Tankleff Faces Barriers To Winning a Civil Suit

Mr. Tankleff was 17 when he was arrested and charged with the murders of Arlene and Seymour Tankleff, a prosperous Belle Terre couple whose bodies were discovered beaten and stabbed on the morning of Sept. 7, 1988.

The teen was sentenced to two 25-year-to-life terms after a 1990 trial that focused on an unsigned and recanted confession obtained after detectives falsely told Mr. Tankleff that his father had identified him as the killer from his hospital bed. Mr. Tankleff wondered aloud if he had “blacked out” or became “possessed” and committed the crime.

Last year, a Brooklyn appeals panel overturned Mr. Tankleff’s convictions and ordered a new trial that would consider recently discovered evidence Mr. Tankleff said implicated others in the slayings.

Subsequently, Suffolk County District Attorney Thomas J. Spota declined to prosecute the case, and then-Governor Eliot Spitzer appointed Attorney General Andrew M. Cuomo as a special prosecutor.

On June 30, Benjamin E. Rosenberg, Mr. Cuomo’s chief trial lawyer, told Supreme Court Justice Robert W. Doyle of Suffolk County that the state would not retry Mr. Tankleff and moved for dismissal of the charges in the “interest of justice.” However, the state stopped short of saying that Mr. Tankleff was innocent and said that some evidence linked him to the crimes (NYLJ, July 1).

Justice Doyle is expected to dismiss the indictments in People v. Tankleff, 1535-88/1290-88, on July 22 and 23. Only then will Mr. Tankleff’s lawyers shift their attention to winning compensation.

“Every time the issue of a civil suit has come up one of the lawyers would say – ‘Hey wait a minute. Let’s keep our eye on the ball here – either making sure that the case gets dismissed, or winning at retrial,’” Mr. Barket said.

Mr. Tankleff said that seeking monetary compensation is not his first priority right now.

“I want to focus on getting my life back together. I want to finish my college degree,” said Mr. Tankleff who is attending classes at Hofstra University.

In an interview, Mr. Tankleff vowed to continue the search for the real killers, despite the knowledge that the state has all but declined to prosecute anyone else in the 20-year-old case.

“My family and I will continue our investigation – I’m actively meeting with witnesses in the case,” Mr. Tankleff said. “Although we can’t prosecute we certainly can gather evidence as to who did it.”

After he finishes college, Mr. Tankleff said he wants to become a defense attorney to help “give back to the people that have given me my life back.”

“I have a perspective that I don’t think too many defense lawyers have,” Mr. Tankleff said of his 17 years behind bars.

Assuming the charges are dismissed and Mr. Tankleff does seek compensation, he will have several possible avenues.

Section 8-b of New York’s Court of Claims Act offers compensation to “innocent persons who have been wrongfully convicted.” Also, Mr. Tankleff could file state common law suits for false arrest and false imprisonment and malicious prosecution. Finally, he could allege in a federal suit that his constitutional rights had been violated.

In some cases, Mr. Tankleff would face the burden of proving that he is “innocent.” In others, he could have to overcome bars to suing law enforcement officials that are intended to shield them from retaliation for doing their jobs.

Court of Claims Act

As Mr. Barket noted, prevailing in the Court of Claims is “very difficult – the statutory requirements are tough.”

Under the law, the claimant must have been convicted of a felony or misdemeanor and served time behind bars. Further, the claimant must have been pardoned, or had the conviction set aside for one of several reasons, including lack of jurisdiction; a verdict procured by perjury, duress, mental incapacity or fraud; one that is against the weight of the evidence, or newly discovered evidence.

Further, the claimant must demonstrate, by clear and convincing evidence, that “he did not commit any of the acts for which he was accused” and that he did not “by his own conduct cause or bring about his conviction.”

As it stands, Mr. Tankleff faces challenges on both fronts.

In his dismissal motion, Mr. Rosenberg merely argued in this motion that the state’s most recent investigation yielded “insufficient” evidence to convince a jury of his guilt beyond a reasonable doubt.

In fact, Mr. Tankleff had “made vague but incriminatory statements to a family member and direct confessions to some fellow inmates in prison, and he gave a confession to the police, which he later disavowed,” Mr. Rosenberg wrote.

Some courts have found that the ability of the state to present sufficient evidence for a conviction does not trigger the right to compensation under the act.

“If the [state] had stood up and said ‘He’s innocent’ that would have been point number one in his brief to seek compensation for an unjust conviction,” said Barry M. Kamins, an expert in criminal procedure and a partner in the Brooklyn firm Flamhaft Levy Kamins Hirsch & Rendeiro.

“The burden is actual innocence and that’s a tough burden to show that you are actually innocent,” said Mr. Kamins, who also writes a column for the Law Journal. “The bottom line is that there is a cloud over” Mr. Tankleff.

Satisfying the element that requires that a claimant did not cause his own conviction may also be difficult, Mr. Barket acknowledged.

The argument against his client is that the 1988 confession extracted by detectives, although unsigned and immediately retracted, somehow “contributed to his own conviction in some way,” Mr. Barket said.

