SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTMENT

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent

-against-

MARTIN TANKLEFF,

Defendant-Appellant. ----------------------------X

Suffolk County Indictment Nos. 1290/88 & 1535/88

NOTICE OF MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF IN SUPPORT OF DEFENDANT-APPELLANT

PLEASE TAKE NOTICE, that upon the annexed affirmation of Barry C. Scheck and the attached Brief for Innocence Project and Innocence Network Amici Curiae in Support of Defendant-Appellant, the undersigned will move this Court, on January 19, 2007, at the Appellate Division Courthouse, 45 Monroe Place, Brooklyn, New York, at 9:30 a.m., or as soon thereafter as counsel may be heard, for an order

a. Granting The Innocence Project, Inc., and the Innocence Network leave to jointly file an Amici Curiae brief in support of Defendant­Appellant.

b . Granting any such other and further relief as this Court may deem just.

Dated: New York, New York December {L_, 2006

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTMENT

-----------------------------X THE PEOPLE OF THE STATE OF NEW YORK,

Respondent

-against-

MARTIN TANKLEFF,

Defendant-Appellant. -----------------------------X

Suffolk County Indictment Nos. 1290/88 & 1 535/88

AFFIRMATION IN SUPPORT OF MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF IN SUPPORT OF DEFENDANT-APPELLANT

Barry C. Scheck, an attorney duly admitted to practice law in the courts of

the State ofNew York, affirms under penalty of perjury that the following

statements are true, except those made on information and belief, which he

believes to be true:

I. I am Co-Founder and Co-Director of The Innocence Project, Inc. ("the

Project"). The Project is a member organization of the Innocence Network

("the Network"). I am also a criminal defense and civil rights litigator,

advocate for the wrongfully convicted and expert authority on DNA

evidence.

2. I mak e this affirmation in support of the Motion for L eav e to Fil e Amici

Curiae Bri ef submitted by the Proj ect and the Network, r eferred to

coll ectively her ein as "Prosp ectiv e Amici".

3 . Tru e and correct copi es of th e County Court 's d enial of D efendant ­

App ellant's motion pursuant to C.P.L. S ection 440 . 1 0 and D efendant­

App ellant's Notic e of App eal are attach ed h ereto at Tabs A and B ,

r esp ectiv ely.

Interests of Prospective Amici

4. The Proj ect is a nonprofit organization founded at and affiliat ed with th e

B enjamin N. Cardozo School of Law in New York, New York. The Proj ect

provides pro bono l egal assistanc e to p ersons whos e claims of innocence can

b e conclusively proven through post-conviction DNA t esting.

5 . The Proj ect pion eered the post-conviction DNA litigation model that has to

date exonerated 2 1 innoc ent p ersons in N ew York and 1 87 p ersons

nationwid e, and s erved as couns el or provided critical assistance in a

majority of thes e cas es. The Proj ect' s Litigation D epartment currently has a

cas eload of over 200 post-conviction DNA matters from around th e nation,

including 29 in the State ofN ew York.

6 . The N etwork is an association of3 6 m emb er organizations d edicated to

providing pro bono l egal and investigativ e s ervices to indigent prisoners

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whos e actual innoc enc e may b e establish ed by post-conviction evidenc e. 1

Th e Network currently represents hundreds of prisoners with innoc enc e

claims throughout the country.

Issues to be Addressed

7. In its bri ef, a courtesy copy of which is attached h ereto at Tab C, Prosp ectiv e

Amici will urge this Court to rev ers e the County Court's d enial of

D efendant-App ellant's motion pursuant to C.P.L . S ection 440 . 1 0 on the

basis of n ew exp ert evidenc e showing that his confession was fals e and

co erced. Sp ecifically, Prosp ectiv e Amici will discuss how the County

Court' s ruling contrav ened widely acc epted r esearch on fals e confessions

and ignored the impact that the exp ert t estimony would likely have on a fair

minded jury at a new trial .

1 The Network's members include: Arizona Justice Project; Association in Defense of the Wrongly Convicted; Barbara C. Salken Criminal Justice Clinic; California & Hawaii Innocence Project; Center on Wrongful Convictions; Cooley Innocence Project; Downstate Illinois Innocence Project; Florida Innocence Initiative; Georgia Innocence Project; Griffith University Innocence Project; I.U. School of Law Clinic, Wrongful Conviction Component; Idaho Innocence Project; Innocence Institute at Point Park University; Innocence Project New Orleans; Innocence Project Northwest Clinic; Innocence Project of Minnesota; Iowa/Nebraska Innocence Project; Lois and Richard Rosenthal Institute for Justice/Ohio Innocence Project; Maryland Office of the Public Defender Innocence Project; Medill Innocence Project; Mid-Atlantic Innocence Project; Midwestern Innocence Project; New England Innocence Proj ect; North Carolina Center on Actual Innocence; Northern Arizona Justice Project; Northern California Innocence Project; Office of the Public Defender, State of Delaware; Rocky Mountain Innocence Project; Second Look Program; Texas Center for Actual Innocence; Texas Innocence Network; The Innocence Project, Inc.; The University of Leeds Innocence Project; University of Melbourne Innocence Project; Wesleyan Innocence Project; and Wisconsin Innocence Project.

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8 . Giv en the p ervasiveness of co erc ed and fals e confessions and the

d evastating cons equenc es such confessions have on our justic e system,

Prosp ective Amici will also write to encourag e the Appellate Division to

adopt a rul e, as courts have in s ev eral other jurisdictions, that wh er e th ere is

an un excus ed failure to el ectronically record a custodial interrogation, the

r esulting confessions are inadmissibl e or in the alternative th e jury must b e

instructed that such confessions are i nherently more unreliabl e. El ectronic

r ecording of interrogations creates an obj ective r ecord that allows judges and

juri es to make more accurate det erminations as to wh eth er a particular

susp ect confess ed and whether the confession was voluntary and reliabl e.

9 . Prosp ective Amici will also address the County Court's erron eous d enial of

D efendant-App ellant' s motion for post-conviction DNA t esting on fing ernail

scrapings from one of th e victims. DNA t esting has the potential to provide

undisputed sci entific evidenc e in support of a convicted p erson's claim of

innoc enc e. Although this error is b eing app eal ed in a s eparate proc eeding,

the County Court's denial of D efendant-Appellant's DNA motion casts

significant doubt on wheth er the County Court fulfil led its duty to carefully

consider the evidenc e presented during the 440. 1 0 proc eedings.

1 O.Prosp ective Amici will aid the Court by drawing upon their ext ensive

exp eri enc e litigating post-conviction exoneration cas es throughout the

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nation; th eir considerabl e familiarity with th e ph enomenon of fals e

confessions; and their significant history of calling for a vari ety of reforms

in criminal inv estigations and cas es, including mandatory el ectronic

r ecording of int errogations and th e need for exp erts to educate jurors in the

area of polic e interrogations and fals e confessions . Prosp ective Amici's

body of exp eri enc e is r eflected not only in r eported decisions, but also in

unpublished orders and r eli ef that was granted in oth er cas es, many of which

involv ed facts and l egal claims highly analogous to that of D efendant-

App ellant.

WHEREFORE, Barry C. Sch eck r esp ectfully requests that this Court issue

an order granting a Motion for L eave to Fil e Amici Curiae Bri ef.

Dated: New York, New York D ec emb er _6_, 2006

5

A

COUNTY COURT OF SUFFOLK COUNTY

TRIAL TERM, PART 6 SUFFOLK COUNTY

THE PEOPLE OF THE STATE OF NEW YORK,

vs

MARTIN H. TANKLEFF,

Defendant,

THOMAS SPOTA, ESQ.

SUFFOLK COUNTY DISTRICT ATTORNEY

By: Leonard Lato, Esq.

Criminal Courts Building

Center Drive South

Riverhead, New York 11901

BRASLOW, J. C. C.

DATE: March 17, 2006

COURT CASE NO.: 1535-BB 1290-BB

BRUCE A. BARKET, ESQ.

ATTORNEY FOR THE DEFENDANT

666 Old Country Road

Suite 100 Garden City, NY 11530

The defendant served and filed a mot i o n pu rsuant to CPL 440 seekin g the vacat u r o f his judgment o f conviction based upon a f ree standing clai m of act ual i nn o cence, o r i n the alternative f o r a new tr ial. Bot h requests are based upon a claim o f newly d iscove red eviden ce. This cou rt g ranted t he mot i on with the consent o f t he District A t t orney to t he extent t hat a hearing was o rdered . The hearing was hel d and the parties were given the opportunity to submit p ost hearing memoranda. Prior to completing the submission of the post hearing memo randa, the defendant moved to reopen t he hearing based upon the a f fidavit o f Joseph John Guarascio, in which he asserted that h is father/ Joeseph C reedon, t old h i m that he part i c i pated in t he mu rders o f Seymou r and A rlene Tankle f f . The application was g ranted and the cou rt heard t he test imony o f Joseph John Guarasc i o . T he c o u rt has received and considered all post hearing memo randa1 and additional memo randa subm itted upon t he completion o f Joseph John Guarasci01S t est imony . The follo w i n g const itutes the c o u rt1s dec ision .

During the early mo rning h o u rs o f September 7, 1988 the defendant1s parents, Arlene and Seymour Tankleff were brutally

attacked in the i r Belle Te r re home. Arlene was str u c k about the head with a blunt obje c t and h e r th roat was slit . She d i ed o f those wounds that morning. Seymou r rece ived similar wounds but managed to su rvive unti l he di ed as a result o f those inju r i es on Oc t obe r 6, 1988. The de fendant was initially indicted f o r the second deg r e e mu rde r of his mother Arlene and for the attempted m u rd e r and first d e g r e e assault o f his fath e r Seymou r . The cha rges against the de fendant as t hey pertained to h is fat h e r were then elevated by a su c c e ed ing ind i c tment to t he se cond deg re e murde r o f Seymou r Tankle f f a f t e r h i s death . The de fendant was ult imately convicted by a jury o f t he second deg ree murde rs of Seymou r and Arlene Tankle f f , and was sent enced t o two conse cut ive twenty-five years to li f e te rms o f imp risonment wh ic h he is curr ently se rv ing.

MOT ION FOR A NEW TRIAL

Oth e r than the confession g iven t o Su f folk County Dete ctives by the de fendant a few hou rs a f t e r the attac ks in which t h e de fendant admitted to the assaults upon h i s parents , the de fendant has insisted that he is innocent and that the li ke ly mu rde r e rs w e r e h i s fathe r's business partne r , Je r ry Steue rman , and some oth e r p e rsons hired by Jerry Ste u e rman to mu rder the Tankle f fs. The de fendant's the o ry arises f r om the fact that h i s fathe r and Je r ry Steue rman we r e business partners and that Je r ry Steue rman owed the de f endant's fat h e r a s ubstantial sum o f money. Je r ry Steu e rman was not making the payments that he was obligat ed to make pursuant to their agreements and Seymou r Tankle f f was gett ing aggravated by Je r ry Steue rman's r e calcitrance. To make matte rs wo rse , Seymour Tan kle f f learned that Jerry Steue rman had p u r c hased a race ho rse f o r $30 , 000 w hile i gnoring the debts owed h i m . Because o f this , Seymou r Tankle f f was threatening to enf o r c e payment o f the debts , and we re he t o be success f ul , it may have resulted in Seymour gaining control of some of Jerry Steuerman' s business inte rests. The de fendant contends that Je r ry Ste u e rman was adamant that Seymour was ove r reaching and that he would do anyth ing to avo i d losing h i s businesses to Seymo u r Tankle f f . Acco rding to the de f endant this is what led J e r ry Steuerman to the desperate end o f arranging f o r the mu rde rs o f Seymour and Arlene Tankle f f; t o avo id pay ing th e debts owed to Seymou r Tankle f f and to avoid losing his bus inesses to him.

To suppo rt his contention the de fendant moved this c ourt based upon t wo swo rn statements , one by Karlene Kovacs dated 1994 , and

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anothe r by Glenn Ha r r i s dated August 29, 2003 . The s e two sworn s tateme n ts , toge ther w i th wha t he had known at the time o f the t r i a l , and what he l e a rn e d the rea f te r , app a r e n tl y l e d the de f e n d a n t to loca te the nume rous othe r w i tne s s e s he c a l l e d a t the he a r i ng .

The r e a r e s eve ral reason s why the de fe ndan t's mo tion for a new trial shou ld be den i e d . Among them a re the de f e n da n t's f a i lure to exerc i s e due d i l i gence i n ma k i n g the motion, tha t te s t imon y the de fendant wants admitted a t a new tr i a l i s in admi s s ib l e he a r s a y , that expe rt te s t i mon y p e r ta i n i n g to the con f e s s ion wou l d not change the outcome o f the tri a l , and tha t the de fendant has not i n t roduced any evidence whi ch wou ld p rove tha t the pipe whi ch the de f e ndant c l a ims i s Lhe murde r we apon ha s a ny con n e c tion w i th the s e c r ime s .

A. DUE DILIGENCE

The court w i l l f i r s t addre s s the Peop l e's a s s e r t ion that the defendant ha s f a i l e d to exe r c i s e due d i l igence i n movi n g for thi s nearlnq .

