The conviction of a Selden grandfather for molesting three girls -- two of whom say they made a pinkie swear to seek justice against him some day -- was thrown out Monday after a federal judge found that evidence corroborating the girls' stories was fake.
U.S. District Judge Arthur Spatt, in a written decision, said the Suffolk district attorney's office has 90 days to decide whether to retry Thomas Green, 66, or let him go free. He was convicted in 2008 of seven counts of sexual abuse and was sentenced by Suffolk County Court Judge Barbara Kahn to 35 years in prison. He was acquitted of earlier sex abuse charges in 2004.
"I'm glad Mr. Green is one step closer to freedom," said his attorney, Ronald Kuby of Manhattan. He said his client has suffered two heart attacks during his five years in prison. "It's been just brutal."
He's elated now, however, Kuby said. "He said he was packed," to go home, he said.
Suffolk prosecutors said they aren't sure yet how they'll respond.
"The decision is being reviewed by the district attorney's appeals bureau to determine what action, if any, will be taken," said the office's spokesman, Robert Clifford.
During the trial, the girls testified that Green crept into their beds to perform sex acts on them during sleepovers, forced them to perform sex acts on him and forced them to fondle him. These events happened at various times from 1998 to 2003, they testified.
One girl identified as a victim denied on the stand that any abuse happened or that she even knew another girl who said she was a victim in 1998 when some of the abuse supposedly happened. But at the trial, Assistant District Attorney Dana Brown produced a photograph of both girls together taken at Coney Island that had "6/98" on the back.
Spatt noted that Brown said this photo was "the one piece of evidence in the whole case that is not capable of lying."
After the conviction, however, defense investigator Jay Salpeter was able to show the film for the Coney Island photo wasn't even manufactured until several years later. Further, a spelling game Green supposedly gave to one of the girls in the late 1990s wasn't sold until August 2001.
In the decision, Spatt found that Green's prior attorney, Paul Gianelli, should have investigated the evidence supporting the timeline of the accusations more thoroughly, particularly because the defense was that Green didn't know his accusers when they say he abused them.
In an affidavit, Gianelli conceded he erred by not challenging the physical evidence properly.
Spatt wrote that, if the jury knew the corroborating evidence didn't support the prosecution's claims, Green likely would have been acquitted.