Prosecutor Torncello

Just a couple of years after Jeffrey Nickel's trial, Peter Torncello prosecuted another child sexual abuse case; this time, against a pediatric neurologist by the name of Philip Riback. Torncello's tactics there -- as well as other, subsequent events to be discussed below -- tell us a lot about his character.

People v. Riback (870 N.Y.S.2d 517) is the decision handed down in 2008, following Riback's initial ('direct') appeal to the Third Department. This is the same Department that refused to overturn any of Nickel's convictions (though it did reduce his sentence). Five judges are assigned to hear such appeals. Two of them – Spain and Carpinello – were on both Nickel's and Riback's panels. Both of these judges – along with Justices Mercure and Stein – voted to uphold all of Riback's convictions. However, there was one dissenter; Justice Malone, Jr. The following are excerpts from this appellate decision:

[521] "The defense argued that, only after suggestive and coercive questioning by police and parents, were the boys persuaded to interpret [Riback's] innocent and benign behavior as having a sexual component, leading to false or mistaken accusations. The defense repeatedly emphasized the boys' lengthy delays in disclosing defendant's conduct (ranging from 8 to 37 months) and the fact that most of the boys' disclosures of sexual contact did not occur until after defendant's initial arrest, in support of its theory that all of the boys' sexual contact allegations were the product of the publicity and suggestive questioning.

"Initially, defendant challenges eight of his felony convictions as against the weight of credible evidence. We are not at all persuaded, finding that, given the overwhelming* credible testimony, a different verdict would indeed have been unreasonable and, in any event, were we to weigh the probative force of the conflicting testimony and rational inferences to be drawn, we would find that the jury was more than justified in finding defendant guilty beyond a reasonable doubt."

[* See <u> 'Overwhelming' </u> section of this site, which discusses numerous instances in which courts have characterized the evidence against a defendant as 'overwhelming,' only for it to be subsequently established that the defendant was actually innocent.]

[522] "To the extent that defendant cites minor inconsistencies in any of the victims' testimony concerning tangential matters -- such as defendant's apparel, whether there was a sink in the room or a lock on the door, and the exact dates or frequency of visits -- we find that there was nothing incredible or unbelievable in their [523] testimony, which the jury rationally credited after observing their demeanor, and that any uncertainties in their testimony did not concern whether the described sexual contact occurred as charged...Next, defendant contends that certain remarks by the prosecutor during summation deprived him of a fair trial... At the outset, we note that the prosecutor's conduct and tenor during the trial itself, prior to summation, can be fairly characterized as even-handed, appropriate and not calculated to inflame the jury. Viewing the summation as a whole, however, we agree that certain remarks exceeded the bounds of fair advocacy, but we find that they were not so egregious or prejudicial as to deprive defendant of a fair trial and did not operate to detract the jury from the issue of his guilt of the crimes charged...

[Re: allowing Dr. Richard Hamill, a psychologist specializing in sexual abuse, to testify as an expert as to what a 'pedophile' is:]
"[W]e find that County Court providently exercised its discretion in permitting this limited generic testimony, based upon its finding that these terms, behaviors, and preferences are outside the ken of a typical juror...

"First, defendant did not object to the prosecutor's remarks in summation that defendant fit the definition of a pedophile, to which the People's expert had testified. However...we will address it...Hamill had never evaluated the defendant or any of these victims, and never expressed any opinion about whether defendant's behavior fit within or was consistent with those definitions, or whether the charged crimes had occurred, appropriately leaving those issues for the jury to resolve.

[524] "Defense counsel argued in his summation that the boys' disclosures had been coerced and suggested by parents and police, in an atmosphere of 'hysteria' following defendant's arrest, in which the public was alarmed that defendant 'was a pedophile doctor and parents whose kids had been treated by him should now come forward and call the Colonie Police Department.' In response, the prosecutor in summation stated, 'You heard the definition of a pedophile, didn't you? He can't stop.' Then, later, 'You heard the definition of a pedophile. [Defendant is] having sex with boys in his office. [He is] not concentrating on medicine. [He is] concerned with gratifying his own sexual desire.'

