...Honesty, Competence and Accountability in Suffolk County Law Enforcement
The Marty Tankleff case--which a growing number of legal experts recognize as a classic wrongful conviction based on a false confession--may be shocking to newcomers, but it should never have been surprising to Suffolk County residents, politicians and media. Pervasive corruption, most notably problems with coerced confessions, in the county's law enforcement agencies in the years leading up to the Tankleff murders in 1988 were well documented in the public record:
- In the 70s and 80s, the New York State Court of Appeals reversed numerous homicide convictions involving improper procedures in "confessions" obtained by Suffolk County police detectives. "Trial judges have allowed hundreds of Suffolk confessions into evidence, over the objections of defense lawyers," Newsday wrote in 1986. "But appeals courts have struck down 10 Suffolk convictions because confessions were improperly obtained--more reversals than from Nassau and Westchester combined."
- On January 11, 1979, a front-page article in the National Law Journal outlined allegations that the Suffolk Homicide Division used force to coerce confessions in murder cases.
- A 1980 report by the Suffolk County Bar Association found that "sufficient evidence is present to indicate that there is a serious problem with respect to police brutality in Suffolk County and the manner in which such complaints are investigated and resolved."
In 1986, the New York State Investigation Commission (SIC) began "An Investigation of the Suffolk County District Attorney's Office and Police Department." The investigation was on the order of Governor Mario M. Cuomo, at the request of Suffolk County Judge Stuart Namm, based on two high-profile murder trials over which he presided.
"I have witnessed, among other things, such apparent prosecutorial misconduct as perjury, subornation of perjury, intimidation of witnesses, spoliation of evidence, abuse of subpoena power and the aforesaid attempts to intimidate a sitting judge." --Judge Stuart Namm, SIC Report, 1989
Following three years of investigation, including sworn testimony and public hearings, the Commission issued a report finding "misconduct and mismanagement in homicide investigations and prosecutions," including "over-reliance on confessions," and called Suffolk's confession rate "an astonishingly high figure compared to other jurisdictions, so high, in fact, that in and of itself it provokes skepticism regarding Suffolk County's use of confessions and oral admissions." The report found "[T]he Suffolk County Police Department and District Attorney's Office engaged in and permitted improper practices to occur in homicide prosecutions, including perjury, as well as grossly deficient investigative and management practices. Because of credibility problems with prosecution testimony, including police testimony, and other defects in homicide prosecutions, guilty persons may well have been allowed to go free."
The Commission's report also found grave improprieties in narcotics operations, including drug use by narcotics officers, illegal wiretaps (the commanding officer testified he had never read the federal wiretap statute), use of informants' testimony that was known to be unreliable to obtain convictions, and fraud in obtaining favorable treatment for the son of John Gallagher, the Suffolk County Chief of Detectives, on a charge of selling cocaine to an undercover officer. However, the Commission didn't probe too deeply into some of these areas, as they learned shortly after they began their investigation that the U.S. Attorney for the Eastern District of New York was also investigating many of the same charges. The resolution of the Feds' investigation is not clear, although Gallagher was ultimately investigated by a special prosecutor and found guilty by a jury.
The Commission's report also happened to name individuals who would go on to be directly involved in the Tankleff case, including Thomas Spota (in connection with an alleged kick-back scheme), Walter Warkenthien (in connection with alleged administrative abuses) and James McCready, the detective who would take Marty's confession and upon whose testimony Marty was essentially convicted; the Commission found that McCready had perjured himself in a 1985 murder trial, three years before the Tankleff murders.
"The Confession Takers"
Around the time the SIC began its investigation, Newsday set out on its own investigative project, and in December of 1986 published a remarkable series of articles entitled "The Confession Takers." One of the series' major revelations, later referenced in the SIC report, was that Suffolk County had a 94 percent confession rate in homicide prosecutions. This far exceeded the 54 to 73 percent rate in six comparable jurisdictions, including Nassau and Westchester counties.
The Newsday series described various dubious scenarios in which written confessions were taken from suspects, including some who were illiterate and/or retarded. One notable confession was written in English and signed by a suspect who spoke and read only Spanish. In 1981, a jury awarded William Rupp $35,000 in damages, finding that detectives had smashed him in the head with a chunk of concrete while coercing a confession later proven false. "We didn't really believe the police," a juror told Newsday. They got up there one after the other and said the same thing. It was almost as if they had gotten together." Other defendants told stories similar to Rupp's--including being beaten with fists and telephone books (so as to leave no marks) and having their testicles squeezed. In 1985, sworn testimony was presented that Suffolk police mistakenly picked up a 17-year-old for rape and robbery, fired a shotgun near his head, placed a gun barrel in his mouth and gave him a beating that required hospital treatment. Suffolk County eventually agreed to pay $80,000 in a damage settlement.
