CHAPTER 17

The Defense

Three years before Barbara Kogan’s indictment, in the spring of 2005, defense lawyer Barry Levin was making headlines in another case. Media coverage of that case was how Barbara learned about Levin and eventually contacted him to ask that he represent her.

In Levin’s previous and equally high-profile criminal probe, he represented Albert Pirro, husband of Westchester District Attorney Jeanine Pirro, who was described by the New York Daily News as a “GOP powerbroker.”

In the Pirro case, Albert claimed his innocence, including specifically denying saying anything to DePalma about the officer. But according to FBI surveillance tape released to the public, DePalma and his associates said otherwise. At an October 2004 meeting at a restaurant, DePalma conferred with mob associates, including reputed soldier Robert Vaccaro. The men discussed Frank DellaCamera, a Mamaroneck police officer who’d been charged by the Westchester district attorney’s office three days earlier on drug and stolen-goods charges. FBI documents accused the officer of helping the mob in auto-insurance scams and paying tribute to the Gambino family. On tape, DePalma said, “The DA’s husband told Bobby Persico that Westchester district attorney’s office investigators have been following [DellaCamera] for one year,” according to the FBI documents, made public by the New York Daily News. Mobster DePalma appeared furious that Albert Pirro had not told the gangsters earlier that DellaCamera was being followed, saying on tape, “He tells you now. He could have—” Vaccaro interrupted him with, “Watch the pinch,” referring to a potential arrest.

In an e-mail to the Daily News, according to the newspaper, Albert Pirro denied having such knowledge and passing it on to others. In 2002, as a lobbyist, he had represented Persico, a Westchester contractor. Pirro also denied any knowledge of Persico and his mob ties, even though in 1998 prosecutors publicly labeled Persico an associate of a crime family.

In 1994, Levin defended Alphonse Persico, son of Carmine Persico, who at the time headed the Colombo crime family—one of New York’s five Mafia groups. In federal court, prosecutors accused the younger Persico, known on the street as “Allie Boy,” of plotting from prison a Colombo family war that sparked bloodshed on the streets of New York. The six-week trial ended in an acquittal of Persico—and a major win for Barry Levin.

The cost to defend high-profile clients like Pirro, who was ultimately convicted of tax fraud and served time in a federal penitentiary, and Persico, later convicted of a variety of offenses and sent to prison, is expensive. Murder trials like Barbara Kogan’s are even pricier to defend, and her legal expenses added up quickly.

Levin, who began his legal career as a prosecutor, said shortly after Barbara retained him that he looked forward to representing her through the trial. But a few weeks before Barbara was indicted and after she’d retained Levin, she was still paying an earlier defense team she’d had on retainer.

On April 7, 2008, Barbara paid civil and criminal defense attorney Jay Goldberg a $3,267 fee. At the time, Goldberg, a graduate of Harvard Law School, was with the firm Levitt & Kaiser specializing in criminal law. Two days later, on April 9, she paid a retainer fee of $75,000 to Goldberg, according to her business checking account records with Chevy Chase Bank, which were provided to the court. Also on April 9, she wrote a check for $600 to Nick Kaizer, a partner at the firm. The check was endorsed by Jay Goldberg. She wrote another check to Levitt & Kaizer on April 12 for $2,120, another on April 25 for $29,000, one on May 1 for $2,500, and yet another, written for $760, on May 27. Also on May 27, Barbara wrote a final check for $30,000 to Nick Kaizer with the memo noting “Fee.”

In early May Barbara wrote Levin a check for $5,000. Ten days later on May 12, 2008, she wrote out another check to him for $100,000. On the memo line of the check she handwrote “Retainer Payment in Full.”

The next month, on June 30, Barbara cut a check to Levin for $30,000 with the memo notation “Toward Fee.” On July 30, she wrote a check to him for an additional $10,000 and, on August 19, another check for $10,000. On September 8, she issued a check to him for $25,000 with the handwritten notation “Retainer.” In October, she paid Levin $13,310 with the notation “Client Contract.”

Prior to trial, Barbara paid attorney Jay Goldberg, who’d represented her for two months, and the firm of Levitt & Kaizera, a total of $143,247. And to Barry Levin, she paid a total of $183,310. The grand total of $326,558 paid out to attorneys had, at that point, just gotten her past her bail hearing. Barbara, who’d earlier filed for bankruptcy, but was denied because the court said she’d hidden her money, was running out of funds.

Still, Barry Levin fought for Barbara and was confident he’d win. “This is a kooky case,” he said in a telephone interview. “This is not a cut-and-dry case. There is no evidence against Barbara. I was a prosecutor when I started out, and there are a lot of prosecutors who wouldn’t have taken this case.”

He went to court and argued on behalf of Barbara for the dismissal of the murder charge, citing the years’-long delay in indicting his client. “The defense has lost its ability to call several material witnesses that would have been able to rebut the prosecution’s theory, because they are either deceased, unable to be located, or have had their recollection compromised as a result of the long delay,” he argued.

