formerly Yanacki Patsalos (born circa 1938), was the assassin of
American Nazi Party leader George Lincoln Rockwell.
Patler was from a poor immigrant
Greek family and grew up in New York City. Patler had been a member of a
street gang in New York City and reportedly had killed a childhood
friend at age 16. Patler also had a history of mental illness. He
changed his name to Patler to make it sound more like Hitler.
Patler had formerly been a captain in
the American Nazi Party and was the editor and cartoonist for the party
magazine, Stormtrooper. He attempted to organize a party coup
among the dark-eyed members of the party against the "blue-eyed devils."
He was expelled from the party in April 1967 for "Bolshevik leanings".
On August 25th, he fired two shots
from the rooftop of a beauty salon in
the Dominion Hills shopping center
in Arlington, Virginia into George Rockwell's car. Two bullets went
through the windshield, hitting him fatally in the head and chest.
Rockwell struggled out of the passenger side of his automobile and died
on the pavement.
Patler was sentenced to 20 years in
prison for Rockwell's murder in December 1967. Patler was paroled in
1975, but violated his parole and served an additional six years.
The Judas Factor
K. Evanzz (1992).
The Fame of a Dead Man's Deeds
by Robert S. Griffin (2001) pages 108-112
John Patler (born
January 6, 1938)
was an American neo-Nazi who assassinated American Nazi Party leader
George Lincoln Rockwell.
Patler was born Yanacki Christos Patsalos in
New York City, the son of poor Greek immigrants. He has a younger
brother named George, who was born in 1939. When Patler was five, his
mother left her husband and had taken her sons with her, and they stayed
with their grandmother in Harlem.
She was murdered on October 7, 1943 by Patler's
father, who exacted revenge on her for leaving him. His father was
convicted of manslaughter and sentenced to ten years in prison at Sing
Sing Prison. After his mother's death, he moved with his brother and
grandmother into a tenement in upper Manhattan.
During adolescence, Patler became a member of a
street gang, and had allegedly murdered a childhood friend at age 16.
When he was 15, his grandmother had died, and Patler and his brother
were sent to live in the Bronx with their father, who was recently
released from prison on parole. Shortly after, he and his brother were
placed in the Youth House, while their father was facing child abuse
charges. However, Patler and his brother spent two weeks in the Youth
House and were returned into the custody of their father.
After a serving brief stint in the U.S. Marine Corps,
he joined the American Nazi Party in 1960, and legally changed his name
to John Patler, to make his surname sound like Hitler. He had formerly
been a captain in the American Nazi Party and was the editor and
cartoonist for the party magazine, Stormtrooper. Patler began to
develop Marxist leanings, which caused friction between fellow party
members. Patler was expelled from the party in March 1967.
On August 25, 1967, he fired two shots with a Mauser
semi-automatic pistol from the rooftop of a beauty salon in the Dominion
Hills shopping center in Arlington, Virginia into George Rockwell's car.
Two bullets went through the windshield, hitting him fatally in the head
and chest. Rockwell struggled out of the passenger side of his
automobile and died on the pavement.
In December 1967, Patler was sentenced to 20 years in
prison for Rockwell's murder. Patler was paroled in 1975, but violated
his parole and served an additional six years.
Hitler' shot dead
The leader of the American Nazi party, George Lincoln
Rockwell, has been shot and killed by a sniper at a shopping centre in
Minutes after the shooting a "captain" in Rockwell's
Nazi party, John Patler, 29, was arrested and charged with his murder.
Police say two shots were fired from a rooftop of a
beauty salon across the street from the Dominion Hills shopping centre.
Two bullets went through the windscreen of the 49-year-old's
blue and white Chevrolet and hit him in the head and the chest.
He died instantly.
Eye-witnesses said the Nazi leader was reversing his
car out of a parking space in the shopping centre when the incident
As the shots hit his car he dived onto the passenger
seat in an attempt to escape.
His car apparently crashed into another vehicle. A
coroner pronounced him dead at the scene.
