IN HIS RAHWAY CELL, Rubin Carter took out the yellow notepad that he used to track the progress of his case. He had just gotten off the phone with his elated lawyers, who called him from outside the courtroom. Carter had already read some of Sarokin’s opinions, and his lawyers confirmed his belief that the judge would view his case as another example of overbearing agents of the state trampling the rights of a citizen. Carter wrote on his notepad: “Orals Federal Court. For all intents and purposes, it appears that we may have won our arguments. Wow!! The judge gave the state 35 days to answer.”
Carter realized that Lisa had urged him to transfer to Rahway to prepare him for his next transfer—to Toronto. For now, he had suspended his qualms about her communal way of life and looked forward to living in a safe, comfortable home, far beyond the reach of anyone in New Jersey. Meanwhile, the Canadians continued to help him transform his cell. When his onion bulb eventually withered away, he told Terry Swinton of the setback. “Can you get me some flowers?” he asked.
That was no small request. The prison, oddly, prohibited inmates from having flowers in their cells, but breaking the rules made the Canadians’ next caper—plant smuggling—all the more alluring. As part of a food package, they brought in a green bulb with a papery skin that looked like an onion. They told a puzzled guard in the mailroom, who inspected it, that it was a Jamaican root vegetable called an obeah. You boil it and eat it. The guard accepted the story, unaware that obeah is Jamaican for “voodoo.” Carter now had his prized contra band, an amaryllis bulb. He quietly scooped dirt from the prison yard, packed it in plastic food containers, and planted the bulb, half in, half out. But there were problems.
“Do you have light in the cell?” Swinton asked.
“I have one light,” Carter said.
Swinton explained that to blossom, the bulb needed sunlight; otherwise it would die. He had an idea. “If you get a bank of lights, they will act like the sun.”
Carter knew that an inmate can get anything he wanted in prison: drugs, weapons, alcohol, women—you name it, it’s available. Now, he had to get … the sun. He asked one of the inmates, a skilled carpenter, to build a light fixture that held a half-dozen light bulbs above the shelf where the amaryllis was planted. Basking in the light of this bright jury-rigged orb, the bulb fired out a tall green stem that gave way to five huge purple blossoms. Guards, instead of confiscating it, complimented Carter on its vibrant color; one guard, needing to buy flowers for his wife, asked Carter the name of his bloom. The Canadians next brought in daffodils and other perennials. Carter kept some and gave away the rest to other prisoners, prompting discussions of soil texture and watering schedules on 6 Wing.
As yet another manifestation of the outside world appeared in his cell, Carter began to feel that he could influence the outside world itself. When he realized that a man in an adjacent cell was dying from lymph cancer, he feared that the authorities would let him waste away. So he called the Canadians and told them to call the New Jersey Department of Corrections. “Don’t identify yourself,” Carter said, “but tell the department that a man is dying of lymph cancer in Rahway State Prison, in 6 Wing Left, cell 36. If he is not taken to a hospital, tell them you will personally call every newspaper around and tell them how you let people die in your prisons.” The prisoner was soon taken to an outside hospital, where he received chemotherapy.
Back in the courthouse, Sarokin was preparing his decision. He knew his ruling, however it turned out, would be appealed by the losing side and an appellate court would carefully scrutinize his opinion, and he needed extra manpower to help him with the unusual length and complexity of the case. Law clerks are generally responsible for checking the accuracy of the briefs, including the factual record and the legal citations. Under the direction of a judge, the clerks also draft the body of the opinion. But Sarokin’s two clerks could not tackle the Carter case in addition to their existing responsibilities. The appendix to Carter’s Motion for Summary Judgment was more than twenty thousand pages, including transcripts from trials and hearings, motions, briefs, police records, newspaper articles, and court exhibits. So Sarokin got permission to hire a clerk specifically for this case, and he approached Bruce Rosen. A bearded reporter with dark lank hair, Rosen had written numerous (and essentially flattering) stories about Sarokin for the Bergen Record. He was also an aspiring lawyer and took classes at Seton Hall Law School. In August, after the oral arguments, Sarokin invited Rosen into his chambers and told him he had the Carter case before him.
“I think this is very important,” the judge said. “I think a grave injustice has been done. But I can’t tell you what I’m going to do until you agree to work for me.”
Bruce Rosen knew exactly what Sarokin was going to do. Accepting the offer would force him to take a 50 percent pay cut from his $35,000-a-year reporter’s salary, would divert him from his law studies, and would eat into his time with his wife and two young children. But Rosen was a huge Bob Dylan fan. He’d covered Dylan’s concert at the Clinton Correction Institution for Women, and he was familiar with Carter’s case. He knew this job would not be a conventional clerkship. It would be part of history. He accepted Sarokin’s offer.
