Memoranda-A- 1997,
New York 3's Effort to Overturn Conviction




             -against-                                                            Ind. 5696 1/4
ANTHONY BOTTOM, HERMAN BELL and                 6189 1/2
ALBERT WASHINGTON,                                             (1973)




     This memorandum is respectfully submitted in support of the defendants’ motion pursuant to C.P.L. §440.10(1)(b),(c), (f),(g) and (h) to vacate their judgments dated May 12, 1975 (Greenfield, J.) convicting each defendant of murder in the first degree (two counts) and sentencing them to two concurrent terms of imprisonment of twenty-five years to life.
     The defendants, all former members of the Black Panther Party (“BPP”), were convicted, after two trials, of the May 21, 1971 murder of NYPD Officers Joseph Piagentini and Waverly Jones.  The instant motion is based upon documents obtained by the defendants from the FBI and NYPD as well as other sources after their last application for post-judgment relief.  These documents illustrate that the instant prosecution was one part of the FBI’s and NYPD’s covert campaign, begun in 1968, to neutralize the Black Panther Party and incarcerate its members.  In this case, the prosecution, with the assistance and cooperation of the NYPD and FBI, suppressed exculpatory evidence and suborned perjury to achieve a conviction against these defendants.
     Accompanying this motion is an appendix of exhibits.  The documents contained in the appendix will be referenced by page numbers in that appendix, e.g. “A”.  The first section of this memorandum will describe the FBI’s and NYPD’s campaign to destroy the Black Panther Party.  The following sections describe the relationship of that campaign to the instant prosecution and includes an explication of the exculpatory evidence suppressed in this case.

I. The Black Panther Party And COINTELPRO
     In 1968, FBI Director J. Edgar Hoover, responding to what he perceived as the growing threat of the African-American civil rights movement, expanded the FBI’s covert program to “neutralize” African-American organizations and their leaders.  In a memo dated April 4, 1968, he described the intensification of this program as follows:

"For maximum effectiveness of the Counterintelligence Program, and to prevent wasted effort, long-range goals are being set.

     1)  Prevent the coalition of militant black nationalist groups.  In unity there is strength; a truism that is no less valid for all its triteness.  An effective coalition of black nationalist groups might be the first step toward a real "Mau Mau" in America, the beginning of a true black revolution.
     2)  Prevent the rise of a "messiah" who could unify, and electrify, the militant black nationalist movement.  Malcolm X might have been such a "messiah;" he is the martyr of the movement today.  Martin Luther King, Stokely Carmichael and Elijah Muhammed all aspire to this position.  Elijah Muhammed is less of a threat because of his age.  King could be a very real contender for this position should he abandon his supposed "obedience" to "white, liberal doctrines" (nonviolence) and embrace black nationalism.  Carmichael has the necessary charisma to be a real threat in this way.

     3)  Prevent violence on the part of black nationalist groups...Through counterintelligence it should be possible to pinpoint potential troublemakers and neutralize them before they exercise their potential for violence.

     4)  Prevent militant black nationalist groups and leaders from gaining respectability, by discrediting them to three separate segments of the community.  The goal of discrediting black nationalists must be handled tactically in three ways.  You must discredit these groups and individuals to, first, the responsible Negro community.  Second, they must be discredited to the white community, both the responsible community and to "liberals" who have vestiges of sympathy for militant black nationalists simply because they are Negroes.  Third, those groups must be discredited in the eyes of Negro radicals, the followers of the movement.  This last area requires entirely different tactics from the first two.  Publicity about violent tendencies and radical statements merely enhances black nationalists to the last group; it adds "respectability" in a different way.

     5)  A final goal should be to prevent the long-range growth of militant black nationalist organizations, especially among youth.  Specific tactics to prevent these groups from converting young people must be developed" (A 1-6).

     In 1966, the New York City Police Department commenced its own "investigation" of the Black Panther Party based solely on the Party’s First Amendment activities.  The NYPD targeted the BPP’s program for community control of schools in the African-American community.  Reporting on an August 25, 1966 meeting of community organizations, the NYPD’s Bureau of Special Services ("BSS") submitted the following memorandum to the NYPD’s Chief Inspector:

The speakers were all in agreement that the schools in Harlem were inferior in curriculum and that the teachers had little regard for their students.  They stated also that if this system is permitted to go on, the Negroes will continue to be lacking in education... Further details regarding this boycott on September 12, 1966 will follow in another report.  There were 40 persons in attendance at this meeting which ended without incident. (A39).

