The Lindbergh Kidnapping Hoax
Bruno Richard Hauptmann's Extradition
Hauptmann's Connection with the Aldinger Family
Extradition Hearing in Bronx
Extradition Appeal Document
Original Appeal June 1935
Read a Debate about the legality of the Bronx extradition hearings
Hauptmann Should Not Have Been Extradited
Posted on the
LKH Public Forum
Wed Aug 29 2001
Lets put these sick events in order:
A *New York Times* article quotes Foley as saying: "...the employment records showed that Hauptmann quit work at the Majestic at 1p.m. the day of the kidnapping". And quoted Wilentz as saying: "The police know definitely that Hauptmann did not work those hours, nor did he put in a full day of work on March first..." (Scaduto 282).
Fawcett filed the original Writ of Habeas Corpus in October because he saw the timesheet indicating Hauptmann worked on 3-1. When Morton ignored the Subpoena, thereby risking Contempt of Court, and the coverup begins...
In order to ruin Hauptmann's alibi that he was working on 3-1, Reliant Property Management, Assistant Treasurer, Howard Knapp testifies. Unbelievably, he testifies that those payroll records (ending Mar 15th.) do not exist.
"Our records,....."do not indicate that any such records exist at this time..."or at that time either" (Kennedy 223).
After these obvious lies, Hauptmann and Fawcett lose the hearing. Fawcett, knowing that the timesheets ending March 15th will prove Hauptmann worked on the 1st, files an appeal which stays the extradition.
As a result of Knapp's testimony, Joseph Furcht, who was Superintendant of Majestic and Hauptmann's boss, was tracked down. Furcht writes an affidavit which says in part:
and worked throughout that entire day until 5 p.m., subsequent thereto they worked there the 2nd, 3rd, and 4th days of March 1932 from eight o'clock in the morning until 5 p.m. in the afternoon. proving what Fawcett already knew and tried to prove at the hearing - that Hauptmann worked on March 1st. Furcht attaches a copy of documentation proving employment on the 1st to the affidavit. Additionally, E.V. Pesia, the Employment Agent verifies Hauptmann's employment on the 1st.
Fawcett files his appeal based on this evidence concerning Furcht and Pecsia.
Wilentz appears before the press and says: "The police at no time were in possession of the payroll..." (Kennedy 226)
We know this was a lie because of the receipt Scaduto found:
10-29-34 Receipt from NYPD:
Received from Asst. District Attorney Edward Breslin, the following enumerated records, to be used in the case of the State of New Jersey vs. Richard B. Hauptmann:
1 Carbon copy of payroll for period ending March 15, 1932
Signed for by Detective Cashman and winds up with Inspector Walsh.
Oct 19th, Fawcett's appeal is denied by Bronx Appeal Court Five Judge Panel, and the Writ of Habeas Corpus dismissed.
The reason for this is:
The new evidence was in conflict with evidence already heard, they said, and issues of fact should await the trial of the action (Kennedy 226)
So Knapp's perjured testimony is what made Hauptmann extraditable. Without it, there would have been no extradition and Hauptmann would have remained in NY on extortion charges...
On Oct 23rd, Furcht is brought to a "closed door meeting" with Wilentz and produces a second affidavit. VDers say what you will, but the important part is:
If I were to refer to this book as of March 1, 1932, it would be possible for me to determine whether or not the particular workman worked a full day...I do not know whether or not those records are still available, but they were when I left in December 1932.
So in just a few short days, Furcht was "worked over" into casting doubt on his previous statements by Wilentz...sound familiar? But looking at the important part, you can see where Furcht's heart is. Too bad he never was called to testify. They were never able to "turn" Pescia though and he stuck to his statements throughout...
See his letter posted on this website made
available by Ronelle @ http://www.lindberghkidnappinghoax.com/pescialetter.html
Lets not forget that the Furcht/Pescia documentation attached to the original Furcht Affidavit also "disappears".
BTW...Morton's Trial Testimony (p.1906):
Q: While you are here does your book include the time from March 1st to the 15th?
A: It does.
on the LKH Public Forum
Aug 18 2001
March 1st - Money delivered April 2nd.
was Hauptamann's position when arrested, that he worked on 3-1-32.
the supervisor of construction, Joe Furcht, as well as employment agent E.V.
