The sun. [volume] (New York [N.Y.]) 1833-1916, 1912-03-01
the public prosecutor, the District Attor-

the public prosecutor. the District At,or-
| ney states:
| DISTRICT ATTORNEY DID NOT SAY
| 1T WAS.
81 have made a very careful cxamina-
| tion Of all the records in my off1ce and In
the Court of General Sessions. l have had
two conferences with Mr.. Potter tthe
| pardon clerk. I have had an interview
with the convict Brandt in Dannemora
prison, and I have conferred with counsel
for the complainant and have given them
an opportunity to supply me with any
information which may be at their dis
posal. and which was not to be found
either in my Office or among the records
of the court.
ASIDE from any other phase OF this
case, on the court records alone. j am
inclined to believe that Executive elem
ency might. without injustice to the people
of the State. be extended to this defen-
dant, who has served ive years In
State prison. I cannot escape the con-
clusion that II this case. with all the
evidence obtainablc, had been submitted
to a trial jury, a reasonable doubt might
have been created in the minds Of the
jury as to whether the defendant was In
the complainants house. as set forth In
this Indictment. with burgarious intent.
and l am inclined to the belief that this
convict made his plea OF guilty to this
Indictment either under a misapprehenson
as TO what he was doing or as a victim
OF Misrepresentation as to what II In
volved. II. after having examined the
somewhat volumnous records, affidarits
and statements, your EXcelency feels
| that, in the interest OF public justice.
favorable consideration should be given
this application. | would recommend that
the sentence be so committed that the
Board of Parole may act upon this case.
Not a word here--or elsewhere In the
! report-of illegal indictment. convic-
tion and sentence" Nor by the widest
stretch of the imagination can any such
Inference be drawn from the report with
out grave injustice to the District Attor-
ney. who. II he had discovered and be-
lieved that Brandt had never been legally
| convicted and sentenced, could not have
failed to urge upon the Executive the
granting Of a ful and immediate pardon.
Instead OF such recommendation. he con-
tented himself with the mild suggestion
that the sentence should be 80 COMMITTED
that the Board OF Parole may act upon
this case: and even this suggestion is
made dependent upon "A conclusion of the
Executive that. in the interest OF public
justice. favorable consideration should be
notwithstanding his plea OF guilty. the
declaration OF P.andt that he entered
by an open door did not. in the pro-
| fessional opinion OF the District Attorney
on January 90. nullify the conviction.
how did that fact, " his mind. on Friday
night last, make such conviction Illegal?
,s JUDGE DID NOT SAY so.
The report made to me by Judge Rosal-
sky after he had received from the Dis
trict Attorney a copy Of the latter's report
and recommendation above referred TO.
| declares and states that Brandt was
legally convicted upon his plea Of guilty
after being distinctly informed from the
bench Of the nature OF the crime. the
| gravity Of the offence and the maximum
| imprisonment therefor
And yet. strange to say, while tn, pub
lie prosecutor. although not then suggest
ing the illegal conviction for which he
| now contends. hesitatlngly suggested In
| his report that Executive clemency might
| WITHOUT injustice to the people OF the
State be extended to the defendant. the
Makistrate. on the other hand. while
sternly and emphatically upholdlng the
| conviction and sentence. nevertheless de-
clares In his report to ;he Governor that
| III your Excellency should conclude from
! the evidence before you that as the result
OF perjury or subornation Of perjury the
defendant was induced TO plead guilty to
\ crime which he did not commit and that
ne IL serving Imprisonment upon "A charge
OF which he is guiltless and that justice
| iscarried-as To which | can express no
opinion for want OF knowledge OF the mat
| tcrs brought to your Excellencys atten-
tion-then the prisoner should be liber-
ated forthwith"
| am informed by lawyers for whose
ability l entertain profound respect. in
| cuding some experienced In. crmln al
practice. that the statement OF de-
fendant which. II standing by itself. would
| disprove the commission OF an alleged
| crime. does not nulify an incidental plea
OF guilty. l understand that this disputed
proposition OF law will perhaps be deter
mined by the appeal In the habeas corpus
case.
BRANDT TOLD GOVERNOR HE HAD A
| But ] call attention TO a most signi n =
cant fact-whieh of course was not before
the Supreme Court In the habeas corpus
case but which was before me when
refused pardon and which entered
largely into my consideration OF the
purely legal questions involved. The
| record OF the Court of General Sessions
indicates that Brandt entered Mr.. Schiff S
house through an open door in the base
ment. In his statement above referred to
he declares that In anticipation Of his
visit to the house he received from an in
mate OF the house key to the main en-
trance. with very specific directions as to
what he was to do with the key after
entering the house, and how the key was
TO be returned n by chance not used. In
commenting upon his statement in court
to the effect that he entered through an
open door in the basement he says in his
| hNfnFa 49,
he (Judge Rosalsky) tried to make me
confess that had forced my way into