Full opinion text
MEMORANDUM AND ORDER NEAHER, District Judge. In 1973, petitioners Jesse Johnson and Cynthia Hall were convicted of criminal possession and sale of heroin in a jury trial in New York State Supreme Court, Kings County. Sentenced to lengthy prison terms, their convictions were affirmed without opinion by the Appellate Division, 46 A.D.2d 739, 361 N.Y.S.2d 325 (2d Dept. 1974), the Court of Appeals denied leave to appeal on February 4, 1975, and the U.S. Supreme Court denied certiorari, 422 U.S. 1048, 95 S.Ct. 2666, 45 L.Ed.2d 700 (1975). In their first joint petition for habeas corpus, 28 U.S.C. § 2254, Johnson and Hall both alleged that the prejudicial conduct and rulings of the trial judge denied them a fair trial as protected by the due process clause. Finding their claims meritorious, on February 5, 1979, this Court granted their habeas petitions, and ordered that they be retried within sixty days of that Order or be released. The February 5,1979 Order, unpublished at that time, follows as Appendix “A” to the present Order. Respondents simultaneously appealed the Order to the Second Circuit and filed a motion in this Court for relief from judgment under Rule 60(b), F.R.Civ.P., asserting petitioners’ failure to exhaust their remedies in State court. Although lacking jurisdiction, in the furtherance of judicial economy, this Court expressed its view that petitioners had exhausted their State remedies. That Order, dated March 28, 1979, also unpublished, follows as Appendix “B”. Enforcement of the February 5, 1979 Order was stayed, however, pending appeal. On appeal, the Second Circuit reversed, holding that petitioners had not exhausted their State remedies. Its precedent-setting opinion, Johnson v. Metz, 609 F.2d 1052 (2d Cir.1979), is discussed extensively later in this Order. Petitioners returned to the New York courts. Their motion to vacate their judgments of conviction was denied as procedurally barred by CPL § 440.10. The Appellate Division denied them leave to appeal, and they again presented their claim to this Court. Constrained by the Johnson v. Metz decision and the State court decision on its own procedural rules, see Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Klein v. Harris, 667 F.2d 274 (2d Cir.1981), this Court denied petitioners’ second habeas petition, by unpublished Order dated June 25, 1982, which follows as Appendix “C”. Petitioners appealed again to the Second Circuit. In this interim, that court issued an en banc ruling on the standards for determining whether a claim asserted in a habeas petition has been exhausted in the State courts. Daye v. Attorney General of the State of New York, 696 F.2d 186 (2d Cir.1982). Rejecting the standard which had evolved from Johnson v. Metz, the court nonetheless distinguished and did not overrule that case. Less than two weeks later, however, the Second Circuit ordered that Johnson and Hall’s petition “be remanded to the district court for further consideration in light of the intervening en banc opinion of this court in Daye.” Johnson v. Scully, 82 Civ. 2226 (2d Cir., December 22, 1982). Accordingly, this Court has again reviewed petitioners’ original briefs to the Appellate Division. For the reasons that follow, this Court again holds that the claim of prejudicial judicial bias was fully exhausted in the State courts and is an appropriate ground for habeas relief. Finally, as discussed below; the Court has reviewed its February 5, 1979 Order granting the writ, and now reconfirms that decision. JOHNSON V. METZ At issue on this remand is whether petitioners’ claim that they were deprived of their constitutional right to a fair trial by the prejudicial conduct of the trial judge was exhausted in the State courts. This issue was resolved against petitioners in Johnson v. Metz, a decision whose validity was questioned in Daye, 696 F.2d at 195, 197, and was undeniably thrown into doubt by the Second Circuit’s decision to remand this petition. Section 2254(b) of the federal habeas statute states in relevant part that habeas relief cannot be granted “unless it appears that the applicant has exhausted the remedies available in the courts of the State.” Neither Johnson nor Hall specifically mentioned the due process clause in their State briefs. Analyzing the cases cited in those briefs, the Second Circuit concluded that petitioners were relying on State law and State court supervisory power for relief. 609 F.2d at 1054. The court held: “[T]he construction by this circuit of the meaning of the exhaustion doctrine leads us to conclude that the New York State courts have never been given an opportunity to consider whether the pervasive conduct of the trial judge in this case ... amounted to a violation of federal constitutional due process.” Id. at 1055 (footnote omitted). Cognizant of New York’s strict post-conviction relief statute, CPL § 440.10, the court did add: “It is difficult for this panel to believe . . . that no post-conviction remedy whatever will be available by way of state collateral relief when a serious federal constitutional issue is involved. “We have been cited to no case, nor have we found any, in which the intervention of a trial judge in the conduct of trial has been found so prejudicial as to amount to a violation of constitutional due process. Particularly because of the lack of authority, we think it appropriate that the state court should be allowed, in the first instance, to pass on the constitutional point fairly presented to it. We say this without attempting to suggest the result in this obviously serious case. “We trust that upon a post-conviction hearing careful attention will be given to this record by the state courts in terms of the serious allegation of constitutional deprivation of the right to fair trial.” Id. at 1056 (footnote omitted). As previously noted, however, the New York courts did find petitioners to be procedurally barred from a collateral attack on their convictions. See Appendix C. Concurring, Judge Newman clarified his view of petitioners’ claim. Noting that they alleged more than mere excessive judicial intervention, he characterized their petition as asserting that “the nature of all of the trial judge’s conduct — his questions, his comments to defense counsel, his comments to the defendants, and his comments to the jury — combined to deny petitioners the ‘fair trial in a fair tribunal’ that is ‘a basic requirement of due process.’ ” 609 F.2d at 1057 (citation omitted). He added, “A claim of this nature is well within the mainstream of due process adjudication.” Ibid. DAYE V. ATTORNEY GENERAL THE DAYE PANEL DECISION William Daye, convicted of intentional murder, felony murder, and armed robbery in the Supreme Court, New York County, brought a habeas petition in federal court alleging that his sixth and fourteenth amendment rights to a fair and impartial trial had been violated by the conduct of the trial judge. Daye had not specifically cited the federal Constitution in his State briefs. The district judge held that Daye had nonetheless exhausted his State court remedies because the very nature of Daye’s claim alerted the State courts to a constitutional question. Cf. Twitty v. Smith, 614 F.2d 325 (2d Cir.1979) (claimed lack of “effective assistance of counsel” impliedly raised sixth amendment issue). Reaching the fair trial issue, the judge dismissed Daye’s petition as meritless. Daye, 663 F.2d 1155, 1156 (2d Cir.1981). A divided Daye panel affirmed the dismissal but without prejudice to the merits. Writing for the court, Judge Newman stated the Second Circuit rule that “the exhaustion requirement is not satisfied unless the habeas petitioner explicitly refers to a federal constitutional standard in presenting his claim to the state courts.” Id. at 1155. Judge Newman traced this rule to the Johnson v. Metz decision: “Just two years ago we applied this strict approach to exhaustion to a habeas corpus petition indistinguishable from Daye’s. Johnson v. Metz, 609 F.2d 1052 (2d Cir.1979). Like Daye, Johnson sought habeas corpus relief because of the excessive and prejudicial intervention of the state court trial judge, and, like Daye, his state court briefs, which made no express mention of the Sixth and Fourteenth Amendments, referred to the denial of a fair and impartial trial and characterized a fair trial as a fundamental element of the judicial process. Though the District Court in Johnson had concluded that the exhaustion requirement had been met and that the petitioner was entitled to relief on the merits, this Court reversed, ruling that Johnson had not presented a federal constitutional claim to the state courts. Even though Johnson’s brief in the Appellate Division cited ten decisions of federal courts, his fair trial claim was deemed to be an appeal only to state law or to the supervisory power of the state appellate courts, and thus not the ‘same claim,’ Picard v. Connor, 404 U.S. 270, 276 [92 S.Ct. 509, 512, 30 L.Ed.2d 438] (1971), that he was presenting to the federal courts. Johnson v. Metz, supra, 609 F.2d at 1054.” Id. at 1157. Judge Newman continued by effectively criticizing the strict labeling requirement. First, he observed that renewed consideration of expressly labeled federal claims did not meet notable State court enthusiasm. He added: “Nor is there much reason to believe that the articulation of facts (here, excessive and prejudicial court questioning) and consequence (here, denial of a fair and impartial trial) are inadequate to afford state courts, fully aware of their constitutional responsibilities, a fair opportunity to decide whether a conviction accords with constitutional requirements.” Id. at 1157. He also expressed concern that a pleading deficiency could cause a delay of years in vindicating a meritorious claim, or could cause the claim to be forever forfeited. Bound by Johnson v. Metz, however, Judge Newman concluded: “Whatever our disagreements with an exhaustion requirement that entails explicit labeling of a federal claim, we are obliged to affirm this judgment without prejudice, solely on grounds of failure to exhaust state court remedies, and await a petition suggesting rehearing en banc, which we assume Daye will present.” Id. at 1158. In contrast, Judge Metzner agreed with the district judge that' Daye’s petition lacked merit, and argued that, in the interests of judicial economy, the exhaustion requirement should not apply to meritless claims. Concurring with Judge Newman, however, that the Johnson v. Metz standard dictated dismissal, Judge Metzner added that he found that “the exhaustion requirement in this circuit exalts form over substance.” Id. at 1158. Judge Lumbard dissented, stating that he would find that Daye’s claims had been adequately presented to the State courts and that Daye’s habeas petition should be granted. On the exhaustion issue, he observed that Daye’s State briefs “repeatedly argued that the trial judge’s questioning ‘deprived the defendant of his right to a fair trial.’ ” Id. at 1160. Daye had also cited two New York cases which analyzed fair trial claims on federal constitutional grounds, People v. DeJesus, 42 N.Y.2d 519, 399 N.Y.S.2d 196, 369 N.E.2d 752 (1977); and People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 (1975), and Judge Lumbard found these citations “sufficient to alert the Appellate Division of his federal law claims.” Id. Distinguishing Johnson v. Metz, Judge Lumbard noted the Johnson v. Metz panel’s observations that Johnson and Hall had only cited cases that rested on State law or appellate court supervisory power. Moreover, Judge Lumbard noted that Daye’s brief cited prior cases in which the same trial judge had been reversed for excessive questioning, which he stated was not a factor in Johnson v. Metz. THE DAYE EN BANC DECISION The Daye case was reheard by an eleven-member en banc panel, and ten judges joined in an opinion clarifying the Second Circuit's criteria for determining whether the State remedies have been exhausted. Holding that a habeas petitioner need not have cited “ ‘book and verse on the federal constitution’ ” to the State courts, 696 F.2d at 192 (quoting Picard, 404 U.S. at 279, 92 S.Ct. at 514), the court summarized: “[T]he ways in which a state defendant may fairly present to the state court the constitutional nature of his claim ... include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like factual situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.” Id. at 194. For two reasons, the court held that Daye’s claim had been fairly presented to the State courts. First, Daye had cited State cases which addressed similar fact patterns and rested on constitutional grounds. Specifically, the court noted Daye’s citation to DeJesus and Crimmins. Id. at 195-96. In DeJesus, the New York Court of Appeals had held that a trial judge’s excessive intervention had denied a criminal defendant of a fair trial. Citing federal constitutional cases, the New York court depicted the right to a fair and impartial trial as “ ‘the law of the land’ ” and “the most fundamental of all freedoms.” 42 N.Y.2d at 520, 399 N.Y.S.2d at 197, 369 N.E.2d at 753. In Crimmins, a case which did not involve judicial intervention, the New York Court of Appeals in dicta noted that the constitutional right to a fair trial was so fundamental as to require the appellate court to reverse “quite without regard to any evaluation as to whether the errors contributed to the defendant’s conviction. The right to a fair trial is self-standing and proof of guilt, however overwhelming, can never be permitted to negate this right.” 36 N.Y.2d at 237-38, 367 N.Y. S.2d at 219, 326 N.E.2d at 793. Distinguishing Johnson v. Metz, the court noted that neither the DeJesus and Crimmins decisions, nor the New York Court of Appeals decision. in People v. Mees, 47 N.Y.2d 997, 420 N.Y.S.2d 214, 394 N.E.2d 283 (1979), which also found excessive judicial intervention to be unconstitutional, had been decided when Johnson’s and Hall’s convictions were appealed through the State courts. The Johnson v. Metz panel, the Daye court noted, had stated that no cases holding that judicial intervention could rise to a due process violation had been cited to it. Id. at 196. Moreover, the Daye en banc court found that the Johnson v. Metz decision did not expressly impose the strict labeling standard; rather, it appeared to allow for an analysis of cases cited in State briefs. In fact, the Johnson v. Metz panel stated that it had considered the cases cited in petitioners’ State briefs and had found them to rely on appellate court supervisory powers. Id. at 195. Second, Daye’s State claim centered on “the trial judge’s evident partiality and his assumption of a hostile and prosecutorial stance,” which the Second Circuit held to be “sufficient to alert the state court that a