Pescia, Hauptmann worked a full day 3-1-32. Furcht made a sworn statement to
this fact and attached a copy of the paysheet to it. Of course this paysheet
vanishes after being turned over to Inspector Harry Walsh. The records that were
not missing were clearly tampered with as indicated by Kennedy and Scaduto. Both
the time book and the payroll time record shown in Kennedy are clearly altered.
You can't look at them and tell me they aren't.
Knapp, assistant treasurer for Reliance Property Management, testified at the
Bronx hearing testified that the records for March 1st to 15th "do not
Receipt from NYPD:
Employment Card for Richard Hauptmann
Employment Card for John Fordyce
Carbon copy of payroll for period ending Feb. 29, 1932
Carbon copy of payroll for period ending March 15, 1932
Carbon copy of payroll for period ending March 31, 1932
Carbon copy of payroll for period ending April 15, 1932
above records are property of the Majestic Apartmanets, 72nd St. and Central
Park, West, New York City.
quotes a Times article quoting Foley as saying: "...the employment records
showed that Hauptmann quit work at the Majestic at 1p.m. the day of the
kidnapping". And quoted Wilentz as saying: "The police know definitely
that Hauptmann did not work those hours, nor did he put in a full day of work on
March first..." (page 282). Thereby proving their knowledge of records that
Knapp had testified "did not exist".
referencing Agent Seykora's report, indicates that while at Reliance Property
Management Company, where they were referred to the owners, they saw a Mr.
Birmingham. Birmingham indicated that Hauptmann's employment ended on April 2nd.
He also indicated that Hauptmann was working on April 2nd. (page 185-86
(Reliance time keeper)direct by Wilentz page 1905:
On April 2nd, 1932 tell me whether or not Bruno Richard Hauptmann worked.
No, sir; Bruno Richard Hauptmann did not work on April 2nd, 1932.
cross by Reilly page 1913-14
Then you have a check that he (Hauptmann) worked on the 3rd and 4th, haven't you
Yes, sir. (omit) Q: What day was Sunday? A:
Did any carpenters work on Sunday? A: No. (omit)
26th. Now, every one of the carpenters on the 26th of March, which you claim was
a Sunday, have check marks opposite their names just as though they worked,
haven't they? A: Yes, sir.
And April 2nd, carpenters, you have an "O," is that right?
For the carpenters.
Yes, a naught for Hauptmann? A: Yes, sir.
But you have a check marked the next day, April 3rd, haven't you?
He didn't work that day, did he? A: No, sir; he didn't. (omit)
Then you don't keep your books accurate, do you?
A: Yes, sir. Q: You think that is accuracy, do you?
Extradition Debate From the Lindbergh Kidnapping Hoax Forum
Thu Feb 21 2002
I read a post down a little ways that if New Jersey had not produced Whited at Hauptmann's extradition hearing to place Hauptmann is New Jersey on March 1, 1932, then Hauptmann could not have been extradited. (I don't know who wrote it; y'all use so many fake names today I can't identify you!). However, I do not think that the assertion about Whited's testimony is correct.
It is true that not being in the demanding state at the time the crime was committed is a defense to extradition. However, the burden of proof at the extradition hearing was on Hauptmann to show, clearly, convincingly, and conclusively that he was not in New Jersey on March 1, 1932. Please note where the burden lay; this is important, because only Hauptmann had the burden of producing evidence at the extradition hearing. In other words, New Jersey did not have to prove that Hauptmann was in Hunterdon County on March 1, 1932. Hauptmann had to prove that he wasn't there. New Jersey could (and did) produce evidence that Hauptmann was there, but that was merely to rebut Hauptmann's evidence.
Hauptmann testified himself at the extradition hearing; and produced Christian Fredericksen and Kate Fredericksen, Anna, and Howard James Knapp as witnesses. Hauptmann gave the following account of his whereabouts on March 1, 1932:
On the Monday night preceding he slept at his home at 1279 East 222d street, Bronx, New York City. He awakened at 6 on the morning of Tuesday, March 1, 1932, and at a quarter to 7 took his wife by automobile to the bakery store at 3815 Ryder avenue, Bronx, where she worked. He then took his automobile home, which took about two minutes, and went to the Hotel Majestic, Central Park West and Seventy-Second street, Manhattan, or to the employment agency on Sixth avenue looking for a job. He was not sure which. He stated he went to the agency and from there was sent to the hotel, around the 1st of March, 1932, the end of February, or early in March around the day in question. During 1929, 1930, and 1931 he worked steadily as a carpenter, but not in 1932. If he worked at the hotel, he quit at 5 o'clock, or, if not, he was at the agency all day. He then went home, changed his clothes, and went down to the bakery and met his wife, getting there between 6 and 7, where he had his supper.
