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Newsday Op-Ed

Tankleff case needs special prosecutor, not Spota

BY BENNETT L. GERSHMAN

Bennett L. Gershman is professor of law at Pace Law School in White Plains.

December 30, 2007

Now that a state appeals court has overturned the conviction of Martin H. Tankleff for murdering his parents in 1988, urgent questions arise: Was Tankleff, then 17, tricked into confessing by dishonest Suffolk County police? Is the new evidence of Tankleff's innocence so powerful that convicting him at a second trial would be virtually inconceivable? If Tankleff is innocent, will the real killers ever be brought to justice?

But first, another critical question must be asked: Should the Tankleff case continue to be handled by Thomas Spota, the Suffolk County district attorney whose office has prosecuted the case from the beginning? Or should Gov. Eliot Spitzer, pursuant to state law, appoint an independent special prosecutor to evaluate the new evidence objectively and convene a special grand jury to determine whether Tankleff should be tried again or whether murder charges should be brought against others?

The ethical rules, particularly those relating to conflicts of interest, require that Spota be superseded by a special prosecutor. Spota's past associations when he was in private practice with key people connected to the case make it difficult, if not impossible, for him to act independently and objectively, even if he believes he can. His subsequent representation of the detective who had allegedly duped young Tankleff into confessing, and his law partner's representation of the man now frequently alleged to have been the ringleader of the Tankleff murders, make it hard for Spota to distance himself from his past and avoid the appearance of a conflict.

As a private lawyer, Spota represented Det. James McCready, the key witness at Tankleff's trial who procured the dubious confession and is now suspected of perjury by denying knowledge of other suspects, especially Jerry Steuerman, a key suspect in the murders. Spota successfully defended McCready at his 1993 trial on charges of assault and battery, as well as before the New York State Commission of Investigation, which found in 1989 that McCready perjured himself in another murder case. The commission report described Suffolk County's "overreliance on confessions" - 94 percent of Suffolk homicide prosecutions involved confessions ("an astonishingly high figure") - and expressed "skepticism" about their reliability. The commission also noted that Spota was legal counsel to the Detectives Association of the Suffolk County Police Department.

Spota's law partner, Gerard Sullivan, represented Jerry Steuerman, who was identified by several witnesses at the hearing for a new trial as the ringleader in planning and carrying out the Tankleff murders. There are good reasons to credit this accusation. Steuerman owed the elder Tankleff hundreds of thousands of dollars, was in the Tankleff home the night of the murders, absconded days after the killings after withdrawing money from a joint bank account with Tankleff, faked his suicide and changed his identity. Sullivan also represented Steuerman's son, Todd, in a 1983 drug case.

If appearances mean anything, then Spota cannot continue to prosecute this case. He has an ethical duty of confidentiality to his former clients. If he decides to conduct a thorough review of the evidence to determine whether Tankleff should be tried again, he may have to breach this duty and therefore act against the interests of his former clients, which is forbidden by the ethical rules. If Spota insists on prosecuting Tankleff again, it may appear that he is more concerned with protecting the interests of his former clients than seeing that justice is done. Either way, Spota's personal and political interests are compromised.

A special prosecutor would not be burdened with these ethical pitfalls and would be able to conduct an independent and objective investigation into who killed the Tankleffs.