FOR ALL OF Leon Friedman’s confidence, the chances that Carter would succeed in federal court were slim. In filing the appeal, Carter and his lawyers placed their hopes on one of the law’s most cherished concepts—the writ of habeas corpus. But the unique circumstances of Carter’s case made such a grant extremely unlikely.
The “great writ,” as it is known, dates back to the Magna Carta as a means of challenging arbitrary imprisonment. Habeas corpus is Latin for “release the body.” In the United States, the writ enables a federal court to overturn a criminal conviction by a state court on constitutional grounds—literally, to “release the body” of an unjustly convicted person. So sacred is this concept that in 1868, the U.S. Supreme Court called the great writ the “best and only sufficient defense of personal freedom.”
But the great writ is often seen, particularly in conservative circles, as hubris writ large. According to this view, habeas corpus benefits criminals by allowing their convictions to come under attack in federal court after all appeals in state court have been exhausted. Habeas corpus appeals, critics say, aggravate the relationship between the state and federal judiciary by permitting a federal judge to swoop in, declare a constitutional violation, and overturn a state conviction.
Such protests have always been a bit exaggerated. In reality, federal judges are reluctant to issue the writ. In 1985, the year Carter’s petition was filed, about 8,000 were filed by state prisoners, and only 3 percent, or 240 cases, were successful. The reluctance is understandable. Many petitions are simply last-gasp efforts by convicts whose appeals have no merit. Moreover, federal judges properly show deference to jury verdicts. Jurors, unlike a federal judge, were at the trial, they saw and heard the witnesses, and they evaluated the credibility of the evidence. Their verdicts represented the will of the community. Federal judges who would promiscuously overturn those verdicts would undermine faith in the jury system.
Thus, Carter’s petition was a statistical long shot, but it was problematic for other reasons as well. The case had already been thoroughly scrubbed by New Jersey courts. In its nineteen years, it had produced forty volumes of testimony from the first trial, fifty volumes from the second trial, twenty volumes from supplementary hearings, hundreds of exhibits, and four fully reported state supreme court opinions. No federal judge could pity Carter for not having had his day in court.
The sheer scope and complexity of this record presented significant obstacles for Carter. Somehow, he and his lawyers had to explain to a federal judge what the case was about, what constitutional violations had occurred, what the legal test was for judging the errors, and why the errors were sufficient to require that the convictions be overturned.
At the same time, a federal judge reviewing a habeas corpus petition is supposed to evaluate only the law, not the facts of the case. In theory, innocence or guilt is irrelevant in deciding whether to issue the writ. The determination is made strictly on whether unconstitutional means were used to convict. But the facts of the case do matter, because judges—already reluctant to overrule a jury’s decision—are even more skittish about throwing out a verdict if they believe the defendant is guilty. Carter knew that to win a federal appeal, he would have to convince a judge not only that he had been wrongfully convicted but also that he was innocent. He would therefore need a judge who was willing to read, analyze, and untangle the epic proceedings of the case, which by now had all of the enigmatic characters, convoluted plot twists, and grand contradictions of a Russian novel.
He also needed a judge with courage. Unlike a multimember appellate court, the judge sitting in the U.S. District Court in New Jersey would be acting by himself. There would be no unanimous verdict or split decision, no majority opinion and no dissent. There would simply be one person, one decision. The safe route, the easy route, the expected route, would be for a judge to affirm the convictions, to rubber stamp the status quo. This was not 1976, when Carter was the darling of the left and when Hollywood trendsetters hailed his liberation after the first conviction was thrown out. This time he had no constituency for his freedom save family and friends.
Regardless of what the record said, no matter how much new exculpatory evidence was unearthed, Rubin Carter was still a convicted racist triple murderer who, the last time he was on the streets, was accused by one of his most loyal female supporters of assault. At the height of President Reagan’s popularity and in the midst of rollbacks in civil rights and affirmative action programs, any judge who let Carter go free would do so with little public support. In the closely knit world of the New Jersey legal establishment, a federal judge who granted Carter the great writ would have to repudiate his peers in state court—supreme court justices, appellate judges, trial judges, prosecutors, and investigators. The federal judge would almost certainly face vilification for freeing a man twice convicted as a cold-blooded killer. And if Carter, once released, committed a heinous crime, the judge who freed him would be held responsible. Would any judge in New Jersey take such a chance? Would any judge even give Carter’s case the time it would take to make a fair determination? Finding such a judge could be Carter’s last hope for freedom.
Once Carter decided on November 14, 1984, to take his case to federal court, the petition took two months to complete. Petitions are simply complaints delivered to a court. Typically three or four pages long, they give an overview of the case and the grounds on which the appeal is being made. The court then determines whether the petition meets the criteria for further consideration. If it does, the petitioner files a formal motion and the state responds.
