“You won’t let him,” I argued. “It’s our only chance.”
Rubin sidestepped my frustration with him. “It’s their system,” he said. “They were supposed to prove me guilty beyond a reasonable doubt, and they haven’t proved me guilty at all.”
Myron and I each had two hours for our summations. We divided up the areas of proof and methodically led the jury through the weaknesses of the state’s case, how witnesses had been manipulated along with evidence, and still the prosecution’s case was implausible. We attacked the racial revenge theory and asked the jurors not to use it as a substitute for hard evidence.
Burrell Ives Humphreys took only two hours to sum up. Race was his trump card, and he played it with abandon.
“None of us like to admit that things like race prejudice and anger and hate for people because of the different color of their skin exist in this world,” he slyly told the jury. “We teach our children the contrary. We support civil rights. We bear in mind the words of Reverend King, in which he had a dream of a day where people would judge his children by the quality of their character, not the color of their skin.
“But, ladies and gentlemen,” Humphreys warned, having thus affirmed for the jurors their inherent goodness, “we didn’t live in that world in 1966. It was a world filled with people who hate. As much as you might want to look away, as much as you might want to say it couldn’t have happened for that reason, it did happen for that reason. What other reason could it have happened for? Coincidence?” Humphreys asked, again reminding the jury about the supposed link between the Waltz Inn and Lafayette Bar and Grill killings. “We like to think so, but the facts don’t add up to a coincidence. They don’t add up to a coincidence at all.”
Humphreys continued, pandering to individual members of the jury. To our Greek juror’s prejudices, he dangled the image of Greeks and Turks massacring one another. Leopizzi rebuked me for objecting to that. Eyeing our Irish immigrant juror, Humphreys said, “We see hate and anger and revenge, and we see people fighting in Ireland because of religion.” Then Humphreys went in for the kill. Adopting Bello’s discarded “in the bar” four-man version of the crime, ignoring the two-man version he told the jury, Humphreys implicated the third man who had been in the car with Rubin and John—John Royster—and the Nite Spot bartender, Ed Rawls, saying that they may have been in on the killings. Without a shred of proof, he spun a tale of Rubin and John stopping off at Rawls’s house after the crime, dropping off their guns, and changing clothes. Out of nowhere there appeared a cabal of four black men looking for blood and vengeance. It was the racial nightmare white America feared most—the image that Leopizzi had condoned.
As I looked at Humphreys’s bloated, self-satisfied face, my stomach knotted in disgust. He had unleashed evil spirits. Tomorrow Humphreys might become the cautious, petty bureaucrat again, but today he had been a malevolent monster.
We asked for a mistrial the minute the jurors left the courtroom, on the grounds that the racism and pure speculation the jurors had been fed were way over the line of what could be permitted in a summation. Leopizzi gave us that now-familiar twisted smile and denied our motions.
The next day the judge charged the jury and sent it out to deliberate. It was December 22, 1976. We had been in court constantly since the Tuesday after Labor Day, when we started arguing pretrial motions, and had been presenting evidence for six weeks, six days a week. Myron and I were exhausted, hoping against hope that our worst fears would not be realized.
We had barely had time for lunch when we were told the jury had reached a verdict. Rubin and John were surrounded by armed court officers before the foreperson of the jury read the guilty verdicts, which came like stabs to the heart.
19
A Racist Court
Rubin and John’s sentencing hearing did not take place for six weeks. While we waited, I escaped to Duck Key in Florida with Kitty and our children. I had been missing in action as far as my family went, but it was hard to slip back into their simpler rhythm of meals, bedtimes, and play. I worked at it, though. We caught fish on an excursion boat, watched dolphins do tricks at a local aquarium, and did other stuff that should have occupied me entirely but didn’t. Instead I struggled to escape the cloud that followed me after the conviction. There was no pleasure unattended by flashbacks. I dreaded the loop of nightmares about the trial. The anxiety was there before I awoke in the morning. I was irritable and hard on the kids, picking on every little thing they did. Kitty only looked at me with sidelong glances, knowing I was in one of my states of obsession.
