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Angelo John LaMARCA

 
 
 
 
 

 

 

 

 


The Weinberger Kidnapping
 
Classification: Murderer
Characteristics: Kidnapping
Number of victims: 1
Date of murder: July 4, 1956
Date of arrest: August 24, 1956
Date of birth: 1925
Victim profile: One-month-old Peter Weinberger
Method of murder: Abandoned the baby alive in a bramble patch
Location: Westbury, New York, USA
Status: Executed by electrocution in New York on August 7, 1958
 
 
 
 
 
 

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The Weinberger Kidnapping

FBI.gov

It was -- at least for residents of Long Island, New York -- the "crime of the century" when one-month-old Peter Weinberger was kidnapped from his suburban home on July 4, 1956. Certainly the fallout from the incident reached national proportions. This child was not from a well-to-do family, like the Lindberghs. This child came from a middle class family in suburbia -- where people weren't afraid of being targeted by extortionists. The Weinberger kidnapping struck fear in the hearts of average Americans. People started locking their doors. Almost overnight, an entire country lost its sense of security.

The Weinberger case also resulted in new legislation -- signed by President Eisenhower -- that reduced the FBI's waiting period in kidnapping cases from 7 days to 24 hours.*

It all started...

On that particular July 4th in 1956, Betty Weinberger wrapped her month-old son Peter in a receiving blanket and placed him in his carriage on the patio of their home in Westbury, NY. She then went inside for a few minutes while he slept.

When Mrs. Weinberger came back to check on her son, all she found was an empty carriage and a ransom note. In the note, the kidnapper apologized for his actions but said he needed money and asked for $2,000. He promised the baby would be returned "safe and happy" the following day if his demand was met. Despite the kidnapper's threat to kill the baby at the "first wrong move," she called the Nassau County Police Department.

Parents ask for media blackout

After the kidnapping, Morris Weinberger requested that the newspapers hold off printing the story of his son's kidnapping. All but one newspaper granted Mr. Weinberger's request -- the kidnapping made the front page of the New York Daily News. By the following day, news reporters swarmed the drop-off area where the kidnapper requested the money be left. Police left the phony ransom package at the spot, but the kidnapper never showed up.

The second attempt to collect

On July 10th, six days after the kidnapping, the kidnapper called the Weinberger home -- two separate times -- with additional instructions on where to take the money. He didn't show up at either location. At the second drop site, police searched a blue cloth bag found alongside a curb. Inside the bag was a handwritten note -- apparently from the kidnapper -- telling the parents where to find the baby "if everything goes smooth."

The note was examined by experts who agreed that the original ransom note and the second note were written by the same person.

The FBI gets down to work

On July 11th, after the required seven-day waiting period, the FBI entered the case. Its first step was to establish a temporary headquarters for its employees from the NY Office -- agent and support -- in Mineola, Long Island. The temporary headquarters -- which operated 24 hours a day -- was under the personal direction of the Special Agent in Charge of the NY Office.

The only evidence officials had -- up until then -- were the ransom notes. Handwriting experts from the FBI Laboratory in Washington, DC, traveled to New York and gave Special Agents a crash course in handwriting analysis. These newly trained investigators began the task of examining the huge volume of handwriting specimens maintained by the New York State Motor Vehicle Bureau, federal and state probation offices, schools, aircraft plants, and various municipalities.

After examining and eliminating almost two million samples, the search ended on August 22, 1956. An agent at the U.S. Probation Office in Brooklyn noted a similarity between the ransom notes and writing in the probation file of one Angelo LaMarca. LaMarca had been arrested by the Treasury Department for bootlegging.

As investigators soon learned, LaMarca was a taxi dispatcher and truck driver who lived with his wife and two children in Plainview, NY. He lived in a house he couldn't afford, had many unpaid bills, and was being threatened by a loan shark. On July 4, 1956, he had found himself driving around Westbury, seven miles away, trying to figure out how to get the money he needed.

When he happened on the Weinberger house, Mrs. Weinberger was leaving her son in the baby carriage to go into her house. On impulse, LaMarca scribbled a ransom note in his truck, snatched Peter, and drove off.

The arrest, and a tragic discovery

On August 23, 1956, LaMarca was arrested at his home by FBI Agents and Nassau County police. Although he first denied any involvement in the kidnapping of Peter Weinberger, he confessed when confronted with the handwriting comparisons.