But given the tortuous history of Carter’s case, his lawyers, Beldock and Friedman, and the defendant himself felt a much longer petition was necessary. In fifty seven pages, it identified twelve separate grounds for habeas corpus relief.* The twelfth ground was the Caruso issue, which was still alive in New Jersey. Carter’s lawyers were going to argue that it was technically exhausted because of unreasonable delays by state courts and was therefore admissible in federal court.
The petition was filed on February 13. The case would be assigned to one of six judges in the Newark division of the U.S. District Court, where it was filed. Cases were assigned on a rotating basis, known as “going on the wheel.” When a new case came in, a court clerk would assign it to the next judge “on the wheel.” Carter hoped that Judge Clarkson Fisher, who had released him from the Vroom building in 1974, would draw his case. He believed that Fisher had treated him fairly before and would do so again. Instead, the wheel turned up a man Carter had never heard of. In fact, none of Carter’s lawyers knew much about Judge H. Lee Sarokin.
Sarokin was born in Perth Amboy, New Jersey, in 1928, the son of a newspaperman with a gritty, alliterative byline: Sam O. Sarokin. Initially a reporter for the New York World-Telegram, Sam Sarokin later bought a collection of New Jersey suburban weeklies and wrote editorials for them. He was a gifted wordsmith; friends kept his letters, filled with lapidary phrases and felicitous allusions, for decades. Lee Sarokin embraced his father’s love of writing, and a poem he wrote in high school showed an early sensitivity toward racial discrimination. Called “Sight,” it described a blind ten-year-old boy whose parents prevented him from playing with his “little colored chum.” (“He was blind in his eyes, but not as blind as many men who see.”)
Sarokin’s greatest passion, however, was his drums, and he played in a college jazz band called the Dartmouth Sextet. One summer the band hopped aboard an ocean liner for Europe, earning free passage by playing every night. In Europe they made their way to postwar Paris on bikes and knocked around jazz clubs, looking for work and scraping by on the fumes of ambition. One night, at a club called Vieux Columbia, the brilliant black American saxophonist James Moody invited Sarokin and his group onstage to play. Moody, impressed, asked the sextet back, then back again. Moody was only a few years older than the white musicians from Dartmouth, and they began to hang out together. One night in Moody’s apartment, Sarokin asked his new friend why he lived in Paris. It bothered him that so talented a musician was not performing back home. Moody, who grew up in Georgia, shrugged and said, “I’m much more comfortable in Paris than in the United States.”
Barred from sleeping in the nicer motels, prevented from eating in decent restaurants, Moody described discrimination in ways that Sarokin had never contemplated. The conversation stuck with the student. He was dismayed that this enormously talented musician had sought exile in Europe because he was not treated properly in the United States, and he thought that someday he would like to do something about it.
But back home, Sarokin largely sat out the civil rights movement. After graduating from Harvard Law School in 1953, he spent twenty-five years as a civil litigator, often representing individuals in product defect or negligence cases. He married, divorced, remarried, had three children, and was a well-respected if relatively unknown lawyer in Newark, then the center of New Jersey’s legal community. He thought that being a judge would be interesting—advocacy work, he felt, never quite suited his mild temperament—but he did not seek a judicial appointment. If he had not been an ardent basketball fan, he probably never would have made it to the bench.
In the early seventies, he was asked as a favor to do a real estate closing for the New York Knick star Bill Bradley. Sarokin didn’t do much real estate work, but in his younger days he had a pretty good jump shot, and he admired Bradley, who had graduated from Princeton. Sarokin was happy to take on this assignment, and he and Bradley became fast friends. Sarokin once challenged him to a game of one-on-one on a municipal court along the Jersey shore. Using the car headlights for illumination, they battled until midnight before their cheering wives. Bradley, by now retired from the NBA, won, but Sarokin, more than six inches shorter, gave him a respectable game.
In 1978 Bradley, a Democrat, ran for the U.S. Senate and selected Sarokin to be his finance chairman. Most lawyers have to contribute to or participate in many campaigns to secure the right political connections, but Sarokin’s first real campaign paid an immediate dividend. One year after Bradley’s landslide victory, President Carter named Sarokin to the federal district court in New Jersey. He did not take the job for the money—at $54,900 a year, he took a 75 percent pay cut.* He became a judge because he knew he had something to say.
Judge Sarokin would become a clarion voice for the little guy, defending the rights of the least powerful and protected in America against the forces of big government and big business. He took up the cudgel on behalf of the black firefighter facing layoffs, the long-term cigarette smoker dying of cancer, the disabled senior citizen fighting to maintain his social security benefits, and the mentally retarded child in need of an education. His anger was easily triggered, his sensitivities clear. Sarokin once fined an attorney from Jersey City $1,000 because the lawyer, in his closing argument, referred to a forty-two-year-old black plaintiff as “boy.” At a sentencing workshop at the Federal Correctional Institute in Butner, North Carolina, Sarokin met a young black man with no prior record who told him he was in prison for altering two $2 bills to $20 bills. He was sentenced to twenty years, ten years for each bill. Sarokin investigated the man’s story, discovered it was true, and—outraged—contacted the American Civil Liberties Union. The young man was eventually released on a pardon signed by President Reagan.
