Full opinion text
OPINION SAROKIN, District Judge. INTRODUCTION The court is called upon in this matter to issue the “Great Writ,” long recognized as “the best and only sufficient defense of personal freedom.” The petitioners, convicted of a triple murder that took place nearly 20 years ago, continue to protest their innocence and allege that serious violations of their constitutional rights occurred at trial. The court’s responsibility to examine these allegations is in no way diminished by the existence of extensive review by the learned state courts which have ruled in this case. Indeed, it is tempting to presume the correctness of those rulings, but this court is charged to resist such temptation lest it fail in its duty to independently analyze the constitutional violations asserted in the petitions for habeas corpus relief. In so doing, the court has determined that the writ must issue. The extensive record clearly demonstrates that petitioner’s 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. Were it not for these grave constitutional violations, the court concludes, for the reasons hereafter set forth, the guilty verdicts of the jury might well have been otherwise. BACKGROUND At approximately 2:30 a.m. on June 17, 1966, two armed black men entered the Lafayette Bar & Grill in Paterson, New Jersey and opened fire. The bartender, James Oliver and a patron, Fred Nauyaks, were killed immediately. A second patron, Hazel Tanis, died one month later from her wounds and a third, William Marins, was partially blinded after being shot in the head. Arrested four months later for the murders were Rubin Carter, a well-known professional boxer who lived in Paterson, and who was, at 30 years old, reaching the peak of his career, a contender for the middleweight crown; and 20 year-old John Artis, who was about to enter college on a scholarship. As the case took a tortuous and often circuitous route through the New Jersey courts, the circumstances surrounding the killings and subsequent prosecution of Carter and Artis have become a mosaic. The picture of the evidence painted by petitioners and respondents is often conflicting and sometimes exceptionally murky. The accounts of many important witnesses, especially that of Alfred Bello, the only “eyewitness” to testify at the 1976 trial, have changed; some witnesses have died; the memories of those who survive have grown hazy. But from thousands of pages of testimony spanning two trials and numerous hearings, the parties have reconstructed two drastically different versions of the events that tragic night. The conflicting evidence is reviewed below (See The Brady violation) but a brief summary of the evidence introduced at the second trial is presented here. Patricia Valentine lived above the tavern and was awakened by gunshots about 2:30 a.m. She first ran to her window and saw two men leave the scene in a white car, then ran downstairs to the bar. Alfred Bello and Arthur Bradley were in the process of breaking into a nearby factory. Bello, who was standing lookout, was either in or outside of the bar (a main point of contention). Within minutes, police arrived at the scene and took statements from Bello, Marins and Valentine. A description of the car was sent out on police radio. A few minutes later, a Paterson police officer who just given up a brief chase of two cars, one white and one black, speeding out of town, started driving back into Paterson. He stopped a white car leased by Carter about 14 blocks away from the Lafayette Bar. Artis was driving, John Royster was sitting in the front seat, and Carter was alone in the back seat. The car was not speeding and there were no weapons in sight. Carter told the officer that the men were driving to his home, about six blocks away, to obtain money, and the car was allowed to go. Fifteen minutes later, Carter’s car was observed outside the La Petite Bar about 10 blocks west of the Lafayette. About five minutes later, the car was sighted for a third time, with only Carter and Artis in the vehicle. This time the police escorted the car and its occupants to the crime scene. From the evidence, it appears neither Bello nor Valentine identified the petitioners at the scene, and there is considerable dispute as to the identification of the car at the scene and again later that evening at the police station. The petitioners were taken to the station and to the hospital where the two survivors did not identify them. The petitioners were questioned, given polygraph examinations and released about 7 p.m. on June 17. Meanwhile, police searched the car in which they later alleged that they found a live .12 gauge shotgun shell in the trunk and a live .32 caliber shell on the floor of the front seat. There was considerable dispute about this evidence. The petitioners voluntarily testified before a Passaic County Grand Jury which did not return any indictments. In July and October, Bello told a Paterson police officer that he had seen Carter and Artis at the crime scene. Bello and Bradley identified Carter as one of the two black men they saw coming from the Lafayette Bar with weapons in their hands. Bello, but not Bradley, identified Artis as the second man. On the basis of these identifications, the petitioners were indicted and ultimately convicted of murder in June of 1967. In late 1973, Fred Hogan, a state Public Defender’s Office investigator assigned to Carter’s case began contacting Bello and Bradley about the case. Hogan had communicated with Richard Solomon, a documentary film-maker, Selwyn Raab, who then worked for a New York television station, and Hal Levinson, who worked for Raab at the station. Raab and Levinson eventually talked with Bello about recanting his testimony. After Bradley gave Hogan a statement recanting his identification of Carter, Hogan continued to talk with Bello, who in a written statement from jail in September 1974 first recanted his 1966 testimony (37T125). The recantation resulted in a hearing and began a series of events that ultimately set the stage for the second trial in 1976. At the retrial, there was considerable testimony concerning alleged inducements made to Bello by both the prosecution and the defense camp in order to change his story. (See: The Brady Violation, infra) There was also evidence presented, and disputed by the defense, that Carter attempted to create a false alibi for the 1967 trial. (See: The Brady Violation, infra) The petitioners were both found guilty of first degree murder. Carter was sentenced to two consecutive and one concurrent life sentences and remains in prison. Artis, who received a lesser sentence, was released on parole for a ten year term beginning December 22, 1981. PROCEDURAL HISTORY The petitioners were originally tried and convicted in 1967 of three counts of first degree murder. Life sentences were imposed after a jury recommendation of mercy on June 29, 1967. The convictions were affirmed on direct appeal to the New Jersey Supreme Court. State v. Carter, 54 N.J. 436, 255 A.2d 746 (1969) (“Carter I”), cert. denied, 397 U.S. 948, 90 S.Ct. 969, 25 L.Ed.2d 130 (1970). On October 1, 1974, the petitioners filed a new trial motion based on the statements of the state’s two key witnesses recanting their 1967 identification testimony. The original trial judge denied the motion. State v. Carter, 136 N.J.Super. 