     The NYPD regularly communicated with police departments throughout the country, sharing information on the BPP, its members and protected First Amendment activities.  On June 13, 1967, for example, Deputy Inspector William Knapp requested that the Colorado State Police provide him with all information on "Panther Publications" assuring Colorado that the request will be treated "with discretion" due to the "confidential nature" of the BPP investigation (A 41).  In May 1967, the NYPD requested the "names pedigrees, photos and other relevant information" on the BPP maintained in the files of the Los Angeles Police Department (A 44). 
     By July 1968, it was the opinion of the NYPD that the Black Panther Party "has the potential for great is requested...that all uniformed and detective commands forward any information on the [Black Panther Party] to [the Bureau of Special Services]." (A 45).
     The NYPD created "index cards" memorializing information on the protected activities of all BPP members, their associates, their families and their friends.  In a civil rights litigation currently pending in the United States District Court for the Southern District of New York, Bin Wahad v. FBI, et al. 75 Civ. 6203 (MJL) the NYPD has produced copies of over 30,000 index cards memorializing information on over 15,000 individuals and organizations.
     By mid 1968, the FBI and NYPD were working together on a daily basis.  On August 29, 1968, FBI Special Agent ("SA") Henry Naehle reported on his meeting with a member of an NYPD "Special Unit" investigating the BPP.  SA Naehle acknowledged that the FBI's New York Field Office "has been working closely with BSS in exchanging information of mutual interest and to our mutual advantage."  The NYPD official noted that his unit is actually in "competition" with BSS but that given their goals, such competition is a "healthy thing" (A 7-8).
     Documents produced in Bin Wahad, supra., show a pattern of mutual activity by the FBI and NYPD designed to destroy the Black Panther Party.  For example, an FBI "Inspector's Review" for the first quarter of 1969 shows that the NYPD, in conjunction with the FBI, had an "interview" and "arrest" program as part of their campaign to neutralize and disrupt the BPP. (A12-18).  The NYPD advised the FBI that these programs have severely hampered and disrupted the BPP, particularly in Brooklyn, New York, where, for a while, BPP operations were at a complete standstill and in fact have never recovered sufficiently to operate effectively. (A18).

     In a bi-weekly report to FBI Headquarters listing several counterintelligence operations the FBI reported that
"To date, the NYO has conducted over 500 interviews with BPP members and sympathizers. Additionally, arrests of BPP members have been made by Bureau Agents and the NYCPD.  These interviews and arrests have helped disrupt and cripple the activities of the BPP in the NYC area.  Every effort will be made to continue pressure on the BPP..." (A20).

     In July 1969, the NYPD sent officers to Oakland, California to monitor the Black Panther Party's nationwide conference calling for community control of police departments (A69-74).  An NYPD memorandum candidly acknowledged that community control of the police, "may not be in the interests of the department" (A78).
     In August 1970, BPP leader Huey P. Newton was released from prison.  A plethora of counterintelligence actions followed which sought to make Newton suspicious of fellow BPP members (A27-36).
     By early 1971, the plan bore fruit.  On January 28, 1971, FBI Director Hoover reported that Newton had become increasingly paranoid and had expelled several loyal BPP members:
"Newton responds violently...The Bureau feels that this near hysterical reaction by the egotistical Newton is triggered by any criticism of his activities, policies or leadership qualities and some of this criticism undoubtedly is result of our counterintelligence projects now in operation." (A37-38)

     COINTELPRO's enormous success resulted in a split within the BPP with violent repercussions (A37).
     On May 19, 1971, NYPD Officers Thomas Curry and Nicholas Binetti were shot on Riverside Drive in Manhattan. Two nights later, two other officers, Waverly Jones and Joseph Piagentini, were shot and killed in Harlem.  In separate communiques delivered to the media, the Black Liberation Army claimed responsibility for both attacks. Immediately after these shootings, the FBI made the investigation of these incidents, which they called "Newkill," part of their long-standing program against the BPP conducted by their "Racial Matters" squad, and set up a liaison with the NYPD.  Before any evidence had been collected, BPP members were targeted as suspects.  Hoover instructed the New York Office to consider possibility that both attacks may be result of revenge taken against NYC police by the Black Panther Party (BPP) (A84-85).