LaMarca told investigators he went to the first drop site the day after the kidnapping - with the baby in the car -- but he was scared away by all of the press and police in the area. He drove away, abandoned the baby alive in some heavy brush just off a highway exit, and went home.

A search of the area by FBI Agents and Nassau County Police ensued. An FBI Agent spotted a diaper pin -- then the decomposed remains of Peter Weinberger. The heart-rending search was over.

In the end

Since LaMarca had crossed no state lines, he had not violated the federal kidnapping statute -- and so he was turned over to Nassau County authorities for state prosecution. In late 1956, he was tried and convicted by a jury on kidnapping and murder charges. The jury returned its verdict without a recommendation of leniency. On December 14, 1956, he was sentenced to death.

After a number of legal appeals -- including one to the Supreme Court -- Angelo LaMarca was executed at Sing Sing Prison on August 7, 1958.

 
 

The Weinberger Kidnapping

FBI.gov

The Weinberger kidnapping in 1956 also changed the kidnapping laws. On July 4, 1956, one-month-old Peter Weinberger was kidnapped from the patio of his home in Westbury, New York. Examiners from the Laboratory gave FBI and other federal agents a quick course in handwriting analysis (Federal Bureau of Investigation n.d. [Weinberger Kidnapping]). After examining nearly two million handwriting specimens—1,974,544 to be exact—the agents identified Angelo La Marca as the writer of the ransom notes (Federal Bureau of Investigation November 1992).

La Marca, a taxi dispatcher and truck driver with a wife and two children, was in financial trouble. He could not pay his bills and was being threatened by a loan shark. The Weinberger baby was a target of opportunity for him. He snatched the baby as a way to get the money he needed to pay his bills. On August 22, 1956, after being confronted with the evidence against him, La Marca confessed. Unfortunately, little Peter Weinberger was already dead. Agents found the baby’s remains on the side of the road where La Marca had abandoned him (Federal Bureau of Investigation n.d. [Weinberger Kidnapping]).

La Marca was prosecuted in state court and convicted. He was sentenced to death and executed at Sing Sing Prison on August 7, 1958 (Federal Bureau of Investigation n.d. [Weinberger Kidnapping]).

Following this case, President Eisenhower changed the waiting period for the FBI to assist in kidnapping cases from seven days to 24 hours. The law was changed again in 1990, mandating that all law enforcement agencies take action in missing-child cases without observing a waiting period (Federal Bureau of Investigation n.d. [Crimes Against Children]).

 
 

A Lifetime in a Month

Peter Weinberger would have turned 50 years old in the summer of 2006, but he never even had a chance to celebrate his first birthday. In fact, Peter barely made it past his first month on Earth. He was kidnapped over the July 4 holiday from the patio of his well-off family’s home in Long Island when he was 33 days old for a measly $2,000 ransom that his parents were easily able and extremely willing to pay.

Instead, his kidnapper — a father of two young children — abandoned baby Peter in a bramble patch the day after the kidnapping and left the child to die. “Mercifully,” the infant somehow asphixiated rather than starving to death or being attacked by animals.

It was a chilly and gray day in Westbury, New York, when Beatrice Weinberger fed Peter his 5-ounce bottle and placed her son in a carriage on the back patio of her home. As Peter dozed she went inside to get a diaper. When she returned a few minutes later, Peter was gone and in his place was left a brief ransom note.

“I hate to do this to you, but I am in great trouble. Don’t notify the police. I am not asking for a lot of money, only for what I need, and I am very serious about this.”

When Morris Weinberger returned with his 4-year-old son, the family surreptitiously made contact with police who laid a trap for the kidnapper.

Unfortunately for police and the Weinberger family, the New York Daily News got wind of the story and ran with it. Of course, the rest of the East Coast press picked it up and stormed Westbury to stake out the kidnap drop zone.

Dozens of reporters combed the neighborhood looking for clues and watching the Weinberger house for signs of a break. Eventually the police asked the reporters to leave, allowing a photographer and print reporter to stay.

At 9:55 a.m. on July 5, two ransom packages were placed beneath trees outside the Weinberger home. The packages contained envelopes filled with blank paper wrapped with bank notes.

“Every instruction about leaving the package was observed,” Detective Chief Stuyvesant Pinnell told the press.

