CHAPTER 11

Preparing for Trial

Just before Martinez’s trial, after a witness list was provided to both sides, defense lawyer Jonathan Strauss petitioned the court requesting that “missing witness” instructions be given out and explained to the jury. Strauss felt the prosecution had failed by not calling Barbara Kogan and Paul Prosano as witnesses. Neither was a defendant, and they had not been indicted for George’s murder, yet their names popped up throughout Manuel’s trial—with Prosano as the possible hired gunman and Kogan as a co-conspirator in the murder plot with Martinez.

Prosecutor Seidemann, in an August 15, 2007, affidavit, briefly explained why he was not planning to call Barbara to the stand: “As for Barbara Kogan, given her interview with the NYPD in which she said she has no information on the Kogan murder, it is hard to see how she could assist this defendant in his defense.” Outside the courtroom, Assistant DA Seidemann, according to Martinez, had told defense attorney Strauss that the prosecution left Barbara off the witness list because she had passed away.

Seidemann, in his answer to the missing witness report, called Strauss’s request “laughable.” The judge agreed and ruled against the defense. In making that ruling, Judge Michael Obus said, “There is no reason to believe that either of these potential witnesses is in control of the people in the sense of being likely to be favorable to them.”

Another snag with potential witnesses was Aaron Richard Golub, who had represented Barbara in the divorce while her husband was still alive. Barbara’s new attorney promised to block Golub from testifying, because of attorney-client confidentiality.

Further, police weren’t allowed to use any of the initial information from their one eyewitness, the housekeeper who was in shock and quickly fled the scene. Moses Crespo explained that the woman the housekeeper had worked for had died, and the housekeeper “basically disappeared. Police tried to find her, but I think she left the country and went to live maybe in Mexico.” Without her appearance in court, her original statement was considered hearsay. Because of that, no one would ever know if she saw the gunman try to take money from George—which could possibly have explained the cash on the sidewalk—or what else she may have seen.

With setbacks like this for the prosecution throughout the trial, Strauss reassured Martinez that all was going well, and that he was optimistic about the outcome. “Manny, I see no smoking gun,” he told his client. Based on the prosecution’s lack of direct evidence, Strauss was confident he could obtain an acquittal for Martinez.

A year earlier, in April of 2007, Seidemann had made a confusing statement about calling Barbara Kogan as a witness, which was included in the defense’s motion to dismiss the case against Martinez. Martinez was accused of conspiring with Barbara in the murder of her husband, yet prosecutors did not include her as one of their witnesses.

The issue of whether Barbara Kogan was dead or alive was curious. As a step in discovery, Seidemann and the NYPD investigators assigned to the DA’s unit obtained full listings of all apartments and homes Barbara had lived in since her husband’s death, and those addresses were included in the court file. At that point, Barbara, in fact, had been splitting her time between an apartment in Manhattan and one in Puerto Rico. She did not appear to be hiding, though Seidemann had told Strauss and written in a court document that it was his belief that Barbara was dead.

On July 2, 2007, Strauss wrote to the court requesting that discovery materials be handed over to him, so he could better represent his client. In his letter, he told the judge, “As the court is aware, there exists extensive discovery materials, and it would be impossible for the defense to digest the voluminous amount of materials if they are supplied on the eve of trial. Additionally, because of the delay in prosecution in this case, our investigation has been unduly hampered and we simply could not follow up leads and interview potential witnesses if this discovery material was supplied only days before the trial was to commence.”

And while Manuel Martinez was the only one headed for trial in the spring of 2008 for the Kogan shooting, it was still as if Barbara Kogan were about to be tried as well. Prosecutors admitted to trying unsuccessfully for years to get Martinez to testify against Barbara Kogan. Martinez was offered a plea agreement, but he refused and instead put his fate in the hands of a jury.

In another document addressed to the court dated August 16, 2007, Strauss put in writing that Barbara Kogan could not be a witness at Martinez’s trial, because she had died. “One of the witnesses who would have cleared the defendant, Barbara Kogan, upon information and belief has died several years ago. After conversations with the People and my Investigator, I have been unable to confirm Mrs. Kogan’s whereabouts or whether or not she is still alive. Mrs. Kogan was the wife of George Kogan. However, her testimony was never preserved and she is no longer available to testify for the defendant. Additionally, the defendant’s alibi witness, Fernando Alvarez [a law clerk], who was with the defendant at the time of the murder, cannot be located. Similarly, Richard Golub, Esq., and Norman Donald, Esq., Mrs. Kogan’s attorneys, cannot be located.”

