Adamo also told Hoekja that during a bus ride to the motel where the jurors were staying, a juror had joked with the court officers about the “melanzans” they were passing along the way. Among Italians the term melanzan—a corruption of the word for “eggplant”—was a racial slur. Adamo also said that the court officers who ate dinner with the jurors to make sure they didn’t discuss the case told them about two black men who committed a heinous street crime and got off on a technicality the same way “those bastards” were going to get off on a technicality.
To persuade Adamo to go public, Hoekja showed him an excerpt from DeSimone’s testimony before a Passaic County grand jury in the summer of 1966, shortly after the shootings occurred. In the transcript DeSimone discussed the lie detector tests administered to Rubin and John on the night of the crime. DeSimone had testified that the police polygrapher told him he believed Artis was truthful when he said he had no direct knowledge of the shooting but had suspicions regarding who was involved. Likewise, the polygrapher concluded that Rubin was not a participant, but thought he knew who was responsible.
Hoekja also showed Adamo a local newspaper story, written at the time Bello’s and Bradley’s recantations were first made public in 1975, which stated that, according to “authoritative sources,” Carter and Artis had “failed” their lie detector tests. As a result Adamo felt that if the authorities were willing to leak false stories, their case must have been shaky. Before he agreed to come forward, however, Adamo decided to talk to the juror who had told him about the lie detector results. When the other juror admitted that the conversation took place, that juror also expressed fear that he and his wife, who had told him about the test results, could be held in contempt for talking about the case. At that Adamo also got cold feet. Even after a second conversation in which the juror hesitantly agreed to back him up, Adamo held back—that is, until Hoekja said she could no longer keep silent.
Hoekja didn’t have to force the matter. Adamo contacted Judge Leopizzi himself. After questioning Adamo, Leopizzi called Myron and me, as well as Humphreys, and ordered all of us to come to court on October 5, 1978. After giving us a transcript of Adamo’s remarks, Leopizzi told us that because our appeal from the convictions was pending before the appellate division, we could make any applications we wanted to that court. In the meanwhile he sealed Adamo’s charges and said he would do nothing further unless instructed to do so.
As the misconduct Adamo brought to Leopizzi’s attention was grounds for a new trial, we asked the appellate division to order a hearing. When the court turned us down, we asked the New Jersey Supreme Court to allow us to appeal the issue immediately. On November 21, 1978, the supreme court denied our request. Frustrated, we turned to the U.S. district court for relief under the age-old legal principle that persons convicted in state courts were entitled to seek a federal review of their constitutional claims after they had exhausted their state appeals. Initially the federal judge assigned to our case, Herbert Stern, was concerned because the state courts still had not decided our main appeal from the trial. After some back-and-forth regarding the need for a hearing on Adamo’s charges sooner rather than later, Stern suggested to Deputy Prosecutor John Goceljak that he voluntarily agree to a hearing in front of Judge Leopizzi. The other option was a hearing in front of Stern himself.
h“Make up your mind,” Judge Stern said, knowing full well that the prosecutors would choose Leopizzi.
Judge Leopizzi held closed hearings for three days. At the hearing Myron and I were little more than disheartened observers. Far from commending Adamo for coming forward about the misconduct he had observed, Leopizzi treated him with contempt. But with the other four jurors, he transformed himself into a kindly, understanding father figure.
Sadly, the juror Adamo had named as his informant was less than forthcoming. He no longer remembered the lie detector conversation, but admitted that he had asked his wife if she had ever told him that Carter had failed a lie detector test. That was all Leopizzi needed. He ruled that Adamo was so emotionally disturbed about becoming an alternate right before the jury deliberated that he made up the lie detector story.
As for the “melanzan” remarks that the jurors had been exposed to on the bus rides to and from their sequestered motel rooms, the juror who used the epithet readily agreed that it was a word he used from time to time. The problem was that he didn’t recall doing so on the bus trips to and from court, but even if he did, it would have been in reference to the black population of Paterson, and not the defendants.
