NOTE: This is a redacted version of what was filed -- we have made minor adjustments out of privacy concerns. In addition, it may have slight differences with the actual motion filed because of the imperfections of converting the file to prepare it for the web. We have attempted to fix those changes, but there may be differences that we did not catch. The footnotes to the affirmation are listed at the end.

SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: THIRD DEPARTMENT
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THE PEOPLE OF THE STATE OF NEW YORK, :
Respondent, :
-against- :
DAVID K. WONG, :
Defendant-Appellant. :
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WILLIAM E. HELLERSTEIN, an attorney admitted to the practice of law in the courts of this State, does hereby affirm under the penalties of perjury that the following statements are true, except those made on information and belief, which he believes to be true:

1. I, together with Daniel Medwed, Esq., Jaykumar Menon, Esq., and Jeffery Fogel, Esq. represent the defendant-appellant, David K. Wong, who is currently incarcerated in Shawangunk Correctional Facility, Wallkill, New York pursuant to his conviction in Clinton County Court on August 24, 1987, for the murder of Tyrone Julius in the yard at Clinton Correctional Facility on March 12, 1986.

2. I make this affirmation in support of defendant-appellant's application to the Honorable Anthony V. Cardona, Presiding Justice, pursuant to New York Criminal Procedure Law s. 460.15, for a certificate granting him leave to appeal from an order and decision of the County Court, Clinton County (Hon. Timothy J. Lawliss, Acting County Court Judge) rendered on the 30th day of September, 2003, denying, after an evidentiary hearing, defendant-appellant's motion made pursuant to New York Criminal Procedure Law s. 440.10 (1) (f), (g), and (h) to vacate the judgment of the Clinton County Court entered on August 24, 1987, convicting him of murder in the second degree and sentencing him to 25 years to life imprisonment. The order and decision of the County Court is annexed as Appendix 1.

3. I am Professor of Law at Brooklyn Law School and the Director of the law school's Second Look Program Clinic. The clinic investigates claims of innocence by New York prison inmates. Before I joined the Brooklyn Law School faculty in 1985, I was the Attorney-in-Charge of the Criminal Appeals Bureau of the Legal Aid Society of New York for 17 years. In post-trial proceedings prior to the instant motion, defendant-appellant was represented by Mr. Menon and other attorneys affiliated with the Center for Constitutional Rights. In March 2001, Mr. Menon sought my advice and counsel about Mr. Wong's case. In December 2001, the Center's President requested that I serve as co-counsel for Mr. Wong. As Mr. Wong's case, in my judgment, met the stringent criteria that governs the Second Look Program's acceptance of cases, I agreed to serve in that capacity.

4. Leave to appeal the order and decision of the County Court is warranted because there are important issues of law and fact that should be reviewed. Continued incarceration of an innocent person violates the Due Process Clauses of the New York and United States Constitutions. The evidence presented at the hearing in County Court established that David K. Wong is innocent of the murder for which he is serving a 25 year to life sentence. At the least, the evidence satisfied the preponderance of the evidence standard of CPL s. 440.30 (6) and the requirements of CPL s. 440.10 (1) (g) because it created the probability "that had such evidence been received at the trial the verdict would have been more favorable to the defendant." Judge Lawliss's ruling to the contrary was against the overwhelming weight of the evidence and as a matter of law constituted an abuse of discretion and a denial of due process.

5. Judge Lawliss's denial of our motion that he recuse himself, which was based on his close personal relationship with District Attorney Cantwell and Mrs. Cantwell 1 and the judge's apparent bias in favor of corrections personnel and against sentenced prisoners, as evidenced in his written decision, also raises a serious question of law as to whether defendant-appellant's rights to a fair hearing before an unbiased court and to due process of law under both the New York and U.S. Constitutions were violated. A third issue meriting review is the State's failure, at trial, to provide the defense with prior statements of a prosecution witness in violation of the defendant's constitutional rights under Brady v. Maryland, 373 U.S. 83 (1963) and People v. Rosario, 9 N.Y.2d 286 (1961).

6. Additionally, there is already pending before this Court an appeal by defendant-appellant from an order and decision of the Clinton County entered on March 4, 2002 (Hon. Patrick McGill, J.) denying a previous motion made pursuant to CPL s. 440.10 to vacate his conviction on grounds distinct from, but related to, the instant motion. Leave to appeal the County Court's order of March 4, 2002, was granted by certificate, issued by Presiding Justice Anthony V. Cardona on May 21, 2002. This Court has on several occasions granted defendant-appellant's application for enlargements of time to perfect that appeal pending resolution by the County Court of the motion to vacate that is the subject of the instant application. Now that the County Court has decided the motion adversely to defendant-appellant, a grant of the instant application for leave to appeal would allow for a comprehensive review of his case. Indeed, I believe this matter to be of such importance that I ask the Court to grant my request to argue the instant application in person, despite the fact that such request is disfavored by the Court's policy as reflected in s. 800.2 and s. 800.3 of the Court's rules.

BACKGROUND

7. On March 12, 1986, about 4 p.m. on a cold, snowy afternoon, Tyrone Julius, an inmate at Clinton Correctional Facility, was fatally stabbed in the prison yard. Richard LaPierre, a corrections officer stationed in a tower 80 feet high and 130 yards from the stabbing and looking into a prison yard consisting of 600 to 700 inmates dressed similarly, identified David Wong (hereafter "defendant") as the perpetrator and he was apprehended by corrections personnel stationed in the yard.

8. On July 7, 1987, trial commenced in Clinton County Court before the Honorable Charles H. Lewis. Defendant was represented by assigned counsel, Robert A. Kagan, Esq. and Michael J. Howley, Esq. The only witness to identify David Wong at trial other than Officer LaPierre was Peter Dellfava, an inmate, who testified that he had been standing 15 feet away from Julius when Julius was stabbed, and that David Wong was the stabber. The prosecution introduced no other evidence, forensic or otherwise, that tied Wong to Julius's murder and there was not the slightest suggestion that Wong had a motive for the crime. Mr. Wong testified that he was innocent and four other inmates, Reginald Powell, James Irby, Noah LaSore, and Tse Kin Cheung, supported his claim.

9. On July 13, 1987, the jury found defendant guilty of murder in the second degree and, on August 24, 1987, he was sentenced to 25 years to life imprisonment, to run concurrently with the robbery sentence of 8 1/3 to 25 years he was then serving.

10. On July 19, 1990, this Court affirmed defendant's conviction, People v. Wong, 163 A.D.2d 738 (3d Dept. 1990), and leave to appeal to the Court of Appeals was denied on November 6, 1990. 76 N.Y.2d 992 (1990).

11. On November 1, 1996, this Court denied defendant's petition for a writ of error coram nobis that was based on an ineffectiveness of appellate counsel claim.

12. On October 7, 1997, the County Court denied defendant's motion to vacate his conviction made pursuant to CPL s. 440.10 in which he asserted various claims of ineffective assistance of counsel and prosecutorial misconduct. A newly discovered evidence claim based on affidavits from seven inmate witnesses who exculpated defendant was rejected on the ground that the affidavits were cumulative and that the witnesses could have been discovered before trial. On October 8, 1998, this Court affirmed the denial of the motion and, on April 16, 1998, leave to appeal to the Court of Appeals was denied.

13. On May 17, 1999, defendant filed a petition for a writ of habeas corpus in the U.S. District Court for the Northern District of New York. While that petition was pending, defendant filed another motion pursuant to CPL s. 440.10 in County Court, Clinton County. That motion presented a claim of ineffective assistance of counsel due to counsel's failure to properly investigate potentially exculpatory evidence, and a Brady/Rosario claim based on the prosecution's failure to furnish the defense with the complete Bureau of Criminal Investigation (BCI) Report of the incident. On July 10, 2000, the district court granted defendant's request to hold the habeas corpus petition in abeyance pending resolution of said motion by the County Court.

14. On March 4, 2002, Judge McGill of Clinton County Court entered an order and decision denying defendant's CPL s. 440.10 motion. On May 21, 2002, Presiding Justice Cardona granted leave to appeal that order and decision. As noted earlier, this Court has granted our several requests to hold that appeal in abeyance pending resolution in the court below of the matter that is the subject of the present application for leave to appeal. Our latest request for an enlargement was filed in October 2003.

THE INSTANT MOTION

15. Unlike defendant's previous CPL s. 440.10 motion that was based in part on newly discovered evidence, the denial of which was affirmed by this Court on April 16, 1998, the instant motion was filed in August, 2002 in Clinton County Court and is based on a recantation by one of the prosecution's two eyewitnesses, Peter Dellfava, and on the sworn statements of eight witnesses who, for the first time, identified by name or physical description, a Dominican inmate, Nelson Gutierrez, as the killer of Tyrone Julius. This evidence, for the first time also, provided Gutierrez's motive for Mr. Julius's murder, namely to exact revenge for a beating which Julius, together with several other black inmates, had inflicted on Gutierrez while he and Julius were imprisoned together at New York City's Rikers Island Penitentiary. The evidence as to Gutierrez's motive was corroborated by [the wife of Tyrone Julius]. We alleged that this evidence could not have been discovered through the exercise of due diligence at the time of, or in the immediate aftermath, of defendant's trial in 1987.

16. On January 27, 2003, Judge Lawliss issued an order and decision granting defendant's motion to the extent of ordering an evidentiary hearing.2 The hearing was held on April 10 and 11, 2003 and concluded on May 16, 2003. The defense called 10 witnesses: Peter Dellfava, who repudiated his trial testimony as a complete fabrication, six inmate witnesses who saw the stabbing and identified Gutierrez either by name or physical description as the killer, two inmate witnesses, who were not in Clinton at the time of the incident but who were friends of Gutierrez to whom Gutierrez admitted killing Julius, and [the victim's widow], whose testimony corroborated the defense claim that her husband had been murdered by a Dominican inmate seeking revenge for a beating he had received at Rikers Island from her husband.

