shot. “I stating, have question, one if may. when, jurors surely surprised were You question. asked a I want to ask a trial, congratulated the end of the question.” eagerness This to share equally *17 See, g., Ellis, impartial People plainly 3. than e. A.D.2d arbiter. It and im (1978), properly conveyed Appellate N.Y.S.2d 862 where the Divi the court’s atti manslaughter, sion tude credibility reversed a conviction for as to merits of the case well as the finding questioning that the “excessive and ex witnesses.” 62 A.D.2d at by 404 N.Y.S.2d 862. amination of witnesses” the trial appear made “him to be an advocate rather interrogation of the witnesses re- impartiality flected a remarkable lack totally unjustified in the

and was circum- this case.

stances of peti- view of conclusion give

tioner have a fair trial I can did not no

weight argument the state’s Daye’s guilt overwhelming.

evidence of strong

No how how weak matter be, may

state’s the Constitu- evidence under given

tion the the defendant must trial be a one,

fair and to be fair it must be a trial in

which the has not acted as an arm of prosecution and has not indicated his

participation his belief in the defendant’s

guilt. have the fair to which process due is entitled by jury;

law. He entitled to trial what by judge.

he had His conviction

should not stand. direct the would dis- grant petition

trict court to for a writ unless, corpus,

of habeas within a reasona- time, petitioner

ble again brought

trial. America, Appellee,

UNITED STATES MODICA, Appellant.

Gaetano 1025, Docket 80-1482.

No. Appeals, Court of

United States Circuit.

Second

Argued April 1981. 30, 1981.

Decided Oct.