Ten minutes after the drop, a taxi with a female passenger drove by the house three times. Later a red station wagon driven by a woman paused near one of the packages, but left when a small boy wandered down the road.

No one else appeared and for some reason, police did not follow either of the cars.

When it was apparent that the drop had failed, authorities arranged for Beatrice to make an appeal to the kidnapper via television and radio.

“I am the mother of Peter Weinberger,” she read from a written statement. “I am willing to cooperate in any way. I am most concerned of all for the welfare of by baby. He is only four weeks old.”

Sadly, the only responses to her plea were from cranks and low-lifes who wanted to take advantage of the family. Several times people called demanding money, but it was clear that they were not connected with the crime.

By the time Beatrice went on the air, Peter Weinberger was already dead. He had been abandoned by the kidnapper, a former cab driver (possibly the driver who appeared at the drop zone) named Angelo LaMarca.

LaMarca was a family man who had happened on tough times and had a petty record for operating an illegal moonshine still.

On the surface nothing appeared to be happening on the Weinberger kidnapping. Until there was evidence that the kidnapper had crossed state lines or until a week passed, the Federal Bureau of Investigation was prohibited from entering the investigation. On July 11 the week deadline passed and the FBI took over the investigation. They began by analyzing the handwritten ransom note.

Over the course of a month they examined 2 million handwriting samples. They looked at 75,000 fingerprint cards without a match.

Eventually, while looking at records from the Federal District Court for New York City, they came across Angelo LaMarca’s signature. He had been arrested two years before and pleaded guilty to running an illegal still. Laboratory technicians matched it to the ransom note and rushed to Nassau County on Long Island, where LaMarca lived with his pregnant wife and two children.

LaMarca was arrested on August 24, and confessed shortly after. He told police that he abandoned the child when he saw police around the drop zone on July 5. The Weinbergers held out hope.

“We are still praying that our child is alive and well and is being cared for by someone somewhere,” Beatrice said. “We will not believe otherwise untiul we hear contrary from someone in authority.

“We cannot put into words our feelings at the present time.”

On August 25, the decomposed body of Peter Weinberger, still in the clothes that he was wearing when he was taken from his home, was found.

LaMarca, 31, told authorities where to find the boy — beneath a honeysuckle vine.

It turns out the Peter was simply a target of opportunity. LaMarca told authorities that he had written the note in advance, but didn’t have a particular child in mind.

He also told police that he was spurred on by ever-increasing debts, and his wife said that his concern over his finances had pushed him into a deep depression.

“He said he wrote the note but didn’t have anything to do with the murder,” LaMarca’s wife, Donna, told reporters. “Someone else is involved, but he won’t say who.”

In November, 1956, Angelo LaMarca went on trial for kidnapping and murder — crimes that carried the death penalty. The pressure of his debts prompted temporary insanity, his lawyers unsuccessfully claimed.

After the defense asked for mercy for the father of a 9-year-old boy and 6-year-old girl, the prosecution reacted strongly to that plea.

“What mercy was shown baby Peter when he was left in that woods?” District Attorney Frank Gulotta asked the jury. “What mercy did he show then?”

He was convicted of both crimes in December 1956. Whe the death sentence was pronounced, LaMarca’s knees wobbled and he sank back into his chair.

Two years later, LaMarca got something that the Weinbergers never had — he said farewell to his young children.

“They got along fine,” Donna LaMarca said. “He told them to do well in school and to take care of me. (The girl) is too young to understand, but (the boy) knows what’s happening.

The next morning, after eating a hearty breakfast, a silent, but whimpering LaMarca was led into the Sing Sing death chamber and after a last minute plea to Governor Averell Harriman failed, was electrocuted.

MarkGribben.com

 
 

Held for Ransom

The ransom note was scrawled in green ink on a sheet torn from a student notebook.

"Attention,'' it said. "I'm sorry this had to happen, but I am in bad need of money, & couldn't get it any other way. Don't tell anyone or go to the police about this, because I am watching you closely. I am scared stiff, & will kill the baby at your first wrong move ... Your baby sitter.''

