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New York - Judges Weigh Appeal in Bukharan Jewish Doctor Murder Trial

Published on: March 5, 2011 08:09 PM
By: AP
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In this undated photo released by the New York State Department of Correctional Services, inmate Mazoltuv Borukhova is shown. Borukhova, who was sentenced to life without parole after she was convicted of hiring a hit man to kill her husband three years ago amid a rancorous custody battle, is having her appeal handled by Harvard law professor and defense attorney Alan Dershowitz.  (AP Photo/New York State Department of Correctional Services)New York - The doctor was murdered in the middle of a bustling park on a sunny October day in front of his 4-year-old daughter, shot in the back by a man cloaked in black. His estranged wife, Dr. Mazoltuv Borukhova, was there, trying to help as he lay bleeding.

But Borukhova was later convicted of hiring her distant cousin to gun down her husband amid a rancorous custody battle and sentenced to life without parole. Her trial was marked by tearful family feuds, religious beliefs that kept the Bukharan Jews from holding trial on the Sabbath — and a judge’s impending vacation.

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A state appeals panel must now decide whether to throw out her conviction after her celebrity lawyer’s argument that the presiding judge pushed the trial to a conclusion so he could go on his tropical trip.

Alan Dershowitz, who argued the case in front of the panel recently, said Queens justice Robert Hanophy rushed the 2009 case, pressuring attorneys and the jury, so he could make his March 17 getaway.

“He should’ve canceled his vacation plans,” Dershowitz argued. “This is a murder case. ... You don’t make decisions based on sipping pina coladas.”

Dershowitz, who has also defended Leona Helmsley, O.J. Simpson and Patricia Hearst, stepped in to argue the case, in part because Borukhova’s trial attorney argued he wasn’t treated fairly by the judge.

Overturning a jury verdict, especially in a first-degree murder trial, is rare but not unheard of. But the complicated case deserves a new trial because it was rife with hearsay and presided over by a judge who acted wrongly, Dershowitz argued.

Donna Aldea, a prosecutor in the Queens district attorney’s office who helped try the case and argued the appeal, disagreed. She said that the verdict was rightly reached by a keen jury, and that the judge’s personal plans had nothing to do with it.

Hanophy retired a few months ago; telephone calls for this article made to home numbers listed in his name weren’t answered.

The story really begins before Daniel Malakov was shot to death on Oct. 28, 2007. It starts with a divorce and bitter custody battle.

The victim and his wife belonged to an insular community of Bukharan Jews from the former Soviet republic of Uzbekistan, and New York is home to the largest Bukharan population in the United States. They had much in common: Both had immigrated to the U.S. and were successful, she an internist, he an orthodontist.

Their marriage did not last long, and Borukhova did not make the divorce or custody proceedings easy — she fought her husband, claimed he was abusive, and was often difficult during supervised visits with their only child, Michelle, according to court documents. It culminated in a ruling by a family court judge giving Daniel custody of Michelle.

He referred to the “torturous history of the relationship” between the two and praised Daniel’s efforts to bond with his daughter, which he contrasted with Mazoltuv’s “interference or overbearing, or for lack of a better word, smothering of this child.”

The ruling was read aloud during the seven-week trial by Michelle’s legal advocate. Dershowitz argued on appeal that the reading biased the jury.

When Michelle was turned over to Malakov, Borukhova taped the event, which was also played for a jury. It showed a shrieking, inconsolable child being pried from her mother’s arms.

The custody battle was the last straw, prosecutors argued.

“He took my child. It’s already been decided. His days are numbered,” Borukhova said, according to prosecutors.

She hired her distant cousin, Mikhail Mallayev, to kill Daniel. They exchanged no fewer than 90 calls in the days before the murder. He was paid $20,000 for the job, a jury found.

The case was lengthy partly because the defendants observed the Sabbath, so court was not held on Fridays. Borukhova testified in her own defense at the last minute — a move that irritated the judge, Dershowitz argued. He punished the defense attorney by giving him little time to prepare a closing statement, while allowing prosecutors the weekend to work, he said.

The result was a sloppy mess by an attorney known for precision and professionalism, Dershowitz argued.

Queens prosecutor Donna Aldea disagreed, calling the argument “eloquent,” and said his statements that he didn’t get enough sleep and was making mistakes was a ploy to get sympathy from the jury.

During the trial, the courtroom was packed; the two families sat separated. A court officer led them in and out, single file. There were often loud outbursts and wails from both sides. Some murmured Scripture. Others wept.

During the appeal, they came together again: Sofia, Borukhova’s curly-haired sister, who was never charged but believed to have been involved in the plot, and Gavriel, Malakov’s lithe brother who has custody of Michelle, now 7. He wore a button with Daniel Malakov’s picture.

Daniel’s father, Khaika Malakov, was optimistic that his former daughter-in-law would remain behind bars. But he worried, still.

“Nothing can bring my son back,” he said. “It is always sadness for me.”

Both Borukhova, 36, and Mallayev, 53, are serving life in prison without parole. Borukhova was assigned to Bedford Hills Correctional Facility in Westchester County, the state’s only maximum-security prison for women.