"We recognize that summation remarks describing defendant as 'a pedophile' are generally unwarranted and may operate to detract and inflame the jury in a manner which undermines a trial...We find that the prosecutor's remarks here were fair comment on the properly admitted expert testimony and on the defense summation...We do not find that these limited remarks or any other aspects of the summation sidetracked the jury from the issue of defendant's guilt or innocence, were irrelevant to the crimes charged...or rose to the level of depriving defendant of a fair trial...Further, any error was harmless in view of the overwhelming and powerful evidence of defendant's guilt...

"To the extent that the prosecutor's summation suggested that there were other children who would have implicated defendant, but their parents did not want to put them through a trial (and that the parents of the testifying children were [525] brave), defendant's objections were immediately and repeatedly sustained and the jury instructed to disregard their comments. While these references were of course totally improper and should have been scrupulously avoided, as the people now concede...the jury was aware of the substantial response to defendant's arrest...While inappropriate, we do not find that these brief remarks were so prejudicial in the context of this trial as to deprive defendant of a fair trial...The prosecutor also argued in summation that '[a]ll you have to do is believe one [child] and it's over, because this huge grand conspiracy of police and children and parents and the District Attorney and everyone else, it's a house of cards. . .If you believe one child, you can believe them all.'...While the prosecutor's argument could have been more clearly articulated to avoid being misleading, we do not find that this remark in any manner had the effect of reducing the People's burden of proof, as [526] defendant argues for the first time [on] appeal. Rather, we find that it was a fair argument by the People, as the court ruled in denying defendant's mistrial motion, that the jury could reject the defense's conspiracy theory – I.e., that the whole group of boys was coerced into implicating defendant as the result of suggestive police interviewing techniques – if they credited any of the testifying boy's accounts relating to his disclosure of defendant's conduct. Likewise, defendant's objection to the prosecutor's denigration of the defense for calling four witnesses to testify that defendant did not molest their family members who he has treated was sustained, and the jury was instructed to disregard these comments.

"We have examined the balance of defendant's claims regarding the summation and find many were not preserved and most were fair comment on the evidence or the defense theory and summation...While the summation was not error-free, the unwarranted and improper comments did not taint the verdict and, when considered individually or even collectively, were not so egregious as to deprive defendant of a fair trial, especially given the strength of the People's case and the overwhelming* evidence of defendant's culpability."

[* This is the third time this court characterized the evidence against Riback as 'overwhelming.']

[527] Without in any respect minimizing defendant's egregious breach of the trust placed in him by his young patients and their families...Defendant, who was 47 years old at the time of sentencing, had no criminal record of any kind...Accordingly, [we reduce his] total aggregate prison sentence [from 48] to 28 years."

[This is similar to Nickel's] case, where the Third Department reduced his aggregate sentence from 54 to 32 years.]

MALONE, JR., J. (dissenting)

"I dissent. I believe that it was error for County Court to allow expert testimony [528] at the trial by psychologist Richard Hamill, who was called for the stated purpose of explaining why abused children will often initially deny the fact that they were abused and then, over objection, to describe the terms 'sexual fetish' and 'pedophilia' to the jury. This mistake by County Court then rose to the level of reversible error when the prosecutor, in the course of his passionate summation, twice referred to defendant as a pedophile [Footnote 1: To label a defendant a 'pedophile' in the context of this trial is, I am convinced, nothing short of calling him a modern-day devil.] and said that this was why defendant was having sex with young boys in his office and could not stop. I disagree with County Court's ruling that allowed these terms to even be explained to the jury and, when such extremely prejudicial testimony was allowed to become the opinion and central theme of the prosecutor in his summation, the prosecutor transformed Hamill's improper explanations into his own improper expert opinion.

"I agree with the majority that there were multiple other summation misstatements of facts and law by the prosecutor. In my view, however, when combined with the opinion by the prosecutor that defendant's acts were those of a pedophile, these misstatements rose to such a level that defendant was deprived of the fair trial to which he is entitled...Among the most bothersome are those statements made by the prosecutor at the end of his summation that there were probably many more children who defendant had abused and the statement, made twice, that if the jury believed the testimony of one child, then it could believe all the children who testified."