     On May 26, 1971, J. Edgar Hoover met with then President Richard Nixon, who told Hoover that he wanted to make sure that the FBI did not "pull any punches in going all out in gathering information...on the situation in New York."  Hoover informed his subordinates that Nixon's interest and the FBI's involvement were to be kept strictly confidential (A87-90).
     "Newkill" was a joint FBI/NYPD operation involving total cooperation and sharing of information.  The FBI made all its facilities and resources, including its laboratory, available to the NYPD (A89-90). Former NYPD Commissioner Michael Codd, then NYPD Chief Inspector, was assured of "complete" FBI cooperation (A 91, ¶2).  In turn, NYPD Chief of Detectives Albert Seedman, who coordinated the NYPD's investigation, ordered his subordinates to give the FBI "all available information developed to date, as well as in future investigations" (A92).  The NYPD set up a command structure listing the FBI as a "participating agency" in the Piagentini-Jones investigation (A99).  The FBI laboratory conducted tests on all evidence recovered and the field office carried out neighborhood investigations at the scenes of the May 21 incident.
     The FBI periodically created "summary reports" on the progress of the investigation.  At least three of these reports, which contained interviews with witnesses and other investigatory data, were provided to NYPD Chief of Detectives Albert Seedman (A105, 110).  The NYPD, in turn, provided at least one of these reports to the District Attorney, New York County.  The District Attorney, New York County had five copies of this memorandum in its files. Bell v. Coughlin, 820 F.Supp. 780, 787 (S.D.N.Y. 1993).


     On August 28, 1971, Anthony Bottom and Albert Washington, two members of the Black Panther Party, were arrested in San Francisco, California.  Seized from the automobile in which they were riding were, inter alia, two firearms.  The prosecution alleged that one of the firearms was the service revolver of Officer Jones.  The second, a .45 caliber automatic, was tested by the FBI and compared to ballistics evidence seized herein.  The FBI could not link that weapon to the instant homicide.  Later, the NYPD conducted its own ballistics test and maintained that the .45 caliber evidence seized on May 21, 1971 was fired from the weapon seized in San Francisco in August.   Messers. Bottom and Washington and later Gabriel Torres, Francisco Torres and Herman Bell, all members and/or associates of the Black Panther Party, were indicted in New York County for the Piagentini-Jones homicide.  The first trial ended in a mistrial with a majority of the jurors voting for acquittal.  The second trial commenced in early 1975 before Justice Edward J. Greenfield.  At the conclusion of the prosecution's case, Justice Greenfield granted defendants Francisco Torres and Gabriel Torres motions to dismiss due to the prosecution's failure to establish a prima facie case.

The jury returned its verdict convicting defendants Bell, Bottom and Washington. On May 12, 1975, each defendant was sentenced to two concurrent terms of twenty-five years to life imprisonment, the maximum penalty.
     Every aspect of the prosecution's case against the defendants has now been undermined by suppressed Brady and/or Rosario material.  Some of this suppressed material has been presented in earlier applications for post-judgment relief.  Additionally, crucial Brady material has been discovered since the defendants' last C.P.L. §440.10 application.  The following explication of the evidence at trial and suppressed Brady/Rosario material will set forth only the suppressed material which is being presented for the first time by this motion.  As argued infra., this Court should also consider previous Brady and/or Rosario violations in evaluating the cumulative effect of the prosecution's failure to discharge their constitutional obligations.