Somehow the convictions had happened to me, even though I wasn’t going to be doing hard time, and everything else faded into the background. No matter how Kitty tried to empathize with me, she could do little more than observe and perhaps steady me as I remained consumed by the warfare that engulfed me. She protected the children from my moods, found her own direction, and integrated me back into the family’s life. Somehow, even in my least likable mode, Kitty was there for me.
When I got back Myron was fixated on Bello’s lie detector test, which Humphreys used to block a crucial part of our cross-examination. He had been in touch with the polygrapher, Leonard Harrelson, at his office, and was surprised to learn that Harrelson believed Bello was telling the truth when he said that he was inside the Lafayette at the time of the shootings. Asked why he submitted a report that said Bello’s testimony at the first trial had been truthful, Harrelson replied that that was his understanding of Bello’s testimony. Informed that Bello had testified in the first trial that he’d been walking on the sidewalk toward the bar when he heard the shots, Harrelson said he would check his notes and call back. After that he ducked Myron’s calls.
Prior to the sentencing, we read in the newspaper that Vincent DeSimone had been the acting chief of detectives during the trial, and was only sworn in as chief after the jury verdict. By presenting him to the jurors as the chief, Humphreys had prevented us from suggesting to them that DeSimone needed a guilty verdict to get his promotion. Judge Leopizzi, who gave a glowing speech at DeSimone’s swearing-in ceremony, had to have known and should have set the record straight. Instead he had ignored DeSimone’s false testimony.
Leopizzi’s failure to maintain even the appearance of neutrality signaled how confident he was that the state appellate court system would stand behind the guilty verdicts this time. The more we challenged him, Leopizzi must have figured, the more we would look like nitpickers looking for a loophole.
The sentencing hearing took place on a bleak winter morning. Leopizzi swallowed a derisive chuckle when we asked him to disqualify himself for being biased. We also asked for a hearing based on what Myron learned about Harrelson’s report on Bello’s lie detector test. Leopizzi swatted us away: “Let’s get to the sentencing and stop all this nonsense,” he said.
At every sentencing hearing, the defendant can say whatever he wants before the judge renders his or her decision. We decided to use the opportunity to plant the seeds of our appeals by talking about the racist underpinnings of Humphreys case against Rubin and John. All four of us would have a say.
Rubin cut straight to the bone. He and John were condemned on the basis of their race, plain and simple. What happened to them was no different from what had happened to the Jews in Germany. That could be trouble, I thought. He was going too far, and might harm our chances with Jewish judges down the line. But Rubin’s analogy was no surprise. The millions who died under slavery and the millions more who have led stunted lives under the American version of apartheid are sometimes equated with the Holocaust by African Americans. I have tried to be open to these claims, but when I think about the Holocaust I see slavery and the American postslavery experience as different. Despite their horrible cruelty, the plantation owners needed their slaves alive. After the Civil War, the Ku Klux Klan, although a brutal terrorist organization that penetrated every level of society and functioned above the law, like Hitler’s SS, did not advocate a “Fin
al Solution” as far as I knew. Blacks had not only survived the Klan’s one hundred years of terror, they had created their own institutions in the South; hundreds of thousands had migrated to the North, and the progress of the civil rights movement gave hope that the nation could at least reduce the racism and prejudice that Rubin was talking about. After his final words Rubin would once again be alone in a world that demanded obedience. Imagining Rubin as he would be in only a few short minutes, I understood he was announcing his defiance.
“You executed three people without a trial, so you have no right to bring up Nazi Germany,” Judge Leopizzi shot back after Rubin sat down.
Then he turned to John, whose remarks were less provocative yet equally pointed. The case required two black men as defendants, and if John Royster hadn’t gotten out of the car first, he would be going to prison, he told the judge.
When John talked about himself in more general terms, Leopizzi interrupted him to acknowledge that he had risked his life to rescue a group of trapped prison guards during a riot, and that he had also almost completed a four-year college program while in prison: “You have been rehabilitated,” Leopizzi told him.