While Carter’s lawyers had other clients to serve—clients who, not incidentally, generated revenue—Carter and the Canadians were preparing for the next battle. While waiting for the prosecutors to file their responding brief, they began working on the petitioners’ reply. Once the prosecutors filed, Carter would only get one week to submit his response. So he and the Canadians reviewed the prosecutors’ main state briefs, anticipating a recapitulation of the same arguments. They began writing their rebuttals in advance, specifically on the factual portions of the case.
The prosecutors filed their papers, “Respondents’ Brief in Opposition to Petitioners’ Motion for Summary Judgment and Habeas Corpus Relief,” on August 30. It was one hundred and fifty-seven pages long. Once again working all-night sessions, Carter and his team effectively used the prosecutors’ brief to their own advantage. They wrote in their reply brief that the state’s case, by its own words, was so riddled with contradictions and inconsistencies that no reasonable person could conclude that the defendants were guilty. From the case it presented in 1976, the state would have the court believe that the police had on the night of the crime the following evidence: Valentine’s identification of Carter’s car at the scene of the crime; Bello’s accurate description of two men who resembled Carter and Artis; Bello’s identification of Carter’s car as the getaway car at the scene of the crime and at police headquarters; an officer finding a .32-caliber bullet and a 12-gauge shotgun shell in Carter’s car; Carter and Artis failing lie detector tests; Carter and Artis giving conflicting statements. According to Carter’s reply brief:
If all the above is true, as [the prosecutors] maintain, how is it even conceivable that Carter and Artis were released by the police that day, not charged with anything or even held as suspects in the face of this mountain of incriminating evidence? How also with all this “evidence” could Lieutenant DeSimone go on to effectively exonerate the petitioners before the grand jury twelve days later? (Including, of course, telling the grand jury that Carter and Artis passed their lie detector tests.) Obviously, the answer is that the above evidence did not exist.
At the end of the brief, Beldock included an unusual but fitting footnote: “Counsel acknowledge the substantial assistance of petitioner Carter in the preparation of the factual discussions in the brief.” He also wanted to mention Swinton and Chaiton, but, in keeping with their private ways, the Canadians politely declined.
With all the briefs finally in hand, Sarokin turned to Bruce Rosen on his first day of work. “This is what we’re going to do,” he said, pointing to the defendant’s Motion for Summary Judgment on his desk. “There are seven reasons why the defense thinks it should get relief.” He ticked off each of the seven on the open pages before him. “I want you to research point one and point two, and I don’t want you to research the others,” he continued, striking off the unavailing points with his pen. Points one and two were the state’s racial revenge theory and the state’s failure to disclose the results of the Bello lie detector test. “I’ve read the briefs,” Sarokin said, “and this is how I think it should come out. Show me whether I’m right or wrong.”
Rosen squirreled himself away in the tiny office used by Sarokin’s clerks, reviewing the briefs, checking their accuracy against a twenty-thousand-page record, reconciling factual disputes, and beginning to hammer out his boss’s opinion. For the Brady violation on the Bello polygraph, Rosen, as instructed by Sarokin, basically adopted the dissent in the 1982 New Jersey Supreme Court ruling. But finding in favor of the defense on racial revenge took more work because no judge had ever found a constitutional violation on those grounds. To support Sarokin’s position, Rosen drew on previous court rulings to establish the proper use of motive and race in a criminal proceeding and to determine whether an improper use of either violated Carter’s right to a fair trial. Rosen ultimately quoted from or cited more than eighteen cases, creating the standards by which Carter’s own case could be tested.
The weeks dragged on for Carter. Confident but tense, he began preparing himself to leave prison. It was autumn, so the Canadians bought him a sheepskin jacket (similar to the one they bought for Lesra), an olive sweater, a button-down cotton shirt, pleated wool slacks, and brown leather boots. He wanted to leave in style, casual but polished, a clear sign that he had not been defeated by the prison.
There was one hitch. When the Canadians checked the clothing at the Rahway mailroom, a guard pulled out a ruler and measured the boots from the heel to the top of the ankle. The boots, alas, were too high by a quarter of an inch. But Chaiton and Swinton were not going to let a witless shoe rule interfere with Carter’s sartorial desires. On Chaiton’s next contact visit with Carter, he entered the visiting room wearing the brown leather boots. The two men sat across from each other, and at one point during the conversation Carter removed his battered black shoes; Chaiton did the same with the boots. When it was time to wrap up, Carter walked out of the visiting room wearing a fine pair of brown leather boots; Chaiton left in a pair of old black shoes.