271, 345 A.2d 808 (Cty.Ct.1974). A second new trial motion was made on January 30, 1975 and that motion was also denied. State v. Carter, 136 N.J.Super. 596, 347 A.2d 383 (Cty. Ct.1975). That decision was appealed to the New Jersey Supreme Court, which, on March 17, 1976 overturned the convictions and ordered a new trial. State v. Carter, 69 N.J. 420, 354 A.2d 627 (1976) (“Carter II”). The Supreme Court ruled that the prosecution had withheld from the defense exculpatory evidence which demonstrated that prosecutors had offered the key identification witnesses protection and help with criminal charges pending and/or threatened against them. The case was remanded to the trial court, where there were numerous motions and hearings. The retrial began on October 12, 1976 and concluded on December 22, 1976 when the jury returned first degree murder verdicts. The judgments were appealed to the Appellate Division of New Jersey Superior Court and the state Supreme Court. During the pendency of these appeals, there was a federal habeas corpus order for a state court hearing on allegations of juror misconduct. These hearings were held in 1979 by the second trial judge, who found against the defense on all issues. Among the new trial motions pending before the New Jersey appellate courts was a motion seeking an evidentiary hearing to determine whether the prosecution had misrepresented the results of a 1976 pretrial polygraph test given to Alfred Bello. (See: The Brady Violation, infra) The Appellate Division affirmed the convictions in an unreported opinion issued October 22, 1979. The New Jersey Supreme Court reversed, however, remanding the issue to the trial court for a hearing on issues surrounding the polygraph test. State v. Carter, 85 N.J. 300, 426 A.2d 501 (1981) {“Carter III”). The remand hearing before the trial judge lasted 15 days. In an 80-page unreported opinion dated August 28, 1981 (“Opinion on Remand”), the judge found against the defense on all issues. One year later, following further briefing and oral argument, the New Jersey Supreme Court affirmed the convictions by a 4-3 majority. State v. Carter, 91 N.J. 86, 449 A.2d 1280 (1982) (“Carter IV”). Subsequently, petitioners filed another application before the trial court for an evidentiary hearing relating to allegedly exculpatory material contained in the file of a former prosecution investigator. That application was denied and appealed to the Appellate Division, which affirmed the trial court in an unreported decision dated July 2, 1985. THE HABEAS CORPUS PETITIONS The instant petitions for habeas corpus were filed February 13, 1985 by Carter and February 28, 1985 by Artis. The actions were consolidated in an order dated May 6, 1985. A motion for summary judgment on seven of the petition’s twelve grounds was filed by petitioners on May 25, 1985 and oral argument on the motion was held July 22, 1985, after which the court received further submissions from counsel. The petitioners allege: 1. The state violated the requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by failing to disclose the results of a lie detector test given to the state’s only “eyewitness”. 2. The state violated the Equal Protection and Due Process rights of petitioners by improperly appealing to racial prejudice during the trial by claiming the killings were motivated by racial revenge. 3. The jury considered material not introduced as evidence and members of the jury had preexisting racial prejudice. 4. The prosecution misled the defense as to its theory of the case, withheld discovery, improperly cross-examined and unfairly denigrated defense witnesses. 5. The prosecution violated the Due Process rights of petitioners by exerting improper pressure on certain witnesses to support a false alibi claim. 6. The prosecution violated the Due Process rights of petitioners by using Bello as a witness despite proof of his “monumental” untrustworthiness. 7. The prosecution withheld a memorandum in violation of Brady showing how Bello was persuaded to change his mind. 8. The prosecution violated the petitioners’ rights to a Speedy Trial by making last-minute presentations at trial of a new theory. 9. The evidence presented at trial did not meet the reasonable doubt standard. 10. The petitioners’ Due Process rights were violated because public funds were not made available for investigative and expert services and because the trial judge did not properly exercise judicial discretion to limit cross examination regarding Carter’s criminal record. 11. The petition’s Due Process rights were violated by the trial judge’s bias. 12. The state committed a Brady violation by failing to produce a file by a former investigator in the case. Petitioners seek summary judgment on Grounds 1, 2, 4, 6, 7, 8 and 10. During oral argument, counsel for Petitioner Carter represented that the complaint would be amended to exclude Ground 12, the identical issue rejected by the Appellate Division on July 2, 1985, so that there would be no dispute that he had presented only exhausted claims to his petition. Respondents agreed to the amendment of the complaint. Petitioner Artis has not amended his petition to delete Ground 12, and argues that technical exhaustion of his state remedies is unnecessary because the corrective process in the New Jersey state courts is so clearly deficient as to render futile any efforts to obtain relief. That issue is discussed below. (See: Exhaustion of State Remedies, infra). THE RACIAL REVENGE THEORY A. The State’s Arguments The court first turns to Ground 2, that the petitioners’ Due Process rights were violated. During the 1967 trial, the defense argued that the state had not established any reason or motive for Carter and Artis to have committed the murders. Anticipating the same tactic at the 1976 retrial, the state contended the shotgun murder of James Oliver, a white bartender at the Lafayette Bar, was motivated by racial revenge. The state theorized that the other three bar patrons were shot only because they had witnessed Oliver’s killing, and that there was no robbery, because their money was scattered about the bar after the rampage. (16T44, 19T174, 32T167-171). The genesis for the state’s theory began about six hours before the Lafayette Bar killings, when Leroy Holloway, the black owner of the Waltz Inn, another Paterson tavern, was shot and killed by Frank Conforti, a white man who had previously owned the Waltz Inn. The state introduced testimony from police officers that a large and “angry” crowd gathered outside the Waltz Inn shortly after the shooting. (32T194, 31T136-141) Within the next few hours, according to the Grand Jury testimony of Rubin Carter himself, there was talk of a “shaking” or some sort of retaliatory action among the black community. (36T153-154) In order to tie the two killings together, the state argued that the Lafayette Bar had served primarily white patrons and was an ideal target of this anger. (31T69-71) It