John Tomaino - Murder - No Crime

Tomaino, John ; murder; NRE: no crime, false/misleading forensic evidence, inadequate legal defense, prosecutor misconduct, police officer misconduct, forensic analyst misconduct, misconduct that is not withholding evidence,

[670:950]; 4th Dept. 3/13/98; reversed, due to prosecutorial misconduct; indictment dismissed

"[Tomaino] was convicted after jury trial...in connection with the death of his wife...on November 18, 1990. The death was initially thought to be a suicide and, after an exhuative investigation, the Grand Jury refused in September 1991 to indict [Tomaino] for murder. In December 1991 the Erie County [DA -- Keven M. Dillon ] was appointed special prosecutor in the case because [Tomaino's original] attorney was elected Niagara County [DA]. [This was a Niagara County case.] In December 1994 County Court granted the prosecutor's...application to resubmit the case, and in June 1995 a Special Grand Jury was impaneled to hear the case...The Grand Jury voted in July 1995 to indict [Tomaino]..."

"While the proof of guilt at trial was not overwhelming, it is legally sufficient to establish [Tomaino's] guilt beyond a reasonable doubt...The crime scene evidence strongly suggests that decedent's death resulted from murder, rather than suicide.

"Nevertheless, there were errors in the second [grand jury] presentation...which cumulatively impaired the integrity of the proceedings...[Tomaino's] argument, that the Grand Jurors were left with the impression that they were impaneled to right a perceived wrong, is compelling..."

"There are several instances of testimony elicited before the Special Grand Jury that were particularly egregious. Decedent's father, for example, testified that, on some unspecified date, decedent told him, 'I got a little booklet. . .[I]f they ever find, will put [Tomaino] away for life.' One of [Tomaino's] former co-workers was permitted to testify that she felt animosity toward [him] because after decedent's death [Tomaino] allegedly put her company out of business and cost 70 people their jobs. The co-worker also testified at length about [Tomaino's] jealous and possessive nature as reflected by [his] relationship with a live-in girlfriend one year after decedent's death. Another witness read to the Special Grand Jury, the answer filed by decedent in a divorce proceeding pending at the time of her death, including her allegations that [her husband John] falsely accused her of having affairs* and threatened her with violence. The priest at decedent's church expressed his belief that decedent had not cimmitted suicide, and decedent's father told the Special Grand Jury that there was no question in his mind that [Tomaino] murdered his daughter. Furthermore, the firearms examiner opined that 'personally' he would not commit suicide by shooting in the back of the head with a .45 caliber handgun, and a blood spatter expert testified that the location of the wound was not consistent with suicide. That same expert also improperly opined that it was more likely that decedent, who was a nurse, would commit suicide by taking a medication overdose than by shooting herself. The above testimony appears to have been deliberately elicited to influence the Special Grand Jury's decision whether this was a suicide or a murder committed by [Tomaino]."

[* See NRE synopsis below.]

[Having failed to obtain an indictment the first time, the prosecution then employed the 'kitchen-sink' approach. Even grand jury proceedings -- which are notorious for even indicting 'ham sandwiches' -- are not allowed this wide a latitude; i.e., one that a proverbial 'Mack truck' could drive through. But this prosecutor -- Kevin M. Dillon -- was clearly willing to do anything -- no matter how unlawful -- to win an indictment. (And, as is virtually always true in convictions which get reversed due to prosecutorial misconduct, the prosecutor is never actually named in this decision. We were only able to obtain his name by cross-referencing other cases.)]

NRE synopsis (by Maurice Possley):

"On November 18, 1990, 41-year-old John Tomaino and his 11-year-old daughter and 13-year-old son left their Wheatfield...home to go to church, leaving Tomaino's wife behind. Tomaino and his 36-year-old wife, Linda, were two weeks away from finalizing a contentious divorce -- Linda Tomaino had had multiple affairs* and months earlier, she had moved ito a basement bedroom.

[* Whereas the above 4th Dept. decision refers to Linda Tomaino's "allegations that [her husband John] falsely accused her of having affairs," here, the NRE synopsis flatly states that "Linda Tomaino had had multiple affairs." ]

"That evening, all three returned and Tomaino sent his daughter, Nina, to the basement to check on his wife because she had not come to teach Sunday school at the church that day. When Nina found the door locked and no one answered, Tomaino went down and broke in to find Linda lying on the bed in a pool of blood with a gunshot wound to the right rear of her head. A .45-caliber semi-automatic pistol was in her lap.