“Melanzana means nothing else than ‘eggplant,’” the juror testified. It could not be equated with any derogatory term, he claimed.
Leopizzi had heard enough. In his fifty-page opinion he ruled that the “melanzan” comment had no racial undertones, and went the extra mile by singling out Barbara Hoekja for being a troublemaker: “It is certainly regrettable that Adamo’s vulnerability arising from his deflated ego permitted him to be manipulated by Hoekja,” Leopizzi wrote.
The message was clear: Attack this conviction at your peril, which was why we were so distressed by the news that the New Jersey Supreme Court assigned Leopizzi the task of holding the Harrelson lie-detector-test hearing. Four years had passed since Harrelson’s original revelations, but at least we had immeasurably strengthened our ability to expose Humphreys’s deceptions, as we had developed additional evidence.
My friend Seymour Wishman had convinced his source on the prosecution’s team, Richard Thayer, that he had an ethical obligation to come forward. We also had two other surprise witnesses. One was Richard Caruso, who had been an investigator on the million-dollar Humphreys/DeSimone reinvestigation team. The other witness was Michael Pollack, a Bergen Record reporter who had spoken to Harrelson the day after the New Jersey Supreme Court had ordered the lie detector hearing. Harrelson told Pollack that he was sure Bello was inside the bar during the shootings, and that there had been an effort to get him to change the results.
When I called Pollack about the story he wrote, he told me it was clear from the context of his interview with Harrelson that the pressure came from the prosecutor’s office. I asked him to testify. After checking with his editors, he told me that he was willing if I subpoenaed him.
At the hearing ordered by the state supreme court, under Judge Leopizzi, Harrelson told his story as he had told it to Myron and me, carefully forgetting his long conversation with Humphreys during that three-week period between when he tested Bello and finally wrote his report. But that was enough: The story spoke for itself.
Thayer, who had been an assistant prosecutor in Humphreys’s office when Harrelson tested Bello, testified that he was aware of the prosecutor’s deception, and was relentlessly cross-examined.
* * *
The prosecutor’s attack: Thayer had wanted to handle a certain case for the office, and it had been assigned to another assistant prosecutor. Ridiculous, I thought. Now in private practice, he would lie and damage his career to get revenge? Absurd. Little did I realize the extent of Leopizzi’s mendacity. When he eventually wrote his one-hundred page decision, that is exactly how he discounted Thayer.
Richard Caruso, the former Passaic County police department investigator who had been assigned to the reinvestigation, was tagged as a traitor when he testified. On the polygraph issue Caruso had not actually been present when Harrelson discussed his results with the prosecutors. He had only heard reports about what was said. Hearsay, the judge ruled; there was nothing for him to consider. But there was more. Caruso had his investigative file with him, which we had subpoenaed because he had told Myron about the damning evidence it contained, including notes about how a cop at the crime scene had fed Valentine the description of the Carter car.
If you saw the movie The Hurricane, you might think that the Canadians had succeeded where Myron and I had failed, specifically when it came to the file that Caruso kept after leaving the police department. Untrue. We had known about the Caruso file for a long ti
me. While the Canadians helped in immeasurable ways, providing hours and hours of paralegal work that we simply could not afford or fund, the Hollywood moment had not occurred. Myron had tracked down Caruso after he revealed the file’s contents and persuaded him he had a duty to make it available. Caruso promised to turn it over if he and the file were subpoenaed.
In court Caruso testified that in the beginning, as a task force investigator, he was able to talk to witnesses and do his job. But at some point in the reinvestigation his findings started to undermine the prosecution’s case, and that’s when things turned sour. When Caruso got wind of Valentine’s taillight testimony, which a cop on the scene bragged he had fed her, he was told she was off limits to everyone except DeSimone. After other details of the prosecution’s case didn’t jibe with what was actually being said by witnesses, Caruso and his boss advised Humphreys not to retry the case. Caruso’s boss was replaced, and DeSimone openly took charge of the investigation. The final straws were Harrelson’s lie detector test and hearing about DeSimone’s efforts to get the polygrapher to change his opinion. Caruso resigned. Even so, he was still a cop and had observed the code of silence.