George Lincoln Rockwell, who lived just yards from
the scene of his death, founded the American Nazi Party, originally
known as the World Union of Free Enterprise and National Socialists, in
He believed all blacks should be deported to Africa
and every Jew dispossessed and sterilised. He also believed that "traitors"
such as former Presidents HarryTruman and Dwight Eisenhower should be
It is understood that Matt Koehl, Rockwell's second-in-command,
will take over the leadership of the party.
Speaking tonight Mr Koehl told reporters the murder
suspect, John Patler, had been expelled from the Nazi party in April
this year for "Bolshevik leanings".
George Lincoln Rockwell
On June 28, 1967, the first attempt was made on
Rockwell’s life. Returning from shopping, he drove into the party
barracks’ driveway on Wilson Boulevard and found it blocked by a felled
tree and brush. Rockwell assumed that it was another prank by local
teens. As a young boy cleared the obstruction, two shots were fired at
Rockwell from behind one of the swastika-embossed brick driveway pillars.
One of the shots ricocheted off the car, right next to his head. Leaping
from the car, Rockwell pursued the would-be assassin. On June 30,
Rockwell petitioned the Arlington County Circuit Court for a gun permit;
no action was ever taken on his request.
On August 25, 1967, Rockwell was killed by gunshots
while leaving the Econowash laundromat at the Dominion Hills Shopping
Center in the 6000 block of Wilson Boulevard in Arlington, Virginia. Two
bullets crashed through his 1958 Chevrolet’s windshield, and it slowly
rolled backwards to a stop. Rockwell staggered out of the front
passenger side door of the car, pointed towards the shopping center roof,
and then collapsed face up on the pavement.
The gunman ran along the shopping center roof and
jumped to the ground in the rear. A shop owner and a customer briefly
gave chase, but were unable to get a clear look at the fleeing figure.
Other customers called the Arlington County police and checked Rockwell
for a pulse. He had none; the one bullet that struck him had ripped
through several major arteries just above his heart. The internal
bleeding was so heavy that Rockwell died in two minutes.
A half hour later, at a bus stop several miles away,
John Patler - a former member of Rockwell’s group - was arrested as the
suspected murderer by a passing patrolman familiar with the Arlington
Nazis. Later that day, after hearing of his son’s death, Rockwell’s 78-year-old
father commented laconically, “I am not surprised at all. I’ve expected
it for quite some time.
Matt Koehl, the number two man in the NSWPP, moved to
establish legal control over Rockwell’s body and all NSWPP assets. At
the time of his death, the NSWPP had approximately 300 active members
nationwide, and perhaps 3,000 financial supporters. Although Rockwell’s
parents wanted a private burial in Maine, they did not feel up to a
public fight with the Nazis for his body.
On August 27, an NSWPP spokesman reported that
Federal officials had given verbal approval to a planned military burial
of Rockwell at Culpeper National Cemetery, which was his right as an
honorably discharged veteran of the U.S. Armed Forces.
On August 29, several dozen NSWPP troopers and about
100 party supporters formed a procession and then drove the 65 miles
from Arlington to Culpeper. At the cemetery gates they were met by
General Carl C. Turner and 60 MPs who had been rushed in from Vint Hill
to enforce the U.S. Army’s burial protocol. They were backed by dozens
of police from various jurisdictions. No mourners bearing Nazi insignia
would be allowed into the cemetery. The NSWPP troopers refused to remove
their uniforms, which led to a day-long standoff. They unsuccessfully
tried to force their way into the cemetery three separate times. Several
arrests resulted. With daylight fading, General Turner declared that
Rockwell could not be buried until the NSWPP made a new request to the
Pentagon and agreed to follow protocol.
The Nazis returned to Arlington with Rockwell’s body.