It was the Fourth of July, 1956. About 3 p.m., Betty Weinberger had placed her 33-day-old son, Peter, in a carriage on the patio of their handsome, steep-roofed house on Albemarle Road in the Wheatley Villa section of Westbury -- just off Exit 32 of the Northern State Parkway. When she returned 10 minutes later, she noticed the mosquito netting she had pulled tightly over the carriage was open. She looked inside.

The baby was gone. In his place was the ransom note

It demanded $2,000 in small bills. The money was to be placed in a brown envelope and left near the Weinberger home, next to a signpost at Albemarle Road and Park Avenue, at 10 o'clock the next morning.

Betty Weinberger's husband, Morris, soon returned from a ride with their older son, 2-year-old Lewis. Aghast at the kidnaper's threat to kill Peter ``at your first wrong move,'' the couple nonetheless called Nassau police. Det. Frank Abramowitz appeared at the house.

After a cursory investigation, he called his boss, Sgt. Edward Curran -- then the Third Squad commander, later chief of detectives and today president of the state Retired Police Association. "I think we've got a kidnaping,'' Abramowitz said.

"What do you mean -- a kidnaping?'' Curran asked. "This is suburbia. We don't have kidnapings in Nassau County.''

"It's a baby,'' Abramowitz said.

Scheduled to take the holiday off, Curran had instead gone in to the precinct to clean up a pile of paperwork. Now, he suddenly found himself leading the investigation into Long Island's crime of the century -- the kidnaping of a baby from a backyard carriage; fear for the baby's fate gripped the nation's heart for weeks.

Curran raced to Westbury to talk to the Weinbergers. Since recovering the baby was the only priority, everyone quickly agreed the ransom should be paid. But, no matter what the kidnaper might have thought, the Weinbergers were not wealthy. They lived on Morris Weinberger's moderate income as a wholesale druggist.

"Some relatives agreed to get the money together,'' Curran recalls. "But, because of the holiday, all the banks were closed. We arranged for a bank to open and release the money. All the serial numbers were recorded. We also put recorders on the Weinbergers' phones.''

But the kidnaper had given flawed instructions. In demanding that the money be left at Albemarle Road and Park Avenue, the kidnaper failed to recognize that Albemarle formed a semi-circle crossing Park at two distinct intersections. Thus, the detectives were obliged to prepare two ransom packages.

At 10 o'clock the next morning, the ransom packages sat beside the signposts at the two intersections. Detectives were staked out nearby, waiting for the kidnaper to appear. But, by that time, news reporters had somehow learned about the kidnaping and were swarming around the Weinberger home. Amid the commotion, the kidnaper made no attempt to pick up the money.

Morris and Betty Weinberger could only wait -- hour after hour -- with no word from the kidnaper. Investigators came up with the idea of calling a news conference to appeal to the kidnaper to feed the baby his medically recommended infant formula -- a formula that, although it contained no prescription drugs, would supposedly require a pharmacist's skills to prepare. "It was a phony formula,'' Curran says. "It couldn't be filled by a pharmacist. We hoped that, if the kidnaper tried to get the formula filled, the pharmacist would realize what was happening and tip us off.''

Betty Weinberger appeared with Curran before television cameras, floodlights and dozens of reporters and photographers at Nassau police headquarters. "I am the mother of Peter Weinberger, who was taken from me yesterday,'' she read from a sheet of paper. "Whoever you are, I now plead for the return of my baby, who needs the care of his mother.'' Moments later, she broke down -- sobbing uncontrollably.

"Here,'' she said, shoving the paper toward Curran. "You read it for me. I can't.'' Curran took over, saying that the baby was "in need of special feeding.'' He slowly read the supposed ingredients for the fake formula.

But, afterward, the detectives received no calls from pharmacists. There was no sign of Peter Weinberger. The tense wait -- and the search -- continued.

Then, about 10:45 a.m. on July 10, the phone rang in the Weinberger home. Morris Weinberger answered. On the other end of the line was a male voice -- that of the kidnaper. He instructed Weinberger to leave the ransom at a spot off Exit 26 of the Northern State Parkway. Weinberger did so, but the ransom was not picked up.

Later in the day, Betty Weinberger received a call from the kidnaper. The police recording devices on the phones picked up this exchange:

"Hello, Mrs. Weinberger?''

"Yes.''

"Listen, do you want to see your kid or don't you?''

"Er, who is this?''

"Well, it's the party you would be interested in. I called up earlier. And I don't know who answered. I made an appointment and nobody showed up.''