federal due process claim was being asserted.” Id. at 196. In support, the court noted “a long line of cases” establishing the right under the due process clause to a trial before a neutral judge. The fair trial right was so fundamental, the court added, that “not even the appearance of bias is tolerated.” Id. at 196. The court concluded: “We regard it as immaterial that none of these cases dealt with a bias manifested through allegedly excessive and one-sided intervention in the trial. The gravamen of a claim of denial of fair trial due to judicial bias does not depend on the source of the bias or the manner of its manifestation. If judicial bias, or the appearance of it, existed, due process was denied. We do not believe it reasonable to assume that state judges presented? with a claim of manifested judicial bias would fail to recognize the implication of due process rights simply because half a century of due process cases dealt with the mere risk of bias or with actual bias manifested in other ways.” Id. at 197. Daye’s briefs, the court noted, included contentions that the trial judge must “ ‘be scrupulously free and above even the appearance or taint of partiality,’ ” and that the judge at his trial “ ‘set impartiality aside in favor of the prosecution’ ”; “ ‘assumed the role of prosecutor’ ”; “ ‘demonstrated to the jury that [he] believed the defendant to be guilty’”; and “‘blatantly and repeatedly indicated [his] disbelief in the defendant’s testimony.’ ” These statements, among others, apprised the State courts of the constitutional aspects of Daye’s claim. Id. at 197. Finally, questioning but not expressly overruling Johnson v. Metz, the court stated: “[T]o the extent that Johnson v. Metz actually construed Johnson’s claim as one of bias (i.e., denial of an ‘impartial’ trial, ...), rather than one simply complaining of ‘the overall conduct of the trial judge,’ ... we disagree with its conclusion that the claim as one with constitutional thrust was ‘novel,’ and with its decision to ‘giv[e] the state court the first opportunity to pass on whether or not the novel constitutional point, is “within the mainstream of due process adjudication.” ’ ” Id. (citations omitted). IN LIGHT OF DAYE As Judge Newman observed in writing the Daye panel decision, Johnson and Hall’s petition is “indistinguishable from Daye’s.” 663 F.2d at 1157. For the same reasons that the Daye en banc court held that Daye had adequately presented his claims to the State courts, this Court finds that Johnson’s and Hall’s briefs to the Appellate Division were sufficient to exhaust their State remedies. First, Johnson’s and Hall’s State briefs both present claims which rest “on a factual matrix that is ‘well within the mainstream of due process adjudication.’ ” Daye, 696 F.2d at 193; see Johnson v. Metz, 609 F.2d at 1057 (Newman, J., concurring). Both briefs, like Daye’s, contended that the trial judge’s bias was reflected in how he conducted their trial and deprived them of a fair trial. Johnson’s brief argued that the “prejudicial attitude of the trial court ... permeated the entire proceeding,” Johnson App. Div. Brief at 10, and that the trial judge’s intervention amounted to “judicial emphasis necessarily consistent with judicial partiality with the prosecutor.” Id. at 25. Johnson asserted that, by his questions and comments, the trial judge “usurped the function of the prosecutor,” id. at 13, “identified himself with the prosecutor’s theory,” id. at 24, “argued on behalf of the district attorney,” id., and made “remarks [that] smack[ed] of a prosecutorial summation.” Id. at l'5. Johnson claimed that “[t]he courtroom was permeated with an atmosphere of judicial prosecution,” id. at 23, which amounted to “the antithesis of impartiality.” Id. at 19; accord, e.g., id. at 18, 19, 20, 23, 25, 26-27, 28, 29, 41. Specifically, Johnson argued that the trial judge’s questions and comments bolstered the credibility of the prosecution’s witnesses, emphasized and endorsed the prosecutor’s theories, and undermined cross-examination. E.g., id. at 9, 11, 13, 14, 15, 17, 19, 20,22,23, 24, 25, 26, 29, 31, 32, 34, 35,36, 37, 41, 42, 43. For example, Johnson argued: “By repeating the testimony .of the prosecution’s main witness, the court hammered it home to the jury as if it were coming from [the judge], indelibly clothing it with judicial endorsement. Id. at 13. ****** “When a jury hears a judge preface his questioning of a witness with ‘just listen to my questions,’ they are invited, if not obligated, to conclude that, with the help of the court, they are receiving the truth. Query, is this consistent with the principles of a fair trial?’’ Id. at 16 (emphasis supplied). Moreover, Johnson claimed that the trial judge admitted clearly irrelevant evidence and hearsay testimony “ ‘to allow ... any inference the district attorney seeks to draw.’ ” Id. at 12 (quoting trial transcript). Johnson also cited examples of the trial judge challenging the credibility of his co-defendant Hall, id. at 34, attacking the trial tactics of defense counsel and even refusing to allow defense counsel to state the grounds for objections on the record, e.g., id. at 22, 23, 24, 26, 29, 30, 35, 39, 42, and denying requests to exclude the jury, e.g., id. at 30, 40. Most strikingly, Johnson repeatedly noted instances where the trial judge’s comments seemingly eviscerated Johnson’s entrapment and agency defenses. Id. at 9,11,17-18, 28, 32-33, 34, 37, 43. As Johnson argued: “If a judge suggests that a witness [here, a police officer] acted properly in the eyes of the law, thereby judicially endorsing his credibility, how can the defense of entrapment survive?” Id. at 9. Johnson’s arguments do not challenge mere excessive judicial intervention; rather, his brief is replete with contentions of manifest judicial bias. See Appendix B at 879-880. Hall’s brief similarly attacks the trial judge’s conduct, which she asserted “unduly influence^] the Jury and ... deprive[d] the Appellant and the Co-Defendant Johnson of the rudimentary fair trial to which they were entitled, a right given to them regardless of the strength of the People’s case.” Hall App.Div. Brief at 41. Her citations to the trial record paralleled Johnson’s, and in her four-page summary of the trial judge’s controversial conduct, she included contentions that he “injected the question of the race of the Defendants, the undercover Officer, and the informant, for no reason whatsoever, . . . interrupted the Appellant’s attorney during his question of her ... and then again interrupted the Appellant during her cross-examination on another totally unrelated subject to ask her a question which clearly showed to the Jury that the Court did not believe her testimony on the most crucial issue in her case, ... and then commented on the Appellant’s living with another man, saying, ‘a woman who cares so little about morals, does she worry about lying?’ ... again, during the District Attorney’s summation, the Court told the Jury that the District Attorney’s argument is ‘perfectly reasonable.’ ” Id. at 40. In the same line, she added: “There are numerous instances throughout the record where the Court gave the Jury, whether intentionally or not, the clear impression that it believed the Defendants guilty. A striking example is contained on page 2310 where the Court interrupted the Appellant’s testimony about an innocuous matter to ask her, in tones of disbelief, which can be heard without having been present in the Courtroom, whether she was curious about what was in the knapsack. This was a proper subject of cross-examination by the District Attorney, and by interjecting the question, at that particular time, the Jury would have to be blind and deaf not to comprehend that the Judge thought the Appellant’s testimony incredible.” Id. at 41. Hall, like Johnson, cited to the admission of hearsay and other challenged evidence to further her argument that the trial, considered in its totality, was conducted in a prejudicial manner. Id. at 43. Interestingly, Hall further alerted the State courts to the nature of her claim by citing People v. Baker, 44 A.D.2d 83, 353 N.Y.S.2d 505 (2d Dept.1974), a case in which a conviction was reversed as a result of the biased conduct of the very judge who presided over Johnson and Hall’s trial. Hall App.Div. Brief at 37. Hall’s State brief implies that the trial judge may not have intentionally conveyed his predetermination of guilt to the jury. Her arguments to the Appellate Division leave no doubt, however, that she was contending that the trial judge in fact did not believe the defendants, and that his conduct at trial communicated his disbelief to the jury. Hall’s State brief, like Johnson’s, rested on an allegation of manifest judicial bias and not mere excessive intervention. Johnson’s and Hall’s State briefs used almost the identical phrases to describe the challenged actions of the trial judge that the Daye en banc court held adequate to alert the State courts of “the constitutional implications” of the fair trial claim. 696 F.2d at 197. According to the exact analysis applied to the Daye petition, Johnson and Hall’s constitutional claim was clearly before the State courts, and their State remedies have therefore been exhausted. Moreover, despite the Johnson v. Metz panel’s conclusion that the cases cited in petitioners’ briefs were grounded in the supervisory powers of appellate courts, this Court’s review of those cases, particularly in light of intervening decisions, indicates that petitioners’ citations should have made the State courts cognizant of their constitutional responsibilities. The appellate courts in the cases cited by Johnson and Hall certainly exercised their supervisory powers, but they did so to correct constitutional defects. Several of the New York cases cited by Johnson reversed convictions in the face of a record of excessive or prejudicial intervention because the fair trial right was “basic” or “fundamental.” E.g., People v. Mleczko, 298 N.Y. 153, 163, 81 N.E.2d 65 (1948) (“Vicious though the crime was, convincing though the evidence seems to be, we could affirm only if we were to announce a doctrine that the fundamentals of a fair trial need not be respected if there is proof in the record to persuade us of defendant’s guilt.”); accord, People v. Schildhaus, 17 Misc.2d 825, 186 N.Y.S.2d 68, 70 (1st Dept.1959); People v. Dovico, 6 A.D.2d 457, 179 N.Y.S.2d 379, 380 (4th Dept.1958); People v. Herman, 255 App.Div. 314, 7 N.Y.S.2d 560, 562-63 (2d Dept.1938); People v. Rafkind, 254 App.Div. 742, 3 N.Y.S.2d 997, 998 (2d Dept.1938); People v. Konopka, 5 Misc.2d 507, 164 N.Y.S.2d 139, 142 (Suffolk County Court 1957); People v. Man, 5 Misc.2d 852, 165 N.Y.S.2d 783, 784-85 (Suffolk County Court 1956); People v. Kachadourian, 116 N.Y.S.2d 486, 491-92 (Broome County Court 1952). For example, in People v. DeMartino, 252 App.Div. 476, 299 N.Y.S. 781, 787 (2d Dept.1937), the court stated: “[EQowever strong may be the evidence against a defendant, a judgment of conviction should be reversed if the trial was not a fair one.... A fair trial is the fundamental requirement in a criminal prosecution... . The essential requirements of a fair trial are simple and easily observed. The function of the trial court is to preserve scrupulously the legal rights of both the people and the accused and not to insure the victory or defeat for either contestant. More important than any verdict or judgment are the legal principles which govern the fundamental rights of all.” Although none of these cases expressly cited the Constitution, their analysis appears indistinguishable from the rationale adopted by the New York Court of Appeals in Crlmmins, 36 N.Y.2d at 238, 367 N.Y.S.2d at 218-19, 326 N.E.2d at 792-93, and DeJesus, 42 N.Y.2d at 520, 522-24, 399 N.Y.S.2d at 197, 198-99, 369 N.E.2d at 753, 754-55, as discussed in Daye, 696 F.2d at 195-96. The DeJesus decision, rendered subsequent to the Johnson v. Metz decision, demonstrates that the analysis contained in Johnson’s and Hall’s State briefs, and in the State cases they cited, depicted a constitutional claim. See also Mees, 47 N.Y.2d at 998, 420 N.Y. S.2d at 215, 394 N.E.2d at 284. Moreover, although the majority of the federal cases cited by Johnson and Hall do not expressly mention the Constitution, these cases similarly treat the right to a trial before an impartial judge as fundamental. E.g., United States v. Fernandez, 480 F.2d 726, 738 (2d Cir.1973) (“we doubt that a guilty verdict after the judge had told the jury that he considered a defense witness an unmitigated liar would be sustained by the Supreme Court today.”); United States v. Guglielmini, 384 F.2d 602, 605 (2d Cir.1967) (“the defendants did not receive the fair trial to which our law entitles them.”), cert. denied, 400 U.S. 820, 91 S.Ct. 38, 27 L.Ed.2d 48 (1970); United States v. Hill, 332 F.2d 105, 106 (7th Cir. 1964) (“ ‘a fair and impartial trial is guaranteed to every defendant, and fundamentally means a trial before an impartial judge and by an impartial jury.’ ”); United States v. Carmel, 267 F.2d 345, 350 (7th Cir.1959) (same); United States v. Hunter, 62 F.2d 217, 220 (5th Cir.1932) (“It is vastly more important that the attitude of the trial judge should be impartial than that any particular defendant, however guilty he may be, should be convicted.”); see Starr v. United States, 153 U.S. 614, 626, 14 S.Ct. 919, 923, 38 L.Ed.2d 841 (1894), quoted in Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 699, 77 L.Ed. 1321 (1933); United States v. Nazarro, 472 F.2d 302, 303-04 (2d Cir.1973); United States v. Grunberger, 431 F.2d 1062, 1067, 1069 (2d Cir.1970); United States v. DeSisto, 289 F.2d 833, 835 (2d Cir.1961); United States v. Marzano, 149 F.2d 923, 926 (2d Cir.1945). In two cases cited by Hall, however, the courts did state that the deprivation of fair trial claims had been raised to vindicate constitutional rights, and analyzed the claims accordingly. In United States v. Lanham, 416 F.2d 1140, 1145 (5th Cir.1969), the court concluded that: “The impartial trial atmosphere, the cold neutrality of an impartial judge, the defendant's] ... credibility, his presumption of innocence, and any chance whether guilty or innocent that he had of a successful defense, all were denied, along with his Fifth Amendment right not to be deprived of his liberty without due process of law.” Additionally, in Bursten v. United States, 395 F.2d 976, 982-83 (5th Cir.1968), cert. denied, 409 U.S. 843, 93 S.Ct. 44, 34 L.Ed.2d 83 (1972), the court addressed the “contention that on many, many occasions the trial judge over-stepped the bounds of judicial propriety, by repeatedly injecting himself into the trial, in questioning the witnesses and wrongly expressing his personal opinions” in disregard of basic principles encompassed in “the fair trial rights ... guaranteed by the Constitution.” Johnson similarly cited United States v. Hoker, 483 F.2d 359, 360 (5th Cir.1973), which in turn quoted and relied upon Lanham, supra. In fact, Johnson’s brief to the Appellate Division expressly stated that “[t]he totality of the circumstances ... denied the Defendant his constitutional right to a fair trial.” Johnson App.Div. Brief at “Table of Contents” and at 72 (emphasis added); see Appendix B at 879. Additionally, in dismissing the present petition to allow the State courts to address the express constitutional claim, Judge Newman, concurring in Johnson v. Metz, characterized the nature of that claim by quoting United States v. Marzano, 149 F.2d at 926: “Petitioners’ claim, now returned for what will surely be sensitive examination by the state courts, is that the trial judge failed to observe the enduring admonition of Judge Learned Hand: ‘[The trial judge] must not take on the role of a partisan; he must not enter the lists; he must not by his ardor induce the jury to join in a hue and cry against the accused. Prosecution and judgment are two quite separate functions in the administration of justice; they must not merge.’ ” 609 F.2d at 1057. Judge Newman apparently viewed the Marzano case as establishing the constitutional framework in which the State courts should address Johnson and Hall’s due process claim. Notably, Johnson’s State brief had also quoted Marzano. Johnson App. Div. Brief at 48. Johnson and Hall thus appear to have cited cases, both State and federal, that are in the long line of precedents safeguarding a constitutional right to a fair trial. For this reason, and because both petitioners’ State briefs cast their claim in language which places it in the mainstream of due process, and because Johnson’s brief expressly refers to the Constitution, this Court finds that petitioners exhausted their State remedies on this claim. THE FAIR TRIAL CLAIM Petitioners have steadfastly sought habeas relief because they claim that they were denied a fair trial in contravention of the due process clause. The Court has reviewed its February 5, 1979 Order holding that petitioners were entitled to habeas relief, and the Court now adopts that holding for the reasons expressed in that Order. See Appendix A. Defendants incorrectly contend that the 1979 Order rested on four grounds to support the grant of the writ. In the March 28, 1979 Order, this Court expressly stated that although petitioners “advanced four constitutional grounds in support of their petition, only one — their claim that the State trial judge conducted their trial in a manner inconsistent with their due process right to a fair trial — forms the basis for the order conditionally granting the writ.” Appendix B at 878. To the extent that the February 5,1979 Order alluded to other constitutional deficiencies in petitioners’ trial, those findings are provided only as support for the holding that the trial judge’s actions, considered in their totality, deprived petitioners of a fair trial. By letter dated February 24, 1983, petitioners abandoned all other claims. Cf. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 371 (1982). The petition is conditionally granted solely because petitioners were deprived of their due process right to a fair and impartial trial; of course, the Court anticipates that if the State elects to retry either or both petitioners, it will do so in a manner not inconsistent with the Court’s citation to other obvious constitutional defects in their first trial. See Appendix A. Accordingly, defendants are ordered to release petitioners from custody and to relieve them from all disabilities attributable to this conviction unless the State grants them new and separate trials within sixty (60) days. SO ORDERED. APPENDIX A UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------- - -x JESSE JOHNSON and CYNTHIA HALL, : Petitioners, ; -against- PAUL METZ, Warden, Great Meadows Correctional Facility; JANICE WARNE, Correctional Superintendent, Bedford . Hills Correctional Facility, Respondents. — — — — — — — — — — — — — — — —x 76 C 442 MEMORANDUM OF DECISION AND ORDER NEAHER, District Judge. Petitioners Jesse Johnson and Cynthia Hall, State prisoners, seek a writ of habeas corpus, alleging they were denied due process of law in their State trial by reason of claimed prejudicial conduct and rulings on the part of the trial judge which, they contend, deprived them of a fundamentally fair trial and their right of confrontation. They were each charged in separate identical indictments with a single sale and possession of a quantity of heroin and, on motion of the District Attorney, were tried jointly before a jury in the New York Supreme Court, Kings County, in August 1973 and found guilty. They were sentenced by judgment entered October 16, 1973, and their convictions were affirmed by the Appellate Division, without opinion, 46 App.Div.2d 739, 361 N.Y.S.2d 325 (2d Dept.1974); leave to appeal to the Court of Appeals was denied by Judge Wachtler on February 4, 1975, and the Supreme Court thereafter denied certiorari, 422 U.S. 1048, 95 S.Ct. 2666, 45 L.Ed.2d 700 (1975). Petitioners’ principal claim is that they were deprived of a fair trial by the trial judge’s usurpation of the prosecutor’s function and constant interference in the trial, which inevitably manifested to the jury the court’s belief in their guilt. Additional claims of Johnson are that he was denied the right of confrontation by the erroneous admission of prejudicial hearsay testimony and subjected to the burden of proving his innocence by erroneous jury instructions on the defense of entrapment. Hall, who testified in her own defense, additionally claims that the joint trial, the trial judge’s conduct in cross-examining her and the use of certain claimed impeachment evidence, which the court had ruled inadmissible before she took the stand, made a fair consideration of the evidence as to her impossible under the circumstances. Although only a single heroin transaction formed the basis of the charges against both petitioners, the trial extended from July 30, 1973 to August 22, 1973 — over three weeks. In that time some 2,713 pages of transcript were compiled, although only six witnesses testified: four police officers and a police chemist for the State, and petitioner Hall in her own defense. The length of the trial was in large part attributable to the extraordinary intervention of the trial judge in the conduct of the State case, the resulting frequent colloquies and controversies between the judge and defense counsel — mostly in the presence of the jury — and the court’s repetitious explanations to the jury of what the prosecutor was attempting to prove. In contrast to some 1,099 questions put by the prosecutor, the trial judge asked about 1,254 questions. Between them, the two defense counsel asked approximately 1,108 questions. The Evidence at Trial From the evidence at trial it appears that in July 1972 Richard Brown, a New York City police officer, assumed the role of an undercover agent for the police narcotics bureau. According to Brown, two fellow officers, Martinez and Matera, had informed him that petitioner Johnson was a large-scale narcotics dealer in the BedfordStuyvesant area of Brooklyn, and Brown’s objective was to attempt to arrange a narcotics transaction with him. Brown subsequently met with one Julius “Pete” Knight, a registered Police Department informant, who told Brown he had worked for Johnson for ten years and could bring about an introduction. From July 1972 until February 1973, Brown, using the name “Grady” and a cover story that he was a prosperous dealer from Washington, D.C. looking to buy heroin, stalked the streets without result. Although Brown had “investigated” a catering hall Johnson owned and had seen him on September 14,1972 at the grand opening of a Brooklyn bar called the “Motown Lounge,” also attended by Knight, no progress had been made towards an actual introduction of “Grady” to Johnson. Finally, on February 21, 1973, Knight took Brown to Johnson’s home in Queens. There is no direct evidence as to how this home visit was arranged. Johnson was asleep when they got there but Mrs. Johnson let them in. Anticipating the conversation •hereinafter related, Brown had a tape recorder concealed on his person. Surveilling police officers in a car were nearby to take photographs of Brown and Knight entering and leaving the house. According to Brown and the tape transcript, when Johnson appeared, Knight opened the relevant conversation by saying, “I want to talk to you about a little stuff,” meaning heroin in street parlance. The conversation as recorded continued for some time with Knight urging Johnson to get some heroin for “Grady” as he, Knight, wanted to make some money. Johnson at first demurred, saying, “It’s too hot ... With stuff now.... Your ass would be in jail in a minute as soon as you turned around.” Nevertheless, Johnson finally agreed he would get three-quarters of a kilo of heroin for “Grady” for $23,000. Johnson cautioned Knight, saying, “Look, Pete, if I get this stuff for this boy, I don’t want to hear my name on Fulton Street ... because that [obscenity meaning drugs] put me in trouble.” The conversation ended with Johnson saying he would see Knight and “Grady” at the Motown Lounge in a couple of days. On February 23, 1973 Johnson appeared at the Motown Lounge. Brown and Knight were already there as was another undercover police officer, Dorothy Richardson, posing as “Grady’s” girlfriend. Brown had $23,000 in serialized bills obtained from the Police Department, which were in a green knapsack in the trunk of a rented new Cadillac Brown used in order to impress Johnson. He also had his concealed tape recorder. Johnson expressed doubt about dealing with Brown, but after Brown complained “if you don’t dig me, we can just forget it,” Johnson asked if he had the money. Brown took him outside to the Cadillac, showed him the money in the knapsack and placed the knapsack inside a brown paper bag behind the driver’s seat of Johnson’s car. Johnson then drove off after instructing Brown to be at the Motown Lounge at 3 P.M. Surveilling police officers, who were photographing Brown’s and Johnson’s movements, observed Johnson drive to an apartment house at 950 Rutland Road, Brooklyn. Johnson and his wife had leased an apartment there, which was occupied from time to time by co-petitioner Hall, admittedly Johnson’s girlfriend. The surveilling officers also observed Johnson enter the building carrying a brown paper bag and later emerge accompanied by Hall. One of the officers testified he saw Hall carrying a green knapsack over her shoulder as she walked towards Johnson’s car and then both drove off. Johnson drove past the Motown Lounge to the Centaur Club a block away. Hall, who took the stand in her own defense and denied the accuracy of the surveilling officers’ observations, testified she first saw the green knapsack when Johnson reached underneath the driver’s seat and handed it to her, telling her to sit in the Centaur Club and when “Pete” Knight arrived to give him the knapsack and then return to the Motown Lounge. Johnson then drove off. According to Officer Brown, Johnson returned to the Motown Lounge about 3:15 P.M. Brown was seated at the bar with Knight and Officer Richardson. When Johnson came in he whispered something to Richardson and she and Knight immediately left the Lounge. Richardson, who also had a recording device concealed on her person, testified that Johnson told her “Go down to the bar up the street.” Richardson and Knight walked to the Centaur Club where, according to Richardson, they saw Hall seated at the bar with “a green knapsack bag in her lap.” Richardson testified she approached Hall, whom she had never seen before, said “Hi” and put out her hands to take the knapsack from Hall. Hall’s testimony was. that the knapsack was not in her lap but laying on the bar, and that after a brief social conversation with Knight, whom she knew, he told Richardson to take the bag for him. When Richardson remonstrated that she already had a shoulder bag and was having difficulty getting the knapsack under her coat, she testified that Hall suggested wearing both bags over her shoulder — a remark corroborated by Hall in her testimony. Officer Richardson also testified she was unaware of the knapsack’s contents. Richardson and Knight returned to the Motown Lounge where Richardson gave the green knapsack to Officer Brown at the rear of the Lounge. There Brown opened the knapsack and saw two sealed plastic bags of brown powder, which a police chemist later testified contained heroin. Hall soon arrived at the Motown Lounge and after having some drinks with the group she left with Johnson. Brown, Richardson and Knight departed shortly thereafter. Johnson was indicted on March 7, 1973, Hall on March 13. On March 12 the police had searched the Rutland Road apartment pursuant to a warrant alleging the belief that narcotics were there. They found none but seized over $2,000 in cash, a small scale, some boxes of glucose, and some “white powder” in a plastic bag, which Hall testified was flour. There was no claim that the cash seized was part of the serialized currency Brown had given Johnson. Both defendants were arrested after the search. Johnson’s Claims Johnson offered no evidence at trial but based his defense on contentions of entrapment and agency as shown by the prosecution’s evidence. Obviously, these defenses were virtual admissions of Johnson’s involvement in a heroin transaction, as his counsel recognized in summing up to the jury: “Yes, he did do what the State says he did; but even though he did it, he was entrapped into doing it; and even though he did some of the things that the State says he did, he was acting as an agent of the buyer.” (R. 2388.) In the circumstances of this case, the defenses were appropriately raised, since it is “the established New York rule that one who acts solely as the agent of a purchaser of narcotics cannot be convicted of the crime of criminal sale of a controlled substance.” People v. Roche, 45 N.Y.2d 78, 407 N.Y.S.2d 682, 379 N.E.2d 208 (decided June 15, 1978). Nor may a defendant be convicted if by a preponderance of the evidence it. is established that he “engaged in the proscribed conduct because he was induced to do so by a public servant, or by a person acting in cooperation with a public servant, seeking to obtain evidence against him for purpose of criminal prosecution ... [and was] not otherwise disposed to commit it.” N.Y. Penal Law § 40.05. It is Johnson’s primary claim that the number, tenor and tone of the trial judge’s interjections throughout the trial unmistakably reflected a partisan attitude and conveyed to the jury the judge’s belief