Plans were made to bury Rockwell in Spotsylvania County, but they fell
apart when local Jewish organizations protested. Fearing that Arlington
County officials might seize the body, the ANP had Rockwell cremated the
next morning, and a memorial service was held that afternoon at party
On February 8, 1968, the NSWPP filed suit to obtain a
Nazi burial for Rockwell’s remains at any National Cemetery. On March
15, 1969, a Federal district judge upheld the Army Secretary’s ruling
that Rockwell was ineligible for a burial with full military honors in a
national cemetery. Today Rockwell's ashes reside next to those of
Savitri Davi in the memorial room of The New Order headquarters in New
The controversy after Rockwell’s death was not
limited to the disposition of his remains. It soon spilled over into the
trial of his alleged murderer. Following psychiatric evaluation, John
Patler was judged competent to stand trial. Unsurprisingly, he pleaded
not guilty at his preliminary hearing, but on September 29, 1967, Patler
was bound over by a grand jury on the charge of first degree homicide.
His trial began on November 27 amid tight security,
at the Arlington County Courthouse. On December 15, Patler was found
guilty and released on bond to await sentencing. On February 23, 1968,
Patler was sentenced to 20 years in prison, at that time the least
punishment possible for a first degree murder conviction. The Virginia
Circuit Court postponed imprisonment pending his appeal.
On November 30, 1970, the Virginia Supreme Court
upheld Patler’s conviction and 20-year sentence for slaying Rockwell,
and ordered him to begin serving his sentence. On May 16, 1972, the U.S.
Supreme Court unanimously rejected Patler’s appeal based on claims of
In August 1975, Patler was paroled from the Pulaski
correctional unit after serving less than four years of his sentence.
Judge Charles S. Russell, who had presided over Patler’s murder trial,
wrote a lengthy letter to the parole board supporting Patler’s release.
It was the only time he ever did this in his career. The following year,
however, Patler violated the terms of his parole and was returned to
prison for an additional six years. On December 30, 1977 Patler
petitioned the Henry County Circuit Court to change his surname back to
its original form, Patsalos. After serving out the remainder of his
sentence, John Patsalos returned to the New York City area.
The exact reason for Rockwell's murder and the exact
identification of his killer is still a matter of much debate. Patler's
nasty feud with Rockwell and a family history of violence certainly
weighed against him at the trial. Despite being convicted of the crime,
Patler has always maintained his innocence. The case against him was
largely circumstantial and key evidence against him (e.g., whether he
possessed the murder weapon at the time of the killing) was disputed by
The small strip mall where Rockwell was killed is
still called the Dominion Hills Shopping Center, although it has since
been refurbished and the laundromat replaced by a dry cleaners. After
his death, admirers of Rockwell painted a white swastika on the blacktop
surface of the parking lot, marking the exact spot where he died.
Several attempts by the property owners were made to obliterate the
emblem with a square patch of black paint, but the white swastika would
always surreptitiously reappear, usually on or near the anniversary of
Rockwell's death. It remained visible, off and on, well into the 1980s,
until the NSWPP renamed itself The New Order and moved their
headquarters to Wisconsin. Since then the parking lot has been
resurfaced and the swastika never replaced, however the spot where his
body lay can be approximated today by using a crime scene photograph
that appears on page 323 of William H. Schmaltz's biography of Rockwell.
503 F.2d 472
John Patler, Appellant,
A. E. Slayton, Jr., Superintendent of the Virginia State Penitentiary,
Docket number: 73-1169
August 28, 1974
Before BOREMAN, Senior Circuit Judge,
and CRAVEN and WIDENER, Circuit judges.
CRAVEN, Circuit Judge:
John Patler was found guilty by a jury in the Circuit
Court of Arlington County, Virginia, of the first degree murder of
George Lincoln Rockwell, the head of the American Nazi Party. Patler was
apprehended about one-half hour after the homicide less than a mile from
the scene of the crime. The complex, 'largely circumstantial' web of
evidence upon which the jury verdict rested is set out in the opinion of
the Supreme Court of Appeals of Virginia, which held that the verdict
was based on sufficient evidence. Patler v. Commonwealth, 211 Va. 448,
452-456, 177 S.E.2d 618, 621-624 (1970). The United States Supreme Court
denied a petition for certiorari on June 12, 1972.