THE EVIDENCE AT THE HEARING

17. Peter Dellfava, now 48 years old and living in Rochester New York, took off from his job as a roofer and endured an 11 hour bus trip to Plattsburgh "[t]o make what I did wrong right." (H. 4/10, 36).3 What Mr. Dellfava stated he "did wrong" was that he lied to the Grand Jury and at trial when he testified that he saw David Wong stab Tyrone Julius. (H. 4/10, 36,51). Testifying at the hearing, he stated that he was "nervous" and "scared" because he "did something that I have to stand up and own up to." (H. 4/10, 39).

18. Mr. Dellfava testified at the hearing that he was in Clinton Correctional Facility in March 1986 serving a [approximately 2.5] to 10 year sentence for forgery and for his escape from Camp Gabriel Correctional Facility; a [approximately 1.5] to 3 year sentence for the escape had been imposed to run consecutively to his 1 to 7 year sentence for the forgery. (H. 4/10, 39,40). Mr. Dellfava stated that, on the evening of March 12, 1986, after Julius had been stabbed, Dellfava was summoned from his cell by a corrections officer, Sergeant Nelson, whom he had known from the time he had worked as a porter in the Special Housing Unit. (H. 4/10, 43). Nelson asked him if he had been in the yard that day and when Dellfava replied that he had, Nelson asked him what he had seen. Initially, Dellfava told Nelson that he had seen a black person stab Nelson. He said the stabber was black because he "was going with the odds being that the majority of the population in that facility anyway was mainly black and I . . .just started to try and work it whatever way I could." When Nelson said to him "'what do you mean black, wasn't it an oriental person,'" Dellfava responded, "'well, you already know what happened, why are you asking me?'" (H. 4/10, 44). And, from Nelson's mention of an oriental person, "it just kind of went from there." (H. 4/10,44).

19. Mr. Dellfava explained that he went along with Nelson's suggestion of an oriental person "to get the hell out of that prison" (meaning Clinton) (H. 4/10, 73), and into a medium security facility or "anywhere outside those walls." (H. 4/10, 44). From his discussion with Nelson, Dellfava knew that he would have to be relocated. Thus, he asked Nelson about the possibility of a transfer to Orleans County, where his wife lived. After he agreed to testify against David Wong, he was, in fact, transferred to Orleans Correctional Facility. (H. 4/10, 45). Although Dellfava was a felon who had also escaped, he was granted parole after his initial appearance before the Parole Board because "that was part of the deal I made with the sergeant as far as a parole recommendation that if I went ahead and testified that they would make a recommendation for my release along with securing me into another facility." (H.4/10, 46).

20. Mr. Dellfava explained further that after his conversation with Sergeant Nelson, he was shown David Wong's picture and identified him as the stabber. Nelson was satisfied with his answer and Dellfava then "took it further" with the State Police. He stated that it was never his claim that Nelson suggested that he should identify Wong as Julius' killer but that Nelson's statement about "an oriental person" "just made it easy" for him. (H. 4/10, 83-86).

21. Mr. Dellfava maintained that at trial he lied when he testified for the prosecution that he had seen David Wong stab Julius: "I didn't see any of it. I didn't even see who committed the murder period 'cause all I saw was the body laying on the ground after people started opening up the area around the body. That's the only time I was aware of anything." (H. 4/10, 42). Contrary to his trial testimony, the first time he saw David Wong was when he was shown Wong's mugshot by Sergeant Nelson. The only other times he saw Mr. Wong were at trial and at the hearing itself. (H. 4/10, 42).

22. Mr. Dellfava also testified that he decided to come forward and tell the truth when, approximately two and a half years ago, he was paid a surprise visit at his home in Rochester on a Saturday evening by Joseph Barry, a defense investigator, and that the visit "was the first chance I got beside today to actually tell the truth." (H.4/10, 47). As a result of his interview with Mr. Barry, he executed an affidavit on January 5, 2001 (Defendant's Exhibit A in evidence) and subsequently took a plane to New York City to have his statement tape recorded at the offices of the Center for Constitutional Rights. Asked why he decided to tell the truth when Barry interviewed him, he stated "Would you want to live with this? You'd find it real difficult." (H.4/10, 47).

23. Mr. Dellfava explained that he did not come forward before Joseph Barry came to see him because he was "afraid of getting put back in jail for number one lying. Number two, being on parole." (H. 4/10, 51). He always knew that the consequences for lying were "perjury" and "as far as I understood the law, I could have and still probably can be [prosecuted for perjury]."(H. 4/10, 94). He told Barry the truth because he was having difficulties living with a lie. (H.4/10, 133).

24. Mr. Dellfava also stated that not only was he receiving no benefit for testifying on Mr. Wong's behalf, it was costing him both "financially" and "'emotionally:" financially, because he lives from paycheck to paycheck and had to take a week off to come to court; emotionally because the woman with whom he lives was upset about his coming to court and because "[i]t's just been a real hard time. You live a lie, then you got to face up to it. It's tough for me." (H. 4/10, 50,51). Other than the defense agreeing to cover his travel, hotel and food expenses, he was not promised anything, and did not want anything. When asked why, having lied to both the Grand Jury and the trial jury, he should now be believed, he replied: "That's a good question. I'm not here to get anything. Actually I am. I'm here to try and make what I did right, wrong right. It's very important to me in order to do this so I'm getting something out of it." (H. 4/10, 50).

25. Samuel Cabassa, an inmate at Shawangunk Correctional Facility, is serving a 30 year to life sentence for attempted murder and various assaults. (H. 4/10, 139). He testified that on March 12, 1986, around 4 p.m., Diogenes Filpo, a fellow inmate with whom he had "a pretty strong" and "respectful" relationship, approached him in the prison yard and told him that something was going "to go down." He asked Filpo what was going to happen and Filpo pointed to another inmate, Nelson Gutierrez, and told him that Gutierrez had been in Rikers Island, where he had been jumped by several black inmates, one of whom was Tyrone Julius. Filpo also said that the black inmates had beaten Gutierrez severely, that Gutierrez was going to exact revenge, and that it was going to happen in the B block line area in the yard. (H. 4/10, 141-143). Filpo pointed to Gutierrez, whom Cabassa had seen previously in the yard on a couple of occasions and had been introduced to, and he told Cabassa that Gutierrez was the inmate "who was going to do it." (H. 4/10, 142, 143).

26. Mr. Cabassa also testified that immediately thereafter, he approached his friend, Leon Taft, to warn him to be careful when he lined up because "'something's going to go down, someone's going to get hit.'" (H. 4/10, 142). He warned Taft because Taft also lined up in B block. (H.4/10, 142). No sooner had Cabassa issued the warning when Taft, who was facing him, looked past Cabassa, and said, "'it just went down.'" Cabassa then turned around and saw Julius fall face down in the snow with his hands inside his pockets. He then saw Gutierrez walk away from Julius's body while stuffing something inside the pocket of his hooded sweatshirt. Gutierrez approached a group of inmates and blended into the group as the group walked away. (H. 4/10, 142, 153).

27. Mr. Cabassa recalled, that after the incident, Filpo and a couple of other Hispanic inmates approached him and asked whether he would communicate with some of the black inmates who were considered group leaders to let them know that the stabbing was not "a racial thing" so that it would not create racial tension between Hispanic and black inmates. (H. 4/10, 176-77). Filpo had come to him, Cabassa explained, because Cabassa was regarded by other inmates as a person who had "a good rapport with many different ethnic groups, Italian, black, Jamaican." (H. 4/10, 177). Accordingly, Cabassa spoke to several black inmates and explained that the stabbing had stemmed from something that happened at Rikers Island and that it was not done with a racial motive. (H. 4/10, 178). He believed that his efforts to communicate this information succeeded because during his remaining three months at Clinton, there were no incidents of a violent nature that were attributed to the stabbing. (H. 4/10, 178). When questioned by District Attorney Cantwell as to whether it was "fairly common knowledge for members of the Hispanic and of the black groups that this was not David Wong doing it, it was a payback for something at Rikers Island, " Mr. Cabassa replied: "I think the whole facility except the administration knew that . . .David Wong was framed with the case that he actually had nothing to do with." (H. 4/10, 179).

28. Mr. Cabassa also testified that he had been introduced to David Wong at Clinton by several Native American inmates with whom Wong associated but that Wong's "English was not too easy for him at that time." (H. 4/10, 163). He did not see Wong in the yard on the day of the incident (H. 4/10, 152), and was never questioned by corrections or police officials in connection with their investigation. (H. 4/10, 145). Although he met up with Wong after he returned to Clinton in May 1987 and when they were both in Auburn in 1996, he never told Wong what he knew about the case, beyond sympathizing with Wong's plight. Even when they again met in Shawangunk in September 2001, he did not talk about the case except to ask Wong if he was still pursuing anything "legal" about the case. (H. 4/10, 145-148). To do so, he explained, "would endanger my life as far as an inmate in a correctional system." (H. 4/10, 148).

29. Mr. Cabassa testified that he changed his mind about coming forward after he read an article in the New York Times (Defendant's Exhibit B in evidence) about the case and learned from it that Gutierrez had died: "I had no problem coming forward especially after reading the article and finding out that he [Wong] had been granted another opportunity, and I told him if it makes any difference, I can give an affidavit to your lawyer, find out if he wants me to do that." (H. 4/10, 170-71). Because Gutierrez was dead, he no longer feared any reprisals because he was not "doing any harm to Mr. Gutierrez by coming forward and revealing what I know." (H. 4/10, 175).

