“When you get an enlightened warden he is horrified at the waste and degradation of human beings held within walls. But he is never free to relieve conditions. He is always caught between the League of Frightened Men—the P.B.A.—and the antiestablishment people who want to bring the house down just to see it fall.
“Guys come in here with two-to-three-year sentences for breaking and entering, and when they walk out I know they’re going to kill somebody.
“I have as many problems here with prisoners as with guards,” Calhoun went on. “This place is dangerous from both sides of the fence. If I weaken I can get it from either side. I’ve reversed my hours, like sleeping during the day and staying up at night. Chiefly, I stay in shape.”
“You still look to be in good shape,” Kerrigan assured him. Calhoun appeared not to have gained a pound since he’d fought Gardello.
“I can still whip any middleweight in the world,” Calhoun assured Kerrigan.
Billy Boggs went off on a weekend toot, somehow found his way back to his army cot, pitched himself onto it and rolled over dead.
Jennifer found him lying face down, clutching a half-pint bottle of vodka. Funeral arrangements were made that night. Billy was buried two days later, with his daughter, Hardee Haloways and a couple of ex-cons at graveside. Jennifer shed a tear or two, not so much for the old man as they were for the way he’d wasted not only his own life, but the lives of those around him.
When they returned to the house they found a well-groomed black woman waiting for them in Jennifer’s parlor.
Adeline Kelsey had come to offer her condolences. She only stayed half an hour. As she was leaving, she held out a check to Jennifer. “Take it, honey. I know you need it.”
It was for twenty-five hundred dollars and more than covered funeral expenses.
Jennifer told Ruby, while visiting him, of the gift. Ruby grinned.
“That’s my big honcho broad from Harlem. Watch out. She has plans for when I get out. Let her have them. They won’t be my plans.”
By September of 1975 the big honcho broad from Harlem had made New Jersey vs. Calhoun so controversial that the governor appointed a state assemblyman to investigate the case, and was shrewd enough to make him a black assemblyman. He also intimated that he was considering granting executive clemency to Calhoun.
Thousands of black votes went to the governor when he was elected to a new term in October. But the wide publicity for Calhoun, attending his re-election, aroused a white backlash. An ironic comment on the governor’s contemplation of clemency for Calhoun appeared in the New Jersey Legal Journal:
Dear Editor:
Right-thinking lawyers and judges should be grateful to the governor for his recent action in requesting attorneys for Ruby Calhoun to file a petition for pardon with his office for review.
The burden of making decisions from the shoulders of the Appellate Division is herewith lifted. Defendants will now no longer have to waste time appealing convictions.
The governor’s innovation will also save countless hours in the criminal justice process. May we suggest the following procedure to applicants for pardon:
1. Attorney for defendant should file a nonspecific request for pardon. Proper grounds need be no more than the claim that defendant was denied fair trial.
2. Governor assigns any legislators who haven’t anything else to do to report their findings. Transcripts, and judicial opinions not necessary; attitude of the public should, however, be sampled with specific interest in the opinions of sports personalities, such as prize-fighters, wrestlers, football players, tennis and softball players.
3. If the public reaction is favorable, governor shall pardon; if unfavorable, he will deny. If public reaction is mixed, use may be made of the qualified pardon.
4. Governor’s decision should be made publicly, in an amphitheatrical setting, using ‘thumbs up’ or ‘thumbs down’ signals.
5. This simple guide is the one that has recently been employed in State vs. Calhoun. The governor, following the new process in granting pardons, has avoided reading judicial opinions in State vs. Calhoun as such reading might prove counter-productive.
6. There is no danger that the public’s respect for the judicial process will be modified. Because, should a pardon be granted, it will be interpreted by the public as a grave warning to all judges that they had better play ball or else. And, in event of a denial, it will be plainly seen that the judges are attempting to avenge themselves upon the governor. It is well known that no judge has ever yet admitted to having been mistaken.
6
Supreme
Court
Hearing
The public clamor for an executive pardon for Calhoun, supported by pleas from film stars, sports heroes and TV celebrities, was silenced by a decision of the Supreme Court of New Jersey to conduct a hearing on Calhoun’s appeal for a new trial. The court met in the state capital in the first week of January, 1976.
“Eight years after his conviction,” Defense Attorney Max Epstein advised the court, “it develops that Iello’s statement was perjured. Notes proving that he perjured himself have shown up in the prosecutor’s files.
“Neither Judge Turner nor Ben Raymond had any awareness that such notes existed. This left Raymond at sea without even knowing he was at sea. And it enabled the prosecution to argue that there was no substance to the defense’s claim of pressure and promises to Iello and Baxter.
“Yet there was substance: the testimony of Esteban Escortez that Baxter had assured him, in jail, that he was going to play off the murders to gain leniency on charges of his own. His testimony was ruled hearsay by Judge Turner.