“The six-year delay between when the murder occurred and when the defendant was indicted,” Strauss continued, “should be viewed as pre-indictment delay.” Based on that argument, Strauss requested that all charges against his client be dropped.

Judge Michael Obus responded in a September 21, 2007, ruling, “Barbara Kogan is alive and well and living in Puerto Rico where the defense can locate her.” That was news to Strauss, because the prosecutor had told him in April 2007 that Barbara was dead, which hampered the defense. It was frustrating for Strauss in an already complicated case.

Going forward to trial when they could not find witnesses was not a good scenario for the defense. Despite this, the case moved forward through the judicial system toward trial.

A week before Martinez’s trial was to begin, Judge Obus ordered the prosecution to turn over all discovery materials to the defense. “This will give us an opportunity to more thoroughly prepare for trial,” Strauss, in a letter to Martinez, said about the ruling. That opportunity did not come: By the second week of trial, the defense still did not have all of the discovery materials. Seidemann, for his part, said that he had provided the defense with “twenty-two boxes of information.” Missing from those boxes was the transcript of the conversation between Martinez and Carlos Piovanetti, which was a result of the deal he’d cut to lessen the charges pending against him. The prosecution was instead saving the transcript for trial and planning to inform the defense just before Carlos was to take the stand.

Martinez’s attorney, Jonathan Strauss, ridiculed the allegations lodged against his client as a “house of cards.”

“The case is based on two main witnesses, a convincing liar … and an ex-wife who hates his guts,” attorney Strauss said, referring to Beatriz Oller, Martinez’s ex-wife. In exchange for his testimony, Piovanetti, described by Strauss as an “ex-con,” was handed a plea deal for his cooperation against Martinez. As for Beatriz Oller’s potential testimony, according to Strauss, it was a matter of a bitter ex-wife exacting revenge.

Prosecutors also attempted to make a deal with alleged shooter Paul Prosano, asking him to make monitored phone calls to Martinez in exchange for lesser charges in Prosano’s kidnapping case. Prosano was charged with kidnapping in a series of push-in robberies and ultimately convicted in 1998. But he was not charged as the trigger man, or even as an accessory, in George Kogan’s killing. Prosano, as a person of interest in the case, refused to help the prosecution with its case. The man who was named, informally, as the shooter, was asked to help the DA convict Martinez, whom they said had hired Prosano as the hit man, yet Prosano, the alleged killer, was not charged with murder.

Martinez also was offered a deal by prosecutors on the condition that he turn state’s evidence and testify against Barbara Kogan. Martinez came back with an impossible counteroffer: no jail time for himself. When Seidemann refused, Martinez in turn rejected the plea bargain and instead took his chances at trial. Had Martinez accepted Seidemann’s offer, he would have spent just five years in prison, as opposed to the twenty-five-year sentence he faced if convicted.

One of Martinez’s biggest problems was that two weeks before George’s murder, Martinez, allegedly on Barbara Kogan’s behalf, had offered a job to a man named Nelson Ramirez to tail George. Ramirez testified at a grand jury hearing that Martinez had asked him to follow “a person in a divorce suit.” Ramirez, who went to Martinez’s office to meet with him, also told the grand jury that when he met Martinez, he was offered $100 a day to follow Kogan. But Ramirez turned down the job. According to Ramirez’s testimony, Martinez also asked him to make a pact that the two would never again speak about the job offer. Then, Ramirez left Martinez’s office and stopped by his friend Wilmer Rodriguez’s desk, and the two walked to the elevator bank. Wilmer, who worked for Martinez, asked Nelson, “How’d your meeting with Manny go?”

“He wants me to follow somebody in a divorce,” Nelson said. “I’m not doing that shit.”

