Memoranda-B: Reply in Support of Motion to Vacate Judgement



              -against-                                                        Indictments
                                                                                    5696 1/4 /71
HERMAN BELL, ANTHONY BOTTOM and              6183 1/2 /71





Preliminary Statement

     This memorandum is respectfully submitted in response to the prosecution's memorandum dated July 2, 1997 and in further support of the defendants' motion to vacate their judgments of conviction.


1. Laches Is Inapplicable To C.P.L. §440.10 Motions.
     C.P.L. §440.10 provides that a defendant may move to vacate his/her judgment of conviction "at any time after the entry of judgment."  Thus, the statute itself imposes no time limitations on the filing of motions to vacate.  Only one subdivision of C.P.L. §440.10 (1) requires that the claim be filed with "due diligence".  Subdivision "g" requires that a defendant who has discovered new evidence must make that motion "with due diligence after the discovery of such alleged new evidence."  The subdivisions of C.P.L. §440.10 (1) which constitute the gravaman of the instant motion, i.e. subdivisions  "c", "f" and "h" do not contain a "due diligence" requirement.  Assuming ex arguendo that the defendants are responsible for some delay, the statute permits this responsibility to be considered only with respect to claims asserted under subdivision "g".  Accordingly, the defendants' claims under subdivisions "c", "f" and "h" survive.
2. Any Claim Of Laches Is Unfounded.
      "Laches" is an affirmative defense and the party pleading it bears the burden of proof on each element.  The party asserting laches must establish that there was unreasonable and inexcusable delay and that such delay prejudiced the opposing party. Macon v. Arnlie Realty Co. 207 A.D.2d 268 (1st Dept. 1994).  Mere delay, even inexcusable delay, without a showing of prejudice will not sustain the defense of laches. Meyer v. Meyer, 74 A.D.2d 945 ap dism 50 N.Y.2d 1056.  See also Ali A. Famin v. M/V Jewan, 808 F.2d 978 (2d Cir. 1987) (error to dismiss claim on laches where no prejudice shown).
     In this case, the District Attorney has failed to establish either unreasonable delay or prejudice.  When the defendants learned of the prosecution's deal with Jacqueline Tabb in late 1991 or early 1992, they immediately brought that claim to the attention of the federal habeas court and the District Attorney (A197-202).  It was the District Attorney who (successfully) prevented litigation of this claim by arguing that the defendants had not yet raised it in state court.  Having learned of the defendants' claim in 1992 and their desire to litigate it, the District Attorney cannot now assert laches. Rapf v. Suffolk County, 755 F.2d 282 (2d Cir. 1985)(lack of knowledge on part of party asserting laches is an essential element of the defense).
     Until June 13, 1994, when the Supreme Court denied defendants' certiorari petition, they were continuously litigating the validity of their convictions in federal court.  From denial of that writ until 1996, the defendants, whose lawyers had withdrawn, were actively seeking other counsel so that the instant claims could be raised effectively (See Affirmations of Robert J. Boyle sworn to August 20, 1997 and affirmation of Brian Glick attached as Exhibit A to the Boyle Affirmation).  Counsel finally agreed to take their case in 1996 and the instant motion was brought less than one year later.  This is not "unreasonable and inexcusable delay". Dante v. 310 Associates, 121 A.D.2d 332 (1st Dept. 1986), ap den. 68 N.Y.2d 607 (three year delay in instituting declaratory judgment proceeding not unreasonable).
     Moreover, the District Attorney has not established the essential element of prejudice.  The District Attorney's claim of prejudice is limited to the assertion contained in the Judge Keenan's affidavit that his memory of the events has "dimmed".   Yet, they were able to secure additional affidavits from former Detective Butler and trial ADA Robert Tannenbaum regarding the Tabb cooperation agreement.  Thus, Judge Keenan's assertion, untested by cross examination at an evidentiary hearing, is obviously insufficient to establish the type of prejudice which would warrant a finding of laches. First Federal Savings and Loan v. Capalongo, 152 A.D.2d 883 ap dism. 74 N.Y.2d 945. 
     Finally, laches is an equitable doctrine.  And the equities in this case clearly fall on the side of the defendants.  It was the District Attorney who withheld information concerning the Tabb cooperation agreement for over twenty years.  Thus, any "dimming" of memory caused by time was caused by the prosecution's own failure to comply with its constitutional obligations.  Were it not for the fortuitous discovery of the FBI teletype in an unrelated litigation and the court-ordered discovery in the federal habeas corpus proceeding, the claims raised in this motion would still be hidden.  Accordingly, the instant motion is not barred by laches.