Rosario/Brady Violations.
     Linda Torres, Karen Parks and Jacqueline Tabb, three acquaintances of the defendants, testified at trial concerning comings and goings from an apartment on Anderson Ave. in the Bronx that the group shared.  They also related  alleged admissions of some of the defendants in the period immediately preceding and after the May 21, 1971 incident.  Valerie Wall and Patricia Bryant, alleged eyewitnesses to the offense, made in-court identifications of defendant Bottom as one of the two shooters.  Presented with this motion are recorded statements with Torres, Tabb, Parks and Bryant which the prosecution failed to provide at trial in violation of People v. Rosario and/or Brady v. MarylandIn addition, the prosecution suppressed additional Brady material.  First, the prosecution suppressed a cooperation agreement with Jacqueline Tabb and suborned her perjury when she denied its existence.  Secondly, evidence was suppressed tending to show that other individuals, not these defendants, committed the crime charged.
     1. Jacqueline Tabb
          a. Knowing Use Of Perjured Testimony.
     On October 14, 1971, Jacqueline Tabb, Francisco Torres, Gabriel Torres, Maria Torres Bailey and Stanley Bailey were in an apartment in the Bronx when it was raided by the police.  The occupants, including Tabb, were arrested.  Tabb, Bailey and Torres-Bailey were subsequently indicted for hindering prosecution in the second degree, possession of a weapon (a shotgun) and criminal possession of narcotics.  Tabb was incarcerated in lieu of $150,000 bail.
     At trial, Tabb testified that from October 16, 1971, (the date of her Criminal Court arraignment) until October 28, 1971, she was transported each day to the Offices of the District Attorney, New York County (5809).   On each day, she was questioned for eight or nine hours (5952, 5955).  Tabb maintained that no questions were posed about the May 21, 1971 murders.  Rather, all questions concerned whether she knew the Torres brothers or the defendants, a fact she steadfastly denied (5810, 5955).
     Tabb testified that on October 28th, her position changed and she decided to reveal what she knew about the events of May 21, 1971.  The sole reason for her turnabout, Tabb testified, was that the prosecutors told her that they "knew" she was in the Anderson Avenue apartment on May 21, 1971 (5815-16, 5818, 5972, 6037).  She surmised that someone must have provided that information so she, too, might as well cooperate (5816).  Tabb swore that she would not have cooperated with the District Attorney and testify before the grand jury if someone else had not already told the authorities of her alleged involvement (5818).  On October 28th, Tabb testified in the grand jury, was immediately released from custody, and placed in an apartment paid for by the District Attorney (5818, 5967-68).
     Tabb testified that she never even discussed her Bronx case with anyone from the New York County DA's Office (5948, 5970, 6158, 6164).  Responding to the defense's questioning of Tabb on this issue, ADA Tannenbaum posed the following question on re-direct:
     Q.  At any time to this moment, did anyone ever mention to you the case you have in the Bronx?

     A.  No.

     An FBI teletype dated October 30, 1971 - three and a half years before defendants' trial - reveals the foregoing testimony to be perjurious and that the District Attorney, New York County had actual knowledge of that perjury.  According to Inspector Jenkins of the NYPD Tabb had insisted on a quid pro quo involving her pending indictment:
Tabb, prior to interview, indicated she would be amenable to some discussion if some consideration was given her, that the charges presently pending against her be adjusted in her favor.  Insp. Jenkins, NYCPD, advised that New York County District Attorney's Office has basically acceded to Tabb's demands that charges presently outstanding, Bronx, New York, be dropped in return for her statements regarding captioned matter.
(A123-124).  At the time of the instant trial, Tabb's Bronx indictment was still pending (4365, 5970, 6164).  Yet even though it was the NYDA who brokered the deal, the prosecutor never corrected the foregoing testimony.