30. Mr. Cabassa testified further that, in May 2002, Wong came back from an attorney visit with me (your affirmant) and that Wong told him that I would like to speak to him. He and I met and he explained to me "everything that [he] knew about the case," (H. 4/10, 150). At my request, he subsequently signed an affidavit (Defendant's Exhibit C in evidence). (H. 4/10, 151). He stated that I was the first defense attorney he had ever spoken to about the case. (H. 4/10, 145).

31. Diogenes "Freddy" Filpo, who is incarcerated at Green Haven Correctional Facility and is serving a long sentence for murder and conspiracy, testified that he and Nelson Gutierrez were good friends who frequently ate and jogged together. He noted that Gutierrez did not jog normally because one leg was "higher" than the other because of an incident at Rikers Island. (H. 4/10, 185, 186, 215). Gutierrez told Filpo that when he was at Rikers Island, three black inmates "jumped" him, and threw him from the third floor and broke his leg. Gutierrez also told him that he was assaulted by the black inmates because he was using the telephone. (H. 4/10, 215,216).

32. Mr. Filpo also testified that, on March 12, 1986, he and Gutierrez were walking together in the prison yard when Gutierrez pointed to a black inmate who was exercising and stated that he was one of the individuals who had "jumped him" in Rikers Island. Gutierrez told Filpo that he was going to look for "something," and walked away. When he returned, he told Filpo that he was going to do "something" to the black inmate. Before Gutierrez returned to stab Julius, Filpo told Cabassa to tell the black inmates "something happened" but that it was something personal, not racial. Cabassa then left to speak to a friend. (H. 4/10, 187,188). Filpo also warned another inmate, Maximo Vidal, to stay away because Vidal was due to be released soon and Filpo did not want Vidal to be blamed for what was about to happen. (H. 4/10, 189, 190).

33. Mr. Filpo testified further that he was standing about 15 feet from Tyrone Julius and saw Gutierrez stab him. Julius fell face down with his hands in his pocket and Gutierrez walked into a crowd of inmates. (H. 4/10, 188). About a week later, he met Gutierrez, who told him that an innocent man had been blamed for what happened in the yard. (H. 4/10, 190).

34. Mr. Filpo also testified that, although he had seen David Wong in the "courts" in the yard, he never spoke to him and that he did not learn, until 1993 or 1994, that Wong had been convicted for the Julius murder. He was never interviewed by police or corrections officials or by any defense lawyers in connection with Wong's trial. He also never attempted to tell anyone what he knew about the stabbing because "that's nothing good in the system," meaning that he could be harmed or killed. He met saw Wong in Auburn in 1993 and told him that he knew Wong did not kill Julius. But he spoke to no one else about the case until he received a letter from the Center for Constitutional Rights and was visited by their investigator, Joseph Barry. Barry showed him a lot of photographs and asked him if could recognize anyone. Although he recognized Gutierrez's photograph, he did not tell that to Barry because he was not sure if Gutierrez was alive or dead. Filpo changed his mind after he learned from Gutierrez's cousin that he had died. Consequently, after meeting with me, he signed an affidavit on July 2, 2002 (Defendant's exhibit D in evidence), and included with it his hand drawn diagram of where the key individuals were in the yard when the stabbing occurred.. (H. 4/10, 191-94).

35. [The widow of Tyrone Julius] testified that she married Tyrone Julius in December 1974 and had three children with him. She is currently [working at an insurance company.] For ten years previously, she was [a court officer in New York City; before that, she worked for the NYC Police Department.] (H. 4/11, 4,5).

36. [The widow of Tyrone Julius] testified that she and Tyrone separated in early 1980 but that their separation was amicable and that they remained very good friends: "He always called and he was always in contact." In November 1983, Tyrone was arrested for murdering a person who had shot him previously and he was confined at Rikers Island awaiting trial. From Rikers Island, Tyrone would telephone her "at least once, sometimes two times a day almost every day." On one such occasion, she and Tyrone were talking on the telephone when the following occurred:

. . .I heard him say to someone, What did you say? And he sounded
agitated when he said it, and he said "Ronnie, wait a minute," and my
nickname is Ronnie, . . .and then I heard a noise, like the phone went
bad or dropped. I heard -- it sounded like rumbling around, and I held
on and I kept -- and then he came back to the phone eventually, and I
said, "Tyrone, what's wrong," and he said -- I have difficulty, but he
said, "This" MF-er "wants me off the phone. I'm not giving up the
phone. It's my time. I cracked him in the head with the phone." And
I said to him, "Tyrone, try not to fight," and he says, "No," you know,
"These Americans (sic) [Dominicans]4 think they run this place. He
thinks he runs this place, but I'm not giving up my time on the phone,"
and that was it. That was basically the discussion of the day.
(H. 4/11, 8,9).

37. [The widow of Tyrone Julius] testified further that after this conversation, she did not hear from Tyrone for several days -- which was "very unusual." When she finally heard from him, he said he had been in "the hole," and that he and the person with whom he had fought had both been in the hole. (H. 4/11, 9,10).

38. [The widow of Tyrone Julius] also testified that after her husband's death, she filed a Notice of Claim against the State but withdraw her lawsuit because she had received two threatening phone calls. In the first call, the caller said "'Bitch, you better back off. Bitch you better leave it alone.'" The caller had an Hispanic accent. All that she remembered of the second call was that it was a man's voice. (H. 4/11, 9-13). She has never met David Wong and never heard his name until a New York Times reporter called her in 1999. (H. 4/11, 14).

39. Teofilo Fernandez, who is incarcerated at Shawangunk Correctional Facility, and is serving a lengthy sentence for murder and weapons possession, testified that he knew Nelson Gutierrez from the 1A Block at Rikers Island where they were both incarcerated in 1984. At that time, Gutierrez had a broken leg. (H. 4/11, 21,22).5 When Fernandez arrived in Clinton, in 1986 or 1987, he again met Gutierrez. After attending church one morning, he and Gutierrez were walking together when Gutierrez reminded him that a black man had broken his leg at Rikers Island, said that he had killed the man (H. 4/11, 24, 25, 28), and that "'the Chinese is paying for it. I'm not paying for anything.'" (H. 4/11, 28). Fernandez said that he had not heard about the Julius murder until Gutierrez told him about it; Fernandez did not know Julius's name until David Wong's lawyers mentioned it to him. (H. 4/11, 36-38).

40. Mr. Fernandez testified further that, in 2002, he met David Wong for the first time in Shawangunk. Up to that time, he told no one what he knew about the case because "it was a secret". But when he learned from Sam Cabassa that Gutierrez had died, he told David Wong that he knew something about the case and asked Wong if he could speak to his lawyer. David said he could and Fernandez spoke to Mr. Menon and then with me. Fernandez stated that he came forward because Gutierrez was dead and "Mr. Wong is paying for something that he never did." (H. 4/11, 31-35).

41. Shakim Allah, who is serving a lengthy sentence at Southport Correctional Facility for murder and attempted assault, testified that on March 12, 1986, he saw a Dominican inmate come up from behind another inmate, whom he did not know, and stab him. The inmate fell face down with his hands in his pocket. Prior to the stabbing, the Dominican inmate had told Allah that he had a problem with two inmates who were at Clinton, the inmate who was subsequently stabbed and an inmate known to Allah as "Iron Mike." The Dominican told Allah that when he was on Rikers Island, a group of inmates had assaulted him and that Iron Mike and the other inmate were involved in the assault. The Dominican told Allah that he did not want him to think that it was a racial thing between blacks and Hispanics but that he wanted to do something to Iron Mike and the other inmate. Allah told him that Iron Mike was his friend; the Dominican replied that Iron Mike had been present but did not actually participate in the Rikers Island assault on him. (H.4/11, 45-48).

42. Mr. Allah testified further that, after his conversation with the Dominican, he spoke to Iron Mike, who is black, and then, because Iron Mike believed that he was going to have a problem with the Dominicans, Allah informed the Dominicans that Iron Mike was his friend and that "we were all right." (H. 4/11, 60, 61). Allah then asked the Dominicans if there was going to be a problem with Iron Mike and they told him that they were going to leave him alone, but that the "problem" also involved another inmate from Rikers Island. (H. 4/11, 67, 68). He then met Iron Mike, who had come out of quarantine, and they both went to another area of the yard, and walked around the yard a couple of times. (H. 4/11, 61)

43. Mr. Allah stated further that when it was time to line up, he saw an inmate come from behind Julius and stab him. He was 10 to 15 feet away at the time and the inmate who stabbed Julius was the Dominican inmate who had spoken to him earlier. He never learned the Dominican's name but he recalled that he walked with a limp. Immediately after Julius was stabbed, Allah saw the Dominican walk into the crowd, take off his hooded sweatshirt, and pass it to someone else; beneath the sweatshirt, the Dominican had on an unhooded sweatshirt. (H. 4/11, 86). Mr. Allah also stated that he again met the Dominican twice, once right after the incident and then about a year later in Attica. On neither occasion did they speak about the incident. (H. 4/11, 50-53).

44. Mr. Allah also testified that prior to the incident, he had seen David Wong in D Block and had served him food when Wong had been keeplocked. He did not see Wong in the yard on the afternoon of March 12, 1986, but was positive that he was not the person he saw do the stabbing. (H. 4/11, 54).

45. Mr. Allah stated that, within a matter of days after the incident, he was interviewed at separate times by investigators from BCI and the Inspector General's Office. He said to the investigators that the only thing he could tell them was that David Wong did not commit the crime. To identify the perpetrator to the investigators, he explained, is "something you don't do in prison." (H. 4/11, 55). In prison, "nobody rats." If you do, "then your life is in danger." (H. 4/11, 56).