     Except for defendants'claims regarding the prior statements of Patricia Bryant (A119-121, now withdrawn) and the Willie Jean Davis documents (addressed infra.), the District Attorney has failed to offer any evidence which contradicts the affidavits and exhibits submitted with the moving papers, attesting to the fact that none of the claims asserted herein were known to the defendants prior to late 1991 or early 1992.  Rather, the District Attorney surmises that since the 1982 C.P.L. §440.10 motion was based, in part, on some FBI documents, the defendants must have had the documents supporting the instant motion.  This supposition is an insufficient basis for dismissal of this motion under C.P.L. §440.10(3).  In any event, however, the record demonstrates that the claims asserted herein could not have been made in 1982.
     The affirmation of Brian Glick, Esq. and the affidavit of defendant Anthony Jalil Bottom (Exhibits 1 and 2 respectively) are submitted with these reply papers.  It was Mr. Bottom who filed the C.P.L. §440.10 motion pro se in October, 1982 after reviewing the documents he had obtained pursuant to FOIA.  Mr. Glick assumed representation of the defendants in 1983 and is also familiar with the FOIA documents.  Both have reviewed the documents obtained under FOIA and the exhibits submitted in support of the instant motion.  They swear that the Jacqueline Tabb cooperation agreement, the Tabb, Torres and Parks interviews and the Adolph Porter material were not part of the FOIA production and were unknown to them until late 1991 or early 1992.  In addition, attached as Exhibit 3 to these reply papers, are the only "Newkill" documents which were produced in the 1980's pursuant to the FOIA.  The Tabb, Torres, Parks and Porter material were not part of these documents.   Indeed, even in Bin Wahad v. FBI, the Tabb and Torres documents were virtually unreadable due to redactions when produced in the early 1980's.  (Compare A122-128 with Exhibit 4 to Boyle Aff.).
     C.P.L. §440.10 (3)(c) permits a court to deny a motion to vacate only if the defendant was "in a position to raise the ground or issue underlying the present motion but did not do so."  Because the documents supporting the defendants' present claims were not available during the pendency of their 1982 motion, C.P.L. §440.10(3)(c) does not apply.
Willie Jean Davis Documents
     Defendants agree that some of the Willie Jean Davis documents were disclosed during the voir dire portion of the defendants' second trial in 1975.  Yet the prosecution was in possession of this material as early as October, 1971 when that FBI report was provided to Chief of Detectives Albert Seedman (A105).  That fact was unknown at trial, unknown during the defendants' direct appeals and unknown at the time of any previous C.P.L. §440.10 motion.  Accordingly C.P.L. §440.10(3)(c) is not a bar to this claim.