Sarokin’s record did not suggest a predisposition for issuing writs of habeas corpus. At the time of Carter’s petition, he had only issued one or two writs in his six years on the bench. Sarokin told his clerks that virtually every habeas petition that came into his office lacked merit. Many were made by prisoners who didn’t follow the procedural rules. But a judge, Sarokin said, must resist the urge to disregard the petitions because one in a hundred may have legitimate claims.
In his chambers, Sarokin was old-fashioned and low-key. He asked his clerks, usually trained at Harvard and Yale, to run out at lunchtime for his tuna sandwich and milk. But he made no effort to conceal his political leanings. The most prominent object hanging on the walls of his office was a framed photograph and letter from Senator Ted Kennedy, congratulating him on his appointment.
Sarokin proudly defended his judicial activism. He believed that judges had a responsibility to speak out on important social issues, to stimulate debate. His job was not simply to interpret the law but to influence public opinion, and he tried to do this by mixing wit, sarcasm, and ire in his rulings. While most judges rely on dry, cautious prose, Sarokin vented his emotions freely. His supporters praised his opinions as courageous and discerning; detractors said they were sanctimonious and preachy. But all agreed that his impassioned rulings set him far apart from his buttoned-down peers.
For example, in Hildebrand v. the United States, the Internal Revenue Service sought to impose personal liability on the volunteer trustees of a nonprofit organization that failed to pay withholding taxes. The organization had been established to assist the needy after the Newark riots. Sarokin ordered the IRS commissioner to appear before him in person, and, ruling that the agency could not hold the trustees of the charity liable, Sarokin wrote:
This matter portrays the government at its rigid and Orwellian bureaucratic worst. The plaintiffs in this action were engaged in selfless, dedicated charitable activity … The compassionate federal government, and particularly the well-known, warmhearted Internal Revenue Service, has chosen to reward them with personal liability for nonpayment of withholding taxes … Is it more important that withholding taxes be forwarded to the Treasury to be devoured by the giant bureaucratic monster or be utilized to provide food, shelter and care for the downtrodden?
In another case, he reprimanded the Small Business Administration for trying to collect a $300,000 loan from a destitute and mentally disturbed widow. He wrote, “Better to have no government at all than a government devoid of compassion and basic human decency.” And in yet another case he wrote, “This court has already concluded that the Department of Health and Human Services has no heart, but it appears now as if its brain is going as well.” In lambasting the sluggish movement of New Jersey lawmakers, Sarokin wrote, “While the Neros of Trenton fiddle, Newark burns.” Perhaps Sarokin’s most amusing opinion arose from a copyright dispute concerning Care Bears. In a three-page decision in verse, Sarokin ordered the defendants to stop manufacturing look-alike bears and said in part:
Children should be able to buy the bears they know.
Toys like these should bring happiness and laughter.
To find they own a different bear could be an awful blow.
Instead, the kids and “Care Bears” should live happily ever after.
But during his early years on the court, Sarokin drew the greatest attention for his opinions concerning race, specifically affirmative action disputes. He did not ask for these cases but got them because the other judges in the district give up part of their calendar when a new judge is appointed, disposing of cases they don’t want. In not-so-refined court parlance, this is known as “releasing the dogs.” When Sarokin arrived, the other judges were pleased to unload on him a kennelful of controversial cases about race.
This opportunity dovetailed with Sarokin’s own interests. His unabashedly liberal views ran against America’s conservative tide, and he relished saying so. “There is a distant and echoing bugle now heard in the land sounding the call for retreat from the battle against discrimination,” Sarokin wrote in 1981 in The United States v. New Jersey. “If we are to preserve our democracy, these are not times to retreat, but to advance the cause of civil rights.” He presided over a 1980 consent decree calling for an affirmative action program for minority firefighters in twelve New Jersey cities. When one of the cities, facing a fiscal crisis, threatened to lay off firefighters, a dispute arose over which group—whites, who had more seniority, or blacks, who were hired after a court-ordered decree in recognition of past discrimination—should suffer the brunt of the layoffs. The case was before Sarokin but the same issue was soon to be heard by the U.S. Supreme Court. He could have deferred making a ruling; instead, when asked by reporters in an off the record meeting, he said: “I know my decision is going to be reversed, but I have something important to say.” He ruled that the black firefighters should keep their jobs, but that the federal government should provide some financial compensation to the laid-off whites. Affirmative action plans, he wrote:
arose out of the recognition that this nation had oppressed its minority citizens, either purposefully or through the operation of more subtle social and economic forces. These plans seek more than to remove the nation s heel from the back of minorities, but to reach down and to lift up those persons who have been deprived and discriminated against for centuries. The plans recognize the insufficiency of merely removing existing barriers. Affirmative action is necessary in order that historical imbalances and inequities not be prolonged well into the future.