46. Mr. Allah never spoke to David Wong about what he had seen and he was never interviewed by his lawyers. In 1995, he received a letter from the Center for Constitutional Rights and responded that Wong did not have anything to do with the crime and that he would be willing to testify to that in court. (H. 4/11, 58). Allah met up with Wong in Auburn in 2000 and he mentioned that he had been visited in Comstock by an investigator named Barry. He did not identify the stabber by name because he never knew it. (H. 4/11, 89-91).

47. Umar Abdul El Aziz is serving several lengthy consecutive sentences for robbery and is incarcerated in the Auburn Correctional Facility. He testified that, on the afternoon of March 12, 1986, he was coming down the hill in the yard with a group of other inmates and was walking toward his line. He noticed that an inmate was standing in the middle of a circle of inmates. The inmate had his hands in his pockets. Mr. El Aziz, who was about 50 feet away from the inmate, saw two other inmates come up behind the inmate -- "a short guy, Spanish dude, a Spanish individual, and one was a little taller than the other, and he made a motion towards the side of the individual's neck and he kept walking." (H. 4/11, 104-107). After the inmate who was stabbed fell, the stabber and the other inmate walked through the crowd toward El Aziz. As they approached, he saw the stabber and the other inmate exchange sweatshirts. (H. 4/11, 123). He described the stabber as about 5'9" or 5'10", light-skinned, and stated that he walked with a limp. (H. 4/11, 108-09).

48. Mr. El Aziz also testified that no one had ever spoken to him about the case and that he did not take it upon himself to apprise law enforcement officials about what he had seen, because "[b]eing in prison . . .most of my life, I understand what happens to people who snitch." "We get hurt." (H. 4/11, 132). However, in 1997, he signed an affidavit (Defendant's Exhibit H in evidence) after being informed by another inmate, Albert Noel Washington, that some attorneys were looking into the case. (H. 4/11, 114). Mr. El Aziz has never met or spoken to David Wong. (H. 4/11, 111). While testifying on direct examination, Mr. El Aziz became emotionally distressed and a recess was declared. When he returned to the witness stand, he explained that his distress resulted from the fact that although he, himself, was a criminal and would likely spend the rest of his life in prison, Mr. Wong is "an individual doing 17 years for nothing. That bothers me." (H. 4/11, 111,112).

49. Otilio Serrano is serving a [approximately 4.5] to 25 year sentence for kidnapping, armed robbery and assault and is incarcerated in Green Haven Correctional Facility. He testified that in March 1986, in Clinton, he knew David Wong because they were in the same company. When he first met Wong, they would greet each other but Serrano "couldn't hardly understand him because he could barely speak English at the time, very little." (H. 4/11, 158-59). On one occasion prior to March 12, 1986, he assaulted David Wong and bloodied Wong's nose. (H.4/11, 160-61).

50. Mr. Serrano testified that, in Clinton, he and Nelson Gutierrez were in the same company but he knew Gutierrez only by his first name. (H.4/11, 172). On March 12, 1986, he saw Gutierrez "come up behind this other individual and stabbed [sic] him in the back." "I believe it was in the neck." (H.4/11, 162). At the time, Gutierrez was wearing a green sweatshirt with a hood and green pants. (H.4/11, 175-76). After the stabbing, Gutierrez then got in the back of the block line with Serrano and with " his [Gutierrez's] people, a couple of Dominican kids." (H.4/11, 165, 166). One of the Dominican inmates who was with Gutierrez at the time of the stabbing was a person known to him as "Freddy." He again saw "Freddy" on the bus in which they were transported by the Corrections Department to the courthouse for their testimony in the hearing in this case. (H. 4/11, 177).

51. Mr. Serrano also testified that he told investigators that they had the wrong man. He emphasized to them that he and Wong had fought but that Wong would not even fight back. But when he was asked who did the stabbing, he said he did not know. (H. 4/11, 167, 168). He stated that when he returned from speaking to the investigators, Gutierrez stopped him and asked him what happened. Gutierrez told him that "he was in Rikers Island with him [Julius] and that they had problems, but he told me that he had problems, did something to his mother." (H. 4/11, 163). He told Gutierrez that he would never tell because he was not a rat. (H. 4/11, 168). However, at the hearing, he stated that "I been holding it in my chest for too long, for a lot of years. I've been holding it. I knew it was wrong, but I just kept holding it." (H. 4/11, 170).

52. Mr. Serrano testified further that he came forward when Joseph Barry came to see him in Great Meadow Correctional Facility in 2001. Barry showed him Gutierrez's picture and at first, he did not want to identify Gutierrez. But he changed his mind once Barry told him that Gutierrez was dead. Knowing that Gutierrez was dead meant "a lot" to Serrano because Gutierrez knew Serrano's brothers and his mother. By naming Nelson, who was now dead, Serrano said "I'm not really giving nobody up." (H. 4/11, 170,171). Mr. Serrano's testimony on direct examination ended with him stating: "I swear, I swear to God, I swear to my mother. She's the only parent I got left, that man there is innocent of the charges." (H. 4/11, 171).

53. Melvin Edwards is serving a 25 year to life sentence at Gouverneur Correctional Facility for murder. He testified that, by March 1986, he had been in Clinton for about two years and that he knew Tyrone Julius. On March 12, 1986, he and Julius were together in the yard when they were told to line up and return to the facility. Julius was standing about three to four feet away from him when another inmate came up behind Julius and stabbed him in the back. (H. 4/11, 191):

54. Mr. Edwards testified that he knew David Wong briefly before March 12, 1986, that he had spoken to Wong a couple of times, that Wong had lent him one of his books, and that Wong had explained to him the "differences of his culture, Cantonese, Mandarins [sic], Fukinese." On March 12, he saw Wong in the yard. When the stabbing occurred, Wong was coming of his "court," which was against the wall. He stated that Wong "wasn't even on the flats in the yard. He wasn't down in the flat part of the yard. He was still on the upper part of the yard, as we refer to as the hill." (H. 4/11, 194).

55. Mr. Edwards also testified that the day after the Julius was stabbed, he learned from another inmate that Wong had been charged for it. When Edwards found out, he spoke first to a Mr. Lawless, who was the Superintendent of Industry at Clinton. Lawless referred him to Edwards' industrial supervisor, Bill Marshall. Edwards then went to Marshall and told him that Wong was not the person who stabbed Julius. Marshall told Edwards that his "information" would be circulated. (H. 4/11, 194,195, 209). However, Edwards was never interviewed by any police or prison officials investigating the incident. Edwards did not feel free to approach corrections officers on his own because "things just don't work that way." (H. 4/11, 209) He also never spoke to any lawyers who were representing Wong. (H. 4/11, 196,197). In 1998, at Auburn, he met up with Wong, whom he has not seen since, and subsequently executed an affidavit on Wong's behalf (Defense Exhibit I in evidence). He did it out of "a moral obligation and out of a concern for a friend and someone I know who is innocent of something he shouldn't have been convicted of." (H. 4/11, 199, 208).

56. Santo Valdez Cuello, who had been deported to the Dominican Republic in 2000 after serving a sentence imposed in 1986 for murder in the second degree, testified from Santo Domngo via a teleconference arranged through the efforts of defense counsel with the cooperation of the Office of Court Administration and County Court personnel.

57. Mr. Cuello testified that he met Nelson Gutierrez for the first time in 1991 in Fishkill Correctional Facility. Cuello was introduced to Gutierrez because they were both Dominicans "and when somebody come to our prison that is another Dominican, we look out for each other and offer our help." (H. 5/16, 9,10). They lived in the same dormitory in Fishkill and he and Gutierrez developed a very close relationship 'so much so that Gutierrez called him "Compadre," meaning "Godfather;" Gutierrez wanted him to become "the godfather when he get out." (H. 5/16, 25, 10). In the course of their friendship, he and Gutierrez had many conversations about the incident in 1986 at Clinton, including at least one in which Gutierrez told him "about what happened with the leg." (H. 5/16, 23-25).

58. Mr. Cuello testified further that on one particular day in 1991, Gutierrez entered his room and " he coming close to me and sitting on my bed and say 'I gotta tell you something.'" (H. 5/16, 25). Gutierrez asked Cuello if Cuello remembered "'something happened in Clinton? Somebody got stabbed and some Chinese doing time, but he not the one who committed the crime.'" When Cuello responded that he had heard about it, Gutierrez responded that "'I'm the one who did it.'" And when Cuello replied, "'What? Yes, I heard before a lot about the case,'" Gutierrez responded, "'Yeah, you remember when I told you about my leg, that somebody jumping on me in Rikers Island? That's why I do that , the guy.'" (H.5/16, 25, 26).

59. Mr. Cuello also testified that he believed Gutierrez confessed to him because Cuello was a counselor at Fishkill and was taught how to listen to people who had problems. He thought Gutierrez had "something inside and he wanted to talk it out. I think that's why." (H. 5/16, 31). He explained that while he was in prison, he never told the authorities what Gutierrez had told him "because . . . when they label you as a snitch, you can be died (sic)." (H. 5/16, 18). He came forward because he was now in his own country and David Wong was doing time for something he did not do. (H. 5/16, 19).