 <u> S40 </u> [923] "The lone dissenter was justice Malone who -- having been an Assistant District Attorney in Albany County for eight years and then an Assistant United States Attorney in the Northern District of New York for another seventeen years -- served as a prosecutor for longer than any other currently sitting justice of the Third Department.

"Just under a year later, the Court of Appeals sided with Justice Malone -- unanimously."

Now, whereas appeals to the 'department' level are 'by right,' appeals may be made to the Court of Appeals only if 'leave to appeal' is granted by the latter. Because it turns down the vast majority of leave applications, and, on the other hand, typically takes cases in which there was a (non-sentence-related) dissent, it is almost certainly true that, but for Justice Malone's dissent, the New York State Court of Appeals would never have even heard Riback's case, much less, reversed his convictions. [In the Nickel case, there was no such dissent. (Moreover, Justice Malone was not on Nickel's panel; and the Court of Appeals did not hear Nickel's case.]

So, now we go to People v. Riback, 13 N.Y.2d 416 (Court of Appeals, 2009):

"The defense theory...was that...the most damaging accusations made against him were the distorted or mistaken product of suggestive and coercive questioning by parents and police.

"The dissenting Justice granted leave to appeal to us.

[421] "We conclude...that the trial judge should not have allowed Dr. Hamill to define 'pedophilia' and the 'central characteristics' of a 'pedophile.' Unfortunately, it is difficult to imagine that this information was unknown to the jurors. Whether this error alone would cause us to reverse the judgment in this case is beside the point, though, because this testimony became a springboard for the prosecutor to venture well beyond the evidence and the bounds of fair comment during his summation.

"[prosecutor]: '[The police investigator] told you that 49 interviews had taken place, and she said some of the – they're only charges because she talked to the parents, and the parents didn't want to put their children through this. You got 15 sets of parents out here right now who are probably thinking the same thing after they heard what's going on this week.'

[defense counsel]: 'Objection, Your Honor.'

[the Court]: 'Sustained, stricken. Disregard that, ladies and gentlemen.'

[prosecutor]: 'Do you blame those parents?'

[defense counsel]: 'Objection, objection.'

[prosecutor]: 'Who doesn't want [not] to put their children through this?'

[defense counsel]: 'Objection, objection.' [422]

[the Court]: 'Sustained, sustained. Move on.'

"This passage suggested to the jurors that defendant had sexually abused dozens of victims, and that these crimes had not been charged only because many parents were understandably unwilling to subject their children to the rigors of a trial. No evidence supported this allegation, which was irrelevant to the charges even if true.

"Further, one of the 14 boys recalled nothing except that defendant tickled him during examinations that took place roughly three years before the trial. When offered a copy of his grand jury testimony, the witness said the minutes would not refresh his recollection; that he couldn't 'really remember anything about' any of his visits to defendant's office; and that '[i]t's just foggy.' Although the charges related to this boy were subsequently dismissed, the prosecutor placed an incriminating gloss on his appearance on the witness stand: 'I picked up a copy of [the boy's] Grand Jury testimony, which says what he told the police happened to him with [defendant], and I said, I'll give you a copy of this piece of paper with the words on it from the Grand Jury; will that help you remember what's going on[?] [The boy] says, no. [The boy] didn't want to remember, doesn't want to remember. He wants it to go away. . .

'Does that give you an idea of how difficult it is to walk into a courtroom when you're fourteen or twelve or ten, place your hand on the Bible. . .in front of fifteen strangers, and talk about what happened to you at the hands of that man? That is a little hint about what it's like.'

"Thus, the prosecutor invited the jury to conclude that the boy's grand jury testimony recounted sexual abuse and that his lapse of memory showed how hard it was for children to acknowledge or disclose what defendant had done to them.

"The prosecutor also advised the jury that the case was not 'complex' even though there were 'a lot of kids' because...'If you believe one child, you can believe all.'

"These comments potentially diverted the jurors from their obligation to consider defendant's guilt or innocence as to each [423] crime charged with respect to each child. And although it was the prosecutor who persuaded County Court to sharply limit the number of parents of former patients testifying on defendant's behalf, he remarked to the jury 'Congratulations. They found four patients he didn't molest.' Finally, the prosecutor observed, '[g]et enough lawyers involved and jury consultants to make sure they pick the perfect jury.' This intimated that defendant was exploiting his wealth to engineer a sympathetic jury, and that the jurors should not let him get away with it.