was located on the fringes of a black neighborhood and Oliver, its bartender, had on occasion refused to serve black customers, according to the testimony of one officer. (17T75-80) The state alleged that Carter and Artis were both aware of the murder of Holloway and the ensuing tense atmosphere in the streets, and that they were driven to action out of their friendship with Edward Rawls, Holloway’s stepson and a part-time bartender at the Nite Spot, a Paterson bar frequented by Carter. (39T257-258) After he learned of the Waltz Inn shooting, Rawls took the night off from his job at the Nite Spot and went to the hospital where his stepfather had been taken, then to police headquarters, where, according to police officers’ later testimony, Rawls demanded to know what the “police intended to do about the guy who killed his stepfather.” One of the same officers testified that Rawls became agitated and was ordered to leave. (33T5-8) Afterwards, Rawls met Carter at the Nite Spot, where Carter extended his condolences. The state asserts that Carter then set out to search for weapons stolen from his training camp a year earlier, found the guns and committed the murders. (36T136-149). B. Proper Use of Motive At trial, the defense objected strenuously to the introduction of the racial revenge motive, on the grounds that such evidence would be prejudicial and that its probative value was outweighed by its prejudicial effect (31T120). The trial judge, relying on State v. Rogers, 19 N.J. 218, 116 A.2d 37 (1955), ruled that in criminal prosecutions, wherein the motive is important and material, a somewhat wider range of evidence is permitted. (31T121). In Rogers, the court allowed evidence showing loans made by a murder victim to the defendant were never repaid. Similarly, the Carter trial judge held that the proffer of motive was material and probative and had a tendency to explain conduct which would ordinarily or otherwise probably be unexplainable. (31T122). The New Jersey Supreme Court agreed, citing Rogers and its progeny, and ruled that “There is nothing inherently wrong with advancing a theory of revenge as a motive for murder, if the facts bear out the theory.” Carter IV, 91 N.J. at 106, 449 A.2d 1280. It is well-established that the prosecution may introduce evidence of motive. Carter IV, at 102, 449 A.2d 1280, 1 Wigmore and Tillers, Evidence § 118, at 1697-98 (1983). “Motive cannot be shown directly, but may be inferred from facts in evidence. In the introduction of evidence to show motive, a wide range is permitted. Thus, any evidence which logically tends to show a motive, or fairly tends to explain the conduct of the accused should be permitted” 1 Wharton, Criminal Evidence, § 170 at 317-318 (13th ed. 1972). In State v. Rogers, supra, the court allowed the prosecution to introduce evidence to show the defendant had been indebted to the murder victim. The New Jersey courts have continued to follow Rogers, as have other courts throughout the country. For instance, in State v. Baldwin, 47 N.J. 379, 391, 221 A.2d 199 (1966), cert. denied, 385 U.S. 980, 87 S.Ct. 527, 17 L.Ed.2d 442 (1966), the court allowed evidence that the defendant’s victim was a prospective witness; in State v. Royster, 57 N.J. 472, 484-85, 273 A.2d 574 (1971), the court allowed evidence showing the defendant threatened the victim several weeks before the murder; in United States v. Parker, 549 F.2d 1217 (9th Cir.1977), cert. denied, 430 U.S. 971, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977), the court upheld the introduction of evidence of narcotics dealing as motive to commit a robbery; and in United States v. Michaels, 726 F.2d 1307 (8th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 92, 83 L.Ed.2d 38 (1984), the court allowed evidence of the car bombing death of the defendant’s grandfather as motive for a subsequent bombing. C. The New Jersey Supreme Court’s Analysis The New Jersey Supreme Court majority accepted the racial revenge theory as probative, dismissing the petitioner’s claims that irrespective of its relevance, the impact of the evidence involving motive was inflammatory and improperly swayed the jury. The decision, the court said, was within the discretion of the trial judge, and absent abuse of discretion or a manifest denial of justice, should not be disturbed. Carter IV, 91 N.J. at 106-107, 449 A.2d 1280. “Ordinarily, evidence as to motive is admissible even though it may be prejudicial in the sense that it will arouse or inflame the jury.” 1 Wharton, Criminal Evidence, supra, § 170, at 316. This case is, however, far from an ordinary introduction of motive. The court must be especially sensitive to the introduction of motive with racial connotations. When a court is dealing with narcotics use as motive for robbery, or a previous direct threat by a defendant against a victim as an indication of ill-will and motive, then there is a clear relationship between the defendant and the motive. There is no such relationship here. The New Jersey Supreme Court also rejected petitioner’s claims that the interjection of the racial revenge motive, and the state’s summation of that motive, was an unacceptable appeal to racial prejudice, and as such violated their due process rights to a fair trial. Carter IV, at 107, 449 A.2d 1280. The summation read, in part: PROSECUTOR: Strand Number Five: Motive. Defense counsel say that is a sensitive issue and it is. It’s a very sensitive issue. None of us like to admit that things like race prejudice and anger and hate for people because of the different color of their skin exists in this world. We avoid it. We teach our children the contrary. Wé support civil rights. We support courses in our schools. We bear in mind the words of Reverend King, in which he had a dream of a day where people would judge his children by the quality of their character, not by the color of their skin. Now ladies and gentlemen, we don’t live in that world yet and we certainly didn’t live in that world in 1966. It was a world and is a world filled with people who hate. You may remember in the voir dire a number of questions were asked of you about racial prejudice. We wanted a jury which is free from racial prejudice. But, we recognized in making those questions that not everybody is free from racial prejudice and, of course, we know that no group, no class is immune from hate and we know that revenge is one of the most powerful motives that any human being can have. We look around the globe and see it everywhere. We see Greeks and Turks and ... COUNSEL FOR ARTIS: Your Honor, I object to Greeks and Turks and things outside this courtroom. THE COURT: No. Counsel is making a point. He is illustrating a point by describing as other counsel did. I will permit that. PROSECUTOR: We see hate and anger and revenge there and we see people in Ireland fighting because of religion and we know that in 1966 there were many blacks with legitimate grievances and some blacks and some whites did not act as law-abiding citizens. It’s an area which everybody goes into with a great deal of trepidation, but does it mean we should hide, look away; we should say, well these