THE DECISION BELOW AND WHY IT SHOULD BE REVIEWED

60. Judge Lawliss's decision is not only wrong, it is shocking. Despite the abundance of evidence that we produced, the judge refused to credit it and concluded that it did not meet the probability standard of CPL s. 440.10 (1) (g). We presented ten witnesses, seven of whom were brought to testify from prisons scattered throughout New York State. One, Mr. Cuello, testified from the Dominican Republic, and Peter Dellfava, the prosecution's witness at trial, traveled by bus from Rochester, New York to Plattsburgh to testify under oath that he had falsely condemned David Wong in order to secure his own release from Clinton. Each testified that they had been offered nothing in return for their testimony and that they had nothing to gain from testifying. In his decision, Judge Lawliss introduced each inmate witness with a description of his criminal record. Although such a reference may be appropriate as a factual matter, it is apparent that the fact that they were felons who had committed serious crimes rendered them unworthy of belief to Judge Lawliss. However, the crime for which David Wong is serving a life sentence was committed in a prison. Especially in such a case, it is the substance of each witness's testimony and his reasons for coming forward, not his pedigree, that matters. A review of Judge Lawliss's reasons for rejecting the testimony of these prisoner-witnesses reveals that, in addition to his predisposition against them for who they were, he proceeded under a very flawed understanding of human behavior inside correctional facilities. A review of his description of their testimony also demonstrates that his ultimate denial of the instant motion is founded on a skewed and erroneous description of much of the actual testimony of each of the witnesses he discusses. Oddly, when it came to the testimony of the defense's single non-convict witness, [the victim's widow], who is a former New York State Court Officer and Police Department employee, Judge Lawliss made not the slightest reference, despite its relevance, to the substance of her testimony.

61. Peter Dellfava. At the outset of Judge Lawliss's discussion of Mr. Dellfava's testimony, the judge observes that "recanting testimony is some of the most unreliable evidence known in law." (Op. at 16). However, such a generalization is not sufficient to discredit a specific recantation that is substantively coherent, is made without expectation of any personal benefit, and is made even at some peril to the recanting witness. As the Court of Appeals recognized years ago, "if the recantation be true it may in certain cases destroy the basis upon which the judgment of conviction rests. . ." People v. Shilitano, 218 N.Y.161, 170-171 (1916).

62. Judge Lawliss labeled Mr. Dellfava's testimony "particularly incredible," stated that his "demeanor wreaked of insincerity," and noted that "[h]is background includes offenses involving deception and Mr. Dellfava has used multiple aliases." (Op. at 16). The only other reason that Judge Lawliss gives for rejecting Mr. Dellfava's testimony is contained in the following statement:

The Court finds Mr. Dellfava's explanation as to why he had not come forward with the truth before this time -- he was not presented the opportunity -- incredible. Mr. Dellfava certainly had enough experience with the criminal justice system to understand what an investigator does and he knew how to make a statement to the police. Mr. Dellfava was off parole no later than the end of 1995. Even if prior to 1995 he was afraid that his parole would somehow be revoked should he refuse to support the People, that danger subsided over seven years ago.

(Op. 16). The error in this assessment is twofold. First, to the extent that the Judge faults Mr. Dellfava for not taking the initiative to approach law enforcement officials to admit that he lied , it is based on an unrealistic assumption about human behavior. It is the height of unreasonableness to fault any person in Mr. Dellfava's situation, who testified under oath as a prosecution witness, received a substantial benefit for his testimony, and who was on parole for eight years thereafter, to do such a thing because he "knew how to make a statement to the police." It is far more consistent with human behavior that when presented, for the first time, with an opportunity to unburden himself of a wrong he had committed that preyed on his conscience, a person such as Mr. Dellfava would seize it, as he did when defense investigator Barry paid him a surprise visit at his home in Rochester. However, Mr. Dellfava did a great deal more than that. Not only did he tell Mr. Barry that he had lied at trial, he followed that up by traveling from Rochester to New York to tape record his recantation at the offices of the Center for Constitutional Rights. He then executed an affidavit that set forth facts to which he later testified at the hearing.

63. Second, Judge Lawliss's discrediting of Mr. Dellfava's testimony because the danger of Mr. Dellfava having his parole revoked "subsided over seven years ago," is based on a distortion of Dellfava's actual testimony. Mr. Dellfava gave two reasons for not coming forward -- his fear of parole revocation, but even more significant, his fear of being prosecuted for perjury, his exposure to which was still extant. As he explained, "as far as I understood the law, I could have and still probably can be [prosecuted for perjury]." (H.4/10,94). Yet, Judge Lawliss omits entirely from his decision, Mr. Dellfava's expressed fear of a perjury prosecution.6 His rejection of Mr. Dellfava's testimony is simply unwarranted.

64. Judge Lawliss's discussion of Mr. Dellfava's testimony ends with his conclusion that, although he did not preside over the 1987 trial, "this Court cannot imagine that the jury gave his testimony any significant weight." (Op. 16). This beggars the imagination for two reasons. First, only two witnesses identified David Wong as the killer: Officer LaPierre looking down into a prison yard filled with 600 to 700 inmates dressed similarly, without binoculars at a crucial moment, from a distance of 100 to 130 yards -- longer than the length of a football field away -- and Mr. Dellfava, who testified that, from a distance of 15 feet, he saw Wong stab Julius. Not only is there no basis for Judge Lawliss's determination that like himself, no jury would have credited Dellfava's testimony, there is more than ample ground upon which to conclude that the jury did indeed factor Dellfava's testimony into its verdict. First, as a matter of common sense, a witness, even if he is a convict, who testifies that he was 15 feet away from the incident at the time it transpired is going to have an equal if not greater impact on the jury than a witness who was as much as 130 yards away at the time. Second, a juror who was interviewed about the case stated that "[t]he jury put a lot of stock into both of those witnesses." David W. Chen, After Stories Change, an Inmate Gets Another Chance to Appeal, N.Y. Times, April 22, 2002, pp. B1, B5, (emphasis ours) set forth as Exhibit 3 to defendant's motion papers below. Therefore, Judge Lawliss's speculation that the jury based its verdict solely on LaPierre's testimony is also unwarranted.7

65. Santo Valdez Cuello. Judge Lawliss rejected Mr. Cuello's testimony because the Court cannot imagine why Mr. Gutierrez would have any need or reason to tell Mr. Cuello that he had gotten away with murder as a conversation starter. No compelling reason was suggested as to why somebody who had committed murder and had escaped punish- ment for six years would suddenly tell a fellow inmate that he actual- ly committed murder and got away with it. (Op. 17).

But Mr. Cuello's testimony supplied many reasons why Gutierrez felt comfortable in disclosing to Cuello why he killed Julius, not one of which is mentioned by Judge Lawliss. First, as described ante, Mr. Cuello met Gutierrez for the first time in 1991 at Fishkill. They were introduced because both were Dominicans and Dominicans looked out for one another. They then developed a "very close relationship," so much so that Gutierrez called Cuello "Godfather." Second, Gutierriez's admission to Cuello was not the "conversation starter" that Judge Lawliss labeled it. Cuello and Gutierrez had many conversations about the 1986 incident at Clinton previous to the conversation in which Gutierrez admitted that he had killed Julius and that "the Chinese" was doing time for it. Third, the entire conversation took place in the privacy of Cuello's room in Fishkill while both men were sitting on Cuello's bed. Fourth, in addition to their friendship, Cuello was a counselor who had been trained to listen to people with problems and it was Cuello's belief that, on this occasion, Gutierrez came to him because he had "something inside and wanted to talk it out." Judge Lawliss also ignored entirely the fact that Mr. Cuello had nothing to gain from testifying. Cuello does not know and has never met David Wong. Cuello also lives in Santo Domingo; in order to come to the teleconference facility in Santo Domingo so that he could testify, he had to give up two days' wages because he could not travel to his job elsewhere in the Dominican Republic. (H. 5/16, 21). Judge Lawliss's conclusion that Mr. Cuello's testimony was "not plausible" is without foundation and defies reason.

66. Teofilo Fernandez. Judge Lawliss discredited Mr. Fernandez's testimony that Gutierrez had admitted to him that he had killed Julius because "Mr. Fernandez offers no explanation as to why Mr. Gutierrez felt compelled to admit to murder at their first meeting." (Op. 17). However, as Mr. Fernandez testified, this was not their first meeting. He had known Gutierrez since 1984 when they were both incarcerated in the same cell block at Rikers Island. (H. 4/11, 21, 22). Given that Mr. Fernandez had been with Gutierrez at Rikers Island and knew what had happened there to Gutierrez's leg, there was nothing unusual about Gutierrez's comfort level in telling Fernandez that he had avenged his beating at Julius's hand at Rikers Island. Thus, Judge Lawliss's reason for rejecting Mr. Fernandez's testimony is based on a misreading of the record and cannot, therefore, serve as the basis for discrediting Mr. Fernandez.

67. Umar Abdul El Aziz. Mr. El Aziz, who had never met or even spoken to David Wong, testified that he witnessed the stabbing of Tyrone Julius and described the stabber as a short, Spanish individual who walked with a limp. Judge Lawliss found Mr. Aziz's testimony "suspicious for a number of reasons." (Op.18). None of these reasons bore on the content of Mr. Aziz's testimony. First, Judge Lawless observed that "[a]t one point during the middle of Mr. Aziz's direct testimony, he began to breakdown and cry. It appeared to the Court that the crying session was just Mr. Aziz's weak attempt to bolster his credibility. It did not appear to be sincere to the Court." This is a remarkable statement for a judge to make with regard to a witness who admits to his own criminality, makes no excuses for himself, has never met David Wong or Nelson Gutierrez, and who apparently has never been trained for the theater. The hearing transcript is its best repudiation:

BY MR. HELLERSTEIN
Q. Mr. Aziz, are you feeling all right now?
A. Yeah, I apologize for it.
Q. I don't think you have to. Please tell me if my
next question is inappropriate, because it may be personal
and very private. We had all noticed that you were in some
form of distress. Was the distress related to anything about
this case?
A. Let me try to explain. I'm in jail because I
committed a crime. This guy --
Q. I didn't mean to --
A. Let me try to explain.
Q. Take your time.
A. I committed a crime, I did 19 years. I witnessed
an event of an individual doing 17 for nothing. That bothers
me.
Q. Did I understand you to say that -- I'm sorry --
(The previous answer was read by the court reporter.)
Q. Could I ask you who that individual is?
A. Wong.

