Marty Tankleff Blog

Tankleff Defense Files Motions on New Evidence and Grand Jury

Today Marty's lawyers filed two motions in Suffolk County court. The first motion seeks answers to why evidence of Marty's innocence in the hands of the Suffolk County District Attorney has not yet been turned over to Marty's lawyers. The other motion questions whether the Special Prosecutor, Attorney General Andrew Cuomo, appointed to replace the conflicted Suffolk County DA, has been using a grand jury that may be influenced by the Suffolk County DA.

The first motion, filed before Suffolk County judge Robert W. Doyle, seeks any exculpatory evidence that may be in the possession of the Special Prosecutor, and cites good reason for believing such evidence exists and should have been made available to Marty by now:

“We base our belief on several examples of instances where the Suffolk County District Attorney received exculpatory information but did not disclose it.  For example, in October 2007, Tankleff investigator Jay Salpeter interviewed witnesses Tina Molloy and Dennis Piacente…. During that interview, Ms. Molloy stated that Joseph Creedon had admitted to her his involvement in the Tankleff murders…. She also stated that she had previously voluntarily brought the information to the attention of Suffolk County Assistant District Attorney, Leonard Lato…In fact, in August 2007, Ms. Molloy met with Mr. Lato and investigator Walter Warkenthien…. The Suffolk County District Attorney’s Office never brought this information to the attention of defense counsel; instead Ms. Molloy contacted Mr. Salpeter with the evidence…. In subsequent news accounts, Mr. Lato stated that his meeting with Ms. Molloy and Mr. Piacente was recorded. To date, those tapes have not been produced to defense counsel. Had the witnesses not contacted the defense directly we may never have learned of their existence. Without the tapes, we may not be able to fully develop their exculpatory information.”

In addition, the defense learned that a sheriff’s informant spoke with Mr. Lato about the case and provided exculpatory information. However, the Special Prosecutor has not responded to defense requests for details about this new evidence.

A separate motion before Suffolk County Judge James C. Hudson seeks to compel the Special Prosecutor, Attorney General Andrew Cuomo, to disclose whether he has used a regularly empaneled Suffolk County grand jury in the Tankleff case, and, if he has, to cease. The issue is one of fairness, since the conflicted Suffolk DA and other law enforcement agents would be appearing before the very same grand jury:

“Given the myriad and obvious conflicts of interest within the District Attorney’s office — implicitly recognized by the District Attorney himself in seeking the appointment of a special prosecutor — there is no way to ensure that a grand jury before which the office of the Suffolk County District Attorney is regularly appearing is not being influenced by that office. The integrity of the grand jury process requires that the grand jury investigating this case not be tainted by the conflicted office of the Suffolk County District Attorney."

The motion also seeks to establish that the grand jury is being used properly and not in an impermissible attempt to pursue the twenty-year-old indictments against Marty. Rather, Marty's lawyers seek the Special Prosecutor’s representation that he is using the grand jury for a legitimate purpose, such as pursuing charges against those individuals--including Jerry Steuerman, Joey "Guns" Creedon and Peter Kent--who have been implicated as the murderers of Arlene and Seymour Tankleff.

The motions were filed before different judges because while Judge Doyle is the trial judge, Judge Hudson is the presiding judge who oversees grand jury matters.

Last December, the New York State Appellate Division, Second Department, unanimously vacated Marty’s convictions, reversing the Suffolk County court and remanding the case back to Suffolk County. On December 29, 2007, the State Investigation Commission announced it was in the midst of a yearlong investigation into how Suffolk County law enforcement handled the Tankleff case over the years. Four days later, on January 2, 2008, the first business day of the New Year, the Suffolk DA announced he would not re-try the case against Marty and that he would ask the governor to appoint a special prosecutor to reinvestigate the murders. Since then the Special Prosecutor has undertaken its own investigation, which has included the use of a grand jury, while Marty remains under indictment.

Marty Tankleff Appears before NY State Senate Task Force on Criminal Justice Reform

Yesterday Marty Tankleff appeared before a New York State Senate Task Force on Criminal Justice Reform, at a public forum entitled "Preventing Wrongful Convictions in New York State: Systematic Reforms to convict the Guilty and Protect the Innocent."

The task force, chaired by Senator Eric Schneiderman (who invited Marty) and including Senators Eric Adams, Bill Perkins, John Sampson, Velmanette Montgomery and Assemblyman Charles Lavine, chose Suffolk County as the venue for the forum because it's where the Tankleff case took place. Among the reforms being considered by the state legislature are the mandatory recording of interrogations, preservation of DNA testing, and changes in eyewitness identification procedures.

First to testify was Barry Scheck of the Innocence Project, who cited several instances in which the real culprits had committed additional crimes, including murder, while the wrong person was in prison, and he talked about how Marty's conviction came out of the problems in Suffolk County law enforcement cited by the State Investigation Commission's report in 1989.

The senators seemed genuinely grateful for Marty's appearance, despite the fact that Marty didn't speak, on the advice of his lawyers, since he remains under indictment pending Attorney General Andrew Cuomo's investigation. Marty did, however, offer a written statement, in which he calls for mandatory recording of the entire interaction between police and suspects:

"Every part of the interview and interrogation needs to be recorded. I know had my entire interrogation been recorded, I would not have served 17-plus years for crimes I am innocent of.  From the moment a person speaks to law enforcement, their conversations should be recorded. With today’s technology, there is no excuse not to record everything."

As Marty sat silently at the table, Lonnie Soury and this writer, Eric Friedman, read a separate statement  and answered questions from the senators. In the spirit of the proceedings, the emphasis was on the lessons that should be drawn from Marty's case and what can be done to avoid similar miscarriages of justice:

"While presumption of innocence is considered a bedrock principle of our criminal justice system, police interrogations actually begin with a presumption of guilt. As false confession expert Professor Saul Kassin of John Jay and Williams College has shown, police interrogation techniques are based on the Reid nine-step process, the first step of which is to 'confront the suspect with unwavering assertions of guilt.' Add to this the fuzzy process by which an 'interview' becomes an 'interrogation,' and you're left with the judicial system depending on the good will, honesty and competence of the detective doing the interrogating in any given case. If the truth matters, record police questioning from beginning to end."

The reason the videotape should start rolling as soon as the suspect enters the interrogation room was powerfully demonstrated by Nicholas A. Gravante, Jr., the lawyer for a kid named Frank Esposito in an arson case. Gravante began by showing a videotape of Esposito's tearful and absolutely convincing "confession" to burning down a friend's barn. What the video didn't show was the police coercion that had taken place all night as Esposito thought about how his mother must have been worried sick, as police had refused to allow him to call her. (You have a right to call a lawyer, but no right to call a family member.) The only problem was that Esposito was later proven to have been elsewhere when he supposedly set the fire, and was acquitted at trial.

Gravante also took care of the argument that implementing mandatory recording is too expensive, simply by pointing out that it's not nearly as expensive as mounting trials of innocent people.

Also testifying was well-known false-confession exoneree Jeffrey Deskovic;Thomas Sullivan, an attorney and author who described how and why most police support recording of interrogations once their jurisdictions adopt the practice; and a representative from Suffolk County Executive Steve Levy's office, who stated, in very general terms, that Suffolk County would be implementing some sort of recording policy at some point in time.

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To read more about how false confessions happen, click here.