          b. Brady/Rosario Violations.
     Tabb testified at trial that on May 21, 1971 she and Francisco Torres arrived at 1185 Anderson Ave. early in the morning (5892).  The five men (Francisco Torres, Gabriel Torres, Herman Bell, Anthony Bottom and Albert Washington) stayed there all day and did not leave until approximately 8:00 P.M. (5796).  They returned in two groups between 10:45-11:00 P.M.  Tabb was asked to turn on the news (5797).  After listening to reports of the Piagentini-Jones homicide, Herman Bell allegedly said that "we" hit the wrong ones, referring to the fact that one of the officers was Black (5801).  Tabb swore that she observed three weapons on the table.  They belonged to Washington, Bottom and Bell (5801, 5905).
     However, a November 5, 1971 FBI teletype (A129-134), not disclosed at trial, memorializes an NYPD interview with Tabb which differs from trial testimony.  In that interview, Tabb stated that while all five men were in the apartment on May 21, all of them left at about 3:00 P.M. and returned sometime later, contrary to her testimony that they remained until 8:00 P.M. that evening.  According to her statement, the men left again at 7:00 P.M. (not 8:00 P.M.) and returned a few hours later.  Tabb told Inspector Jenkins that it was Anthony Bottom, not Herman Bell who allegedly stated that "we hit the wrong ones".  In addition, she told Jenkins that she observed four weapons on the table that evening and not three as she testified at trial.
     2. Linda Torres
     Linda Torres, the estranged wife of former co-defendant Gabriel Torres, testified at trial that on the evening of May 21, 1971, she was in her apartment located at 1185 Anderson Ave. in the Bronx.  Present were Gabriel Torres, Francisco Torres, Albert Washington, Anthony Bottom, Herman Bell, known to her only as "Jonas", Karen Parks, Jacqueline Tabb, and children (6288).  The men left together at some time between eight and nine o'clock and returned between 11 and 12 (6269).  According to her trial testimony, upon their return, Anthony Bottom told her to turn on the television news and stated that "we just offed some pigs" (6270).  Thereafter, Bottom, Bell, Washington and possibly Francisco and Gabriel Torres, placed guns on her table (6270).
     In her first statement to law enforcement on October 27, 1971, (A136-141), Torres told NYPD Inspector Edward Jenkins that the five men returned to her house, together, "during the late hours of May 21 or the early hours of May 22."  Contrary to her 1975 trial testimony that Bottom told her to turn on the news, in October, 1971 Torres told the police that she could only recall that "someone" told her to turn on the television.  There is no mention of any contact with any defendant prior to the shooting, and no mention of anyone placing weapons on a table upon their return.
     Three days later, on October 30, 1971, Torres was interviewed again (A142-143).  She changed her story, informing Inspector Jenkins that the men left her house at 7 P.M., and returned at between 11 and 11:30.  "Someone" (again no mention of Bottom) told her to turn on the news.  She further told Jenkins that "one of the individuals plac[ed] three pistols on a table" contrary to her trial testimony that Bottom, Bell and Washington each individually placed a weapon on her table.
     3. Karen Parks
     In violation of People v. Rosario and C.P.L. §240.45, the prosecution withheld an FBI teletype dated January 13, 1972 memorializing an interview with Karen Parks, who was allegedly in the Anderson Avenue apartment with the defendants on May 21, 1971 (A147-149). 
     4. Patricia Bryant
     At trial, Valerie Wall and Patricia Bryant identified Anthony Bottom as one of the two shooters (Wall: 4589-91; Bryant: 6661, 6784).   The prosecution failed to disclose Rosario material consisting of a May 29, 1971 FBI interview with Ms. Bryant (A119).
     5.  Other Brady Violations.
     The prosecution possessed information that individuals other than the defendants were responsible for the murders but failed to disclose that information to the defense.
          a. Willie Jean Davis.
     Shortly after the homicides, Detective David Gregory of the NYPD informed the FBI that he had been assigned to interview a woman named Willie Jean Davis.  Davis informed the NYPD that her boyfriend Michael Williams had told her that his brother Reggie Williams had killed the two officers (A150-156).  Davis' descriptions of Michael and Reggie Williams fit the descriptions provided by the eyewitnesses.  Davis identified photographs of Anthony Bottom and Albert Washington as the individuals known to her as Michael and Reggie Williams (A168).  Davis' neighbors similarly identified these photos as individuals they had seen with Davis (A170-173).
     Bottom and Washington, of course, could not have been Michael and Reggie Williams since the evidence at trial revealed they were not even in New York during the times Davis claims that the Williams' frequented her apartment.  Davis's information raises the inference that individuals who looked like Bottom and Washington were responsible for the homicide.  This evidence is significant as it could have been used to challenge the reliability of Bryant's and Wall's identification testimony.
          b. Adolph Porter.
     Adolph Porter was a Housing Police Officer assigned to the Colonial Park Housing Projects.  His office was located adjacent to the area in which Officers Piagentini and Jones were shot.  The NYPD developed information that Porter had been dealing in narcotics.  Given the location of the shooting, they suspected that Porter had been the intended target and that the shooting might be drug-related (A175-196).  This information was also not provided to the defense.


     The District Attorney's failure to disclose its cooperation agreement with Jacqueline Tabb implicates two legal principles governing violations of Brady v. Maryland, 373 U.S. 83 (1963) 1) the knowing use by the prosecution of  uncorrected perjured testimony; and 2) the failure of the prosecution to produce exculpatory information in response to a specific, relevant, request.  Under the materiality standards governing either principle, this violation, standing alone, entitles the defendants to a new trial.

1.  The Prosecution's Knowing Use Of Perjured Testimony Denied Defendants Due Process Of Law And Requires That Their Convictions Be Vacated.