CPL §440 . 10 p rovi de s i n p e r t i n e n t p a r t:

1 . At a n y time a f te r the e n t r y o f a j udgme n t , the cou r t i n whi ch it w a s e n te red ma y , upon mot i on o f the de f e n da n t , v a c a te such j udgment upon the g round that:

* * *

(g) New e v i de n ce ha s bee n d i s cove red s i nce the e n tr y o f a jJdgment ba s e d upon a ve r d i c t o f gui l ty a f te r t ria l , whi ch could not have been p roduced by the de fendant a t the tr i a l even wi th dJe d i l igence on hi s p a r t and whi ch i s o f such cha r a c te r a s to c r e a te a p robabi l i ty tha t had s uch e v i de n c e bee n r e c e ived a t the tri a l the ve r d i c t wou l d have bee n more f avorable to the de f e n dant; p rovided tha t a motion ba s e d upon such g roun d mus t be made w i th due diligence a f te r the d i s cove r y o f s uch a l leged new evi dence . . . [Empha s i s added . ]

The Cou r t i n Peop l e v. Ni xon , 21 N . Y.2d 3 3 8 he l d:

In st a l e c a s e s , de f e n da n ts have a l l to g a i n by reop e n i n g old convi ction s , r e tr i a l be i n g so o f ten a n impos s i b i l i ty. The s e a r e

3

factors to consi de r i n dete rmining how vali d the asse rtions a re; albeit, i f the y a r e made out, j usti ce r equi res that the y be explored in a h e a r i ng (c f . Pe ople v. Chait, 7 A D 2d 399, 401, offd. 6 N Y 2d 855)

The People conte nd that the de fen dant f aile d to e x e r cise due diligence i n movi ng for a new tr i al sinc e he had the Kova cs stateme nt sin ce 1994 . The de fe ndant has not adequately e xpla i n e d w h y he sat w i th the Kovacs statement for n e a rly n i n e y e a rs . In f act, Ja y Salp ete r, the defe ndan t's investigator d i d con cede at the he a r i n g that a n in vesti gator could h ave develope d that lead at that time a n d located Glenn Harr is. The de fendant could h a ve f ully investigated the assertions made by Kovacs i n 1994 wh i c h ve r y well could have le d him to uncove r the same witnesses he was able to p roduce in 2005. The Kovacs statement di rectly impli c ates Creedon and a Ste u e rman. Indeed, the defe nda nt appa r e ntly had in formation about a n alleg e d conve rsation belwe en Je r r y Steu e rman and Joseph Creedon sinc e the t r i al . (See decision o f J . Tisch dated Octobe r 4, 1990. ) Sin c e the defen dant was accusi n g Jerry Ste u e rman since the date o f the m u r de rs and had information about an alleged conve rsat ion betw e e n him and Cree don, it is bew i lde rin g why the de fen da nt did not move in 1994 based u pon this, but instead w aited u ntil he had the sworn statement o f Gle n n Ha r r i s, nine ye ars late r .

Accordingly, the de f e n dant's motion for a n e w trial is de nied since the de f e n da nt f a iled to exe r cise due dilige n c e in moving for a n ew trial base d upon the newly discove red e viden ce , that being the sworn statement of Ka rlen e Kova cs which the de f e nda nt had s i n c e 1994. See People v. Stu art, 123 A. D. 2d 4 6.

B. HEARSAY

In addition to the arfidavits of Karlene Kovacs and Glenn Harris

the de fe ndant has i ntrodu ced what he has characte rized as n e wly discovered eviden c e wh i ch consiste d mainly of the test i mo n y f rom a ravalcade o f n e f a rious scou ndrels pa raded be fore this cou rt by him . Most of these witnesses we re p e rsons with e xtensive c r imi n al h isto r i es that included illegal drug use and sales, bu r gla r y, robbe r y, assa ult and oth e r similar c rimes . Some of these i n d i viduals claimed that Joseph Creedon admitted to the m that he pa rticipated in the mu rde r o f the Tan kle f fs, which testimon y is h e a rsa y .

In People v . Salemi, 309 N . Y . 208 the Cou rt held:

The test thu s e n u n c i ated was lon g a go app rove d in this cou rt, a n d

4

sin ce f ollowed - viz. : that " Newly-di s covered evi den ce i n o rder to be s u f f i c ient mu s t fulf i ll all the f ollo w i n g requ i remen t s: 1. It mu s t be s u ch a s w i ll p robably change the result i f a new t r i al js gran ted; 2 . It mu s t have been d i s covered s i n ce the t r i al; 3. It mu s t be s uch as could have n o t been d i s covered befo re the t r i al by the exe r c i s e o f due diligen ce; 4 . It mu s t be ma te r i al to the i s s ue; 5 . It mu s t not be cumulat ive t o t he f o rmer i s s ue; and, 6. It mu s t not be merely i mpeac h i n g o r c o n t r ad i c t i ng the fo rmer evi dence . "

The newly d i s covered evi dence mus t be evi den ce adm i s s ible at t�i al ( People v Boyette, 201 A.D.2d 490 , 491 , 607 N . Y.S . 2d 402 [1994]; People v Dabb s , 154 Mi s c . 2d 671 , 674 , 587 N . Y . S.2d 90 [1991] ; see also People v Fields , 66 N . Y . 2d 876 , 877 , 498

N.Y.S.2d 759, 489 N . E . 2d 728 [1985]) .

Hea r s ay h a s been def i ned a s "a s t a temen t made o u t o f cou r t, that is, no t made in the cou r se of the t r i al in wh i ch it is o f fered , [and which] i s offered f o r the t ru t h o f the f a c t a s serted i n i t . " Pr i nce , Richardson on Evidence §8-101 . See People v . Huerta s , 75 N . Y.2d 487 .

Generally, hea r s ay is n o t admi s s ible a s evi de n ce ( People v. Caviness , 38 N . Y . 2d 227) s i nce t here i s no oppor t u n i ty to c r o s s ­examine the decla rant a n d i t u s u ally cons i s t s o f a s t a temen t not made under oa th , although an a f f idav i t can be hea r s a y , Sadowsky v . Chat Nair, Inc . , 64 A . D . 2d 697 . The pu rpo se o f the exclu s i on i s t o a s s u re that the adve r s a ry i s given t he opp o rtun i ty to con f r o n t and c r o s s ­examine t he w i tne s s w h o allegedly made the s tatemen t and t o eli m i n a te u n reliable tes t i mony .

Hea r s ay i s adm i s s ible a s evi dence only u nder cer a t i n excep t i on s und only i f found t o be rel i able. People v . B ren s i c , 70 N . Y . 2d 9 . One of those excep t i on s i s t he decla r a t i on aga i n s t t he declar a n t's pen al :nterest.

The s ta temen t s p u rpor tedly made by Jo seph Creedon to cer t a i n i ndividuals i n which h e allegedly adm i t ted t h a t h e w a s i nvolved i n the mu rders o f the Tankle f f s would be decla ra t i on s aga i n s t C reedon's pen al interes t .

For a decla r a t i on aga i n s t one's penal i n teres t t o be adm i t ted into evidence as an except ion to the hea r s ay rule the Cou r t i n People v . Settles , 46 N.Y . 2d 154 enun c i a ted fou r eleme n t s , all o f w h i ch mu s t be satisfi ed:

(Fii r s t, the decla rant mu s t be unava ilable a s a w i tnes s at t r i al; s econd, when the s ta temen t was made the decla r a n t mu s t be aware t h a t i t was adve r se to h i s penal i nteres t; t hi rd , the decla rant

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must have competent knowledge o f the fact s u nderlying the stateme nt; and, fourth , a nd most important, s upporting circumsta n c e s independent o f the statement its elf must be pre s e nt to atte st to its tru stworthine s s and reliability ( s e e Pe ople v Harding, 37 NY2d 130, 135 [concurring opn}; Richard s o n , E vide nce [10th ed -- Prince] , § 25 7 ; Fis c h , New York E vide n c e [2d ed] , § 892) .

Thi s s hould be balan ced again st People v. Darrisaw , 206 A . D.2d 661 in which the court held:

Although the ma ndate s o f due proc e s s further re strict the circumstance s under which a statement e ndangering the ma ker's pen al intere s t may be u se d again st a criminal de f e ndant ( s e e , Pe ople v Maerling , 46 NY2d 289 , 298), in a c a s e where , a s here , the statement is exculpatory as to de f endant , a le s s e x acting standard applie s (s e e , Pe ople v Smith , 195 AD2d 112 , 125).

In reaching the f ollowing conclu sion s , the court h a s balan ced the reliability o f the witn e s s e s who testi fied that Creedon uttered the in crimin atory stateme nts again s t his own pen al intere s t , again st the de f e ndant ' s argument that he is entitled to a n e w trial as a re s ult of the s e a s s ertion s bec a u s e a le s s s tringent standard s ho uld apply (see Da rrisaw , supra), a nd that the de f e ndant would be denied due proce s s were they not t o b e admitte d a t a new trial.

Th e de f e ndant fails to s atis fy the first element o f the holding 1n S ettle s , supra, in that Creedon te stified at th e hearing and de nied any involveme nt in the murders , and this court h a s no r e a s o n to believe that he would n ot be available to te sti fy at a new trial. Se condly , many of the witn e s s e s who te stified th at they he ard Cre edon admit to committing the s e murders were s hown to be unreliable , in credible , contradictory , a nd po s sibly motivated to h arm Cre edon by having him convicted o f the s e murders.

This inclu de s his son who this c ourt believe s w a s motivated by his mother who was both physica lly and emotionally abu s ed by Jos eph Cre edo� while they lived together. The abu s e c a u s e d her to run and hide from him with their s on . Additionally , it appe ars that Joseph Cre edon failed in his fin a ncial obligation s to the m. Accordingly , the court finds the testimony o f Jo s eph John Guara s cio to b e incredible and u nreliable a nd due to the motivation s o f his mother.

The te stimony o f Karlene Kovacs also lac k s credibility and rel i ability. She contradicted the s tatements contain ed in the a f fidavit by her te stimony at the h earing . In h er a f fidavit she stated thaL she went to her friend John Guaras cio ' s sister ' s hou se. At the time , John Guara s cio's sister Terri Covias lived with Jo s eph Cre edon.

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Kovacs sta t e s in h e r a f fidavit that while she and Cre edon we r e in the bedroom of tha t h o u s e smo king a "joint , u Creedon to ld h e r that he was involved in t h e Tan k l e f f mu rde r s. The a f fidavit a l s o s ta t e s that Ter ri Covia s a nd Cre edon we re mar ried.

Kovacs te s ti fied at the h e a ri�g that she a nd C r e edon went through the bedroom and the n outdo o r s to smo ke the "joint. n She admitted she knew that Creedon and Te r ri Covia s we re n ot mar ried at t h e time she signed the a f fidavit , but she te stified that she r e ad and signed the a f fidavit anyway. It a l s o appea r s that Kovacs had a coc ain e abu s e problem a t that time , a nd ente red a rehabilitation p r ogram i n Novembe r of the ye a r that statement was pu r?o r t edly made to h e r by Creedon.

Additionally , it app e a r s that Kova c s embellished he r testimony at the hearing to include the a s s e rtion tha t Cree don got rid o f c l othe s h e w a s wearing which was n o t in cluded in h e r a f fidaivit.

Robe r t Go ttlieb , t h e a tto rney who repres ented the de f e ndant a t the t rial a nd f o r a time the rea f t e r , inte r viewed Kova c s a n d p repa red her a f fidavit . He te s ti fied at the h e a ring that he did n o t add anything to t h e a f fidavit that Kovacs did n ot te ll him , a nd that the a f fidavit is c omp l e t e a s to what she did s ay to him.

App a r e nt l y , Kovacs als o h a s developed a bia s ed inte r e st in the outcome of this matt e r. She h a s be come a membe r o f the de fendant ' s website, h a s ch atted on the inte rnet about this matte r , and h a s stated th at she can n o t wait to give the de fendant a h ug.

Ac co rdingly , this c o u rt finds tha t t h e s tatements made by Creedon to Kovacs would not be admis sib l e at a new t ria l sin c e Kova c s l a c ks reliability a nd c r edibility .

The r e was t e stimony Jo s eph Graydon tha t t h e r e w a s a n attempt by Cre edon to commit the mu rde r o f Seymou r Tan kle f f in the s umme r of 1988 at Lhe Strathmore Bagel shop . Howe ve r , Graydo n te s ti fied that the shop was clo s ed a nd Seymou r T a n kle f f was not the re , so Creedon and his accomplice Jo s e ph G raydon chose to throw a ga rbage pail thr o ugh a gla s s door o f a greeting c a rd shop in the s ame shopping ce nte r and th en s teal f rom it. Reco rds of the Su f fo l k County Po lice Depa rtment and the te s timo ny of the s to r e manage r do n ot c o r r obo rate the a s s e r tion. In stead it app e a r s th at bu rgl a ry o c c u r r e d in Novembe r o f tha t year , a fte r the Tan kle f fs w e r e mu rde red.

Graydon a l s o tes ti fied that Creedon s ubs eque ntly admitted to him in 1992 o r 1993 that h e killed a c o up l e o f p e ople. This admi s sion pu rpo rtedly was made while they w e r e h a ving an a rgumen t ove r who had the right to s e l l d rugs at a p articu l a r b a r .

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The c o u rt finds this te stimony to be unreliable since it appears that the bu r glar y o f the card sto re did not happen when G raydon testified that it did , and that Graydon ' s te stimony is tainted as the admi s s ion was s u pposedly made while he was arguing with C r eedon ove r which one o f them could s ell drug s at a particular lo cation .

The de fendant claims that Brain Scott Glas s was o f fe red the j ob of h u r ting o r killing the Tankle f f s but did not want the job and pas s ed it on to Creedon , and that the de fe ndant e xpected him to t e stify to that. Howeve r, Glas s testi fied that he was o f fe red help by the de fense in de fending a r obbe r y charge and that is why he told them t hat he would te s ti f y that he pas s ed the j ob o f killing the Tankle f f s o n to Cre edon . The de fendant as s e rted that Glas s was o f fe red favo rable treatment on the r obbe r y charge by the District Atto rne y and so changed his te stimony to favo r the Pe ople . The c o u rt finds that Glas s ' te stimony , e ven were he t o now te s ti f y in fav o r of the defendanL would not be wo rthy of belie f .