In his eleven-page motion for dismissal, dated March 25, 2009, Levin pointed out that Barbara’s parents, Rose and Emanuel Siegel, “who would have been able to testify as to their relationship with Mr. Martinez and why they had made calls to his home office on October 23 and 24, 1990, are now deceased.”

Also dead was Lorenzo Munez, a trustee appointed to oversee the proceeds of George’s sale of the Ramada Hotel and Casino in Puerto Rico. The brief stated that Munez was accused of “mismanagement in his oversight of the proceeds of the sale.”

Norman Perlman, a divorce lawyer for Barbara Kogan, had also since died. Perlman, Levin pointed out, “would have been able to rebut the testimony of Scott Kogan regarding the events surrounding the parties’ divorce proceedings.”

Three times in his motion for dismissal, Levin cited the “eighteen-year delay” as a violation of his client’s rights. “The prosecution is wrong on both points,” Levin argued. “Such mischaracterization of longstanding precedent is an absurd attempt to fool this Court in order to salvage an 18-year delay and is in violation of defendant Kogan’s constitutional rights to a speedy and just prosecution.” New York has recognized similar cases, he wrote, since 1948.

“The District Attorney’s Office has had the same quantum of evidence against defendant Kogan since the grand jury presentation against Manuel Martinez in 1996,” Levin wrote.

In fact, Levin emphasized that “the only substantive difference between the evidence in the people’s possession in 1996 and the grand jury presentation in October 2008 is the claim that a witness will testify that defendant Kogan was getting her hair done after being informed her husband had been shot. The evidence against Kogan is, at best, a weak circumstantial evidence case consisting of two admissions made by Mr. Martinez to his then-wife, Beatriz Oller, and his former business partner and friend, Carlos Piovanetti, that he had committed the murder for Ms. Kogan. As this court is aware, Mr. Piovanetti is a convicted felon, a drug dealer, and a con artist whose testimony is highly suspect. Secondly, Ms. Oller is a woman who has a history of mental illness and was both mentally and physically abused by Mr. Martinez. Their testimony has substantial credibility issues.”

For those reasons, Levin asked that the court dismiss the murder charge against Barbara. He ended the motion by asking Judge Obus to “grant the defendant’s motions in their entirety.”

Levin’s argument worked. The court dismissed the single charge of murder in the second degree on a technicality, because of failure to charge Barbara in a timely manner. In July 2009, State Supreme Court Justice Michael Obus ruled that the DA had empaneled a grand jury in 2008 but had not gotten the court’s permission to do so.

Levin said, in a telephone interview, that because the court had tossed out the charge and there were no new charges pending against his client and it was a new case, he again requested bail for Barbara Kogan while awaiting her trial. He was confident that, this time, bail would be granted and she’d be released from Rikers Island.

But the judge also included in his ruling an opportunity for the prosecutor to re-file the charge. First, Seidemann would have to get permission, after the fact, to empanel the 2008 grand jury. Levin explained Obus’s move, saying, “Like all judges in New York, he compromised. The judge gave the prosecution the opportunity to resubmit the charge.”

However, Levin pointed out, “They have to do this whole thing all over again. It will take them months. Barbara will probably be out on bail or on her own recognizance by early August.”

Levin was so optimistic about his client’s chances that he and Barbara even planned where she would live after she got out of Rikers. “If she is released, she’ll be staying with friends who have a place on Park Avenue,” Levin said.

But it was not to be. About a week later, the court’s answer came: “Denied.”

“Her bail was denied,” Levin explained, “because the judge ruled she was a flight risk because she’d been staying in San Juan, Puerto Rico, at the time the indictment was issued. Records, however, show that Barbara Kogan also had an apartment in New York.”

Thus, Barbara Kogan became one of the forty-six out of forty-seven defendants charged with murder in 2008 in New York County who were not awarded bail.

In addition to denying bail, the judge ruled that Barbara should remain in isolation and under suicide watch at Rikers Island. Barbara remained in jail, without the formality of any criminal charges against her.

Levin commented that once a new charge was filed, “I’m going to go in and argue that they violated the speedy-trial statute. They have one hundred and ninety days to charge my client.” But Levin predicted in a phone interview that the prosecution would not re-file the charge until late December 2009, which, he said, would give him and Barbara more time to prepare. He was off on his prediction.

No sooner had the charge of murder been dismissed against Barbara than it was re-filed by the District Attorney’s office. In September 2009, the same charge was filed and accepted by the district attorney’s office, which had, after the fact, received permission to empanel a grand jury. Assistant District Attorney Seidemann then re-filed the lone charge against Barbara. The tables had turned, and now it was the defense that was back at square one. Levin said while he had anticipated the re-filing, he had not expected it so soon.

Still, he was adamant about going to trial and vigorously defending Barbara. Levin regrouped and said he was ready. “I’m going to give them Manuel Martinez in my opening statement. Martinez’s conviction has nothing to do with my client. If Martinez is guilty, so what? What does that have to do with Barbara?”

Levin would have his answer to that question soon enough.