At the outset of day four (Thursday, March 21) of the retrial of Chanel Lewis for the murder of Karina Vetrano, Queens prosecutor Brad Leventhal walked over to the defense table with paperwork in his hand.
The actions of Queens DA occurred precisely as the state legislature and Governor Cuomo repealed New York’s Blindfold Law.
“We just got a new report from the medical examiner about Lewis’ hand injury,” Leventhal informed Lewis’ team. As they read through the material, Lewis’ lawyers were visibly concerned.
Leventhal then told Judge Michael Aloise that they had just received the new findings. Aloise advised the defense that since there was no motion to include the evidence, there was nothing for him to rule on at that point. But on day six (Tuesday, March 26), Aloise, a strident ally of the prosecution, determined that Leventhal could indeed use the material. And the next day, Dr. Margaret Prial of the Office of Chief Medical Examiner of New York City took the stand.
After Dr. Prial provided a graphic description of Vetrano’s brutal death by strangulation, jurors went to lunch. When they came back, they learned details of a report that Prial had not presented when she testified at the November mistrial. Based on blood cultures taken from the hand injury that brought Lewis to SUNY-Downstate Medical Center the day after Vetrano’s murder, Prial now argued that the bacteria in the cultures came from a mouth and anus, and from brackish water. In one of his two confessions, Lewis said that he had wiped off his bloody hand in a puddle at the murder scene.
Prial’s updated findings made only a minor splash. But they formed a dramatic part of Leventhal’s marathon closing statement on Monday, April 1. The already-high volume prosecutor shouted that the bacteria proved that after killing Vetrano, Lewis probed her cavities and that “he had his way with her!”
The verdict, of course, was guilty. But several veteran defense attorneys I have spoken with raised questions about whether the prosecution ever should have been allowed to bring in important new material in the middle of a trial, let alone a retrial.
“Mid-trial disclosure of significant scientific evidence is trial-by-ambush and makes a mockery of a defendant’s right to a fair trial,” says Mark Bederow, a former Manhattan prosecutor. “What is the defense supposed to do when sandbagged in this manner?”
“It’s a 240.20 violation,” argues Ben Ostrer, past president of the New York State Association of Criminal Defense Lawyers. That’s the statute in the New York Criminal Procedure Law dealing with what the prosecution should turn over to the defense during the pre-trial discovery phase, and it includes any “scientific test or experiment.”
The actions of Queens DA occurred precisely as the state legislature and Governor Cuomo repealed New York’s Blindfold Law, which had sanctioned “trial by ambush” by allowing the prosecution to withhold essential information from defense.
Medical examiners have been known to revise their determinations. “Changing testimony is something I’ve encountered from them on a number of occasions,” says Ostrer. In a 2016 murder trial in Orange County, N.Y., Prial acknowledged during Ostrer’s cross-examination that she had altered her original explanation regarding the direction of the fatal gunshots.
In a 2008 case in Sussex County, N.J., murder charges were dropped after Prial revised the cause of death. A medical examiner “changing her opinion from homicide to undetermined is extremely unusual,” the defense attorney noted at the time.
Chanel Lewis’ defense team questioned the precision of Prial’s new findings, arguing that they didn’t establish that the bacteria came from Vetrano or Lewis, and that the fecal residue may have come from a human or a dog. But at the eleventh hour, Prial’s testimony helped wrap a bow around the prosecution’s case.
Lewis is scheduled to be sentenced by Aloise next Wednesday. The questionable introduction of Prial’s new report is only one of many potential grounds for appeal in the case, a process that usually takes at least two years. Should the appellate division order a new trial for Lewis, it would be up to the next Queens DA to decide whether to proceed.
And whether it’s a sensational murder case or a low-level misdemeanor, the bigger question is the extent to which the next DA will play dirty pool.
Editor’s Note: Queens has become a flashpoint in the nationwide movement to radically reform local District Attorney’s offices. With the retirement of longtime law-and-order DA Richard Brown, the borough is seeing its first competitive DA’s race in decades. In the run-up to hotly contested June 25 Democratic primary, look for regular updates on the race from The Indy’s Theodore Hamm.
Photo: Dr. Margaret Prial, pathologist, exits Queens Supreme Court after testifying for the prosecution in the re-trial of Chanel Lewis.Credit: Curtis Means.