Billy Ram te sti fied that on the night be f o r e the murde r s , Cre edon said "he was going to rough up s ome Jew in the bagel bu sine s s. " Ram re f u s ed to help him with the j ob . Ram also te s tified that Creedon told him that he mu rde red the Tankle f f s . Howeve r , Billy Ram has been involved in c riminal activity s ince at least the time o f the Tankle f f murde rs. Mor e ove r , subs equent t o te sti f ying at this hearing , Ram was involved in a shoot out with memb e r s o f the Hill s bo rough County She rif f's Department in Flo rida afte r having committed s e ve ral armed robbe rie s . He was wounded by deputie s in the shootout and he is cu r rently awaiting s entence .

Additionally Pete r Kent , who te s ti fied on behalf o f the People , te stified that Billy Ram told him he r e c eived $10,000 f ro m Salpete r , that he was set up to receive $50, 000 and that the car the y we re in was re nted f o r him by Salpete r. De fendant denie s that anyone was paid above ou t o f poc ket e xpens e s and lost wage s .

In any e vent , this c o u rt finds that Billy Ram's te stimony is not worth y of belie f . He is clearly an individual who has always put his p e r s onal inte re sts above s o ciety's which is demons trated by his length y and violent c riminal activity which continue s to this day , and this c o u rt does not belie ve that he would do anything like te stifying in favo r o f this de fendant out of s ome unde rlying need to s e e justice done .

Gaetano Foti als o te stified that C re edon told him that Tankle f f d i dn't do it , that Creedon was the r e and that h e killed the Tankle f f s . Howe ve r, on c r o s s-e xamination Foti te stified that Creedon may have only s a i d that Tankleff d idn't do it and that he know s that becau s e he was there .

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It thu s appears that Foti's te stimony i s equ ivocal and not �eliable .

Accordingly , the declarat i o n s purporte dly made by Cre e don against his pe nal intere st would not be admi s s ible at tri al s ince h e i s ava ilable to te sti fy , and this court f inds the s e w i tn e s s e s to whom the s e stateme nts were purportedly made to be incredible and u n reliable. Pe ople v. Buie , 86 N. Y. 2d 501. Even u s i ng the le s s stringent standard o f Darr i saw , the court still finds that due to the lack o f cred ibility o f the s e w i tn e s s e s , the purported s tateme nts again st Cre edon ' s penal intere s t would not be admi s s ible at a new Lrldl.

Gle nn Harris , the individual who allegedly drove Cree don and Peter Ke nt, the other alleged killer to the Tan kle f f h ome on the n ight of the murde r s , was unavailable to testify becau s e he i nvo ked h i s fifth ame ndme nt right aga i n s t s el f i n crimination when h e was called to te sti f y at the heari ng. People v. Stultz , 2 N. Y.3 d 277 . The de fendant sought immu n i ty for Gle n Harris which the People re f u s e d the grant . Th i s cou rt re f u s e d to grant defendant ' s applicati on to compel the Pe ople to grant Harris immunity.

The court i n People v. Darri saw , 206 A. D. 2d 661 went on to hold:

More over , where the s tatement forms a critical part o f the defen s e , due proce s s concern s may tip the scale s in favor of admi s s i o n ( s e e, Chambers v Mis sis s ippi, 410 US 284, 3 02). Given the forego ing , the pro secutor's re f u s al to grant Ma i ola immunity , though n ot per s e improper ( s e e , People v Owe n s , 63 NY2d 824; Pe ople v Fin kle , 192 AD2d 7 83 , 787 , lv de n ie d 82 NY2d 7 53 ) , bear s pro foundly on the correctness o f County Court's ruling not to permit i ntroduction o f Ma i ola ' s s tatement.

The def e n dant argue s that the Court i n People v Rob i n s on (89 N. Y. 2d 648 , 679 N.E. 2d 1055, 657 N.Y. S.2d 575 [1997]) h eld:

fT]hat the trial court erred in e xcluding grand j ury te stimony o f a n unavailable witn e s s . E vidence o f th i s type , we held , must be admitted when it is materi al , e xculpatory and has s u f f ic i e nt indicia o f reliability.

However , for thi s court to p ermi t the i ntroduct i o n o f the Harris aff idav it i nto evidence , the court must f i n d that it i s worthy o f bel1e f . S e e Pe ople v. Stultz , 2 N . Y. 3d 2 7 7.

T h e r e was s ubstantial ev i dence that Harri s i s mentally u n s table and equivocal , o fte n recanting h i s s tatements. Add i t i onally there was

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evidence tha t Ha r r is s ough t de ta il s o f the c rime f rom Salpe te r , the defenda n t ' s investiga to r , wh ich would indicate tha t he probably had noth ing to do with committing the c rime s. Mo reove r , e v iden ce w a s p r ovided a t the h e a r ing wh ich indica ted tha t h e w a n te d to inc r iminate Pe ter Ke n t because Pe te r Ken t had an a f fa ir w ith h is w if e . Th is court f inds th a t the a f f idavit provided by Ha r r is would not b e admis sible a t trial s ince it lacks trus tworth in e s s a n d r eliab ility , a nd e v e n w e r e he t o test i fy a t a new trial, it would appea r his te s t imony would lack any c redibility. Pe ople v. Bed i , 299 A. D. 2d 556 and c f . Pe ople v . Ca bot, 294 A. D . 2d 444.

Father Lemme r t , is the prison chaplain who h a s dealt w i th Glen Harr is while Ha r r is was inca rce r a ted a nd app a r e n tly has discus s ed th is ma t te r with h im. Be ing a pris on chaplain is probably o n e o f the mo s t dif ficult callings a membe r o f the cle rgy can unde r ta ke , a nd th is cou r t has the h igh e s t regard for Fa the r Lemme r t. The cou r t believe s the te s'-imony o f Fathe r Lemme rt a s to wha t he h e a rd Ha r r is tell him , howe ver, it i s Ha r r is who i s n o t w o r thy o f belie f f o r the re a s o n s fully discu s s ed above. S ince wha t Fa th e r Lemme r t h e a rd Ha r r is tell h im is un reliable hearsay , it would n o t be admi s s ible a s e v ide nce a t a tr ial.

The re w a s also te s timony by Ne il Fisch e r , a disinte r e s te d and well me a n ing individual who appa r e n tly h ad the be s t o f in ten tion s in te s tify ing at this h e a r ing. Howe ve r , this cou r t also finds the tes timony of Ne il Fisch e r to be un reliable. Mr. Fisch e r te s t ified tha t wh ile he had his head in a cabine t tha t he was in s tall ing in one o f Je rry S teue rma n ' s bagel s to r e s , h e ove rh e a rd Je r ry Steue rman having an a rgume n t w ith s ome one whe re in S teue rman was complaining about the bagel ove n s tha t were provided by tha t pe r s on, a nd tha t Steue rman s a id in ange r tha t he had already killed two people. Th i s s ta teme n t was ove rh e a rd b y F isch e r wh ile h e h a d h i s h e ad in a cabine t a n d he w a s probably n o t paying clos e a ttention to wha t was being s a id. The s ta teme n t was taken out o f con te x t , may have bee n made face tiously sincG thG dGfGndant has bGGn accusing Steue rman of the murders ever s ince they w e r e committed. Additionally , the re h a s b e e n no showing t hat Je r ry S teue rman would be un available to te s ti fy a t a n e w t r ial. To t h e con tr a ry , Je r ry S teue rman did te s ti fy a t the tr ial. Acco rdingly, this s ta teme n t would n o t be admissible a s an e xception to the h e a r s ay rule a s a decla ra tion aga in s t h is penal in te r e s t s ince the re was no showing tha t Je r ry Steue rman is n o t a vailable to te s tify and the te s timony i s unreliable.

Bruce Demps te s ti f ied tha t he was told twice by Todd S teue rman , -Je r ry Steue r ma n ' s s o n , tha t de f e ndan t did n o t kill h is pa r e n ts and th a t Todd ' s f a the r hired s ome one to k ill them. This i s pur e h e a r s ay a nd would n o t be admis s ible a t t rial.

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It i s als o noted that s ome of the w itnes ses called b y the People s u ch a s Peter Kent and Robert Mi neo h ad s ome of the s ame credibility problems that s ome of the defendant ' s w itnes ses had due to their pa s t criminal records a nd drug u se . Additionally , Peter Kent h a s a pers onal stake i n thi s case s i n ce he i s one of the indiv iduals the defendant cla ims accompa n i ed Creedon i nto the T a n kleff h ome . However the burden of proof i s not on the People i n th i s proceed i n g but rather i s on the defendant to demonstrate that he i s entitled to a new tri al based upon the ev iden ce he cla ims i s newly d i s covered , a nd wh i ch would re sult in a different verdi ct if presented to a j ur y , wh i ch i s where the defendant falls short .

The defendant also argues that s ome of the s e statements made by Harr i s and Creedon fall into the exception of a then ex i st i ng state of mind . However th i s court beli eves that the crux of the statements made by Creedon and Harri s is that they admit their i nvolvement in the crimes. The state of mind exception should n ot be u s ed to prove pa st facts conta ined in them . People v . Reyn o s o , 73 N . Y . 2d 81 6.

Accordingly , the forgo i ng testimony proffered by the defendant would not be not admi s s ible at tri al s in ce it i s i n adm i s s ible hears a y .

C. THE CONFESSION

The defendant contends that h i s conv i ct i o n w a s the res ult of h i s u n s i gned confes s i on , wh i ch he cla ims i s fal s e , bei n g admitted into ev i den ce . He a s serts that the confes s i on was obta i ned through the u se of police i nterrogation tacti c s wh i ch have become a s s ociated with false confes s i on s . To s upport thi s , he see k s t o h ave R i chard J. Ofshe testify as an expert w itne s s on false confes s io n s at h i s tri al. The defendant contends that the i nformati on whi ch would be provi ded to the jury at a new tri al con stitute s new evi dence s i nce the research i nto this area did n ot ex i st at the time of h i s tri al.

Mr. Ofshe testified at the hear i n g and it i s h i s c o n clu s i on that the interrogation tactics used by the detectives in th i s case are con s i stent with other cases i n whi ch false confe s s i o n s h ave been obta i ned .

These a s pects h ave been the s ub j ect of the court's dec i s i o n i n People v . Kogut , 2005 NY Slip Op 25409. In that c a s e Dr . Ofshe testified along w ith Dr. Ka s s i n and other experts in a n al yz i n g the confes s i on of Kogut . After reviewi ng testimo n y from Kogut's Huntley hearlng a nd the pri or tri al , Dr . Ka s s i n concluded that Kogut's confes s i on was i nvolu ntary. The court fou n d that:

Dr . Kassin relied primarily on the length of the interrogation,

15 plu s hours to produce the written statement , a s well a s the

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evide nce that Mr . Kogut was dep rived of f ood a nd sleep, was prevented f rom spe a king with his girlfriend, may h ave been unde r the influence of alcohol and/or drugs, was confronted with pe r sistent denials of his claim of inn o c e nce, and may have been m i sled as to the r e s ults of the lie-dete cto r te st.

That c o u rt then went o n to comp a r e Dr . Ofshe's testimo n y with Dr. Ka s sin's and fou nd:

The wo r k of Dr . Ofshe is mo r e in the n atu r e of de s c riptjve p sychology . Dr . Ofshe h a s condu cted c a s e studie s of a ctual inte r r ogation s by revi e wing t ra n s c ripts, videotape s, a nd audiota p e s and inte rviewing people who w e r e the s ub j e ct of custodial inte r rogatio n s . Th rough the s e vario u s methods, Dr . Ofshe h a s studied ove r 300 police inte rrogatio n s . D r . Ofshe h a s attempted to develop a model of inte r rogation technique which t1e con s ide r s to be a fo rm of " ext reme influ e n ce. '' In this rega rd, D� . Ofshe's analysi s p a r allels in la rge mea s u r e that of Dr . Kas sin .

In the in stant matte r, Dr. Ofshe h a s p e rformed the fu nction that Dr . Ka s sin pe rfo rmed, as well as p roviding the background of his own rese a rch and s tudie s. Bas ed upon his review of the defe ndant's pre­trial. hea ring s and trial, coupled with his r e s e a r ch, h e con cluded that the defendant's confe s sion is con siste nt with a fals e confe s sion . It is this expe rt testimon y that the defe ndant wis h e s to p r e s ent to the ju ry at a new t rial, and which h e contends would change the o utcome of his case .

The c o u rt doe s not believe that in this c a s e, given the facts and circumsta n c e s s u r rounding the defendant's confe s sion, that a diffe rent o utcome would r e s ult . The r e w a s no conduct by the detective s that would have r e ndered the defendant's confe s sion fals e .

Unlike the defe ndant in Pe ople v . Kogut, 2005 NY Slip Op 25409, the inte rview of the defendant in this c a s e only la s te d a few hou r s . There was no indication that h e was denied any basic n e c e s s ities, o r that h e wa s und e r the influe nc e o f drugs o r alcohol . He w a s howeve r t ricked into confe s s ing when Detective McCready p r etended t o receive a telephone c all from the h o spital w�e r e defendant ' s fath e r w a s , a nd told the defendant his fath e r h ad a c cu s ed him of attac king him . It was this lie that induced the defendant to confe s s .

Howev e r offen s ive this may s eem, this tactic h a s b e e n deemed acceptable time a nd again , and the lea st likely to r e s ult in a fals e confe s sion.

In United State s v . Rodge r s , 186 F. Supp. 2 d 971 the cou rt held:

The third tactic was the detective's lie that defendant's finge rprints were found on the contraband; a c c o rding to the

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detec tive this s t a tement p recipit a ted defendant's con fe s s ion. However, acco rding to the Seventh Circuit, "a lie t h a t rela tes to a su spect's connection to the c rime is t he lea s t like l y to render a confes sion invo l un t a r y." Ho l l and , 963 F . 2d a t 1051. Defendant had been ques tioned bef o re a nd the circums t ances o f t his inter ro g a tion were rel a tively benign . De fendant wa s not browbea ten with repea ted a s s u r ance of his guilt by multip le o ffice r s . Thu s , t he lie was unlike l y to p roduce an unreliable con fes sion . See Luce ro, 133 F . 3d at 13 11 (ho l ding tha t a n office r's lie t h a t defendant's fingerprint s were f ound at the scene did no t without mo re render confes sion invo l u nt a r y); Ledbet ter, 35 F.3d at 1070 (same) .

