On October 6, 1937, Albert DiLlulio died from multiple gunshots, and his body was found in the doorway of a barbershop on 48th Street in New York City. Soon after the shooting, a police officer saw Thomas Kapatos running away from the alleged crime site and catching a taxicab. The police officer stopped and searched him, finding two guns in his possession. One of the guns was warm and contained four discharged cartridges. This gun was later found to be the one that had been used to kill DiLlulio. Kapatos claimed that earlier on the night of the crime, he had been at work as a shoreman. On his way to the elevated train after work, he claimed to have seen guns on a stoop on 48th Street and picked them up unwittingly. Finding a victim’s body nearby, a grim idea occurred to Kapatos that he might be framed as the killer, with his fingerprints now on the guns. Frightened by this idea, he started running away from the scene. The prosecutor rejected Kapatos’s defense, pointing to its implausibility and to the fact that there were no other suspects found at the crime scene. Kapatos was convicted of the second-degree murder of Albert DiLlulio on November 29, 1938, and sentenced to spend twenty years to life in prison. Years after Kapatos’ conviction, he learned that there had been a witness, Michael Danise, who had seen two individuals fleeing from the scene of DiLlulio’s shooting immediately after the shots were fired, and that Danise had stated that Kapatos was not one of these two individuals. Danise had also said that after the two persons fled the scene, he had then seen Kapatos walk upon the scene of the crime – and this statement by Danise was consistent with Kapatos’s version of events. The existence of Danise had never been disclosed to the defense by the prosecution. Kapatos’ attorney filed a habeus corpus petition on his behalf based on this new information. In July 1962, Judge Edmund L. Palmieti granted the writ of habeus corpus on the basis that the state had prejudiced his case in failing to disclose the existence of the witness, thus depriving him of the due process of law at his trial in 1938. Judge Palmieti stated that testimony from the uncalled witness “might well have raised a reasonable doubt in the jury’s mind as to the defendant’s guilt,” and that such testimony “would have supported a conclusion that someone else had committed the crime.” The judge ordered that Kapatos be released from prison within thirty days unless an appeal had been filed during that time. In August 1962, the charges against Kapatos were dismissed. – Researched by Byungkwon Kim
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