Leopizzi was not impressed. Caruso’s story added nothing, he said, and he told Caruso he was no longer needed in the courtroom.
Certain that we would never see the notes if they left the courtroom, I asked Leopizzi to have the clerk hold them as an exhibit.
“There is no reason to do that,” the judge replied as he signaled Caruso to leave.
“We have never read them, and they should be impounded and sealed,” I argued. Picking up on the prosecutor’s opposition, Leopizzi asked Caruso if he had talked to our team with the file in front of him.
“I did,” Caruso acknowledged.
“You’re excused,” Leopizzi intoned.
As Caruso rose to leave, I felt my anger rising. We had labored for years to get our hands on Caruso’s notes but had never read them. Now, I was sure, the prosecutor’s men would ensure that we were going to lose them forever, and I said as much.
“Let’s not make a charade here. You know what’s in the file,” Leopizzi admonished me, motioning Caruso out of the courtroom a third time.
Barely in control, I restrained myself from charging the bench, moving so close that I was only a short distance away, its height between us. A few steps away, I stopped, my arms waving, overwhelmed by what was happening.
Leopizzi must have seen the “madness” in my eyes. Relenting, he placed the notes in a large envelope.
“I will seal it nice and tight,” he twitted me. “It will be a pot of gold.”
I was still shaking when I started walking out of the courtroom. Seymour Wishman, who had been watching from the front row, placed his arm around me: “You had me worried there,” he said, trying to comfort me.
“He finally got to me,” I said.
“I know. I know,” Seymour calmed me, “but you have to hang on. You have a long way to go.” He was right. I had more work to do. We had one more witness to call.
I called the reporter who told the judge the Harrison story he had written about.
Leopizzi would have a hard time creating a reason why he would make up a story, I thought. He had his notes to back up his testimony.
But the wagons were circled. Leopizzi remained impassive. The reporter did not even rate a mention in his decision. Instead Leopizzi endorsed the ethics of Burrell Ives Humphreys, who had long since left the prosecutor’s office to become a superior court judge.
* * *
After Rubin and John’s second conviction, the New Jersey Supreme Court engaged in a slow-motion dance before resolving all our challenges.
Leon Friedman was the principal author of our New Jersey Supreme Court briefs, pulling together all our arguments, highlighting the ways in which the case got stranded at the intersection of criminal and constitutional law.
Back in 1980, before the lie detector hearing, Chief Justice Robert Wilentz had signaled his intense interest by setting aside the entire morning to hear the issues. At noon Wilentz canceled the court’s afternoon schedule to give us the full day.
“Wasn’t the theory based on a concept of group guilt that was intolerable?” Wilentz pressed Deputy Prosecutor Goceljak, shaking his head in disbelief each time he heard an evasion. There was still more pressure from the other justices when Goceljak discussed whether we were entitled to a hearing about Harrelson’s lie-detector-test report. We were heartened, but as the days dragged on after the argument, we began to sweat. Almost six months went by before the justices ordered Judge Leopizzi to hold the lie-detector-test hearing. They would not reconsider the case until that happened.
By the time we returned to the state supreme court with Leopizzi’s one-hundred-page lie detector ruling, which concluded that there had been nothing more than an inconsequential misunderstanding between Harrelson and the prosecutor’s office, it was March 1982. John watched the proceedings from the gallery, having been released from prison in December the year before, although remaining on probation until his second life sentence expired in 1991. The justices, who focused the argument on the lie detector issues only, now seemed more evenly split. Wilentz appeared to favor our camp, and we figured that the court’s longtime liberal, Morris Pashman, would side with us. That meant we needed two more votes. If the justices’ questions to the attorneys signaled their proclivities, at least two or three of them seemed close to joining what we perceived to be the Wilentz-Pashman camp.
We waited another five months. Leon was on vacation in his Cape Cod house when I reached him to tell him the terrible news.