On cross-examination, Hauptmann did not fare well, coming across as not really being sure WHERE he was at any given time, and certainly not clear when he began and ended his employment at the Majestic:
'Q. What day did you quit your employment with the Majestic Hotel? A. I don't know.
'Q. You don't know? A. No.
'Q. Nothing at all about the time to refresh your recollection? A. It must be in April.
'Q. In April--how long did you work for this Majestic Hotel Company? A. I cannot remember.
'Q. When you were arrested, you answered that you worked there from February right through steady every day, right through until April, didn't you? A. Yes, but after thinking, I am not quite sure.
'Q. Well, that is not correct then, is it--you did not work there from February till April, did you? A. I cannot answer.'
Christian Frederickson and his wife, while testifying that Hauptmann "usually" met and picked up his wife on Tuesday night, certainly did not help Hauptmann out. Christian stated:
"He usually called for her always on Tuesday nights and Friday nights. . . I say usually--I cannot swear he was there every week."
His wife was even less helpful, stating that she could not say whether Hauptmann was at the store or not on March 1, 1932 because she wasn't at the store that evening.
Anna testified that Hauptmann picked her up from the bakery on March 1, 1932, but she also admitted that she had originally told police she had no idea whether Hauptmann had picked her up that night; it was too long ago for her to remember.
I think even that if NO New Jersey witnesses had testified, Hauptmann would have failed to carry his burden of showing by clear and convincing evidence that he was not in New Jersey on March 1, 1932.
Finally, at least to the reviewing court, it was not Whited's testimony, but the handwriting testimony and evidence, that tipped that balance in New Jersey's favor. Apparently Hauptmann's counsel did a good job challenging Whited's credibility. The court stated:
"Bearing in mind the rule that evidence should be construed liberally in favor of the demanding state, the [handwriting samples] in my opinion for the purposes of this hearing constitute admissions of the presence of [Hauptmann] in New Jersey at the time of the commission of the crime. The testimony of the witness Whited may be weakened by the attack made on his credibility, but, considered by the same rule, it adds to the weight of the admissions showing presence. . . My conclusion is that [Hauptmann] has not conclusively established that he was not in the demanding state at the time it is charged the crime was committed."
I don't think Hauptmann's evidence met his burden of proof even WITHOUT New Jersey's evidence.
So, the conclusion that I reach is that Hauptmann would have been extradited even WITHOUT Whited's testimony.
Thu Feb 21 18:19:53 2002
New Jersey produced handwriting evidence (including the nursery note, linked to Hauptmann through Osborne's testimony) and the testimony of Whited to show Hauptmann was in NJ on May 1, 1932.
Now, easy! I know what the opnion of most on this board is about the quality of this evidence. I agree with you; I also agree that ONLY the nursery note is relevant as to the question at issue at the extradition hearing: whether or not Hauptmann was in Hunterdon County on March 1, 1932. I also agree that Whited was lying. However, in focusing on New Jersey's evidence, you miss the point. That focus is proper relating to the TRIAL. But, recall, at the extradition hearing, the burden of both production and persuasion was on Hauptmann. So, it is to the quality of HIS evidence that you must turn (again, this is for the extradition hearing ONLY).
The question, as far as the extradition hearing was concerned, was: did the evidence produced by HAUPTMANN prove clearly, convincingly, and conclusively that he was NOT in NJ on March 1, 1932? Indeed, he testified that he was not there. However, all his other alibi witnesses (including his wife!) admitted that they could not remember that night in particular (Anna, on cross-examination, and Christian on direct); and one (the bakery owner's wife) admitted that she was not even at the bakery that evening. Look particularly at Hauptmann's testimony on cross-examonation as to when he worked at the majestic. Too many "I don't know" and "I can't say" to make his testimony appear relaible. Can anyone say, sitting as a judge at that hearing, that Hauptmann proved to you clearly and convincingly that he was not in New jersey on March 1, 1932?