"We recognize that County Court repeatedly sustained defense counsel's objections during the prosecutor's summation, and instructed the jury to disregard parts of it. After a certain point, though, the cumulative effect of a prosecutor's improper comments during summation may overwhelm a defendant's right to a fair trial...Given the inflammatory nature of the charges in this case, there was a reasonable possibility that this prosecutorial misconduct contributed to the verdict.

"Accordingly, the order of the Appellate Division should be reversed, and a new trial ordered."

Again, this was a unanimous decision; all seven members of the New York State Court of Appeals voted to reverse (all of) Riback's convictions. But four out of five Third Department 'justices' -- including two who also rubber-stamped Nickel's convictions -- thought Torncello's actions did not deprive the defendant of a fair trial.

The following material is from the Appellant's Brief; i.e., the papers Riback's lawyer submitted as part of their appeal:

[3] "[T]he evidence showed that none of the children made a spontaneous accusation, and most of them did not report the alleged incident[s] for more than a year. When they did, it was to two Colonie police officers, who conducted their highly publicized investigation without regard for established protocols for interviewing children.

[11] "Like all of the children, [alleged victim #9] did not mention sexual contact until Sergeant Fuchs and Ms. Lockart interviewed him.

[13] "[Alleged victim #4's] post-trial civil deposition testimony was also revealing. [He] testified that, at the outset of the interview, an officer told him that 'what happened wasn't [his] fault'; that '[he was] helping a lot of innocent kids'; and that 'if [he] didn't do this, there would be other kids this could happen to.' The questioning itself showed how children can be influenced by adult questioning:

Q: And if I remember your prior testimony correctly, you said he dipped down and rubbed his privates against you before he described how to hang spit in the other person's face?
A: Yes.
Q: He didn't do that when he was climbing off of you?
A: Actually I think it was when he was climbing off of me.
Q: And you're remembering things now --
A: Yes.
Q: -- that I'm asking you specific questions --
A: Yes.

[16] [Footnote 13:] "On cross.examination, Dr. Hamill testified...that children are 'suggestible for leading questions'; and that children are prone to 'tell[ing] the interviewer what they believe the interviewer wants them to say' and not what actually occurred...For that reason, psychologists have developed protocols for interviewing children, which recommend video or audio-taping or other recordation...None of the interviews in this case were recorded.

[17] "In summation, the prosecutor... mocked the established protocols for questioning children ('this is not a case about. . .esoteric PhD's who write books'); encouraged the jury to 'feel the boys'; injected his own views into the case ('I don't like to think about it'); and repeatedly denigrated the defendant and his defense ('he knows the difference between nine-year-old spit and fourteen-year-old spit').

[20] The trial court permitted this ['pedophilia,' 'ephebophilia,' and 'sexual fetish'] testimony on the ground that it was 'relevant' and 'of substantial assistance to the jury.'

"The trial court's ruling is unprecedented in this State. Allowing the prosecution expert to define [these terms] did nothing to add to the jury's knowledge base...[21] What it did was put the expert's imprimatur on the notion that Dr. Riback could not control his sexual impulses. That is to say, if the expert was being allowed to define these terms, it must be because the defendant met those definitions.

"That no other court has allowed an expert to give similar testimony is hardly surprising. A central principle of our law is that evidence of a defendant's propensity to commit a crime is forbidden.

[25] "[T]he prosecutor's summation was a catalogue of improper remarks designed to demonize the defendant and to enlist the jurors as avengers on the side of children.

[26] "Plainly, calling defendant a pedophile should have no place in a criminal trial. Until the decision below, no court had ever sanctioned such a derisive remark. Quite the opposite is true. New York courts have held that labeling a defendant a pedophile is 'clearly unwarranted.'

[28] "[T]he prosecutor's comment could only have been intended to divert the jury from a dispassionate assessment of the proof.