"You made an appointment with my husband? What did you ask him to do?''

"Go over to Exit 26 and -- ''

"Yes, we kept that appointment. My husband went.''

"Nobody was there. I was there for over an hour. Well, now, on Exit 28, if you want, right by the sign, I'll be there in at most a half hour. You'll find a blue bag there.''

"Now, wait a minute. Let me get this straight. I'm nervous. Just what do you want me to do?''

"Put the money in and take the note and it'll tell you where you'll find the baby in an hour's time.''

"Wait a minute. Where on Exit 28, which side?''

"As you're going towards New York. And you will find a blue bag right by the sign -- not at the exit, right by the sign that says, `Exit 28.'''

"You're only giving me a half hour?''

"That's all. You can make it in fifteen minutes. I know. I already done it. I'll be watching as you go by.''

"The blue bag will be right by the sign that says `Exit 28'?''

"That's right.''

Curran assigned several detectives -- dressed in ragged clothing and pretending to be workers picking up papers along the parkway -- to stake out the area near Exit 28. They spotted the blue bag, but for hours the kidnaper did not show up to retrieve it. Eventual-ly, the detectives seized the bag as evidence. Inside was a second ransom note, repeating the $2,000 demand, in handwriting that seemed to match the first.

After waiting a week, as then required by law, the FBI entered the investigation. (As a direct result of the Weinberger case, Congress later passed a law authorizing the FBI to launch an investigation 24 hours after a kidnaping.)

Nassau detectives, accustomed to dealing with the three-agent FBI contingent stationed in Mineola, now found themselves working with swarms of agents from the New York office.

James Kelly, then the agent in charge of the New York office and later Nassau police commissioner, came to Long Island to direct the federal detail. "We're going to put 55 agents on the case,'' he told Curran. At the time, Curran had only eight detectives working on the kidnaping - all his superiors would provide him. He asked Stuyvesant Pinnell, chief of detectives, to match the FBI contingent. "Pinnell hated the FBI,'' Curran says. "He argued, but eventually agreed to give me the 55 detectives. We paired the guys up -- one detective working with one agent. We didn't know what to expect, but those agents were for real. They worked really well with our guys. The FBI guys got $15 a day meal money. Our guys got nothing. So the FBI guys spent part of their money to feed our guys.''

FBI handwriting experts flew in from Washington to examine the ransom notes -- the chief clues in the case. The experts found the notes contained distinguishing chacteristics in 16 letters of the alphabet. Most unusual was the kidnaper's lower-case script "m,'' which the experts said resembled a sideways "z.'' The agents and detectives composed what they called "The Happy Birthday Letter,'' a birthday greeting that included all the letters in the alphabet. Anyone who came under serious suspicion was asked to copy the letter for handwriting comparison with the ransom notes.

Investigators simultaneously began searching through more than 2 million public records -- among them the files of the U.S. District Court in Brooklyn, whose jurisdiction included Long Island - for handwriting that might match the kidnaper's. They also distributed copies of his writing to other law-enforcement agencies.

But there was still no sign of Peter Weinberger.

There was no shortage, however, of people claiming to know the baby's whereabouts. The Weinbergers were plagued by cruel hoaxes in which callers tried to extort the ransom money from them with phony stories that they had the baby. Five of the callers were arrested.

Another caller instructed Betty Weinberger to carry the ransom money to a movie theater, the Savoy in Jamaica, Queens, and to take a seat in the next to the last row. She insisted on keeping the appointment. But, before she went, 30 detectives and FBI agents discreetly entered the theater and took positions where they could watch her once she arrived. Within minutes after Betty Weinberger took her seat, a purse snatcher -- knowing nothing about the kidnaping or ransom -- grabbed her pocketbook. All 30 investigators seemed to pounce on the hapless thief at once. Questioning revealed that he was no more than a petty criminal, and nothing was heard from the phone caller who precipitated the commotion.

More than six weeks had passed since the kidnaping. And still there was no sign of Peter Weinberger.

Then a federal probation officer in Brooklyn discovered in his files a longhand document written by a onetime criminal defendant who habitually formed the script letter "m'' in the same way as the author of the ransom notes. The defendant, convicted of helping construct an illegal still in Suffolk, had just completed a term of probation. His name was Angelo LaMarca. He was 31, worked as an automobile mechanic and lived in Plainview.

