Thursday, December 13, 2007

Appellate Division Should Reverse Marty Tankleff’s Wrongful Murder Conviction

By Jeffrey Deskovic

Factual Background

On September 7, 1988, then recently turned 17-year-old Marty Tankleff woke up to discover that his mother and father had been brutally stabbed and bludgeoned. His mother was dead, while his father was unconscious but alive. Marty called 911 and gave first aid to his father. When the police arrived, Marty immediately
identi-fied the likely suspect: his father’s bagel-store partner named Steuerman, who owed his father half a million dollars, and who had recently violently threatened his parents, and who was the last guest to leave the Tankleff home the night before.

A week after the attacks, as Marty’s father lay unconscious in the hospital, that same business partner would fake his own death, disguise himself and flee to California under an alias. Despite the business partner’s motive and opportunity, to this day he has never been considered a suspect by Suffolk County authorities. Instead, the lead detective immediately took Marty to the police station and began a hostile interrogation of him that would last Appellate Division Should Reverse Marty Tankleff’s Wrongful Murder Conviction for six hours. In the course of that interrogation, the detective told three huge lies:

1) That a humidity test was performed in the shower, showing that Marty had washed blood off of himself
(in fact, there is no such test);

2) That Marty’s hair had been found in his mothers hand. (It hadn’t); and,

3) That his father regained consciousness and identified him as the murderer.

Having been brought up to trust the word of his father, and to trust the police, Marty wondered if he could
have blacked out. Only then did the detective read Marty his rights and draft a confession, which went unsigned
and immediately recanted by Marty. In fact, his father died without ever regaining consciousness. The knife that is mentioned in the false confession as having been the murder weapon did not have blood on it, but instead merely watermelon juice. Despite the absence of any physical evidence, and the questionable circumstances surrounding his “confession”, Marty was convicted and sentenced to 50 years to Life in Prison.

Evidence Of Innocence

There has been a mountain of evidence to show that Marty didn’t do it and that others did, and, in fact, others did; people who have a connection to Steuerman. There is some evidence that Steuerman contracted the killings. Certainly there is a mountain of evidence - and there has always been plenty of evidence - that Steuerman
should be investigated for the murders.

A retired New York City homicide detective, working for free for Marty, uncovered approximately two dozen witnesses who have come forward and said that the man who carried out the murder had admitted to committing the crime, including details of the getaway driver. A pipe was located at the place that driver admitted that it would be.

Corruption and Conflicts Of Interest

At the time of the Tankleff murders, Suffolk County law enforcement was under investigation for corruption
by the State Investigation Commission, including problems with coerced confessions. The investigation was ordered by Governor Mario Cuomo. The SIC’s scathing report included a finding that the detective who interrogated Marty had perjured himself in a previous murder case. Current Suffolk County District Attorney Thomas Spota represented that detective in those hearings, as well as Steuerman’s son on charges of selling cocaine. Spota’s law partner had previously represented Steuerman.

Among the new evidence revealed at the hearing was eyewitness testimony that the business partner had been well acquainted with the lead detective since before the Tankleff murders. This contradicted the trial testimony of the detective, who had been off-duty on the morning of the Tankleff murders but arrived 19 minutes after the early morning call, and who ignored the business partner as a suspect.

Marty’s Appeal Issues

The main issue that Marty raises on appeal is his innocence based on the newly discovered evidence. The
district attorney’s challenges to this are that none of the new witnesses are believable, because of their criminal backgrounds. However, as the Appellate Division Judges pointed out, these types of witnesses have often been used by district attorneys. Much of the argument centered around procedural issues surrounding whether the judges should even consider the merits of this issue. Another important issue included a request for DNA testing.

The last issue, whether the facts of this case support a charge of Depraved Indifference Murder - which is a theory that a defendant acts in reckless manner indifferent to human life as opposed to intentional murder, which is a deliberate act - is a side issue.

Bludgeoning and stabbing are deliberate acts, not reckless ones, so Mr. Tankleff should not have been charged under a depraved mind murder theory. The problem is, that while the practice of charging defendants in murder cases with both Intentional and Depraved Mind Murder has been corrected for future cases, courts have declined to apply the protection to defendants who have already been convicted.

In my view this is grossly unfair because if there is enough of a concern in regard to fairness to prevent it from happening to other people, then the unfairness should not be allowed to go on and affect those defendants who have already been wrongly convicted.

I do not believe that everybody so convicted should automatically be released. However, they certainly are entitled to a new trial. Nevertheless, such is not the current state of the law, and so it is almost impossible
that Marty’s case will be decided based on this issue.

