Attorneys for the Patchogue teens charged in connection with Marcelo Lucero's death last year are waiting on a court decision to learn whether their clients can stand trial separately.
At least five of the seven attorneys have requested that their clients be tried individually on the grounds that one trial would not allow them to cross-examine co-defendants on their statements and would make it difficult for a jury to distinguish the defendants from one another.
Attorneys for Jeffrey Conroy, Nicholas Hausch, Jose Pacheco, Christopher Overton and Kevin Shea have filed motions to be separated from the others. The attorney for Jordan Dasch did not return calls for comment. State Supreme Court Justice Robert W. Doyle will rule on the issue.
Laurence Silverman, the Huntington attorney for Anthony Hartford, said he didn't file a motion because he expects if all the defendants go to trial they will have separate trials.
While the law generally favors one trial, experts say separate proceedings can be granted when co-defendants' interests are different - such as when they make statements that implicate each other.
"We're entitled under the law to our own trials if they're going to use statements of other co-defendants," said Steven Politi, a Central Islip attorney who represents Shea. "Each defendant has the right to cross-examine the maker of that statement."
The seven former Patchogue-Medford High School students were charged in connection with the Nov. 8 death of Lucero, an Ecuadorean immigrant, in what authorities have labeled a hate crime.
Prosecutors say the group set out to target a Latino, surrounding, taunting and pummeling Lucero before he was fatally stabbed by Conroy. Only Conroy is charged with murder in the case; the others are charged with gang assault and conspiracy. Two months after the killing, authorities brought additional charges against the defendants, alleging that Lucero's death was the culmination of a yearlong spree of robberies and attacks of Latinos.
Hearings to determine whether statements were properly taken and can be used as evidence have not yet begun.
Defense attorneys also say there is the issue of prejudice.
Christopher Brocato, the Central Islip attorney for Pacheco, said in a case like Lucero's, where everyone's involvement varies greatly, evidence from one defendant is going to influence the jury's opinion of the others.
"You're always afraid that the jury is not going to make the distinction between your client and the other defendants," said Jason Bassett, the Central Islip attorney for Hausch.
Eugene O'Donnell, a professor of law and police studies at John Jay College, said it is difficult to get separate trials. But he added, "One of the cases where severance is appropriate is when you have defendants pointing each other out." Another possible outcome, he said, would be separate juries at the same trial who hear different portions of the evidence.
Meanwhile, the Suffolk County district attorney's office has filed a separate motion to combine two of the indictments - charges stemming from separate attacks on Nov. 3, 2008, and Nov. 8, 2008, involving other victims - arguing that defendants should be tried in those cases during the Lucero trial because they were also allegedly planned bias attacks. The district attorney's office excluded Overton from the motion, because he was not charged in the Nov. 3 assault.
In its motion for combined indictments, the district attorney's office mentions three attacks. "These incidents were a result of the defendants congregating together in the Patchogue area, discussing and planning the commission of a bias attack."