“Your honor,” Epstein pleaded, “I am forced to suggest that there is a deliberate pattern here. I don’t ask you to conclude that it was invidious. It could have been no more than sharp practice. But even though only one member of the prosecution’s staff knew, the staff remains an entity.”
“But,” Judge McCormick asked, “did not the defense deliberately try to prevent exploration of the premises? Raymond objected so strenuously that he finally succeeded in blocking that line of interrogation.”
“Mr. Raymond knew nothing of the heavy promises like, ‘I’m going to every prosecutor, to every county detective to do the same thing I’m going to do for you here.’”
“Is it your contention, sir, that the lower court’s decision—that the recantations lacked credibility—was not the correct standard to be employed?”
“The correct standard was not employed, your honor. The judge first regarded the witnesses as people not of criminal minds, then, in their recantations, chose to regard them as men of criminal intellects. Although these are, admittedly, bad people in one sense, still you cannot regard them in such a truncated fashion. When the story which should have been told at the trial, but was withheld, due process went down the drain.”
“Do you feel it is correct to say that failure of the prosecution to disclose evidence could be the basis for the granting of a new trial?”
“Correct. In asking this court to sustain it, in keeping evidence from the jury, the prosecution is substituting itself for the jury.”
“The rule of the law in New Jersey,” Judge McCormick recalled, “is that, when recanting testimony appears to be truthful, a new trial should be granted.”
“I don’t think,” Epstein replied, “that probable truth is necessarily the correct standard. Promises had been made prior to the original testimony. We think the judge isolated issues from issues; that he dealt with the recantations as if it were one piece that could be separated from the suppressed material.”
“One matter that has always troubled me,” Judge McCormick inquired of Epstein, “is that the same judge who presided at the trial is now asked to surmise whether his trial was fair and just. I don’t know that I have ever encountered a judge who might say, ‘I was unfair at the first trial. If you give me a second chance I’ll try to do better.’ Do you have any observations
upon the propriety of such a procedure?”
“The idea behind this rule, your honor,” Epstein filled the judge in, “is judicial economy. How could we tie up another judge to learn the whole thing and then hear witnesses for the first time? There is confidence, in the judiciary, that the judge will be sufficiently impartial to say he had been wrong in the first place, if he had been wrong.”
“Nothing in Judge Turner’s opinion indicates the slightest impropriety,” prosecutor Scott asserted for the state. “I find no misconduct, gross or small, on the part of the prosecutor’s office. I have reviewed this case, your honor, and I must say I cannot help but wonder that allegations of conspiracy must be intended for some media other than this court.”
“Would you have gotten to the jury without the identifications of Iello and Baxter, Mr. Scott?”
“Yes, your honor,” the prosecutor replied promptly, “because of the identification of the car by Violet Vance. The testimony of Iello and Baxter was never more than material.”
“But if their testimony is discarded, Mr. Scott, what is left to indicate that Calhoun committed the crime?”
“Your honor, Violet Vance described that car as it wheeled away, and a short time later that same car, with Calhoun in it, was found by officers.”
“You would permit a conviction for first-degree murder to stand upon the facts you have just set forth, Mr. Scott?”
“Correct, your honor.”
“There remains the question of whether a revelation of promises made to the witnesses would not have so impaired the credibility of both witnesses that it could easily have disbelieved both.”
“I conceded that the testimony of Iello and Baxter were material.”
“Do not the interests of justice therefore now require the setting aside of the original verdict?”
“If this were a close case, your honor, then possibly a retrial could be granted; but this is not a close case, your honor. How about the evidence they did not hear? They did not hear that Iello, the morning of the murders, said to Ken Kelley, ‘It was Ruby Calhoun who shot up the bar.’ And when Kelley asked him, ‘How do you know?’ Iello replied, ‘I know because I saw him. He had a gun.’ They didn’t hear that, your honor.”
“Then why should we?”
“And still out five hours…”
“Then why should we?”
“Given the question …”
“Given the question we are called upon to consider today, why in the name of God do you put that to us? Evidence that did not come out before the jury, was no part of their considerations and—I suggest to you—should now be no part of ours?”
“If there is any feeling in this court that there is some innocence here …”
“Then is not the place to meet it at a new trial?”
“When one survivor has already died? Is that fair to the state, your honor? You must be as fair to the state as to the defendant, your honor.”
“As between the possibility of an innocent man standing convicted, and continuing to bear a lifelong stigma, and the possibility that guilty people may get away with something, which choice would you make, Mr. Scott?”
“The former, of course. And that is why I am arguing that this case does not indicate innocence and that this evidence does not tip the balance.”
“You are evading the issue, sir. Is not the basic and overriding issue before us that of whether the jury could not have regarded the credibility of these two witnesses as subject to fair doubt had they heard it?”
“If there is a possibility of innocence, I think there is justification for opening up a nine-year-old case.”
“How do you tell whether the suppressed evidence would not in fact have been vital to the issue of credibility?”