Martinez would later explain his reasoning and desire to hire someone untrained to follow George Kogan. He said it was because Barbara could not afford a private investigator to follow her husband to see if he was hiding money from her. In a letter, Martinez described Ramirez as “an unemployed friend”:

Ramirez was not a licensed private investigator nor did Barbara Kogan need one for the work to be performed. I explained to [Ramirez] that I had a client—Barbara Kogan’s name was not disclosed—who was getting a divorce, her husband of 24 years of marriage had discarded her for a younger woman, her husband was very wealthy, was strangling her emotionally, financially, my client could not afford a licensed private investigator and she had to know whether her husband was hiding marital assets, not reporting to the court all sources of income and essentially defrauding her. It’s just like he customarily did when conducting business. He hid her legitimate share of the property accumulated during the marriage.

Ramirez’s responsibilities, if he accepted the job offer, consisted of following George Kogan, the business places he was frequenting, any business associates he would meet and report to me. Any hiring and budget had to be approved by my client because she was in a very difficult financial position. I tentatively offered him $150 per day for eight to ten hours of work per day, seven days per week, for at least two weeks.

Ramirez did not accept this proposal. I never took it personally, and I did not get upset (as he subsequently falsely testified). Remember, Seidemann insisted Paul Prosano was the hit man I used. If that had been the case, why would I need anyone to follow George Kogan, his business associates, etc., when Prosano could have waited outside 205 East 69th Street for George Kogan to exit and kill him face to face? Note that Seidemann’s theory of the murder that he fell in love with was provided by Mary-Louise Hawkins.

Barbara, through her previous attorney, Golub, could have asked the court to compel George to hand over his complete financial records to learn what she needed to know for the divorce proceedings. The court had already ordered a financial record at one point, compelling George to provide a complete financial picture to the court. Even so, according to Martinez, Barbara continued to feel she needed more than what the Manhattan courts could provide for her, so, through Martinez, she attempted to hire someone to tail her husband.

It was not the first time Manuel had hired a private eye. In August of 1992, not long after he had divorce papers served on his wife in Miami, Martinez hired private investigator Robert Dyer, who was based in Miami. A friend had referred Dyer to Martinez, who later explained that he’d hired the investigator to keep him updated on his wife and son during the divorce. It ended up being a lot more than that; the PI videotaped Martinez’s wife kissing another man while Martinez’s son was in the car.

Another problem for Martinez as he headed into trial was a brief interview he’d granted in October 1995 to New York Post reporter Al Guart.

An article about the Kogan murder ran in the Post’s October 17, 1995, edition, quoting anonymous sources, so the reporter called Martinez’s New York telephone number seeking a comment for a follow-up story. Guart hit pay dirt: Martinez called him back. And while the telephone interview was short, the ensuing article, advertised on the front page of the Post as “exclusive” and titled “Lawyer Dares: Indict Me in Tycoon’s Death,” was packed with details. The reporter learned, when his call was returned, that Martinez was out of the country and living in Mexico City, a fact of which, up until that point, the district attorney’s office and police had been unaware.

The article also said that a grand jury had met, but had not yet handed down an indictment against Martinez.

“Do you know Barbara Kogan?” Guart asked Martinez.

“No,” Manuel answered.

It was a lie. And it was not a smart move on Martinez’s part, especially since the denial was quoted in the Post, and because Martinez contradicted himself in the same article, telling the newspaper that, as his client, he had found Barbara a divorce attorney in Puerto Rico. In addition, the article named Paul Prosano as the man police believed to be the gunman.

Guart quoted Martinez, in his dare to the DA, “If the grand jury is going to indict me, they should go ahead with it. I don’t get intimidated by any grand jury, and any newspaper, any shaky informant. I have nothing to be concerned about, nothing to fear.”

Challenging authorities was also not a smart move on Martinez’s part. It came at a time when law enforcement was trying to extradite him. In the meantime, Assistant DA Seidemann was still hoping Martinez would eventually testify against both Prosano and Barbara.

The Post’s Guart had called Barbara as well, asking if she had anything to do with her husband’s murder. She told Guart she knew nothing. “I deny any knowledge of my husband’s murder. I want everything fully investigated, and I hope they find the people responsible for this.”

Martinez would later say it had been a mistake for him to return the message Al Guart left on his New York City answering machine, which Martinez had called to retrieve messages. “[The reporter] wanted to know if I knew Barbara Kogan and Paul Prosano,” Martinez said. “I was under no legal obligation to talk to him, and I should have never returned his message. He caught me off guard.”

Back in Mexico City, Martinez had hooked up with the wrong people, and, not long after moving there, he was arrested and incarcerated in the Reynosa prison.

