NewsdayTV's Jasmine Anderson and Newsday reporter Mark Harrington take a look at how Rex A, Heuermann's legal team could potentially defend him in court.  Credit: Newsday staff

The defense of accused Gilgo Beach serial killer Rex A. Heuermann is likely to emphasize the largely circumstantial nature of the evidence against him, while attempting to discredit the 13-year probe as being fissured with missteps, legal experts and defense lawyers predict.

As Suffolk law enforcement continues to build a case against the Massapequa Park architect, 59, who last month was arrested on charges of killing three sex workers found on a desolate stretch of Gilgo Beach, Heuermann’s legal defense team, led by court-assigned attorney Michael Brown, has already begun to push back. 

Last week, it responded to a prosecution motion seeking a DNA cheek swab of Heuermann by criticizing the evidence in the case as a “far cry from the standard of probable cause” that would require him to submit one. Nevertheless, a Suffolk judge on Wednesday ruled that Heuermann must cooperate and give the swab, with the defense present.

Heuermann, who pleaded not guilty to first- and second-degree murder charges in the killings of Megan Waterman, Melissa Barthelemy and Amber Lynn Costello, remains incarcerated without bail at the Riverhead Correctional Facility.

WHAT TO KNOW

  • The defense of accused Gilgo Beach serial killer Rex Heuermann is likely to stress the circumstantial nature of the evidence and flaws in the 13-year probe.
  • The case is expected to be expensive and legally complex with mounds of possible new evidence on top of what's already been produced by the prosecution.
  • It will require months of defense investigation, experts say, to find cracks in the case, experts say.

The case is expected to be expensive and legally complex — prosecuted by District Attorney Ray Tierney himself — with mounds of possible new evidence to supplement the two terabytes of information that’s already been produced. It will require months of defense investigation, say experts and lawyers not associated with the case, to find cracks in the case, which is unfolding under an intense media spotlight that could make defense strategies, and finding a neutral jury, more difficult, experts say.

Garden City criminal defense attorney Barry Levin, who has defended accused mob bosses and other high-profile defendants, called the case the biggest "since the Lindbergh kidnapping."

Suffolk police have said they linked Rex Heurmann to the...

Suffolk police have said they linked Rex Heurmann to the Gilgo Beach killings through DNA obtained from discarded pizza, above, collected from a trash can outside his Manhattan office. Credit: Suffolk County Court

Heuermann's legal costs, which are being paid for by a county defense agency funded by state and local taxpayers, could reach or exceed $1 million, a tab that would cover a vigorous review of the evidence produced by more than a decade of law-enforcement probes into the killings. 

“Without a defense investigation he doesn’t stand a chance, because I think the people of Suffolk would convict a pumpkin because of the notoriety of the case and the horrendous nature of the murders,” said Peter Smith, a Northport-based criminal defense lawyer who is also a former prosecutor and police officer.

Bruce Barket of Garden City, who has successfully defended high-profile Long Island cases, said the Gilgo case has received so much media coverage that defense attorneys will almost certainly make a motion to move it off Long Island, if necessary.

Brown earlier this month noted, “The press has convicted my client without a shred of evidence.”

Tierney, in a Newsday interview, said he already expects the defense to make a change-of-venue motion, but noted judges have ruled to keep other high-profile cases in Long Island courtrooms.

Still, said Barket, “I’d be really aggressive about pushing back on the public narrative that he’s a serial killer and he’s absolutely guilty.” He would conduct public polling closer to a likely 2025 trial to determine whether a change of venue was warranted.

Team needed for Heuermann's defense

Heuermann’s lawyers must overcome prosecution evidence that includes cellphone records, chilling internet searches and several hairs with DNA that prosecutors say link him to the victims. After Heuermann’s arrest, investigators spent days searching his home, storage locker and other properties and may have uncovered new evidence that hasn’t yet been revealed, so the case against him could be bolstered before any eventual trial.

Defense lawyers say they'd hire teams of investigators, a medical examiner, even a forensic anthropologist to help rebut the government's findings. Some would conduct a deeper review of the medical examiner's recent shift in the official cause of death of the victims from "homicidal asphyxia," or strangulation, to the broader category of "homicidal violence."

Defense attorney Anthony La Pinta said he believes evidence in the...

Defense attorney Anthony La Pinta said he believes evidence in the Rex Heuermann case can be challenged in court. Credit: Thomas Lambui

Anthony La Pinta, a criminal defense attorney in Hauppauge who has defended high-profile murder and white-collar cases, acknowledged: "The search of the defendant's home will most probably yield additional trace evidence that could be linked to the bodies." He described the prosecution's case as "not a weak" one. The evidence linking Heuermann's cellphone billing records to cell site locations for phones used to arrange meetings with three of the four victims is “majorly problematic,” La Pinta said.

For that reason, said Barket, “I would have a team of forensic experts on board immediately reviewing every piece of forensic evidence … starting with the telephones all the way through to the DNA, the crime scene and everything else.” He noted while forensic evidence is often perceived as “kind of gospel and unassailable," defense attorneys have found that forensic evidence is “susceptible to the same kinds of bias, misuse and corruption the witnesses are. Prosecutors may oversell it.”

A thorough defense is going to cost money. Heuermann's attorneys are being paid by the Suffolk County Assigned Counsel Defender Plan, which pays an hourly rate of $158 for attorneys. The fees are drawn from county and state funds, and fees paid through the program undergo a level of vetting of a defendant's finances. Public funds will also have to pay for the lawyer's expenses, including investigators, expert witnesses and a range of items needed for trial preparation.