“No defendant, your honor, has a right to a perfect trial. Judge Turner concluded that there had been no perjured testimony and that the material which had allegedly been suppressed would not have altered the jury’s decision.”
“If the undisclosed testimony had been part of the original trial, Mr. Scott, would you not be willing to concede a possibility that this would have tipped the scale?”
“Your honor, if those items had become part of the record, the jury would have been in in less than five hours. Mr. Raymond failed to ask Baxter a single question about promises and not one question about leniency.”
“But don’t you think, counselor, that had Mr. Raymond known of De Vivani’s promises, he would have confronted the lieutenant directly with them?”
“I don’t think that knowledge would have had any effect upon the trial,” Scott replied promptly.
“On the contrary, counselor, I think he would have landed on the lieutenant like a ton of bricks. Mr. Raymond could have inflated that two-bit promise into a sixty-four thousand dollar question. Do you mean to tell me that the jury is going to sit there and assume that that doesn’t mean anything? If they admit making those promises, you can imagine how much more they probably did promise. I have no doubt whatsoever that that testimony would have strengthened Raymond’s hand considerably.”
“Judge Turner found Iello’s statement, that he expected to do time, not perjurious,” Scott replied, “because at that time he did expect to serve time and had not presently existing promise of nonprosecution.”
“Promises, counselor,” Judge McCormick assured Scott, “in order to constitute basis for a new trial, need not be exact, concrete, definite and unequivocal. In the De Vivani’s tale Iello was uncertain of his identification of Calhoun. What then is your comment upon the argument that, if defense had had that taped information, it could have been most effective in cross-examination of Iello?”
“They would have had to be very careful how they employed that taped conversation, because if you read the entire transcript it is so inflammatory and so nonexculpatory that any defense counsel worth his salt would stay away from it with a ten-foot pole.”
“Should that not then be the choice of the defense to make?”
“In a perfect world, yes, your honor. But the U.S. Supreme Court rules do not hold that treading in a risky area entitles a defense to a new trial.”
“Why in the world should not defense counsel been afforded opportunity to accept or reject the risk incumbent upon treading in this area?
“We must not put burdens upon prosecutors.”
“What is unbearale about giving the defense a tape? How does that become an unbearable burden?”
“It makes it unbearable in that it means when a prosecutor has missed, then there is going to be a reversal of the conviction. I concede that a prosecutor’s primary duty is not to convict but to see justice done. But, after all, this is an adversary system and your adversary’s points are not exactly in the forefront of your mind when in the middle of a murder trial. A reversal of this case will mean that, if a police officer gives a witness some assurance, and the prosecutor doesn’t know about it, the case is going to be reversed. That is an unbearable burden upon a prosecutor.”
“Are you implying that everything that was done here should not be binding upon the prosecutor’s office? That a promise made is not binding upon the prosecutor?”
“The question is whether we’re going to say that a prosecutor is responsible for everything a police officer might say in the course of an investigation.”
Epstein had only been waiting for the strategic moment to bring forth the tape, which De Vivani had made Iello’s conversation before the first trial, and which Kerrigan had stolen from De Vivani’s files. It was played to a courtroom which held itself breathelessly still for fear of missing a word:
DE VIVANI: Here he comes now. See if you can get this thing working. Hi, how you doing?
IELLO: Good morning.
DE VIVANI: Let me take the handcuffs off, Nick, and we’ll get going.
DET. CONROY: Vince, just so you know, I’ve told Nick you want to hear it straight from the horse’s mouth.
DE VIVANI: Who is your parole officer, Nick?
IELLO: Eugene Barker.
DE VIVANI: A white man?
IELLO: Colored.
DE VIVANI: Reason I ask this, Nick, is for your own welfare. I am interested only in the truth, Nick. Not the truth that makes me happy, but what really is the truth. You give me that and I guarantee I will do everything to protect you within my power, and have your parole transferred to another state.
IELLO: Isn’t there some way I could get my parole dropped?
DE VIVANI: That I cannot promise. I’m taking this one step at a time. I asked you whether your parole officer was a colored man because I know you have fear of the colored people and their supposed movement where they are strictly for colored. Hear me now, I assure you I will go to the top people. I am not bullshitting. I’m trying to help Iello and I hope Iello is sincere with me. For example, if you were in that area because you were attempting a burglary, there would be nothing done on that. Even if I have to go before the grand jury for you. Because, look, this isn’t a case of attempting burglary, it’s a matter of triple murder: three people sitting in a bar minding their own business. Now I want the complete truth. You said Calhoun was the boy. You were evasive about the money in the register. That pulled us apart. I’m just trying to do my job to the best of my ability, Nick.
IELLO: Yeah.
DE VIVANI: Because I live by the good book. Now you’ve probably been living out this crime in your mind. Suppose you tell me, in your own words clearly and slowly, what your actions were on that Thursday night or early Friday morning. Who were you with when you first came into that area?
The Devil's Stocking Page 23