The ruling was hailed by liberal constitutional scholars like Laurence Tribe of Harvard. But the U.S. Supreme Court overturned Sarokin, as he expected, ruling that seniority rights and the practice of “last hired, first fired” should remain undisturbed. William Bradford Reynolds, who was in charge of the Justice Department’s Civil Rights Division under President Reagan, called Sarokin’s ruling “the most bizarre reading of the Constitution” he had ever seen, a derogation that Sarokin took as a compliment given its source.
Of this there was no doubt: Rubin Carter could not have personally chosen a judge more ideally suited to hear his case than H. Lee Sarokin. Numerous court observers doubt that any of the other five judges in the District Court’s Newark division would have considered Carter’s petition seriously. Louis Raveson, a Rutgers law professor who was also part of Carter’s defense team, said that Carter could not have found a more sympathetic judge in the entire country. Leon Friedman believed that regardless of which judge Carter drew, they had a better chance in federal court than in state court—but Friedman also knew they were quite lucky to draw Sarokin.
To Carter himself, it was confirmation that he was one step closer on his search for the miraculous.
On February 20, Sarokin issued an order to the state to file a response to Carter’s petition by March 31. The deadline passed, and the Prosecutor’s Office did not respond. Carter wanted his lawyers to file a Motion for Default Judgment in the district court. Friedman resisted, saying Sarokin would never rule in their favor on such a motion.
“It’s a waste of time,” he said. “Why go through with it?”
“I want to make them follow the rules,” Carter said, a telling comment for a man in prison.
The motion was filed.
To keep the pressure on, Terry Swinton, Sam Chaiton, and Ed Graves, a junior lawyer in Beldock’s law firm, assumed the task of filing all the relevant state court briefs, appendices, and opinions. The undertaking took a solid week of collating and photocopying. In April Swinton delivered the thirty-five-pound box of documents directly to Sarokin’s chambers at the federal district court in Newark.
The Motion for Default Judgment flushed the prosecutors out of the brush. They filed a response, arguing that the inclusion of the Caruso issue meant that Carter had not exhausted his state remedies. On those grounds they wanted the district court to disallow the petition and prevent the substance of the case to ever be debated. The wheels of justice had once again slogged to a halt.
Carter simmered at the delays. He called his lawyers at least once a day, asking for updates, barking at them, pushing them, demanding that they somehow “short-circuit the system.” If anyone knew how to, it was Friedman. He was the high priest of constitutional law, a professor who lectured about habeas corpus to federal judges at conferences, who had studied every habeas corpus writ ever issued, and who at times displayed a dazzling if off-beat intelligence. One morning, he and several others on Carter’s team were in a restaurant in Newark waiting to go to court; Friedman was intently reading court documents he was about to present. The restaurant was bustling, the eggs were frying, and an all news station blared on the radio. Still, Friedman read his documents and discussed the case’s finer points. About forty-five minutes later, while he was buttering a piece of toast, he looked up from his papers and said, “That’s the third time that story has come on the radio since we’ve been here.”
Friedman had an idea for “short-circuiting” the system, but it was risky. He suggested they file a Motion for Summary Judgment. Doing so meant there would be no hearings and no witnesses. They would simply file briefs and make oral arguments. The prosecutors would be expected to do the same. The judge would rule on the record, making, as it were, a “summary judgment.” Friedman believed that the existing record showed sufficient prosecutorial misconduct to carry the day and that Sarokin would not need to investigate further to find in Carter’s favor. Win or lose, it would be fast, efficient, and—for Carter—final.
The idea appealed to Carter’s pugilistic instincts. As a boxer, he always went for the knockout punch, quick and decisive. He hated going the distance, where his fate lay in the arbitrary hands of judges. Ironically, that was exactly what he chose by filing a summary judgment motion. But he wanted to be the aggressor, to stay on the offensive, and to keep the prosecutors on their heels. A Motion for Summary Judgment would force the showdown he craved.
But there was still the problem of the Caruso issue. In a proposal laid out by Friedman, Carter could file a “mixed petition,” which would have both exhausted and unexhausted claims, then he and his lawyers could write a separate brief arguing that the Caruso matter was technically exhausted. That argument, however, had little chance of winning. More likely, they would have to delete Caruso, which meant they would lose the evidence forever. Beldock and Steel, as before, disagreed with this all-or-nothing strategy. They did not want to lose what they considered to be the clearest evidence of prosecutorial misconduct.