1. The Knowing Use Of Perjured Testimony Of Jacqueline Tabb.

     There is substantial proof to support the allegation that the prosecution suborned perjury when Jacqueline Tabb denied that she expected her testimony to result in any benefit in her Bronx indictment.  That claim is supported by an official report of the Federal Bureau of Investigation (A122-128).  In response, the District Attorney has failed to rebut this claim with "unquestionable documentary proof".  Instead, they argue that this report is not reliable because the source of the information, Edward Jenkins, is not sufficiently identified.  Alternatively, they argue that no cooperation agreement existed because Judge Keenan, Robert Tannenbaum and Detective William Butler "cannot recall" any deal.  Finally, they claim that even if there was an agreement with Tabb, that deal would not have survived her January, 1972 flight.  Each of the District Attorney's arguments are factually and legally unsound requiring, at a minimum, that this Court hold an evidentiary hearing on defendants' claim that the prosecution knowingly used perjured testimony.
     Brady v. Maryland requires that a prosecutor disclose exculpatory information, not merely documents containing exculpatory information.  Accordingly, it is irrelevant whether A122-128 was either in the possession of the prosecution or is admissible evidence.  If a deal existed with Jacqueline Tabb, it was the prosecutor's duty to disclose that deal and/or correct her perjurious denial of it irrespective of whether the deal was memorialized in writing. People v. Novoa, 70 N.Y.2d 490,496-497 (1987); People v. Lantigua, 228 A.D.2d 213 (1st Dept. 1996); People v. Conlan, 146 A.D.2d 319 (1st Dept. 1989).
     In any event, the evidence submitted in support of this motion is more than sufficient corroboration to guarantee the trustworthiness of the information contained in the report.  Inspector Edward Jenkins, the identified source of the information, is not some mysterious official, as the District Attorney, who places his name in quotes, would like this Court to believe.  According to the NYPD's own files, Edward Jenkins headed the instant investigation in the 6th Detective District where it was located (A99).  It was Jenkins who was responsible for preparing reports for Chief of Detectives Albert Seedman and who headed the raid which resulted in Jacqueline Tabb's arrest (A100-104; A103, ¶14). 
     Jenkins also was a liaison between the New York County District Attorney's Office and the FBI.  FBI Agent John Brady, one of two FBI agents who worked as full-time liaisons with the NYPD, spoke with Jenkins on a daily basis (Brady: Ex. p. 151-152).  His partner, Lawrence Monroe, spoke with Jenkins at least a couple of times per week (Monroe: Ex. 8, p. 73).  Agent Robert McCartin, whose job it was to prepare the FBI Newkill teletypes, also recalls meeting with Jenkins (McCartin: Ex. 6, p. 113).  Former ADA, now Judge, John Keenan testified at his 1991 deposition that Edward Jenkins was the NYPD official person with whom he had the most contact (Keenan: Ex. 5, p. 49-50, 71).  Accordingly, since Jenkins regularly communicated with Judge Keenan and was in daily contact with the FBI, it is likely that his information regarding the NYDA's deal with Tabb was accurately transmitted to that agency and memorialized in A122-128.
     The date of the document provides additional corroboration.  At trial, Tabb testified that she began cooperating on October 28, 1971 (5810).  The document memorializing the deal made to induce that cooperation is dated October 30, 1971, just two days later.
     The affidavits submitted by the District Attorney do not rebut this.  Judge Keenan does not deny the existence of any deal with Jacqueline Tabb.  He claims, based upon an admittedly "dimmed" memory, that he has "no recollection" of any agreement. (DA Ex.G ¶6).  Similarly, Robert Tannenbaum, who was not even assigned to the case in October, 1971, only asserts that he was "not aware" of any promises to Tabb (DA Ex. E, ¶4).  William Butler's affidavit adds nothing to the District Attorney's case.  Butler makes no claim that he was even present during any discussions between the DA and Tabb.  Furthermore, as even Judge Keenan testified, it was Edward Jenkins, not William Butler, with whom the DA primarily communicated (Keenan: Ex. 5, p. 49-50, 71).  And it was Jenkins, not Butler, who regularly communicated with the FBI.
     The District Attorney asserts that the prosecution had no reason to conceal Tabb's cooperation agreement since Tabb admitted that she had been threatened by Judge Keenan and NYPD Detective Olga Ford in 1971 with loss of her children if she did not cooperate.  But by the time of the first trial in 1974, Tabb had been released from civil jail and was living with her children in an apartment paid for by the District Attorney (5836).  As the District Attorney admits, the Bronx indictment was still pending.  Thus, it constituted the only "hold" that the NYDA had on Ms. Tabb for her continued cooperation.  And true to their word, when the trial concluded, Tabb was never returned to the Bronx on that outstanding warrant (5970-5971).  By concealing the existence of the agreement, the defense was unable to expose that in 1975, Tabb still had a powerful reason to curry the favor of the prosecution.
     Assuming, ex arguendo, that the trial prosecutor, Robert Tannenbaum, did not know about Tabb's cooperation agreement, that fact is irrelevant.  The FBI document notes that the "New York County District Attorney's Office" was the party that brokered the deal (A123).  Judge Keenan, Tannenbaum's supervisor, admitted that he was responsible for Tabb in October, 1971.   Addressing the identical issue in People v. Steadman, supra., the Court of Appeals found as follows:
In the final analysis, however, it does not matter whether the trial assistants were genuinely unaware of the [cooperation agreement] or not.  A prosecutor's obligation to correct false testimony given by a prosecution witness and to disclose Brady material are duties exercised by individual prosecutors and shared by the prosecutor's office as a whole.  Promises made to a defendant by one prosecutor are generally binding on others in the criminal law enforcement system and certainly promises made by a superior are binding on subordinates in the same office.