Friend of Court Briefs Filed on Behalf of Marty

A Friend Of The Court Brief is a legal document which is filed by a party other than people who are directly
involved in the litigation, but who believe that the court’s decision may affect its interest. The following Friend Of

The Court Briefs have been filed:

1) Thirty-one Former Prosecutors and U.S. Attorneys;

2) The Innocence Project;

3) The National Association of Criminal Defense Lawyers;

4) False confession Exonerees Gary Gauger, Peter Reilly, Beverly Monroe, and Michael Crowe;

5) The Innocence Network (made up of over 30 innocence project type organizations);

6) Over 50 Former Classmates of Marty Tankleff.

False confession experts Saul Kassin, Richard Ofshe, Richard Leo, and Steve Drizin have all either testified
for Marty or have spoken out publicly on the case.

Many experts whose work revolves around wrongful convictions in one way or another have made powerful statements supportive of Marty at various times. I will review a few of them:

a) The author of the book Prosecutorial Misconduct, a frequent media commentator, Pace University Law Professor Bennett Gershman said “There is a mountain of new evidence, certainly enough to grant a new trial.”

b) Barry Scheck, co-founder of The Innocence Project, which filed a Friend Of The Court Brief, said “We’ve taken the unusual step of writing a letter along with our motion because the facts of this case are so strong, and because the lower court ruling that denied Martin Tankleff a new trial was so misguided and troubling.”

c) Retired New York Supreme Court Justice Herbert Posner said, “I never saw a similar case where a defendant was so obviously innocent.”

d) Steve Drizin, Legal Director of The Center on Wrongful Convictions, said, “The man with the most to gain from the death of Marty’s parents changes identities and flies to California; that should not have been dismissed.”

e) Saul Kassin, False Confession Expert, upon hearing of Marty’s being denied in a previous legal proceeding,
said, “How tragic; what a scandalous breach of common sense. I am so sorry for Marty, his supporters,
and the millions of us who are so deeply offended by injustice.”

f) The National Association of Criminal Defense Lawyers called the issues raised in the appeal “unusual,
such that they are of state and even national importance.”


Marty Tankleff is demonstrably innocent. If, with all of this evidence of innocence he does not deserve a new trial, it is hard to imagine who does. It is infinitely more difficult to establish innocence through means other than DNA, and yet Marty’s supporters have done it. I cannot believe that 26 witnesses would all falsely come forward to try to clear Marty, as they have over the years.

Sure, there are some nut cases out there who will do anything for publicity, but not this many. The clincher for me was the finding of the pipe in the place where the getaway driver said that it would be. I find that the conflict of interest between Spota and the players in this case is outrageous, and that Spota should have recused himself.

His refusal to do that, or take the evidence of Marty’s innocence seriously, and his unreasonable single-rackminded opposition to Marty every step of the way, through every proceeding, no matter what evidence
Marty finds or what issue he raises, creates legitimate questions of the propriety of his office and the possibility
of corruption.

The FBI, Justice Department, and The Attorney General’s office should investigate this issue, along with the issue of who killed the Tankleffs, rather than allowing an innocent man to remain in prison wrongfully and corruption to go on in the open, unafraid of the Rule Of Law. Surely my own case illustrates that. There were many similarities
between the circumstances of Marty’s confession and mine: We were both young; I was 16, Marty was 17.

Clearly the police took advantage of our youth and naiveté. We were both questioned for long hours. We
were both allowed to waive and be deceived about our rights and to speak without the presence of an
attorney. We were both lied to as tactics designed to bring about confessions. And then, the police lied to
everybody about what took place. Marty was lied to about three major aspects, and I was lied to about countless things. The physical evidence did not match the “confessions”.

Importantly, neither of the confessions was tape-recorded. Lastly, evidence which did not fit but conclusively proved innocence, was withheld or improperly manipulated against each of us. We both have DNA issues in our cases. We were both wrongfully convicted of depraved indifference murder, and sadly, procedural roadblocks
were erected as barriers to trying to establish innocence. Almost two decades of misconduct and inaction by the DA’s office, Jeanine Pirro’s office preventing me from proving my innocence; while for Marty it is the prosecutor urging that the Court does not have the legal authority to look at Marty’s issues of innocence.

Based on all of the above, I felt compelled to attend the Appellate Division hearing on behalf of Marty
Tankleff, to lend whatever moral support that I might, and hopefully to be a visual reminder to the judges
about the problem of wrongful convictions, false confessions, and just how far justice can go awry when Appellate Courts “rubber-stamp deny” defendants’ appeals. Although, in general, the many lessons that my
wrongful conviction and those of the 23 exonerees in New York and 208 country-wide, have not as yet
been learned and reforms to protect the innocent acknowledged, adopted, and enacted; still I hope that in
this instance the same mistakes and oversights will not occur yet again.

I know what it is like to have all of one’s appeals wrongfully turned down, and to remain incarcerated wrongfully for years. I pray that yet another of Marty Tankleff’s appeals doesn’t end up that way; and that no more precious years of life which can never be given back, are taken from him by continuing wrongful incarceration.

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