Heap your derision on Whited and Hochsmuth for their trial testimony, and I will have no disagreement with you. Question the sufficiency of the evidence at trial for the capital murder charge (i.e., the predicate felony of larceny), and I am in full agreement with you. In my opinion, I think Hauptmann was guilty only of extortion.
This post is simply directed at the assertion that Whited was critical for Hauptmann's extradition. I am pointing out that Whited's testimony was not critical at the extradition hearing; the court clearly discounted it; and Hauptmann clearly would have been extradited without it.
Yes, you're right.
Thu Feb 21 2002
So what would have cleared Hauptmann at the extradition? Maybe something his attorney, Fawcett, could have gleaned from the Bronx Grand Jury hearing. He never had that chance, however, since Judge Henry Stackell prevented Fawcett from having access to the minutes. The Grand Jury, it will be remembered, allows access to its indictment proceedings. There was no reason to prevent Fawcett access, except to grease the railroad tracks.
The work records from the Reliance would have proved that Hauptmann worked a full day at the Majestic March 1st. Fawcett subpoenaed both the records and Morton, the timekeeper. The State managed to both confiscate the records (they turn up later when Cashman signs for them from Breslin, for the receipt see Kennedy, p. 223) and prevent Morton from attending, sending some poor flunky named Knapp along, who was told to insist that those particular timesheets did not exist “at this time, or at that time either.”
Nevertheless Fawcett obtained a 48-hour stay, during which time Tom Cassidy found Furcht, who furnished the records that proved Hauptmann worked a full day March 1st. The records were destroyed, however, and Hauptmann was extradited.
Thu Feb 21 2002
Let me ask you a question that has always puzzled me about this case. Hauptmann's defenders claim that he worked an entire day at the Majestic on March 1, 1932. I'm assuming a full day's work ended at 6:30 p.m. or so, when it starts to get dark. The child was kidnapped around 9:00 p.m. or so, right? So, even if Hauptmann worked a full day on March 1, 1932, wouldn't he still have had time to drive to Hunterdon County and get there by 9 p.m.?
Your other point is well taken; if Hauptmann's defense was denied access to records that would have proven his innocence, then that is indeed a travesty.
Thu Feb 21 2002
Actually he worked from 8:00 a.m. to 5:00 p.m. Still it would have been almost impossible for him to take the subway back uptown -- the Majestic's in mid-town Manhattan on the park side, if memory serves, and Hauptmann lived way up in the Bronx, that's a hefty ride -- stash the ladder in the car and drive through rush hour traffic to Hopewell, park the car in the necessary place, hide himself, etc. It probably could have been done, but it certainly makes for a much weaker case to suppose that it was done.
You do know the story of the Furcht Affidavit and the Morton/Knapp timesheets, right? Of course records were destroyed.
I Don't Think So
Thu Feb 21 2002
I will try to make this as clear as possible....
Burglary is inserted into this case because its element was necessary at the time in order to prove murder in the first degree -
Hunterdon Oyer and Terminer September Term, A.D., 1934
HUNTERDON COUNTY, ss.:
THE GRAND INQUEST for the State of New Jersey in and for the body of the County of Hunterdon, upon their respective oaths Present, that Bruno Richard Hauptmann, on the first day of March in the yeard of our Lord one thousand nine hundred and thirty-two, with force and arms, at the Township of East Amwell, in the County of Hunterdon aforesaid and within the jurisdiction of this Court, did willfully, feloniously and of his malice aforethought, kill and murder Charles A. Lindbergh Jr., contrary to the form of the statutes in such case made and provided, and against the peace of this State, the government and dignity of the same.
ANTHONY M. HAUCK, JR.
Prosecutor of the Pleas
Section 36 of the Criminal Procedure Act of New Jersey provided in 1935:
...it shall be sufficient in every indictment for murder to charge that the defendant did willfully, feloniously and of his maice aforethought, kill and murder the deceased.
Killing equals murder when:
Sections 106 and 107 Crimes Act-
#1 Perpertration or attempt to perpetrate arson, burglary, rape, robbery, or sodomy.
#4 Willful, deliberate and premeditated killing;
#5 By means of poison, or by lying in wait.
See State vs. Wyckoff, 31 N.J. Law 65, decided by Chief Justice Beasley in 1864
Where it was ruled:
The general rule of the law has always been that a crime is to be tried in the place in which the criminal act has been committed. It is not sufficient that part of such act shall have been done in such place, but it is the completed act alone which gives jurisdiction. So far has this strictness been pushed that it has been uniformly held, that if a felony was committed in one county, the accessory having incited the principal in another county, such accessory could not be indicted in either.
