Queens, NY - Jewish Wife Who Killed Husband Appeals Conviction
Queens, NY - In a last-minute decision, the judge ordered defense lawyers to cram overnight and deliver closing arguments the next morning, but gave prosecutors the weekend to write theirs.
And after the defendant - accused of ordering her husband’s murder in 2007 and facing life in prison - decided to testify, the judge forbade her to explain why she did certain peculiar things, like buy a spy camera and secretly record conversations.
He also let prosecutors introduce another judge’s scathing order from a child-custody case that called the defendant a “smothering” mother, although that judge and the social workers he cited were not witnesses who could be cross-examined. No one disputes that those twists and turns took place during the six-week trial of Mazoltuv Borukhova, the Queens doctor convicted last year of hiring a relative to fatally shoot her husband outside a playground, in front of their 4-year-old daughter, during a bitter custody battle.
These are just a few of the points her lawyers have raised to call Dr. Borukhova’s trial “fundamentally unfair” and argue that a “fiercely partisan” judge, State Supreme Court Justice Robert J. Hanophy, fostered a “toxic atmosphere” in the Queens courtroom. The defense includes Alan M. Dershowitz, the Harvard law professor who has represented O. J. Simpson and Patricia Hearst. He is “of counsel” on Dr. Borukhova’s fiery 126-page appeal, filed by the law firm of Nathan Z. Dershowitz, his brother.
Once prosecutors submit their response, due on May 21, Alan Dershowitz plans to deploy his flashy oratory in arguments in the Appellate Division of State Supreme Court, in Brooklyn. That all but ensures that the case of Dr. Borukhova and her cousin, Mikhail Mallayev - which embroiled the close-knit Bukharian Jewish community where she and her husband, Daniel Malakov, a dentist, had been a proud example of immigrant success - will go another round in the spotlight.
Even in Queens, a borough that defense lawyers say is relatively sympathetic to prosecutors, the trial “stands out” as unfair, Nathan Dershowitz said recently. The brief, filed Jan. 12, argues that the trial violated Dr. Borukhova’s constitutional rights to confront her accusers, employ effective counsel, and “even to freely practice her religion.”
A spokesman for the Queens district attorney, Richard A. Brown, who has called the trial fair and professional, said on Friday that prosecutors would respond to the brief’s contentions in court. Justice Hanophy’s assistant said the judge was not allowed to comment.
At the trial, prosecutors stressed that an eyewitness identified Mr. Mallayev as the gunman; that his fingerprints were on what the police called a homemade silencer found at the scene; that while he initially denied being there, cellphone records placed him nearby shortly before the killing; and that he and Dr. Borukhova telephoned each other nearly 90 times between Oct. 3, when she learned she was losing custody of her daughter to her husband, and Oct. 28, when he was shot.
Religion surfaced frequently, and awkwardly, in the trial; the defendants are Orthodox Jews. But while Alan Dershowitz often takes up arms against anti-Semitism, his brother said he was inspired to join the case less over the handling of religion - “I wouldn’t call it anti-Semitic,” just “inappropriate,” he added - than what he called a pattern of pro-prosecution bias by the judge.
The prosecutor, Brad Leventhal, suggested that Dr. Borukhova was a hypocrite because she broke the Sabbath - religiously permissible only in emergencies - the night before the murder to buy a camera that could be hidden in a button. He contended she wanted to tape the killing in order to blackmail her co-conspirator.
When her lawyer, Stephen P. Scaring, asked her why it was an emergency (she had told him she wanted to videotape the moment of handing off her daughter to her husband, for use in custody proceedings), Justice Hanophy refused to let her answer. When Mr. Scaring asked why the judge forbade “why” questions, including why the doctor taped conversations with Mr. Mallayev, the judge said, “I don’t like them. They’re not appropriate.”
The appeal said that “the court cited no law for this idiosyncratic position.”
The dispute over closing arguments began with the Jewish Sabbath. The judge announced on a Thursday that the defense would unexpectedly have to sum up on Friday. But the prosecution could wait until Monday - because court ended early Friday to allow the defendants to observe the Sabbath. Dr. Borukhova reluctantly agreed to violate the Sabbath by staying late on Friday so both sides could sum up on the same day. Yet the next morning the judge announced the prosecution would wait until Monday anyway.
The appeal also contends that prosecutors did not prove beyond a reasonable doubt that Dr. Borukhova paid for the murder, a key component in her first-degree murder conviction. And it pointed out that the judge allowed jurors to hear a tape that Dr. Borukhova secretly recorded, even though it was largely inaudible and translated by an interpreter who admitted he was not fluent in a language being spoken.
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