People v. Steadman, 82 N.Y.2d at 8, citing Giglio v. United States, 405 U.S. 150, 154 (1971); People v. Novoa, 70 N.Y.2d at 498; Matter of Chaipis v. State Liquor Authority, 44 N.Y.2d 57, 64; People v. Conlan, 146 A.D.2d at 331. (emphasis added).
     The District Attorney claims that even if there was a deal with Tabb, that deal would not have survived her January, 1972 flight from custody.   Not only is this argument self-serving, it is belied by the record.  Tabb testified that she fled in January, 1972.  A bench warrant was issued in the Bronx on February 10, 1972 (DA Ex. p. 5)  Tabb was re-arrested in July, 1972 as a material witness in this case (5821).  Yet, although Tabb was in continuous police custody and/or in an apartment paid for by the NYDA until 1975, she was never returned to the Bronx to face the lodged warrant.  At the second trial, Tabb testified that the last time she appeared in court in the Bronx was on October 15, 1971 when bail was set (5970-5971).  Thus, contrary to disputing the existence of a deal, the fact that Tabb was, for three years, never produced in the Bronx is further evidence that she would never face those Bronx charges.
     Notwithstanding the foregoing, assuming ex arguendo that the NYDA terminated Tabb's deal after her flight, that would not relieve the NYDA of their constitutional duty to disclose that her initial cooperation was induced by a promise that charges against her would be dismissed.  The defense would have the right to argue, and the jury a right to know, that Tabb had a motive, in October, 1971, to fabricate evidence linking these defendants to the May 21, 1971 murders. People v. Novoa, supra.   Moreover, the prosecutor still had a duty to correct her perjurious denial of any discussion with the District Attorney about her Bronx indictment (5948, 5970, 6158, 6164). Giglio, Steadman, Novoa, Savvides.
     The materiality standard urged by the District Attorney, i.e. that a conviction be vacated only if it is shown that "but for" the perjured testimony, the defendant would not have been convicted, applies only to situations where the prosecution did not know and could not have known of the perjury.  However, in the instant case, the deal that Tabb denied under oath was brokered by the District Attorney and therefore it is irrelevant whether the trial assistant had actual knowledge of it. Giglio; Steadman.  Thus, the defendants are entitled to a new trial "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Wallach, 935 F.2d 445, 456 (2d Cir. 1991); People v. Steadman, 82 N.Y.2d at 8.
     The use of Tabb's perjury, standing alone, or when considered with the other Brady and Rosario errors, clearly satisfies this standard. Kyles v. Whitley, 115 S.Ct. 1555, 1567 (1995).  The first trial in this case ended in a mistrial because the jurors could not reach a verdict.  At least five jurors, who heard the identification testimony of Valerie Wall of defendant Bottom and the fingerprint evidence against defendant Bell voted to acquit those defendants.  Eleven jurors voted to acquit defendant Albert Washington. (See Bloom affirmation, ¶2) The only new evidence presented at the second trial was the following:  the story told by Ruben Scott concerning "meetings" in San Francisco and the alleged burial of Officer Jones' weapon and the identification testimony by Patricia Bryant of defendant Bottom.  Scott recanted prior to the second trial and again shortly thereafter.  Ms. Bryant's identification testimony was seriously undermined by her failure to identify defendant Bottom when she viewed a lineup in 1971.  The probative value of the .45 caliber weapon seized in San Francisco after defendant Bottom's and Washington's arrests three months after the shootings has now been greatly diminished by both the disclosure of ballistics expert Detective Simmons'perjury and the FBI ballistics test results which failed to identify that weapon as the one which was used to kill the officers.
     As argued in the moving papers, Jacqueline Tabb provided much-needed corroboration for Linda Torres and Karen Parks, whose stories were inconsistent with their own prior statements and inconsistent with each other.  In addition, there are additional prior statements of Torres and Parks, discussed infra., not known to the defense at either trial, which could have affected the jury's  evaluation of those witnesses' credibility. 
     The District Attorney knew that Tabb was an important witness.  During summation, he readily admitted that Torres, Parks and Tabb provided inconsistent testimony.  But, contrary to Torres and Parks, he highlighted the strong will of Jacqueline Tabb.  Tabb, he argued, only cooperated because everyone else did.  He argued that she had no motive to lie and that no one could control what she would say:
     Then Jackie Tabb testified she was arrested on October 14, 1971 with Francisco Torres and said had it not been for the fact that somebody had opened up and talked, she never would have testified.  There was no point anymore.