But John would have none of it. So the judge and the wrongfully convicted man stood there hashing out their mutually exclusive versions of a story that was ruining John’s life. When it came time to close, John took on the racial revenge theory.
“If I wanted a racist motivation,” John said, “four hundred years of my great-grandfather’s ancestry is enough motivation for what we blacks have suffered here in this country, not the mere fact that one white man—no disrespect—killed one black here in Paterson.”
When it was my turn, I stood, tongue-tied.
“I couldn’t do it,” I managed to say. “I couldn’t sentence this man.” My words seemed to take Leopizzi aback. It was obvious that he was deeply ambivalent about John.
“I beg you not to ask how many days you need to be punished,” Leopizzi said, his voice a little shaky. “If you do,” he continued, “I will ask you about the persons who are buried beneath the ground.”
Imposing the same judgment that Judge Larner had pronounced after the first trial, Leopizzi directed that both John and Rubin serve three life sentences, with the proviso that John serve his sentences simultaneously while Rubin would have to serve two out of his three life sentences, one after the other consecutively. John and Rubin were credited with the 3,497 days they had already spent in prison. John would be eligible for parole in 1981, and Rubin fifteen years later. The “Sixteenth Round” was over.
* * *
In the dog days after John and Rubin were sentenced, the state court system gave every indication of closing ranks. It took more than a year to get a copy of the trial transcript, and what the court sent was incomplete. Legal papers we filed with the clerk got lost, and court employees were unhelpful—perhaps even hostile.
A clutch of New Jersey attorneys, including Ronald Busch, Harold Cassidy, Jeff Fogel, and Lou Raveson, as well as a young attorney in Beldock’s office, Ed Graves, enabled us to keep our sanity. I also enlisted NAACP assistant counsel Jimmy Meyerson to help us get organizational support. The NAACP’s history of using the legal process to achieve racial justice might influence some appeals judges to view our arguments more seriously, I thought. Jimmy also came to our posttrial court sessions, until he tangled with Judge Leopizzi while we were seeking a hearing on one of our many posttrial motions. Enraged by his obvious hostility toward Myron and me, Jimmy gave Leopizzi a piece of his mind, only to be run out of court and warned never to come back again. To this day Jimmy remains a close friend and a fine, no-holds-barred civil rights lawyer who says what is on his mind.
Needing brief-writing help, we enlisted Leon Friedman, who would be a key player in the hearings to come. Leon was an expert in constitutional appeals. Like Myron and me, he was attracted to underdog cases. Fitting in perfectly, he signed on without the expectation of a payday.
Leon took the lead on our legal briefs. He also presented the appellate court arguments on Rubin’s behalf while I argued for John. Myron and I remained responsible for developing new evidence, preparing motions, and examining witnesses at posttrial hearings. As time went on, the three of us melded our styles and approaches in total harmony.
Rubin’s ability to keep fighting had a lot to do with a group of Canadian citizens who adopted him as their cause. “The Canadians,” as Myron and I came to call them, lived together as an extended family in Toronto—a tight community that dated back to the 1960s. On a trip to study an Environmental Protection Agency project in Brooklyn, they had “adopted” a black youth named Lesra Martin, who had a summer job working for the project. With the family’s permission, the Canadians took Lesra to Toronto. Showered with caring, Lesra made great strides in school and read The Sixteenth Round. He began writing to Rubin in prison. Visits to Rubin followed, first by Lesra and then the Canadians. Soon the Canadians took up Rubin’s cause.
When the Canadians started to show up at Myron’s office wanting to help with our ongoing investigations and legal strategy, I suspiciously asked Myron what they were really up to. Myron answered, “Who cares? They are keeping Rubin alive.”
* * *
Shortly after Rubin and John were sentenced, a friend, Seymour Wishman, told me that the Passaic County prosecutor had misled us about the Bello lie detector test results. He couldn’t tell me much more than that without his source’s authorization. Seymour circled back about a month later to tell me that his confidant, whose credentials were impeccable, said the lie detector test results had been “unfavorable to the state’s position and inconsistent with their theory of guilt.” The source was not willing to go public, so the moves open to us were limited.
