Open and Shut

Killer may go free because his lawyer let him confess

THE LAST KISS 'GOODNIGHT' blared the tabloid headlines in New York City last spring. The story told of a Queens high school honor student, three weeks away from graduation, who dropped off his date after a prom and then, while walking home, was shot to death on a quiet street. A week later, one of his three young assailants -- Angel Claudio, a 16-year-old tenth-grade dropout -- found a lawyer in the Yellow Pages and surrendered to police, admitting that he had accidentally shot the victim with a .38-cal. pistol when the student resisted an attempt to take his ring. Within a few days, one of the accomplices retained the same lawyer and added his own confession. It appeared to be a rare open-and-shut case, one of the few New York City homicides that result in a conviction and a long jail sentence.

But last week the case was open again, wide open. It was learned that during preliminary proceedings for the trial, State Supreme Court Justice Kenneth Browne ruled that prosecutors could not use the confessions as evidence. Browne's reasoning: the defendants' lawyer, Mark Heller, had shown such poor judgment in allowing them to admit to the crimes that they had in effect been denied the right to counsel. Consequently, their statements to police were unfairly secured and could not be used against them. Heller's representation of his clients, wrote Browne in a 47-page opinion, "reflects a serious incompetence that falls measurably below the performance expected of fallible lawyers." Browne approvingly quoted a 1949 opinion by U.S. Supreme Court Justice Robert Jackson that stated, "Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances."

Browne's ruling came on a motion filed last summer by two defense attorneys who took over the case after the defendants had dismissed Heller. The two faulted their predecessor for not seeking a quid pro quo when the youngsters confessed, such as a reduced charge or a promise of leniency. Said one of the lawyers, Al Gaudelli: "There was no deal. How is that in his clients' best interests?"

Queens District Attorney John Santucci, who is prosecuting the case, was outraged. Pointing out that his assistants had read each suspect his rights with Heller present, Santucci asked, "What else am I supposed to do to protect him? Give the man's lawyer a bar exam?" Criminal law experts tended to agree that Browne's ruling went too far. Said Columbia Law Professor Richard Uviller: "It makes the court guarantee that the advice a lawyer gives his client is sound. There's no precedent for that."

With the trial set to begin this week, Santucci faces a tough decision. He can go ahead without the confessions and hope that his other evidence is strong enough to satisfy the jury. Or he can seek a postponement and ask an appeals court to overturn Browne's ruling. An appeal would carry considerable risk, however: under state law, the prosecutor may not appeal unless he declares that the case is hopeless without the evidence at issue. If the appeal fails, the prosecutor is held to his declaration that he cannot proceed without that evidence. The result is a dismissal of all charges. To some experts the appeal would be worth trying. Says Columbia Law Professor Harold Edgar: "I don't think Browne's decision would stand up." Watching intently from Rikers Island prison, where they are being held without bail, are the two defendants. If Santucci guesses wrong, they may soon be free.

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