Westchester Guardian/Jeff Deskovic.

Thursday, April 16, 2009.

Jeff Deskovic

The Wrongful Conviction And Exoneration
Of Westchester Resident Kian Khatibi, Part 2

Kian Khatibi’s First 440.10 Appeal

Kian Khatibi led a pro se (representing himself0 440.10 motion in June of 2002. He asserted three grounds for relief:

A) Brady and Rosario violations, in that the Prosecution failed to disclose a video tape review report of Kian entering the police station; the video itself, which according to Pleasantville Clerk Judy Weintraub was never placed into evidence and therefore was destroyed within 60 days; or the audio tape of the call that came in. In the felony complaint document, the time of the crime was said to be at 117:00. The video and the log show that Kian was in the police station during that time, from 112:30 until 117:289.

B) Evidence was introduced at trial that the prosecutor should have known was false.

Two instances were asserted:

1) the officer inside of the police station testified that the Defendant got up at the same time as he and ran out, which supported the consciousness of guilt theory, whereas the video and the video log showed otherwise;

2) The prosecutor had evidence, in the form of their prior statements, that the victims did not know that they had blood on them or that they were stabbed and cut, although at trial they testified that they knew that they had been stabbed.

C) Ineffective Assistance Of Counsel, based upon:

1) failure to introduce into evidence contradictions of the victims’ recollections and identifications as made immediately after the crime;

2) failure to properly present as evidence that Duffy had stated that he had 14 drinks, wrestled during the incident, and did not know what had happened;

3) that counsel had not conducted a thorough investigation of eyewitness Richards, thereby causing his original interview of him to be done two days into trial after several Prosecution witnesses had testified. Had he done so in a timely fashion, he could have formulated a strategy around his testimony, including his opening statement, and questioned Officer DeMaio to establish Richards’ presence.

District Attorney Jeanine Pirro’s Office, through Assistant District Attorneys John J. Sergi and Joseph Latino fought the 440.10 Motion by arguing that the Brady issue did not make prima faci averment of the elements necessary for Brady relief, in that since the Prosecution was not aware of the note, they were not obliged to turn it over, and they dismissed as hearsay the defense attorney’s statement that he did not see or review it. They further argued that in the Bill Of Particulars, the time of the crime had been changed to 1 a.m. and therefore the tape was not exculpatory.

In regards to the argument in favor of ineffective assistance of counsel, they argued that procedurally the issue should have been raised on appeal, and furthermore that it was not meritorious. Specifically, they stated that the attorney’s omissions “did not rise to the level of egregious incompetence necessary to meet the legal threshold for ineffective assistance of counsel under current case law.” They never responded to the argument that there had been evidence introduced at trial the Prosecutor should have known was false

The Judge assigned to rule on this 440.10 Motion was Janet DiFiore. Her ruling on the ineffective assistance of counsel argument based upon failure to make use of inconsistent witness accounts was that despite Khatibi’s argument that although some issues were on the record others were not and therefore they should all be looked at cumulatively; that procedurally a 440.10 Motion is intended to bring to the Court’s attention things which are not already on the record.

DiFiore further ruled that a disagreement of trial strategy or the scope of cross-examination does not support a claim of ineffective assistance of counsel. Turning to the material evidence, she ruled that it was not disputed that the defendant was in the police station.

The ruling further stated that there was no explanation in the record why the alibi issue was not raised at trial or on appeal.The ruling went on to say that there was no defense request for the video or the audio tapes, and goes further to say that neither does the motion demonstrate
the existence of new evidence that was not otherwise available at pre-trial or at the trial.

Commentary: Judge DiFiore’s ruling never really addressed, on the merits, the arguments that Khatibi was raising. If one was to read this decision without looking at the 440.10 Motion, one would think that this was a frivolous motion. In this case, the failure of defense counsel
to use prior inconsistent witness statements in cross-examination does constitute ineffective assistance of counsel, because if they had been discredited, the Defendant would have been acquitted as there was no other credible evidence.

Furthermore, her argument regarding procedure does not cut it for several reasons: firstly, inconsistent witness statements should be viewed in conjunction with on-the-record statements. After all, in reality, things don’t happen in a vacuum and they were all coming from the same witness. Rather, this ruling is an example of putting procedure over justice.

In terms of the ruling regarding the false evidence, although it was undisputed that Khatibi was in the police station, surely having a video of it would have been powerful, and it certainly would have disputed the theory that he got up and ran out with the officer in a panic once the call came in over the radio.

This ruling overlooks that. DiFiore’s pointing out that there is no explanation as to why this was not used as an alibi at trial or appeal only reinforces the idea that his trial attorney was ineffective. Furthermore, DiFiore’s ruling takes the focus off of the Prosecution’s lack of
turning this evidence over, and turns it to an inept attorney at trial; an attorney who did not raise it on appeal. How can that be seen as justice? Can it not be seen that someone’s freedom is being cavalierly overlooked and dismissed?

Furthermore, the prosecutors, having been to law school and having been practicing law in the field, know what is supposed to be turned over, regardless of a Defense request or lack of one. A prosecutor’s duty to preserve and/or turn over evidence is not vitiated by an inept defense attorney. Rather, both have a duty to any defendant.

