D.A. Misconduct Nixes Conviction

Appellate court faults prosecutor and judge in child abuse trial of gay man

Finding that an upstate prosecutor’s “egregious misconduct” deprived a gay man of a fair trial on child abuse charges, a unanimous four-judge panel of the New York Appellate Division in Albany reversed his conviction and 50-year prison sentence and ordered that a new trial take place. Justice Karen K. Peters’ opinion also faulted Montgomery County Judge Felix J. Catena’s for flawed handling of the defendant’s attorney’s objections to the admission of his client’s written confession.

Thomas De Vito ran a daycare center in his home until May 2002, when a boy told authorities that he had been abused years earlier and identified another boy who he also claimed abuse. During police questioning, De Vito signed a waiver of his right to have an attorney present and in a written confession admitted to “sexual contact” with the two children during 1995, explaining that there was a “time in my life when there was turmoil with my marriage and I was unhappy with my life.”

De Vito was charged with two counts of sexual conduct against a child in the first degree and endangering the welfare of a child, but the indictment alleged only incidents occurring in 1997 and 1998, because the statute of limitations on the 1995 incidents had run out.

De Vito’s lawyer sought to have his confession thrown out because it admitted conduct that could not still be prosecuted, also arguing that it was not truly voluntary. The prosecutor, opposing the motion, stated that De Vito had deliberately limited his admissions to conduct barred by the statute of limitations, and said his statement should be admitted as a confession to the crimes that were charged.

Catena first concluded that the confession was voluntary, and then decided that the date discrepancy was “inconsequential” and ordered that the statement be admitted. He instructed the jury that it should decide whether to treat this as a confession of the crimes charged or as a confession of uncharged prior acts, in which case it could only be used to weigh De Vito’s defense that his home circumstances in 1997 and 1998 would have made it impossible for him to have committed the acts with which he was charged. Catena instructed the jury that if they found that the confession related only to uncharged prior crimes, they could not use it in the manner they would most naturally assume—as evidence of a

“propensity” to commit the conduct charged.

Suitably confused, the jury was then presented with a strikingly homophobic prosecution by District Attorney James Conboy. During jury selection process, De Vito’s attorney attempted to screen potential members for anti-gay bias. Conboy apparently took this as license to make frequent derogatory comments about De Vito’s sexuality. While cross-examining De Vito, Conboy “probed defendant’s sexual conduct with his past and present homosexual partners” at length, and dwelt on graphics from De Vito’s computer that had led to his wife’s discovery that he was gay.

During closing arguments, Conboy tried to use the defendant’s homosexuality as motive for the alleged crimes, saying they stemmed from “De Vito’s libido.” Responding to defense claims of a “witch hunt,” Conboy told the jury “He’s not a witch. He’s Joe’s bitch,” a reference to De Vito’s domestic partner.

At the urging of a Metropolitan Community Church minister who knew De Vito, Michael Mann, an appellate counsel, read the transcript, became convinced the trial was unfair, and agreed to file an appeal.

The Appellate Division agreed with Mann’s arguments. First, it ruled that it was improper to present the confession to a jury under confusing circumstances and leave it to them to decide how to use it in assessing guilt or innocence. Justice Peters stated that a new hearing had to be

held solely on the issue of the confession.

More significantly, the court found that Conboy’s conduct of the trial violated De Vito’s fundamental due process rights to a fair trial.

“The prosecutor’s remarks were highly prejudicial,” Peters wrote, “did little to impeach defendant’s testimony or credibility, were irrelevant to the crimes charged, appealed to the fears and prejudices of the jury, and were designed to sidetrack the issue away from defendant’s guilt or innocence. They had no place in this trial.”

Peters also found that Catena had improperly allowed Conboy to question De Vito about sexual activities unrelated to the charged crimes. “Moreover,” she continued, “the prosecutor should not have been permitted to repeatedly imply—without any good faith basis—that defendant had sexual contact with every man that entered into the daycare center.”

The appeals court reversed the verdict and sent the case sent back to the county court for a new trial. Since Catena is the only judge in Montgomery County, it would not be surprising if a change of venue were requested.

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