"Police and medical personnel arrived and the death was assessed as a suicide. One officer picked up the gun and ejected the clip and a live round from the chamber. An expended shell casing was found in the folds of the sheets, under the victim's leg.

"Two days later, however, during the autopsy, the medical examiner determined that Linda was shot from a distance of about 18 inches, making it virtually impossible for her to have shot herself.

"Tomaino told police that after he and the children got in the car on that Sunday, he realized that he had forgotten the church donation envelopes, so he went back inside and retrieved them before all three left.

"A grand jury was empanelled, but in 1991, declined to return an indictment.

"In April 1993, relatives of Linda Tomaino implored investigators to reopen the investigation. As a result, a second grand jury was empanelled to hear evidence in the case and in July 1995, John Tomaino was indicted for the murder of his wife. Authorities said they believed that when Tomaino went back into the house that Sunday to get donation envelopes, he went to the basement, shot his wife and arranged her body to make it appear to be a suicide.

"In September 1996, Tomaino went on trial before a jury in Niagara County..."

"The chief investigator for the Niagara County Sheriff's Department testified that he considered Tomaino a suspect from the beginning because he was deluged by telephone calls from friends and relatives of the victim saying she would never have committed suicide because she was a Catholic and a nurse. He said that he believed Tomaino had shot his wife and arranged the body to make it appear to be a suicide, but had not accounted for the shell casing. If the death was a suicide, the shell casing would not have been found under the victims body, the investigator testified.

"Witnesses testified for the prosecution that Tomaino was angry with his wife because of her affairs* and that he had followed his wife's friends, called his wife names and eavesdropped on her telephone calls."

[* It appears that even those testifying for the prosecution agreed that the wife was, in fact, having affairs, notwithstanding her divorce-proceeding statement that John's allegatiions of such affairs was 'false.']

"A forensis scienstist testified that the body had been moved between the time the victim was shot and the time she was discovered. The analyst said that Linda had been shot while lying on her stomach and she was found on her back, based on the amount of blood he found on the bed and on the wall.

"A forensic analyst called by the defense disagreed and said that the prosecution's experts had failed to adequately search for gunshot residue, which would have shown the gun was fired at close range -- not the 18 inches estimated by the medical examiner.

"On September 27, 1996, Tomaino was convicted by the jury...He was sentenced to 20 years to life in prison.

"In March 1998, the...Appellate Division vacated the conviction and dismissed the indictment."

"Tomaino was released from prison in April 1998. But prosecutors empaneled a third grand jury and Tomaino was re-indicted for murder in July 1998.

"He went on trial a second time in October 1999 with a new lawyer, Paul Cambria, defending him. During cross-examination of an emergency medical technician who responded to the scene immediately after the victim was found, Cambria forced the technician to admit that he knelt on the bed and the victim's body moved -- providing an explanation for why the shell casing was found under her body. In addition, Cambria bolstered the defense claim that the body and the bed had been moved by introducing photographs of the crime scene which showed the casters on the bed in different positions before the body was removed from the scene.

"The prosecution's blood expert admitted that he was wrong about his finding that the amount and location of blood was evidence that she had not committed suicide.

"The prosecution's case investigator also admitted on cross-examination that the scene had been contaminated by responding police and emergency personnel. The investigator said that the gun, telephone, and answering machine had been handled without gloves, the body had been moved, and that the mattress, box springs and bags of bloodstained bedding were not removed directly from the crime scene, but instead sat for days in the garage where cleaners hired by the family had stored them.

"Cambria called the blood expert for the defense who testified that in his opinion, the blood on the bedding was consistent with a suicide.

"Cambria also called Tomaino's daughter, who had not testified at the first trial, to the witness stand. Nina Tomaino said she accompanied her father back into the house when he retrieved the donation envelopes. She said he did not go into the basement and there was no sound of a gunshot.

"On November 19, 1999, the jury acquitted Tomaino."

[All emphases added unless otherwise noted.]