Carter knew the facts of his case better than anyone, and (not lacking modesty) he believed he knew the law better than his own lawyers. He instructed them to file the “mixed petition” and, if necessary, to expunge the Caruso material. He then secretly ensured that his lawyers could not do otherwise. He wrote a letter to Sarokin, saying that if his lawyers were asked to remove the Caruso material from the petition and they failed to do so, then he, the judge, must remove his lawyers as his counsel. Carter gave the letter to Terry Swinton, who would be in the courthouse when the lawyers presented their oral arguments to Sarokin. Carter had fired a previous attorney, and he was prepared to do so again. The letter was never used, but it showed how Carter trusted no one, not even the lawyers who had served him loyally for so many years and who had no intentions of defying his wishes. The letter also underscored the urgency of his situation. Procedural delays were less important to his lawyers because time was not their enemy. But time was Carter’s enemy. He felt he had no more time to give the State of New Jersey.
Carter continued his daily conversations with Lisa, either on the phone or in person. She delivered his marching orders to Terry Swinton and Sam Chaiton as they helped the lawyers and quietly conducted their own investigation into the case, and she relayed all the information back to Carter. The pair still butted heads occasionally, but this time Carter did not let the tension escalate. He couldn’t afford to. He knew that as long as Lisa was committed to him, the entire commune would follow.
Swinton and Chaiton were his principal foot soldiers. Swinton and his sister, Kathy, were two of the original commune members and the only siblings in the group. Their father was an Austrian who had fled the Third Reich, moved to Canada, and become a successful businessman. Terry, born in 1946 in Montreal, took a different path in life. A barrel-chested student activist, he once told a reporter that he was expected to “wind up doing corporate law, living in the right part of town.” But he was more philosopher than capitalist—like Carter, a fan of Krishnamurti. His specialty was gardening, and his soothing presence served him well in his occasional role as the public face of the commune, dealing with reporters, real estate agents, and other outsiders. He was also Lisa’s partner for many years and her son’s de facto father.
In contrast, Chaiton was more dramatic and reactive, and the pair sometimes played “good cop, bad cop” while helping Carter. Chaiton would badger the lawyers for something, then Swinton would ask for it sweetly. Four years younger than Swinton, Chaiton was born in Toronto, the son of Jewish survivors of the Nazi concentration camp at Bergen-Belsen. He had been a student at the Toronto Dance Theatre before joining the commune around 1973. Balding and with a prominent Adam’s apple, he was smart and calculating, a good writer and an excellent instructor, who served as the principal teacher for Lisa’s son and then Lesra. He was also the commune’s astrologer and was the closest to Lisa.
Swinton and Chaiton fancied themselves a shadow law firm, calling themselves Carter and Partners. They were, initially, paralegals, couriers, and prison valets, delivering drafts of briefs among three Manhattan law offices and Rahway State Prison. (The lawyers rarely saw or spoke with Lisa and did not understand the dynamics of the group.) Swinton and Chaiton camped out in an office across the hall from Beldock’s. For weeks they photocopied records, organized exhibits, and proofread. As the motion slowly took shape, they retrieved from a file room a complete set of transcripts, stacked the documents in a cart, and hauled them into Graves’s office. There they checked a blizzard of citations that had to be used to support every statement in the motion. It is the least glamorous and most tedious part of practicing the law. But the Canadians would have done anything to help Carter, and their attention to detail impressed the veteran lawyers.
Steel referred to the Canadians, affectionately, as “this thing,” an alien presence that had mysteriously landed in their midst. He once told Swinton or Chaiton vaguely about some witness testifying in a long forgotten hearing. “Do you know what I mean?” Steel asked. Twenty minutes later, the Canadians returned with the transcript open to the correct page and asked, “Is this what you mean?”
The Canadians were not only true believers but irrepressible noodges. They saw themselves as Carter’s surrogates, and they would not let his lawyers relax. The first time Swinton met Leon Friedman, he stopped by the lawyer’s office to pick up a section of one of the briefs that was due shortly. Friedman came out to meet him.
“I’m Terry Swinton,” he said. “I’m working with Myron Beldock’s office on Rubin Carter’s appeal, and I understand that you have a section that’s ready and that it’s supposed to go over there.”
“It’s not ready yet,” Friedman told him.
“That’s okay,” Swinton said. “I’ll wait.”
Friedman, aghast, went up to his office and finished the section.
The Canadians’ passion to help Carter had an endearing purity—they had, after all, no apparent motive except righting a wrong—but their obsession with him could be trying. Lou Raveson, the Rutgers professor, said the Canadians were like insufferable clients who would not stop calling their lawyer and demanding more of him—but whose persistence, in the final analysis, was justified. Friedman said, “In some ways, they were difficult people because of their monomaniacalness. You sit around with them and you want to talk about baseball or the latest movie; but, no, they just want to talk about Rubin.”
Nonetheless, the Canadians gradually moved from gofers to fully trusted partners of the defense team. After the State of New Jersey filed answering papers to one of Carter’s briefs, Swinton and Chaiton photocopied every case that the prosecutor’s office cited. Shortly thereafter, Swinton grabbed Friedman.
