A judge declared a mistrial Tuesday in the fraud case against three members of a family formerly connected to Islip Town politics, days after prosecutors admitted to altering evidence.
In state Supreme Court in Central Islip, Justice Fernando Camacho, responding to a defense request, granted the mistrial without prejudice, -- a ruling that would allow prosecutors to again pursue the case.
After the ruling, Robert Clifford, a spokesman for the Suffolk County District Attorney's office said, "We intend to try the case" against Clara Datre, her son, Thomas Datre Jr., and her daughter, Gia Gatien.
Camacho said there is "much more litigation to be done" on the case before it heads to trial.
Defense lawyers asked Camacho last week to declare a mistrial after prosecutors admitted one of them changed the date and or the work order number on three of the 225 certified payroll documents shown to a grand jury.
The documents, marked up with a pencil, made their way into the exhibits in the 492-count indictment.
The indictment alleges Clara Datre of Hauppauge, Datre Jr. of St. James and Gatien of Hauppauge, stole $148,504 from Islip Town through cleanup work billed after superstorm Sandy. The indictment also alleges they stole another $100,000 by failing to pay state-mandated prevailing wages for tree-trimming work done for the town on a separate contract.
Clara Datre's company, Daytree at Cortland Square Inc., has also been charged. All have pleaded not guilty.
On Oct. 1, Andrew Campanelli, counsel for Clara Datre, said in court he believed Islip Town employees, under pressure from their bosses, altered information on key financial documents. Prosecutors said they then went over the documents when Assistant District Attorney Leslie Stevens, one of the prosecutors on the case, realized the marking were hers.
Defense attorneys have categorized Stevens' actions as "deliberate alterations" constituting "serious prosecutorial misconduct."
Edward Heilig, the Suffolk County district attorney office's division chief, dismissed the changes as "a mistake."
Prosecutors have offered to drop six counts, including falsifying records and offering a false instrument for filing, and lower a seventh prevailing-wage count from a D felony to an E felony. That offer, defense co-counsel Donna Aldea wrote in a 31-page motion to Camacho yesterday, "is woefully insufficient to ameliorate the potential prejudice caused by ADA Stevens' conduct."
Heilig, who said in court last week the situation was being blown "way out of proportion," declined to comment outside court yesterday. Stevens, while accompanying Heilig in court each day, has not spoken in or out of the courtroom.
Eleven jurors had been sworn in on the case, and Camacho said he did not want to keep them, and other prospective jurors who have been called into the courthouse, waiting.
The trial was set to begin yesterday with opening statements and last anywhere from three to six weeks. It had been postponed due to the prosecutors' admissions.
Aldea requested Stevens be disqualified from the case, a special prosecutor appointed and the indictment dismissed "on the grounds that egregious prosecutorial misconduct rendered the grand jury proceeding defective . . . and resulted in a deprivation of defendants' constitutional rights to due process and indictment by grand jury."
The defense wants Spota's office to be sanctioned and forced to pay for costs related to the mistrial. In a three-page letter to Camacho also filed yesterday, Heilig wrote "there is no 'spillover effect' in this case" and prosecutors "maintain that the dismissal of these counts does not impair the integrity of the indictment."
The grand jury process "was not impaired," Heilig wrote, citing "the remaining charges in the indictment are supported by independent documents and testimony."
The indictment should be dismissed "because of egregious prosecutorial misconduct that impaired the integrity of the Grand Jury," Aldea wrote.
The defense argued in their motion that the alterations not only affect those six charges, but several more, causing "spillover prejudice to the other counts."
Because of the need to find "intent to defraud" by the grand jury to charge falsifying business records and offering a false instrument for filing -- of which there are more than 400 combined counts -- grand jurors, if they had seen the unaltered documents, "might have concluded that the internal inconsistencies and multiple errors in the documents submitted to the town revealed that defendants simply did not know what they were doing, were sloppy, or even negligent -- but that they did not act intentionally, willfully, or knowingly."
The alterations themselves, Aldea wrote, along with Stevens' failure to inform the grand jury she made them, "strongly and falsely helped to establish" the intent in "of every count in the indictment."The defense intends to call Stevens to testify during the trial about her actions, Aldea wrote, and her continued role as assistant district attorney "would create a conflict of interest, would undermine confidence in the judicial process, and would additionally violate this Courts' own duty to protect the integrity of the judicial system and preserve the ethical standards of the legal profession." The defense is also seeking an appointment of a special prosecutor, citing a prosecution by Spota's office "would constitute a conflict of interest.""I remain hopeful that someone convinces the Suffolk County District Attorney that someone has sold him a false bill of goods against the utterly decent Datre family," defense attorney Kevin Kearon said in a statement. "The prosecutions against them are political in nature, constructed of whole cloth house of cards soon to collapse. The Datre family is falsely accused of a crime they didn't commit and which never occurred. They have been unmercifully crucified. Nonetheless, they had a very good day in court today. Thank God."Camacho has given Spota's office time to respond to the defense motions, which includes a request for a copy of the grand jury minutes.The case is due back in court Oct. 29.