A judge has refused to disqualify Martin Tankleff’s attorney from representing Tankleff at his upcoming Court of Claims trial for wrongful conviction and false imprisonment for killing his parents.
Judge Gina Lopez-Summa (See Profile) said she could find no valid grounds to permit the state to call Tankleff’s long-time attorney Bruce Barket as a witness at Tankleff’s trial, a move that would disqualify Barket as the plaintiff’s lawyer under the Rules of Professional Conduct §3.7.
In two other pretrial rulings in Tankleff v. State of New York, 118655, Lopez-Summa refused to grant Barket’s motions to compel two witness to answer questions that they refused to address during depositions with Barket in October.
One of the witnesses is Jerry Steuerman, whom Tankleff’s lawyers have implicated in the September 1988 murders of Seymour and Arlene Tankleff in their home in Belle Terre, Suffolk County. The other witness is Steuerman’s son, Todd Steuerman.
The Tankleff case is scheduled to go to trial on Jan. 6 in Hauppauge.
Tankleff, 42, is seeking a judgment against the state and compensation for the more than 17 years he served in state prison before his murder convictions were set aside in 2007 by an Appellate Division, Second Department panel on the basis of newly discovered evidence.
In January 2008 Suffolk County District Attorney Thomas Spota said he would not retry Tankleff. After then-attorney general Andrew Cuomo entered the case as a special prosecutor at the behest of Spota, Cuomo’s office moved to dismiss the outstanding indictments in the interests of justice.
Suffolk County Supreme Court Justice Robert Doyle (See Profile) dismissed all charges against Tankleff on July 22, 2008.
Barket and his co-counsels, Barry Scheck of Neufeld, Scheck & Brustin and Barry Pollack of Miller & Chevalier, will try to prove that Tankleff was falsely convicted of his parents’ murders and wrongfully imprisoned, and if successful, seek compensation from the state.
In order to justify Barket’s disqualification, the state must show that his testimony is necessary to the state’s case and that such testimony would be prejudicial to Tankleff.
The judge said the state’s attorney, Assistant Attorney General Robert Schwerdt, had “not satisfied either requirement.”
“Defendant has not shown that Mr. Barket’s testimony was necessary as there are other witnesses able to testify to that which defendant seeks to elicit,” Lopez-Summa wrote. “Moreover, defendant failed to demonstrate that Mr. Barket’s testimony would be prejudicial to claimant.”
The judge also dismissed Barket’s motion that Schwerdt be sanctioned for bringing the disqualification motion as “frivolous conduct” under 22 NYCRR 130.1.1(a).
Lopez-Summa said the state’s motion was not “completely without merit.”
On compelling the answers from the Steuermans, Lopez-Summa ruled that both men argued persuasively that their testimony could put them at risk of self-incrimination.
Of Jerry Steuerman, the judge said “it is evident that his answers could either directly or indirectly implicate him in the murder of the Tankleffs or other activity for which he could be criminally prosecuted and would tend to incriminate him.”
She said Todd Steuerman “has reasonable cause to believe that his answers to the questions posed at his deposition will provide a link in the chain of evidence that may be used again him.”
Lopez-Summa noted that the constitutional right against self incrimination applies in all proceedings, civil or criminal. She said it pertains “not only to answers that would in themselves support a conviction but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute,” citing Prudential-Bache Securities v. Chiacchio, 1987 WL 15589 (SDNY 1987).
In the CPL 440 motion that ultimately persuaded the Second Department to vacate Tankleff’s conviction, Barket alleged that Jerry Steuerman or his associate Joseph Creedon were the actual killers.
Jerry Steuerman was in debt for $500,000 to Seymour Tankleff and was at a poker game at Tankleff’s home on the night of the murders. Creedon told others of killing the couple, according to Tankleff’s attorneys.
Authorities said Tankleff, then 17, confessed to murdering his parents, but quickly recanted. He will claim before the Court of Claims that admissions he made were the result of unfair trickery by police and a grueling interrogation that occurred soon after he had discovered the bodies of his parents.
In an interview Wednesday, Barket said all he has to prove is that Tankleff is innocent. Barket said he would be able to do that even without getting answers from the Steuermans.
“I think we will be able to prove that Marty had nothing to do with it,” said Barket, who has represented Tankleff for 10 years. “Any objective person that looks at the facts in this case will quickly conclude that Marty was not responsible for the death of his parents.”
Susan Carman of Scaring & Carman in Garden City represented the Steuermans.
She said in an interview that the law is “very clear” that people cannot be compelled to implicate themselves in a crime, even in a civil proceeding.
Carman said the argument from Tankleff’s lawyers that the Steuermans did not risk prosecution in the Tankleff murders is “clearly untrue.”
Barket, of Barket, Marion, Epstein & Kearon in Garden City, hired Tankleff as a paralegal in his firm soon after Tankleff’s release from prison. Tankleff is on schedule to graduate in spring 2014 from Tuoro Law School on Long Island.
Barkett said the legal team would wait until they win a wrongful conviction and imprisonment verdict before determining the amount of compensation they will seek. “Obviously, it will be substantial,” he said.
A similar case is also heading toward trial in the Eastern District of New York. In Tankleff v. County of Suffolk, 2:09-cv-01207, Tankleff is seeking unspecified compensation from the county for “fabricating and coercing a false confession” following the killings of his parents.
U.S. Magistrate Judge William Wall (See Profile) is considering motions from Barket to compel testimony from the Steuermans for use in that trial.
The Eastern District case is being presided over by Judge Joanna Seybert (See Profile).
@|Joel Stashenko can be reached at firstname.lastname@example.org.