Additional Post Conviction Review

Mr. Khatibi appealed the denial of his 440.10 Motion throughout the court system, and was never able to gain any relief. The Appellate Division denied him permission to appeal the denial of the 440.10 to them. He led a Habeas Corpus petition, but this was unsuccessful with Judge Robinson, who ruled that everything should have been raised on appeal.

Commentary: This ruling ignored that some of the issues were off of the record and needed to be viewed in conjunction with the issues that were on the record.

How The Truth Came Out

The Defendant’s father and the rest of the Defendant’s family were gathered in his house for a pre-Thanksgiving Dinner. At some point during the gathering the father mentioned that he really missed his son Kian. At that point, Khayvan became emotional and admitted that he was the person who had committed the crime, and not Kian. The family signed affidavits, and this new information formed the basis of another pro se 440.10 Motion drafted and filed by Kian Khatibi.

The Winning 440.10 Motion


In my view, making an argument to the court, as was made to the effect that, “If their claim is true, that Kian and his brother have only themselves to blame for (Kian’s) current predicament,” is an inaccurate and reprehensible statement to have made. The police role in withholding the videotape log, not preserving the video so that it wound up being taped over, not preserving the audio tape, not securing and preserving the clothes that the victim wore, Det. Mazzei’s coercing a false statement out of Freud by means of assault along with Det. Bonura’s failure to intervene, and then their basing a case around obviously inaccurate identifications in light of all of their contradictions,
the Prosecutor knowingly put on false evidence in court and without correcting perjury, and proceeding with a sloppy case, and an inept defense attorney had, all added up, resulted in Defendant Kian Khatibi’s ‘predicament’.

As I see it, even referring to nine and a half years of wrongful incarceration as a ‘predicament’ is an insult. Wrongful incarceration is a traumatic and horrific experience.

Judge Zambelli’s Decision

Judge Barbara Zambelli’s decision started off noting the weakness of the case against Khatibi; the unreliability of the identification; Boyar saying that he observed the defendant for a split second, and that it wasn’t until later he noticed he had been stabbed, and Dufy stating that he saw somebody behind him for maybe a second or two; Det. Mazzie testifying that he questioned Boyar a day or two after the incident but did not take his statement since from the beginning he said that he was so intoxicated that he had no idea what had happened during the incident; Richards saying that the short kid was not fighting; and the bouncer, Nick Hobby, who said that he saw two people jump from the side street around the victim neither of which was the Defendant.

Zambelli ruled that the testimony of the Khatibi Family, in regards to the brother’s confession, was admissible, and that it was credible. Accordingly, she overturned the verdict on September 9, 2008, and on Sept. 23, 2008 Khatibi was brought to Court and released on his own recognizance.

In Dec. of 2008 the Prosecution filed a document which stated that although they felt that the Defendant was guilty, they did not feel that they could win a conviction against him in light of the numerous contradictions of the witnesses, the ruling that the family testimony was admissible, the complaining witnesses’ statement that they did not wish to go forward, and their own assessment that they felt that they could not win. Accordingly, they did not argue against the dismissal of the case against him.

For those of us in Westchester, the case of Kian Khatibi reinforces the idea that wrongful convictions can happen everywhere, and frequently enough here. Often in wrongful conviction cases based upon misidentification, it is not merely the misidentification alone, but police and/or prosecutor misconduct that helps it along. That was surely the case here.

It also seems clear, that although it was obvious in light of the confession and the unreliability of the identifications, and all of the above-mentioned factors that he was innocent and his brother was guilty, the statement regarding their continued belief in his guilt is intended to set
the foundation for a later position to argue against him being eligible for compensation in the course of a lawsuit on his behalf, which has since been filed on March 6, 2009.

Apparently to block his getting compensation, the actors against Mr. Khatibi are going to argue that he is guilty and that his conviction was
not overturned because of his innocence, although I believe that any objective observer would believe that it was. This is the fourth wrongful conviction case that we have reported having taken place while former Westchester County District Attorney Jeanine Pirro was in office, Anthony DiSimone, Richard Diguglielmo, and Marci Stein being the other three. It is also the third such Pirro case that current District Attorney Janet DiFiore chose to fight to try to uphold.

Since she has made public statements in the past that she has a system in place so that any claim of innocence is automatically brought
to her attention, it must be presumed that she knew about this case and the arguments put forward by her prosecutors. I must say that I am very disappointed, though not surprised in light of recent history, at her Office’s response in this case.

Why wasn’t the press alerted when Mr. Khatibi’s conviction was overturned and his indictment dismissed? Does it have anything to do with the fact that as a judge, DA DiFiore turned down a meritorious 440.10 Motion, and then fought against the Defendant’s release as DA even after evidence of the guilt of the brother emerged.

Is the upcoming election for District Attorney a factor? Mr. Khatibi has never received an apology, either personally or publicly. Sheila Khatibi, the defendant’s sister, reports that after the 440.10 Motion hearing, several people, including Pleasantville Police Chief Chiarlitti, apologized for what both she and her family went through.

Upon being contacted by The Guardian, Kian Khatibi said: “While I think it is important to realize that the Police and the District Attorney’s Offices deserve respect as both are a necessary part of living in a free, safe society; rather, it is the misguided acts of individuals who do not fulfill their position of trust, creating a dual burden both to citizens and the organizations which they serve.”