“Leon, I know you are the world’s greatest expert on habeas corpus, but I was reading one of the cases that the prosecutors cited in their behalf, and I thought this might be helpful.” He then quoted some passages that Friedman knew very well, and Friedman explained why those passages were not helpful. But Swinton then cited another passage, and Friedman came up short.
“That statement is in that case?” he asked.
“Here it is,” Swinton said, showing him the goods.
It was a detail that Friedman had overlooked, and he immediately put it in the brief he was preparing.
Emboldened, the Canadians soon began rewriting passages without consulting anyone. When Friedman discovered an unfamiliar statement in one brief, he called Graves. “Who put this in?” he demanded.
“The Canadians put it in,” Graves said.
“Are you sure it’s right?” Friedman asked.
“Leon, if the Canadians say it’s right, it’s right.”
On another occasion, Friedman walked into his office and found Swinton typing away at his computer, reworking a brief. Friedman, who considered himself an accomplished writer and the man in charge of the appeal, was outraged.
“What the hell are you doing?” he fumed.
“I thought it sounded better this way,” Swinton said.
Friedman read it and had to agree.
The night before Carter’s lawyers were to appear before Sarokin, Swinton and Chaiton sat with them around the office, reviewing the prosecutors’ positions and preparing rebuttals. Chaiton spoke up: “Leon, I don’t know if you are interested, but I came up with a new way of meeting the argument about materiality,” that being the key issue in the Bello polygraph claim.
“Sam,” Friedman replied, “I am interested in anything you have to say.”
A division of labor was established for the motion and supporting briefs. The lawyers handled the legal analyses, and Carter and the Canadians wrote the facts. That included the ballistics evidence, the identification of Carter’s car, the evolving statements of key witnesses, the movements by the defendants on the night of the murders. Kathy Swinton, who had come to New Jersey to lend a hand, typed these sections out, and the Canadians delivered them at night to Beldock’s office in Manhattan. They first gave the passages to Ed Graves, who edited their work. Then a legal assistant, Amanda George, typed the information into a word processor, weaving it into the draft under review by all the lawyers. They often worked until five or six in the morning, consulting transcripts, checking citations, and proofreading.
To Beldock, creating the Motion for Summary Judgment and its supporting briefs the writing, the editing, the legal papers whipping back and forth across the Hudson River each night was the greatest example of teamwork he had ever experienced, filled with wonderfully creative touches. In one brief Beldock, who played the drums, slipped in the phrase “ground beat” as a subliminal reference to Sarokin’s musical passion. But the process of preparing the documents was often contentious. Carter, inspired by Lisa, pushed for more strident and accusatory language while the lawyers stressed the importance of standard legal prose.
“There is a traditional style of legal writing, an objective statement of facts, but Rubin didn’t accept that,” Ed Graves recalled. “He would edit word by word, sentence by sentence, and he wanted to advocate in every sentence of every filing.”
From the day Carter was initially convicted in 1967, he had accused New Jersey prosecutors and investigators of committing a crime against him, and that sentiment clearly emerged in the “Joint Memorandum Regarding Exhaustion of State Remedies,” which described in detail the contents of the Caruso file. The introduction read in part:
There is one overriding reason why this case has been such a protracted and exhausting ordeal: namely, petitioners [Carter and Artis] have never enjoyed a full, fair and unforced disclosure of the facts to which they have been constitutionally entitled. For the prosecution to now claim a lack of exhaustion is insufferably galling. It is akin to plucking a man’s eyes out and condemning him because he cannot see. The petitioner has always sought swift and effective administration of justice. It has consistently been the misconduct of the State, under the color of law, which has frustrated and prolonged its realization.
Habeas corpus motions typically run thirty pages. Carter and Artis, in consolidating their petitions, requested permission to file an extra-long Motion for Summary Judgment. It filled two hundred and fifty three pages, excluding tables and appendices. Neatly bound, it was almost two inches thick, with seventy-one separate references in the Table of Cases. The original twelve grounds for overturning the conviction were consolidated into seven.
Sarokin had played tennis a few times with the former prosecutor Burrell Ives Humphreys, but he had not followed Carter’s case and was apparently unfamiliar with its history. When Sarokin’s children learned that this new case had been assigned to him, they gave him a copy of Bob Dylan’s “Hurricane.” He declined to listen to it.
Though Sarokin had Carter’s motion, the Passaic County Prosecutor’s Office did not file a responding brief on the grounds that there were still unexhausted claims—the Caruso issue—in state court. Regardless, Sarokin scheduled a hearing for oral arguments.