Unless Hauptmann is guilty of killing the baby while committing Burglary, then he could only be guilty of second degree murder....
The actual presence of Hauptmann within the State of New Jersey would be necessary at the time or day of the commission of the crime, under New Jersey law at the time, to find him guilty of murder. The ladder, ransom notes, and ransom money doesn't do this. This is where the bogus testimony of Whited and Hockmuth comes in....
Opening statements (TT p1):
[Wilentz]- May it please your Honor Mr. Foreman, men and women of the jury, a Grand Jury that was composed of citizens of this County has returned an indictment charging that Charles A. Lindbergh, Jr., was murdered. It is the law, men and women, as will be pointed out to you by the Court, that where the death of anyone ensues in the commission of a burglary, that killing is murder, -murder in the first degree.
Burglary was defined in two New Jersey Statutes:
P. 1787, Section 131 - P.L. 1898 p 830
Or as defined by Common Law...(See State v. Wilson 1 N.J. Law, 439)
Legal Aspects of the Trial of Bruno Richard Hauptmann
by Frederick C. Vonhof, Counsel for the "Independant Press"
Why Hockmuth and Whited?
....from the case of State v. Wycoff ....This undoubtedly accounts for the presentation of the testimony by Hochmuth and Whited placing Hauptmann within this State prior to the commission of the act and also on the date in question......Hauptmann's actual presence is necessary within the State of New Jersey at the time or day of the criminal act in order to find him guilty of murder ......in the State of New Jersey.
If then, the accessory by the common law was answerable only in the county in which he enticed the principal. and that, too when the criminal act was consummated in the same county, it would seem to follow necessarily in the absence of all statutory provision, that he is wholly dispunishable when the enticement to the commission of the offence has taken place, out of the State in which the felony has been perpetrated. Under such condition of affairs it is not easy to see how the accessory has brought himself within the reach of the laws of the offended State. His offense consists in the enticement to commit the crime; and that enticement, and all parts of it , took place in a foreign jurisdiction. As the instrumentality employed was a conscious guilty agent, with free will to act or refrain from acting, there is no room for the doctrine of a constructive presence in the procurer. Applying to the facts of this case the general and recognized principles of law, it would seem to be clear that the offense of which the defendant has been guilty is not such as the laws of this State can take cognizance of. We must be satisfied to redress the wrong which has been done to one of our citizens, and to vindicate the dignity of our laws by the punishment of the wrong-doer who came within our territorial limits.
As for the defendant, who has never been, either in fact or by legal intendment, within our jurisdiction, he can be only punished by the authority of the State of New York, to whose sovereignty alone he was subject at the time he perpetrated the crime in question.
Re: I Don't Think So
Thu Feb 21 2002
I'm not sure where you are going with your discussion . .. several months ago I posted my conclusions on what the jury could have legitimately concluded, provided they believed all the evidence that the state presented.
Now, for all you out there that think the evidence was rigged, don't get angry :) All I'm doing is determining as a matter of law what the jury COULD have found Hauptmann guilty of, if they believed the evidence. It's a "worst case" scenario: even the worst case scenario shows that Hauptmann should not have been executed.
So, here goes the short version- and for those of you who at the mention of the ladder and handwriting evidence go ballistic, I apologize in advance :)
The jury could have found from the evidence that Hauptmann was at the scene of the crime in Hunterdon county on March 1, 1932. Evidence: (1) The ladder with the rail from his attic; (2) the nursery note handwriting testimony, which was the most damning, because it put him inside the nursery; (3) the eyewitness testimony that Hauptmann had recently been in the area near the scene of the crime.
The jury could have found from the evidence that Hauptmann kidnapped the child. Evidence: reasonable inferences from the evidence listed above. Hauptmann was in the nursery and left a ransom note. It's reasonable to infer that he kidnapped the child.