On October 9, 1972, Patler sought a writ of habeas
corpus from the United States District Court for the Eastern District of
Virginia under 28 U.S.C. 2254. Three errors of constitutional magnitude
were alleged: (1) that the identification testimony of two witnesses at
petitioner's state trial was tainted by their presence at illegal show-ups
and should have been excluded under United States v. Wade, 388 U.S. 218,
87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388
U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); (2) that the seizure of
certain inculpatory evidence from a farm owned by Patler's father-in-law
constituted an illegal seizure in violation of his (Patler's) fourth
amendment rights; and (3) that the state's failure to release the
results of tests on physical evidence introduced at trial until late in
the proceedings, which evidence tended to exculpate the petitioner, was
prejudicial to his defense and contrary to the due process requirements
of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
The district court, without a hearing, granted respondent's motion for
summary judgment. Patler v. Slayton, 353 F.Supp. 376 (E.D.Va.1973). We
At about noon on August 25, 1967, Mrs.
Alma Kilpatrick was backing her car from a parking space at a small
shopping center in Arlington, Virginia, when she saw a man appear on the
brick wall in front of her. He jumped down, ran behind her car, looked
toward the area of the parking lot where Rockwell's body was later found,
turned and ran back over the wall. Upon being asked at trial if she
could describe the person whom she saw, Mrs. Kilpatrick responded:
A. I believe that he was dark haired and he had
either a brownish or a dark brown coat on, and he looked something like
what Mr. Patler looks like.
Q. Where did you see Mr. Patler?
A. I saw Mr. Patler again in the courtroom.
Transcript 523. Mrs. Kilpatrick talked with police on
the day after the shooting. Shown two different photographic spreads
containing Patler's picture, she was unable to make a positive
identification. It was then suggested that she attend Patler's
preliminary hearing to obtain a view of the suspect. Failing to gain an
unobstructed view of Patler, Mrs. Kilpatrick came to a second hearing.
She at first declined to make a positive identification after the
hearing, then changed her mind and informed the police that she could
identify Patler, and finally concluded that she could not. On voir dire
examination she stated: 'I have decided to say I can't positively
because I know that would be a crime, that would be terrible. I can't do
that.' Transcript 543.
On this same day and at about the same time, mrs.
Nancy Thoburn was returning from Bon Air Park (located about four blocks
from the shopping center where the shooting occurred) with her three
children. As she walked up Liberty Street in the direction of the
shopping center she saw a man running down the opposite side of the
street in the direction of the park. Noticing him 'because of his hurry,'
she testified that she described him to a detective who interviewed her
that same day as having 'dark hair,' 'a dark complexion,' and 'was of
medium build and height.' Transcript 628. She further described his
He was wearing a long coat of some
type, although I can't exactly identify it in every detail, but it
appeared to be a neutral color. Also, his pants impressed me as being a
dark gray, and he wore a hat; and I noticed one thing that stood out was
that his pants' legs were wet.
Transcript 628. Later that same day Mrs. Thoburn went
to the police station. She was seated on a bench together with three
other potential witnesses outside of the room in which Patler was
confined. Patler, handcuffed and escorted by several policemen, was led
by the bench as he was transferred from one room to another.
The state trial judge, describing the show-up as 'the worst possible
kind,' refused to allow Mrs. Thoburn to testify as to 'any
identification subsequent to that made at the police station.'
Transcript 622-23. But the following testimony by Mrs. Thoburn was
Mr. Hassan: (Commonwealth's Attorney) Did there come
a time when you made any statement to the police officers concerning
what you have just described and its relationship to any picture or live
viewing of Mr. Patler?
Mr. Harrigan: (Patler's Attorney) Objection, Your
The Court: The objection is overruled.
Mr. Harrigan: Exception.
The Witness: I had an opportunity to see Mr. Patler
at the police station the same day, August 25th.
Mr. Harrigan: I object to that, Your Honor.
Mr. Hassan: What she told the police.
The Court: We just want to know what you told the
police officer about your impressions of Mr. Patler.
