Experts: 'No joy' for prosecutors if case retried
Newsday

BY ANN [email protected]

December 22, 2007

Retrying Martin Tankleff nearly two decades after his parents were killed will mean new hurdles on both sides of the case - but the toughest work lies ahead for the prosecution, legal experts said Friday.

That's because while Tankleff's defense lawyers can get a nearly complete preview of the prosecution's case just by reading the transcripts from the first trial, prosecutors risk getting caught off guard by new defense evidence, experts said.

"Believe me, there's no joy in the DA's office to retry this case," said Richard Klein, a criminal law professor at Touro Law Center. "The prosecution is going to have no new evidence. All the new evidence is coming from the defense."

Tankleff Friday was awarded the right to a new trial by the Appellate Division of the State Supreme Court. He has been serving a sentence of 50 years to life after a 1990 conviction for killing his parents, Arlene and Seymour Tankleff in their Belle Terre home on Sept. 7, 1988.

Perhaps the greatest advantage for the defense lawyers in a case like this is that they can look back at every witness's testimony from the first trial and hold them to every word of it, experts said. If a defense attorney can show jurors that even a small fact that a witness had sworn to is wrong, he can call that person's whole story into question, experts said.

"You can screw them up tremendously, and that makes them look really bad," said Theodore Robinson, who represented John Restivo, whose murder charges were dismissed in 2005, after he had served about 20 years in prison.

Prosecutors can also face obstacles just finding their old witnesses, experts said.

"Time is generally not a prosecutor's friend," said Brian Griffin, president of the Nassau Criminal Courts Bar Association. "Memories fade, people can't be located and even die."

Robinson said the obstacles for prosecutors can be so great that once a new trial is granted, they often will try to get a defendant to accept a plea bargain to some lesser crime. That way, the defendant can usually arrange to be released from prison immediately in exchange for his guilty plea, while prosecutors can still take credit for a conviction of some kind, experts said. At the same time, prosecutors can save a tremendous amount of money not retrying an old case, and shield taxpayers from a civil lawsuit if a jury were to find that the defendant was innocent from the beginning, Robinson said.

Still, juries are unpredictable, experts agreed.

Klein said even if jurors believe after the trial that Tankleff did kill his parents, there is a chance they will acquit him simply because they feel he has served enough time and is not a danger to society.

"Jurors are more likely to say, 'Enough! This is a different person now. He doesn't represent a threat," Klein said.

But Arthur Patterson, a jury consultant for the Los Angeles-based firm DecisionQuest, said it's just as likely that jurors will think that, if prosecutors are taking the trouble to retry a case after 17 years, the defendant must really be a danger.

Likewise, Patterson said it's hard to say what jurors will make of Tankleff's long-ago confession to police. Some jurors may say that at age 17, Tankleff was more likely to confess to a crime he didn't commit.

Others, Patterson said, could assume that Tankleff was telling the truth in his confession and has since learned to lie.

"They'll say he learned to lie in prison," Patterson said. "Now he's slick."