It's unclear what the limits to the funds are. Dan Russo, administrator of the agency, declined to comment, but defense experts say Heuermann’s legal defense could approach or exceed $1 million.

“Clearly it’s going to exceed $1 million,” said Daniel Rodgers, a former Suffolk assistant district attorney now in private practice in Southampton. “It’s an extremely complicated case. It’s got a long history and tons of evidence.”

Sorting through DA's evidence on Heuermann

Prosecutors have already shared an "astronomical" amount of pre-trial discovery material with   the defense, said Christopher Brocato, a defense attorney. He said Brown would need at least six more lawyers for the case because Heuermann is charged in the deaths of three women, “it’s three or four times the size of a normal murder case."

Prosecutors are required to turn over evidence to the defense that is favorable to the defendant. Under the law, which was revised in 2020, prosecutors have a maximum of 45 days to turn over enough material to be prepared for trial. Tierney said his office would turn over the material on a rolling basis.

Tierney told Newsday that the review of the evidence taken from Heuermann’s home will take “weeks if not months” because “we’re looking for biological evidence, hair, blood, fibers, DNA. It’s not like on TV where 15 minutes later you get a result.”

 

Defense lawyers say the prosecution's physical evidence can be challenged. Investigators said they linked Heuermann to Waterman’s body through DNA from a hair found at the “bottom of the burlap” that her body was wrapped in. It was linked to Heuermann from DNA left on a pizza box he allegedly threw in a Manhattan garbage can.

Investigators said they also found two human hairs belonging to a woman believed to be Heuermann’s wife on or near the bodies of the victims, though they said records show the wife and children were on vacation at the time the victims disappeared.

"The hair evidence is not conclusive to him being the killer because it doesn't establish time, date or place," La Pinta said. "We don't know when those hairs were placed on the burlap." 

Prosecutors have said they don’t believe Heuermann’s wife or children knew of his alleged crimes. But, noted La Pinta, “I suspect if you examine that burlap carefully, there’s other microscopic trace evidence there" that is not linked to Heuermann.

"I would like to find out, if I’m the lawyer on this, what other evidence was obtained from the burlap that doesn’t corroborate with Rex,” La Pinta said. 

“Hair evidence does not indicate timing of it. The hair may have been on that burlap years before that burlap was used for the murders," he said. "It doesn’t tell you when or how it was placed there.”

Tierney in the Newsday interview acknowledged that in addition to cellphone records linking Heuermann to locations and his internet searches, “Really the only evidence you have is those five questioned hairs that we talked about, three of which have been forensically tested and mitochondrial DNA profiles have been obtained,” he said. “Of the five, two of the hairs [are] consistent with the wife, one with the defendant.”
Tierney himself has noted there’s “lots of ways that people’s hair get on another person, such as transference, so if I live with a person and their hair gets on me and then I come in contact with a third party both my fibers, my hair, and my spouses could get on that third person.” He said there was “no indication … whatsoever” that Heuermann had any accomplices.

The attorney Levin said he’d focus on the age and amount of evidence gleaned from victims.

“I’d argue the DNA could not be reliable,” he said. “It’s been tampered with after all these years. I’d get my own DNA expert.”

Levin said his opening statement would acknowledge the perceived peculiarities of Heuermann, given internet searches tied to him and the cache of 279 firearms found at his home, but stressed that doesn’t make him a killer.

Just because he has been painted as "a weirdo, a stranger, a cultist, doesn’t mean he’s a murderer,” Levin said. “I’d argue they have minimal evidence against him and that it’s not sufficient to convict beyond a reasonable doubt.”

Missteps in law enforcement probe of Gilgo

Reports suggesting years of investigatory missteps, meanwhile, could be used to show “that Suffolk County had egg on their face and they had to do something to prosecute” the case, Levin said. Suffolk Police Commissioner Rodney K. Harrison, who assumed his position in January 2022, acknowledged law enforcement agencies working on the case had not been cooperating with each other smoothly for years until recently.

Smith, the Northport attorney, said his first witness in any trial would be the detective who, in the early days of the investigation, “discounted or didn’t forward the information” of the witness who claimed to have seen a Chevrolet Avalanche at Costello’s home on the day before she was last seen alive.

“I’d focus on the one witness [investigators] came up with 10 years ago,” Smith said, adding it appeared that "nobody paid attention to that witness. Even the witness said the case could have been solved 10 years ago.”

Levin said he’d also quiz investigators on whether they interviewed all clients of the victims, including “tracing the girls’ last calls and who called them.”

The cause of death could also provide fodder for the defense. Prosecutors said in court documents filed earlier this month that initial autopsies conducted in December 2010 concluded that each victim died from “homicidal asphyxia” or strangulation, but a recent independent review of the findings resulted in Suffolk County Chief Medical Examiner Odette Hall ruling the cause to be “homicidal violence.”

La Pinta said, "Changing [the cause of death] from asphyxiation to homicidal violence is an issue that should be investigated because obviously there's insufficient evidence to support asphyxiation."

He said he’d also hire a private medical examiner to “go through all the records and pinpoint some language in the report that’s suspicious or overly broad that you could attack.” And he would also seek to put an end to officials' derogatory comments about the defendant. 

Citing Harrison's portrayal of Heuermann as a "demon that walks among us," La Pinta said he'd move for a protective order "preventing law enforcement and prosecutors from giving derogatory or inflammatory statements about Heuermann. Everyone, including law enforcement, should be committed to the doctrine of the presumption of innocence and the principles of a fair trial."

With Joye Brown
 

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