The Witness: At that time I recall
seeing-- when I say seeing-- when I was asked if I could make an
identification, I said that there wasn't any conflict in his appearance
to the man I had seen, that there was nothing about him that conflicted
my mental picture of what I had seen earlier that day.
The Commonwealth argues that because the testimony of
Mrs. Kilpatrick and Mrs. Thoburn was inconclusive and did not rise to
the level of positive identification and because counsel was at all
times present at (although admittedly uninformed of) the challenged
show-ups, the Wade-Gilbert exclusionary rule does not apply and the
testimony must be tested only under the 'totality of the circumstances'
as prescribed in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d
1199 (1967), and explained in Neil v. Biggers, 409 U.S. 188, 93 S.Ct.
375, 34 L.Ed.2d 401 (1972).
The contention that the presence of counsel at these
show-ups is enough to satisfy Wade and Gilbert flies in the face of the
sixth amendment right sought to be protected. Both Wade and Gilbert
speak in terms of informed presence, i.e., notice.
388 U.S. at 237, 269, 87 S.Ct. 1967. The fact that Patler's counsel was
present both in the hallway at the police station where Mrs. Thoburn and
the other potential witnesses were seated and at the preliminary hearing
which Mrs. Kilpatrick attended does not enable the Commonwealth to
escape the strictures of the Supreme Court's mandate.
The state argues further that since
Patler had not been indicted and the Commonwealth had not 'committed
itself to prosecute' (Kirby v. Illinois,406 U.S. 682, 689, 92 S.Ct.
1877, 32 L.Ed.2d 411 (1972)) him, the Wade-Gilbert rule should not apply.
The plurality opinion in Kirby does not set forth an 'indictment' test
but refers only to 'the initiation of adversary judicial criminal
proceedings-- whether by way of formal charge, preliminary hearing,
indictment, information, or arraignment.' 406 U.S. at 689, 92 S.Ct. at
1882. In a concurring opinion the Chief Justice added: 'I agree that the
right to counsel attaches as soon as criminal charges are formally made
against an accused and he becomes the subject of a 'criminal prosecution."406
U.S. at 691, 92 S.Ct. at 1883. There is no question but that Patler had
already been served with a warrant charging him with first-degree murder,
that he had been confined several hours and that his attorney was
present at the police station at the time the show-up viewed by Mrs.
Thoburn occurred. Mrs. Kilpatrick's viewing did not come until several
weeks later. As to the show-ups viewed by both witnesses we find that 'adversary
judicial criminal proceedings' had been initiated and that Patler was
entitled to the informed presence of counsel under Wade and Gilbert.
United States v. Roth, 430 F.2d 1137, 1140-1141 (2d Cir. 1970), cert,
400 U.S. 1021 , 91 S.Ct. 584, 27 L.Ed.2d 633 (1971). Cf.
Stanley v. Cox, 486 F.2d 48 (4th Cir. 1973).
Although the failure of a witness to make a positive,
in-court identification cannot be used by the state to insulate its
improper identification procedures from scrutiny, it is entirely
possible, we think, for a skilled trial judge to separate the tainted
matter from what the witness actually observed at the scene of the crime
and thus avoid an unnecessarily blunt application of the exclusionary
rule of Wade or Gilbert. That is what occurred here.
We need not decide whether the
improper show-ups might have suggested or strengthened Mrs. Kilpatrick's
and Mrs. Thoburn's testimony in court, even to the point of positive
identification, because the capable trial judge, alert to the problem,
made certain that the questioning was limited to eliciting only what
they saw at the scene and an inconclusive comparison with Patler's
physical appearance. As to the latter he barely skirted constitutional
error, for if there is a line between 'resemblance' and 'identification'
testimony it is admittedly thin. But see United States v. Brooks, 146
U.S.App.D.C. 1, 449 F.2d 1077, 1083 (1971). Although thin, we think it a
line worth drawing. Aside from police deterrence, the spirit of Wade and
Gilbert is to prevent the conviction of those who may be innocent when a
susceptible witness is unfairly allowed to conclude: 'he is the guilty
one.' It is far less dangerous to admit testimony, as was done here,
that the malefactor was 'dark haired' and 'had a brown coat on' and 'looked
something like Mr. Patler,' which was the gist of Mrs. Kilpatrick's
testimony. We agree with the trial judge that:
At no point did she make a positive identification,
but what identification she makes, dubious as it is, appears to me to be
the direct product of what she saw while she was sitting in her car.