     She knew the police had learned something.  And who did they learn it from.  On October 27th, Linda Torres.  October 28th, she then decided she is going in and testifies.

     When you consider the testimony of Jackie Tabb, ask yourself, please, is there anyone, anywhere from viewing her on that witness stand who can control her, who can tell her what to do or say?  That's what I mean when you judge the demeanor of a witness.

     This is a strong woman.  She is nobody's stooge.  Nobody is about to tell her what to do or say if she doesn't want to do it.  There is nobody feeding her anything.  This is a reluctant witness.

                             (T. 9264-9267).
We now know that Ms. Tabb did not "reluctantly open up" because Linda Torres began to cooperate.  She agreed to cooperate because the District Attorney offered her something in return: dismissal of her Bronx indictment.  And she committed perjury when asked about that deal's existence.   Had the District Attorney complied with the law and corrected that perjury, he could not have portrayed Tabb the way he did in summation.  Certainly, it is clear that knowledge of her perjury "could have affected" the judgment of the jury as to all three defendants, United States v. Wallach, supra. and therefore was not harmless beyond a reasonable doubt. People v. Steadman, supra.
     Defendant Washington's case for reversal is particularly compelling.  There was no evidence linking Albert Washington to the scene of the shooting.  Indeed, it was not even the prosecution's theory that he fired a weapon or was even present at the Colonial Park Housing Projects on May 21, 1971.  Thus, the credibility of Tabb's account of his alleged comings and goings on May 21, 1971 has extraordinary significance.  Defendant Washington must prevail under any standard of materiality.
     The documentary proof submitted by defendants, when considered with the deposition testimony and the abandonment of Tabb's Bronx prosecution, is compelling proof that a cooperation agreement existed.  At a minimum, a hearing is required to enable the defendants to prove their allegations and the prosecutor's culpability so that this Court can apply the appropriate materiality standard. People v. Baxley, 84 N.Y.2d 208, 213-214 (1994).  The equivocal denial of a deal with Tabb, via the affidavits of Judge Keenan, ADA Tannenbaum and William Butler, does not constitute such "unquestionable documentary proof" which would justify denial of defendants' motion without a hearing. People v. Picotti (affidavits of prosecutors denying deal not "unquestionable documentary proof").  See also People v. Session, 34 N.Y.2d 254; People v. Ausserau, 77 A.D.2d 152 (4th Dept. 1980); People v. Wedra, 56 A.D.2d 903 (2d Dept. 1977); People v. Malone, 25 A.D.2d 769 (2d Dept. 1966).  Indeed, under nearly identical circumstances, the Court of Appeals has held that the denial of a hearing constitutes an abuse of discretion. People v. Baxley, supra.; People v. Qualls, 70 N.Y.2d 863 (1987).  Accordingly, this Court should grant defendants' motion to vacate, or, in the alternative, order an evidentiary hearing on this claim.

b. The Remaining Brady/Rosario Claims.
     1. The FBI Documents Are Chargeable To The District Attorney.

