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Justice Perverted
 Tankleff case holds echoes of Suffolk's long history of misconduct by police, prosecutors; change may be needed

BY PETER L. DAVIS

Peter L. Davis, associate professor of law at Touro Law School in Central Islip, was special counsel to the Public Safety Committee of the Suffolk County Legislature during its investigation of law en

January 13, 2008

Even before an appeals court threw out the conviction of Martin Tankleff for the murder of his parents, the New York State Investigation Commission began looking into how this miscarriage of justice could have occurred - causing Tankleff to spend more than 17 years in prison for a crime he most likely never committed.

We are living through another sordid chapter in the history of Suffolk County law enforcement. By the time of Seymour and Arlene Tankleff's bloody murders in 1988, the county already had amassed an unenviable record of perverting justice. The next year, the same State Investigation Commission termed the pattern of public criticism of the county's law enforcement agencies "unique to any county in New York State with respect to frequency and intensity."

Indeed, for several years during the 1980s, the SIC received more than twice as many complaints about Suffolk law enforcement as it did about law enforcement officials in any other county of New York.

According to a succession of official and unofficial reports during those years, Suffolk homicide detectives miraculously obtained confessions in almost every case they investigated, botched the handling of murder weapons, neglected evidence, committed perjury, and (along with the district attorney) suffered from tunnel vision in their dogged refusal to consider suspects other than the one they originally fixed upon. Anyone familiar with the facts of the Tankleff case will recognize this description as eerily familiar.

The SIC's 1989 report was an impressive, comprehensive analysis. But no one should read it without an analgesic nearby; its drumbeat of prosecutorial and police sins is unrelenting, with evidence of illegal drug use and related offenses by Suffolk police officers, illegal wiretaps, preferential treatment for relatives of public officials, and a failure by the police department and DA to investigate and punish employees guilty of misconduct (what the commission called "the practice of sweeping law enforcement misconduct under the rug").

Earlier findings cited in the report included the following:

From 1976 to 1981, appellate courts reversed eight convictions obtained by the Suffolk district attorney because confessions had been obtained improperly.

In 1976, a grand jury concluded that the Suffolk County Police Department had a "tradition" of not reporting to the district attorney crimes committed by its own police officers.

In 1979, the National Law Journal reported that Suffolk police often used force to induce defendants to confess in homicide cases.

In 1980, a report of the Suffolk County Bar Association indicated that Suffolk police had a brutality problem, which the district attorney ignored.

In 1985, Suffolk County Court Judge Stuart Namm wrote to then-Gov. Mario Cuomo to request the appointment of a special prosecutor to look into criminal misconduct by the police and the district attorney's office in their role in two homicide cases tried before him.

In 1987, an investigation by the Public Safety Committee of the Suffolk County Legislature, for which I was special counsel, revealed substantial, possibly criminal, misconduct in the county police department and the DA's office.

Regarding homicide cases, the State Investigation Commission uncovered controversies over the recovery of murder weapons, what it called "false testimony" by Det. James McCready (later, the lead detective in the Tankleff investigation), and possible perjury by Suffolk assistant district attorneys.

The commission also found a neglect of routine note and record keeping by Suffolk police, as well as "an overreliance on confessions." Suffolk detectives purportedly extracted confessions or other oral admissions in fully 94 percent of Suffolk homicide cases - "an astonishingly high figure compared to other jurisdictions; so high, in fact," in the SIC's view, "that in and of itself it provokes skepticism."

This confidence that all suspects eventually would confess led to a neglect of both the old-fangled shoe-leather techniques of investigation familiar from black and white movies as well as the newer, science-based techniques of detection we associate with crime labs and CSI units. As the SIC put it, "With Suffolk's methods, the chances of the guilty going free are simply too high."

Perhaps most significantly, the commission reported what it termed "an attitude of 'you do what you've got to do to arrest and convict.'" The commission also concluded that the Suffolk district attorney's office under then-DA Patrick Henry was more concerned with vindicating in the media its own position - and that of the police - than it was with achieving justice.

Wouldn't most of this sound familiar to Martin Tankleff? One gets the depressing feeling that, despite the SIC's authoritative report all those years ago, and all the other reports over time, not much has changed in Suffolk law enforcement.

Nearly 30 years of studies and reports is enough. If (and this is a big if), in the course of its Tankleff investigation, the SIC finds that Suffolk law enforcement has not changed much since its 1989 report, then the SIC ought to change the nature of its recommendations this time around.

In 1989 it made most of its recommendations to the police commissioner and the district attorney, who head the two major law enforcement agencies in the county. This time the commission should make recommendations aimed at establishing some external controls over those two agencies.

First, the SIC should recommend that Suffolk County come into the 21st century by establishing a civilian complaint review board to institutionalize genuine civilian oversight of law enforcement. The police department has proved time and time again that it cannot police its own. For too long Suffolk has been known as the Wild, Wild East.

Second, the SIC must address the more difficult problem of the district attorney's office. While there is by now a significant tradition of civilian oversight of police agencies in the United States, American law has long given prosecutors almost complete discretion; there is no simple mechanism to check prosecutorial misconduct. The forerunner of the SIC, however, was created by racket-busting Gov. Thomas E. Dewey, and the agency maintains a close relationship with the office of the governor.

By law, the commission is authorized to conduct investigations concerning "the faithful execution and effective enforcement of the laws of the state" and the conduct of public officials and public employees. Where it finds cause for the removal of a public officer, it is mandated to supply the supporting evidence to the entity empowered to remove that officer, which, in the case of a district attorney, is the governor.

If the SIC's Tankleff investigation reveals that not much has changed in Suffolk law enforcement since 1989 - and the DA's office is still operating as it was - then the commission should use that power to recommend to the governor that he remove the district attorney.

The governor has a legal responsibility under our state constitution to "take care that the laws are faithfully executed," and would be justified in removing a district attorney who is not doing his job properly. Alternatively, the governor could, by executive order, supersede the district attorney with the state attorney general, to the extent the governor found necessary and prudent.

These are extreme remedies, not to be undertaken lightly. But Gov. Eliot Spitzer, a former prosecutor himself, will no doubt recognize that, with the integrity of the criminal justice system at stake, the failure to faithfully execute the laws over a period of three decades - if miscarriage turns out to be continuing - demands such radical solutions.