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Appeals Court Considers Tankleff's Bid for New Trial

New York Law Journal

By Mark Fass

October 5, 2007

Seventeen years after Long Island teenager Martin Tankleff was convicted of brutally killing his parents, his case reached the Appellate Division, Second Department, for a second time yesterday.

Before a courtroom filled to capacity with Mr. Tankleff's supporters - including actor James Gandolfini and the Innocence Project's founder Barry Scheck - Mr. Tankleff's attorneys argued for a reversal of Suffolk County Court Judge Stephen Braslow's denial last year of his motion for a new trial.

Mr. Tankleff's case dates back nearly 20 years. His parents, Arlene and Seymour Tankleff, were stabbed and beaten to death on the morning of Sept. 7, 1988, the first day of his senior year of high school.

Mr. Tankleff drafted a confession, which he did not sign and later recanted, calling it the product of a hostile and deceitful interrogation during a vulnerable moment. On June 28, 1990, just short of Mr. Tankleff's 19th birthday, a jury convicted him of the depraved indifference murder of his mother and the intentional murder of his father.

His conviction was affirmed by the Second Department, 199 AD2d 550 (1993), and the Court of Appeals, 84 NY2d 992 (1993). Mr. Tankleff then returned to the trial court, only to have Judge Braslow (See Profile) reject his motion to vacate the guilty verdict.

Yesterday, Mr. Tankleff's team - Stephen Braga of Baker Botts, Scott Splittgerber of Clifford Chance and Jennifer O'Connor and Roberto Gonzalez of WilmerHale - claimed that newly uncovered evidence, including some 20 exculpatory witnesses, proves that Mr. Tankleff's father's business partner hired two hit men to commit the murders (NYLJ, Jan. 9, 2007).

They also argued that constitutional violations - Brady, Miranda and
ineffective assistance of counsel - require a reversal of both convictions, that People v. Payne and its progeny require a reversal of the depraved indifference conviction and that Judge Braslow erred in denying Mr. Tankleff's motion for advanced DNA testing.

The bulk of the morning, however, tilted toward procedural, not factual, issues.

Suffolk County Assistant District Attorney Leonard Lato represented the prosecution. He countered that, among other things, the supposedly exculpatory witnesses' testimony is barred by hearsay rules and that the defense delayed too long in pursuing their motion to vacate the judgment of conviction under Criminal Procedure Law §440.10.

Mr. Braga opened for the defense, focusing on the admissibility of testimony from the new defense witnesses. Following an extended discussion of technical hearsay rules, he argued that the cumulative effect of the new evidence requires a new trial.

Mr. Lato argued against the use of the cumulative effect to determine the reliability, and thus the admissibility, of the testimony.

"Quantity is no substitute for quality," he argued. "Twenty times zero equals zero."

The four justices - Reinaldo E. Rivera (See Profile), Gabriel M. Krausman (See Profile), Mark C. Dillon (See Profile) and Anita R. Florio (See Profile) - closely questioned both sides.

Justice Krausman, however, repeatedly made statements buttressing Mr. Tankleff's case. When Mr. Braga, for example, noted the lack of blood on the knife prosecutors claimed Mr. Tankleff used, Justice Krausman reminded his fellow justices, "In fact, the knife had watermelon on it."

Later, when Mr. Lato discounted the reliability of numerous witnesses because of their criminal records and illegal drug use, Justice Krausman countered that such histories do not necessarily disqualify them.

"You yourself use [such witnesses] all the time," the judge reminded Mr. Lato.

The hearing stretched out for more than two hours, an exceptional duration in a courtroom where parties typically request five to 10 minutes for arguments.

Considering the stakes, the mood was often light, particularly in the banter between Justice Rivera and Mr. Braga. At one juncture nearly 30 minutes into Mr. Braga's appearance, Justice Rivera instructed him and the attorneys to follow to speak more directly into the microphone. To widespread laughter both in the audience and on the bench, Mr. Braga replied, "Want to start over?"

Justice Krausman also scored laughs during an exchange regarding whether a cleansed knife might still yield forensic evidence. After Mr. Lato said the defense failed to present expert testimony on the issue, Justice Krausman said he believed blood could remain. His source? "I saw that on 'CSI,'" he said.

Mr. Tankleff, now 36, is serving his sentence at Great Meadow Correctional Facility in Comstock.