     Under both Brady and Rosario, the prosecution is chargeable with production of documents in their custody and that of a law enforcement agency investigating the case. Kyles v. Whitley, 115 S.Ct. at 1568; People v. White; People v. Ranghelle; People v. Maynard.  The District Attorney herein was chargeable with production of the FBI documents for two reasons.  First, the prosecution had actual knowledge of the FBI's involvement and therefore knew, or should have known, that their files contained discoverable material. Second, because Newkill was a joint FBI/NYPD investigation, the prosecution had a duty to produce any Brady and/or Rosario material in the FBI's possession.
     ADA Tannenbaum had five copies of a 108 page FBI summary report in his file at the time of defendants' second trial.  He was also aware that one of his chief witnesses, Jacqueline Tabb, was interviewed by the FBI on the night of her arrest (5939).  These facts placed him on notice that the FBI had reports which would be discoverable pursuant to Brady and Rosario. People v. DaGata, 86 N.Y.2d 40 (1995) (prosecution chargeable with production of FBI notes not in his possession).  Nor is the fact that the trial court conducted an in camera inspection of the FBI documents Tannenbaum did produce sufficient.   If a defendant has been denied evidence to which he is entitled, his rights have been violated irrespective of whether the court has conducted an in camera review. People v. DaGata 86 N.Y.2d at 188-189; People v. Gilligan 39 N.Y. 2d 769 (1976)
     The District Attorney cannot dispute that a prosecutor's Brady and/or Rosario obligations extend to the local police department. Kelly 88 N.Y. 2d 248 (1996); Maynard 80 Misc. 2d 279 (N.Y. Cty., 1974).  However, where there is a joint investigation with another  law enforcement agency, the prosecution is chargeable with  knowledge of production of Brady and Rosario material in the possession of the second agency. People v. Knapp 57 N.Y. 2d 161; People v. Fuschino 59 N.Y. 2d 91.
     The NYPD and FBI documents and the Bin Wahad v. FBI depositions prove conclusively that Newkill was a joint FBI/NYPD investigation (See Reply Affirmation ¶¶ 15-23 and Exhibits referred to therein).  Accordingly, the District Attorney was chargeable with producing the Tabb, Torres and Parks interviews as well as the information on Willie Jean Davis and Adolph Porter.

     2. The Documents Are Rosario and/or Brady Material.
     In People v. Consolazio, 40 N.Y.2d 446 (1976) the Court of Appeals held that Rosario requires the production of prior statements of the District Attorney's witnesses irrespective of the manner in which they are recorded.  So long as the source of the information is a trial witness, the document must be disclosed. Id. at 453. (abbreviated notes capsulizing witnesses' responses to questions must be disclosed).  Accordingly, the Tabb, Torres and Parks interviews should have been produced.
     The FBI documents also constitute proof that the NYPD and/or NYDA possessed Rosario material which was not disclosed.  The source of the Jacqueline Tabb and Linda Torres statements is the District Attorney, New York County (A122, 140).  The information from Karen Parks was provided by Sergeant Maas of the NYPD (A147-149).  The information furnished the FBI was likely gleaned from NYPD memoranda.  Accordingly, a hearing is required to determine whether the NYPD and/or NYDA withheld additional Rosario materials at the defendants' trials. People v. Adger, 75 N.Y.2d 723, 725 (1989); (upon appropriate showing, court must conduct factual inquiry to determine whether Rosario material has been withheld. See also People v. Poole, 48 N.Y.2d 144, 149 (1979).

