On March
5, 2003 a criminal jury in the Superior Court, Monmouth
County, convicted alleged
racketeer, Ray Cagno. Cagno was found
guilty of conspiracy to commit racketeering and the murders of victims Angellino
and Randazzo. The first trial (2002)
ended in a mistrial when the witness for the State, Salvatore Lombardino
refused to testify against Cagno.
However, the State alleged that while leaving the courtroom at the first
trial, Lombardino gave Cagno a “thumbs up sign”, and stated to Cagno, “hang in
there kid.” At the second trial
Lombardino was not called as a witness, but two detectives for the New Jersey State
Police testified as to their observations of Lombardino at the first
trial. In summations the prosecutor
asked the jury to infer that the witness’ silence; and his prior in-court
conduct constituted evidence of Cagno’s guilt of the conspiracy between
them. The case went all the way to the
New Jersey Supreme Court which affirmed the conviction with one justice
dissenting, Justice Albin.
In Cagno
v. Warren (N.J. District Court, 2014) the federal district court for the
District of New Jersey, Judge Thompson, granted the habeas relief holding that
Cagno’s Fourteenth Amendment due process rights were violated when he was
convicted of conspiracy to commit racketeering at Petitioner’s second trial
because the state should not have been allowed to present evidence of Salvatore
Lombardino’s refusal to testify at Petitioner’s first trial. Hence, Cagno’s Sixth Amendment right to
confront all witnesses against him was violated. Citing, Douglas v. Alabama, 380 U.S. 415 (1965). In New Jersey the statute of limitations is an
absolute bar to the prosecution of the offense. State v. Short, 131 N.J.
47, 55 (1993)
Further, because the State offered
no other evidence to support a finding that the racketeering conspiracy
continued beyond the statute of limitations period, which was five-years, the
conviction could not stand. Jackson
v. Virginia, 443 U.S. 307 (1979); In re Winship,
397 U.S. 358 (1970). Both of those cases standing for the well
settled proposition, that it is a violation of a defendant’s due process rights,
for a conviction to be entered unless the state proves its case beyond a
reasonable doubt, as to each and every element of the crime.
Although
federal courts rarely grant a Writ of Habeas Corpus, this case is a good example
in which the federal district court exercised its authority and granted such a
motion. The Writ of Habeas Corpus is
usually the last line of defense to an unlawful conviction, unless the
defendant is lucky enough to discover newly discovered evidence which would
have proved his or her innocence if had been discovered at trial. In that case, the defendant can reopen the
process up again at the state court level, starting with the trial court.
Thoughts on
Truth: Veritas
Quo, “Where truth is found.”
A moral
wrong can never be a civil right.
The further
society deviates from the truth the more a society will hate that truth.
Law Office
of Vincent J. Sanzone, Jr.
Elizabeth, N.J.
Tel. No. (908) 354-7006
Dated: September 11, 2014
Post-Conviction
Relief, Writ of Habeas Corpus, Union Essex, Hudson, Morris, Bergen, Middlesex,
Ocean, Monmouth, County Criminal Defense Attorney, Jersey City, Newark,
Elizabeth, New Brunswick, Freehold, Toms River.
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