The jury could have found that Hauptmann killed the child. This is a more difficult call. Where is the evidence that Hauptmann struck the fatal blow? If we rely upon the inexpertly-performed autopsy, the child died from a blow to the head. Where is the evidence that Hauptmann delievered the blow? Where is the murder weapon? Where is Hauptmann's connection to the fatal instrumentality? But, Hauptmann's lawyer's job at this point was to develop some alternative scenario that could account for the child's death, given the evidence. Circumstantial evidence must support the inference of guilt beyond a reasonable doubt, and simultaneously exclude any hypotheses of innocence that flow from the evidence. Given that the evidence supported the inference that Hauptmann kidnapped the child, the lack of any inferences supporting a hypothesis of innocence, and the fact that the child was indeed struck a fatal blow, I think that the inferences from the evidence supported the verdict that Hauptmann killed the child.
At this point, we are at second degree murder.
In order for the state to get the death penalty, it had to prove that the murder took place during the commission of a burglary. Note there are two elements here: (1) a substantive element; i.e., Hauptmann committed a burglary; and (2) a temporal element; i.e., the fatal blow was struck DURING THE COMMISSION OF the burglary. I find the state's evidence insufficient to support either element.
First, the substantive element. Murder in the commission of a kidnapping was not a capital crime in New Jersey in 1932. The prosecution had to prove murder in the commission of a burglary. Burglary at common law (statutory burglary is slightly different but its elements are sufficiently similar for this discussion) is breaking and entering a dwelling place in the nighttime with the intent to commit a felony in the dwelling. The intent to commit the felony must be formed PRIOR to the breaking and entering. The state postulated (and the jury found) that Hauptmann formed the intent to steal the child's sleeping suit prior to his breaking into the house. Where is the evidence to support that? True, he sent the child's suit as "proof" the child was alive, but it is just as reasonable to assume that he formed that intent to take the suit AFTER entry. In my last post on the subject, I noted that it was interesting indeed that Hauptmann would have escaped the electric chair had the Eaglet gone to bed naked that night. Incredible, but true. Without the theft of the sleeping suit, there was not larceny. With no larceny, no burglary. No burglary, no death penalty.
Second, the temporal element. The blow must have been struck IN THE COMMISSION OF the burglary. Practically speaking, the prosecution had to prove the child was murdered in the room, going down the ladder, or shortly after the get away. There is NO (and I repeat, NO) evidence that proved that the child was killed during the kidnapping. From the evidence adduced at trial, why is it not as reaosnable an inference that Hauptmann took the child back to NY, and one month later the child fell and hit his head, and Hauptmann drove back to NJ to hide the body? It is the lack of evidence concerning this temporal element of the felony murder charge that troubles me the most about this case. The evidence that Hauptmann committed second degree murder was there (as much as we may tend to disagree with it). The evidence that he committed felony murder was wholly lacking. I think that it was a miscarriage of justice that the New Jersey appellate courts did not overturn the felony murder conviction on that ground alone. I find it incredible that Hauptmann's lawyers did not ask for an instruction on 2nd degree murder. Perhaps they did; I have never seen the entire transcript of the trial. If they didn't ask for that "lesser included offense" instruction, they were negligent.
At any rate, I hope this post was responsive to what you were trying to point out.
Sat Feb 23 10:16:36 2002
Actually, federal law controls at an extradition hearing. Extradition of a felon from one state to another is covered in the U.S. Constitution, and a federal statute implements the Constitutional imperative. So, the controlling law is federal law. When I said "NJ evidence", i was talking about the evidence that NJ presented, not the controlling law.
Hauptmann tested the legality of his extradition (actually, his concinued incarceration after the hearing) by filing a petition for a writ of habeas corpus in the NY Supreme Court (which is the TRIAL court; for some reaosn, NY calls its trial court the SUPREME court). The habeas court (the trial court) reviewed the record of the extradition hearing and found Hauptmann's evidence that he was not in NJ on March 1, 1932 insufficient. The court also, in dicta, really, discussed the evidence submitted by NJ.
So, to answer your first question: becuase the extradition was reviewed pursuant to a petition for habeas corpus, the initial "reviewing" court was actually the trial court. The trial court's decision, upholding Hauptmann's extradition, was then appealed to the NY Supreme Court, Appellate division, which affirmed the trial court's judgment.
van Henke and Kiss did not testify at the extradition hearing, probably because Hauptmann's counsel either did not know who or where they were. That happens often; the preliminary matters in court often exclude very important witnesseither becuase the prosecutor does not want to "tip his hand" or because the defense hasn't had the opportunity to find them yet.
Yes, both the trial court's habeas review and the appellate court's review are published opinions.
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