As fall moved toward winter, the silence from the courthouse made Carter nervous. What was taking so long? Was there a joker in the deck? His confidence began to falter. Three years earlier, he had been certain that the New Jersey Supreme Court would rule in his favor. Maybe Sarokin would disappoint him as well. Clumps of hair began falling out of his head. He slept fitfully. He couldn’t eat. The hypnotic rhythms of the prison—count up, count up, all wings count up, yard in, yard out – began to make him dizzy.
Finally, on November 6, Bruce Rosen called Beldock’s office to report that Judge Sarokin’s decision would be released the following morning. He also called the prosecutor’s office—but was met with silence. Rosen figured that the prosecutors knew the news would be bad. Court watchers familiar with Sarokin’s record began flinging rumors around. “They’re letting the Hurricane go! They’re letting the Hurricane go!”
Back in Rahway, Carter was told that the next day was decision day, and his spirits soared. He promptly began clearing out his cell and distributing his belongings to other prisoners. He gave away his Ouspensky books, his plants, his Impressionist paintings, his musical tapes, his Persian rug, his typewriter, his monogrammed towels, and his brown velvet robe—all the civilizing influences brought by Lisa and her cohorts. He even gave away his electric coil, which had cooked his meals for almost two decades. When a prisoner emptied his cell, it meant one of three things: he was crazy, he was going to commit suicide, or he was going home. Rubin Carter was going home. Swinton stopped by at night and picked up his court papers, his other writings, and a few personal belongings. By the time Carter returned to his cell, he had nothing. His living space, oddly, had returned to the hard, ascetic cell that he had survived in for so many years. It now felt … empty.
Lying on his cot, Carter decided that staying in the cell was no longer an option. In reality, he might very well have to stay. Even if his conviction was overturned, he would still stand indicted for murder, and he could be held in prison without bail. But in Carter’s mind he was walking out the next day. He was either walking out under the authority of Judge Sarokin or he was walking out on his own. And if they killed him as he walked out of prison, that was fine by him also. Either way, he would no longer be held captive by the State of New Jersey. Either way, Rubin Carter, #45472, was going home.
The next morning, a Thursday, Ed Graves and Lewis Steel drove to the federal courthouse in Newark. Kathy and Terry Swinton had arrived at nine-thirty and were waiting by the phone. Absent was Sam Chaiton, who was house hunting up in Toronto so that the commune, now including Carter, could immediately move into a large, comfortable dwelling. There was a delay at the courthouse because the opinions were late coming back from the printer. It was now almost eleven. Finally, Graves and Steel were called into Sarokin’s chambers. Terry Swinton called Lisa, who was already on the line with Carter. A three-way hookup was established. Lesra, Gus Sinclair, and the others were back in Toronto, waiting.
Rosen met the lawyers outside Sarokin’s office in a vestibule.
“Congratulations,” Rosen said, handing Graves the opinion.
Graves thrust the opinion over his head, raced out into the hall, and screamed, “We did it! We won! We won!” Terry Swinton blurted the same words over the phone, and Carter, stunned, raised his eyes and shouted: “We won! We won!” In minutes, word had swept through the prison, then radios were carrying the news. Carter tried to get Swinton to read him the opinion, but inmates flocked around him, patting him on the back. “Rube, you’ve won!” “Rube, you’re on the radio!” From a Rahway apartment to Manhattan law offices to a home in Toronto to the prison itself, there were hugs and tears and gratitude and astonishment. The journey had been a success, and it was miraculous.
The opinion itself was long, seventy pages. Sarokin found that the state had violated the constitutional rights of Carter and Artis on two separate grounds: that the state violated the requirements of Brady v. Maryland by failing to disclose the results of the lie detector test given to the state’s only eyewitness, Alfred Bello; and the state, in claiming the killings were motivated by racial revenge, violated the Equal Protection and Due Process rights of petitioners by improperly appealing to racial prejudice. Both violations, Sarokin concluded, were vital in helping the state convict the defendants, and therefore the violations met the legal standard for overturning the convictions. In short, the state had cheated.
Even by Sarokin’s own standards, it was an audacious opinion. He could have overturned the convictions exclusively on the Brady violation, citing the arid details of the prosecutors’ failure to disclose crucial evidence. The dissenting justices in the state supreme court decision in ’82 had already laid out the legal reasoning behind the Brady violation. Had Sarokin simply adopted that reasoning and stopped there, he would have, in effect, sided with the minority opinion, but the foundation for such an opinion would already have been laid. That was not the case with the racial revenge issue. He had to support his decision with his own legal reasoning, citing appropriate precedents, applying them to Carter’s case, and drawing conclusions that no judge had ever reached before.
