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Legal experts: Cuomo correct on Tankleff decision

BY KATHLEEN KERR | kathleen.kerr@newsday.com

7:17 PM EDT, June 30, 2008

State Attorney General Andrew Cuomo correctly recommended that Martin Tankleff not be retried for his parents' murder, legal experts said Monday.

But some questioned why Cuomo and his chief trial counsel, Benjamin Rosenberg, decided to note there was some evidence that Tankleff committed the murders in their statement recommending no retrial.

"I think that the attorney general indicated there was some evidence of guilt, at least in part, to support the work of the police department and the Suffolk County district attorney's office in prosecuting the case originally," said Marc Gann, first vice president of the Nassau County Bar Association. "There's a desire, not in an unethical way, to support your brother or sister law enforcement agencies if it can be legitimately done."

The police department declined to comment and the office of Suffolk District Attorney Thomas Spota did not return phone calls.

Gerald Shargel, a veteran Manhattan defense attorney, criticized Cuomo, saying: "The statement by the attorney general certainly has a political edge. He's leaving an indelible stain and this young man has been suffering this stigma for 17 years."

Shargel said Cuomo might be seeking to cover himself against any unforeseen future developments in the case.

However, Hofstra University law professor Eric Lane said that instead of choosing the easy way out, Cuomo chose a potentially unpopular but "meritorious" way to go.

"At the end of the day he had to make a decision and he made the honorable one," Lane said.

Like Rosenberg, Anthony Barkow, executive director for the New York University Center on the Administration of Criminal Law, pointed to problems with Tankleff's confession, lack of physical evidence and changes in the law that would complicate a new trial.

"The way police took the confession, they went to the crime scene and kind of manipulated the confession," Barkow said.

But Barkow, a former federal prosecutor, also said Cuomo unnecessarily noted that some evidence pointed to Tankleff.

"I don't really agree with the inclusion of that language in the memo," Barkow said.

John Barrett, also a former federal prosecutor and now a law professor at St. John's University, said Monday's announcement is a lesson in not relying on confessions.

"It certainly is a reminder that cases built on confessions often have problems and confessions are often of suspect reliability," Barrett said. "Prosecutors often don't go forward with a weak confession or a partial confession or a recanted confession."

Despite the loss of a case the district attorney's office fought for almost two decades, some Suffolk Democrats said it won't affect their support for Spota.

"I think that Spota's strong record really will stand on its own, in particular for good government," said Brookhaven Democratic leader Marsha Laufer. "He will certainly continue to have my enthusiastic support."

Suffolk County Democratic chairman Richard Schaffer said political fallout for Spota will be "none whatsoever."

Staff writer Erik German contributed to this story.