"The Confession Takers" is aptly named, because in reading it, it's difficult to imagine what Suffolk County detectives were capable of doing besides take confessions. The crime lab was so neglected that mushrooms grew from cracks in the floor. The lab chief in the medical examiner's office told Newsday that the air in the lab was so moist that soil samples sprouted vegetation if left out overnight. In a case in which a woman was accused of stabbing her husband in the head, prosecutors had to offer a plea bargain because the crime lab had accidentally thrown away the victim's brain before pathology tests were completed. In 1979, a broken water main drenched a year's worth of firearms evidence. Officials described such a backlog in the lab that two-thirds of the physical evidence in death investigations in 1983-84 were never completely analyzed. During a high-profile murder trial, the supervisor of the Medical Examiner's crime lab admitted he didn't even know that his personnel were supposed to be the first to examine a murder scene--probably due to the unusual tradition in Suffolk County for the lead detective to be the first on the scene to examine and handle evidence. Meanwhile Ira Dubey, the Deputy Director of the Suffolk County Crime Laboratory, who had testified in dozens of murder cases, was found to have repeatedly testified falsely about his academic credentials, claiming, among other things, a Masters degree in forensic science he had never received. On top of that, it was found that the Assistant District Attorney and the Chief Trial Prosecutor allowed Dubey to testify falsely even after the matter came to their attention.
Not surprisingly, the Commission found "a remarkable lack of training for Suffolk homicide detectives in regard to even routine investigative techniques." One of the County's most experienced veteran detectives, Dennis Rafferty, admitted to knowing next to nothing about ballistics, saying he may have sat through "a forty-minute course in some school I went to." According to the Commission, Rafferty's supervisor, Detective Sergeant McGuire, "replied with an equally disturbing answer with respect to his own knowledge of blood-related evidence.":
Q. After they have done that, what can they tell you about the stain?
A. I guess they can tell you if it's blood.
Q. Anything else?
A. Maybe, if it's food.
Q. If it is blood, what else can they tell you about it?
A. I have no idea, sir. I guess they can break it down further, depending maybe on the freshness or whatever.
"The blind spot this indicates for this Detective Sergeant, who was a homicide team supervisor for 11 years, is remarkable. McGuire omits even simple items, for example, blood-type, let alone the more specialized information that can be gained from the forensic analysis of blood."--SIC Report
The mishandling of evidence reached new depths in People v. Corso, one of the two murder cases that led directly to the SIC investigation (although the investigation would end up covering much more than the two cases). The victim was slain "gangland-style" in his office, yet despite his answering machine reportedly containing messages from that very day, including some from known organized crime figures, the police auctioned off the machine without listening to or transcribing the tape that was in it. Nor were transcripts made from the victim's Dictaphone, despite the fact that his body was found with a demagnetizer (eraser) in his hand.
People v. Diaz
The other case that led to the SIC investigation was People v. Diaz. James Diaz was a 21-year-old drifter who "confessed" to raping and stabbing a woman to death in her home in Port Jefferson Station. After the killing, but before Diaz was arrested, the police claimed they found a kitchen knife in the woods behind the victim's home. An unsigned section of Diaz's confession, which was written by Detective Dennis Rafferty, read, "I ran out the back door...[and] threw the knife in the woods." But nine months later, the victim's former husband, playing ping pong in the basement, found a knife stained with the blood of the victim under a stack of wood a few feet from where the body was found.
Here's where our Detective McCready came in, according to the SIC's report:
"The final instance of false testimony in the Diaz case discussed at the commission's public hearing concerned testimony by Detective James McCready regarding his interviews of three railroad workers who placed Diaz near the scene of the murder close to the day of its occurrence. In his police report McCready wrote that the railroad workers recognized Diaz from pictures in the newspaper (Public Hearing, 1987). In his report McCready made no mention of any mug shots or identification procedures, and at trial McCready initially testified that the railroad workers recognized Diaz from pictures in the newspaper (Public Hearing, 1987). However, after it was demonstrated by the defense that there had not been any pictures of Diaz in the newspaper at the time of the McCready interviews, McCready changed his testimony and, contrary to his police report, said he actually had shown mug shots of Diaz to the railroad workers.