     It is well-established that the prosecution's knowing use of false testimony violates a criminal defendant's right to due process of law under the Federal and State Constitutions.  Giglio v. United States, 405 U.S. 150, 153 (1972); Napue v. Illinois, 360 U.S. 264, 269 (1959); Mooney v. Holohan, 294 U.S. 103, 112 (1935); People v. Steadman, 82 N.Y.2d 1 (1993); People v. Novoa, 70 N.Y.2d 490 (1987); People v. Cwikla, 46 N.Y.2d 434 (1979); People v. Savvides, 1 N.Y.2d 554 (1956).  It matters not whether the subject of the falsehood goes to the merits of the prosecution's case or to the credibility of the witness.  Giglio v. United States; People v. Cwikla
     Under Brady principles, a prosecutor has the duty to disclose the "existence of an agreement between the prosecutor and a witness made to induce the testimony of the witness."  People v. Novoa, 70 N.Y.2d at 496  (citations omitted).  When a witness testifies falsely concerning a promise or leaves the jury with the false impression that he/she expects nothing in return for his/her testimony, a prosecutor has the duty to correct that perjury.  As the Court of Appeals held in Novoa:
          "[i]f a witness mischaracterizes or falsely denies a promise, the prosecutor must by immediate statement of his own or by further appropriate examination...forthrightly [expose] the lie, so that the court and jury [will know] that the witness had reason to expect lenient treatment for continued cooperation... If a lie is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and to elicit the truth."

People v. Novoa, 70 N.Y.2d at 497 (internal quotation marks and citations omitted) 
     On both cross and re-direct examination, Jacqueline Tabb flatly denied that she expected any favorable consideration in her Bronx case in exchange for her cooperation herein (5948, 5970, 6158, 6164).  Indeed, she denied that the Bronx case was even discussed (6627).  That this testimony was known by the District Attorney to be perjurious is conclusively demonstrated by an FBI teletype (A122-126) memorializing information obtained from NYPD Inspector Edward Jenkins.  Tabb's deal with the New York County District Attorney is described as follows:
"Tabb, prior to interview, indicated she would be amenable to discussion if some consideration was given her, in that the charges presently pending against her be adjusted in her favor.  Insp. Jenkins, NYCPD, advised that New York County District Attorney's Office has basically acceded to Tabb's demands that charge pending against her, Bronx, New York, be dropped in return for her statements regarding captioned matter."

       The District Attorney's use of this perjured testimony denied the defendants due process of law.  United States v. Wallach, 935 F.2d 445, 456 (2d Cir. 1991); Dubose v. Lefevre, 619 F.2d 973 (2d Cir. 1980); United States ex rel Washington v. Vincent, 525 F.2d 262 (2d Cir, 1975); People v. Steadman, 82 N.Y.2d at 7; People v. Novoa 70 N.Y.2d at 496; People v. Mangi, 10 N.Y.2d 86, 88 (1961); People v. Savvides, 1 N.Y.2d at 557  These violations of the defendants' fundamental rights require that their convictions be vacated. 
     If it is established that the prosecutor knowingly permitted the introduction of false testimony, reversal is "virtually automatic." United States v. Wallach, 935 F.2d at 456 citing Napue v. Illinois, 360 U.S. at 269.  Where the prosecutor knew or should have known of the perjury, reversal is required "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." Id. at 456 citing United States v. Agurs, 427 U.S. 97, 103 (1976).  See also People v. Steadman, 82 N.Y.2d at 8.
     The District Attorney had actual knowledge of Tabb's perjury. The FBI teletype quoted supra., reveals that "the District Attorney, New York County acceded to Tabb's demand" that charges be dismissed in exchange for her cooperation.  Yet the prosecutor, Robert Tannenbaum, did not only fail to correct Tabb's perjury, he elicited, on re-direct examination, testimony that the Bronx case was not even discussed.  Accordingly, under the "actual knowledge" materiality standard, the convictions must be reversed.
     The judgments must also be reversed under the materiality standard applicable in situations where the prosecutor "knew or should have known" of the perjury.  Tabb provided vital evidence against each defendant, describing their comings and goings on the evening of the shooting.  She provided much-needed corroboration to Linda Torres and Karen Parks whose testimony were effectively impeached by the defense.   Tabb, on the other hand, was able to present herself as someone who reluctantly cooperated only after she realized that someone else had talked.   During summation, ADA Tannenbaum reiterated that point, urging the jury to believe Tabb since she had no motive to lie (9249, 9266, 9275).  Had the jury known that Tabb's cooperation was induced by a desire to avoid prison and that she lied about any deal, her credibility would have been destroyed.  At a minimum, therefore, there is a "reasonable likelihood" that the false testimony "could have" affected the jury's judgment.  United States v. Wallach, 935 F.2d at 456.
As the Court of Appeals noted in People v. Savvides:
          Where a promise of leniency or other consideration is held out to a self-confessed criminal for his cooperation, there is a grave danger that, if he be weak or unscrupulous, he will not hesitate to incriminate others...The failure to disclose an "understanding" or a promise cannot but seriously impair the jury's ability to pass upon this vital issue.