Mallayev is serving his time at the Clinton Correctional Facility near the Canadian border. He has filed a notice that he would appeal his conviction but he has not filed papers. The outcome of his case will likely be affected by hers.

Michelle visits her mother in prison about once a month. The custody battle over her continues.



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Read Comments (12)  —  Post Yours »

1

 Mar 05, 2011 at 08:39 PM Anonymous Says:

Its true that Dershowitz defended both Patty Hearst and Helmsley. But why doesn't the newspaper say "the rest of the story". Both were convicted and served very long terms. Dershowitz, if you google and look at his record, is way overrated. He has lost so many high profile cases its almost not a joke anymore.

They took him now to review and be on board to defend Sholom Rubashkin, which I don't know if it was a great decision. He just isn't what he is played up to be.

2

 Mar 05, 2011 at 08:59 PM VeyIzMir Says:

Lock her away for good. Or perhaps release her and have street justice take care of the rest.

3

 Mar 05, 2011 at 09:13 PM Rachel W. Says:

No sympathy. Cold-blooded, premeditated murder. She gambled on getting caught. She lost. Deal with it, just as the deceased's loved ones are forced to deal with their loss.

4

 Mar 05, 2011 at 09:44 PM Sherree Says:

What is the halacha in this case? She hired someone to kill her husband. She is responsible for her husband's death and therefore deserves the punishment of prison. What other way can you look at this. In addition how often does family court give custody to the father? That is not the norm. Something obviously does not make sense about this woman.

5

 Mar 05, 2011 at 10:04 PM BeKind Says:

Reply to #1  
Anonymous Says:

Its true that Dershowitz defended both Patty Hearst and Helmsley. But why doesn't the newspaper say "the rest of the story". Both were convicted and served very long terms. Dershowitz, if you google and look at his record, is way overrated. He has lost so many high profile cases its almost not a joke anymore.

They took him now to review and be on board to defend Sholom Rubashkin, which I don't know if it was a great decision. He just isn't what he is played up to be.

No.1, you don't know what you're talking about. Appeal law deals with overturning verdicts in cases characterized with irrefutable evidence against defendants. The fact that Dershowitz has had some success in this area, including Claus Bulow's case, speaks of his excellence.

6

 Mar 05, 2011 at 11:45 PM Mentsch613 Says:

Reply to #4  
Sherree Says:

What is the halacha in this case? She hired someone to kill her husband. She is responsible for her husband's death and therefore deserves the punishment of prison. What other way can you look at this. In addition how often does family court give custody to the father? That is not the norm. Something obviously does not make sense about this woman.

In american law if subject A hires hitman B to kill someone, both A and B are guilty of murder (and often the courts will cut a deal with the hitman who ends up doing less time then subject A). Jewish law doesn't work like this. Culpability lies with the person doing the illegal act (Hitman B) not with subject A. The halachic rule is "ein shliach l'dvar avereh" (you can't make a messenger to do your aveirah). So halachically this woman is not guilty of murder, the actual killer is the only one guilty of murder here. That doesn't mean that in ancient times she would have walked away from this. Bais din had ways of dealing with cases.

7

 Mar 06, 2011 at 03:20 AM Rif Says:

Poor kid, her father was murdered in front of her eyes, and her mother is behind bars. I hope that whoever is looking after her, has the intelligence to take her to a top children's psychologist/trauma expert.

8

 Mar 06, 2011 at 08:40 AM Anonymous Says:

To #1- You were incorrect when you stated that Leona Helmsley served a long prison term. She served 30 months in prison.

9

 Mar 06, 2011 at 09:39 AM Anonymous Says:

Dershowitz is a total failure, as can be seen from the comments in No. 5 and 7. Where they say this great man had "some" success in his cases. He i9s touted in the press but if you look it up he really has not been successful.

10

 Mar 06, 2011 at 10:53 AM anonymous Says:

Reply to #4  
Sherree Says:

What is the halacha in this case? She hired someone to kill her husband. She is responsible for her husband's death and therefore deserves the punishment of prison. What other way can you look at this. In addition how often does family court give custody to the father? That is not the norm. Something obviously does not make sense about this woman.

Sherree you are out of touch and in this country applies U.S. civil code and nothing else beyond the figment of your immagination. Bukharians have a code of their own ingrained through their familias msesora

11

 Mar 06, 2011 at 11:42 AM BeKind Says:

Reply to #9  
Anonymous Says:

Dershowitz is a total failure, as can be seen from the comments in No. 5 and 7. Where they say this great man had "some" success in his cases. He i9s touted in the press but if you look it up he really has not been successful.

You still don't get it. To overturn a conviction on appeal is virtually impossible. The defendant has already lost his original case due to overwhelming evidence against him. He has been convicted of the crime and has received a sentence. The Supreme Court agrees to hear less than 100 appeal cases out of 10, 000 applications every year. The appeal lawyer has to make a great, convincing case just to be heard by the court. Then, he has the burden of proving that the original trial was flawed and erroneous and attempts to completely overturn the lower court's decision. This is a monumental task. However, Dershowitz's record is one of the best in the world, in this arena.

12

 Mar 06, 2011 at 02:36 PM heyward Says:

I wonder how mazoltuv borukhova is coughing up the money to pay Alan Dershovitz. His numbers are astronomical.

13

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