"Between the time of McCready's false testimony regarding the newspaper identification and his corrected testimony about the mug shots, Assistant District Attorney Feldman assured Judge Namm that there was no need for any identification hearing because McCready had not shown mug shots to the railroad workers. (Public Hearing, January, 1987)" --SIC Report
Diaz was found not guilty, with jurors later telling reporters that they didn't believe the detectives' testimony. "It was a very difficult thing it all came down to," a juror was quoted by Newsday. "The Suffolk County homicide squad lied to us."
Who Will Watch the Watchman?
So, after three years of reviewing tens of thousands of documents, interviewing hundreds of witnesses, hearing a hundred hours of sworn testimony in private hearings and four days of public testimony by 42 witnesses in Hauppauge, the SIC issued its damning report. The only problem was that the Commission, as a "sunshine agency," had no teeth, no powers to indict or to sanction. It would be up to someone else.
Internal reform was not about to happen. In those days, Suffolk homicide detectives didn't dispute or defend the confession rate, but rather wore it like a badge of honor, literally: in response to a National Law Journal article reporting a whopping 97 percent confession rate for 1978, members of the homicide squad attended a detectives' association picnic wearing t-shirts with "97%" printed on them.
As for the District Attorney's office, according to the Commission, "DA Patrick Henry stonewalled and sought vindication in the press." And Internal Affairs was nowhere to be found:
"After these four instances of false and/or highly suspect testimony, which were widely reported in the newspapers, Judge Namm spoke to Chief of Detectives John Gallagher and Assistant Chief of Detectives Arthur Feldman about misconduct in the case and the possibility of a police Internal Affairs Division investigation; however, none was ever begun. Police Commissioner Treder testified at the Commission's hearing that no police investigation was begun because the Commission was looking into the Diaz case (Public Hearing, 1987).
"The Commission's investigation of the Diaz case, however, is no substitute for a proper Suffolk County Police Department Internal Affairs Division investigation. First, the commission has no power to discipline the officers involved. Moreover, the Police Department may have let the 18-month statute of limitations on disciplinary infractions expire....Failure to conduct a proper disciplinary investigation in Diaz is inexcusable." --SIC Report
Brave individuals can do only so much. For his courage, Judge Namm became known as "the Serpico of Judges." He also was said to have become a pariah in the Suffolk County legal community.
Remember William Rupp, the guy found to have been smashed in the head by Suffolk's finest with a concrete block? When John Buonora, the county's top felony prosecutor, sought to dismiss Rupp's murder indictment because he was sure Rupp was innocent, it was "the beginning of the end" of his career in the DA's office, Buonora told Newsday, because "the perception was that I had made the homicide squad look bad."
The legislature? The County Executive? In "the Confession Takers," Newsday described law enforcement's unusual political clout in the county:
"The Suffolk Patrolmen's Benevolent Association, which represents rank-and-file police officers, offers politicians both money and votes. Its mailing list of 14,000 is a potent force in campaigns, and the union contributed more than $22,000 to candidates in last year's county elections--more than any other local single-interest group....
"Legis. Sondra Bachety (D-Deer Park), a Public Safety Committee member, said the legislature is reluctant to confront such a powerful political mass. 'Law enforcement is a sacred cow,' Bachety said. 'But the problem is, on the Public Safety Committee, we don't have any documentation, ever.' The committee does not probe police policies deeply, she said, because legislators 'are afraid of what they might find. We are not an oversight committee, in my opinion.'" --Newsday's "The Confession Takers"
That leaves the judges, who, while Suffolk detectives were presenting confessions in 94 percent of their homicide cases between 1975 and 1985, were suppressing just five percent of them. While "prosecutors and police said that indicates Suffolk detectives are doing their job properly," Newsday wrote in The Confession Takers in 1986, "some lawyers and former officials, however, say that it indicates that Suffolk judges are shirking their role as reviewers of police conduct."
A former president of the Suffolk Criminal Bar Association, Robert Quinlan, told Newsday that judges were under great peer pressure. "To suppress a confession is quite an act by a judge," Quinlan said. "It can earn you ostracism from other judges." But [former District Attorney Henry] O'Brien told Newsday that giving police the benefit of the doubt creates "an atmosphere where the police can do no wrong."
A "Confession" Taken
All of the above forms the backdrop for the Marty Tankleff case, as the State Investigation Commission held its public hearings in Suffolk County in January of 1987 and January of 1988, eight months before Detective McCready took Marty's "confession." The Commission issued its report in April of 1989, one month after Marty’s pre-trial hearings began. As peculiar as its details are, the Marty Tankleff case should not have surprised anyone. The case did not come out of nowhere. Like those mushrooms in the lab, it came out of a culture.