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Philip Caruso

In 1939, Philip Caruso was convicted by a jury in Kings County, New York, of robbing a runner for a betting syndicate of $1,400 at gunpoint the previous year. The conviction rested primarily on the testimony of the victim, who told the jury he was “pretty positive” Caruso was one of three men who robbed him. Caruso was sentenced to 10 to 20 years in prison, but exonerated later in 1939 after two other men confessed that they had committed the crime and that Caruso was not involved.

The victim, Eugene Scaramellino, was abducted and robbed on July 28, 1938, while waiting in a car in front of a Brooklyn cigar store for a bookie to get change for a dollar. One of the robbers, whom Scaramellino would identify as Caruso, got into the passenger side of the front seat of the car. This man was armed with a revolver and threatened to kill Scaramellino if he resisted. Another robber got into the back seat and a third into the front seat, on the driver’s side. The latter took the wheel as his cohort on the passenger side went through Scaramellino’s pockets, taking the money Scaramellino had collected that day and passing it to the robber in the back seat. A few blocks away, the man in the back seat got out of the car with the money. A few blocks further, the remaining robbers let Scaramellino out of the car before abandoning it.

Scaramellino promptly reported the crime, telling police that the man with the revolver had a mole on his upper lip. In early December 1938, more than four months after the crime, police arrested Caruso, 24, on a tip from an informant who was never identified. Caruso, who had a fever blister on his lip, but no mole, was identified by Scaramellino from a four-man lineup, in which the other participants lacked marks of any sort on their lips.

Caruso’s father, who supported a family of nine by shining shoes, scraped together $25 to hire a Brooklyn lawyer named Philip Roth. At Caruso’s jury trial on March 9 and 10, 1939, Judge Peter J. Brancato severely limited the scope of the cross examination of Scaramellino, but Roth did manage to elicit that Scaramellino was less than certain—only “pretty positive”—of the accuracy of his identification. Assistant District Attorney Charles N. Cohen called only one other witness, Brooklyn Police Lieutenant William T. Whalen, who testified that Caruso had been arrested on a tip from an informant. Whalen was about to name the informant when Roth inexplicably objected. Brancato sustained the objection, and the informant was never identified.

After Cohen rested the prosecution’s case, Roth mounted an alibi defense, comprising of the testimony of Caruso’s parents and various siblings. Not surprisingly, given the four-month delay between the crime and Caruso’s arrest, their recollections were dubious. When Roth rested the defense case, Brancato gave the jury a muddled instruction: “You have got a very simple issue in this case, very simple. Was there a robbery or wasn’t there? That is the only question to be submitted to you. Was there a robbery committed by this defendant? If there was…then your duty is to convict. If there was not, then acquit. The only question here is, ‘Was there a robbery?’”

Shortly after the jury began deliberating, the foreman asked that the court stenographer read a portion of Scaramellino’s testimony pertaining to the lineup. Brancato responded that the stenographer had gone home and would have to return to court if the jury insisted on hearing the testimony. The jury chose not to wait, however, and after brief further deliberation, found Caruso guilty. A month later, Brancato sentenced Caruso to “be confined at Sing Sing Prison for a term of not less than 10 years and no more than 20 years.”

On July 28, 1939—a year to the day after the crime—two Bronx men, 22-year-old Morris Gottlieb and 28-year-old Jack Jacobson, were arrested and confessed to a series of holdups, including the armed robbery of Scaramellino. Gottlieb had a mole on his upper lip. By this time, Caruso’s father had retained Brooklyn appellate lawyer Frank B. DiGiovanna, who filed a motion before Judge Brancato to vacate the conviction. In late August, Brancato held a hearing on the motion. Gottlieb and Jacobson testified that they had committed a crime with a third man, who would never be apprehended and whose identity was not disclosed. Scaramellino also testified, saying that originally he had mistaken Caruso for Gottlieb.

Brancato took the matter under advisement until September 7, 1939, when he ordered Caruso brought to court from Sing Sing. He then dismissed Caruso’s indictment and ordered his immediate release. Twelve days later, Brancato sentenced Gottlieb and Jacobson each to 10 to 20 years for the Scaramellino crime. Caruso received no compensation for his 272 days of wrongful incarceration.

- Rob Warden

Most Serious Crime:Robbery
Reported Crime Date:1938
Sentence:10 to 20 years
Age at the date of crime:24
Contributing Factors:Mistaken Witness ID