Debating a Defense That Won't Rest
By Steve Wick
October 21, 1990
Nearly 700 miles from the Suffolk County courthouse, in his office at Notre Dame Law School, G. Robert Blakey has followed the Martin Tankleff murder case. Mostly, he doesn't like what's he heard.
Blakey's concern is not about the trial - which he watched in court for a few days last summer while visiting his son, a Suffolk assistant district attorney - but about the hearings that have taken place since Tankleff was convicted.
"It seems, really, like there's been one irrelevant charge after another," said Blakey, author of the federal Racketeer Influenced-Corrupt Organizations Act. "And they have nothing whatsover to do with whether this boy committed this crime, or how much time in jail he should get. Nor do I think any of these actions are in his best interests. The introduction of extraneous information threatens the process by which we establish innocence. It's become an outrage."
Since Tankleff was convicted in June of murdering his parents, Suffolk County Court Judge Alfred Tisch has presided over a variety of hearings and court arguments in which defense lawyer Robert Gottlieb has accused Tisch and lead prosecutor John Collins of misconduct; charged that a juror was surreptitiously fed information that could not be introduced at the trial; and accused another prosecutor of making anti-Semitic remarks about him.
By the time the most recent hearing - into the alleged misconduct of juror Frank Spindel - is over, Tisch will have heard testimony from almost all, if not all, of the jurors and from Collins. That hearing, delayed Friday because the defense was unable to subpoena three more witnesses, is scheduled to resume tomorrow.
So bitter have the confrontations become that, some say, Tankleff has almost faded into the background - raising the question of whether the proceeding could really have an effect on Tankleff's freedom.
"This case has become a circus," said Nassau County criminal defense lawyer Stephen Scaring.
Others praise Gottlieb, saying he is only trying to defend his client.
"He is doing what he has to do - zealously defend his client," said Peter Davis, a law professor at Touro Law School in Huntington. "I don't think he has gone too far."
"All that I am doing is in the best interests of my client," Gottlieb said. "I have not crossed any line I shouldn't have . . . We believe Marty is innocent, and we believe there are numerous credible reasons why there should be a new trial."
What has made the byplay all the more intense are personal and political factors beyond the question of Tankleff's guilt. They go back to early last year when Gottlieb jockeyed to get the Democratic nomination for district attorney and prepared for a campaign that initially he thought could be against Tisch, a Republican. When Tisch chose not to run, Gottlieb ended up challenging James Catterson in what became a bitter campaign.
In fact, Catterson - who last week called Gottlieb a "turkey" - said the Tankleff case only serves to remind him that he didn't like Gottlieb during the campaign. "I can't hide my disdain of him," he said. "I didn't like him during the campaign, and I've never thought much of him as an attorney," he said. Catterson denies, however, that his disdain for Gottlieb affects the way his office handles cases in which Gottlieb is the defense lawyer.
Tisch would not comment. But Gottlieb's law partner, Ronald Sussman - who was Gottlieb's campaign manager - says he believes Tisch became predisposed to hurt Gottlieb's defense of Tankleff after Sussman asked Tisch to excuse himself from the Tankleff case. Tisch refused.
At the time, Sussman said Tisch should not be a sitting judge and run for district attorney at the same time. Tisch denied he was a candidate, a denial Sussman continues to disbelieve.
"This case has stunk from the very beginning," Sussman said. "From the judge's involvement in politics, to the very end with our belief about juror misconduct, it has stunk." He said he believed that Tisch had a personal grudge against him and Gottlieb for "ruining" his political aspirations.
"He has demonstrated his personal bias against us," Sussman said. "And I can say that Marty Tankleff did not get a fair trial."
Gottlieb and Sussman have made two additional recusal requests. One came after they said they spoke with a bartender who said he saw Tisch with Collins and a homicide detective, James McCready, at a Belle Terre country club celebrating Tankleff's conviction. Tisch angrily denied he attended any victory party. CORRECTION: An allegation that Suffolk County Court Judge Alfred Tisch joined a prosecution victory celebration at a Belle Terre country club after the murder conviction of Martin Tankleff came initially from a club employee and was relayed to defense attorney Robert Gottlieb by a bartender. A story in Sunday's Newsday incorrectly reported the source of the information, which Tisch has said is inaccurate.(10/23/90 2 NS)
Also contributing to the situation is that Gottlieb is not well-liked in Suffolk legal circles. Some bristle at what they say is Gottlieb's effort to paint himself as more ethical than other lawyers; others claim Gottlieb is a publicity-seeker who attracts attention to himself but does not get results.
Gottlieb contends this is largely because he is an outsider. "I am not a party person, or the kind of lawyer who buddies up to other lawyers and goes to bars with them," he said. "I have never called Judge Tisch by his first name, or any other judge by his first name. That's not my personality. I'm not part of the legal clique.
"I have no agenda in this case other than the defense of my client," he added. "I don't want to reform the homicide squad, although I would be delighted if it happened. What I am doing is representing my client. This is a difficult, hard-hitting case, but I won't give up on Marty Tankleff."
Tisch, meanwhile, has expressed increasing impatience at the direction the proceedings have taken. Originally, they began as a request by Gottlieb for time to investigate purported new evidence that would point toward Tankleff's innocence. Since then, no new information that might implicate someone else in the murder has been brought before Tisch.
Instead, Gottlieb raised the questions about Spindel's misconduct, including the use of telephones at the motel where the jury was staying, as well as an allegation that Spindel was exchanging hand signals with Collins during the deliberations. Collins, as well as Spindel, denied that hand signals detailing the status of jury deliberations were being exchanged. Gottlieb produced affidavits from two jurors to support hisclaim; other jurors who testified have tended to back Spindel.
Last week, Gottlieb asked Tisch for a special prosecutor to investigate charges that Assistant District Attorney Robert Caccese called Gottlieb a "Jew bastard" while drinking at a Riverhead restaurant. The attorney who says he overhead the remarks, Reynold Mauro, has an office in the same Commack building as Gottlieb. In addition to the anti-Semitic remarks, Mauro quoted Caccese as saying Gottlieb was "done" in Suffolk County. Caccese denied making the anti-Semitic remarks, and Tisch refused to appoint a special prosecutor to look into the allegations. Mauro refused to discuss the incident with a reporter last week.
"A lawyer should not make overstatements or overplay his case," said E. Lawrence Barcella, a Washington, D.C., criminal lawyer and nationally recognized expert on criminal procedures. "The out-of-the-courtroom comments of someone in a bar doesn't have diddly to do with what happens inside the courtroom. A lawyer can get so caught up in a case that he forgets his client."
Tisch will decide, possibly this week, whether Tankleff should get a new trial, or whether he should be sentenced. If Tisch finds that there was juror misconduct that prejudiced the case, or that there is any "new" evidence that casts doubt on Tankleff's guilt, he has the power to set aside the verdict and order a new trial.
If he finds there was no misconduct and no new evidence, then he will sentence Tankleff to a maximum of 50 years to life in prison. If that happens, Gottlieb has said, he will appeal.
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