People v. Savvides, 1 N.Y.2d at 557.

2.  Since It Is Reasonably Possible That The Failure To Disclose The Promises Made To The Prosecution's Witnesses Contributed To Defendants' Conviction, They Are Entitled To A New Trial.

     In People v. Vilardi, 76 N.Y.2d 67 (1990), the Court of Appeals held that the suppression of exculpatory evidence in the face of a specific request for that evidence warrants a new trial if there is a "reasonable possibility" that the suppression "contributed" to the defendant's conviction.  People v. Vilardi, 76 N.Y.2d at 71.  The withholding of such evidence, said the Court, "is seldom, if ever, excusable."  People v. Vilardi, 76 N.Y.2d at 74, citing United States v. Agurs, 427 U.S. 97 (1976)
     As argued supra., it has long been held that a promise of lenient treatment must be disclosed to the defense.  See People v. Novoa, 70 N.Y. 2d at 496 and cases cited therein.  As set forth in the exhibits and other evidence before this Court, there existed a quid pro quo between the prosecution and Jacqueline Tabb triggering their duty to disclose. 
The prosecution's failure to disclose the deal with Tabb should be considered under the "reasonable possibility" materiality standard adopted in People v. Vilardi for Brady violations where there has been a specific request. In People v. Ramos, 146 Misc.2d 168 (S.Ct. Bx. 1990), (cited with approval in People v. Vilardi, 76 N.Y.2d at 76) the court held that where the prosecution makes an affirmative, specific representation as to specific Brady material, a specific request will be implied.  In Ramos, a prosecution witness testified (falsely) that he did not have a criminal record.  After the verdict but before sentencing, the prosecutor learned that the witness had two misdemeanor convictions and immediately informed defense counsel and the court.  Although defense counsel did not make a specific request for the witness' criminal record, the court implied a specific request since the prosecution failed to provide the record in contravention of C.P.L. §240.45 (1)(b).    A similar result is warranted herein.  During the re-direct examination of Tabb, the prosecutor elicited from her that her Bronx case was not even discussed (6627).  Defense counsel certainly had a right to rely upon this representation.  To require them to make a specific request in the face of it is, as the court noted in Ramos, to "plac[e] form over substance."  People v. Ramos, 146 Misc.2d at 171.               
     For the reasons argued in subdivision one, it is "reasonably possible" that the failure to disclose the deal made with Tabb  "contributed" to defendant's conviction.  People v. Vilardi.    Since these Brady violations  are "seldom, if ever, excusable", there exists a reasonable possibility that undisclosed evidence might have led to a trial strategy which might have resulted in a different outcome.  People v. Vilardi, 76 N.Y.2d at 78.  