motives are too repulsive, too ugly, we don’t want to deal with them. We have to look at them. We have to analyze them. And I suggest to you, as much as you may want to look away, as much as you may want to say it couldn’t have happened for that reason, it did happen for that reason. What other reason could it have happened for? (45T198-200) (emphasis added) D. Analysis of the State’s Evidence The spoken question begets the unspoken question: “What reason other than the defendants being black and the bartender white?” Even assuming, arguendo, that the government’s version of events purporting to evince racial motive was supported by the evidence, the court concludes that the evidence submitted was insufficient to justify injection of such a contention. In essence, the prosecution was permitted to argue to the jury that defendants who were black were motivated to murder total strangers solely because they were white. Although racial revenge may indeed be a motive for murder, its highly inflammatory and prejudicial effect upon a jury requires that its existence be supported by sufficient and competent evidence. Furthermore, that evidence must be attributable and relevant to the defendants on trial and not based upon a stereotyped supposition as to how a particular group would react in a given situation. Therefore, in analyzing the facts in this case it is essential to distinguish the acts and knowledge of the defendants from those of other persons or groups of persons. The prosecution, in support of its “racial revenge motive” relied upon what it has termed “twenty points” of evidence. (31T55-77) Of those points, only the following pertained directly to petitioners on the issue of motive: 1. Petitioners knew of the murder of Holloway, a black man. 2. Petitioners were friends of Edward Rawls, Holloway’s stepson. 3. Carter extended his condolences to Rawls prior to the murders at the Lafayette Bar. 4. Carter testified before the grand jury that there was talk that night in the black community of a possible “shaking” (i.e. rock and bottle throwing). The balance of the purported evidence as to racial revenge might support the prosecutor’s theory in general as to motive, but had little relationship to the petitioners. Indeed, it is difficult to fathom some of its admissibility as against them. For instance: 1. The three other Lafayette Bar patrons were shot only because they were witnesses to the killing of Oliver; there was no evidence of robbery. At best this evidence is consistent with the prosecutor’s theory but adds nothing to implicate the petitioners. 2. There was a large and angry crowd gathered outside the Waltz Inn shortly after the shooting. It is difficult to understand how such a gathering could be imputed to petitioners. There is no evidence that they were present or even knew of such a gathering. 3. The Lafayette Bar had primarily white patrons and was an ideal target of the anger of the black community. Again there is no evidence that petitioners had any knowledge of the purported history of the Lafayette Bar or ever expressed any animosity towards it. 4. Rawls went to police headquarters and demanded action, became agitated and was ordered to leave. There is no testimony that petitioners knew or learned of this incident, and again it is difficult to comprehend how such activities could have been considered in assessing their motives. If these and the other factors .unrelated to petitioners are deleted from the government’s equation, as this court concludes they should have been, what remains is simply 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 (rather than the rope referred to in the prosecutor’s summation) of largely irrelevant evidence and impermissible inferences. The foregoing analysis is predicated upon a view of the prosecution’s case in its most favorable light and accepting as true and proven each element of the prosecution’s racial revenge theory. While this in itself would constitute sufficient grounds for granting the writ, the court is even further convinced of the correctness of its conclusion by the significant contradictory evidence which permeates the record on this issue. While this conflicting evidence as to motive is not in itself a constitutional infirmity, its presence further undermines the validity of its submission to the jury. For example, the motive in the Waltz Inn killing was a dispute over money, having nothing to do with race (33T120). While there was testimony at trial by two police officers that there was a crowd of 25 to 30 “unruly and angry” people outside the Waltz Inn, the atmosphere among the crowd was contradicted by another witness, Clarence Carr, who testified that while the group, which included whites, was upset, there were no racially derogatory terms used by the crowd, nor was anyone urging mob retribution on Conforti as he was brought through the crowd by police (41T18-19). Similarly, just as two police officers testified that Rawls appeared at police headquarters and promised vigilante action if the police did not bring his stepfather’s killer to justice, another witness, William Johnson, said that Rawls made no threats or disturbance, but was simply making an inquiry. (34T31) The testimony concerning the racial composition of the bars; that the Lafayette Bar was “white” and that Oliver, the bartender, refused to serve blacks, was vital to the question of motive. However, the police officer who testified that he had been called to the bar on more than one occasion when Oliver refused to serve blacks also testified that he had seen blacks being served at the Lafayette Bar. (17T81) Another witness, Ronald Ruggerio, a white man who lived a few doors down from the bar, testified that he had seen blacks from the neighborhood patronizing the bar and had seen Oliver serving them. (40T130,-131) The state asserts that the lynchpin of its racial revenge theory came from Carter himself, when he testified before the Grand Jury in 1966. Carter testified that there was talk among the black community of a “shaking”, which he said meant to include rock and bottle throwing, but not murder (36T154). The state took Carter’s definition further, implying that he meant murder, and stating in its summation that the only reason Carter mentioned the talk of “shaking” to the Grand Jury was that he knew the police were aware of it. (45T203) There was no evidence to support this, owever. Most significantly, there was no direct evidence ascribed to the petitioners tc support the racial revenge motive. While Carter and Artis were shown to have known Rawls, and Carter conceded in his grand jury testimony meeting briefly with him at least one time that night to express his condolences, there was no evidence that either petitioner knew that it was a white man who killed Holloway, or, had they known, that they would have reacted in such a vicious and violent manner. There was evidence that the petitioners had cordial relationships with white people, socially and professionally, and that Carter lived in an integrated neighborhood and trained at an integrated gym. (39T135-136) Several white character witnesses testified on Artis’ behalf. (43T113, 116, 118) The petitioner’s knowledge of a mob gathering or even threatened retaliation cannot be imputed to them unless they did more than know about it. Are the actions of a mob imputed to members of a particular race just because they witnessed or learned of the actions of such a mob? If defendants had learned of mobs, or threats, or talk of a “shaking” or retaliation from news reports rather than on the streets could such knowledge alone be used against them? Even assuming that petitioners had learned there was to be an indiscriminate killing of whites, how can such knowledge provide a basis for establishing their personal motives? The final element of the state’s theory was Carter’s “search” for weapons. The prosecutor argued that Carter, swept up in the talk of a “shaking,” went with his friends, including Neil Morrison, to the apartment of another friend, Annabelle Chandler, to confront her about a story she had told Carter about Morrison allegedly stealing guns from Carter’s training camp a year earlier. (36T164) The state maintained that Carter somehow then found the guns, and after several meetings with Rawls, took part in the killings. The meeting at Mrs. Chandler’s apartment was confirmed in the record, but Carter did not press the matter, because Mrs. Chandler was seriously ill. (36T147-148; 39T96) There is no testimony that Carter obtained the weapons at the apartment. But the links of this evidentiary chain are corroded. There was no evidence that Carter found the weapons. There was no evidence that Carter’s conversation with Rawls went beyond a simple condolence, yet the prosecution inferred private meetings with Rawls, during which, presumably, the killings were planned. Further, there was testimony that the decision to go to Mrs. Chandler’s apartment was made before anyone had heard about the shooting, because of Carter’s chance meeting with Morrison, who was the former manager of Carter’s training camp and who had recently been released from jail. (36T136) After the meeting at Mrs. Chandler’s apartment, Carter and his party returned to the Nite Spot, where they had been drinking before. (39T285-286) Even accepting the facts relied upon by the state and all reasonable inferences therefrom, the court concludes the “searclr for weapons” scenerio lends no support to the state’s racial revenge theory. The alleged search for guns is no more probative of the petitioner’s motive than the murders themselves. Motive answers the question: “Why?” To argue that the search for guns is evidence of motive begs the question, particularly where it appears that the “search” may have occurred even before petitioners knew of the shooting of Leroy Holloway (36T140-145). Certainly motives can be derived from actions, but to suggest that searching for guns, finding them and then using them, is evidence of motive is to elevate a bootstrap argument beyond all reason. Evidence that petitioners looked for weapons to carry out their racial revenge is probative of their guilt but it cannot also serve as evidence of their motive in seeking the guns. Indeed, if there was truly support for the prosecutor’s theory, then the motive would have been formed when the alleged search for weapons began. The fact of the search adds nothing to the evidence of motive. E. The State’s “Assumptions” The petitioners allege that the state’s theories rest on three “unacceptable and insupportable” assumptions, one articulated and two unarticulated. (Petitioner’s brief p. 102). The articulated assumption was that a “shaking” meant a violent, murderous response by members of the black community. As the prosecutor said in his summation: A few hours before 8:00,1 believe, a man at the Waltz Inn was killed. A white man came in and blew his head off with a shotgun and some four or five or six hours later two black men came into a bar and put a gaping hole with a shotgun into the white bartender. Coincidence? We like to think so, but the facts don’t add up to a coincidence. They don’t add up to a coincidence at all. A shotgun used, the same type of weapon; a bar on the border between a black area and a white area; a bartender who Officer Unger — and this was his beat, remember — testified that there had been complaints regarding the bartender refusing to serve black persons. What a natural target, and of course, there is Mr. Carter’s testimony before the Grand Jury which was read to you. There was talk of a shake among certain persons in the black community. There was talk of a retaliation. (45T201-202) (emphasis added) The first unarticulated assumption, the petitioners argue, is that blacks in general, and Carter and Artis in particular, would have such hostile attitudes toward whites and such a predilection toward violence that they would be likely to respond by indiscriminately killing three whites whom they never knew to avenge the death of a black man they had never met. The second unarticulated assumption is that Rawls was a necessary co-conspirator, and the prosecutor’s theory was based on a series of conjectures which required the jury, in effect, to try and convict Rawls, who was never indicted or brought into court. The inferential leaps made by the prosecutor are virtually impossible without the unstated appeal to the jury that it is perfectly reasonable to expect blacks to commit murder when one of their own is attacked. The fallacious premise of the argument becomes self evident if it is reversed and applied toward whites. Would a jury be permitted to conclude that a white defendant would have expressed such violent and indiscriminate rage without any evidence of personal racial animosity? The evidence did not support the imputation of the racial revenge motive to Carter and Artis. There was no proof that Carter and Artis were black militants with an inclination to kill whites, nor that they had even the slightest hostility toward whites, only that Carter had heard there was unrest and heard there was talk of a possible disturbance. In fact, the only blatantly racial statement placed before the trial court was Bello’s testimony that while he was being interviewed by a prosecutor’s detective in October 1966, that detective referred to blacks as “niggers” and “animals.” (21T14) Moreover, the prosecutor acknowledged the necessity to establish the showing of personal hostility in a letter to the trial court judge on November 26, 1976: Wigmore (3rd ed. 1940 § 118) says that the showing of motive is a two-step evidential process. The first step is showing that a particular emotion is a circumstance showing the probability of appropriate ensuing action. Hence, a showing of the hostility of the defendant toward the race of the victim should be a circumstance which makes the desired inference (i.e. the defendant killed the victim) more probable. Defendants’ Joint Appendix on Appeal of Convictions, Volume 4, p. 22(a). During oral argument, the state conceded that there was no direct evidence to support the motive other than Carter’s “shaking” reference before the initial grand jury (Transcript of Oral argument July 26, 1985, p. 71). The state’s answer to this lack of direct evidence is that “actions speak louder than words”; that if the jury were to find that Carter was the individual who committed the killings, they could then attribute the motive to him. Id., at 70. This argument is convoluted and contrary to the prosecutor’s own arguments that the jury should use the existence of motive to find that defendants had committed the killings. F. The Standard of Review In reviewing the conduct of a state prosecutor in a petition for writ of habeas corpus, this court is limited to the narrow scope of due process violations. Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974). Only those state trial court errors that constitute a “failure to observe that fundamental fairness essential to the very concept of justice,” violates due process. Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941), reh’g denied, 315 U.S. 826, 62 S.Ct. 620, 86 L.Ed. 1222 (1942) (“In order to declare a denial of [due process] we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.” Id.) In federal habeas corpus reviews of state proceedings, it is essential to distinguish between ordinary trial error and that sort of egregious misconduct which amounts to a denial of constitutional due process. United States ex rel. Perry v. Mulligan, 544 F.2d 674, 678 (3d Cir. 1976), cert. denied, 430 U.S. 972, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977). Several circuits have said that a' prosecutor’s appeal to racial prejudice can rise to an infirmity of that magnitude. See: Miller v. North Carolina, 583 F.2d 701 (4th Cir.1978); Kelly v. Stone, 514 F.2d 18 (9th Cir.1975); United States ex. rel. Haynes v. McKendrick, 481 F.2d 152 (2d Cir.1973); and Soap v. Carter, 632 F.2d 872, 877 (10th Cir.1980) (Seymour, J. dissenting), cert. denied, 451 U.S. 939, 101 S.Ct. 2021, 68 L.Ed.2d 327 (1981). “Appeals to racial prejudice are foul blows and the courts of this country reject them.” Withers v. U.S., 602 F.2d 124; Ross v. United States, 180 F.2d 160 (6th Cir.1950), cert. denied 344 U.S. 832, 73 S.Ct.46, 97 L.Ed. 648 (1952). The essence of an improper appeal to the jurors is that it is directed to passion or prejudice rather than an understanding of the facts and the law. Perry v. Mulligan, at 680. Such appeals to passion or prejudice threaten the impartiality of the jury, a fundamental component of a fair trial. An effective appeal to prejudice undermines the guarantee that a defendant shall have his case decided according to evidence in the record, rather than on the basis of potential juror bias. Moreover, prejudicial argument by the prosecutor unfairly stacks the deck in the government’s favor. Soap v. Carter, 632 F.2d at 877 (Seymour, J. dissenting). In Haynes, the Second Circuit reviewed a district court judge’s issuance of a writ of habeas corpus on the grounds that the prosecution’s use of racially prejudicial remarks in summation violated the petitioner’s right to a fair trial. The remarks were more overt than in the instant case, but no less impressionable. The prosecutor in that case made repeated references to “colored people” as an entity separate and apart from the jury. Such “racial prejudice can violently affect a juror’s impartiality and must be removed from the courtroom proceeding to the fullest extent possible.” Id., at 157. Judge Oakes, in his opinion, traced the Supreme Court’s fair trial cases, beginning with Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923) where the Court had overturned convictions on Fourteenth Amendment grounds when racial prejudice “was a major factor in the fiber of the trial.” He similarly traced the equal protection eases, beginning with Strauder v. West Virginia, 100 U.S. 303 [10 Otto 303, 25 L.Ed. 664] (1879) and noted there is a point where a criminal trial is affected by racial prejudice, either in the underlying procedure or the atmosphere surrounding the trial, when an overlap of the due process and equal protection clauses could occur. “If there is anything more antithetical to the purposes of the Fourteenth Amendment than the injection against a black man of racial prejudice ... we do not know what it is.” Id., at 159. Judge Oakes concluded that there was a strong probability of prejudice in the prosecutor’s remarks, and defined that “probability” as the correct test “when the evidence of guilt is not overwhelming.” Id. In Miller, three black men convicted of raping a white woman petitioned for habeas corpus, arguing, inter alia, that racially inflammatory remarks in the prosecutor’s closing argument were so prejudicial as to make a fair trial impossible. Again, the remarks were overt: that the victim could not have consented to sexual relations because “the average white woman abhors anything of this type in nature that had to do with a black man,” Miller, at 704. The court said that where evidence is relevant but also prejudicial, the law requires that it not be received into evidence until it has been demonstrated that its relevance and probative value outweighs its collateral prejudicial effect. Id., at 706. “A prejudicial argument by the prosecutor poses a serious threat to a fair trial. Not only does it undermine the jury’s impartiality, but it also disregards the prosecutor’s responsibility as a public officer.” Berger v. United States, 295 U.S. 78, 85, 55 S.Ct. 629, 632, 79 L.Ed. 1314 (1935). See also: American Bar Association Project on Standards for Criminal Justice, The Prosecution Function,, § 5-8(c) (1974) (“The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.”) In McFarland v. Smith, 611 F.2d 414 (2d Cir.1979), a prosecutor asked the jury to credit a black police officer’s testimony because she was testifying against another black person. “To raise the issue of race is to draw the jury’s attention to a characteristic that the Constitution generally commands us to ignore. Even a reference that is not derogatory may carry impermissible connotations, or may trigger prejudiced responses in the listeners that the speaker might neither have predicted nor intended.” Id., at 417. While the court added that not all race-conscious arguments are impermissible, it added a cautionary note: But given the general requirement that the race of a criminal defendant must not be the basis for any adverse inference, any reference to it by a prosecutor must be justified by a compelling state interest. Id. The New Jersey Supreme Court and the respondents in this action dismiss this entire line of cases as not on point, because, they maintain, the prosecutor’s advocacy attributed no qualities to a generalized class of blacks. Carter IV, 91 N.J. at 108, 449 A.2d 1280. This court respectfully but vehemently disagrees. The evidence, so overwhelmingly circumstantial, requires, in many places, inference upon inference to support the state’s theory. The only means by which the prosecutor’s theory makes sense, in light of that evidence, is if the jury makes the prejudicial racial assumptions referred to above. Moreover, in the context of the conflicting evidence and the extreme danger of prejudice, the remarks uttered in summation confirm the “unarticulated assumption” referred to by petitioners. The prosecutor, in analogizing