FBI handwriting experts, spotting numerous similarities between LaMarca's handwriting and the ransom notes, concluded he had written them. Curran and Kelly drew up detailed plans for arresting LaMarca -- plans intended to avoid endangering Peter Weinberger if he were still alive. Investigators determined where all LaMarca's close relatives lived. Teams of agents and detectives -- referring to LaMarca as "the package'' in their two-way radio conversations -- took up positions Aug. 23 near LaMarca's home and those of several relatives. Curran and Kelly, riding together, gave the ``go'' signal to hit all the houses simultaneously.

Eight investigators seized LaMarca at his small, ranch-style home on Richfield Street as he returned with his wife, Donna, from dropping off their two children at his parents' house. Then, after all the cooperation between the local detectives and the FBI, a heated wrangle developed over who would take custody of LaMarca. FBI agents initially whisked him to their Manhattan office, over Curran's protests. When Curran showed up, demanding to see "his'' prisoner, he was denied access. Confronting Kelly, he shouted that the FBI had no jurisdiction in the case -- since there was no indication LaMarca had crossed a state line and violated federal law. "You know it and I know it,'' he said.

Kelly grudgingly put Curran in a room with LaMarca. Curran immediately pointed out to the suspect that they both grew up in the same town -- Elmont. "I live on the same street as your parents,'' he said. "I'm the only friend you have.''

LaMarca denied knowing anything about the kidnaping. Curran then brought LaMarca's wife into the room. "Angelo, did you kidnap this child?'' Donna LaMarca demanded. "Think of that baby's mother. If you did this and I was the mother, I'd want to know where he is.''

Angelo LaMarca winced. "Get her out of here,'' he shouted.

But then the story began pouring from him. Curran took a 12-page handwritten confession from LaMarca -- every page signed by each of them and every one bearing the distinctive ``m.'' Immediately after the kidnaping, it developed, LaMarca had abandoned Peter Weinberger -- alive -- in a wooded area alongside the eastbound cutoff road at Exit 37 of the Northern State Parkway. He said he kidnaped the baby at random after seeing Betty Weinberger place Peter in the carriage on the patio. LaMarca said he carried out the kidnaping because he was $1,800 in debt after buying a refrigerator and storm windows for his house and falling behind on his car payments.

Investigators began an extensive search of the parkway near Exit 37, but could find no sign of the baby. "Then we took LaMarca out there,'' Curran said. "He was able almost to pinpoint the spot where he'd left the baby.'' At 10:25 a.m. that day, Aug. 24, the investigators found Peter Weinberger's body 150 feet south of the exit road. He had died of exposure.

At the Weinberger home -- before news of the discovery was received -- Peter's parents were still expressing confidence he would be found safe. "There's no question in my mind that the baby is still alive,'' Betty Weinberger told a handful of friends and relatives.

Five minutes later, the Weinbergers received word that Peter's remains had been found. "There was a profound silence and they looked at each other,'' one relative said. "There was little any of us could say. The reaction was very, very severe.''

LaMarca was swiftly indicted on charges of kidnaping and first-degree murder. Nassau District Attorney Frank Gulotta took the unusual step of prosecuting the case himself when it came to trial in November, 1956. In his closing argument -- urging a jury to convict LaMarca on both counts, even if it meant sending him to the electric chair -- Gulotta said, "This man LaMarca has passed that sentence on himself. Literally and actually, with the life of that little child in the palm of his hand, he determined his own fate when he said to himself: Shall that baby live or shall that baby die? His hands closed and he chose death. When that baby's life expired, LaMarca's life expired, too.''

On Dec. 7, the jury of 10 fathers and two grandfathers found LaMarca guilty on both counts and did not recommend mercy -- making a death sentence mandatory.

Appeals delayed LaMarca's execution for more than 18 months. But on the night of Aug. 7, 1958, he was led into the execution chamber at Sing Sing Prison in upstate Ossining. Among the 35 witnesses was Ed Curran. "I didn't particularly want to be there,'' he recalls. "But Betty Weinberger and Frank Gulotta asked me to go, so I felt I had to do it.''

LaMarca expressed neither remorse nor any other emotion. He was accompanied by a Catholic chaplain, the Rev. George McKinney, reading the 23rd Psalm in Latin. LaMarca occasionally muttered a response to the prayer.