     Under the New York State Constitution, where the prosecution withholds specifically requested evidence, a defendant is entitled to a new trial if that evidence creates a "reasonable possibility" that the verdict might have been more favorable to the defendant.  People v. Vilardi, 76 N.Y.2d 67 (1990).  Under the United States Constitution, a Brady violation entitles a defendant to a new trial if it is "reasonably probable" that had the material been disclosed, the verdict would have been different. United States v. Bagley, 472 U.S. 667, 682 (1985).    In determining whether the foregoing materiality standard has been met, Brady violations must be considered collectively, not item by item. Kyles v. Whitley, 115 S.Ct. 1555, 1567 (1995).
     As argued in Point I, supra., the failure to disclose the promise made to Jacqueline Tabb, standing alone, requires that the instant convictions be vacated.  However, should this Court not so hold, a new trial is nonetheless required under Kyles because of the collective affect of the Brady violations raised in this motion and those unsuccessfully adjudicated in previous applications for post-conviction relief.
     The Brady violations raised for the first time in this motion are the following:
     1.  the prior inconsistent statements of Linda Torres (A136-146);
     2.  the prior inconsistent statement of Jacqueline Tabb (A122-135);
     3.  the corroborated information obtained from Willie Jean Davis that two other individuals - not the defendants - murdered the officers (A150-173);
     4.  the information that Adolph Porter, a Housing Authority Police Officer suspected of drug trafficking, was the true target and that the shooting was drug related (A174-196).
     In earlier applications, the state court and federal court have held that the following Brady violations, when considered separately, did not entitle the defendants to a new trial:
     5.  the suppression of the exculpatory FBI ballistics test on the .45 caliber automatic seized after defendant Bottom's and Washington's arrests;
     6.  the perjury of NYPD Detective George Simmons concerning that test;
     7.  the recantation of Rubin Scott;
     When considered collectively, the foregoing violations create a "reasonable probability" that had the defense had access to the information, the result of the trial as to each defendant would have been different.  In their statements to the NYPD, Tabb and Torres gave varying accounts of the events of May 21, 1971, including who said what, when the men allegedly left, and who was armed.
     Similarly, had the defense known of the exculpatory ballistics test and been able to expose Simmons' perjury, a major piece of scientific evidence would have been removed from the case against them.  With respect to the witness Rubin Scott, had the defense known of the threats and/or pressure placed upon him to inculpate them, the veracity of his trial account would have been successfully challenged. 
     Finally, had the prosecution properly discharged their constitutional obligations and disclosed the Davis statements and Adolph Porter information, the defendants would have been able to raise a reasonable doubt by submitting evidence that others were responsible for this crime.
     The Kyles court stressed that a reasonable probability of a different result "does not require demonstration by preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal ... [but by a] showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict ... [O]nce a reviewing court applying Bagley has found constitutional error, there is no need for further harmless-error review."

Kyles v. Whitley, 115 S.Ct at 1565-66.
     Confidence in the verdict has been undermined by the suppressed Brady and Rosario material.  Accordingly, the judgments of conviction should be vacated and the indictment dismissed.


     WHEREFORE, for all the foregoing reasons, this Court should issue an order:
     a. vacating the defendants' judgments of conviction and dismissing the indictment or, in the alternative, granting a new trial;
     b. granting such other and further relief as this Court deems just and proper.

Dated: New York, New York
       April 23, 1997             Respectfully submitted,


                                 ROBERT J. BOYLE
                                 350 Broadway
                                 Suite 308
                                 New York, N.Y.  10013
                                 (212) 431-0229

                                 ELFRIDA SCOTT-McLAUGHLIN    
                                 Center for Constitutional  Rights          
                                 666 Broadway
                                 New York, N.Y.  10012

                                 Attorneys for Defendants                           


Included in the appendix at p. 52-64 is a small sample of some of these index cards.

For this Court's convenience, a copy of Judge Lasker's decision in the federal habeas corpus proceedings is contained at the rear of Defendants' Appendix.

Although in the possession of the prosecution, the FBI ballistics test was not disclosed by the prosecution at either of the trials herein.  This issue was litigated in an earlier C.P.L. §440.10 proceeding and in defendants' habeas corpus petition. Bell v. Coughlin, 820 F.Supp. at 786.

Numerals in parenthesis refer to the trial transcript.

In September, 1971, Bryant viewed a lineup in San Francisco which contained defendant Anthony Bottom.  She did not select him as one of the shooters (Bryant: 6673, 6680-81).

In addition, included with this motion are Rosario/Brady violations for Torres, Parks as well as Tabb which reinforce the materiality of the perjured testimony.

The same standard applies under the State Constitution for Brady violations where there has been a general request for Brady material or no request at all. People v. Vilardi, supra.

The suppression of the Torres and Tabb statements, as well as one statement from Karen Parks (A147-148) also constitutes a violation of People v. Rosario, 9 N.Y.2d 286 (1961).  On a C.P.L. §440.10 application, a defendant is entitled to a new trial for a Rosario violation if the withheld material creates a “reasonable possibility” that the verdict may have been different. People v. Jackson 78 N.Y.2d 638, 649 (1991).