That confession was “browbeaten” out of Mr. Tankleff, said co-counsel Barry Pollack, a partner in the Washington, D.C., firm of Kelley Drye & Warren.

Any evidence against Mr. Tankleff mentioned in the attorney general’s motion “distorts reality” because the “evidence on the other side of the equation is overwhelming that Marty Tankleff is innocent,” Mr. Pollack said in an interview.

A big coup for Mr. Tankleff was the discovery of fresh evidence referenced in the state’s motion, including a “previously unnoticed bloody imprint found on a sheet on Arlene Tankleff’s bed” which “appears to be that of a knife – presumably a murder weapon” but which did not match any other knife found in the Tankleff home.

That forensic clue “significantly weakens” the case against Mr. Tankleff, wrote Mr. Rosenberg, and, according to Mr. Pollack, lends credence to the defense position that shoddy detective work led to the imprisonment of an innocent man.

‘Problematic’ Conduct

Mr. Rosenberg also suggested that the behavior of one of the law enforcement officers, retired Detective James McCready, was “problematic.”

“The evidence that we have collected shows that he showed crime scene photographs to witnesses when there was no legitimate law enforcement reason for doing so,” Mr. Rosenberg wrote. “As Detective McCready was a central figure in the first trial of this case, and would likely be in any subsequent trial, his wrongdoing, which was unknown prior to our investigation, would make the case harder for the People to try.”

“Marty should never have been charged much less convicted,” Mr. Pollack said. “If there had been a thorough and objective investigation of the case I don’t think he would have been.”

That position could form the core of a civil complaint under the Civil Rights Act, 42 U.S.C. 1983, if it can be shown that Mr. Tankleff was falsely arrested or imprisoned or maliciously prosecuted.

Such a case would involve a more complex legal analysis, said Ilaan M. Maazel, a partner in Emery Celli Brinckerhoff & Abady, who has written extensively on the subject.

A suit would have to examine if there was ever probable cause to arrest Mr. Tankleff in the first place, if any police officers perjured themselves in front of the grand jury that indicted him and if there was any evidence that was improperly withheld, Mr. Maazel said.

Mr. Barket insists there is – as recently as 2003, when he maintains the Suffolk County District Attorney’s office withheld “very important exculpatory information” from the defense.

That information consisted of witness statements indicating that another man, Joey “Guns” Creedon, had admitted his involvement in the murders. Mr. Creedon was a friend of the son of Jerard Steuerman, who was Seymour Tankleff’s business partner and allegedly owed the elder Tankleff hundreds of thousands of dollars.

Police Immunity

The discovery of new evidence, including the statements of witnesses, does not automatically mean Mr. Tankleff has a case against the law enforcement officials who first arrived on the scene and subsequently interrogated him, obtaining his unsigned confession.

Under §1983, prosecutors have absolute immunity when they are acting as advocates before the court although not when they are acting as investigators or administrators. That immunity exists even when they withhold evidence or act in bad faith.

Otherwise, prosecutors have qualified immunity, as do police officers in most circumstances. That means detectives can be held liable only if they violated law that was clearly established at the time in apprehending, arresting and interrogating a suspect.

Mr. McCready, the retired detective who took Mr. Tankleff’s confession, defends his conduct and remains convinced that Mr. Tankleff was guilty.

“There was nothing improper on my part,” he said in an interview. “My crime scene photos are investigative tools. What am I guilty of? Misconduct?”

Any statements he may have made to any witnesses, including Mr. Tankleff, were also consistent with police protocol, Mr. McCready said.

“It was to gain their confidence, it was an investigation tactic – there is nothing in the criminal procedure rules of New York, nothing in the penal law and nothing in the rules and procedures of the Suffolk County Police Department that says I can’t do that,” he said, adding that in his view, the evidence cited by Mr. Tankleff’s defense team still does not hold water.

“This kid will always be guilty of killing his parents and he’ll have to live with that for the rest of his life,” Mr. McCready said. “My question is – if [Mr. Steuerman] owed Seymour all this money, killing him didn’t make the debt go away. And if Jerry was mad at Seymour, why kill Arlene? And how come the kid was alive and unharmed?”

Mr. Rosenberg said in his motion that while many of the defense witnesses were “unreliable,” some were “credible.”

“On balance,” the motion says that the defense theory was not supported by “clear evidence,” although it could raise doubts among jurors and make it more difficult to convict Mr. Tankleff.

Compounding the difficulty of bringing a civil rights lawsuit would be the undisputable fact that Mr. Tankleff was indicted and convicted after a trial, Mr. Maazel said.

“When there is an indictment it is harder to bring a false arrest case. You need to show that the police deliberately misled the grand jury, that the grand jury proceeding was somehow tainted,” he said. “If there is no indictment – you just need to show that there was no probable cause [for the arrest].”

The state Commission of Investigation is looking into how the Tankleff case was handled by authorities from the inception, said spokesman William F.B. O’Reilly, although there is no set timetable on a report detailing their findings.

Any findings of misconduct from the probe would be a “relevant but not determinative” factor in any civil lawsuit, said Mr. Barket.

- Vesselin Mitev can be reached at [email protected].