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
“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
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
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
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
“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
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
“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
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
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.
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
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
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
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
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
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
"Hello, Mrs. Weinberger?''
"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
"That's all. You can make it
in fifteen minutes. I know. I already done it. I'll be watching as you
"The blue bag will be right by
the sign that says `Exit 28'?''
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
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
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
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
257 F.2d 295
UNITED STATES ex rel. Angelo John
LA MARCA, Petitioner,
Wilfred L. DENNO, Warden of Sing Sing Prison, Respondent.
United States Court of Appeals
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
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.