While Rosen drafted a dispassionate narrative of the case, Sarokin supplied the thunderbolts, writing his own introduction and conclusion, inserting a few choice passages and deleting others. True to form, he used the opinion to speak out on the insidious role of racism in America and the need to protect individuals against the unlimited power of the state. His aim was not simply to overturn a wrongful conviction. It was to shame the prosecutors, judge, and investigators who were responsible for it. “The court has determined that the writ must issue,” Sarokin wrote in the introduction.
The extensive record clearly demonstrates that petitioners’ convictions were predicated upon an appeal to racism rather than reason, and concealment rather than disclosure. The jury was permitted to draw inferences of guilt based solely upon the race of the petitioners, but yet was denied information which may have supported their claims of innocence. To permit convictions to stand which have as their foundation appeals to racial prejudice and the withholding of evidence critical to the defense, is to commit a violation of the Constitution as heinous as the crimes for which these petitioners were tried and convicted.
Sarokin belittled the prosecutors at almost every turn. He concluded that the evidence used to support the revenge theory did not implicate the defendants and should never have been allowed in the trial. The core of the state’s argument, he wrote, was the following:
A white man killed a black man. Petitioners were friends of the stepson of the victim and expressed their condolences. They heard there might be a “shaking.” Ergo—they set out to murder four strangers solely because they were white as an act of revenge, and notwithstanding that one of the alleged murderers was well known in the community and easily recognizable.
Underlying the prosecutor’s theory and summation is the insidious and repugnant argument that this heinous crime is to be understood and explained solely because the petitioners are black and the victims are white. Without that unacceptable assumption, the prosecution’s theory of racial revenge becomes a thin thread of largely irrelevant evidence and impermissible inferences.
… Obviously, the death of the stepfather of the petitioners’ friend, standing alone, would never explain why petitioners would shoot four innocent persons who were strangers to them. Notwithstanding the lack of evidence that petitioners had a background of racial animosity against whites or had any such feelings after the specific death involved, the prosecutor was permitted to render the illogical logical, by relying upon petitioners’ blackness and the victims’ whiteness. Thus the jury was able to draw inferences based solely on the race of the petitioners and the victims. An appeal to racial prejudice and bias must be deplored in any jury trial and certainly where charges of murder are involved. For the state to contend that an accused has the motive to commit murder solely because of his membership in a racial group is an argument which should never be permitted to sway a jury or provide the basis of a conviction.
Sarokin did not rule on the defendants’ guilt or innocence, but he did attack the state’s evidence. While the prosecutor told the jury that there were “six strands of rope” to convict the defendants, Sarokin said that each strand was “frayed.” He then wrote in detail why the evidence was weak. The strategy by Carter and his lawyers paid off. By submitting lengthy briefs, detailing the flawed investigation over hundreds of pages and including the Caruso material in a supporting brief, they had created an unshakable doubt in Sarokin’s mind about the guilt of Carter and Artis. In one section, Sarokin wrote almost verbatim from Carter’s reply brief about the improbability of the police releasing Carter and Artis after the murders if indeed the police had—as the state alleged—so much evidence against them.
There was one other important decision to address: appropriate relief. Sarokin and Rosen had numerous discussions about what language they might use to dissuade the state from trying the defendants a third time. Sarokin used several rhetorical tactics, emphasizing practical problems, disparaging (again) the state’s case, and pleading for compassion.
The killings that led to the petitioners’ indictment and conviction occurred nearly 20 years ago, and to retry such conflicting events, further aggravated by dim memories, does not appear to serve the interests of justice. Moreover, to again use Bello as such a key witness, after his unbelievable series of recantations and recantations of his recantations, his complete and utter malleability at the hands of all parties, and his own sordid criminal history, would probably place his competency as a witness beyond the outer limits of due process. Yet, even though a new trial may very well be a practical impossibility, this is a decision that in the interests of comity should be made by the state … Therefore, the court will grant the writ as to both petitioners, mindful that the state can seek a retrial, but hopeful that constitutional considerations, as well as justice and compassion, will prevail.
The opinion was shot through with irony: the very arguments that the prosecutors had used to convict Carter and Artis were now being directed back at them. Prosecutors had gone to endless lengths trying to prove that Bello had been manipulated by outside mercenaries—literary agents, screenwriters, and journalists—to recant his initial testimony. Now Sarokin concluded that in fact it was the prosecutors who, using the false results of the polygraph, had manipulated Bello into providing damning testimony against the defendants.
Similarly, Prosecutor Humphreys, in his summation, said that racism was an undeniable reality of America, using that theme to ascribe motive for the murders. “None of us like to admit that things like race prejudice exist,” Humphreys said. “… As much as you may want to look away, as much as you may want to say [the murders] couldn’t have happened for that reason, it did happen for that reason.”