the longstanding racial or ethnic wars abroad — and the accompanying television images of senseless violence — to the depth of racial antipathy that existed in Paterson in June, 1966, without basis in the record, imputed the “powerful motive of revenge” on the entire black community, and thus on the petitioners. This despite the absence of any evidence of either petitioner having such racial hatred. In sum, the prosecutor’s theory invokes race for a purpose that has very slight or uncertain logical validity, and does so at a distinct risk of stirring racially prejudiced attitudes. McFarland v. Smith, 611 F.2d at 419. The court must next consider whether injection of the racial motive into the case was harmless error under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), reh’g denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967). In Chapman, the Supreme Court stated that some constitutional errors are so unimportant and insignificant that they may, consistent with the Constitution, be deemed harmless, not requiring automatic reversal. “The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction,” Id., at 23, 87 S.Ct. at 827 (emphasis added). It is certainly arguable that an appeal to racial prejudice of the kind which occurred here violates that category of constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error. Id. Such cases include coerced confessions, denial of counsel or lack of an impartial judge. Id., at n. 8. In Miller v. North Carolina, the Fourth Circuit applied this standard of automatic reversal where the prosecutor made a blatantly racist comment. But this court need not reach the issue of whether that absolute standard has been met here; the probability of prejudice was sufficiently great and the case sufficiently close that it was reasonably possible, indeed probable, that the theory of a racial revenge motive and its submission to the jury contributed to the conviction. G. Conclusion — Racial Revenge Motive To support this conclusion the court need look no further than the prosecutor’s own argument to the trial court. In proffering the so-called “twenty points” of evidence to support the racial revenge motive, the prosecutor said: if the state does not attempt to prove motive in this case, the state will be handicapped because these defendants will have every right to argue to the jury at the conclusion of the case that motiveless murders do not occur, that the state has not addressed any evidence of motive and for that reason these defendants did not do the crime for which they are charged. (31T69) Thus, the prosecution itself, concedes that the racial revenge theory was essential to its procuring a conviction and without it, its case was in jeopardy. Certainly it should be estopped to now argue that it was not critical in the jury’s determination of guilt. 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 any 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 permitted 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. THE BRADY VIOLATION A. The Harrelson Polygraph As the 1976 retrial approached, the state faced the prospect of presenting its case without either of its crucial “eyewitnesses” from the 1967 trial. Arthur Dexter Bradley, who in 1967 had identified Carter as being present outside the Lafayette Grill, recanted his testimony in 1974. But more importantly, it appeared the state would not have Alfred Bello, the primary identification witness, who testified at the 1967 trial that he saw both Carter and Artis, with weapons, “on the street” outside of the ta,vem immediately after the killings. Bello began retreating from his original testimony in a 1974 recantation and he continued revising his story until it became unrecognizable. At a recantation hearing in October, 1974, he said he could not identify either Carter or Artis as being near the Lafayette Grill after the shootings. Bello told recantation versions of his story to newsmen Raab and Levinson. In addition, during August 1975, Bello made a series of tape recordings with friends Melvin Ziem and Joseph Miller during which he told several additional versions of the events following the Lafayette Bar killings. On October 30, 1975, Bello said in an affidavit that he was “in the bar” at the time of the shootings, and that immediately afterward he ran outside, where he saw Carter and Artis. Bello said he did not remember seeing the petitioners in the bar and he did not believe they were the trigger men, but thought they were involved nevertheless. (20T175-178). In another affidavit the next day, Bello said that he did not see Carter and Artis with weapons or in the bar. (20T178). Bello told an Essex County grand jury seven weeks later that he saw two different black men in the bar, while he saw Carter and Artis outside. (Remand hearing 5/19/81 H79, 115-120). In June 1976, Bello told essentially the same story to the Passaic County prosecutor’s office. Understandably concerned, the state arranged for a polygraph examination by Professor Leonard H. Harrelson on August 7, 1976. The purpose of the examination, according to the then prosecutor, was to evaluate Bello’s credibility, including “whether he was telling the truth or lying when he said he was in the bar at the time of the shooting,” Carter IV, 91 N.J. at 133, 449 A.2d 1280. As a result of the polygraph, Harrelson concluded that Bello was telling the truth when he said he was in the bar shortly before and at the time of the shooting (5/19/81H79,131). He also concluded that Bello saw Carter and Artis outside of the bar after the shooting. Id. The same day, he gave an oral report of his findings to Passaic County Assistant Prosecutor Kayne and Chief of Detectives DeSimone. DeSimone told Harrelson that his conclusion was impossible; that Bello could not have been inside the bar at the time of the shooting. Id. Bello ultimately testified for several days at the 1976 trial, but the subject of the lie detector test was not brought out before the jury. Harrelson testified at a post-trial remand hearing that he told the prosecutors his report was not tentative or preliminary and although he would not change his opinion, he would follow the verbal report up with a written “final” report. (5/19/H131-134) On August 11, 1976, Harrelson gave the same verbal report by telephone, and two weeks later he sent his written report to the prosecutor. The confusion that ensued was aptly described by Justice Clifford in his incisive dissent to the opinion of the New Jersey Supreme Court: For reasons that can charitably be described as unfortunate, in his later written report of his test the polygraphist summarized his findings with the opinion that Bello’s 1967 trial testimony (which contained the “on-the-street” version) was “true”: unfortunate, because Harrelson had never read Bello’s 1967 testimony and no representative of the prosecution had enlightened him as to that testimony and hence he was plainly — and grievously — mistaken as to the location from which Bello said, in 1967, that he had witnessed the events before and after the slayings; doubly unfortunate, because although the State continued to promote the notion