It was held on Friday, July 26, 1985, at the U.S. Courthouse and Post Office in downtown Newark. Built in 1936, the neoclassical structure had a pale limestone exterior. The U.S. District Court, including Sarokin’s office, occupied the third floor. The wide hallways, ornate moldings, Greek statues, and marble pillars breathed quiet elegance. Chaiton and Swinton arrived at 9 A.M., a full hour before the hearing was to begin. They were to call their housemates at their apartment in Rahway as soon as the hearing ended, so they searched the floor for pay phones and found four: near the elevators, outside the bathroom in the jurors’ lounge, outside the press room, and between the clerk’s office and Sarokin’s chambers. They sat in the first row of spectator seats behind the waist-high wooden partition, armed with briefcase, briefs, and notepad. Carter’s cousin Ed Carter and two other friends were also in attendance.
About an hour later, Friedman, Beldock, Steel, and Graves entered the paneled courtroom and sat behind the counsel table next to the empty jurors’ box. Representing the state was First Assistant Passaic County Prosecutor John Goceljak, whose involvement in the case dated back eleven years. The former prosecutor, Humphreys, was now safely ensconced as a superior court judge in Hudson County.
Sarokin took the bench in his full length black robe. He was balding and soft-spoken, with dark-framed glasses and a long, angular face.
“Who wishes to be heard first?” Sarokin asked.
Friedman stood up. The first order of business was the Caruso brief. It was filed with the Motion for Summary Judgment and included detailed descriptions of alleged prosecutorial misconduct. But now Friedman was going to preempt any challenges by the prosecutor and delete the Caruso brief himself.
“Now, on the issue of exhaustion,” Friedman said, “we are today—and I told Mr. Goceljak this yesterday—we are amending our petition, formally amending our petition to delete the one unexhausted claim, the Caruso file … The respondent says one of them is unexhausted, and for that reason he has a defense to the whole thing. We are deleting it.”
“You do that formally?” Sarokin asked.
“We are formally doing that,” Friedman said. The discarded brief had still served a purpose: Sarokin had read it; and while it would now be expunged from the record, Carter’s camp assumed the information would cause him to doubt the state’s case further.
Friedman explained that John Artis was taking a “different procedural stance”—his lawyer, Lew Steel, continued to pursue the Caruso matter in state court. For Carter, Friedman said the exhaustion issue was over, “and we are now prepared to argue the merits.” Goceljak, denied any more opportunity to stall, agreed to debate the merits of the case.
Friedman, wearing a navy suit, his face tanned, looked comfortable before the judge. As a professor at Hofstra and a regular lecturer at judicial conferences, he was practiced in streamlining complex legal issues. He told Sarokin that the state used a theory of racial revenge to explain the Lafayette bar murders. The prosecutors, Friedman said, “argued to the jury in very forceful terms that the reason these three people were killed in the Lafayette bar was not for robbery, but only because they were white. Now, if the prosecutor had stood up before the jury and said something like this, ‘Ladies and gentlemen of the jury, blacks are a tribal people, and like tribes they seek revenge on anyone that attacks them, and not only are they tribal, they are murderous, because if any one of them are attacked by an outsider, they will seek revenge on an outsider’ … If the prosecutor had said it outright, there would be no issue. I mean, we would all agree you just can’t say all blacks are murderous and these people killed these white people because they are black. Now what the prosecutor tried to say is that there is a predicate for it … [But] what is there in this case that would justify the prosecutor’s effort to make this into a racial war murder? Was there any evidence that the underlying killing—did Conforti [a white man] kill Holloway [a black man] because of race? Any evidence of that? None whatsoever. Was there any evidence that the defendants knew the victim? Did they know Holloway? No evidence at all. The testimony was that they didn’t know the victim; they knew his stepson. Was there any evidence at all that Carter and Artis had hostility toward whites? … No evidence was introduced to demonstrate that the petitioners had had hostile attitudes toward whites.”
Point by point, Friedman shot down the “predicates” that prosecutors had used to convince the trial judge to allow the racial revenge theory. At its core, Friedman said, the prosecutors’ argument was: “‘Ladies and gentlemen of the jury, these defendants killed those victims because the defendants are black and the victims were white.’” Friedman said that as a purely legal issue, the state cannot appeal to race on that basis. “As we say in the brief, it is this whole appeal to blacks as the bogeymen who are going to come in and rape the white women and kill them. And that is exactly what it was.”
Friedman then turned to the issue of the Bello polygraph, describing how the wrong results had been given to the defense and used to reshape Bello’s trial testimony. The polygraph affair was a serpentine trail to follow, but Sarokin asked the kind of precise, technical questions that could only be asked if he had carefully read the motion. Friedman wrapped up after close to an hour and a half. Beldock, who had not intended to speak, stood up and added a few points that arose from Sarokin’s questions. Then Steel took the floor and assailed the state for relying on “group guilt” to convict Carter and Artis. “Both Mr. Beldock and I told [Judge Leopizzi], ‘When this race issue comes in, what are we to do?’ Can’t win. Because it overwhelms the process … It pollutes the process. It destroys the process.”