Now Sarokin, in his conclusion, turned that argument on Humphreys: “It would be naïve not to recognize that some prejudice, bias and fear lurks in all of us. But to permit a conviction to be urged based upon such factors or to permit a conviction to stand having utilized such factors diminishes our fundamental constitutional rights.”
He added:
Furthermore, the prosecution has resources unavailable to the average criminal defendant. Therefore, it is imperative that information which is essential to the defense in the hands of the prosecution be made available to the accused. If trials are indeed searches for the truth rather than efforts to conceal it, full and fair disclosure is necessary to protect and preserve the rights of the accused against the awesome power of the state.
It would be some time before Carter and his lawyers could read and analyze the opinion. The immediate issue, on its release, was how much longer Carter would have to stay in prison. From the courthouse telephone, Ed Graves read to Carter that Sarokin recommended that the state not retry the case. But Carter had been down that road before. He assured Graves that his adversaries were not about to quit and urged him to immediately file a motion demanding his release, to stay on the attack, and not to let his enemies regroup. But Graves, after consulting with the other lawyers, told Carter that the prosecutors had until the following week to respond to any motion regarding his discharge. Besides, Graves said, they should give prosecutors the time as a matter of “professional courtesy.”
Carter was livid: “Did you say courtesy? Was what they did to me courteous? I got no reason to be courteous, Ed. You tell those bastard prosecutors that they’ve got until this afternoon to read the goddamn thing and be in court.”
Graves called the prosecutor’s office and spoke to Goceljak, telling him that at two that afternoon they were going to make a motion to have Carter released immediately. Goceljak said they hadn’t read the decision yet. Fine, Graves said, we’ll give you twenty-four hours. Goceljak agreed to be in court the next day—unaware that he could have taken a whole week. Carter, at last, had his opponent on the ropes, and he was not about to let up.
Back at the prison, the inmates continued to rattle cups, holler, and give Carter hugs, handshakes, and high-fives. So did several of the guards. Television helicopters swooped above, getting aerial shots for the evening news. Newspaper, television, and radio reporters arrived, desperate for the first interview. But Carter was keeping a low profile, declining all interviews.
Not everyone at Rahway was thrilled. In Carter’s epic battle of wills with prison authorities, there was still time for one more skirmish. The prison had private rooms where inmates could meet with their lawyers. Over the years, at Rahway and Trenton, Carter had always met his lawyers in these rooms. The night Sarokin decreed that his conviction was illegal, his lawyer Harold Cassidy arrived at the prison to go over the next day’s procedures. A guard walked Carter out of his wing and through the prison hub. Three years earlier, it had been Cassidy who went to Trenton State Prison and told Carter of his crushing loss in the state supreme court. Tonight’s rendezvous would be emotional and triumphant—but then Carter realized the guard was taking him toward the area for “window visits,” where inmates sit behind bulletproof glass. The authorities were going to treat him, a wrongfully convicted man, like a dangerous prisoner, like scum. Carter had won, but the prison took one last opportunity to make him submit to its rules, to try to humiliate him.
Carter stopped just as he reached the window visiting area. He looked up at the guard. “You can kiss my ass,” he said. He turned and walked back toward his cell. Even in victory—especially in victory—Carter would not succumb to his captors. Soon, a guard told Cassidy: “Rubin Carter refuses to see all visitors.” Cassidy got back in his car and drove away, unaware of what had actually happened.
The next day, Friday, November 8, was sunny and beautiful. Carter was escorted by a motorcade of federal marshals to the federal courthouse in Newark. The building was surrounded by reporters, television crews, and curiosity-seekers, all jostling for position. Police officers tried to maintain order. With the front of the courthouse jammed, the marshals took Carter through the back. Even there reporters were congealed around the sidewalk, door, and stairwell.
Carter was not a free man yet. He wore handcuffs, a restraining belt around his waist, and chains that ran from the handcuffs to the belt to shackles around his legs. But Carter had worn these bindings so often, he moved naturally, as if he wasn’t a prisoner at all. As he waded through the crowd, he kept hearing shouts: “Where’s Rubin?” “Where’s the Hurricane?” No one recognized him. No one. Onlookers who were searching for a bald head, a goatee, and a solid slag of muscle did not recognize this man, now forty-eight, physically trim, with a full Afro, mustache, and eyeglasses. Four years earlier, at the polygraph hearing in Paterson, he had had the same experience. To Carter, his anonymity was magic, proof that his years of study and self-reflection had indeed transformed him. He smiled.
