Rul­ing fa­vors mur­der con­vict

Court says lawyer should have sought ev­i­dence sup­pres­sion

Daily Freeman (Kingston, NY) - - FRONT PAGE - By Ariél Zangla azangla@free­manon­line.com ArielAtFree­man on Twit­ter On­line: The rul­ing is posted with this story at WWW.DAILYFREEMAN.COM.

Ev­i­dence from a 1997 homi­cide that was used to con­vict a Shawan­gunk man of mur­der­ing his es­tranged wife should have been the sub­ject of a sup­pres­sion hear­ing be­fore his trial, an ap­peals court has ruled.

The Ap­pel­late Divi­sion of state Supreme Court, Third De­part­ment, ruled Wed­nes­day that the fail­ure of the de­fense at­tor­ney to seek sup-

pres­sion of ev­i­dence be­fore the trial de­prived Vin­cent A. Zeh of his con­sti­tu­tional right to mean­ing­ful le­gal rep­re­sen­ta­tion. As such, the court ruled, a sup­pres­sion hear­ing must now be held.

At­tor­ney Nor­man Eff­man, who rep­re­sented Zeh on ap­peal, said the de­ci­sion does not au­to­mat­i­cally over­turn the mur­der con­vic­tion. He said a con­fer­ence is sched­uled for Dec. 15 in Ul­ster County Court with act­ing Judge An­thony McGinty and Dutchess County As­sis­tant Dis­trict At­tor­ney Robert Knapp, who is the spe­cial prose­cu­tor in the case. At that time, the par­ties will dis­cuss the time­line for the sup­pres­sion hear­ing, as well as whether the is­sue could be re­solved with­out that hear­ing or hav­ing to hold an­other trial, Eff­man said.

Eff­man said if the sup­pres­sion hear­ing does go for­ward, he would seek to keep the pros­e­cu­tion from be­ing able to use any ev­i­dence gath­ered dur­ing the 26 hours Zeh was in­ter­ro­gated by po­lice or from six sep­a­rate search war­rants that were is­sued. The search war­rants, in part, re­sulted in po­lice seiz­ing a sneaker, sweat­shirt and un­der­wear with the vic­tim’s blood on them, he said. Eff­man said the items be­longed to Zeh.

If that ev­i­dence is suc­cess­fully sup­pressed, it leaves pros­e­cu­tors with lit­tle ev­i­dence to present at a new trial, Eff­man said. He said it then would be up to pros­e­cu­tors to de­ter­mine whether they want to pro­ceed to trial.

Eff­man said the ap­pel­late

court’s de­ci­sion does not dis­miss the orig­i­nal in­dict­ment against Zeh, rather “it’s just like a step back in time.” He said the rul­ing sets the clock back to the time af­ter the in­dict­ment but be­fore the trial.

Zeh, now 76, was con­victed of mur­der in 1998 for fa­tally stab­bing his wife, Kimberly, 22 times on April 11, 1997, in the Ul­ster County town of Shawan­gunk. He was sen­tenced to 20 years to life in state prison and re­mains in­car­cer­ated at the medium-se­cu­rity Wy­oming Cor­rec­tional Fa­cil­ity in At­tica.

Af­ter Kimberly Zeh was killed, Vin­cent Zeh was ques­tioned by po­lice at his home and for 26 hours at a state po­lice bar­racks with­out a lawyer present and in “a room that may have been locked at times,” ac­cord­ing to an ear­lier ap­pel­late rul­ing.

Eff­man said the case had been “up and down” through the courts, lead­ing to Wed­nes­day’s de­ci­sion. He said the most re­cent ap­peal was on the ba­sis that Zeh had re­ceived in­ef­fec­tive as­sis­tance of le­gal coun­sel dur­ing the trial.

In its Wed­nes­day de­ci­sion, the ap­peals court said Zeh’s trial at­tor­ney, Michael Suss­man, tes­ti­fied about his strat­egy for not seek­ing to sup­press the ev­i­dence. Suss­man tes­ti­fied he wanted to show Zeh was co­op­er­a­tive with po­lice of­fi­cers dur­ing the in­ter­ro­ga­tion and that Zeh wanted to tes­tify at the trial, ac­cord­ing to the de­ci­sion. The ap­peals court said, though, that Suss­man was un­der no obli­ga­tion to call Zeh as a wit­ness in a sup­pres­sion hear­ing and that the at­tor­ney ad­mit­ted the in­ter­ro­ga­tion was “un­usual.”

Ad­di­tion­ally, the court said Zeh had a “col­orable ba­sis” to ar­gue his oral state­ments to po­lice were ob­tained in vi­o­la­tion of his right to coun­sel be­cause he was ques­tioned about the homi­cide and an ear­lier in­ci­dent with­out his at­tor­ney present, even af­ter ask­ing for a lawyer.

In Fe­bru­ary 1997, prior to Kimberly Zeh’s death, Vin­cent Zeh was ar­rested and ques­tioned in con­nec­tion with an in­ci­dent in which he wielded a gun and feigned a suicide at­tempt in an ef­fort to gain her at­ten­tion, the court de­ci­sion said. The de­ci­sion said Zeh had an at­tor­ney at that time and the same po­lice of­fi­cers in­volved in the Fe­bru­ary 1997 ques­tion­ing were also in­volved in the April 1997 in­ter­ro­ga­tion. Ad­di­tion­ally, Suss­man ac­knowl­edged that pros­e­cu­tors used the Fe­bru­ary 1997 in­ci­dent to es­tab­lish Zeh’s mo­tive for killing his wife, the de­ci­sion said.

Suss­man, whose law prac­tice is in Orange County, said he had not seen the de­ci­sion as of early Wed­nes­day af­ter­noon. He said, though, in re­gards to the state­ments Zeh made to po­lice dur­ing the in­ter­ro­ga­tion that he did not feel there was any­thing in­crim­i­nat­ing about them.

“I didn’t feel sup­pres­sion was war­ranted in that sit­u­a­tion,” Suss­man said, adding that Zeh agreed at the time.

Suss­man said there was a strat­egy in­volved and that he felt pros­e­cu­tors could not use any­thing Zeh said be­cause it was not in­crim­i­nat­ing.

Suss­man said he does not vividly re­mem­ber the is­sue with the search war­rants and so could not com­ment fur­ther.

Vin­cent Zeh in 2015

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