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The Tankleff Matter
New York Law Journal
MINEOLA - A retired state Supreme Court justice has lent his name and the stature of his office to the cause of winning a new trial for Martin Tankleff.
In 1990, a Suffolk County jury convicted Mr. Tankleff, then 19, of having brutally murdered his parents, Seymour and Arlene Tankleff, in their Belle Terre home two years earlier. Despite police possession of a purported - but unsigned - confession, Mr. Tankleff continues to maintain his innocence.
He is serving two consecutive 25-year-to-life sentences at the Clinton Correctional Facility in Dannemora, N.Y.
In 2003, a Garden City criminal defense attorney filed papers seeking a new trial based on statements said to have been made by a cadre of local petty criminals in the years since Mr. Tankleff was sent to prison. Those remarks, coming in the form of reckless boasts, asides and, in one case, a recanted admission, all pointed blame not at Mr. Tankleff, but at one of his father's business partners.
Suffolk District Attorney Thomas J. Spota initially opposed both the new trial motion and a later application seeking the district attorney's recusal based upon alleged conflicts of interest.
Suffolk County Court Judge Stephen L. Braslow denied the defense motion, which would have replaced Mr. Spota and his entire office with an independent special prosecutor. But before doing that, and with the district attorney's acquiescence, the judge decided to hold an evidentiary hearing before ruling on Mr. Tankleff's new trial motion.
With numerous non-consecutive days of testimony, the hearing, which started in July, continues still. So far, the defense has marched to the witness stand convicted criminals, their associates and an expert witness who told the court that the confession extracted from Mr. Tankleff was coerced from an innocent man and should be thrown out.
The prosecution has produced two of the would-be assailants, who denied any involvement in the killings.
Mr. Spota's office stands by the conviction, asserting that the confession, when read in conjunction with Mr. Tankleff's behavior immediately before and after his parent's murders, his trial testimony and other crime-scene evidence, all support the guilty verdict.
The parties are due back in court on Feb. 3.
Against this backdrop, Justice Herbert A. Posner, who sat for 20 years as both a criminal and civil judge in Manhattan, has issued a two-page statement in which he argues that the new evidence proffered by Mr. Tankleff's lawyers "should have raised some serious doubts" in the minds of the Suffolk County District Attorney's Office.
"Fair minded members of the Justice System would want to do their own investigation," he wrote. "Unfortunately, such is not the case."
Justice Posner's statement is posted at www.martytankleff.org, a Web site maintained by Soury Communications, a Manhattan public relations firm. Soury and Mr. Tankleff's legal team, led by Bruce A. Barket of Garden City, are working pro bono.
In addition to the judge's commentary, the site includes dozens of postings from family, neighbors, friends and strangers following the case from as far away as Wellington, New Zealand.
The site also solicits donations to the Marty Tankleff Defense Fund, which are said to defray expenses.
Mr. Spota, who was in private practice at the time of the killings and the ensuing trial, has declined all requests for interviews concerning the Tankleff case, a spokeswoman said.
Assistant District Attorney Leonard Lato, who ordinarily leads the office's Insurance Crimes Bureau, was tapped by Mr. Spota to handle the Tankleff matter. A former federal prosecutor with the U.S. Attorney's Office in Brooklyn, Mr. Lato said he was selected because he has only been with Mr. Spota's office for one year and had no prior connection with the case or any of its principals.
Mr. Lato flatly rejected the notion that Mr. Tankleff is entitled to a new trial, asserting that 90 percent of the evidence proffered by his defense team would be inadmissible in such a forum.
Mr. Barket countered that the mound of evidence put before the court should be sufficient to entitle Mr. Tankleff to an impartial investigation of the facts as they now appear to be. That investigation, he asserts, would inevitably lead to at least a new trial for his client.
Both Mr. Barket and Mr. Tankleff asserted in interviews last week that all they want is an impartial investigation. Mr. Spota's office, they insist, has unreasonably opposed that request.
Now living in California, Justice Posner said by phone on Friday that he became involved in the case after one of Mr. Tankleff's supporters sent a letter seeking his support.
The judge said that after reading up on the case and speaking to Mr. Barket, he became convinced that Mr. Tankleff's supporters are correct.
"A great injustice has been done," Justice Posner said. "The Suffolk district attorney's office is disinterested in proving that their predecessors, 17 years ago, made a mistake."
Mr. Lato said that if the Web site - and Justice Posner's posting in particular - is meant to pressure prosecutors and the court into granting a new trial, it is "a waste of time."