As for Mrs. Thoburn's testimony, the trial judge was
even more cautious, recognizing that the state had arranged views of 'the
worst possible kind.' He therefore limited her testimony to what she
told the officers at the police station-- something short of even 'resemblance'
testimony. Under the announced limitation Mrs. Thoburn described the
clothing of the person seen near the place of the crime; and, in
response to whether she could make an identification, failed to do so,
saying only that the appearance of Patler was not 'in conflict' with the
person she had seen.
In declining to order a new trial despite flagrant
police violations of show-up standards, we think we do no injury to the
therapy of the exclusionary rule of Gilbert. For the lesson got to the
trial judge and through him to the prosecutor and the police, and it is
this: unfairly obtained identification testimony will not be freely
received, and if allowed at all, it will be under such severe
limitations that the prosecutor will be deprived of most of its
potential for persuasiveness. Thus the purpose of the exclusionary rule,
to deter the violation of the constitutional rights of those accused of
crime, is served.
Spent bullets and shell casings
matching the murder weapon were seized from the pasture of a farm owned
by Patler's father-in-law, Sam Ervin. Testimony at trial tended to show
that the area from which the inculpatory evidence was recovered was
occasionally used by the two families as a picnic area and as a play
area for their children and had within a month prior to the shooting
been used by Patler for target shooting. It was located 250 feet from
the dwelling house and about 200 feet outside a fence which enclosed the
house and outbuildings. Although the trial court found invalid on its
face a search warrant obtained by officers prior to the search, the
evidence was not suppressed on the theory that the area searched was
outside the curtilage. The Supreme Court of Appeals affirmed,
specifically relying on the 'open fields' doctrine of Hester v. United
States, 265 U.S. 57, 59, 44 S.Ct. 445, 68 L.Ed. 898 (1924). Patler v.
Commonwealth, 211 Va. 448, 449-451, 177 S.E.2d 618, 620-621 (1970).
The district court agreed that the
evidence should not have been suppressed, although it found Hester to be
inapplicable in light of Katz v. United States, 389 U.S. 347, 88 S.Ct.
507, 19 L.Ed.2d 576 (1967). Instead the district court concluded that
the use to which the area had been put was not such that Patler could 'reasonably
have expected privacy at the scene of the target shooting.' Patler v.
Slayton, 353 F.supp. 376, 387 (E.D.Va.1973). Furthermore, the court held,
he lacked standing to raise his fourth amendment contention, citing
Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697
(1960); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d
1247 (1968); and United States v. Cobb, 432 F.2d 716 (4th Cir. 1970).
With the argument that Patler lacks standing we cannot agree. In Cobb,
supra, 432 F.2d at 719, we said:
In Jones v. United States . . . the Court, in
construing Rule 41(e) which gives to any 'person aggrieved by an
unlawful search and seizure' the right to move to suppress evidence
thereby secured, held that, 'In order to qualify as a 'person aggrieved
by an unlawful search and seizure' one must have been a victim of a
search or seizure, one against whom the search was directed, as
distinguished from one who claims prejudice only through the use of
evidence gathered as a consequence of a search or seizure directed at
someone else.' 362 U.S. at p. 261, 80 S.Ct. at p. 731 . . ..
While possession of the evidence
seized here was not an element of the offense charged, Patler
demonstrated both that he had a possessory interest in the property
searched, Brown v.