     3.   The Tabb, Torres and Parks Interviews Create A Reasonable Possibility That The Verdicts Would Have Been Different.

     The District Attorney concedes that there are statements in the Tabb and Torres interviews which conflict with their trial testimony.  But they argue that the suppressed interviews do not warrant reversal because any inconsistencies are allegedly consistent with guilt.  But the District Attorney misses the point.  The issue for the jury to determine was whether Tabb, Torres and Parks were credible.  The inconsistencies contained in the documents would not even be admissible for their truth.  The jury would have been instructed to consider them in evaluating the believability of their testimony.  But deprived of the documents, the defendants could not impeach Tabb and Torres, and the jury could not observe their demeanor when confronted.
     The District Attorney also argues that the statements could not have helped the defense given alleged defense strategy during cross examination.  But as the Court of Appeals stressed in People v. Perez, 65 N.Y.2d 154 (1985), the whole point of requiring disclosure prior to a witness' testimony is to enable the cross examiner to develop a strategy based upon the prior statements:
An attorney preparing for cross examination must not only decide what questions to ask but what questions to avoid asking ... The essence of the Rosario requirement, that the prosecutor supply all of a witness' statement or statements relating to his testimony, is that a judge's impartial determination as to what portions may be useful to the defense is no substitute for the single-minded devotion of counsel for the accused.

People v. Perez, Id. at 159-160.  The fact remains that the defendants herein were deprived of prior statements of the witnesses Tabb, Torres and Parks and that the statements of Torres and Tabb were at variance with their trial testimony.  Given the importance of their credibility to the prosecution's case, it is evident that the failure to provide these statements, when considered with the perjury of Ms. Tabb discussed supra., creates a reasonable possibility that the verdicts would have been different. People v. Jackson, 78 N.Y.2d 638 (1991).

     4.  Willie Jean Davis Material.
     The 108 page FBI memorandum containing the Willie Jean Davis interviews and corroborating information was provided to NYPD Chief of Detectives Albert Seedman on October 7, 1971 (A105).  It was not until February, 1975, during the second trial, that some of this material was disclosed to the defense.  Moreover, there is no evidence that the interviews with Harvey Williams (A170, 173), Shirley Jackson (A171), and/or Doris Hill (A172) were ever provided to the defense.  
     Brady material must be disclosed at a time when it can be of use to the defense People v. Steadman, supra.  Counsel was in the midst of voir dire at the second trial when they learned that Willie Jean Davis identified photographs of defendants Bottom and Washington.  They apparently never learned that her information was corroborated.  This untimely disclosure was tantamount to a complete failure to disclose.
     A "reasonable possibility" of a different result (or under the United States Constitution, a "reasonable probability") does not require a showing that the defendant would probably have been acquitted. Kyles v. Whitley, 115 S.Ct. at 1566.  It is a showing that the suppressed material, when considered collectively undermines confidence in the outcome of the trial. Id. at 1566 citing United States v. Bagley, 473 U.S. 667, 678 (1985).  In the instant case virtually every aspect of the case against the defendants has been called into doubt: the testimony of Ruben Scott, the ballistics test on the weapon seized in San Francisco, a motivation to frame the defendants because of their membership in the Black Panther Party under COINTELPRO, and, now, the knowing use of perjured testimony, prior inconsistent statements of witnesses and other suppressed Brady material.  Under Kyles, there can be no confidence in the outcome of this trial.  Accordingly, this Court should vacate the judgments of conviction and order a new trial.


     WHEREFORE, for all the foregoing reasons, this Court should issue an order:
     a. vacating the judgments of conviction; or, in the alternative,
     b. ordering an evidentiary hearing on the defendants'claims;
     c. granting such other and further relief as this Court deems just and proper.

Dated: New York, New York
       August 20, 1997            Respectfully submitted,


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

                                  ALBERTO SANTOS
                                  Center for Constitutional  Rights
                                  666 Broadway


The remaining pages of the FOIA production - none of which concerns Newkill - will be provided to this Court upon request.

The District Attorney's argument that Tabb could still be prosecuted is ridiculous.  Since Tabb was in police custody, released, never returned on the warrant, and made no effort to avoid prosecution, any charges would have to be dismissed pursuant to C.P.L. §30.30.

If, after a hearing, the defendants establish that the trial prosecutor had actual knowledge of Tabb's perjury, a new trial is "virtually automatic". United States v. Wallach, 935 F.2d at 456.

The District Attorney maintains that ten pages of FBI documents concerning Willie Jean Davis were turned over during voir dire.  There are twenty-four pages concerning Ms. Davis submitted with this motion (A150-173).