[31] "[T]he ['49 interviews'] passage shows the prosecutor's lack of respect for the court's rulings. Determined to poison the jury, the prosecutor twice repeated the very theme that the court had instructed the jury to disregard."
[Torncello did something strikingly similar – though, far more often – in Nickel's case, with the repeated use of the term 'boy-lover,' notwithstanding the judge's admonition that he 'refrain' from doing so.]

[38] "The prosecutor derided the notion that the failure to adhere to established protocols for interviewing children was of significance to the case...We expect more from prosecutors than for them to denigrate practices developed to prevent false accusations of abuse. See New York State Children's Justice Task Force, Forensic Interviewing Best Practices (2003). [From FN22: [This] manual emphasizes the need for 'non-leading and non-suggestive' questioning to avoid false disclosures of abuse. The multi-disciplinary Task Force included the former head of the Albany County District Attorney's Office's Special Assault Unit among its advisors. Surely, something is amiss when a prosecutor in that office that helped draft protocols mocks them before a jury.] To suggest that [39] such concerns are for academics is to appeal to the jury's worst instincts.

"[T]he prosecutor made numerous comments that were intended to repulse the jury. He told the jury...(ii) that 'inside that room [Dr. Riback's] in a trance. He can't communicate to kids. . .He can communicate with his erect penis'...; (iii) that [i]t's like Pavlov's dogs okay. It's kind of in reverse because now [Dr. Riback's] not salivating. . .[h]e's making [his patients] salivate and spit on him'...; and (iv) that Dr. Riback 'must have been performing the heretofore unknown grind-your-penis-into-the-butt-and-spit-on-my-face exam'.

[40] "Accounts of game playing became allegations of illicit touching when the children were pressed by investigators who were convinced of Dr. Riback's guilt...The truth is the experienced prosecutor repeatedly crossed the line because he believed that was the best way to ensure a conviction."
[That was most certainly true in Nickel's case as well; Torncello knew that, given the weakness of the alleged victims' testimony (particularly Arthur's), unless he threw the rules of evidence out the window, there was a very good chance that he would lose.]

The following is from the Appellant's Reply Brief, written in response to what the District Attorney's office had argued in favor of affirming Riback's convictions:

[13] "As part of the argument, the prosecutor also remarked that '[y]ou got 15 sets of parents out here right now who are probably thinking the same thing [that they should not have to put their children through this] after. . .what's gone on this week.'...What had gone on, of course, was a trial, to which Dr. Riback had a constitutional right and at which the child witnesses had been treated fairly. None had been badgered or subjected to lengthy cross-examination. The prosecutor's remark was a bald attempt to align the jurors with the parents and play on their sympathies."

So...having – to say the least – 'pushed the envelope' at Nickel's  trial (and gotten away with it), he did so again at Riback's trial. This time, however, he didn't get away with it for very long.

One might think that if a prosecutor's misconduct were egregious enough to get a criminal conviction reversed, that prosecutor would then get disbarred. But that is far from the case.

The following are some headlines and excerpts from a local newspaper about subsequent developments in the Riback case:

"Sex Abuse Retrial May Begin Soon: Appeals Court Overturns Ex-Neurologist's Conviction," by Jordan Carleo-Evangelist, (Albany) Times-Union, 12/2/09, pgs. B1, B7. [B7] "Torncello, who is now the Albany County Public Defender, could not be reached for comment."

So...after having pulled out all the stops to secure Riback's (wrongful) conviction, Torncello is then put in charge of ensuring that poor defendants get a fair shake. Sure. (Oh, and now he has nothing to say about the Riback case?)

"Former Neurologist Out for Good: Riback, Once Given 48 Years for Abusing Kids, Out of Prison in Plea Deal," by Robert Gavin, (Albany Times-Union, 1/6/11.

"Ex-Doctor's Penalty Stirs Ire: Relative of Sex Abuse Victim Upset that Riback 'Still Denying Everything'," by Robert Gavin, (Albany) Times-Union, 3/3/11, pgs. D1, D9.

[D1] "A judge on Wednesday sentenced former pediatric neurologist Philip Riback to time already served and 10 years of probation... When Judge Stephen Herrick asked Riback if he wished to speak, the ex-doctor responded, 'No.' The judge, in turn, blasted Riback's continued lack of remorse. 'After the passage of over six years, you have yet to accept any real responsibility for what you did to those innocent boys under your care that you swore an oath to cure [D9] and to heal,' Herrick told Riback. 'Those boys have been irrevocably harmed by your selfish, perverse and criminal conduct. And you have benefitted from your harmful actions because of the passage of time and in many cases. . .the boys' reluctance to once again live through their experience in a public trial.'"

