A federal appellate court has sided with a former Bay Shore man who claimed his constitutional right to confront his accuser in court was denied during the 2005 murder trial where he was convicted in the killing of a bookie to whom he owed over $17,000.
The U.S. Court of Appeals for the Second Circuit on Monday reversed a March 2017 decision by a federal judge to reject Mark Orlando of Bay Shore’s appeal of his conviction on grounds that he was not allowed to cross examine a witness whose statements, Nassau detectives said, had implicated Orlando, 48, in the Dec. 3, 2004, killing of Robert Calabrese, who was 24.
The Long Beach native and mortgage broker who had placed sporting bets for Orlando, was killed after being shot in the head at least three times on an isolated Island Park street.
The gunman, Herve Jeannot of Deer Park, was convicted of second-degree murder in a separate trial and sentenced to 25 years to life in prison — but he committed suicide by hanging himself in the Nassau jail on Oct. 26, 2010, just hours after the verdict. Prosecutors said Orlando paid for the killing and was there at the time.
The decision in Orlando’s favor comes after several judicial reviews of the case, which the federal appellate panel’s decision now kicks back to U.S. District Court Judge Edward R. Korman. Korman had ruled against Orlando in March 2017.
The appeals court requires Korman to issue a writ of habeas corpus, an order requiring prosecutors to show a valid reason for Orlando’s detention, unless they take steps within 60 days to retry Orlando.
Nassau District Attorney Madeline Singas said in a statement that her office was reviewing the decision. Orlando, who official records say is being held at the state prison in upstate Coxsackie, represented himself with assistance from Jane Simkin Smith of Millbrook, who could not be reached for comment.
Orlando had filed appeals in state and federal courts and was rejected until Monday’s 51-page decision by two of the judges on the three-judge panel, Christopher F. Droney and Dennis G. Jacobs.
But one of the judges, U.S. District Court Judge for the District of Connecticut Michael P. Shea, broke with his fellow jurists and offered a 24-page dissent.
Prosecutors have said the killing occurred when Jeannot and Orlando met Calabrese on a side street in Island Park under the pretense of paying Calabrese the debt — but that Jeannot hid behind Orlando's car, jumped out and killed Calabrese within seconds. They were arrested several days later.
The chief issue before the court was whether Orlando’s Sixth Amendment right to confront his accuser at trial had been violated since the court allowed in alleged statements by Jeannot during questioning that incriminated Orlando. Confronted with that information by the detective, Orlando changed his version of the events, according to court papers.
“At Orlando’s trial, a detective was permitted to testify the accomplice had stated that Orlando paid him to commit the murder,” the justices wrote in their majority decision, referring to an admission that a Nassau detective told the jury. He testified that Herve Jeannot had said he was the gunman, but that Orlando had paid him to do it.
The statement was allegedly made when the two men were being questioned in separate rooms shortly after the murder.
“The accomplice, who was tried separately, did not testify at Orlando’s trial,” the decision continued. “Orlando contends that notwithstanding a limiting instruction by the trial court, the detective’s testimony violated the Confrontation Clause of the Sixth amendment and that the state court’s ruling to the contrary constituted an unreasonable application of clearly established federal law. We agree.”
But Shea said in his dissent that the trial judge acted “reasonably” by allowing in the detective’s statements about Jeannot’s allegations, if only to allow prosecutors to counter Orlando’s reasoning why he changed his version of the events, and by at least twice instructing jurors to "not consider Jeannot's accusation for its truth."