(H. 4/11, 112, 113). On cross-examination, Mr. El Aziz again acknowledged his own guilt for the crimes he had committed but he contrasted his situation with that of David Wong:

Q. But just a half hour ago or so you were showing
signs that you had some emotional --
A. I seen this individual for the first time, and you have to understand
what it's like. You know, me, I'm guilty. I've committed crimes, not a
whole lot. I'll probably die in the penitentiary. Here's a guy that I know,
beyond a doubt, did not do what he did, you're accusing him of doing.
He's been 17 years in jail trying to get to this point, you see, just to be
heard, and man, that's mind boggling.
Q. Didn't seem to bother you for 17 years.
A. That's not true.
Q. Why not?
A. You see, to come face to face with this man here,
you see, is to say that, man, you know, yeah, I should have did
something before. Ten years ago he went. I sent the affidavit.
Somebody should have come to me and come to me then. Something
should have happened ten years ago. I was negligent, you see, and
he spent another, what, seven years in jail.8

(H. 4/11, 150-51).

68. Judge Lawliss's only other ground for disbelieving Mr. El Aziz's testimony was Mr. El Aziz's admiration for Noel Washington, a fellow inmate who, as described by Judge Lawliss,

was a black panther who was convicted of killing two police officers.
Mr. Washington was also Mr. Aziz's dear friend, mentor and confidante.
Mr. Aziz stated he would have given his life for Noel Washington, if he
had been asked. Mr. Aziz indicated that Mr. Washington "was loved
by everybody and he was like a mentor, a counselor. Mr. Aziz testified
that Mr. Washington had contacted lawyers in different organizations
and he indicated that he agreed that something had to be done to
right the injustice done to Mr. Wong. Subsequent to Mr. Aziz's
conversations with Mr. Washington, Mr. Aziz provided an affidavit
exonerating Mr. Wong.

(Op. 18, 19). From this relationship between Mr. El Aziz and Mr. Washington, Judge Lawliss concluded that

[i]f Mr. Aziz would have been willing to sacrifice his life for Mr.
Washington, he may be willing to provide false testimony in a cause that
Mr. Washington supported. Indeed, if Mr. Washington enjoyed the
popularity that Mr. Aziz described, Mr. Aziz may not have been the
only one so influenced.

(Op. 19). Judge Lawliss's reasoning is seriously flawed. First, his assessment is colored by his palpable distaste for a Black Panther who killed two police officers and for anyone who could admire such a person. However, in the context of prison life, Mr. El Aziz's feelings toward Mr.Washington are understandable. Mr. El Aziz and Mr. Washington were both black and both were Muslims. Rightly or wrongly, Mr. Washington also was someone Mr. El Aziz believed had "dedicated his life to the struggle of black people." (H. 4/11, 139). Whatever Mr. Washington's crimes were, in the context of prison life, Mr. El Aziz's respect for a fellow Muslim whom many prisoners considered a leader is unremarkable. Second, it does not follow, as Judge Lawliss concluded, that because Mr. El Aziz said he would give his life for Washington, he would lie in this case because Washington also had supported David Wong's cause. In fact, such speculation on Judge Lawliss's behalf betrays his already formed belief that Mr. Wong's cause was not worthy of support -- the ultimate issue that was before him. Regardless of what Mr. Washington's misdeeds were, he too may have believed that David Wong was innocent -- as did the many inmates who had no connection to Washington. Finally, Judge Lawliss's insinuation that Mr. El Aziz "may not have been the only one" influenced by Washington had no foundation in the evidence. Not one witness was even asked if he had ever heard of Noel Washington and many of the witnesses were of Hispanic rather than African American descent. The substance of Mr. El Aziz's hearing testimony was entitled to be assessed on its merits. The gratuitous treatment accorded it by Judge Lawliss was inappropriate and in error.

69. Diogenes Filpo. Judge Lawliss found fault with Mr. Filpo's testimony in several respects. Each is dealt with seriatim:

1. Under direct examination, Mr. Filpo claimed that he was identifying
Mr. Gutierrez as the murderer despite the fact that Mr. Gutierrez was
a good friend. On cross, Mr. Filpo admitted that he had no contact
with Mr. Gutierrez after 1987 and had not realized that Mr. Gutierrez
had died until he was told recently by an investigator working on
behalf of Mr. Wong.

(Op. 19). Judge Lawliss found it difficult to believe that Mr. Filpo would implicate Gutierrez who was his "good friend." However, that Gutierrez was Filpo's friend is precisely what renders Filpo's testimony credible. Apparently aware of that, Judge Lawliss questioned the extent of Filpo's friendship with Gutierrez by emphasizing Filpo's lack of contact with Gutierrez after 1987 and his unawareness of Gutierrez's death until he learned of it from Joseph Barry. As Filpo explained, Gutierrez left Clinton in 1987, while he remained there. (H. 4/10, 200,201). The absence of continued contact between prisoners who are no longer in the same institution does not degrade the friendship that was formed when they were together and readily explains why when they were together, Gutierrez felt comfortable confiding in Filpo.

2. According to Mr. Filpo, Mr. Gutierrez told him that he was
going to attack an individual for personal reasons shortly before
Mr. Gutierrez allegedly murdered Mr. Julius. Although Mr. Filpo's
description of the actual attack is confusing to the Court, it does
not appear, as opposed to other alleged witnesses, that Mr. Filpo is
claiming that there was a second individual with Mr.Gutierrez at the
time of the attack.

(Op. 19). The reason why Filpo did not so claim is that he was presumably the "second individual" who was with Gutierrez at the time of the attack since he testified that he was 15 feet away from Gutierrez when Gutierrez stabbed Julius. Thus, it would have been unnatural for Filpo to have described himself as "a second individual" when he was referring to himself. This is especially clear from Mr. Serrano's testimony that he saw "Freddy" with Gutierrez at the time of the stabbing; "Freddy" is Filpo's nickname. (H. 4/11, 177).

3. The Court has trouble with Mr. Filpo's version of events. In a
situation where you come in daily close contact with hundreds of
other convicted felons, the Court finds it incredible that Mr. Gutierrez
would find it helpful to tell a leader of a rival group that he is about
to murder one of their members, but that the murder is a personal
matter not racially motivated.

(Op. 20). Here, Judge Lawliss has the facts wrong. There was no testimony that Gutierrez announced his intentions to any "leader of a rival group." He told Filpo, who was a fellow Dominican, what he was about to do. And, as Mr. Cabassa testified, it was Filpo who informed him that Gutierrez was about to stab Julius, which testimony Filpo corroborated. (H. 4/10, 141-143, 187, 188).

4. Even assuming that the recipient of such a message accepted
it at face value, a group leader inclined to protect his own group
members would seem more likely to at least warn, if not protect,
the intended target of the attack.

(Op. 20). Here, too, Judge Lawliss is mistaken as to the facts. Cabassa was not a "group leader" of any black inmates; he is Hispanic and had a strong and respectful relationship with Filpo. In addition, as Cabassa explained, he was known by his fellow inmates as someone who had a good rapport with many different ethnic groups. (H. 4/10, 177). Thus, it is perfectly understandable why Filpo would forewarn Cabassa as to what was about to happen and to solicit Cabassa to inform the leaders of various groups of black inmates that the stabbing was "not a racial thing" so that there would be no retaliation by black inmates upon Hispanic inmates. (H. 4/10, 142, 176-77).

5. Even more fundamentally, why would an inmate about to commit
murder, tell anyone of his plans in an open yard where hundreds of
inmates could possibly overhear him.

(Op. 20). The short answer to Judge Lawliss's question is that prisoners, no less than other human beings, can and do whisper to one another. The prison yard in Clinton is large and presumably two inmates walking together, as were Filpo and Gutierrez, could converse easily without being overheard; nothing in evidence suggested otherwise. In short, Judge Lawliss's reasons for discrediting Filpo's testimony are based on his misreading of the testimony and his erroneous inferences about ordinary human behavior in a correctional facility.

70. Samuel Cabassa. What is remarkable here is that Judge Lawliss did not discuss at all the substance of Mr. Cabassa's testimony. He focused exclusively on the fact that

[a]s with several of Mr. Wong's other witnesses, Mr. Cabassa also
testified that "everyone" in the Clinton Correctional Facility knew that Mr.
Wong was innocent of this charge and that Mr. Gutierrez was the real
murderer at the time of the incident.
He then concluded that,
If true, an enormous conspiracy among hundreds of individuals involving
different groups all managed to keep this secret away from the District
Attorney and defense counsel from the time of the incident until the time
of the trial. Such an enormous and unsuccessful conspiracy is impossible
to believe.

(Op. 20,21). First, Mr. Cabassa did not testify that everyone in Clinton knew that "Mr. Gutierrez was the real murderer." He stated that everyone but the administration knew that "David Wong was framed with the case that he actually had nothing to do with." (H. 4/10, 179). Second, there was, of course, no conspiracy. Shakim Allah, Otilio Serrano, and Melvin Edwards testified that they attempted to communicate their knowledge of Wong's innocence to prison officials but that their communications were ignored. Moreover, all of the inmate witnesses, in various ways, pointed out that to have actually identified the stabber would have labeled them a snitch, and endangered their lives. Courts and experts have long recognized that prisoners cannot be expected to place themselves in such jeopardy.9 Judge Lawliss's refusal to credit the extensive testimony presented on this subject is at odds with reality and is, therefore, inexplicable.