United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), and
that the search was specifically directed against him. Having standing
to raise the propriety of the search, Patler has, however, failed to
domonstrate a reasonable expectation of privacy in the property actually
searched. The maxim of Katz that the fourth amendment protects 'people
not places' is of only limited usefulness, for in considering what
people can reasonably expect to maintain as private we must inevitably
speak in terms of places. Speaking in such terms, we said under similar
cirecumstances in United States similar circumstances in United States
1973), cert. denied,
416 U.S. 909 , 94 S.Ct. 1617, 40 L.Ed.2d 114 (1974):
Appellants' reasonable expectations of privacy--
while extending to their dwellings and the immediate area around them
and even to the area occupied by outbuildings such as the barns in
question . . .-- cannot, in light of Hester, be said to include the 'open
fields' around the barn.
See also United States v. Minton, 488 F.2d 37, 38
(4th Cir. 1973). Even if Patler could be said to have exhibited an
actual expectation of privacy in the areasearched, we cannot say that
such an expectation is 'one that society is prepared to recognize as 'reasonable."
Katz, supra, 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring).
In Brady v. Maryland, 373 U.S. 83, 87,
83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), the Supreme Court announced
the following constitutional principle:
We now hold that the suppression by the prosecution
of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.
Petitioner alleges that his Brady rights were
violated by the prosecution's failure to release the results of
scientific tests made by the FBI on certain physical evidence until that
evidence was introduced late in his trial.
The district court correctly characterized the test results as 'neutral'
rather than 'exculpatory.' 353 F.Supp. at 388. But such a
characterization often has little meaning; evidence such as this may,
because of its neutrality, tend to be favorable to the accused. While it
does not by any means establish his absence from the scene of the crime,
it does demonstrate that a number of factors which could link the
defendant to the crime do not. There was good reason for the state to
introduce Patler's clothing and shoes and the murder weapon.
Several witnesses had seen a man running from the
scene of the crime dressed in similar clothing, and one witness
testified that the coat found along the escape route belonged to Patler.
The murder weapon, so the jury could have found, had been loaned to
Patler several years earlier and shell casings and fragments fired from
it were found on his father-in-law's farm. He had been seen target
shooting there a month before the shooting. Clearly the evidence was
relevant. But, to paraphrase what we said in Barbee v. Warden 331 F.2d
842, 845 (4th Cir. 1964), 'once produced, it became not only appropriate
but imperative that any additional evidence concerning (these items) be
made available either to substantiate or to refute the suggested
inference(s).' Admittedly, the ballistics tests under consideration in
Barbee were of much greater benefit to the defense than the scientific
tests in this case. But whether the tests here are 'favorable' within
the meaning of Brady we need not decide. Assuming that an affirmative
duty existed which required disclosure by the prosecution, such a duty
was here satisfied.
Petitioner's argument rests, finally,
on the assertion that disclosure was not timely. While there may be
instances where disclosure comes too late to benefit the defendant, see,
e.q., Clay v. Black, 479 F.2d 319 (6th Cir. 1973); United States v.
Gleason, 265 F.Supp. 880 (S.D.N.Y.1967), this is not such a case. Once
the physical evidence was introduced by the prosecution, disclosure of
the test results was made immediately. There followed a very thorough
and searching cross-examination by petitioner's counsel. In light of the
fact that Brady does not require pretrial discovery,
United States v. Harris, 409 F.2d 77, 80-81 (4th Cir. 1969), cert.
denied sub nom., Brown v. United States,
396 U.S. 965 , 90 S.Ct. 443, 24 L.Ed.2d 430 (1969), and in
the absence of any demonstration of prejudice to his defense from the
failure of the prosecution to make the disclosure at an earlier point in
the trial, petitioner's assertion of untimely disclosure must fail.
Where, as here, the disclosure is timely, i.e., occurring at or before
the introduction by the prosecution of evidence to which the disclosed
material logically relates and at a time when it can be meaningfully
evaluated and utilized by the defense, there is no violation of due
The judgment of the district court is affirmed.
Q. Did you go down to the police station on the 25th?
Q. How many other people were down there?
A. There were three other witnesses there.
Q. Did you know what you were going down there for?
A. To give a description. I thought I was going down
there to see if I could identify the man that I saw running.
Q. Where did you go in the police station?
A. To the detective's office.
Q. That is the third floor?
A. I guess it is; I couldn't say right now.
Q. Were you in the hall there?
A. We were in the office, and Mr. Patler's lawyer
would not let us look at him.