In the meantime, unaware of Martinez’s trouble with the law in Mexico, New York-area law enforcement, including the District Attorney’s office, had lost track of Manuel Martinez. All they knew was that he had moved to somewhere in Mexico, which the Post article confirmed. Detective Ernie Bugge, hoping to locate Manuel, put out a request to the FBI’s Joint Fugitive Task Force asking for help in apprehending Martinez. Two months later, in December 1996, an FBI agent informed Bugge that Martinez had been charged in Mexico with crimes arising out of the embezzlement of 8 million pesos by two fraudulent electronic transfers from Bancomer. The Mexican government had brought two cases against Martinez, one in Tamaupilas and the other in Tuluxa, Mexico.

Back in the States, once they learned where Martinez was, officials attempted to extradite Manuel from Mexico to face charges in New York. The lengthy process began in May 2001, after the US Embassy in Mexico, through Mexico’s attorney general office, filed a provisional detention petition. But at the end of the sixty-day period, embassy officials failed to file an extradition petition and the application expired. However, the US Department of Justice and Mexico’s Procuraduria General de la Republica abruptly ended the deportation proceedings in January 2002 after Martinez was sentenced to thirteen years, eleven months in a Mexican prison in the second case against him in Mexico. New York investigators put their efforts on hold. Then, after Martinez’s appeal led to the reversal of his conviction and the case against him was ultimately dismissed, US officials pursued him again.

On March 17, 2007, Martinez was released from the Penal del Altiplano federal maximum-security prison in Toluca, Mexico, forty miles southwest of Mexico City. He did not know he was at risk of being deported or extradited, because he was unaware of the indictment that had been handed down in 1996. And, as far as he knew, no recent extradition paperwork had been filed. Plus, Martinez later said, he had dual citizenship, in Mexico and in the US, and felt he was protected by Mexican law from being deported.

But in 2007, shortly after Martinez’s release from the Mexican prison, a New York law enforcement officer, armed with the 1996 indictment for George Kogan’s murder, arrived in Mexico. Days later, around 3:30 a.m. on March 22, Martinez, amid his strong protests, was taken into custody. In the case paperwork, he was classified a “violent felony offender” and “flight risk.” With Martinez’s sentence served out in Mexico, US feds escorted him back to New York, where he was jailed at Rikers Island. Martinez ultimately filed a motion to dismiss the US charges against him based upon an unreasonable delay in prosecuting him for murder and solicitation to have George Kogan killed. It would be the first of dozens of motions, letters and affidavits Martinez would file with the court.

On September 21, 2007, Martinez, still at Rikers, got his answer to the motion to dismiss when Judge Obus denied it. The judge contended in his ruling that the probe into George’s murder was a “good-faith investigation and much of the delay was because Martinez had been incarcerated in Mexico.”

Judge Obus also addressed the issue of Martinez’s return to the States. Manuel maintained that he was removed from Mexico illegally. He contended that he was transported out of Mexico but not through a formal deportation. The feds went in, took him back to the States, and then charged him with murder. Those steps did not include extradition, defined as a formal process by which a fugitive found in one country is surrendered to another country.

The judge’s ruling in that matter was clear.

In their response to defendant’s motion to dismiss, the People include a fifty-paragraph, partial summary of their efforts to return defendant to New York. These efforts included attempts at deportation, extradition and prisoner exchange, and, contrary to defendant’s argument, began when the People learned of defendant’s actual whereabouts in December 1996. In the course of their attempts, the People—who, as state officials, were not permitted to directly contact Mexican authorities—negotiated with Mexican officials through FBI agents in Texas and Mexico, the Department of Justice, the State Department and the United States Consulate. The People chronicled the precise date of each letter, telephone call, and conversation, and established that, in the end, the Mexican government refused to release defendant until he completed his trials and prison sentences for various crimes he committed in that country. In addition, the People were advised by a Department of Justice official that the Mexican government would likely refuse extradition because defendant faced life imprisonment in New York, a sentence deemed cruel and unusual punishment by the Mexican supreme court. Ultimately, defendant completed his sentence and was deported to New York.