that he was guilty, thereby destroying any impartial consideration of his defenses. Such a claim places this court in the unenviable position of reviewing the conduct of a State judge on the basis of a cold record, while aware that it is not uncommon for a defendant to blame the trial judge for the jiiry’s verdict of guilt. But although the task is not an agreeable one, the court must discharge its responsibility under the United States Constitution and 28 U.S.C. § 2254. After a searching review of the record of the State trial, and the briefs and affidavits on behalf of the State Attorney General and the petitioners, the court is unable to avoid the conclusion that the State judge’s conduct of the trial, however unintended, so seriously prejudiced each petitioner’s right to a fair and impartial trial as to deny them due process in any meaningful sense. The record is rife with instances of the trial judge, himself a noted former District Attorney, taking over the direct examination of prosecution witnesses and conducting cross-examination of petitioner Hall when she testified in her own defense. Brown, the State’s chief witness, no sooner assumed the stand than the judge took over his examination after defense counsel objected to hearsay conversations about Brown’s special training as an undercover police officer. In overruling that objection, the judge commented to the jury “I am allowing this testimony ... [for] you have to decide, ladies and gentlemen of the jury, where the truth lies, who is telling the truth, and in order for you to find out who is telling the truth, you have to know something about the background of the person who is talking, his experience in matters of that sort ... which will enable you, I think, better to judge whether he is lying, or whether he is mistaken in his testimony.” (R. 769, emphasis supplied.) The judge then went on for almost four pages of what he recognized as “leading questions” to Brown regarding police organization, the role of the narcotics squad and Brown’s special training for police undercover work. R. 770-73. No sooner had the prosecutor resumed direct examination than the judge, apparently dissatisfied with his approach, began suggesting what questions to ask, again interspersing his own questions, and eventually taking over and bringing out in more detail what Brown was called upon to do as an undercover officer. R. 774-82. If the court’s questions had been “necessary to elicit significant facts, to clarify or enlighten an issue or merely to facilitate the orderly and expeditious progress of the trial,” see People v. Ohanian, 245 N.Y. 227, 232, 157 N.E. 94 (1927); People v. Hinton, 31 N.Y.2d 71, 74, 334 N.Y.S.2d 885, 286 N.E.2d 265 (1972), cert. denied, 410 U.S. 911, 93 S.Ct. 970, 35 L.Ed.2d 273 (1973); and People v. Mendes, 3 N.Y.2d 120, 121, 164 N.Y.S.2d 401, 143 N.E.2d 806 (1957), there would be no ground for complaint. But here the trial judge continually displaced the prosecutor for none of those reasons but simply to drive home the theory of the prosecution in presenting its evidence. Repeatedly, at critical points, as Brown’s direct testimony continued, the judge took over the questioning, bringing out that Brown had been told by fellow police officers that Johnson “was a large-scale narcotics dealer in the Brooklyn area” (R. 790); that Brown had presented himself to petitioner as a drug dealer from Washington, D.C. (R. 823-24); and that Brown had made a purchase of “stuff” — meaning narcotics— from Johnson on February 23rd, as charged in the indictment (R. 841-42). The judge’s questions so pervade the record that it is difficult to select particular examples for quotation. To avoid unduly prolonging this decision, relevant record references are noted in the margin. Suffice it to say that the obvious effect of the judge’s assumption of the prosecutor’s role was to clothe Brown and his fellow officers with indestructible credibility in the eyes of the jury and thereby foreclose any fair and impartial consideration of the defenses petitioners sought to rely upon. Defense counsel’s efforts to deal with the situation were met with running commentaries by the judge in the presence of the jury, despite counsel’s pleas that they be heard at sidebar. See, e.g., R. 789, 817, 818, 829, 1881, 1944, 1958. In those colloquies the judge repeatedly expounded for the benefit of the jury the prosecutor’s theory that pure hearsay was admissible for the purpose of overcoming Johnson’s anticipated entrapment defense. As is evident from the following examples, this was done in such manner as to inevitably implant in the jury’s mind the belief that Johnson was in fact “a big pusher” who could not possibly offer a credible claim of entrapment: “THE COURT: ... When Police Officer Brown testified what they told him, it was not to prove to you [the jury] that he, the defendant, is a big-time dealer, which has nothing to do with the case, it was allowed only to show the state of mind of the police officers that they weren’t trying to trap an innocent person, that they had reason to believe that this man, this defendant, was dealing with narcotics, and so they were going to continue their investigation to see if it was a fact or not. (R. 799, emphasis supplied.) * * * s{c * * “THE COURT: Ladies and gentlemen of the jury, I again am allowing this conversation in evidence to show the officer’s state of mind and the same way that I allowed the testimony about what Sergeant Martinez and Matera said about what this defendant is supposed to be, a big pusher, and so forth. I am also allowing this testimony in simply to show the state of mind of these police officers. Were they trying to trap this defendant, or did they have information of such a character that it would lead reasonably intelligent and prudent police officers to believe that this defendant might be committing a crime, might be predisposed to sell narcotics, and were, therefore, going to continue the investigation. (R. 807-08, emphasis supplied.) * # * * * * “THE COURT: —who told Officer Brown that he, the confidential informant [“Pete” Knight], had worked for the defendant Johnson for ten years. They set up this cover story about what Officer Brown was supposed to be. I have admitted all this solely on the issue of entrapment, the intent, the state of mind, the good faith of the police. Were they simply trying to trap an innocent man who was never predisposed to sell drugs, or were they conducting a bona fide investigation? And you [the prosecutor] want to offer the testimony, as I understand it, as to what Officer Brown did after he had this talk with the confidential informant, to show that Officer Brown was conducting a bona fide investigation, Officer Brown with his associates, and not merely trying to trap this defendant, is that your point? (R. 836.) * * * * * * “THE COURT: Again, we are addressing ourselves to the defense of entrapment that you have offered, Mr. Alch, and the witness is simply showing what he did, that he was conducting a bona fide investigation. At least, that’s the theory of the district attorney. And the credibility of the witness is for the jury to decide. They will have to decide whether he is telling the truth. (R. 842, emphasis supplied.) * * * * * * “If you were to say that you don’t have a defense of entrapment, that would be another story, but so long as you raised the issue and you told that to the