United States of America Ex Rel. James C. Haynes v. Charles L. McKendrick Warden, Wallkill State Prison, Walkill, New York

OAKES, Circuit Judge:

This case is surprising in this day and age since it presents, on appeal by the State from a conditional grant of the writ of habeas corpus in a proceeding under 28 U.S.C. § 2254, the question whether racially prejudicial remarks by a prosecutor in summation constitutionally infected the conviction of appellee. District Judge Motley held that they did so, that there was not harmless constitutional error, and accordingly granted the petition for the writ unless the State within 60 days retried petitioner, the appellee here. Her opinion is printed at 350 F.Supp. 990…