Final vidence Heard In Martin Tankleff's Motion for New Trial
Andrew Harris
New York Law Journal

MINEOLA - Suffolk County Court Judge Stephen L. Braslow on Friday heard the final evidence in Martin Tankleff's motion to win a new trial.
Mr. Tankleff was convicted in 1990 of murdering his parents, Seymour and Arlene Tankleff, in their Belle Terre home on Sept. 7, 1988. Only 19 at the time, he was sentenced to two consecutive 25-years-to-life sentences.
In the spring of 2003, a private investigator hired by Mr. Tankleff's family uncovered what he said was new evidence proving that the true killers were a trio of career criminals hired by one of Seymour Tankleff's business partners.
The evidence, which included first- and second-hand accounts of what allegedly happened on the night of the murders, formed the core of the new-trial application.
The motion was filed by a group of attorneys led by Garden City criminal defense lawyer Bruce A. Barket. The team included Barry J. Pollack of the Washington, D.C., office of Nixon Peabody.
Leading the opposition was Assistant Suffolk District Attorney Leonard Lato, a former federal prosecutor.
During the oft-interrupted hearing that started in July 2004, Judge Braslow heard from a panoply of defense witnesses whose mission was to persuade the judge that there was enough evidence for him to conclude that an acquittal was possible and that a new trial should be ordered.
Among Mr. Lato's witnesses were one of the accused killers, who denied his involvement, as well as an investigator for the county district attorney's office, assigned to check out the new witnesses' story.
Mr. Lato said that he believes the defense had not met its burden at the hearing. The bulk of the evidence, he said, was "unreliable, inadmissible or both."
In contrast, Mr. Barket was optimistic. "From an evidentiary standpoint, I couldn't be happier," he said.  He described the evidence as "a web" implicating alleged assailants Peter Kent, Joseph Creedon, Glenn Harris and Seymour Tankleff's former business partner, Jerry Steuerman.
Criticizing the Suffolk District Attorney's Office, he said that for an objective prosecutor, there was "certainly enough evidence to indict" the quartet. They had motive, opportunity, inclination and propensity, he asserted.
Mr. Lato dismissed many of Mr. Barket's witnesses as "career criminals" of doubtful credibility. He also said there was no physical evidence tying them to the crime scene.
Noting that the original jury trial ran nine weeks, during which Martin Tankleff himself took the stand, he said, "You can't just have a do-over."
Up-Hill Climb
The new trial motion was made pursuant to Criminal Procedure Law +AKc-440. In assessing the difficulty of winning such an application, Garden City criminal defense lawyer Stephen P. Scaring said, "It's really very hard."
Mr. Scaring, who once lead the Homicide Bureau in the Nassau County District Attorney's Office, explained that a judge is always reluctant to overturn the verdict of a jury whose deliberations and weighing of witnesses' credibility is always private and usually unknowable.
Mr. Scaring also noted that in Mr. Tankleff's case, 15 years have elapsed since his conviction.
"A judge would have concern that the evidence is stale," he said.
Still, Mr. Scaring added that if a judge believes there is a possibility that given the state of the new evidence a jury may find the defendant not guilty, the judge will set the conviction aside.
Martin Tankleff's relative youth and lack of a prior criminal record gives him "a little bit of an edge," Mr. Scaring said. "If he's innocent, his whole life is taken away from him."
Like Mr. Scaring, Douglas T. Burns, a partner in Garden City's Shaw Licitra Gulotta Esernio & Schwartz, is a former prosecutor turned defense counsel. He too characterized the +AKc-440 motion as one that is "difficult to win." Such motions, he said, are most often predicated upon new evidence.
"Unless something is really super compelling," Mr. Burns said, "it's an up-hill battle." Among the issues the judge would have to consider are why the people who say they know what happened did not come forward sooner, he said.  Mr. Burns, who served in the U.S. Attorney's Office with Mr. Lato, said the Tankleff case deserves a "fair and close look."
"I don't think it's a frivolous application," he added.
Mr. Tankleff's team is to file a post hearing brief by March 11. After Mr. Lato responds, the final defense brief is due on April 29.
- Andrew Harris can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it.