71. Shakim Allah. Judge Lawliss discredited Mr. Allah's testimony because he found it "preposterous" that Gutierrez would forewarn Allah of his intentions with regard to Tyrone Julius and another black inmate:

Now Mr. Gutierrez is not only disclosing the plans of his
imminent attack but is disclosing that he wants a measure
of revenge on two inmates and is going up to the friend of one
of the two inmates and is advising him of the imminent assault
on the other inmate. Although Mr. Allah never claimed to be
a friend of Mr. Julius, the fact that Mr. Allah and Mr. Julius
apparently had a mutual friend in Iron Mike, would seem to
make Mr. Allah an unlikely candidate to trust with such important
information. It would seem even less likely that Mr. Gutierrez
would also volunteer his desire to harm Iron Mike, a person he
apparently knew was Mr. Allah's friend.

(Op. 21). There is nothing at all "preposterous" about Allah's testimony. When Gutierrez, whose name he did not know at the time, approached Allah, Gutierrez did not necessarily know that "Iron Mike" was Allah's friend. (H. 4/11, 74, 47). Nor was there any evidence that "Mr. Allah and Mr. Julius apparently had a mutual friend in Iron Mike." In fact, although Iron Mike was Allah's friend, Allah testified that he did not know Julius at all and had never met him. (H. 4/11, 69). Therefore, the only proper inference from Allah's description of his conversation with Gutierrez is simply that Gutierrez was concerned (as were other Dominicans such as Filpo) that there would be racial repercussions for something that was not racial.

72. Otilio Serrano. Judge Lawless rejected Mr. Serrano's testimony because

(Op. 22). Mr. Serrano's statement, as quoted by Judge Lawliss, although seemingly at variance with the testimony of every other defense witness, is less so when read in its complete context. For what Mr. Serrano said was that Gutierrez told him that "he was in Rikers Island with him [Julius] and that they had problems, but he told me that he had problems, did something to his mother." (H. 4/11, 68). Serrano's recollection, 17 years later, that Gutierrez had said "problems" can legitimately be understood as a reference by Gutierrez to difficulties with Julius other than one which refers exclusively to Gutierrez's mother. More importantly, Serrano's inarticulateness in this regard affords no reason to disregard the essence of his testimony. Not only did Serrano not consider David Wong a friend, he had assaulted Wong when they were both at Clinton.

73. Even more puzzling is Judge Lawliss's attribution of significance to the fact that "Mr. Serrano also indicated that at the time of the stabbing Mr. Gutierrez was walking with another Hispanic individual that he knew as Freddy" and that "Mr. Serrano testified that Freddy (Filpo) just happened to be on the bus with him from the Clinton Correctional Facility on the day that he testified at the instant hearing." (Op. 22). Apparently, Judge Lawliss's discreditation of Serrano's testimony is also based on his belief that Mr. Serrano concocted his testimony of having seen Filpo and Gutierrez together at the time of the stabbing when he was on the bus on his way to court. However, Mr. Serrano was designated a defense witness by us, in response to the court's request, well in advance of the hearing. Moreover, he was so designated because he had told Investigator Barry in 2001 that he knew that David Wong was innocent. In addition, both Mr. Serrano and Mr. Filpo had previously executed affidavits to that effect. Certainly, Mr. Serrano's testimony (or Mr. Filpo's) cannot be faulted because both men were placed by the New York State Department of Correctional Services in the same vehicle en route to the courthouse. For Judge Lawliss to even suggest that Mr. Serrano's testimony was worked out with Mr. Filpo as they both rode together in DOCS's transport is without basis in fact or reason.

74. Melvin Edwards. Judge Lawliss discredited Mr. Edwards's testimony because Edwards

claims that at the time that Mr. Julius was murdered, he and Mr. Julius
were standing shoulder to shoulder. No other witness testified that Mr.
Edwards was standing immediately adjacent to Mr. Julius at the time of
the attack. Mr. Edwards also testified that no one else was with the person
that did the stabbing. There seems to be no clear agreement between Mr.
Wong's witnesses as to whether the attacker was acting by himself or was
walking with another individual at the time of the attack.

(Op. 22). However, although no other witness mentioned Edwards's proximity to Julius at the moment Julius was stabbed, none testified to the contrary. Moreover, Mr. Edwards himself acknowledged that when Julius was stabbed, "it was an unexpected moment" and that he "was confused." (H. 4/11, 192, 193). Nor should it be overlooked that every defense witness was testifying to an event that happened more than 17 years ago. Judge Lawliss's insistence that all aspects of each witnesses's recollection of the stabbing dovetail precisely is unrealistic and unwarranted. Indeed, it contradicts the judge's insinuation that a conspiracy existed amongst the witnesses. What should matter is that the essence of Mr. Edwards's testimony harmonizes in its essentials with that of every other witness. 10

75. Finally, there is a glaring omission from Judge Lawliss's decision that is of overwhelming significance: he makes no mention of the testimony of [Mr. Julius's widow]. Other than note her appearance (Op. 18), the judge does not discuss at all either the substance of her testimony or her credibility. But it is [her] testimony that renders the entire presentation on behalf of Mr. Wong both logical and credible. When [the widow of Tyrone Julius] described her telephone conversation with her husband, who called her from Rikers Island, she provided a critical link to both the ethnic identity of her husband's killer and his motive. Her testimony that their conversation had been interrupted by a dispute Mr. Julius was having at that moment with Dominican inmates over the use of the telephone corroborated the testimony of Mr. Wong's other witnesses, who testified (a) to witnessing Gutierrez, who was Dominican, stab Julius and (b) to Gutierrez's statements to them which explained his motive for doing so -- to avenge the injuries inflicted by Julius on him at Rikers Island. Her testimony that she later received a threatening phone call from someone with an Hispanic accent buttressed further our theory of the case. [The widow of Tyrone Julius] had no reason to inconvenience herself personally and trouble herself emotionally in order to travel from New York City to Plattsburgh to testify on behalf of the man who had been convicted of her husband's murder. In fact, District Attorney Cantwell did not ask her a single question. [The testimony of the widow of Tyrone Julius] was both unimpeachable and unimpeached. Judge Lawliss's failure to address it at all explodes his conclusion that all of the inmate witnesses who testified on David Wong's behalf were either part of some conspiracy or that they all just lied.

76. In the face of all the evidence presented on behalf of David Wong, Judge Lawliss concluded that "[i]n stark contrast is the testimony of the People's primary witness at the time of trial, Richard LaPierre." (Op. 23). Although Judge Lawliss did not preside at trial, he expressed the belief that "[a]ny individual, particularly any individual who works in the correctional facility, would have to understand the significance and enormous responsibility of identifying another human-being as a murderer." (Op. 23,24). Not only is such an assessment irrelevant in the context of a post-trial motion pursuant to CPL s. 440.10 (1) (g), it was irrelevant to the defense theory of the case, of which Judge Lawless himself was aware -- that "[t]he focus of the challenge was not that Mr. LaPierre was incredible, but that his observations were inaccurate." (Op. 24). Although Judge Lawliss's high praise for the office of "anyone who works in the correctional facility" was irrelevant to the issues before him, it betrayed his personal bias and his inability to afford David Wong a fair and impartial hearing. It is to that issue that I know turn.

JUDGE LAWLISS'S FAILURE TO RECUSE HIMSELF ALSO PRESENTS AN ISSUE MERITING REVIEW.

77. By letter dated September 9, 2002, Judge Lawliss informed the parties that because Judge Ryan had recused himself, he had been assigned to this case.11 In his letter, Judge Lawliss informed counsel that until December 31, 1998, District Attorney Cantwell, his wife, Lori A. Cantwell, and he were law partners, that from January 1, 1999, through January 5, 2001, Mr. Cantwell served as his Court Attorney in the Clinton County Family Court, and that Mrs. Cantwell, the judge's wife, and he were members of a Limited Liability Corporation which owned the building in which their law firm operated. He stated that the building was the only substantial asset of the LLC, that it was sold in 2001, and that the corporation was dissolved in December 2001.

78. By motion dated September 26, 2002, I urged that Judge Lawliss recuse himself on the ground that his recent close personal and professional relationship with District Attorney and Mrs. Cantwell raises "a legitimate concern in a party's mind about the Court's impartiality." By decision and order entered on November 25, 2002 (App. 2), Judge Lawliss denied the motion for recusal. The denial of the motion presents for review the question whether, in these circumstances, it would have been "the better practice for the court to have disqualified itself and thus to maintain the appearance of impartiality." Corradino v. Corradino, 48 N.Y.2d 894, 895 (1979).

79. In contrast to Judge Lawliss's pre-hearing disclosure, it was not until after the testimony of Melvin Edwards, our next to last witness, that Judge Lawliss felt the need to disclose his extensive personal family relationships to corrections personnel:

THE COURT: Okay. I would like to place on the record for a moment
since the last witness mentioned a DOCS employee by the surname of Lawliss,
I have no idea who he is talking about. I did have an uncle, deceased uncle, who
did work at Corrections and retired out of Corrections. I've had other relatives
that work for Corrections. My father has 90 something first cousins, many of
which I've never met and many of whom, I'm sure have worked for DOCS and
I have no idea who he is referring to, and it's certainly not going to impact my
judgment in this case.

(H. 4/11, 218, 219). With due respect, we believe that the judge's relationship to corrections personnel did impact his judgment in this case. That impact is evident in two respects -- in his hostility and demonstrated bias, as discussed above, with respect to each inmate witness called by the defense, including Peter Dellfava, whom the prosecution relied on at trial, in his "ode" to Officer LaPierre, who did not appear at the hearing,12 and to correctional personnel universally, as reflected in the judge's statement, that "[a]ny individual, particularly an individual who works in the correctional facility, would have to understand the significance and enormous responsibility of identifying another human-being as a murderer." (Op. 23, 24). One of the most fundamental precepts of our constitutional system is that due process of law means that a person is entitled to a fair hearing before an impartial and unbiased judge. See, e.g., Ward v. Village of Monroeville, 409 U.S. 57 (1972); Tumey v. Ohio, 273 U.S. 510 (1927). Judge Lawliss's rejection of David Wong's claim, in the face of the quantum and quality of evidence that we produced on his behalf, presents the serious question of whether David Wong was accorded that constitutional guarantee.