He cautioned that when seeking publicity for a cause, people should "be careful not to overdo it because sometimes . . . that can have the intended effect or the opposite effect. . . . The judge might say, I resent the outside interference. . . . I'm sure [Justice Posner] would not have appreciated some retired judge telling him what to do."
Justice Posner said his posting is intended for the general public and not aimed at Judge Braslow in particular.
The retired judge said he also intends to launch a letter-writing campaign on behalf of Mr. Tankleff. While he will not solicit the support of any judges, Justice Posner will urge the support of Republican Governor George E. Pataki, U.S. Senator Charles Schumer (D-N.Y) and Representative Timothy Bishop (D-Suffolk), among others.
A Tangled Web
At the heart of the Tankleff team's argument is the assertion that the Suffolk justice system is riddled with conflicts of interest that make it impossible for either the police department, the District Attorney's Office or the courts to conduct an objective review of what happened in the Tankleff matter.
Mr. Lato dismisses such allegations as a desperate ploy to direct attention away from the evidence adduced at Mr. Tankleff's trial.
It is undisputed that while in private practice Mr. Spota defended retired police detective James McCready - a leading detective in the original investigation - when he was charged with assault in an unrelated case.
It is also undisputed that one of Mr. Spota's former law partners represented the son of Jerry Steuerman, who is accused by Mr. Tankleff and others of instigating the murders of Mr. Tankleff's parents.
Mr. Steuerman, the self-proclaimed "bagel king" of Long Island, ran a string of bagel shops in partnership with Seymour Tankleff. At the time of the killings, Mr. Steuerman reportedly owed Seymour Tankleff hundreds of thousands of dollars.
According to the defense, Mr. Steuerman also knew Detective McCready as well as a group Mr. Tankleff called "the Selden Crime Syndicate," a group of criminals that included the men he says murdered his parents: Joseph Creedon and Peter Kent.
Messrs. Creedon, Kent and Steuerman have all publicly denied taking part in the killings.
Mr. Tankleff argues these relationships mean that Mr. Spota cannot objectively examine Mr. McCready's investigatory work or direct a prosecution aimed at people he, or his former partners, once represented.
Mr. Spota and Mr. Lato reject those contentions, as did Judge Braslow. In an unpublished September 2004 decision, Judge Braslow said that "the court cannot find that the District Attorney is not doing what he should be doing in this hearing."
Arlene and Seymour Tankleff were stabbed and bludgeoned to death in their home in the early morning hours of Sept. 7, 1988. Martin Tankleff has testified that he slept through the assaults, hearing nothing. He awoke to the grisly scene around 6 a.m. that morning, and called police about 10 minutes later.
Mrs. Tankleff's body was found on the floor of the bedroom she shared with her husband. She had been beaten with a blunt object. The assailant also had slit her throat.
Seymour Tankleff was found in a chair in his study, also stabbed and beaten but alive, Mr. Lato said. Comatose by the time rescue workers arrived, Seymour Tankleff never regained consciousness and died a month later.
From the start, Martin Tankleff told police he believed his parents had been killed by Mr. Steuerman, who faked his own death days after the murders and fled to California, even though police had already publicized Martin Tankleff's confession.
In spring 2003, Mr. Tankleff made contact with a retired New York City police detective, Jay Salpeter, now working as a private investigator in Great Neck. Mr. Salpeter agreed to look into the case and, in August of that year, secured an affidavit from Glenn Harris, a criminal associate of Messrs. Creedon and Kent. In it Mr. Harris claimed that he unknowingly drove the get-away car on the night of the murders. He also stated he believed his colleagues were intent on pulling off a burglary, not murder.
But because he was unable to gain immunity from Suffolk prosecutors in exchange for his testimony, Mr. Harris took the Fifth Amendment when he was called to testify at the retrial hearing.
Justice Posner blasted the prosecution for denying Mr. Harris' request for immunity.
The judge said that instead of letting Mr. Tankleff remain imprisoned for a crime he may not have committed, prosecutors should have offered Mr. Harris immunity so he would be willing to testify against Messrs. Kent and Creedon, whom he has previously said are the real killers.
"If I was the prosecutor, I'd feel that was a small price to pay to have justice," Justice Posner said.
Mr. Tankleff, now 32, said in a telephone interview last week that he is "cautiously optimistic" about winning a new trial. His optimism, he said, is tempered by the reality that every other avenue of redress he has sought since his conviction has failed by the narrowest of margins.
"We've been right on the verge of success in the past," he said.
In 1993, the Appellate Division, Second Department, voted 3-2 to uphold his conviction.