He wore black loafers, dark gray trousers and a white shirt open at the neck. Before entering the chamber, he had eaten a last meal of fried chicken, French-fried potatoes, vegetables, ice cream and coffee.

As they reached the electric chair, the priest gave LaMarca a crucifix to kiss. A half-dozen guards eased him into the chair. They strapped his arms and lifted his face to receive a heavy leather mask that covered his eyes and a strap that covered his mouth.

"What are you trying to do, choke me?'' LaMarca complained. Those were his last words.

Moments later, with the preparations completed, 2,000 volts of electricity shot through his body.

When the electricity was turned off, an Ossining physician, George McCracken, approached LaMarca. He placed a stethoscope to LaMarca's chest.

"This man is dead,'' he pronounced.

 
 

257 F.2d 295

UNITED STATES ex rel. Angelo John LA MARCA, Petitioner,
v.
Wilfred L. DENNO, Warden of Sing Sing Prison, Respondent.

United States Court of Appeals Second Circuit.

Argued June 27, 1958.
Decided July 2, 1958.

Before MOORE, Circuit Judge.

MOORE, Circuit Judge.

The petitioner, Angelo John LaMarca, moves before me during a recess of this court for a certificate of probable cause pursuant to 28 U.S.C. section 2253. That section, in part, provides: 'An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a State court, unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause. June 25, 1948, c. 646, 62 Stat. 967, amended May 24, 1949, c. 139, 113, 63 Stat. 105.' The sole issue, therefore, is whether there exists 'probable cause' for the appeal.

The proposed appeal is from an order made by Judge David N. Edelstein filed on June 13, 1958 which order denied petitioner's application for a writ of habeas corpus. Petitioner's application was based upon the ground that he could not have received a fair trial in Nassau County because of prejudice existing there at the time of the trial which prejudice was allegedly created in large part by newspaper and radio publicity given to the crime. Petitioner argued before Judge Edelstein, as he argues now, that this publicity and alleged prejudice, particularly in the selection of the jury, 'must of necessity preclude that kind of fair trial which is guaranteed by the Fourteenth Amendment of the Federal Constitution.' Since protection of petitioner's constitutional rights is of paramount importance, a thorough review of the proceedings so far as they bear upon the prejudice complained of has been made.

Petitioner was indicted on August 29, 1956 for the crimes of murder in the first degree and kidnapping. On September 5, 1956 he pleaded not guilty with the specification of insanity in the County Court of Nassau County. On September 21, 1956 he made a motion in the Supreme Court, Appellate Division, Second Judicial Department, for a change of venue. In support of that motion petitioner submitted lengthy affidavits reciting the news coverage which the crime had had in the local press and statements as to the feelings of the local populace. This motion was denied on October 1, 1956.

The trial commenced on November 5, 1956. The first six days were devoted exclusively to the examination and selection of jurors. Accepting the figures given by the petitioner in his present application, 230 jurors were examined, 44 were excused because they could not devote the time necessary to try the case, 6 were excused for illness, 13 were excused because of their own ideas on insanity, 20 were excused because they were acquainted with one or more persons involved, and 15 were excused for various other reasons. A balance of 132 jurors remained. The voir dire of the prospective jurors commenced on November 5, 1956 and was concluded at the end of the sixth court day, on November 14, 1956. The examination is set forth verbatim from pages 50 to 685 of the printed record on appeal in the State Court. Examination of jurors for the selection of alternates continues to page 740. I have reviewed the voir dire and find that petitioner's trial counsel, who is now his counsel on this application, carefully examined every juror. Furthermore, the trial court was most protective in excusing jurors for cause. Turning to the record with respect to the jurors finally chosen, I find that in every case except the twelfth petitioner's counsel after thorough examination said that the juror was satisfactory or acceptable to the defendant (petitioner here). This satisfaction appears on pages 94, 156, 190, 229, 239, 324, 397, 430, 467, 527, 560, and on 684-5 where after having exhausted his peremptory challenges petitioner acknowledged as to the twelfth juror that he had no challenge for cause.

