A state appellate court found fault with both sides in a Suffolk murder case and threw out a Melville man's conviction.
As a result, James McArthur, 25, will be tried again on charges of shooting Sebastian Bonilla, 38, a Huntington Station day laborer, in 2007. He is serving a sentence of 35 years to life for second-degree murder and criminal possession of a firearm.
In a decision issued this week and written by State Supreme Court Justice Peter Skelos, the Appellate Division, Second Department, criticized both Suffolk Assistant District Attorney Glenn Kurtzrock and defense attorney Daniel Russo of Westhampton in the 2009 trial.
Skelos wrote that in Kurtzrock's closing argument to the jury, he improperly drew attention to McArthur's exercise of his right to remain silent after he was arrested. He told jurors that McArthur looked disappointed after his arrest, which is "not how an innocent person is going to react being told he's being charged with murder."
"It was inappropriate for the prosecutor to comment on the defendant's silence and demeanor as evidence of a consciousness of guilt," Skelos wrote. "Since the evidence in this single-eyewitness identification case was not overwhelming, the errors were not harmless."
"We are reviewing the decision and discussing our options," said Robert Clifford, spokesman for the Suffolk district attorney's office.
McArthur was also let down by his own attorney, Skelos wrote. Russo should have objected to Kurtzrock's improper closing argument, but he also brought in damaging testimony of his own, Skelos wrote.
Russo questioned witnesses about another shooting that happened an hour and a half earlier just two blocks away. His aim was to show that other people had admitted firing those shots, but Russo did so after Suffolk County Court Judge Stephen Braslow warned him that this would allow Kurtzrock to mention that McArthur had pleaded guilty to misdemeanor assault in connection with that shooting.
This "improperly suggested to the jury that the defendant had a propensity for gun violence and had shot someone else within two hours" of Bonilla's killing.
Although he was glad his client's conviction was reversed, Russo said, the court's opinion amounted to "Monday-morning quarterbacking."
"It was a legitimate trial strategy to point out that another person was shooting people in Huntington Station at the time," Russo said.
Russo acknowledged he didn't object to Kurtzrock's closing argument, but said he told jurors in his own closing argument that McArthur shouldn't be penalized for exercising his right to remain silent.
"It's shocking to me," he said of the court's reasoning.