The indictment of the Smithtown man who was beaten and threatened by former Suffolk Police Chief of Department James Burke must be dismissed because District Attorney Thomas Spota should have been “ethically barred” from presenting a case based on police lies, according to a defense motion filed Wednesday afternoon in state Supreme Court.
Two months ago, state Supreme Court Justice Richard Ambro set aside Christopher Loeb’s guilty plea to criminal possession of a weapon, for which he had been sentenced to 3 years in prison. That came after Loeb’s attorney and a special prosecutor in the case, William Ferris, agreed that the plea was the result of after perjured testimony by police at a pretrial hearing. But now defense attorneys Bruce Barket and Donna Aldea of Garden City are arguing that the reinstated indictment should be dismissed as well.
“If you’re going to indict people on felonies, it ought be based on factual testimony,” Barket said in an interview.
That didn’t happen, in part because of Spota’s well-documented personal and professional relationship with Burke, the motion said. Spota has known Burke, now 52, since Spota prosecuted the men accused of killing 13-year-old John Pius in 1979 and called Burke as a teenage witness. Spota was a mentor as Burke rose through the Suffolk Police Department and hired him as the head of his detective investigators after becoming district attorney.
Spota also recommended that County Executive Steve Bellone appoint Burke chief of department, which Bellone did despite an anonymous letter from police officials outlining Burke’s history of misconduct in the department. Spota wrote his own letter in rebuttal.
Because of that relationship, the motion said Spota’s office had no business presenting a case against Loeb, who was accused of breaking into Burke’s vehicle and others and stealing property.
In response to the motion, Spota spokesman Robert Clifford said, “We consented to a special prosecutor to be assigned to this matter and therefore we defer to him and decline to comment.”
Ferris was appointed in December 2016 as the second special prosecutor in the case because of Spota’s relationship with Burke. Ferris, an Islandia lawyer who is running for district attorney, said Wednesday he could not comment because he had not yet read the motion.
After Loeb’s arrest in December 2012, Burke entered Loeb’s house and took possession of a duffel bag, which Loeb later said contained “nasty pornography” and sex toys. Later that day, Burke admitted during his guilty plea that he and other detectives beat Loeb and threatened to kill him and rape his mother.
The beating of Loeb and the cover-up of it led to Burke getting sent to federal prison for 46 months and numerous sealed guilty pleas by other Suffolk police officials involved in the cover-up. It also spurred an investigation that has targeted officials in Spota’s office.
In the motion, Barket said much of the grand jury testimony was obviously false. Officers and detectives made no mention of Burke removing evidence and denied that Loeb was beaten.
“The grand jury never learned that Loeb had been beaten, choked to unconsciousness, his life and family threatened, his requests for counsel ignored and his ‘confessions’ — admitted into evidence and read to the grand jury — concocted and drafted by police,” the motion said.
Ambro will rule on the issue after Ferris files a response.