Wednesday, July 18, 2012

How to Get Away with Murder, Part One

I'm very interested to see what kind of search words will bring people to this post.  It will be a two-series post, culminating later this week.

Over the last year, an interesting and sad tale has played out in Buffalo, New York.  In 2002, two men killed another man they suspected of stealing a pound of marijuana from them.  In 2011, Alan Tomaski was convicted of manslaughter for his role in the stabbing death.  Sadly, it was a pretty typical case.

The unusual scenes played out after the conviction in a movie-like series of events.  It culminated with the same judge who sentenced Tomaski to 25 years in prison having to make the decision last week whether to release him and vacate the conviction.  No witnesses recanted their story.  DNA or fingerprints didn't exonerate him.  It was the good old fashioned statute of limitations that reared its head after this trial.  And apparently, everyone missed it.  The homicide chief, two veteran defense attorneys, and even the judge didn't pick it up.

The defendant, who had nothing but time after the conviction, found what he claimed was an error.  It began a series of events that could set a convicted murderer free.  And grandma tried to save the day, of course.

This is the opposite of a wrongful conviction.

The statute of limitations prohibits prosecution of certain crimes following a specific period of time.  It allows for closure for the police and the public.  In New York State, the time frame for felonies is five years.  There are certain events that can extend the period.  Examples are if the defendant leaves the state or the crime cannot be solved without DNA.  Murder second and murder first do not have a statute of limitations.  This is the reason cold cases can still be prosecuted twenty years later.  Manslaughters and below have a five year statute of limitations.

Check out a previous post on the difference between the two here.

In Tomaski's case, his co-defendant, Michael Hesse held the victim down while Tomaski stabbed him.  The investigation took years to develop, which was normal in many murder cases.  Part of the investigation included a search warrant at Tomaski's house, where he lived with his grandmother.  Police seized a journal belonging to his grandmother, hoping to find additional evidence of the crime in there.  It was collected years before the events this post describes.  Both Hesse and Tomaski were charged with murder in the second degree by an indictment in 2010.    Hesse agreed to testify against Tomaski in exchange for a reduced plea to manslaughter in the first degree.  By agreeing to plea, he waived his right to challenge the statute of limitations in his case.  It was eight years later, but since Tomaski was charged with murder, the statute of limitations didn't apply.

Tomaski decided not to plead guilty and go to trial.  Everything was fine, until the most overlooked event in every trial occurred - the charge conference.  This is when the lawyers and judge decide what crimes the jury will consider and what legal charges they should hear.  At Tomaski's charge conference, the prosecution asked the judge to have the jury consider both murder in the second degree and the lesser included charge of manslaughter in the first degree.  It was a tactical move.  The defense objected, but the judge allowed it.

The jury found Tomaski not guilty of murder in the second degree, but guilty of manslaughter in the first degree.  The judge sentenced him to 25 years in jail.

While in jail, Tomaski sent a letter to his private attorneys containing a reference to an appellate case like his.  Like Tomaski, that case involved a defendant charged with murder after the five year statute of limitations who was then convicted of manslaughter by a jury.  The appellate court vacated the conviction because the manslaughter charge could not be maintained after the five year statute of limitations.  Tomaski said that his case was similar.

The attorneys pulled their file out of the closed pile and went to work.  Even those attorneys had no idea the lengths they would have to go once they set the ball rolling down the hill.  Over the next year, a heavy does of humility would be served to everyone.


  1. Wow. Just, wow.

    So, in the case of Hesse, the five-year statute of limitations on manslaughter doesn't apply because he accepted a plea deal, but if he had been tried for murder and convicted on Man instead, he'd be a free man? As the kids say, "It sucks to be him."

    1. So now he is in state prison where everyone knows he testified against his co-defendant, who walks away a free man anyway.

      As you'll see, Tomaski survives by just a few days.

  2. Um, the statute of limitations s not designed just to provide closure to the police and the public. It is to protect the accused from being prosecuted when it is to late to mount a defense because exculpatory evidence erodes over time.

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  3. Anon - Absolutely correct. Thanks for the addition. It helps everyone move on with their life as well, so that a defendant does not have to keep looking over their shoulder. It also forces the police to act quickly and efficiently to investigate crimes.

  4. Tomaski moved to (West) Virginia for some time after ending Sammy's life. Why did t that change the usual statute of limitation?

    1. All the time Tomaski was outside New York State is excluded when calculating the five years. Say he was in West Virginia for 3 months, then the statute of limitations time is extended by 3 months and is now 5 years and 3 months.

      Criminal Procedure Law Section 30.10(4)
      4. In calculating the time limitation applicable to commencement of a
      criminal action, the following periods shall not be included:
      (a) Any period following the commission of the offense during which
      (i) the defendant was continuously outside this state or (ii) the
      whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence. However, in no event shall the period of limitation be extended by more than five years beyond the period otherwise applicable under subdivision two.