Meanwhile, as Martinez fought, after the fact, his forced movement from Mexico to the US, prosecutors seemed certain that if they moved toward criminally prosecuting Martinez, he would eventually turn state’s evidence, and, instead of being tried for murder, he would testify against Barbara Kogan as his co-conspirator. Martinez, however, would not relent. He refused any talk about cooperating with prosecutors and let the case move forward to trial. It became clear to prosecutors that Martinez did not intend to cooperate with the state against his former client.

Jonathan Strauss, Martinez’s defense attorney, balked at the charges. “I haven’t seen a scintilla of physical evidence to support their theory,” Strauss told reporters. “He’s always maintained his innocence, and he’s looking forward to being vindicated.”

“I was not deported,” Martinez wrote in a letter to his attorney. “I was kidnapped and my constitutional right of due process was trampled.… Can you appreciate my concern that I may be facing a Kangaroo Court with no integrity, no sense of justice, and no respect for the law?

“The FBI used five National Institute of Migration thugs to forcibly take me to Mexico City’s International Airport where FBI agent Romero received me.”

FBI Special Agent Robert Romero was at the Benito Juarez International Airport in Mexico City awaiting Martinez and his escorts’ arrival. Then, with the handcuffed Martinez at his side, Romero, as well as a Mexican National Institute of Migration officer, boarded Aeromexico’s Flight 408 for New York City. “I was escorted to New York City’s JFK Airport where FBI Agent Romero and a NIM thug handed me to the NYPD,” Martinez said. After the plane was on American soil, Romero then identified himself to Martinez as Special Agent Romero.

The next morning, on Friday, March 23, Martinez, still wearing the jeans, sneakers, T-shirt, and light jacket he’d been transported in the day before, was booked, fingerprinted, and photographed by the NYPD, and a one-page profile was added into the department’s computer system, alongside a mugshot and a full-body frontal photo:

New York City Police Department

Mugshot Pedigree

MARTINEZ MANUEL

NYSID# 2556964R

Arrest #: M07000668

Arrest date: 03-22-2007

Top charge: PL 1252501: MURDER 2ND: INTENTIONAL

Date of birth: 08-18-49

Age at offense: 57

PCT of Arrest: 005 PRECINCT

Source: LIVE

PHYSICAL DESCRIPTION

Race: WHITE HISPANIC

Sex: MALE

Height: 5'11"

Weight: 190

Hair Length: NORMAL

Hair Color: SALT AND PEPPER

Hair Type: CURLY / WAVY

Eye Color: GREEN

The same day, Martinez appeared before Judge Laura Ward in Part 70 of the Supreme Court of the State of New York. The case was adjourned until April 5, 2007, to give Martinez an opportunity to have defense counsel represent him before the court.

Martinez’s attorney friend in Mexico, Irving Analik, recommended that he hire New York–based defense attorney Jonothan Strauss. Martinez hired him privately rather than as court-appointed counsel, and Strauss was by his side at his April 5 arraignment. They both received a copy of the two-count indictment, Case Number 179/1996, which briefly outlined the state case against Martinez. It stated that two “incidents,” as the DA called them, occurred, prompting the indictment.

Although Martinez had been indicted in 1996, his arrival in the US was the first time he had seen the formal charges that had been rendered against him. The one-page, once-sealed indictment, dated June 26, 1996, and filed by the 11th Special Grand Jury, May/June 1996 term, formally charged Martinez with one count of murder in the second degree for the death of George Kogan. Translated in this instance, the second-degree charge meant that Martinez didn’t pull the trigger but was accused of being materially responsible. He was also charged with a single count of criminal solicitation in the second degree in connection with the taped September 15, 1992, conversation between Manuel and Carlos Piovanetti, in which police contended Martinez had incriminated himself by admitting to Carlos that he’d assisted in George Kogan’s murder.

*   *   *

From Rikers Island, where he was newly incarcerated, Martinez quickly fired off a letter to US Attorney General Alberto Gonzalez to protest his arrest—or what he referred to as his “kidnapping”—by federal agents from Mexico to the United States. The letter read:

On March 22, 2007 I was kidnapped from Mexico City in violation of the above-referenced federal statute (The Federal Kidnapping Act, 18 USCS).… The law was ignored in my kidnap.

Manuel ended his letter with a command:

I demand a Federal investigation, prosecution of all responsible parties for my kidnapping that still continues, my immedate release, just compensation for the damages sustained and full disclosure to the press. I am seriously concerned that certain employees of the U.S. Department of Justice may be acting like criminals blatantly violating Federal law and trying to disguise my kidnapping as a “deportation.”