THE BRADY/ROSARIO ISSUE

80. We alleged below, as the basis of Mr. Wong's s. 440. 10 (f) claim, that the prosecution failed to turn over to the defense statements made to Sergeant Nelson by Peter Dellfava that were inconsistent with Dellfava's trial testimony and pointed to another individual as the perpetrator. Judge Lawliss denied this claim because he found Mr. Dellfava's testimony "utterly unreliable" and that the defendant "failed to establish evidence to support his claim for relief under this subsection." (Op. 24, 25). However, in his response to our motion, the District Attorney did not deny the existence of these statements. Because there is already pending in this Court Mr. Wong's appeal from a previous denial of a CPL s. 440.10 motion that raises a separate Brady/Rosario issue with regard to portions of a BCI Report that were not turned over to the defense, review of the instant claim, together with the previous one, affords the Court a complete picture of Mr. Wong's discovery claims.

81. In sum, this Court should grant review of the ruling below because there are serious and meritorious issues of both law and fact. Even more critically, without such review, there is a severe risk that David Wong will remain in prison for the rest of his life despite the substantial quantum of evidence that supports his claim of innocence. Because the stakes are so high, scrutiny by this Court of the Clinton County Court's rejection of his claim and the issues attendant to it is essential to due process of law and the fair administration of justice.

WHEREFORE, it is respectfully requested that the Court grant defendant-appellant's application for a certificate granting leave to appeal the order and decision of the Clinton County Court rendered on September 30, 2003, and that the Court grant such other and further relief as is warranted.

____________________
William E. Hellerstein
Attorney for Defendant-Appellant David K. Wong
Brooklyn, New York
October 27, 2003

TEXT OF THE FOOTNOTES

1 The decision is set forth as Appendix 2.

2 Judge Lawliss, who is a Family Court Judge, was designated an Acting County Court Judge for this case after two County Court Judges, Patrick McGill and Kevin Ryan, recused themselves.

3 "H" connotes the hearing testimony; it will be followed by the date on which the referred to testimony was given.

4 Although the transcript says "Americans" it was our distinct recollection that Ms. Julius said "Dominicans." Our contemporaneous notes said "Dominicans" as did a local news story. By letter dated September 2, 2003, I wrote to Judge Lawliss calling attention to "this single but important transcription error." I stated further that "I did not think it necessary to burden the Court and Mr. Cantwell with a formal motion to resettle the record. If your Honor agrees with our recollection of [the actual words of The widow of Tyrone Julius], an indication of that placed in the court file of the case should suffice. If I am mistaken in this regard, I apologize and look to the Court for instruction." On September 5, 2003, Judge Lawliss wrote to District Attorney Cantwell, stating: "Within ten (10) days of the date of this letter, please advise the Court as to your position regarding the issue raised by Attorney Hellerstein." To my knowledge, Mr. Cantwell never responded to the Court's request and we never heard anything further from the Court. The Court's written decision does not mention [the testimony of the widow of Tyrone Julius] at all. Consequently, I believe it entirely appropriate for us to proceed on the basis that [the widow of Tyrone Julius] referred to "Dominicans," and not "Americans."

5 Records obtained by defense counsel from the New York City Corrections Department and introduced in evidence as Defense Exhibit K, L, and M established that Mr. Fernandez and Gutierrez's time in the New York City correctional system overlapped as did Gutierrez's and Julius's time in custody. (H. 5/16, 9-12 [first folio]).

6 Judge Lawliss's failure to refer to Mr. Dellfava's concern about a perjury charge is especially puzzling given that, at the very outset of Mr. Dellfava's testimony, District Attorney Cantwell stated to the court that Mr. Dellfava "may be entitled to his own assistance of counsel if he's going to be speaking of wrongful or unlawful conduct, specifically that of perjury" (4/10, 36-37). Although the court denied Mr. Cantwell's application, the colloquy between the court, Mr. Cantwell, and myself on this issue occurred not at sidebar, but in open court within Mr. Dellfava's hearing. Yet there was not the slightest hesitation on Mr. Dellfava's part to continue with his testimony and admit that he had lied both to the grand jury and at David Wong's trial.

7 Judge Lawliss's denigration of Mr. Dellfava's credibility at trial presents an additional issue meriting review. If Dellfava lied at trial, and there is evidence that at least one juror has stated that the jury relied on it, then Dellfava's testimony contributed to the jury's verdict. A conviction that rests on perjured testimony that goes to the heart of the case violates due process.

See, Ortega v. Duncan, 333 F.3d 102, 107 (2d. Cir. 2003). Mr. Dellfava was either truthful at trial or at the hearing below. If he was believable at the hearing, then he lied at trial. If his recantation at the hearing is not believable, then his trial testimony must be credited. Yet Judge Lawliss suggests that, too, was not the case. The judge, and perforce the prosecution, cannot have it both ways.

8 This statement strongly supports the inference that Mr. El Aziz broke down on the witness stand because he blamed himself for contributing to an innocent man having to spend a needless seven to ten years in prison.

9 See, e.g., People v. Joy, 133 Misc. 2d 779 (Monroe Co. Ct. 1986) (inmate's refusal to testify before a grand jury because of fear of being labeled a "snitch" found reasonable). See also Ted Conover, The Points That Prisoners Can Make, N.Y. Times Magazine, July 21, 2002, p. 18 ("a wounded inmate . . .won't name his attacker. . .insists that it was an 'accident' because he knows that ratting out his assailant will only make it worse next time."). This Court has even deemed "reasonable" a code of silence among corrections officers, who fear retaliation from other officers for testimony against the system. Matter of Malone, 105 A.D. 2d 455 (3d Dept. 1984).

10 Judge Lawliss's hostility, not only to the inmate witnesses who testified, but to David Wong himself, is reflected in this portion of his opinion which the judge himself admitted "is not directly relevant to the instant motion:" . . .the Court notes that Mr. Edwards testified that in 1986, he was able to communicate and speak with Mr. Wong in English "quite well." Obviously by calling Mr. Edwards, as his own witness, Mr. Wong is asserting the he is a credible witness. Mr. Edwards' testimony severely undermines the credibility of Mr. Wong's prior assertion in earlier motions that he was denied a fair trial because of the lack of a translator. Mr. Edwards' testimony makes it clear that Mr. Wong has in the past been willing to make false allegations in an attempt to vacate his conviction. (Op. 23). First, as the record shows, Mr. Edwards did not testify that he was able to "communicate and speak" with Mr. Wong "in English quite well:" Edwards, when he was asked whether he was "able to understand what he saying," replied that "[h]is English wasn't as fluent as yours and mine but I understood him." (H. 4/11, 201). That Edwards said that he "understood" Mr. Wong did not mean that in 1987, this Chinese immigrant was so proficient in the English language that his request for an interpreter in his discrete dialect so that he could assist in his defense of a murder charge was illicit. Whatever improper gloss Judge Lawliss felt necessary to place on Mr. Edwards's testimony, other defense witnesses, such as Messrs. Cabassa and Serrano, alluded at the hearing to Mr. Wong's language difficulties in 1987 and it is revealing that Judge Lawliss makes no mention of their testimony. Because this issue is irrelevant to the matter at hand, there is no reason for us to discuss further the evidence on this issue at the hearing and in prior proceedings. What is germane, given Judge Lawliss's own admission that this subject was not relevant to this proceeding, is the reason behind his need to advert to it at all.

11 By letter dated August 26, 2002 to Administrative Judge Plumadore , Judge McGill, who had decided Mr. Wong's previous CPL s. 440.10 motion, also recused himself because his recently hired part-time law clerk, Michael Howley, Esq., had served as David Wong's co-counsel at trial.

12 The shortcomings of Officer LaPierre's trial testimony are apparent even from the abridged description of it in Judge Lawliss's decision. Judge Lawliss acknowledged that "Mr. LaPierre did testify that his initial reaction to the incident, without binoculars, was that the inmate who struck the other was white and that only after using the binoculars and focusing on Mr. Wong was he able to tell the inmate was 'oriental.'" (Op. 7). However, LaPierre's trial testimony was a great deal shakier than that. Contrary to Judge Lawliss's assumption that LaPierre identified the stabber as "oriental" immediately after the stabbing, LaPierre testified that this did not happen until the inmate whom he believed was the stabber reached the fence across the yard and turned his face towards the tower. (T. 7/7, 34/381). LaPierre also had to admit on cross-examination that he said in the grand jury "that it was hard to tell," whether the person by the fence was "oriental" or white; his Unusual Incident Report, written on the day of the incident, contained the entry that the stabber "appeared to be white." (T. 7/7, 34,35/381/382). LaPierre also gave inconsistent testimony about another important identifying feature. At first, he testified that the assailant was wearing gloves. (David Wong was wearing dark gloves when he was detained. (T. 7/6, 135/311). LaPierre contradicted himself when he testified later that the stabber had white hands (T. 7/7, 38/385), and made no mention in his Unusual Incident Report or in his grand jury testimony, that the individual he claimed was the stabber had worn gloves. (T. 7/7, 38/385).

As Judge Lawliss himself recognized, it is not our claim that Officer LaPierre perjured himself. It is that, given the circumstances surrounding the incident, especially from his distant vantage point, LaPierre could have been mistaken. More importantly, the issue before Judge Lawliss was not the worth of LaPierre's trial testimony, but whether the plethora of evidence that we presented at the hearing created the probability that had a jury heard it, its verdict would have been different.

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