Acco rding l y , this cou rt finds t h a t t he p r oposed tes timony of Richa rd J. O f s he wou l d no t res ult in a dif ferent ju r y verdict .

D. THE PIPE

At the hea ring the defendant int roduced a pipe int o evidence claiming tha t it wa s the actua l mu r de r weapon u sed to blu dgeon the victims. The cl aim is based on a s t atement p rovided by G l enn Harris tha t he, a l ong with Creedon and Kent d rove to an empt y l o t and C reedon tos sed the pipe into t h a t lot . The pipe , acco r ding t o the defendant had been in t h a t lot since t he morning o f t he mu r der s , undetected by anyone inclu ding the per s on who lived in a house on the a djacent lot , until it was found l a s t yea r by t he defendant's inves tig a t o r .

The pipe was s ubmit ted by the defendant to a l abo r a t o r y f o r the p u rpose o f having it examined f o r any physical evidence which wou l d connect i t t o the mu r ders. No t hing w a s found. The defendant a rgues that th i s wa s consis tent with the f act that the pipe l a y in a field exposed t o the element s for seventeen yea r s which would have dis s olved any evide nce which would have been on the pipe .

The People sent an i nvestigator to that lot after the pipe was f ound . The People's inve s tig a t o r found o ther pipes o f the s ame type of varying lengt h s on the lot .

This cou r t finds t h a t the pipe h a s no probat ive value.

In addition to the f o regoing , the defendant a l s o ca l led Leonard Lubrano, the owner of a pizzeria as a witnes s . M r. Lubrano appea red to be a ver y hones t individu a l and wa s a ver y c redible witnes s .

Mr . Lubrano testified that he reca l led t h a t du ring the 1970's and 1980's, when he owned a wholes ale bake r y bu sines s , he wou l d go to Jer ry Steuerman's bagel s hop on a dai l y basis t o p u rch a s e bage l s for res ale as p a r t of his regular bu s ines s routine . Lubrano tes tified tha t he recalls s eeing Detective McCready a t the bagel s h op conversing with Jer ry S teuerman du ring that time. The defendant contends that

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t his tes timony directly a f fected t he credibility o f Detective McCready since at t rial he denied knowing Jer ry Steuerman bef o re t he mu rde r s o f the Tankle f f s.

This is s ue wa s raised by the defendant in a p rio r mo tion for a new t rial in 1990 in which the defendant p resented the cou rt wit h an a ffidavit of a high school s tu dent. Tha t s t udent claimed in her a f fidavit t ha t Detective McCready admit ted to an a u dito rium f ull o f s tuden t s that he knew Jer r y Steuerman f o r yea r s and t h a t h e wa s beyond s u s picion. Judge Tisch in his decision dated Oct ober 4, 1990 held t ha t "such evidence could n o t h ave been in t roduced a t t rial to impeach t he credibilit y o f Detective McCready since it would have been collateral to t he is s ues. "

The tes timon y o f Leo n a rd Lubrano , ano ther witnes s who would testify that t here wa s s ome kind o f p rio r rela tion s hip between Jer r y Steuerma n a n d Detective McCready does n o t change t h e r uling o f Ju dge Tisch in this case . This tes timon y would t heref o re n o t be admis sible at a new t rial.

Accordingly , the cou r t finds that t he bulk o f the evidence which the defenda n t seeks to have p resen ted a t a new t rial would be in admis sible , and t h a t wha t is lef t would be in s u f ficien t f o r a ju ry to render a dif feren t verdict.

There fore , defendan t's motion f o r a new t rial is denied.

CLAIM OF ACTUAL INNOCENCE

ln People v . Cole , 1 Misc. 3 d 531 t he cou r t s f o r the firs t time in this s ta te recognized that a f ree s ta n ding claim o f a ct u al inn ocence can be considered a s par t o f a motion p u r s u a n t t o CPL §40. 10 (1) (h) . T he basis o f this finding is t ha t it would be violative the

New Y o rk State Con s titu tion to keep an innocen t per s on inca rcera ted.

A. DUE DILIGENCE

While t his cou r t would den y t he defendan t's mo tion f o r a new trial becau se he failed to exercise due diligence since he had t he Kovacs a f fidavit for nine yea r s , this cou r t does n o t den y this branch of de fenda n t's motion f o r that rea s on . The ba sis o f a motion to set a s ide a guilty verdict upon a claim of act ual innocence does not lend itself to any claim of f ailing to exercise due diligence when it comes to newly discovered evidence, since it would be abh o r rent to t he New York Sta te Con s titu tion t o keep s omeone in p rison who is actu ally lnn ocen t merely becau se he f ooli s hly f ailed to exercise due diligence in proving his inn ocence. People v. Cole , 1 Misc. 3d 531.

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B. STANDARD OF PROOF

Tha t being s aid , the cou r t in Cole s ou ght to d e t e rmine wha t standard o f p roo f a de fendant mu s t me e t , when tha t de f endant had already been convicted beyond a reasonable doubt. That court held:

Balancing the public and private int e re s t s involved and conside ring that the de f endant h a s had the oppo r t unit y to prove hls innocence , the cou r t finds t h a t a movant ma king a free-s tanding claim o f innocence mu s t e s t ablish by clear and convincing evidence (conside ring the trial and h e a ring evidence) that no r e a s onable ju ro r could convict the defendant o f the crime s for which the pe titione r was fo und guilty. [Empha sis added.]

In this re spect , a court conducting a hearing on a claim o f innocence should admit int o evidence any reliable e vidence whe the r in admis sible f o rm or no t ( s e e Bou sley, 523 U.S. a t 623-624; Schlup , 5 13 U.S . a t 327-328; He r r e ra , 506 U . S . a t 443 [Blackmun , J . , dis s enting , j oine d by St evens and Sou t e r , JJ.]) .

This is s o becau s e the focu s is on factual innocence and no t on whethe r the gove rnment can prove the de fendant's guilt be yond a rea sonable doubt .

This s t anda rd is dif f e rent f rom de f endant's motion f o r a ne w t rial , s ince the evidence which the court would consider on a motion for a new t rial would be evidence which would be admi s s ible a t a new trial which is not the ca s e for a claim of actu al innocence.

Acco rding t o the decision in Cole , any reliable evidence s hould be conside red by t h e cou r t , inclu ding h e a r sa y.

Wi th t his in mind , the court libe rally allow e d t h e d e fendant t o int roduce what eve r e vidence he had, admis sible a t t rial o r no t , to determine whether the defendant could prove, by reliable clear and convincing evidence as held in Cole that he was actually innocent.

Cle a r and convincing evidence has been de fined in Richa rdson, Evidence [11th e d. , Prince], §3-205 a s f ollows:

Bet.ween "a fair p repond e r ance of t h e evidence" and "p roo f beyond a r e a s onable doubt" is an int e rmedia t e s ta nda r d o f p roof by "cle a r and convincing evidence." See Addington v T e x a s , 441 US 418 , 423-424 .

The p a r t y be a ring the bu rden o f e s t ablis hing a f ac t by clea r and convincing evidenc e mus t " s a tis f y [the t rie r o f f act] that the e vidence ma kes it highly p r obable that what he claims is wha t actually happened." 1 NY PJI2d (Supp), P. J. I. 1:64; Home Ins u rance v Karantonis , 156 AD2d 844 , 550 NYS2d 77; Solomon v

15

S ta te , 146 AD2d 439 , 541 NYS2d 384 . The Cou r t of Appeals has recognized the applicability of the standar d i n civil cases when the ''den i al of personal o r liberty r ig h ts" is at issue , see Ma tter of Cappoccia , 59 NY2d 5 49 , 5 5 3 , 466 NYS2d 268; o r when ''pa r ticula rly impo r tant personal inte rests are a t sta ke." Matter of S to ra r , 5 2 NY2d 363 , 379 , 438 NYS2d 266 , cer t den 454 US 858 . As the following examples show , a va r iety o f policy impe r a tives dictate adoption of the hi gher standard of p robability reflected by the term "clea r and convincing '' evidence . See also Grogan v Garner , 498 US 279; Herman & McLean v Huddleston , 459 US 375; People v Geraci , 85 NY2d 359 , 367 , 625 NYS2d 469 .

The defendant has painted a pictu re of Jer ry S teuerman as being a tough and callous busi nessman who had various business interests including those which included Seymo u r . The defendant a rg ues tha t Jerry Steuerman had the Tankleffs mu r dered to avo i d p a y ing the debts he owed Seymo u r Tankleff and to avo i d losing h i s businesses to them . As evidence of Jer ry Steuerman's consci ousness of g u i l t the defendant p oints to Jer r y Steuerman's sudden disappearance sho r tly after the murders , when Jer r y S teuerman went to Cali f o rnia and a ttemp ted to change his physical appearance and i denti ty.

The defendant a ttempted to establish tha t Jer r y S teuerman hired Creedon to mu rder the Tankleffs , tha t C reedon brought Kent w i th him and had Ha r ris drive them to the Tankle f f home . The defendant introduced several sta tements pu rpo r tedly made by C reedon to a number of w i tnesses tha t he was involved i n the mu r ders. As d i scussed above , most of the testimony essential to defendant's theo r y of the case that the defendant p resented to the cou r t was i nadmissable hea rsay from w itnesses whose credibili ty and rel i ability was ver y questionable . Altho u gh th is standard of p roof of clear and convinc i ng evidence is not the most difficult as is requ i red of the People in p roving the defendant's gu ilt beyond a reasonable doub t , it is more than a mere preponderance of the evi dence . The reason tha t this cou r t and the cou r t in Cole holds the defendant to th is level of p roof is that the defendant's gu ilt has alread y been p roven beyond a reasonable doubt, and especially as in this case , to a ju r y who had the oppo r tuni t y to view the testimony and demeano r of the witnesses at t r i al wh ich was hel d a relatively sho r t time after the commission of these crimes. It is the cou r t's opini on tha t the sancti ty o f a j u ry ver d ict is not to be di stu rbed unless the evidence in a f ree s tanding cla im of actual innocence is substantial , solid , unwave r i ng , credible and reli able , which is no t what was p resented by the defendant.

The w i tnesses p resented by the defendant h ave come forward seven teen yea rs after the cr imes were comm i tted. Many of the events tttey testified to occurred a f ter the murde rs, many years ago which is a f fected by the haze of fading memo r ies. Add i t i onally , as shown above many o f the asserti ons by defendant's witness that C reedon admitted to committ ing the mu rders to them may have been motivated by the i r bias towards C reedon , such as his son who was r a ised b y his mother who was

16

both physically and emo tionally abused by him.

Additionally, o ther witnes ses were shown to be o f the s ame ilk a s Creedon, that is that they had extensive criminal records consisting o f dru g use and dealing, robbery, a s s ault and o ther similar crimes, and a fter considering their tes timony as discu s sed above, the court finds them not worthy o f belief.

Creedon and his cohorts are certainly capable of using physical force to intimidate and to rob, and it does appear from the record that the robberies and act s o f intimidation commi t ted by these thu g s were primarily a gains t other drug dealers who wo uld n o t complain t o the police. These individu als were mainly interes ted i n either obtaining drug s or money to buy more drug s .

In this ca se, no thing appeared t o be s t olen from the house . This court finds it hard to believe that characters such a s Creedon and Ken t would not have loo ked for s omething to s teal from the Tanklef f home . It does no t seem likely tha t Creedon wou ld have commit ted these murders, along with Kent and Harris for $25, 000 and then no t s teal from the Tankle f f s . 1

Moreover, this court finds it incredible that Creedon and Kent would have left a potential witne s s behind by not als o murdering the defendant.

The evidence o f Jerry Steuerman's s u dden disappearance a f ter the murders which s upposedly s upported the theory that Jerry Steuerman was responsible f or the murders was a dvanced by the defendant a t his trial . Jerry Steuerman w a s examined at length by the defendant's a t t orney at the trial and he apparently failed t o convince the jury that Jerry Steuerman cou l d have been responsible for the murders to the extent that i t did not leave the jury with rea s onable doubt that the defendant was not the murderer. Ins tead, Jerry Steuerman tes tj fied a t the trial that he was under a lot o f pre s s ure becau se his cash flow was not what it used to be, his wife died t he year before,

his s on was under inves tigation for a varie t y o f crimes , and the defendant was accusing him for the murders o f his parent s . The cumula tive effect o f these even t s cau sed Steuerman t o think that he and tho se he was clo se to would be bet ter o f f if he ju s t disappeared . This would appear to be wha t the jury believed.

1 It is noted that Joseph John Guarscio tes ti fied that his fa ther Joseph Creedon told him that he paid Det. McCready $100 , 000. 00 t o "keep his name o u t of it", meaning a s s ocia ting Creedon with the T ankle f f murders. This flies in the face of any pro fit motive in this purported killing for hire, since Creedon would have t a ken a los s o f a t lea s t $75 , 000.

17

Th i s s tands j n con t r a s t t o the People's theo r y which is what the j ur y be lieved , that is that the de fenda nt mu rdered his p a rents. I ni t i a l l y , let t he cou r t poin t out that reg a rdles s of how man y times the de fenda nt in sis t s that his conviction was ba s ed a l mo s t entire l y on a fa l se con fes sion , that it is not t he case . Acco rding t o the t ria l tes timon y , the defendan t's con t r adic t o r y and con f u s in g accou n t s o f w h a t he did that mo rnin g , t o gethe r wit h his behavio r in t h e p resence o f p o l ice o f ficers at the s cen e , and du ring the initia l inves tiga tion lacked the level of emo tion they believed he s h o u l d h ave had appa rent l y made the detectives s u s piciou s of the defenda n t . The te s t i mon y a t the t rial revea led a young man f rom an upper middle c l a s s famil y , abou t t o s ta r t his s enio r yea r o f high scho o l , s udden l y con f ron ted with the b r u t a l mu rder o f his mo t he r , a n d a s imi l a r a t tack on h i s f a ther who was clinging to l i fe , a l l o f w hich occu r red while he was s uppo sed t o be a s leep .