“Lewis, you must have heard it wrong,” he said. “We won.” “No, no,” I told him. The vote was four to three.
To our amazement Justice Pashman sided with the prosecution. Justice Sidney Schreiber’s opinion upheld the racial revenge motive because Carter and Artis knew someone connected to the earlier murder at the Waltz Inn. Schreiber wrote that meant “they were members of the particular local community involved,” and “fueled by the racial overtone, the defendants may have been motivated to avenge the death of Rawls’ stepfather.” By that logic any black man who knew Rawls and had heard about the earlier homicide could have been tagged with that motive. The majority opinion also decided that Humphreys had done nothing wrong in his summation when he referred to warring ethnicities—the Irish and Turks and Greeks—regardless of their correspondence to the ethnicities of jurors hearing the case. The four justices also accepted Leopizzi’s jury misconduct and lie detector findings.
Justice Robert Clifford’s dissent, written on the behalf of Chief Justice Wilentz and Justice Mark Sullivan, concentrated on the Harrelson lie detector hearing, and how we were denied key information that could have been used to discredit Bello and seriously undermine the credibility of the police investigation.
I was not surprised at Clifford’s limited dissent, which did not discuss the racial revenge theory. But Chief Justice Wilentz’s silence galled me. Wilentz knew better: He had said so from the bench himself.
The supreme court’s four-to-three decision hit Carter hard. It was starting to look as if he might actually spend the rest of his life in prison. Denied “good time” by the prison authorities, he had not completed serving the first of his two life sentences, and it was impossible to estimate when, even hypothetically, he might be released.
John’s situation’s was infinitely better. He was out of prison but had to report to a probation officer who could send him back to prison for any number of violations. Just keep a low profile, we told him. We would continue to fight to clear him.
On a rainy night in the fall, Leon, Myron, and I drove to Trenton State Prison to meet with Rubin and discuss his options. Leon told Rubin that if he was willing to waive any further state court appeals and forever lose the obvious evidentiary benefits of Caruso’s notes, which an appeals court finally ruled we could copy, Rubin could file a writ of habeas corpus.
Rubin
decided to do that. He could not tolerate another delay. But John was out. There was no reason for me to waive a state court decision about the notes, I said. They were dynamite. If I kept the issue of the notes alive and you lost your writ, you might benefit from my litigating the notes. I told Rubin I would work on the brief supporting his writ, and join in it. Maybe by the time it was decided, the state courts would have decided the issues raised by the notes, I added.
We filed our writs of habeas corpus on behalf of Rubin and John in February 1985. The judge assigned to our case was H. Lee Sarokin, a scholarly humanist appointed to the federal bench by President Jimmy Carter in 1979. Heartened by our luck, Leon, Myron, and I, with the assistance of our legal team as well as the Canadians and Rubin himself, crafted a 253-page memorandum that we submitted to Judge Sarokin in May. It was long, but the case had gone on for nineteen years, and Sarokin welcomed an exposition that outlined the entire history and culled from all the facts and hearings a well-reasoned theory as to why these convictions could not withstand scrutiny under the prevailing constitutional standards.
On July 22, 1985, Sarokin called the attorneys into his Newark courtroom to participate in a long and searching oral argument. Leon was superb in articulating the constitutional violations that marred our clients’ convictions. Following the format of our brief, he concentrated on the lie detector deception that the prosecution had perpetrated on an unwitting polygrapher, Leonard Harrelson, and the prosecutor’s appeal to racial prejudice as a ploy because there was no hard evidence connecting Rubin and John to the triple murder at the Lafayette Bar and Grill.
When it was my turn, I followed up on Leon’s discussion of the Harrelson deception by pointing to another one—specifically the tape recording on which DeSimone told Bello that the killings were an act of racial revenge. While that tape gave us what we needed to level the charge of racism against DeSimone, as he had no facts on which to base that statement, I argued, it did not open the door to Humphreys’s massive leap in logic that the murders could be explained as blacks as a group killing whites to get revenge.
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