The Tankleff Case: Is the Prosecutor Interested in the Truth?

By Bennett L. Gershman

One month into a bitter month-long hearing, the battle in the Riverhead courtroom over whether to free Martin Tankleff has brought into focus one the most dangerous areas of our criminal procedure - the prosecutor's power to shape and protect his version of the "truth," and obstruct any competing version of the truth from being accepted.

It is a fundamental tenet of the U.S. criminal justice system that prosecutors have the legal and ethical duty to promote justice and refrain from conduct that impedes the search for truth. A prosecutor who prizes winning a case over seeking the truth violates his legal and ethical obligations. Indeed, in a statement on his own website, Suffolk County District Attorney Thomas Spota quotes the American Bar Association that "The duty of a prosecutor is to seek justice, not merely to convict." Regrettably, in the Tankleff case, the district attorney appears to be disserving his duty.

Whether Mr. Tankleff is innocent or guilty of murdering his parents fourteen years ago seems less important to the Suffolk District Attorney than preserving the conviction. Indeed, to protect that conviction, the prosecutor's office has threatened and intimidated witnesses, secretly eavesdropped on private conversations, used confidential informants to discredit witnesses, badgered and ridiculed the courtroom testimony of unfavorable witnesses, perverted the immunity power to prevent a key witness from testifying, and, most alarmingly, allowed apparent conflicts of interest to interfere with the prosecutor's ability to administer justice fairly and impartially.

Not surprisingly, the prosecutor's version of the truth rests exclusively on Mr. Tankleff's confession. But given that there was no proof of any motive, no physical evidence linking Mr. Tankleff to the killings, and no other corroborative evidence of Mr. Tankleff's guilt, the prosecutor would be less than candid if he did not admit some skepticism of the strength of the original conviction. The sole evidence of guilt was the un-Mirandized station-house confession of a scared seventeen-year-old following treacherous interrogation tactics by a reputedly dishonest cop, a confession which not mesh with the key facts, and which Mr. Tankleff immediately repudiated. Despite appeals court rulings, the spirit, if not the letter, of Mr. Tankleff's Miranda rights were certainly violated that day.

Moreover, as the prosecutor is well aware, the integrity of Mr. Tankleff's conviction has now been substantially undermined by a parade of disinterested and credible witnesses who have testified at the hearing to a very different version of the truth, a version that is far more credible than the prosecutor's. According to this version, which is supported by some eleven witnesses, Seymour and Arlene Tankleff were murdered by two "hit" men, Joseph Creedon and Peter Kent. Creedon has admitted to four independent witnesses his involvement in the murders. Another witness, Joseph Graydon, testified that Creedon actually brought him into the plot, but their hit attempt, weeks before the murders, failed. The alleged killers were driven to the Tankleff residence by Glenn Harris, who has admitted his involvement in the crimes to several independent witnesses, including a priest, and passed a polygraph test - and were allegedly hired by Seymour Tankleff's business partner, Jerry Steuerman who, with his son Todd, was involved in drug trafficking, owed the elder Tankleff hundreds of thousands of dollars, absconded days after the killings after withdrawing money from a joint bank account with Tankleff, faked his suicide, changed his identity, and is said to have admitted later that he "cut their throats." Physical evidence was recently discovered corroborating Harris's account.

Finally, new evidence has emerged that raises questions about whether District Attorney Spota ethically should be defending the Tankleff conviction, and whether a Special Prosecutor should be appointed instead. The facts are unsettling. Mr. Spota as a private lawyer represented Detective James McCready, the key witness at Mr. Tankleff's trial who procured the dubious confession and who has been accused on several different occasions of police misconduct and criminal behavior. Mr. Spota defended McCready at his 1993 trial for assault and robbery, as well as before the New York State Commission of Investigation (SIC) in 1989, which found that McCready gave perjured testimony in another murder case. Further, new information suggests that McCready committed perjury at the Tankleff trial when he denied knowing or associating with Jerry Steuerman. Finally, while Mr. Spota was in private practice, his firm defended Todd Steuerman who, witnesses have testified, sold cocaine out of his father's bagel stores, and who tried on behalf of his father to hire Creedon to cut out Martin Takleff's tongue. Later, Mr. Spota's partner, Gerard Sullivan, represented Jerry Steuerman himself.

Mr. Spota's professional connections to McCready and Steuerman may explain the tenacity with which his office is defending the conviction, and the unsavory tactics it is using to prevent the truth from emerging. Ironically, whereas the District Attorney's office routinely uses "snitches," immunity, and cooperating witnesses to win convictions, it discredits the "snitch," refuses immunity, and intimidates seemingly honest witnesses when a defendant claims his innocence and seeks to exonerate himself.

From the above, it appears that the conduct of the Suffolk District Attorney in defending Martin Tankleff's conviction is inconsistent with his duty to serve justice and the truth. Given the weak proof of Mr. Tankleff's guilt, the SIC report of pervasive misconduct by Suffolk County homicide detectives and the "astonishingly high"number of cases "solved" by confessions, together with the massive new and credible evidence of Mr. Tankleff's innocence, there is little question that a responsible prosecutor would entertain at least a reasonable doubt as to whether the right person has been convicted, and feel extremely uneasy that the real killers have escaped justice. Yet, despite all this, the Suffolk County District Attorney's office appears to be more interested in winning the case than seeing justice done and the truth emerge.

At this point in the Martin Tankleff hearing, what is clear is that the Suffolk County District Attorney and his office cannot fairly be involved in this case. Given the questionable association between the District Attorney and key players in the case, there is every reason to appoint a special and independent prosecutor.

Bennett L. Gershman is a professor of law at Pace University in New York. A former New York City prosecutor, he specializes in criminal and constitutional law and is considered an expert in government ethics.