A l t ho ugh the tes timon y a t t ria l s howed t h a t the defendant was upset and a gita ted that mo rning , t�e combin a tion o f emo tio n s which one would thin k he should have been disp l a ying , s uch a s overwhe l ming g rie f , fea r , panic , bewildermen t , did not appe a r to be p resent. I n s tead he immedia tel y set abo u t t r ying to s teer the detectives to ,Je r r y S teuerman as being respon sible for the a t t acks. Indeed , he s h o u ted out t o a f riend p a s sing i� a car who a s ked w h a t h appened , e 1 ther that someone kil led his pa ren t s and � mo les ted" me o r � mis sed" me. He was concerned abo u t ca l ling a f riend tha t he wa s s u ppo sed to accomp a n y t o schoo l . He became wide eyed and s tu n ned w hen he lea rned tha t his fa ther wa s s til l a live. This cou r t bel ieves t h a t the evidence of defendan t's response to the mu rde r s t he mo r ning o f the crimes p l a yed a significan t p a r t in the j ur y's del ibe r a tion s , in addit ion to his con f licting and con f u sing acco un t s t o t he p o lice of wha t he did t h a t mo rning .

Arl rl i t i o n a l l y , the de fenda n t claims that many o f the witnes ses who have tes tified again s t Creedon have done s o o u t of a compel ling need t o do what is righ t , that is to f ree the defen d a n t a n d t o h ave Creedon convicted o f these crimes. The co� r t does n o t believe f o r one in s t a n t that individua l s s uch a s Bil l y Ram , w h o a f te r h avin g tes ti fied i n this cou r t went to F l o rida and committed several a rmed r obberie s which led to a s ho o t o u t with l aw en f orcement o f ficia l s , h ave a b u r ning desire to do the right t hin g . This is a l s o t rue with Brian Sco t t G l a s s , Glen H a r ris and Jo seph Graydon . These witnes ses have spen t t heir lives pl acing their individua l wan t s and desires ahead o f s ocie t y , and a re n o t the t ype o f person who wou l d come forward o u t o f a need t o clear t heir c o n sciences in a ma t te r s uch a s this .

The bu lk o f the main tes timo n y p resen ted b y the defendant a t the hea r i n g , as indica ted above , was hea r s a y which is inheren t l y unre l i ab l e , a nd a n y evidence which had s ome reliabi l i t y failed t o e s t ablish clea r l y and convincing l y t h a t t he defendan t i s act ua l l y

18

in nocen t .

T h i s c a s e h a s been revi ewed exten s i ve l y b y e ve r y s t a t e appe l l a t e c ou r t a nd fede ral court h aving j u r i sd i ction , a l l o f whom h ave de c l i ned

to u p s e t the j u ry ' s verdi c t . A f t e r thoroug h l y r e v i e w i n g t h i s ma t te r , th i s court reaches the s ame con c l u s i on that t h e j u r y r e a ch e d seventeen yea r s ago and every s ta t e app e l l at e cou r t and fede r a l cou r t that has r e v i ewed the ca s e , and that is that Mart i n Tan k l e f f is g u i l t y o f mu rde r i ng h i s paren t s .

According l y , t h i s cou r t f inds that the de fendant has f a i led to demon s t ra te by c l e a r and convi n c i n g evidence t h a t he is a c t ua l l y innocent .

The de fendant has made a mu l t i t u de o f mo t i o n s du r i n g the s e proceed i ngs which t h i s cou r t h a s found l a c k i n g i n me r i t , a s a r e the nume r o u s rema i n i n g a rgume n t s in s uppor t of t h i s mo t ion .

I t i s t h e re fore the de c i s i o n and order o f t h i s cou r t tha t the d e f e ndan t ' s mot i on be and he reby is de n i e d i n i t s e n t i re t y .

ENTER,

19

B

People v Tankleff, Martin

I People v Tankleff, Martin

I Motion No: 2006-036 1 7

I Slip Opinion No: 2006 NYSlipOp 69369

I Decided on May 25, 2006

Appellate Division, Second Department, Motion Decision

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 43 1 .

This motion is uncorrected and is not subject to publication in the Official Reports.

Supreme Court of the State of New York

Appellate Division : Second Judicial Department

M39864

K/sl

REINALDO E. RIVERA, J.

2006-036 1 7

The People, etc., respondent,

v Martin Tankleff, appellant.

(Ind. Nos. 1 290-88, 1 535-88)

DECISION, ORDER AND CERTIFICATE

GRANTING LEAVE TO APPEAL ON MOTION

Page 1 of 2

I I I I

Application by the defendant pursuant to CPL 450. 1 5 and 460. 1 5 for a certificate granting leave to appeal to this court from an order of the County Court, Suffolk County, dated March 17, 2006, which has been referred to me for determination.

Upon the papers filed in support of the application and the papers filed in opposition thereto, it is

ORDERED that the application is granted; the defendant is granted leave to appeal from the order of the County Court, Suffolk County, dated March 1 7, 2006, made in this case; and it is further,

CERTIFIED that said order involves questions of law or fact which ought to be reviewed by the Appellate Division, Second Department; and it is further,

ORDERED that the papers which accompanied this application are deemed to be a timely notice of

http://www .nycourts.gov/reporter/motions/2006/2006_69369 .htm 9/1 8/2006

People v Tankleff, Martin

appeal from said order.

REINALDO E. RIVERA

Associate Justice

http://www .nycourts.gov /reporter/motions/2006/2006_69369 .htm

Page 2 of 2

9/1 8/2006

. • •. I

• . , �· ...... ..... 1 'I ,... '"

SUPREME COURT OF THE STATE OF NEW YO� r.: L . . :: i . t. D APPELLATE DIVISION: SECOND DEPARTM , ,pR 1 7 PM 2: 55

THE PEOPLE OF THE S�ATE OF �W YORK, At? /-}:k;��J):Ljil��4 MOTION FOR ScCl r{ ;; t�J\'tfl{�bN kPEAL FROM Respondent, ORDER DENYING C.P.L. -against-

MARTIN TANKLEFF,

Defendant-Appellant.

§ 440. 1 0 MOTION

Suffolk County Indictment Nos. 1290/88 & 1 535/88

PLEASE TAKE NOTICE, that upon the annexed affirmation of Bruce A. Barket, the

attached memorandum of law, the exhibits herein, and all prior proceedings below, the

undersigned will move this Court, at a term for motions to be held on May 5, 2006, at the

Appellate Division Courthouse, 45 Monroe Place, Brooklyn. New York, at 9:30 a.m., or as soon

thereafter as counsel may be heard, for an order and certificate pursuant to C.P .L. §§ 460. 1 5 and

460. 1 5 and 22 N.Y.C.R.R. §§ 670.7, 670. 12(a), (b):

a. Granting appellant leave to appeal to this Court from an order of the County

Court, Suffolk County (Braslow, J.), dated March 1 7, 2006, and received by counsel of record on

or about March 20, 2006, denying appellant's motion pursuant to C.P.L. § 440. 1 0 for an order

vacating his judgment of conviction and sentence under Suffolk County Indictment Number

1290/88, rendered on October 23, 1 990 (Tisch, J.), and from an order of the CouiJ.ty Court,

Suffolk County (Braslow, J.), dated March 1 7, 2006, denying appellant's motion to disqualifY

the Office of the Suffolk County District Attorney; and

b. Enlarging the time to perfect the appeal until 120 days after the decision is made; and

c. Granting appellant such other and further relief as this Court may deem just.

US! DOCS 56I3900vl

PLEASE FURTHER NOTICE that, pursuant to 22 N.Y.C.R.R. § 670.12(b)(3), answering

papers, if any, must be filed and served within fifteen ( 15) days of service hereof.

Dated: New Yorlc, New York April 17, 2006

Attorneys for Defendant Martin Tankleff

Jennifer M. O'Connor WILMER CUTLER PICKERING HALE AND DORR LLP 2445 M Street, N.W. Washington, D .C. 20037-1420 (202) 663-6 1 10

Bruce Barket 666 Old Country Road Garden City, N.Y. 1 1530 (51 6) 745-0101

Of Counsel

Warren Feldman Scott J. Splittgerber CLIFFORD CHANCE US LLP 3 1 West 52nd Street New York, New York 10019 (212) 878-8000

US! DOCS 5613900vl

Yours,

M.A:itt:L By: Scott J/Splittgefber

t7

Stephen L. Braga Courtney Gilligan Sheila Kadagathur BAKER BOITS LLP The Warner 1299 Pennsylvania Ave., N.W. Washington, D.C. 20004-2400 (202) 639-7700

Barry J. Pollack COLLIDR SHANNON SCOTT PLLC Washington Harbor, Suite 400 3050 K St., N.W. Washington, D.C. 20007-5108 (202) 342-8472

Mark F. Pomerantz PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, New York 1 0019 (212) 373-3000

TO: Motion Clerk Supreme Court of the State ofNew York, Appellate Division, Second Department 45 Monroe Place Brooklyn, NY 1 1 201

Honorable Thomas J. Spota District Attorney, Suffolk County 200 Center Drive Riverhead, NY 1 1901-3388

Martin Tankleff DIN 90T3844 Great Meadow Correctional Facility Box 5 1 Comstock, NY 12821-005 1

USIDOCS 5613900vl

c

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTMENT

--------------------------X THE PEOPLE OF THE STATE OF NEW YORK,

Respondent

-against-

MARTIN TANKLEFF,

Defendant-Appellant. --------------------------X

Suffolk County Indictment Nos. 1 290/88 & 1 535/88

BRIEF FOR INNOCENCE PROJECT AND INNOCENCE NETWORK AMICI CURIAE IN SUPPORT OF DEFENDANT­

APPELLANT

Barry C. Scheck Olga Akselrod The Innocence Project, Inc. 1 00 Fifth Avenue, 3rd Floor New York, NY 10011 (212) 364-5348

Keith Findley On Behalf of the Innocence Network

TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF TilE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I . The County Court Erroneously Found that Exp ert T estimony R egarding Mr. Tankl effs Fals e Confession Would Not Change th e Outcom e at a New Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II. This Court Should Adopt a Rul e that Where Polic e Fail to El ectronically Record an Interrogation, the Confession is Inadmissibl e or the Trial Court Must Issue a Cautionary Jury Instruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 8

III. The County Court Erroneously R efus ed to P ermit DNA T esting Which Could Prove Marty Tankl eff s Innocenc e and Identify the True P erp etrators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

INTEREST OF AMICI CURIAE

The Innoc enc e Proj ect, Inc. ("th e Proj ect"), is a nonprofit l egal clinic and

r esourc e c enter created by Barry C. Scheck and P eter J. Neufeld. Founded at th e

B enjamin N. Cardozo School of Law in 1 992, the Proj ect provides pro bono l egal

s ervic es to indig ent prisoners for whom post-conviction DNA testing of evid enc e

can yi eld conclusive proof of innoc enc e. Th e Proj ect pion eer ed the post-

conviction DNA litigation mod el that has to date exonerated 1 87 innoc ent p ersons,

and s erved as couns el or provided critical assistance in a majority of thes e cas es.

Th e Innocenc e Network ("Network") is an association of thirty-six m emb er

organizations d edicated to providing pro bono l egal and investigative s ervic es to

indig ent prisoners whos e actual innoc enc e may b e established by post-conviction

evidenc e. 1 The N etwork currently r epres ents hundreds of prisoners with innoc enc e

claims throughout the country.

1 The Network's members include: Arizona Justice Project; Association in Defense of the Wrongly Convicted; Barbara C. Salken Criminal Justice Clinic; California & Hawaii Innocence Project; Center on Wrongful Convictions; Cooley Innocence Project; Downstate Illinois Innocence Project; Florida Innocence Initiative; Georgia Innocence Project; Griffith University Innocence Project; I.U. School of Law Clinic, Wrongful Conviction Component; Idaho Innocence Project; Innocence Institute at Point Park University; Innocence Project New Orleans; Innocence Project Northwest Clinic; Innocence Project of Minnesota; Iowa/Nebraska Innocence Project; Lois and Richard Rosenthal Institute for Justice/Ohio Innocence Project; Maryland Office of the Public Defender Innocence Project; Medill Innocence Project; Mid-Atlantic Innocence Project; Midwestern Innocence Project; New England Innocence Project; North Carolina Center on Actual Innocence; Northern Arizona Justice Project; Northern California Innocence Project; Office of the Public Defender, State of Delaware; Rocky Mountain Innocence Project; Second Look Program; Texas Center for Actual Innocence; Texas Innocence Network; The Innocence Proj ect, Inc.; The University of Leeds Innocence Project; University of Melbourne Innocence Project; Wesleyan Innocence Proj ect; and Wisconsin Innocence Project.

1

Th e advent of for ensic DNA t esting and the us e of such t esting to r evi ew

criminal convictions hav e provided sci entific proof that our system convicts

innoc ent p eopl e, and that wrongful convictions are not isolated or rare ev ents.

Although there are untold numb ers of cas es in which p eopl e have b een wrongfully

convicted but there is no DNA evid enc e that can sci entifically prove their

innoc enc e, DNA t esting has op ened a window into wrongful convictions so that we

may study the caus es of this injustic e and recomm end practic es to minimize the

chanc e of its occurrenc e. In particular, the work of Amici has help ed to expos e the

probl em of fals e confessions as a major source of wrongful convictions. Amici

have b een directly involv ed in many of thes e exonerations, including that of Doug

Wamey, a man who sp ent twelv e y ears in N ew York prisons for a murder he

confess ed to but did not commit . Our ext ensive exp eri ence in fals e confession

cas es has l ed us to call for a vari ety of r eforms in criminal cas es, including

mandatory el ectronic recording of interrogations and the need for exp erts to

educate jurors in th e area of police interrogations and fals e confessions.