After a short recess Goceljak stood up, and it fell to the mild-mannered prosecutor to defend a case that he had not tried. Ronald Marmo, the intense chief assistant prosecutor who had tried the case with Humphreys, was apparently on vacation; he certainly would have been more adamant, if not persuasive, than the balding, plumpish Goceljak. Beginning in a defensive, almost apologetic vain, Goceljak said “that the two defendants, just the two defendants took it upon themselves to do their own brand of justice. Unfortunately, it happened to be in the context of racial revenge.”
Sarokin, who had already thought about what questions he would ask, cut to the heart of the race motive: “What evidence was there to support that argument?”
Goceljak said that after Frank Conforti, a white man, killed the black bartender, Holloway, Conforti was arrested, and there was testimony that “some of the neighborhood people who were primarily blacks had gathered in front of the tavern. They didn’t know what had precipitated the killing of Holloway; all they knew is he was dead. And there was testimony that certain of these individuals made some angry remarks to the police officers who escorted Conforti out.” Goceljak said that Carter and Artis were friends of Holloway’s stepson, Eddie Rawls, and later that night Rawls went to the police station and “caused a furor over the arrest of Conforti.”
Sarokin interjected: “How was any of that attributable or even admissible against the defendants in this case?”
Goceljak began to ramble. He said Carter saw Rawls and expressed his condolences, then Carter went on “what we call a search for guns” (disputed vigorously by the defense at the trial and in its federal briefs). Goceljak said there was talk in Paterson about a “shaking” in the community, which “applies to some type of unrest or whatever.” He said there was evidence that the slain bartender at the Lafayette bar was a bigot. “Now, when you put all of that together,” he said, “it indicates for their own purposes Carter and Artis decided they were going to revenge—avenge—the killing of their friend’s stepfather. So our contention is that this is not so much a racial revenge theory as it is—I’d like to denominate it a revenge theory that has racial overtones.”
Sarokin shifted in his chair. In his mind, the incidents did not explain why Carter and Artis specifically wanted to avenge the Holloway murder. He repeated his previous question: “How is the gathering of a group of blacks [relevant] to these defendants?”
Goceljak said that Carter had testified before a grand jury that he heard a “shaking” was going to occur. “Now it can be inferentially drawn that he might have heard about this group in front of the tavern where Holloway was shot. The point is, he was aware that there was a feeling—there was an uneasy feeling among the black community because Holloway had been shot.”
“Let’s assume that’s true. Does that go to his motivation?”
“Well –”
Sarokin, his voice rising, cut him off. “Suppose he saw a gathering, throwing stones, screaming, yelling—is that attributable to him?”
“It’s attributable to him,” Goceljak replied, “if there’s evidence to show that he acted upon it. Now, the professor mentioned that we were not able to per se attribute hostility to Carter. Well, I think the answer is to that, actions speak louder than words. If the jury were to find that Carter in fact was the individual, one of the individuals who did the killings, they could attribute to him the motive in that he had trained it upon himself to do this.”
Sarokin was flabbergasted. “But isn’t the order wrong there?” he boomed. The motive, he said, is supposed to explain the crime, not vice versa. Goceljak, abandoning his argument, said the prosecutor felt he had to introduce evidence of motive in the second trial because the absence of a motive in the first trial “did present a problem.”
Sarokin gave him one last opportunity to salvage his case. “Was there any testimony by virtue of anything either Mr. Carter or Mr. Artis said that would support this motive?”
Goceljak: “That they themselves said—other than Carter’s testifying that he knew there was going to be a shaking? That he had—he knew that it was the stepfather of his friend, and then his own action—I don’t think there’s anything else specifically where they had made comments.”
Beldock, Steel, and Friedman sat in quiet jubilation. For nine years Carter’s lawyers had argued that the racial revenge motive was an insidious appeal to racism unsupported by evidence, and for nine years the argument had fallen on the deaf ears of New Jersey judges. Finally, they had found a judge who would not countenance the prosecutors’ tribal inferences, twisted logic, and retrograde attitudes. As Goceljak said, jurors could attribute motive to Carter because he had trained it upon himself to do this, like a savage responding to jungle impulses.
Sarokin also grilled the hapless prosecutor about the Bello polygraph, and by the end of the hearing there was little doubt where his sympathies lay. After agreeing with Goceljak on the date on which his office had to file its responding brief—August 31—the judge threw an added bonbon to Carter’s lawyers: “If the respondent’s brief is as good as the petitioners’ brief, further oral argument may not be necessary.”
“I’ll try not to make it as long, Judge,” the prosecutor said dryly.
As Sarokin was about to step off the bench, Ed Carter could not contain his joy. “Have a nice vacation, Judge!” He then leaned forward and whispered to Swinton and Chaiton, “Damn! I hope nothin’ happens to him over the summer!”
* John Artis filed a separate petition that incorporated all of the grounds in Carter’s petition and added three more that applied to him alone.
* According to Sarokin, federal judges used to say they were the lowest paid people in the courtroom—excluding, one assumes, prisoners.