jury, then I will allow the district attorney to offer evidence that will show that there is no entrapment. Whether there is or not is for the jury to decide.” (R. 843, emphasis supplied.) When defense counsel objected to the prosecutor asking Brown if he knew “the defendant would agree to sell you heroin” when Brown and the informant, Knight, rang Johnson’s doorbell on February 21, 1973, the objection was overruled with the following comment: “THE COURT: No, it seems to me that goes to [the] question of entrapment. If the witness knew when he went in there and knew that he was actually going to buy, that this defendant Johnson was going to sell him narcotics, that’s one thing, but if he goes in there and doesn’t know whether Johnson will sell him narcotics or not, but is simply giving the defendant Johnson an opportunity, if he wanted to do it, to sell him narcotics, then that certainly is not entrapment.” (R. 936-37.) Brown, of course, entered Johnson’s home with Knight for no other purpose than to induce conversation about narcotics to be recorded on Brown’s concealed tape recorder and later used at Johnson’s trial, and his conduct was precisely of the kind which would give rise to the defense of entrapment. At the trial, the playing of the tape was preceded by the following commentary of the, judge: “THE COURT: ... The district attorney is asking you to believe that Mr. Brown is telling you the truth and to corroborate his testimony says, T have here the actual recording of the conversation that the three of us had,’ which is in evidence. And this transcript is a transcript of the recording so that you will be hearing what you will be reading at the same time. “Therefore, the district attorney is arguing to you, and it is up to you to decide that it is — this is proof, says he, that Mr. Brown is telling the truth. Whether you believe that and whether you believe these recordings or don’t believe these recordings, that is for you to decide. But I am showing you why I am letting you do it. “The ultimate question is, is Mr. Brown telling the truth now, and to show that he is telling you the truth, the district attorney is offering these People’s Exhibits 2 and People’s Exhibit 2-A as an exhibit, simply as an aid to you in determining the truth. This transcript is given to you so that as you listen to the conversation, you can see whether the transcript is accurate or not, and as an aid to you in listening to the tapes, and seeing what the tapes contain. It is in the same position as the photograph of the house.” (R. 953-54.) Following the playing of the tape, the judge reminded the jury: “THE COURT: Of course you may recall that I allowed in evidence at the beginning of Mr. Brown’s testimony about what Sergeant Martinez and Police Officer Matera told him about the defendant.” (R. 957.) The reference was to the court’s prior interrogation of Brown which brought out that the named officers “told me that they had complaints that the defendant seated over there, Jessie Johnson, was a large-scale narcotic dealer in the Brooklyn area.” R. 790. When Sergeant Martinez later testified, however, it became clear that the only prior information the police had about Johnson was derived from “Pete” Knight, following the latter’s arrest for selling heroin. Based on his “cooperation” the police pursued the “investigation” of Johnson, for which Knight was later rewarded by dismissal of an indictment and other charges against him. R. 1773-76. The introduction of that evidence prompted a further explanation by the court to the jury regarding the prosecutor’s theory: “THE COURT: ... The district attorney intends to argue to you — Mr. Alch [defense counsel], of course, will argue to you that Mr. Johnson, if he committed this crime, that is, if he sold the narcotics, was trapped into doing it, and therefore he should be found not guilty. “The district attorney is going to ask you to draw an inference from the evidence that he was not trapped into it at all. The district attorney is going to argue that Mr. Johnson had this disposition to sell the narcotics, the criminal intent to sell narcotics, and all that the police were doing here was conducting a bona fide investigation into the narcotic activities in the Bedford-Stuyvesant area, allegedly, which may have involved Mr. Johnson. “To show you, to ask you to draw an inference that the police weren’t out to lay a trap for Mr. Johnson, they weren’t just out to get him, they were conducting a bona fide investigation of narcotics in the Bedford-Stuyvesant area, and the possible activity of the defendant, Mr. Johnson, and I am allowing that evidence which you may believe or not — that is entirely up to you — solely for the purpose that you may say to yourselves, here the police had information from this fellow, Pete Knight, the confidential informant, which led them off into this investigation; on the issue as to whether the police were seeking to trap him simply to make this arrest, to trap the defendant, Mr. Johnson, or whether they were simply affording him an opportunity in the conduct of a bona fide, honest investigation that the police were making, which led to Mr. Johnson.” (R. 1778-79.) As is so apparent in the record, “Pete” Knight was a principal actor for the police in the initiation and consummation of the narcotics transaction for which petitioners were convicted. R. 1513. But despite his omnipresence in the prosecution’s case, he never appeared at trial. The reason is obvious: by virtue of the judge’s unprecedented ruling that the prosecution was entitled to show the “good faith” of the police to counter the defense of entrapment, Knight’s “testimony” regarding Johnson’s reputation — and hence predisposition — was presented to the jury through the mouths of Officers Brown and Martinez. The admission of such accusatory hearsay and double hearsay was not only prejudicial error as a matter of law but also a clear denial of petitioners’ Sixth Amendment right to be confronted by a key witness against them. Hall’s Claims Hall was 25 at the time of trial and separated from her husband. She and her eight-year old daughter lived in Brooklyn with her mother. Hall had no prior criminal record and previously had been employed as a dietician in training at St. Johns Hospital, Brooklyn, and later as assistant manager of a women’s clothing shop. The latter employment led to her acquaintance with Johnson, who owned a factory for screen-printing designs on materials for women’s clothing. During the year that she knew him she packed boxes at his factory, was supported by him, and lived in his apartment at 950 Rutland Road when not staying at her mother’s house. Hall’s sole defense at trial was her own testimony that she did not know the contents of the green knapsack and did not even see it until Johnson told her to give it to “Pete” Knight just before he dropped her off at the Centaur Bar. She further testified that a shoulder strap visible in one of the police photographs showing her walking to Johnson’s car on February 23 was part of a shoulder handbag she customarily wore. Following her arrest on March 12, the handbag was seized and remained in police custody until she testified, when it was produced in court and she was permitted to show the jury how she wore it over her shoulder. Since Hall’s defense depended entirely upon the credibility of her denial of knowledge that she was assisting in the co