Nickel spent a significant amount of time talking with Philip Riback when they were both housed at Green Haven Correctional Facility. Nickel became utterly convinced that Riback was innocent. But he could also see why his odd mannerisms, which are a result of an autism spectrum disorder known as Aspberger's Syndrome, made him particularly vulnerable to his actions being misinterpreted.

The above (pontificating) judge does not seem to realize that innocent people often plead guilty, just so they can get the whole ordeal over and done with. This is especially true when the initial conviction has been overturned.

Of course an innocent person is not going to express remorse.

In any event, Judge Herrick – who presided over Riback's grossly unfair 'trial' – appears to be scapegoating Riback for the former's – as well as prosecutor Torncello's – own misconduct. Had Herrick not wrongly allowed the 'expert' to testify on pedophilia, as well as sat by as Torncello used every trick in the book, Riback would have either 1) been acquitted, or, 2) been convicted in such a way that a reversal would not have subsequently occurred. Either way, Riback would not have been in Herrick's courtroom that day.

Herrick is right about these boys having been harmed. But who bears the lion's share of the blame for this: Riback, or the 'justice' system itself?

Last but not least, the real reason why Riback – and many others – are not retried after their initial child-sexual-abuse convictions get tossed out is not because the prosecution doesn't want to put the alleged victims through another trial; it's because they fear such a trial would end in an acquittal, given that, they never had a solid case to begin with.

Because the United States is the only country in which judges (and top prosecutors) must face election, Herrick's behavior here is hardly surprising.

"Torncello to Depart Public Defender's Office," by Robert Gavin, (Albany) Times-Union, 1/19/11: "The Albany County public defender will soon become chief attorney for the Committee on Professional Standards, the watchdog arm for lawyers with the Appellate Division of state Supreme Court..."

In response to this article, Nickel's father sent the following letter to the editor (which, predictably, was neither published nor placed on the TU's website):

"I was simply stupefied when I recently read...that Peter Torncello will soon become the Chief Attorney for the Committee on Professional Standards, the group which monitors attorney ethics. Back in 2001, when he was an assistant district attorney in Albany County, he prosecuted my son, Jeffrey Nickel, in an alleged child sexual abuse case. Moreover, because the case was a weak one, instead of trying to get a conviction based on what Jeffrey allegedly did, he sought – and obtained – one based on who he supposedly was; i.e., a 'pedophile.' This is exactly what Torncello did in the Philip Riback case. The Court of Appeals reversed his conviction back in 2009, largely because Torncello solicited testimony in an attempt to show that Riback was a pedophile...And this person is going to be the head lawyer for the ethics committee? Is this a joke?..."

Well, because of continuing ethical 'challenges' of his own, Torncello would not be in that position for very long:

"Chief, Two Lawyers Resign from 3rd Dept. Disciplinary Panel," by Joel Stashenko, New York Law Journal, 7/10/13:

"Torncello joined the committee as chief attorney in 2011.

"Torncello previously had been a public defender in Albany County for four years. Before that, he was an assistant district attorney in Albany County."

"Third Department Shifts Staffer to Cope with Loss of Attorneys," by Joel Stashenko, New York Law Journal, 7/12/13:

"Peter Torncello abruptly resigned earlier this month as chief attorney.

"The Committee's lawyers investigate allegations of ethical violations and other wrongdoing against attorneys in 28 central and northeastern New York counties and recommend sanctions to the Committee on Professional Standards where appropriate."

"Chief Clerk and Deputy Exit Court of Claims," by Joel Stashenko, New York Law Journal, 5/24/14:

"Last year [2014] chief attorney Peter Torncello and his associate counsels...in the Albany-based Committee on Professional Standards for the Appellate Division, Third Department, resigned amid an investigation by the court system into whether they filed time sheets reflecting that they were working for hours when they were not on the job."

It is unclear what employment Torncello was able to find following that.