Amici have a particularly strong inter est in cas es wh ere, as h er e, post ­

conviction courts fail to allow post-conviction DNA t esting or fail to come to t erms

with the proven phenomenon of fals e confessions, allowing convictions to stand

based sol ely on co erced and uncorroborated confessions even in the fac e of

powerful exculpatory evidenc e.

2

STATEMENT OF THE CASE

It is unfathomabl e for most p eopl e, including jurors, to imagin e confessing

to a crim e that th ey did not commit. For this reason alone, juri es will often convict

a defendant bas ed sol ely on a confession, ev en wh ere, as here, the confession was

giv en under co ercive conditions and the content of the confession fails to match

k ey, undisputabl e for ensic evidenc e from the crime. Ind eed, fals e confessions

hav e em erg ed as one of the l eading caus es of wrongful convictions. To date, th er e

have b een 1 87 wrongly convicted Am ericans exonerated by DNA evid enc e, and of

th e first 1 30, approximat ely 27% were convicted bas ed upon fals e confessions .

See, e.g. , Innoc ence Proj ect, Causes and Remedies of Wrongful Convictions, at

http://www . innoc enc eproi ect.org. Of thos e who have b een wrongfully convicted

of murder, the p erc entage of fals e confessors is even higher: of the first 37 DNA

exonerations in the U.S. in murd er cas es, two-thirds involved confessions . See

W elsh S . White, Confessions in Capital Cases, 2003 U. Ill . L . Rev. 979, 984

(2003) (citing Innocence Proj ect cas e r evi ew).

Given the overwhelming impact that confessions have on a jury's v erdict

coupl ed with the difficulty for most jurors to comprehend the existenc e of fals e

confessions - l et alone to r ecognize wh en one has occurred - testimony from an

exp ert on fals e confessions can greatly r educ e the likelihood that a jury will

convict an innoc ent p erson. Her e, th e County Court was pres ented during post-

3

conviction proc eedings with the analysis of a l eading exp ert on fals e confessions,

Dr. Richard Ofsh e, who revi ewed Marty Tankl eff's confession and th e

circumstanc es under which it was mad e and concluded that th e confession was

"both unreliabl e and involuntary." Ofshe Affidavit, attached as Exhibit E (Exhibit

6) to Affirmation in Support of Motion for L eave to App eal Order D enying C.P.L.

§ 440. 1 0 Motion (hereinafter "Ofsh e Aff. at � _") at � 49. In particular, th e exp ert

found that Marty Tankl eff- a 1 7-year-old who was interrogated whil e under

extreme emotional trauma from having just found his parents viciously and fatal ly

stabb ed - was subj ect ed to police tactics that are routinely found in fals e

confession cas es. !d. at � 1 9. Moreover, Dr. Ofshe concluded that, sinc e the

substanc e of Marty's confession contradicted s ev eral k ey pi ec es of physical

evid enc e, the us e of such tactics co erc ed Marty into fals ely confessing to his

parents ' murd er. !d. at � 20.

Esp ecially under the circumstanc es h ere- wh er e Marty' s conviction was

bas ed sol ely on his confession; wher e unrefuted for ensic evidence pres ented at trial

contradicted his confession; wher e it took the jury a full w eek to r each a v erdict;

and wher e an array of n ew evidence d emonstrates that the murders w er e actually

committ ed by two career criminals on b ehalf of J erry Steu erman, S eymour

Tankl eff' s business partner - the showing b elow created a r easonabl e probability

that a fair-minded jury at a n ew trial, informed through the exp ert t estimony of Dr.

4

Ofshe, would reach a different v erdict. Y et th e County Court rul ed otherwis e,

erron eously holding that a different outcom e would not result through the

t estimony of Dr. Ofsh e b ecaus e "[t]here was no conduct by th e det ectiv es that

would hav e r endered th e defendant' s confession fals e." County Court Order, Mar.

1 7, 2006 (h ereinaft er "Ord er at _") at 1 2.

Amici urge this Court to r ev ers e th e County Court's ruling, which was

contrary to the weight of the rel evant sci entific evidenc e and wholly ignored the

likely impact of the new exp ert evidence. Allowing th e conviction of Marty

Tankl eff to stand, bas ed on nothing more than an uncorroborated and co erc ed

confession that is flatly contradicted by comp elling existing and n ew evidenc e,

makes a mockery of our system of justice. W e also write to encourage th e

App ellate Division to adopt a rule, as have courts in other states, that wher e ther e is

an unexcus ed failure to el ectronically r ecord a custodial interrogation, the r esulting

confessions are inadmissibl e or in the alternative the jury must b e instructed that

such confessions are inher ently unreliabl e. The adoption of either of thes e rul es

would ensure that a cl ear r ecord is made of the circumstanc es l eading up to a

confession and would greatly r educ e the us e of overly co erciv e tactics.

Amici will also address the County Court' s erroneous denial of Marty

Tankl eff' s motion for DNA t esting on fingernail scrapings from Mrs. Tankl eff and

the broad conc erns it rais es about the Court's obj ectivity. Given that DNA has the

5

potential to sci entifically and obj ectively corroborate th e w ealth of evid ence in this

cas e showing Marty Tankl effs innoc ence, the County Court's d ecision to

summarily deny DNA testing is a disturbing indication that the County Court did

not wish to l earn th e truth in this cas e. The County Court's findings should

th er efore b e accord ed littl e, if any, weight by this Court.

STATEMENT OF FACTS

W e incorporate by referenc e the statement of facts and proc edural history s et

forth in Mr. Tankl eff's bri ef.

ARGUMENT

I. The County Court Erroneously Found that Expert Testimony Regarding Mr. Tankleff's False Confession Would Not Change the O utcome at a New Trial

In holding that the det ectiv es' conduct during Marty Tankleff s interrogation

would not have r endered his confession fals e and that the exp ert t estimony

r egarding his confession would therefore have no impact on a jury's v erdict, the

County Court ignored widely acc epted res earch on fals e confessions and the cl ear

impact that the exp ert testimony would have in this cas e. Given th e County

Court's ruling with respect to DNA t esting, see irifra S ection III, this dismissive

treatment of th e exp ert testimony comes as no surprise. Without question,

howev er, th ere is a reasonabl e probability that a jury informed through the Ofshe

t estimony would at minimum find that th e pros ecution fail ed to m eet its burden to

6

prov e Marty Tankl effs confession voluntary b eyond a reasonabl e doubt, and

likewis e would find, ev en if th e confession was d eem ed voluntary, that the

confession was unreliabl e.

Exp ert testimony regarding Mr. Tankl effs confession and the circumstanc es

under which it was mad e would b e rel evant to th e jury's delib erations in two ways.

First, New York remains one of the few jurisdictions in th e nation that - s eparate

and apart from any pre-trial consideration of whether the confession was ill egally

obtained as a matter of law - affirmatively requires the P eopl e to establish b eyond

a r easonabl e doubt at trial that a d efendant' s confession was voluntary, and bars a

jury from considering the confession in its d elib erations if that burden is not met.

See N ew York CPL § 7 1 0.70; see also People v. Huntley, 1 5 N.Y.2d 72, 78 ( 1 965);

People v. Murray, 1 30 A.D.2d 773 , 775 (2d D ept. 1 987); People v. Perretti, 278

A.D.2d 597, 598 (3d D ept. 2000). The requirem ent s erves as a safeguard for cas es

wher e, even if a confession was d eemed admissibl e, a jury would still hav e ampl e

r eason to doubt its voluntariness. Ind eed, the S econd Circuit' s holding that Marty

Tankl effs confession was "barely" admissibl e, Tankleffv. Senkowski, 1 3 5 F.3d

235, 245 (2d. Cir. 1 998), shows that this safeguard is particularly crucial in this

cas e. S econd, ev en if Marty's confession w er e d eemed voluntary, the jury would

n ev erthel ess hav e to d etermine wheth er the confession was r eliabl e and the r elative

w eight the confession would d es erve.

7

Th e exp ert testimony pres ented at the 440 . I 0 hearing contain ed two crucial

conclusions r egarding Marty Tankl eff' s confession, both of which would have

b een highly r el evant to a jury's d et ermination of voluntariness and reliability: ( 1 )

th e polic e who interrogated Marty Tankl eff us ed co erciv e tactics that commonly

l ead to fals e confessions, and (2) th e contradictions b etween Marty Tankl eff's

confession and the undisputed forensic evid enc e show that the us e of thes e tactics

co erc ed Marty Tankl eff into fals ely confessing to his parents ' murder. See Ofsh e

Aff. at �� 1 9-20, 49.

Dr. Ofshe pointed to s ev eral key asp ects of the polic e interrogation of Marty

Tankl eff that are "known to b e suffici ent to s ecure an involuntary and unreliabl e

statem ent." Jd. at � 23 . Marty Tankl eff, who was only 1 7 y ears old at the time of

his interrogation, was isolated from all family and fri ends and interrogated alone,

without couns el. Id. at �� 24-27. He was aggressively qu estioned in a small,

windowl ess room for hours. Jd. at � 28. Officers pressured Marty Tankl effto

answer questions even when h e had no p ersonal knowl edge and suggested proper

answers, r esponding with disb eli ef to Marty's exculpatory statements and with

agreem ent to any inculpatory statem ents. !d. at �� 2 1 , 29. Interrogators also

r ep eatedly li ed to Mr. Tankl eff, fals ely stating that police had discovered a clump

of Marty' s hair on his mother' s body and that a "humidity" t est proved that Marty

had, contrary to his statem ents, shower ed that morning. Id. at �� 33-34. Marty

8

finally "confess ed" after police li ed to him again, t elling him that his father had

identifi ed him as th e assailant. ld. at �� 30-3 1 .

Moreov er, Dr . Ofsh e found that Marty could not hav e giv en a voluntary and

r eliabl e confession b ecaus e his v ersion of events simply did not fit the physical

evidenc e. ld. at �� 35-3 8. For exampl e, Marty stated in his confession that h e us ed

a dumbb ell and waterm elon knife to murd er his parents, but both items did not

have even a drop of blood or any other biological material on th em. Jd. at � 39.

Moreover, the confession stated that Marty washed hims elf and the murder

w eapons in th e shower, but police s earched the shower and likewis e found no hair,

blood or oth er biological material. ld. at � 42. The condition of Mrs . Tankl effs

body and th e wounds to Mr. Tankl eff also indicated a far earli er tim e of d eath than

that d escrib ed in the confession narrative. !d. at � 43 . Thes e and num erous other

discrepanci es b etween Marty's confession and the unrefuted physical evidenc e

conc ern ed precis ely the kind of c entral matters that are commonly out of sync

when a p erson confess es to a crime that th ey did not commit and of which they

lack p ersonal knowl edge. !d. at � 38 .

Mr . Tankl eff easily met the standard for reli ef r equiring that, in light of the

n ew evidenc e, ther e is a probability that "the v erdict would have b een more

favorabl e to the d efendant." N.Y. CPL § 440. 1 0( l )(g) . Armed with an

understanding of th e co ercive polic e tactics us ed in this cas e, no fair minded jury

9

could hav e concluded b eyond a reasonabl e doubt that Marty Tankl effs confession

was voluntary. Moreover, ev en if the jury found - contrary to the weight of th e

evidenc e- that the P eopl e met its burd en of proof r egarding voluntarin ess, th e

exp ert evidenc e would unquestionably make a jury highly skeptical of th e

r eliability of Marty's confession. Given the lack of other inculpatory evidence

pres ented at trial, and the new evidenc e that the crime was actually committed by

someon e els e, th ere is a reasonabl e probability that the exclusion of the confession

. or its d evaluation in the jury's estimation would l ead to acquittal. In short, the

unrebutted exp ert t estimony is suffici ent n ewly discovered evidenc e to mandate the

conviction b e vacat ed under CPL S ection 440. 1 0( l )(g).

In explicably, ev en though the P eopl e did not pres ent contrary exp ert

t estimony and the County Court did not contest Dr. Ofshe' s qualifications or

m ethods, the County Court r ej ected the substanc e of Dr. Ofshe's t estimony and

h eld that it would not change th e v erdict b ecause " [t]here was no conduct by the

d etectiv es that would have r endered the d efendant' s confession false." Order at

1 2. The County Court sol ely addressed the offic ers ' li e to Marty that his father

identifi ed him as the assailant, r ej ecting Dr. Ofshe's conclusion r egarding th e

co ercive impact of such a tactic on the basis of a singl e citation to a Wisconsin

1 0

District Court opinion that actually confirms the dangers of polic e trickery.2

Moreov er, th e County Court wholly ignored th e many oth er circumstances and

polic e tactics in this cas e- Marty's young ag e and emotional state; the conduct of

his interrogation in isolation from family, fri ends, or l egal counsel; the police's

consistent expression of disb eli ef at his proclamations of innoc enc e and th eir

positive r einforc ement when he made inculpatory statem ents - that can and do l ead

to fals e confessions and did so in this cas e.