After conviction petitioner appealed to the New York Court of Appeals. In the notice of appeal in addition to the appeal from the judgment of conviction petitioner stated that he intended 'to bring up for review before the Court of Appeals of the State of New York the intermediate order made by the Appellate Division, Second Department, denying the defendant's motion for a change of venue * * *.' The record on appeal contained the motion for a change of venue and the supporting affidavits as well as the entire transcript of the voir dire in the selection of the jurors. This point, however, was expressly waived by petitioner's appellate counsel. The conviction was affirmed (People v. LaMarca, 3 N.Y.2d 452, 165 N.Y.S.2d 753, 144 N.E.2d 420) and the application for a writ of certiorari was denied (355 U.S. 920, 78 S.Ct. 351, 2 L.Ed.2d 279). The record before the Supreme Court, therefore contained all the facts theretofore presented concerning the alleged prejudice and the method of the jury selection.

Subsequently an application was made to the United States District Court for the Southern District of New York for a writ of habeas corpus based upon the fact that alleged prejudice in Nassau County had deprived him of the right of a fair trial. The court stayed petitioner's execution so that coram nobis proceedings could be instituted in the state court and hearings held on the prejudice question. Pursuant to that order hearings were held in the County Court of Nassau County before the Honorable Cyril J. Brown. After hearing some 35 of the rejected prospective jurors and after counsel had stipulated that the balance of the witnesses subpoenaed would testify in a similar vein the petitioner rested. Judge Brown concluded that nothing had occurred during the examination 'which might have impaired the defendant's right to a full and fair disclosure of the facts on the voir dire (People v. Winship, 309 N.Y. 311 (130 N.E.2d 634)).'

Thereafter petitioner sought to appeal to the New York Court of Appeals. 4 N.Y.2d 925, 175 N.Y.S.2d 167, 151 N.E.2d 353, 356. Chief Judge Conway wrote a detailed opinion particularly with reference to the examination of the twelve jurors who actually served and said in part:

'Thus, it is clear that the attorney for the defendant never said that any one of the 12 jurors was prejudiced against defendant.

'I can find no support in the evidence presented to me for defendant's charge that he was unable to, and did not, receive a fair trial in Nassau County. His guilt was proved beyond doubt and the trial was free from legal error. He, himself, was satisfied that none of the jurors was prejudiced against him and he never claimed on the trial that any one of them was prejudiced against him. Accordingly, there is no justification for a further appeal to our court and I find myself unable, in good conscience, to certify that there is. The defendant has had his day in court and has received the full protection of the law.'

On June 2, 1958 petitioner made application before Judge Edelstein for a writ of habeas corpus alleging in substance the same grounds as presented in the coram nobis proceeding before Judge Brown and in the application for leave to appeal before Chief Judge Conway. Judge Edelstein came to the conclusion that 'Counsel for the petitioner proposes to produce precisely the same evidence at such a hearing as was produced before Judge Brown in Nassau County, but with the hope, of course, of achieving a different evaluation of that evidence.' After examining the transcript on the coram nobis proceedings he decided that there was no need to hold another hearing on this issue, Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, and concluded 'that there is no support in the evidence for the petitioner's charge that he was unable to, and did not, receive a fair trial in Nassau County.'

A review of the many decisions of the Supreme Court indicates that the petitioner's constitutional rights have been fully protected. Giving little weight to possible technical arguments, such as, failure to exhaust state remedies, I find on the merits that the proof establishes that petitioner's rights have been zealously safeguarded both during trial and upon appeal. Rocognizing also the doctrine of freedom of the press, it is to be expected that crimes will receive publicity in the local press. Certain crimes of violence are bound to receive greater publicity than petty larceny. The degree of publicity will require an equal degree of care in making sure that the jurors are carefully sifted so that both sides are satisfied that they have twelve fair, impartial and unprejudiced persons to hear the proof. In this case that standard has been met. An unusually large group of veniremen was called. Jurors were readily excused for cause. The very duration of the examination shows the care with which the trial judge proceeded. Finally the acceptance by petitioner's trial counsel of eleven jurors as satisfactory after thorough examination and, after exhaustion of his peremptory challenges, his inability to find any ground for challenging the twelfth juror for cause, indicate that petitioner was accorded every constitutional right to eliminate from the jury persons who might be prejudiced against him.

After a protracted review of all the previous proceedings, I can find no probable cause for appeal. Therefore, under the law the certificate applied for must be denied.

 

 

 
 
 
 
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