The saga of Marty Tankleff is fascinating from a neutral perspective, as it offers insight into the anatomy of a murder case when you have 17 years to revisit every detail.  But it also offers a view of certain failings of our trial process to get to the truth.  While truth is a commodity that rarely concerns lawyers (except when it’s on their side), it’s the sort of thing that the public expects from its legal system.  At least in theory.

The Tankleff defense team now faces some very high hurdles should there be a retrial.  It’s easy to talk in the media about how some other guy committed the murder of Marty’s parents, and how his cohorts have privately told people that they were involved.  The media doesn’t have to worry about hearsay, relevancy or the 5th Amendment privilege of some guys commonly referred to in the newspapers with the derogatory characterization of “ex-cons.” 

Consider what you would do if you were in charge of the retrial.  How do you plan to compel the testimony of witnesses who you claim were involved in the murder?  While they may have talked out of court, they aren’t getting up on the stand to tell the world about it.  We know this because they have already denied it under oath.  But they are ex-cons?  So what?  Even ex-cons can assert their privilege against self-incrimination.  And the District Attorney doesn’t have to give them immunity just because it’s good for you.  After all, they could be murderers, if the defense is to be believed.

Even if the DA conferred immunity on these skels, there’s no guarantee that they are going to admit that they were involved in the murders. As of now, they aren’t under indictment and they have nothing to fear.  If they just deny involvement, game over.  Team Tankleff can’t prove they are lying.  They can try to bring in collateral evidence to show that they have said they were involved, but it’s questionable whether it would be permitted and even if it is, it’s certainly of questionable weight. 

We still have the confession problem as well.  While today, the idea of a false confession is far better understood than it could possibly have been 17 years ago, it remains an iffy proposition.  Most people would be of the view that they would not confess to a murder they didn’t commit, particularly if it involved their parents.  But Det. James McCready lied to Marty and manipulated him when he was under unbearable duress?  True, but lying to witnesses to get them to confess is a time-honored tradition in police work, like eating donuts.  As courts like to instruct jurors, it is an “effective law enforcement tool.”  So are brass knuckles.

While there are certainly a wealth of details and issues that are floating around in the sorry case of Marty Tankleff that could undermine reasonable doubt in the case against him, it is by no means a foregone conclusion that the Tankleff defense team will be able to use them at trial, and even if they can, that their use will be effective to challenge the prosecution’s case.

Ironically, it’s just been disclosed in the  New York Times that the State Investigation Commission has been secretly investigating the Suffolk County District Attorney’s handling of this case.  This has been going on for a year, according to the report, though there is no comment on what they have been doing for the year and why it would take them so long to investigate.

This could be the best thing, or the worst thing, that could happen to the Tankleff defense.  If the SIC goes public with a report of prosecutorial misconduct, police perjury, suppression of witnesses or evidence, then there will be unbearable pressure to drop the prosecution.

On the other hand, the SIC could also conclude that the prosecution did nothing wrong.  Remember, the use of lies and deception to get targets to confess is a time-honored tradition.  Would the SIC want to announce that this “effective law enforcement tool” is improper?  So, there are conflicting theories of who killed Seymour and Arlene Tankleff.  That doesn’t mean that the Suffolk County DA chose the wrong theory and prosecuted the wrong person.

Trials are supposed to be searches for the truth.  This case, should it be retried, will present some interesting issues about truth.  Perhaps it will be an opportunity for a public airing on the propriety of police duplicity and underhanded tactics by a detective who was conflicted all over the place, lied under oath and ignored evidence pointing to others, who later paid him for his services.  We’ll see how much truth our legal system will allow Marty Tankleff.  The defense has it’s work cut out for them