The Waterbury Democrat., 1939-08-18
Prejudice, Bias Reflected h
 Jury's Verdict OF Guilty"


 gin when the charge is completed
 I say to your honor that before you even commenced your charge in this case, the jury had their minds made up, and if they followed your honor's charge correctly and con- cisely, the verdict in this case could not, under any circumstances, be that of guilty.
 No one realizes better than my sel. in any trial such as this, when a court or jury passes upon the credibility of witnesses, it is not only the power and right of the court, but the duty of the court if the jury in passing upon the credibility of witnesses is obviously wrong and for some unknown reason has either misconceived their duty or neglected to carry out their duty.
 The credibility of witnesses for the State ir this case was of the greatest importance. They are in any case, but especially in this case. Against Thomas Kelly the State pre- sented witness as its star witness who was one of the defendants in this case, put him on the stand and vouched for his credibility. And the jury apparently believed that witt ness's testimony = that witness's name was Levy.
 The jury, in believing that witt ness's testimony, obviously disre- garded the evidence presented by the State. If your honor or any trial court presiding over a trial jury is of the opinion that the jury has found witness to be worthy of credibility where the records from his own lips show that he admitted falsehoods, then the credibility that the jury has given him cannot be maintained. And I submit, your honor, that I not only claim that the records show that Levy lied to this jury, not in one respect but in many respects, but I pointed out of the record to page after page where Levy had lied, taking his direct and cross examination, and taking his story of his third appearance before the grand jury which the State vouches for as being true. I pointed out seven deliberate lies of that witt ness, answers to which were not made by the State; a matter cer- tainly not to be pooh-poohed-cer- tainly matter which the State should answer and didn't answer be- cause it can't answer. And the jury accepted that witness's testimony and in accepting it, convicted Thom- as Kelly of the crime of conspiracy.
 I submit jury's verdict should be set aside where that verdict is based on the false testimony of a witness.
 MT. Brice and MT. Carroll, according to MT. Morgan, lied on the witness stand and MT. Alcorn, in his argu- ment to the jury, MT. Alcorn, ST. told this jury after that had been point- ed out to him that Horgan was an honest witness. If Morgan was an honest witness, his testimony that Brice and Carroll lied, certainly and completely destroyed their testi- mony.
 Coming down to your honor,s charge. As I said, your honor's charge evidenced a desire upon the part of the court to give these de- fendants fair opportunity to a just verdict. Any portion that we dis agree with is done in the most re- spectacle manner and done in the absolute sincerity that we appre- ciate your honor did everything pos- sible in assuring a fair trial. But when in making mistake and that injures the defendants in a trial case and the injury cause a jury to improperly convict them, then such injury should be the basis of set- ting aside the verdict.
 T say that your honor inad- vertently went beyond the scope of of the supreme court where a trial judge calls attention to or comments on the failure of the accused to take the witness stand and tectifying in their behalf. I, as lawyer say that in any man. ner the failure of the accused to take the stand should not be com mented on because the constitution of this state says that an accused shall not be compelled to give teS- timony against himself and the statute passed under that says that the failure or neglect of an &C., cused to testify shall not be com- mented upon to the court or to a jury. And that statute was passed by the legislature and I assume. your honor, that the legislature $ supreme in erguing laws of this state. The laws of this state can make a ruling and the legislature in its next s-ssion can wipe that ruling out by proper legislation; and the legislature in this state has said that the failure or neglect of the accused to testify shall not be com mented upon to the jury and that statute is still in the books. And 1 say that the constitutional rights of the accused and their rights un- der the statute have been violated by the comments of the court upon the failure of the accused to testify.
 I say that their rights under the Constitution of the State of Con- necticut and the United States of America has been violated. They have been deprived of their rights and and have been convicted with- out due process of law.
 Rule Violated
 "In passing upon the question of innocence or guilt of the accused person, however, the jury may take into consideration the fact that the accused did not testify and. there by, among other things, did not sub- init himself to cross-cXamjuaiion.' In all due respect to your honor. I say, inadvertently your honor has violated the ruling lad down
 And I say that cross examination is a legal process of extracting from the lips of witness an admlssion of his guilt. It is the strongest form of legal process. if it may please the coura, of extracting any. thing from the lips of the accused hy cross examination. with admis- efale ..,.,~ttr.x.iN0 ataA .sx.Ssp fl.A