Brothers Hyman and Seymour Katz were shot and killed during an attempted robbery of their real estate agency’s office in the Bronx, New York, on November 2, 1967. Witnesses later testified that three or four armed Black men committed the crime. When they fled, the men left behind a set of keys and a black fedora with the name “Hassan” stamped inside.
On November 9, 1967, Albert Cunningham confessed to his involvement in the murder of the Katz brothers with three accomplices. He said knew two of the men only as Thomas Green and “Branch,” and he did not know the name of the third man. Cunningham made his confession to an assistant district attorney and two detectives. According to his confession, Cunningham waited in the hallway while the three men tried to rob the Katz brothers. According to later police testimony, Cunningham directed two sets of detectives to the Katz brothers’ office and provided details of the crime. Though Cunningham soon recanted his confession, he was indicted and charged with felony murder. At a pretrial hearing in 1969, Cunningham’s confession was ruled to have been made voluntarily and to be admissible at trial.
Cunningham’s first trial ended in a mistrial. As his case proceeded to a retrial, police determined that the men Cunningham identified as Green and “Branch” could not have been accomplices because one was out of the state and the other in jail at the time of the crime, according to later testimony from the district attorney. Cunningham also took a polygraph examination, which indicated he was answering truthfully when he said he was not involved in the crime. The charges against him were dismissed in the middle of retrial, with the district attorney saying Cunningham’s confession was unreliable.
In January 1968, three other men were also indicted in the Katz murders. Witnesses viewing police lineups identified 20-year-old Ernest Welcome. Welcome had been arrested on car theft charges in December 1967 and had been investigated earlier with regard to the Katz shooting. Charles A. Gale – who was 25 years old and also known as Hassan Bey – was indicted based on eyewitness examination and a fingerprint examiner saying Gale was the source of a print left at the crime scene. Witnesses also identified 24-year-old Winston Holmes as one of the perpetrators.
Welcome, Gale, and Holmes were tried together before a jury in the Bronx County Supreme Court in January 1970, after the charges against Cunningham had been dismissed. Justice Abraham J. Gellinoff presided over the trial.
The case against Welcome was based on testimony from three witnesses: Janet Lacorn, Dolores Marcell, and Vincent Turner. Lacorn, an employee of the Katz brothers, witnessed the crime and testified that she saw the perpetrators for about 30 seconds. Lacorn first identified Welcome in a line-up five weeks after the crime, and she identified him again in court at the trial. It’s not clear from available records what the police did with that information at the time Lacorn made that identification. Lacorn testified that Welcome was wearing a checkerboard coat but no hat at the time of the crime. Dolores Marcell, who worked in a store on the ground floor of the same building, testified to hearing screams coming from the real estate office. In court, she identified Welcome as one of the three men she encountered fleeing the office following the crime. During this in-court identification, Marcell initially pointed to one of Welcome’s co-defendants when identifying Welcome. Marcell testified that she was certain Welcome was wearing a dark, solid-colored coat and a hat.
Turner testified that Welcome approached him in a poolroom about three weeks after the crime, asking whether Turner had heard what had happened in the Bronx and referencing, “them two studs that I burnt.” On cross-examination, Turner testified that he was in jail awaiting sentencing on five felony convictions. He said that he had not been promised any deal in exchange for this testimony but did expect it would be given some consideration in his sentencing.
The defense argued that Welcome was across the Harlem River at his mother’s home in Manhattan preparing for a party at the time of the crime. His girlfriend and two of his mother’s friends testified to his alibi.
The defense called Cunningham as a witness. While testifying, Cunningham seemingly confessed to his involvement in the crime. On cross-examination, the prosecutor elicited testimony clarifying that Cunningham had not intended to implicate himself; Cunningham testified that he was only referring to the statement he gave to the police, not to any actual involvement with the attempted robbery. During this cross-examination, Cunningham continued to refer to his recanted confession. Defense attorneys had not been permitted to mention Cunningham’s prior confession but, following this testimony by Cunningham, argued that Cunningham had opened the door to allow questioning about the statements made to the police. The judge rejected this argument and did not allow re-direct examination of Cunningham by the defense. The Bronx district attorney appeared personally to testify that Cunningham was a drug addict who would admit to anything, that Branch and Green were in other locations at the time of the crime, and that Cunningham had passed a polygraph examination.
Welcome, Gale, and Holmes were each convicted of two counts of common law murder and two counts of felony murder on January 28, 1970. In March 1970, Gellinoff sentenced Welcome to two concurrent sentences of 25 year to life in prison. His conviction was affirmed without opinion on May 2, 1972. After Welcome’s conviction, attorney Julia Heit of New York's Legal Aid Society took over his case.
On May 21, 1973, Welcome filed a motion for a new trial on the basis that Turner had recanted his trial testimony in a signed affidavit. This motion was denied in November 1973 without an evidentiary hearing. The New York Court of Appeals affirmed this denial and also dismissed Welcome’s direct appeal, which had been consolidated with his motion for a new trial, in September 1975.
With Welcome’s remedies in state court exhausted, Heit filed a petition for a writ of habeas corpus with the U.S. District Court for the Southern District of New York. The petition claimed Welcome had been deprived of his constitutional right to a fair trial when the defense had not been permitted to question Cunningham regarding his confession. Judge Edward Weinfeld dismissed the petition. Welcome then filed an appeal with the U.S. Court of Appeals for the Second Circuit.
On February 2, 1977, the appellate court ruled that Welcome had been deprived of his due process rights and reversed the district court’s ruling, granting Welcome a new trial. The U.S. Supreme Court declined to hear the state’s appeal.
Welcome’s retrial before a jury began in early September 1977. The three-week trial ended with Welcome’s acquittal.
- Meghan Barrett Cousino |