Carter was released from his handcuffs and shackles before he reached the packed third-floor courtroom. He walked in and made his way to his lawyers’ table. Dave Anderson, in a column in the New York Times the following day, said that Carter “appeared to have walked out of a men’s shop window instead of his Rahway prison cell.” He was greeted with hugs by Beldock. Also at the table were Lewis Steel and Ed Graves, as well as his New Jersey legal team, Harold Cassidy, Lou Raveson, Jeff Fogel, and Ron Busch. To Carter’s regret, Leon Friedman had not been able to get away from a conference he was chairing. Carter looked in the gallery and saw Terry and Kathy Swinton, who nodded at him, a signal that their plans were set. He also saw Ed Carter, John Artis and his wife, Dolly, and New York Times reporters Selwyn Raab and Dave Anderson.
Goceljak and Ronald Marmo represented the Passaic County Prosecutor’s Office.
Judge Sarokin took his place on the bench, Rosen standing at the side. Carter peered at Sarokin and thought his features—the receding hairline, the penetrating eyes, the winglike expanse of his robe, the glasses—made him look like an eagle. Carter always had confidence in his instincts about other people, his ability to quickly judge character and motivations. He looked at Sarokin for a long time and was convinced—absolutely convinced—that the judge could see the truth and would do the right thing.
The issue was straightforward: whether Carter would be set free or kept in prison. Steel, however, spoke first on the last remaining issue for his client, Artis. On October 29, the New Jersey Supreme Court denied certification on the Caruso file. For all the excitement about it, the former investigator’s notes turned out to have little value as an issue for appeal. But this time the rejection by the state’s highest court was a blessing. Steel told Sarokin that his client’s claims were officially exhausted in state court, thereby removing any uncertainty that Artis was also entitled to the writ.
Sarokin asked the prosecutors if they had any objections. They had none.
He signed an order that officially granted the writ of habeas corpus to Artis.
Beldock spoke next.
“I wish to apply, in accordance with the Order to Show Cause, that Your Honor release Mr. Carter, to enlarge his release and that you do so unconditionally … We do not have funds. I trust Your Honor will not require there be any bail in the sense of security posted.”
“Why don’t I hear from the prosecution as to what, if anything, they suggest that I do, and then we will decide what we are going to do,” Sarokin replied.
As Carter had predicted, the prosecutors were not about to give in. Goceljak told Sarokin that they intended to file a notice of appeal that afternoon with the U.S. Third Circuit Court of Appeals, and that appeal gave them the right to ask Sarokin to keep Carter in prison. Goceljak explained that Carter was a “threat to the community. Chief Assistant Prosecutor Marmo is prepared to discuss that aspect of our application. I am representing to this court that we—”
“A risk to the community,” Sarokin interrupted, “that has arisen subsequent to these charges?”
Carter’s supporters, who had come to celebrate his liberation, gasped as they realized the prosecutors were going to try to keep him in prison. Marmo stood up. While Carter and his lawyers viewed Goceljak as a functionary, Marmo had a bit more at stake, for he had tried the case with Humphreys. It was, surely, the most widely publicized case of Marmo’s career, as he helped the prosecutor’s office overcome the incursion of the “Madison Avenue hucksters.” Now his convictions lay in tatters, the taint of racism hung over his head, and he stood face to face with Sarokin. He had molten to dissuade the judge from releasing Carter.
“We suggest to you, sir, that if you look at the defendant Carter’s background, every aspect of his background, Your Honor, suggests a man who is a risk to the community, a man who is dangerous, who is violent and who is a legitimate threat to the community.”
Suddenly, the decorous legalese was thrown out the window, and Marmo revealed how Carter was viewed inside the prosecutor’s office: “If you look at his juvenile record, if you look at his adult criminal record, if you look, sir, at his military record, if you look at his psychiatric record, I suggest to you, you will find the most frightening statements you have ever read in a psychiatric report. They were to me, and I have been a prosecutor eighteen years, and I am accustomed to reading what psychiatrists say about people.”
Marmo came with the psychiatric reports in hand—the very reports that the prosecution team read before deciding to retry Carter in ’76, the reports that confirmed to them that this man should never walk the streets. “What is startling here,” Marmo said, “is the fact that the authorities in prison predicted that the offense we contend the defend ant committed would in fact occur. They said, Your Honor, ‘He continues to be assaultive, aggressive, hostile, negativistic, sadistic, he thinks he is superior, he has grandiose paranoid delusions, this individual is as dangerous to society now, as the day he was incarcerated.’”
Marmo neglected to mention when the report had been written. Sarokin would not be fooled.
“What is the date of that?” the judge asked.
“Nineteen fifty-nine, and these same findings are adopted and continued by psychiatrists into the 1970s.” Marmo began reciting from another psychiatric report, but Sarokin cut him off.