The County Court' s holding is simply inconsistent with widely acc epted

r es earch on fals e confessions. The tactics of isolating susp ects, pressuring susp ects

to answer qu estions even where they do not know the answers, and positively

r einforcing inculpatory statements whil e expressing disb eli ef at exculpatory

statem ents, are all tactics which create a feeling of hopel essness and inevitability

and elicit a confession. See, e.g. , Drizin & L eo, The Problem of False Corifessions

in the Post-DNA World, 82 N.C .L.Rev. 891 (2004) (h ereinafter "Drizin & L eo") at

9 1 0- 1 1 ; Kassin & Gudjonsson, The Psychology of Confession Evidence: A Review

of the Literature and Issues, Psych. Sci. in th e Publ. Int., 5 (2004) (her einafter

"Kassin & Gudjonsson") at 42-43 . Moreover, confronting a susp ect with

2 Indeed, the case cited by the County Court, United States v. Rodgers, 1 86 F.Supp.2d 97 1 , 977 (E.D.Wis. 2002), actually held that "lies about evidence can sometimes lead to unreliable confessions. Repeated false statements designed to induce a suspect to believe that the evidence against him is overwhelming and that his conviction is a foregone conclusion may cause him to confess because he believes continued resistance is futile." (internal quotation marks omitted). The f?.odgers court went on to state that the coercive effect of police trickery "is further compounded if the suspect is young and impressionable." !d. at 978.

1 1

s eemingly incontrov ertibl e evid enc e of guilt is considered one of th e most effective

t echniques to make a susp ect feel that continued proclamations of innoc enc e are

fruitl ess and that there is no choic e but to confess. Drizin & L eo at 9 1 3- 14. Whil e

thes e techniques can b e powerful m ethods to obtain confessions from th e guilty,

they are likewis e "powerful enough to elicit confessions from the innoc ent." !d. at

9 1 6 . Indeed, presenting a susp ect with fals e evidenc e of guilt can have such a

co erciv e effect that, as happ ened h er e, a p erson may fals ely confess b ecaus e they

have b een erroneously convinced that they may have actually committed th e crime.

!d.

Furthermore, th e County Court wholly ignored Marty Tankl eff s young age,

a factor that makes th e offic ers' us e of co ercive tactics all the more probl ematic.

The existing body of social sci ence res earch indicates that juv enil es are far mor e

susc eptibl e to co ercive interrogation tactics and are more likely to confess fals ely.

See e.g. , J essica Owen-Kostelnik et al . , Testimony and Interrogation of Minors:

Assumptions A bout Maturity and Morality, Am. Psych. (May-June 2006)

(h er einafter "Owen-Kostelnik") at 286, 29 1 ; Drizin & L eo at 9 1 7, 941 -42; Kassin

& Gudjonsson at 52; Redlich, A.D. , & Goodman, G.S. , Taking Responsibility for

an Act Not Committed: The Influence of Age and Suggestibility, Law and Hum.

B ehav. 27, 1 4 1 -56. A r ec ent study analyzing 1 25 proven fals e confession cas es,

the largest coll ection of cas es ever ass ess ed in a singl e study, found that juv enil es

1 2

accounted for a staggering on e-third of fals e confessions in th e sampl e, with the

vast majority accounted for by p ersons in Marty's ag e group of 1 5- 1 7 . See Drizin

& L eo at 94 1 . This finding is explained by a rang e of res earch which rev eals that

adol esc ents have difficulty understanding l exical languag e, including l egal

t erminology; hav e a high er susc eptibility to n egative feedback; pres ent differenc es

in decision-making; pres ent b ehaviors more often than adults that are consider ed

"dec eptiv e" by interrogators; and have more n egative respons es than adults to

situational risk factors such as stress, th e pres enc e of authority figures, physical

custody and isolation, and confrontation. See e.g. , Owen-Kostelnik at 292-95 . It is

ther efore no surpris e that the tactics us ed in this cas e, which would even plac e an

adult at risk of fals ely confessing, l ed 1 7-year-old Marty Tankl eff to confess to a

brutal crime that he did not commit .

In fact, in the short span of time that Amici hav e b een providing post­

conviction r epres entation to the wrongfully convicted, w e have s een numerous

cas es in which innocent p ersons wer e convicted as a result of fals e confessions

obtained through the same kinds of tactics that police employed on Marty Tankl eff.

Thes e exampl es teach us that, r egardl ess of whether a cas e involves DNA evidenc e

that can sci entifically prove innoc enc e, cases with the markers of a fals e confession

must b e clos ely examined.

13

For exampl e, New York City's infamous "C entral Park Jogger" cas e is a

vivid illustration of the particular susc eptibility of juvenil es to fals ely confessing.

Wh en a 28-y ear-old jogg er was brutally rap ed in C entral Park in 1 989, the polic e

s ecured th e confessions and convictions of fiv e teenagers, ranging in ag e from 1 4

to 1 6 y ears old. Police us ed a host of tactics to obtain th es e confessions, including

calling th e teens liars, telling each teen that th ey w ere implicated by the others, and

lying about inculpatory fing erprint evidenc e on the victim's jogging shorts. In

2002, howev er, convicted rapist Matias Rey es confess ed to the rap e of the C entral

Park jogger. Wh en DNA testing corroborated Rey es' confession, the convictions

of th e fiv e m en were overturned. See Stevenson Swanson, Convictions in '89

Jogger Rape Wrong, NYC Says, Chic. Trib., Dec. 6, 2002, at 1 ; ABC N ews, House

of Cards: Experts Say Interrogation Techniques Can Encourage False

Corifessions, S ept. 26, 2002; Susan Saulny, Convictions and Charges Voided in '89

Central Park Jogger Attack, N.Y. Times, D ec. 20, 2002.

Just last month, J effrey D eskovic of Westchester County was exonerated

after spending 1 6 y ears in prison for th e murd er of 1 5-year-old Angela Correa.

J effrey was just 1 6 years old when police interrogated him for six hours and

obtained his fals e confession. Even though DNA testing at the tim e of trial showed

s em en r ecover ed from the victim did not come from J effrey, h e was n ev erthel ess

convicted bas ed sol ely on his confession. J effrey was proven innoc ent after the

1 4

profil e from th e s emen was run through the DNA databank and ther e was a cold hit

to a convicted murder er, who subs equently confess ed to Angela's murder and has

now b een charged with th e crim e. See Jonathan Bandl er, Convict Charged in Old

Peekskill Slaying, Journal News, Nov . 1 6, 2006.

Th e cas e of P eter Reilly, remarkably similar to the instant cas e, provides y et

another exampl e of the impact that co ercive interrogation techniques can have on

juv enil es . Like Marty Tankl eff, the 1 8-year-old high school s enior was

interrogated for hours after just having experi enc ed the shock of finding his mother

fatally b eaten and stabb ed in their hom e. Using the same kind of co ercive tactics

police us ed on Marty - lying about evidence of guilt and aggressively dismissing

claims of innoc enc e - police eventually got P eter to mistakenly b eli ev e that he may

have unknowingly kill ed his mother and s ecured his confession. Although there

was no other evidence of P eter's guilt, a jury convicted him of killing his mother

bas ed entirely on his confession. An appellate court later overturned the

' conviction and order ed a new trial on the basis of new fing erprint evid enc e

pointing to another assailant, and the pros ecution dropp ed all of the charges . See

CNN N ews Sunday, May 22, 2005 .

Numerous p ersons have also b een exonerated pre-trial notwithstanding fals e

confessions . For exampl e, 1 6-year-old All en Jacob Chesn et was arrested and

charged with murder and held in custody for s ev eral weeks. The sol e evidenc e

1 5

against All en was a confession that polic e obtained after telling All en that evidenc e

conclusiv ely plac ed him at the sc en e. They us ed a tactic strikingly similar to th e

staged call from th e hospital us ed in Marty's interrogation, faking a call from a

for ensic lab through which All en was l ed to b eli eve that blood discover ed at th e

crim e sc en e match ed his DNA. Nev erth el ess, authoriti es did not rel eas e All en

from custody and drop the charges until another man - whos e fingerprints and

DNA wer e found at the sc en e - confess ed. See Drizin & L eo at 944-45, 966-67.

Finally, there is highly troubling evidence that the Suffolk County Polic e

D epartment and, in particular, D etective James McCready - a l ead d etectiv e

involved in obtaining Marty Tankl effs all eged confession - has a history of

inappropriate polic e conduct. In April of I 989, the State ofNew York

Commission of Investigation (SIC) issued a report, "An Investigation of the

Suffolk County District Attorn ey's Offic e and Polic e Department" (her einafter

"SIC Report"), which was trigg ered by all egations from Judge Stewart Namm and

a s eri es of troubling cas es involving improp er interrogation tactics employed by

Suffolk police. Most troubling, the SIC found that D etective McCready gave fals e

testimony in People v. Diaz, Index . No. I I 02-84, a rape/murd er cas e tri ed in I 985 .3

3 In particular, the SIC found that Detective McCready gave false testimony regarding his interviews of three railroad workers who placed the defendant near the scene of the murder close to the day of its occurrence. " In his police report McCready wrote that the railroad workers recognized Diaz from pictures in the newspaper. In his report McCready made no mention of any mug shots or identification procedures, and at trial McCready initially testified that the railroad workers recognized Diaz from pictures in the newspaper. However, after it was

1 6

SIC Report at 3 1 . The SIC also found that "at l east five witn esses for th e P eopl e in

the Diaz cas e had pres ented incredibl e, fals e, or p erjurious testimony. " !d. at 32 .

Th e d evastating findings of th e SIC are esp ecially troubling in th e context of

th e Tankl eff cas e. Improp er polic e tactics which l ead to a disproportionate numb er

of fals e confessions tend to b e conc entrated in c ertain polic e d epartments during

discrete eras. In thes e d epartments (sometimes r eferred to as "rotten boroughs"4),

improp er interrogation tactics and fals e testimony to conc eal them b ecome

op erating proc edures and continue unchecked until a high-profil e expose results in

outsid e scrutiny, r eform, and/or a chang e of l ead ership. This unfortunate tendency

occurs most often in homicide cas es b ecaus e homicides often can b e cl eared only

demonstrated by the defense that there had not been any pictures of Diaz in the newspaper at the time of the McCready interviews, McCready changed his testimony and, contrary to his police report, said he actually had shown mug shots of Diaz to the railroad workers." ld at 38-39 (citations omitted). 4 Some of these "rotten boroughs" where false confessions have clustered include: ( 1 ) the Pulaski County Sheriff's Office (Little Rock, Arkansas) in the mid- 1 980s, as exposed in the Barry Lee Fairchild case. See Ofshe & Leo, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. Crim. L. & Crim. 429, 466-68 ( 1 998); (2) Maricopa County, Arizona in the 1 990s, which experienced at least five documented false confessions in murder cases. See id. at 445-46; (3) Chicago, Illinois, whose police interrogation scandals over the past two decades are well-documented in John Conroy's Extraordinary Acts, Ordinary People (200 1 ), particularly the "Burge" confessions, and which was quite literally a precinct known for behavior that was tantamount to torture during interrogations. See also Drizin & Leo at 933-43 ; (4) the Travis County (Austin, Texas) Homicide Division, led by the notorious Detective Hector Palenco, coerced confessions throughout the 1 980s, including, most famously, the false confession to rape and murder by Christopher Ochoa; (5) the Broward County, Florida Sheriff's Office had a series of false confessions in the 1 980s including Jerry Frank Townsend (confessed and falsely pled guilty to eight murders), Frank Lee Smith, and Timothy Brown; and (6) the Detroit, Michigan Homicide Division in the 1 980s, which obtained false confessions to murder from Eddie Joe Lloyd and David Payton and just recently entered into a consent decree with the Department of Justice to end its unconstitutional practice of arresting witnesses in homicides for purpose of interrogation.

1 7

through confessions, creating enormous pressure on detectives in the interrogation

proc ess. See, e.g. , Barbara Gelb, On the Track of Murder: Behind the Scenes with

a Homicide Commando Squad (Morrow, 1 975 ed.); Drizin & L eo at 946. Sinc e

th e homicide squad of the Suffolk County Polic e Department was singl ed out by

th e SIC in such a devastating report for improp er interrogation practic es and fals e

t estimony, it is wholly unsurprising that this Suffolk County cas e involves a

co erced and untrue confession.

In sum, given the rec ent wav e of exonerations of p ersons wrongfully

convicted bas ed on co erc ed and fals e confessions, th e wid ely acc epted sci entific

r es earch confirming Dr. Ofshe's conclusions, and Suffolk County' s troubling

history of interrogation practic es, it is cl ear that the County Court err ed in its

summary dismissal of Marty's claims. Particularly in light of the County Court's

inexplicabl e r efusal to grant DNA testing in this case, see infra S ection III, th e

County Court's dismissive treatment of the fals e confessions evid enc e is an

indication that it simply did not engage in the prop er factual w eighing that is

r equired of a post-conviction court.

W e ther efore strongly urg e this Court to r ev ers e the d enial of Marty

Tankl effs motion pursuant to CPL S ection 440. 1 0.

II. This Court Should Adopt a Rule that Where Police Fail to Electronically Record an Interrogation, the Confession is Inadmissible or the Trial Court Must Issue a Cautionary Jury Instruction

1 8

Giv en th e p ervasiveness of co erced and fals e confessions and the del eterious

impact such confessions have on our system of justic e, Amici urg e this Court to

take a step that will dramatically reduc e the preval enc e of convictions bas ed on

fals e confessions : th e adoption of a rul e that requires law enforc ement to

el ectronically r ecord all custodial interrogations. El ectronic recording is wid ely

r ecognized as a key proc edure for prev enting convictions bas ed on fals e

confessions . This Court should follow the path taken by courts in other states and

create a rul e, applicabl e to courts within this Court's jurisdiction, that wh ere polic e

fail to el ectronically record interrogations, any confessions r esulting from thos e

interrogations are inadmissibl e. In the alternativ e, this Court should r equire a jury

instruction that confessions obtained through interrogations that wer e not r ecorded

should b e ass ess ed with greater suspicion.