In preparation for trial and because of the gravity of the recorded conversation, the state requested and was granted protective orders for Carlos Piovanetti and Beatriz Oller, asking that their names not be disclosed to the defendant and defense counsel until after they testified. When her husband confessed to having George Kogan killed, Beatriz said her husband “threatened to kill her and their child, Manelita, if she told anyone,” Seidemann said in his written request for a protective order for Oller. The orders were signed a year before Martinez’s trial.

Just before his trial commenced in downtown Manhattan, Manuel Martinez was transferred at 1 a.m. on March 18, 2008, from the C-95 Buiding on Rikers Island to the Manhattan House of Detention, which housed the city jail and Central Booking, also known as “The Tombs” because of some of its colonial-style buildings. Martinez’s personal property, including his legal documents, notes, and grand jury minutes, all “mysteriously disappeared,” he said.

He described the papers as “vital to my defense.” He added, “How could I participate in any meaningful way and defend myself in my trial under those circumstances? All my work product of twelve months vanished in this move.” During his trial, Jonathan Strauss, representing Martinez, would bring up that point several times to the judge. His legal materials were never recovered.

During voir dire, Jonathan Strauss had several questions for the panel of jurors before they were approved. One question in particular—what Strauss called a “hard-ball question”—was particularly important to defense counsel. “The charge here is murder,” he told the panel. “It’s serious. Someone didn’t go home and you may see pictures of a dead body here. My client has denied these allegations. The judge has asked you, the government has asked you, now I have to ask you, you know, if there is anything with respect to the charge itself. You may see family members in the audience, you know. No one is looking for legal vengeance or for a lynch mob. We’re looking for fair and impartial jurors that can fairly look at evidence or lack of evidence in the case. So, for the charge alone, is that going to prevent you from giving my client a fair trial?”

One by one, each panelist answered “No.”

During the selection process, prosecutor Joel Seidemann asked each juror if they would require him to prove the guilt of other participants, including Martinez, in order to reach a guilty verdict. Because it was a circumstantial case, he also asked them if they needed to see “CSI” evidence to convict. “There is not going to be ‘CSI’-type evidence in this case.”

Seidemann also prepared the jury for possible inconsistencies in witness testimony, even after an objection by the defense. “I anticipate that when witnesses try to recall events, there will be inconsistencies,” the prosecutor told prospective jurors. “My question to you is can you listen to the evidence and decide whether the inconsistencies are minor or are central to whether or not we proved our case?”

Jurors told Seidemann they’d still be able to render a guilty verdict, despite inconsistencies in testimony. Then, he said, “I tell you right now it’s our theory that [the defendant] did not pull the trigger, but that he set this in motion and had a hand in hiring the hit man.”

After Strauss objected and the judge sustained it, Seidemann reworded his question and was able to ask it without a protest from Strauss: “Well, my question is, when you hear different witnesses testify, or even the same witness, that are trying to recall an event that occurred way in the past, I anticipate there will be inconsistencies in the testimony. My question is if we satisfy you with evidence beyond a reasonable doubt, what will your verdict be even if there are inconsistencies?”

The next day, on Tuesday, March 19, eighteen years after an assassin’s bullets cut down George Kogan in a public, apparent hit-for-hire, Manuel Martinez, by now fifty-seven years old, was taken to the New York Supreme Court, Part 51 courtroom, at 100 Centre Street in lower Manhattan. The same day, a jury panel of his peers—twelve jurors and four alternates—was selected.

The panel was a mostly educated group that included: an unemployed construction worker from Spanish Harlem; a mechanical engineer from the Upper East Side; a chemist from Inwood; a social worker from the Upper East Side; a book editor from Chelsea; a daycare director from Manhattan; a language interpreter from Murray Hill; an investment firm worker from Midtown Manhattan; a school principal from Union Square; a human resources employee from Midtown West; a retired computer technician from Manhattan; a retired nurse from the Lower East Side; a college instructor from Harlem; a biologist from Midtown West; a tax law firm legal aid from Hell’s Kitchen; and a documentary filmmaker from Manhattan.

Then they stood before Judge Michael Obus with their right hands raised and were sworn in. Martinez was about to have his day in court.