“Again, I would appreciate it if you would give me the dates.”
Marmo acknowledged that this report too was from 1959, but he was undeterred by the dust of twenty-six years.
“I am interested in evaluations that were made since his last incarceration,” Sarokin said.
Marmo had not spent all of his aging bullets. “I am going to get to that, Judge. This is by Dr. Farrell: ‘He is an emotionally unstable, aggressive individual, embittered, hostile. When the time arrives that Rubin’s ring aspirations do not exist, he will become more aggressive …’ Another doctor, Dr. Carlin, says, ‘This man appears to be extremely dangerous.’ These were examinations and diagnoses and impressions that were made in ’59 and ’60, before [the Lafayette bar murders] occurred. When he returned to the [prison] and was examined by psychiatrists again in the 1970s, the psychological and psychiatric examinations of 1959 and the 1960s seem to sum this man up very well …”
Sarokin again asked the date of one of the examinations.
“This is 1970,” Marmo said.
“You mean there hasn’t been one in fifteen years?”
In fact, Carter had refused to see any more prison psychiatrists after 1970, holding them, like the other prison officials, in contempt. The psychiatrists were paid in part to determine whether an inmate had been rehabilitated, but Carter, insisting on his innocence, refused to cooperate. He was proudly unrepentant of a crime he did not commit—an attitude that ended the possibility of a productive relationship with a prison shrink.
“Have there been any instances of violence,” Sarokin asked, “in the last ten years?”
“Judge, he wasn’t out of prison for one month when he assaulted a woman, punched her, kicked her, and stomped her,” Marmo said, referring to Carolyn Kelley’s allegations. He continued that Carter “had all kinds of disciplinary violations well into the eighties … What I am suggesting to Your Honor is that there isn’t a place in Rubin Carter’s past where you can’t look, whether it is a juvenile record, his school record, there are notations there that he was terrorizing other children in school when he was just a youngster. This is important and revealing information …”
Teenage “terrorizing” did not interest Sarokin. Just as he repeatedly asked Goceljak in July if he had any testimony to support the racial revenge theory, Sarokin kept asking Marmo the date of the most recent psychiatric report. The prosecutor finally conceded that he had nothing more recent than 1970.
“All right. Anything further?” Sarokin asked.
Marmo launched one final attack, pleading for more time to present documentation of Carter’s violent past, repeating the Kelley charges and alleging that Carter had proven since “he has been twelve years old that he is a dangerous, violent person and the things that professional people said about him in the sixties and seventies have proven true.”
It was a shrill, exhaustive attack. But it gave the full courtroom a vivid view of exactly what kind of man the prosecutors thought Carter was. It helped explain why they had pursued him with every resource they could muster, why they were not about to give up, and—perhaps—why they had withheld or misrepresented evidence in two separate trials and appealed to racism in one trial. What are constitutional violations when the alternative is letting a monster roam free?
Beldock, speaking next, sought to dispel Marmo’s portrait of Carter as a beast. He disputed his characterization of the Kelley incident and said that Carter, before his ’66 arrest, was a well-respected member of the community who owned a home in a racially mixed neighborhood where he lived with his wife and daughter.
Sarokin said, “Do you know, Mr. Beldock, and this may be against your client’s interest, but I will pose the question to you nevertheless, do you know of any instances in the past ten years of any acts of violence by Mr. Carter?”
“I do not, Your Honor. The only incident that has been reported, of course, is the incident that he spoke about”—the Kelley matter—“and that we had a hearing about … I know Mr. Carter, because I have had him in my house. He has been with my children. I have been with his children. All these things that we are hearing here are the spooks, literally, the spooks of the prejudice of Paterson. I am sorry to put it that way, but there are, as Your Honor pointed out in the opinion, two complete and divergent views of this case, and the view that Mr. Marmo is pressing before you is a view that he will never relinquish, no matter what the facts are and no matter how many years of good life by Mr. Carter, he will continue to believe that and press it before a court. It is not fair. It is twenty years. Mr. Carter should be released immediately.”
Sarokin adjourned for a recess. Carter was taken out of the courtroom to wait in a holding cell down the hall. At first he was outraged by the attack, but the anger dissipated. Marmo was simply talking about a different person. He was not that man. Carter’s lawyers and supporters feared that Sarokin would take the safe route, keeping Carter in prison. He had already overturned the conviction. How much farther on a limb could he be expected to go? Carter, however, was confident, even serene. “Don’t worry, don’t worry,” he told Beldock. “We’re free, we’re free.” Carter knew: the eagle would soar.
Sarokin and Rosen walked back to Sarokin’s chambers. “So, what do you think?” the judge asked his clerk.