A recording requirement would drastically reduc e the likelihood that fals e

confessions would make it into the courtroom unchecked . By creating an obj ectiv e

r ecord o f the interrogation, el ectronic recordings will enabl e judges and juri es to

make far more accurate d et erminations of whether a particular susp ect confess ed,

whether the susp ect's confession was voluntary, and whether the confession was

true or fals e. Had officers r ecorded the interrogation of Marty Tankl eff, the trial

court and the jury would have b een abl e to s ee for th ems elv es not only what th e

officers said or did, but the effect that each word and action had on Marty's

1 9

d em eanor and the content of his statem ents. Sinc e the interrogation was not

r ecorded, howev er, the only evid enc e of what occurred b ehind clos ed doors are the

offic ers ' and Marty' s recoll ections, l eading to a "swearing contest" that, as most

frequ ently occurs, was resolv ed in favor of th e offic ers.5

The cas e of Douglas Wamey, who was exonerated this year after sp ending

twelv e y ears in prison bas ed on a fals e confession, provides a good exampl e of

how vid eorecording could have prev ented an injustic e. Wamey was convicted, in

larg e part, due to a d etective' s testimony that Wamey's confession contained

d etails of the crime that "only the true p erp etrator could have known." Thes e

d etails, including the fact that the victim was cooking a chicken at th e time h e was

stabb ed to d eath and that the victim was w earing a red-strip ed night shirt, gav e Mr.

Wamey's confession credibility and undercut his claims at trial that th e confession

was unreliabl e. However DNA testing has now identifi ed Eldred Johnson, a man

with a history of viol ent assaults, as the p erp etrator of the crime, and Mr. Wamey

has finally b een rel eas ed. See Innoc ence Proj ect,

5 Crucial determinations of voluntariness and reliability should not have to be made based solely upon recollections that can be faulty or biased. Indeed, psychological research has long shown that human memory is not an accurate source of objective information, as people have a natural tendency to twist information to make a story more coherent and plausible or unconsciously modify the information to conform it to their own expectations. See G. W. A. & L. Postman, The Psychology of Rumor 83, 1 0 1 ( 1947). Moreover, the tendency of judges and juries to credit the word of an officer over a suspect is particularly troubling in this context since studies show that people conducting interviews often have difficulty recalling specific questions they asked and answers that were given. See Amye R. Warren & Cara E. Woodall, The Reliability of Hearsay Testimony: How Well Do Interviewers Recall Their Interviews with Children?, 5 Psychol. Pub. Pol'y & L. 355, 360-66 ( 1 999).

20

http://www.innocenceproject.org/case/display profile.php?id=1 80. If Johnson is

the killer, how then did Wamey know these details of the murder? The answer is

either that the detective' s memory of the confession narrative was wrong or that he

deliberately or unconsciously suggested these facts to Wamey, who adopted them

in his confession. Regardless of whether the detective' s actions were deliberate or

unintentional, one simple fact remains : had the court been able to view an

electronic recording of Wamey's interrogation, the mystery of how Wamey came

to know these facts would have been solved.

Several state courts have already acted to remedy the problems of

unrecorded interrogations in their jurisdictions. Recognizing the dangers of relying

on a confession obtained through an unrecorded interrogation and the need for

accurate and objective information upon which confessions could be assessed,

these courts have exercised their supervisory powers to require trial courts to

exclude confessions emerging from unrecorded interrogations, see, e.g., In re

Jerrell, C.J, 283 Wis. 2d 145, 1 66-73 (Wis. 2005) (confessions ofjuveniles not

admissible where police fail to record interrogation); State v. Scales, 5 1 8 N.W.2d

5 87, 592 (Minn. 1 994) (same, as to any person' s confession); State v. Cook, 1 79

N.J. 533 , 562 (N.J. 2004) (appointing committee to investigate possible recording

requirement) and Supreme Court of New Jersey Administrative Determination

(hereinafter "New Jersery Det."), at 7, available at

2 1

http://www.judiciary.state.nj .us/notices/reports/recordation.pdf (adopting

committee recommendation that trial courts will consider failure to record in

determining admissibility); see also Stephan v. State, 7 1 1 P.2d 1 1 56, 1 1 60-65

(Alaska 1 985) (excluding confessions where interrogation was not recorded, but

basing decision on due process clause), or to instruct juries on the implications of

the failure to record the interrogation. See Com. v. DiGiambattista, 442 Mass. 423,

44 7-48 (Mass. 2004) (instruction advises jurors that "because of the absence of any

recording of the interrogation in the case before them, they should weigh evidence

of the defendant's alleged statement with great caution and care"); New Jersey

Det. , at 1 2 (adopting instruction advising jurors that where there is a failure to

record, they should assess confessions with "great caution and care" and are

permitted "to conclude that the State has failed to prove that a statement was in fact

given").

This Court, too, should mandate recording of custodial interrogations . The

Appellate Division has supervisory power to fashion rules ensuring fairness in the

judicial process. See People v. Dyla, 142 A.D.2d 423, 442 (2d Dept. 1 988) (in

case involving warrantless arrest for parole violation, holding that suppression of

defendant's statement was not warranted "as a matter of our supervisory power

over the trial courts"); People v. Adessa, 640 N.Y.S.2d 895, 898 (2d Dept. 1 996)

(in case involving prosecutor's conduct before grand jury, court explicitly

22

acknowledged "the inherent supervisory role of the court in preventing and

correcting abuses"); People v. Isaacson, 56 A.D.2d 220, 23 1 -32 (4th Dept. 1 977)

(3-2 decision) (Cardamone, J., dissenting) ("After reviewing the instant record, we

are convinced that the police conduct is ' sufficiently offensive' to compel this

court to impose a bar to the conviction as an exercise of its supervisory powers.").

As the facts of this case so clearly illuminate, convictions based on false

confessions are a real and pervasive phenomenon, calling for this Court to act to

insure the fair administration of justice by requiring electronic recording of all

custodial interrogations. This Court has a duty to supervise and protect the

integrity of courts within its jurisdiction, which is destroyed if a conviction is

based on a coerced or false confession. The Court should therefore hold that

where, as here, there is an unexcused failure to record an interrogation, a

defendant' s confession is inadmissible. Such exclusion of unreliable evidence is

not only within the ambit of judicial power, see, e.g., People v. Shedrick, 66

N.Y.2d 1 0 1 5 , 1 0 1 8 ( 1985) (polygraph evidence inadmissible due to unreliability),

but is in line with the rationale underlying many basic rules of evidence. See e.g.,

5 Weinstein' s Federal Evidence § 802.02[3] (2006) ("The hearsay rule seeks to

eliminate the danger that evidence will lack reliability because faults in the

perception, memory, or narration of the declarant will not be exposed.").

23

Alternatively, if this Court is not prepared to prescribe a blanket rule of

exclusion, it should hold that when the prosecution introduces a confession from an

unrecorded interrogation, judges must issue a cautionary instruction. Judicial

prescription of jury instructions regarding trial evidence is an immemorial practice

in New York and all U.S. courts. See, e.g. , People v. Leon, 509 N.Y.S .2d 4, 6 ( 1 st

Dept. 1 986).

At minimum, the court should take this opportunity to encourage law

enforcement officials to videotape the entirety of a suspect's interrogation and

warn that a failure to do so will be frowned upon by the court and may necessitate

imposition of a requirement in future cases.

Finally, if the Court does adopt either of the remedies for the use of

unrecorded confessions, this Court should weigh the impact that such a rule would

have on the outcome of Marty' s case at a new trial. At his new trial, Marty

Tankleff would be entitled to have the evidence of his confession excluded from

evidence or, in the alternative, would be entitled to a jury instruction warning

jurors that confessions that are the result of interrogations that are not

electronically recorded must be viewed with great caution. The application of

either rule, by itself, raises a reasonable probability that the outcome of Marty

Tankleff s trial would be different, thus entitling him to a new trial pursuant to

440. 1 0.

24

III. The County Court Erroneously Refused to Permit DNA Testing Which Could Prove Marty Tanklefrs Innocence and Identify the True Perpetrators

The County Court grievously erred by denying Mr. Tankleffs motion to

conduct post-conviction DNA testing on biological evidence taken from the scene

of the crime. Although this error is being appealed through a separate proceeding,

and Mr. Tankleff has already - even without the benefit of DNA testing -

presented sufficient evidence of his innocence to warrant an order to vacate his

conviction, the County Court's denial of Mr. Tankleffs DNA motion casts serious

doubt upon the extent to which the County Court fulfilled its duty to carefully

consider and weigh the evidence presented during the 440. 1 0 proceedings.

Indeed, DNA testing has the potential to provide undisputed scientific

evidence in support of a convicted person' s claim of innocence. In the words of

former Attorney General John Ashcroft, DNA testing is "nothing less than the

'truth machine' of law enforcement, ensuring justice by identifying the guilty and

exonerating the innocent." Naftali Bendavid, U S. Targets DNA Backlog-Agency

To Spend $30 million To Aid State Crime Labs, Chi. Trib. , Aug. 2 , 200 1 , at 1 0 .

Many of the persons who have been exonerated over the years through the work of

Amici would still be languishing in prison today if the courts that reviewed their

cases had denied DNA testing as the County Court did below.

25

In this case, Mr. Tankleff sought testing pursuant to C .P.L. § 440.30 ( 1 -a), at

his own expense, on fingernail scrapings taken from his mother. These scrapings

could well contain DNA, deposited during the course of the grisly pre-mortem

struggle, from the individual(s) who bludgeoned Mr. Tankleff's parents to death.6

DNA testing of the fingernail scrapings could have provided powerful scientific

proof confirming the existing evidence of Mr. Tankleff's innocence in three ways:

( 1 ) by identifying foreign DNA under Mrs. Tankleff's fingernails which matches

the DNA of Joseph Creedon or Peter Kent, the men whom numerous witnesses

have testified were the murderers; (2) obtaining a complete Short Tandem Repeat . .

DNA profile from foreign DNA that, in tum, yields a "hit" on a convicted offender

through the state or federal DNA databanks, or matches a DNA profile from an

unsolved crime committed after Marty' s incarceration; or (3) obtaining a DNA

profile from foreign DNA in the fingernail scrapings that conclusively excludes

Marty Tankleff.

Although DNA testing in this case thus provided the Court with the

possibil ity of conclusively reaching the truth about who killed the Tankleffs,

6 A number of recent studies evidence the probative value of fingernail scrapings in homicide and/or sexual assault cases, concluding that foreign DNA under a person' s nails is extremely unlikely to be the result of casual contact and is deposited mainly through consensual sexual activity or violent, close-range struggles. See e.g. , Henderson et al., Prevalence of Foreign DNA Under Fingernails, Instit. of Envtl. Sci. and Res. ; Lai et al., An Evaluation of the Routine DNA Analysis of Fingernail Debris in Forensic Casework, Instit. of Envtl. Sci. and Res. (2004); Fernandez-Rodriguez et al., Genetic Analysis of Fingernail Debris; Application to Forensic Casework, Intern. Cong. Series 1 239, 92 1 (2003).

26

tellingly, the Court simply denied testing of the fingernail scrapings without

substantive explanation on the ground that the testing was not specifically

requested in 2000 when Marty Tankleff conducted testing on other evidence (the

results of which proved inconclusive). See Court DNA Order, Mar. 1 7, 2006, at 2.

While testing on the fingernail scrapings may likewise prove to be

inconclusive (due to degradation or because only the victim's own DNA is found

in the scrapings), the court's decision runs counter to longstanding construction of

this state' s post-conviction DNA testing statute which provides a clear path to

obtain testing where, as here, there is potential for it to provide new evidence in

support of a convicted person's claim of innocence. See, e.g., People v. Hayes,

726 N.Y.S .2d 89 1 , 891 (4th Dept. 200 1 ) (ordering DNA testing under CPL

440.30( 1 -a) on fingernail scrapings from victim of a homicide on ground that

exclusionary DNA results would, as a matter of law, create a reasonable

probability of a different result). More fundamentally, it is also squarely contrary

to recent interpretations of that statute by the Court of Appeals, which held that

there is no time limit or "due diligence requirement" on filing motions for post­

conviction DNA testing under Section 440.3 0( 1 -a). People v. Pitts & Barnwell, 4

N.Y.3d 303 , 3 1 0- 1 1 (2005).

DNA testing could objectively and conclusively confirm the veracity of the

numerous witnesses who came forward and testified below that Creedon and Kent

27

were the real killers, hired to carry out the "hit" by Jerry Steuerman. The fact that

the County Court failed to allow such potentially dispositive testing to proceed,

while simultaneously taking pains to attack the credibility of witnesses in its denial

of the 440. 1 0 motion, see Order at 4, is a troubling sign that the County Court, for

whatever reason, became more fixated on justifications to deny relief than ways to

find the truth. In a case such as this, where there is particularly strong evidence of

innocence and dismissive and neglectful treatment of that evidence by the County

Court, the Appellate Division is wholly justified in according lesser weight to the

lower court's factual determinations.

arry C. Schec Olga Akselrod The Innocence roject, Inc. 1 00 Fifth A venue, 3rd Floor New York, NY 1 00 1 1 (2 1 2) 364-5348

Keith Findley On Behalf of the Innocence Network

28

CERTIFICATE OF COMPLIANCE Pursuant to 22 NYCRR § 670.10.3(f)

The foregoing brief was prepared on a computer. A proportionally spaced typeface was used, as follows:

Name of Typeface : Times New Roman Point Size: 14 Line Spacing: Double

The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc., is 6972.

CERTIFICATE OF SERVICE

I hereby certify that on January 5 , 2007, a copy of the foregoing Notice of

Motion for Leave to File Amicus Curiae Brief in Support of Defendant-Appellant

Martin Tankleff, Affirmation in Support of Motion for Leave to File Amicus

Curiae Brief in Support ofDefendant-Appellant Martin Tankleff and the exhibits

attached thereto were served upon:

Thomas J. Spota District Attorney of Suffolk County Leonard Lato Assistant District Attorney 200 Center Drive Riverhead, New York 1 1 90 1 -3388 (63 1 ) 852-2500

by depositing true copies thereof, enclosed in a wrapper properly addressed as

shown above, into the custody of an overnight service (by Federal Express) for

overnight delivery, prior to the latest time designated by that service for overnight

delivery.