Newsday
New Evidence Only A Step to New Trial
Robin Topping
October 8, 2003
Last week, after years of failed state and federal appeals, the lawyers for a Belle Terre man convicted of murdering his parents in 1988, announced they had new evidence of his innocence.
But despite the hopes of Martin Tankleff's defense team and family, Tankleff isn't coming home yet.
Before Tankleff can walk out of the Clinton Correctional Facility in upstate New York after serving 13 years of a 50-years-to-life sentence, there are many legal obstacles to be negotiated.
At the very least, Suffolk District Attorney Thomas Spota has to investigate and decide whether he wants to oppose the motion. Spota could consent to a hearing, without conceding that the conviction should be thrown out.
But it will be up to County Court Judge Stephen Braslow to decide whether there will be a hearing. It would be a sort of mini-trial, although the burden of proof - which is normally on the prosecution - will be on the defense.
They have to meet a stringent legal test. The defense must show, by law, that the evidence discovered is indeed new and that it could not have been found before the 1990 trial, even using "due diligence." That means Tankleff's trial lawyer, Commack attorney Robert Gottlieb, could not have found the evidence, despite his best efforts.
Tankleff's new defense lawyers also have to prove to Braslow that the evidence will "create a probability" that if it had been introduced at his trial, "the verdict would have been more favorable to the defendant," the law states.
There are plenty of legal pitfalls ahead. Witnesses subpoenaed by the defense could refuse to testify. Then, there is the question of the credibility of the witnesses themselves.
The new evidence, for example, is an affidavit by a convicted felon, an inmate, Glenn Harris, who said he drove two men to and from the Tankleff home on the night of the killings. He said he waited until the two, Joseph Creedon and Peter Kent, emerged, looking "nervous" and "winded." He said Kent later burned his clothes. Creedon, through his attorney, has denied any involvement. Kent is in prison on an unrelated charge and could not be reached.
The defense probably will call Harris to testify about his statement because a witness in court is more compelling than a sworn statement, and he will be subject to cross-examination. But not every witness who gives a statement wants to take the stand. He could refuse to testify, and defense lawyers would be left with submitting the statement instead. Because the statement was taken out of court, without cross-examination, there might be questions raised about the statement's admissibility that Braslow will have to resolve.
Suffolk Assistant District Attorney Leonard Lato, who has been assigned to investigate the new evidence, said Harris' testimony may not be sufficient to persuade Braslow. "Even if the judge believes Harris, the test is whether it would likely have affected the jury's verdict. The judge could say, 'I believe you, but it's not enough.'"
Defense lawyers have other evidence that prosecutors have seen already but now becomes "a lot more interesting" in light of Harris' statement, said one of Tankleff's lawyers, Bruce Barket of Garden City.
In the 1990 trial, prosecutor John Collins' main piece of evidence was a confession by Tankleff, then 17, in which he told police he killed his parents, Arlene and Seymour Tankleff, because they made him drive a "crummy Lincoln."
But there was no physical evidence linking Tankleff to the crime. And while Tankleff was the first to find his parents, the killings took place just hours after a card game at the Tankleff home attended by a business associate of Seymour Tankleff, Jerry Steuerman, who was the last to leave and who owed Seymour Tankleff money. Martin Tankleff told police he found his parents the next morning.
In the hearing, defense lawyers are likely to point the blame for the murders squarely at Steuerman and his associates. Barket said, "We have a number of statements from unrelated people that point to the same group of individuals."
The defense will offer an affidavit from 1991 from Karlene Kovacs of St. James, who said she was at a party with Creedon and he bragged about being involved with the murders, along with "someone named Steuerman," and said he had to get rid of clothes that were full of blood.
There is also an affidavit from Creedon, from 1990, after the trial, in which he said Jerry Steuerman's son Todd asked him to cut out Martin Tankleff's tongue for accusing the elder Steuerman of the murders. Creedon turned down the offer and Todd Steuerman allegedly shot him in the arm.
There is also a 1997 statement from a former inmate, Bruce Demps, who said he met Todd Steuerman in prison and Steuerman told him Martin Tankleff was wrongly accused and that Jerry Steuerman sometimes hired someone to commit violent acts.
Then there is, defense lawyers said, Jerry Steuerman's own behavior after the murders. He left the state and police found him a month later in California. The Steuermans could nott be reached for comment. And there was a muddy footprint found near the back door of the Tankleff home, which might corroborate Harris' statement that the two men slipped in through the back door to do the killings.
If Braslow does grant a new trial, Barket said the defense team will ask the judge to suppress Tankleff's confession. A federal appeals court ruled in 2000 that by federal standards, police didn't violate Tankleff's constitutional rights when they questioned him, but the judges agreed that state law would have called for the statement to be thrown out because police failed to advise him of his rights while he was in custody.
Prosecutors could counter, however, that no state court has actually thrown out the confession and it remains viable. Said Lato, "The issue is the new evidence."
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