ALBANY Christopher Porco’s latest bid for a new murder trial could rest with a drug suspect from Chicago and the U.S. Supreme Court.
Porco’s attorney, Terence Kindlon, said Friday they’ve filed paperwork with the high court to get the case heard there, using the Chicago drug case as a potential way in.
Albany County district attorney’s officials who prosecuted Porco, however, said Friday that they believe the Chicago case will have no impact on Porco.
The drug case, like Porco’s, hinges on allegations of improper hearsay evidence admitted at trial but later deemed harmless to the final verdict.
Arguments in that drug case are to be heard next month.
Depending on the outcome, it could decide the latest effort to get Porco a new trial, Kindlon said.
If it doesn’t, Kindlon said they will go a second, longer route through the federal system.
“This case won’t be over until every conceivable avenue has been utilized,” Kindlon said. “But we’re really hopeful on this one.”
Porco, now 28, is serving 46 years to life, convicted in 2006 in the brutal murder of his 53-year-old father, Peter, and the attempted murder of his mother, Joan.
The jury found that Christopher Porco attacked his parents with an ax as they slept in their bed in Delmar in November 2004.
According to police, Joan Porco nodded in the affirmative when police asked her if her son Christopher was her attacker. Kindlon has focused on that nod in arguing for a new trial.
Joan Porco, who suffered severe head injuries during the ax attack, claimed at trial that she didn’t have any recollection of the assault or of her bedside gesture to detectives. Kindlon argued that because she couldn’t remember the gesture, his client essentially couldn’t confront a crucial witness at his trial.
The Porco filing last month with the U.S. Supreme Court is one of two ways for such cases to exhaust their appeals through the federal system.
This way is a more direct, single-issue method, due within a 90-day window from the final ruling in state court. Despite the filing, Kindlon said they have received no affirmative response from the court on what they will do with the case, if anything.
The other way is a filing that would start at the lowest rung of federal court. That filing wouldn’t be due until later this year.
Regardless of the method, though, Albany County District Attorney’s officials say the effort won’t succeed.
In a statement released Friday, District Attorney P. David Soares and Christopher Horn, of the office’s Legal Affairs Bureau, noted that the New York Court of Appeals did not find any error in the Porco case.
Even in more severe cases, where a defendant’s own statement was improperly admitted, the court has held that a new trial would not be warranted if there was overwhelming evidence of guilt, they said.
The Chicago case involves a defendant named Alexander Vasquez, who was convicted of drug crimes from 2008 in U.S. District Court. At trial, the prosecution was permitted to use taped telephone conversations from the jail between a co-defendant and that person’s wife.
In the conversations, the wife relays the alleged opinion of Vasquez’ attorney that they would lose at trial and that Vasquez should plead guilty.
Vasquez’ attorneys have argued that the conversation was impermissible hearsay and shouldn’t have been allowed. On appeal, the U.S. Court of Appeals found the tapes shouldn’t have been admitted, but found the error harmless.
This case deals with the same type of “harmless error” and hearsay issues that the New York Court of Appeals applied in its decision last fall in the Porco case, Kindlon said.
In the Porco case, Kindlon has argued that an alleged nod by Porco’s gravely wounded mother shouldn’t have been admitted at trial because she had no recollection of it.
While the New York Court of Appeals didn’t decide whether permitting testimony about the nod was constitutional, the court found that even if it was improper, the other evidence more than made up for it.
That evidence included traffic cameras and Christopher Porco’s DNA on a Thruway toll ticket turned in just 23 minutes before someone entered the master code to deactivate the family home’s alarm system. Porco, prosecutors alleged, drove from college in Rochester to commit the crime.
In paperwork filed with the U.S. Supreme Court, Kindlon argues that testimony about a mother’s alleged nod couldn’t have been more important.
“It’s hard to imagine how evidence of a mother identifying her son as her attacker, regardless of its reliability, could ever be considered harmless,” Kindlon wrote. “What could be more prejudicial?”
The nod was also termed the only direct evidence in the case, Kindlon wrote.
Kindlon also argues that the state Court of Appeals did not apply the proper standard when deciding harmless error.
Kindlon said that if the Supreme Court rules in Vasquez’ favor, it could also send Porco’s case back to the state court and have it ruled upon in light of the Vasquez decision. That could conceivably put the Porco case on course to be retried,
Any ruling on the Vasquez case wouldn’t be expected until around October.
In their statement Friday, though, Soares and Horn said they see no reason why the high court would change its prior rulings.
“The U.S. Supreme Court is entirely unlikely to redefine its well-established harmless error analysis in the fashion that Mr. Kindlon suggests — particularly since the Court of Appeals never determined that any error occurred in the first place.”