Q. Who was that lawyer?
A. Mrs. Lane, I guess.
Q. She would not let you look at him?
A. That was the reason we were given for sitting so
long in the office.
Q. Who gave you that reason?
A. The detectives. I don't know; that was what I
heard. I did not see Mrs. Lane that day, period. This is the reason that
I was given why we were kept waiting because his lawyer, whoever it was,
would not let us see him.
Q. All right. Did they come out and finally tell you
A. No, they did not.
Q. What happened?
A. They put a bench for us beside the elevator so
that when he was changed from one room to another and brought down the
hall that we would catch a glimpse of him then.
Q. Was he brought down the hall?
Q. How many detectives were holding onto him?
A. I know there were at least two escorts.
Q. Was he handcuffed?
Q. Was it pretty obvious who the defendant was and
who the detectives were?
A. Yes, indeed.
The Court: Does the Commonwealth deny that his
counsel was advised that he was to be shown to eye witnesses at that
Mr. Hassan: I don't think counsel was advised at any
time. I don't think there is any requirement to advise counsel.
During the afternoon of the day of the crime, a cap
and a reversible coat, brown on one side and black on the other with a
mutilated woman's pantyhose stuffed in one pocket, were found under a
tree a few blocks from the scene of the crime. (Tr. 777, 794-95). On the
afternoon of the next day, a 7.63 mm. Mauser pistol was found in a park
several blocks away, lying between two rocks in a creek in about six
inches of water. (Tr. 1434-35) This proved to be the murder weapon. (Tr.
1707-8) It was identified as the property of Robert A. Lloyd, III, an
active member of the Nazi Party, who testified that he had loaned it to
petitioner in 1964. (Tr. 1806, 1812-13) Lloyd also testified that when
he requested the return of the gun in 1965 petitioner told him it had
been stolen or mislaid, and that the coat found under the tree 'looked
exactly like' one petitioner had worn. (Tr. 1813-14, 1824-25) Another
Party member testified that the coat 'is' petitioner's. (Tr. 1856)
Petitioner denied that Lloyd had ever loaned him the gun and presented
several witnesses who said they had seen it in Lloyd's possession after
1964. (Tr. 2469-70, 2178, 2276-76) The defense introduced a different
black raincoat, found in petitioner's home the day after the crime,
which he identified as his own. (Tr. 2562, 2464) The police delivered
their items of physical evidence to the FBI, where they were subjected
to all the usual scientific tests, as was the clothing worn by
petitioner at the time of his arrest and the towel he was carrying.
Before the trial petitioner's attorneys asked the trial court to order
the reports of these tests and any exculpatory evidence possessed by the
prosecution to be shown to defense counsel. This motion was denied. Late
in the prosecution's case, the Commonwealth presented this evidence.
Tests to establish whether the articles found under the tree or the
towell had been associated with a firearm were negative. (Tr. 1709-11)
So were tests attempting to associate any of these items with paint
samples taken from the shopping center. (Tr. 1741-43) Petitioner's shoes
could not have made the footprints found on the roof. (Tr. 1731-33) Soil
found on petitioner's shoes did not match any of the 17 soil samples
taken along the escape route. (Tr. 1738-39) There were no hairs or
anything else on the cap or the coat that could connect them to
petitioner. (Tr. 1764) Neither the tar found on petitioner's shoes nor
the tar taken from the roof contained identifying impurities; the expert
witness declined to say they were identical, though he said they were
similar: 'Tar is tar.' (Tr. 1745-46) There were no fingerprints on the
murder weapon. (Tr. 1727-28)
Reports of examinations and tests.-- Upon request of
a defendant the government shall permit the defendant to inspect and
copy or photograph any results or reports . . . of scientific tests or
experiments, made in connection with the particular case, or copies
thereof, within the possession, custody or control of the government,
the existence of which is known, or by the exercise of due diligence may
become known, to the attorney for the government.
42 U.S.L.W. 4555 (April 23, 1974).