Never having had someone’s fate in his hands before, Rosen tried to give a balanced review. He recapitulated all the arguments on the state’s side—Carter’s criminal record, withering evaluations by psychiatrists, the Kelley incident. He then restated the defense position—Carter was a respected citizen of Paterson, the psychiatric reports were old, his conviction was improper. To Rosen, it was an excruciating choice.
Sarokin pondered his options, then shrugged.
“I’m gonna let him go.”
The judge sat at his desk and wrote out his decision. As usual, he thought carefully about the words he used. Forty minutes passed, and restless fears began to sweep through Carter’s supporters in the courtroom.
Finally, Sarokin emerged.
“Ladies and gentlemen, I am about to render my opinion in this matter, and I would very much appreciate it if everybody would remain silent until I conclude it. It is very brief.
“I have reviewed the materials submitted by the state, and nothing in the proffer submitted by the state relates to any current evidence that Mr. Carter poses a risk to society. I am reluctant to deny the state a full opportunity to be heard, and that hearing can take place in the future if the state persists in its request for continued incarceration.
“In the interim, I cannot, in the face of the conclusions reached in my opinion and the injustices found, permit Mr. Carter to spend another day or even an hour in prison, particularly considering that he has spent almost twenty years in confinement, based in part upon a conviction which I have found to be constitutionally faulty. To deny relief sought would be inconsistent with my own ruling and render compassion meaningless. If my ruling is correct, Mr. Carter’s past imprisonment may have been a travesty. To continue it would even be a greater one. If I am incorrect, either an Appellate Court or a trial court, should another jury convict, would require Mr. Carter to return to prison. There is no evidence before me now which would permit me to conclude that society will be harmed by his immediate release. In the face of these two alternatives, human decency mandates his immediate release. The historical purpose of a writ of habeas corpus is served by Mr. Carter’s release. It is disserved by its denial.
“Therefore, petitioner shall be enlarged and released forthwith on his own recognizance without surety; the only condition being that he shall keep the state apprised of his residence.”
Before Sarokin finished, Ed Carter’s twenty-eight-year-old daughter, Charmaine, began clapping, then leaped up and yelled, “Yeah!” The decorum of the proceedings was shattered. High pitched shouts of joy rose from the crowd. Carter’s supporters stood, whistled, clapped, and hugged. Sarokin quickly rapped his gavel, then finished his statement above the swelling din.
“An order will be entered to this effect and I am confident that Mr. Carter will not disappoint this court or all those persons who believe in him. Court is recessed.”
The scene was the opposite of the courtroom upheavals following Carter’s two convictions. Instead of peals of agony and sobs of despair, the room rocked with triumphant howls, victorious embraces, and tears of happiness. Now it was the prosecutors who sat stunned and defeated as Carter rose, the conquering hero. He had been, for almost two decades, a stolid courtroom figure, and he next did something that many people had never seen him do before. He smiled. Yes! Rubin Carter smiled and waved and pumped his fist. He embraced Beldock and whispered, “Thank you, brother. We did it.”
Sarokin quietly left the courtroom and returned to his office. In later years, he described Carter’s briefs as among the finest legal papers he had ever read. Asked about his decision to release Carter, he said, “If he’s an evil man, then I’m no judge of character.”
The marshals led Carter through the courthouse throng to a sealed-off area where he would officially sign out. He was met by a private investigator, Mims Hackett, who had previously helped on the case and had watched the court proceedings. Beside him was a friend, an African, wearing a blue ski jacket. Carter discreetly handed his sheepskin coat and sunglasses to the African, who gave up his blue jacket in return. The marshals escorted “Mr. Carter” downstairs, notwithstanding the fact that he was now thirty years younger and had no mustache. The real Rubin Carter blended in as one of the escorts.
Outside, on the sunny courthouse steps, Beldock, Steel, and Artis were answering questions from a swarm of reporters. Beldock looked up in the sky, exhaled, and said, “New Jersey has never looked so beautiful.” The case, he said, “should never have happened. It’s a case of passion and prejudice that was wrong from the beginning. And the judge’s decision said it loud and clear.”
Meantime, reporters looking for Carter finally spotted a parked limousine and headed its way. When they saw the black man in the sheepskin coat, they thought they found their prey. Several reporters ran right past Carter as the African slipped inside the limo and sped off, leaving reporters briefly chasing behind on foot. Carter quietly entered a nondescript car, slid into the back seat behind Hackett and Ed Carter, and sped off. At one corner, as arranged, they met Terry and Kathy Swinton in their rental car. Carter thanked his cousin and Hackett, switched cars and drove off with his Canadian family. They had won the battle, but the war was not over.