that Harrelson’s “in-the-bar” conclusion was only tentative [footnote omitted], Harrelson specifically and adamantly insisted that he never used those or any similar words or ever made the statement to “anyone at all on the face of the earth that [he] was unsure of Bello’s test results * * * ”; and, most unfortunate of all, because the prosecution never told the defense the critical finding of Harrelson’s test — that Bello was in the bar. 91 N.J. 86, at 134, 449 A.2d 1280. B. The Brady Request It is undisputed that before the 1976 trial, the defense made a specific request for all information concerning Bello’s polygraph tests. Carter III, 85 N.J. at 313, 426 A.2d 501. The prosecution, believing the oral report to be preliminary, never told the defense about it before trial. Carter IV, 91 N.J. at 111, 449 A.2d 1280. The petitioners appealed this alleged violation of the Brady rule to the New Jersey Supreme Court, which remanded the case to the trial court for a determination of whether the violation had occurred, and to explore precisely what use the prosecution made of Harrelson’s report in confronting Bello pri- or to the second trial. The trial court found that although the prosecution had “technically” failed to turn over information regarding Harrelson’s oral report, that failure was justified under the circumstances. Carter V, at 110, 449 A.2d 1280. The New Jersey Supreme Court, on the other hand, unanimously agreed that a Brady violation had occurred. Id., at 112, 449 A.2d 1280. But by bare 4-3 vote majority, the court ruled that Carter and Artis had failed to overcome the standard of materiality required to show “the suppressed evidence might have affected the outcome of the trial.” Id., (quoting United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2398, 49 L.Ed.2d 342 (1976)). The majority ruled that the suppressed evidence was merely cumulative. Carter IV, 91 N.J. at 118, 449 A.2d 1280. The dissent, however, felt strongly that the evidence was material: A more egregious Brady violation than the one presented by this case is difficult to imagine. One need not go so far as to impugn the motives of the prosecution in order to reach that conclusion, for it can just as easily be attributed to an appalling lack of basic communicative skills on the part of the principal polygraphist and various members of the prosecution team. But whether the circumstances originate in unworthy motives, colossal bungling, or plain dullness of comprehension, the fact remains that the misunderstandings thus created have proven to be costly indeed: the State witheld from the defendants material evidence favorable to them in connection with the Harrelson polygraph and, unknown to defendants and their counsel, compounded the error by using the mistaken and erroneous polygraph report to get the prime witness against the defendants to change his story again and go back to his original testimony given at the first trial. That all adds up to a deprivation of due process and requires a reversal of defendants’ convictions. 91 N.J. at 133, 449 A.2d 1280. C. The Applicable Standard In Brady, the Supreme Court held that the suppression by the prosecution of evidence favorable to an accused (and requested by an accused) violates Due Process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution. 373 U.S. at 87, 83 S.Ct. at 1196. Accepting the conclusion of the New Jersey Supreme Court that Harrelson’s oral report was withheld by the state, the court now turns to the issue of whether that non-disclosure is “material” under the Supreme Court’s most recent Brady analysis, United States v. Bagley, — U.S. -, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The Court first extended the Brady rule beyond exculpatory evidence to include impeachment material in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), in which the government failed to disclose evidence of a promise made by the government to its primary witness. Under the Giglio standard, a new trial is required if the testimony could, in “any reasonable likelihood,” have affected the judgment of the jury. Id., 105 S.Ct. at 3388, (quoting Giglio, 405 U.S. at 154, 92 S.Ct. at 766). Subsequently, in United States v. Agurs, supra, the court distinguished three situations involving post-trial discovery of information favorable to the accused that had been known to the prosecution but unknown to the defense. The first situation involves the prosecution’s knowing use of perjured testimony, where the verdict must be set aside if there is “any reasonable likelihood” that the false testimony would have affected the judgment of the jury. 427 U.S. at 112, 96 S.Ct. at 2401. The second situation involves the other extreme: where the defendant submits a “general request” or no request for information. In order to obtain a reversal in that circumstance, the Court held the defendant must show the omitted evidence “creates a reasonable doubt that did not otherwise exist.” Id. The third situation, the middle standard, occurs when the defense makes a specific request for information and the prosecution fails to disclose it. Under this standard a reversal is warranted if the omitted evidence “might have affected the outcome of the trial.” Id., at 104, 96 S.Ct. at 2398. The issue in Bagley, as in the instant case, concerns the standard of materiality to be applied in determining whether a conviction should be reversed because the prosecution failed to disclose requested evidence that could have been used to impeach a government witness. — U.S. -, 105 S.Ct. at 3375. Bagley, convicted of narcotics and firearms violations, alleged that the government withheld evidence that its two principal witnesses had signed during the investigation which stated the government would pay the witnesses for information they furnished. The suppressed documents could have been used by the defense to further impeach the witnesses. In Bagley, the Supreme Court adopted a single standard for “no request,” “general request” and “specific request” cases of prosecutorial failure to disclose evidence favorable to the accused. The court relied on a rule first enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh’g denied, — U.S. -, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984): The evidence is material only if there is a reasonable probabability that had the evidence been disclosed to the defendants, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. — U.S. at-, 105 S.Ct. at 3384 The “single standard” enunciated by the Court is somewhat semantical, however, because in order to assure that the standard has sufficient flexibility, certain factors must be weighed in determining whether there is a “reasonable probability.” The Court noted, for example, that the more specific the request for evidence “putting the prosecutor on notice of its value,” the more reasonable it is for the defense to assume from the nondisclosure that the evidence does not exist, and to make pretrial and trial decisions on the basis of this assumption. Thus Bagley’s instruction gives birth to yet another sliding scale: the more adverse the effect of the prosecution’s failure, the more li