Excited, I called Myron. A friend of his knew the polygrapher, and called him. Harrelson said he would see us. We flew to Chicago and met with him in his suburban office. After a few beers at lunch, Harrelson explained how he worked. First he asked a witness for a narrative of whatever events were being tested. From that story he developed four specific questions.
Bello had told him that as he was approaching the Lafayette he saw a black car and a white car parked outside. Going inside, he ordered a beer. While he was sitting at the bar, a black woman came in, and the bartender handed her something. The woman left, and shortly afterward, as Bello was about to leave, the killers arrived. They didn’t see Bello. After they shot up the bar, Bello said he went outside. He said he saw a woman and a white man before turning to his right, where he saw two men he had not seen in the bar. He later learned they were Rubin and John.
After hearing this narrative Harrelson worked out his four questions and attached his electronic sensors to Bello. One of the questions was whether Bello was in the bar when the shooting occurred. Bello said he was. After checking the moving paper strip that recorded pulse rate, blood pressure, and breathing indicators, Harrelson concluded that Bello was telling the truth. Immediately afterward he told DeSimone and Martin Kayne, the assistant prosecutor working with him on the reinvestigation. Harrelson recalled that DeSimone was upset. Bello could not have been in the bar during the shooting, DeSimone argued. Reviewing his chart in front of DeSimone, Harrelson reiterated his opinion. Other polygraphers from New Jersey were present during the discussions. After reviewing his chart, they agreed. All the while, Harrelson added, other members of the prosecutor’s staff wandered in and out.
Asked why he wrote a report three weeks later stating that Bello’s testimony at the first trial was true, Harrelson said that that was what he’d been told regarding Bello’s testimony at the first trial. He explained that the three-week delay between the test and the report came about because either DeSimone or Kayne had asked Harrelson to talk to Humphreys before he wrote the report. A few weeks later he talked by phone with Humphreys and told him that the story Bello recounted was true. But what else was said in that lengthy conversation, Harrelson told us he could not remember.
We
asked Harrelson if he had ever told anyone that his initial chart reading was only preliminary, as Humphreys was now claiming, and that he would study his charts further before writing his report.
“Absolutely not,” he replied. “It doesn’t work that way. You read your charts immediately, and that’s it.”
Letting us copy his files, Harrelson agreed to put what he told us in writing and testify at a hearing about what had happened. Even if Harrelson had avoided telling us how the report’s duplicitous wording was worked out, Myron and I were euphoric. Trapped in our plane on an O’Hare Airport runway for three hours during a tornado warning, we were oblivious to our fellow passengers’ complaints as we plotted our next moves.
Back in New York we filed a motion for a new trial based on Harrelson’s disclosures. After Judge Leopizzi sent us packing, we asked New Jersey’s intermediate appeals court to intervene. But its three judges were equally unmoved. Finally, in 1981, the New Jersey Supreme Court ordered a hearing.
Despite breaking the judicial logjam, the supreme court denied our request that a disinterested judge determine the motion. Instead it referred the case back to Judge Leopizzi, whom we knew from a previous hearing on another issue would twist and turn to rule against us.
Three years earlier the judge held a hearing closed to the public and press in which he asked all the questions. The hearing involved evidence that one of the jurors and the court officers who were supposed to stay with the jurors to see that they did not talk or read about the case had engaged in flagrant misconduct. Barbara Hoekja, a National Jury Project researcher, who had worked with us on jury selection, spoke to John Adamo, a juror, who had been picked out of the jury wheel to be one of the alternates right before the remaining twelve jurors began their deliberations. Adamo told Hoekja he had been very disturbed by his experience as a juror. However, he refused to say why, because he thought Rubin and John were guilty. Later he relented and told Hoekja in confidence that another juror had told him that Rubin Carter had failed a lie detector test and that colored the entire trial experience for him.
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