LOCKPORT – The attorney for Michael J. Solomon Sr., the former music teacher whose sexual abuse conviction and 32-year prison sentence were overturned on a legal technicality, lost another round last week in his effort to try to use an expert witness to try to discredit Solomon’s confession.
Niagara County Judge Sara Sheldon Farkas ruled that attorney Glenn Pincus won’t be allowed to call a psychologist to testify that his tests of Solomon showed the North Tonawanda man has a personality that makes him more likely than most people to cave in to police pressure and confess to something he didn’t do.
Last week’s ruling came a few weeks after Farkas rejected an effort by Pincus to call an expert to directly discuss false confessions.
“The defendant is disappointed in the court’s ruling,” Pincus said. “Right now, my client steadfastly maintains his innocence.”
Solomon’s second trial is due to begin March 31 on 23 counts, including rape and other sex crimes as well as posing the alleged victim, a girl who was under 11 years old at the time, in photos that allegedly constitute child pornography. The alleged victim is now 22 years old. The crimes allegedly occurred between August 1999 and March 2004.
In the original 2005 trial, the jury convicted Solomon on 23 counts, including one count of first-degree rape and nine counts of second-degree rape.
The jury acquitted Solomon on one count of second-degree rape and eight counts of possession of child porn on his computer.
He remains free on bail.
Solomon directed the band for fourth- to eighth-grade students at Holy Ghost and St. John Lutheran schools in Wheatfield and at night taught trumpet, trombone, saxophone, clarinet and drums at Matt’s Music in North Tonawanda. The alleged victim was not one of his students.
The conviction was overturned by the State Court of Appeals in October 2012 because Solomon’s attorney at the first trial, Assistant Public Defender Michele G. Bergevin, had previously represented one of the investigating officers, North Tonawanda Detective Larry Kuebler, in a private legal matter.
The state’s highest court ruled that was a conflict of interest that couldn’t be tolerated, even though the court admitted Bergevin did a good job cross-examining Kuebler during the 2005 trial.
In a hearing that ended Jan. 21, Pincus sought to persuade Farkas to let him call Dr. Bruce Frumkin to the witness stand during the new trial.
Frumkin, a forensic and criminal psychologist from Miami, testified that he is a specialist in analyzing false and forced confessions. He has reviewed 700 cases, mostly for defense attorneys.
Since Farkas had already ruled out any defense attempt to attack the validity of Solomon’s confession directly, Frumkin conducted a series of psychological tests on Solomon that purportedly showed how Solomon, now 48, might have been vulnerable to the tactics of North Tonawanda Detective Lt. Karen Smith in their June 4, 2004, interview.
But in her ruling, Farkas noted testimony by Smith and Solomon at a pretrial hearing that the detective never raised her voice.
“According to the detective, the defendant denied the alleged conduct for 20 to 25 minutes, but then appeared remorseful and admitted to having intercourse with the alleged victim once the previous summer,” Farkas wrote.
Solomon testified last July that he told Smith he might have molested the girl “once when I was very, very drunk.”
Solomon said that six or seven officers and a police dog came to his home to take him in for questioning, and he was worried about his children, one of them an autistic son, who had been left at home with no indication of when he would return.
“I wanted to get home to my kids,” Solomon testified last summer.
He said he told Smith, “If you say I did it once, I did it once. If you say I did it 100 times, I did it 100 times.”
Pincus said during the Jan. 21 hearing that Solomon’s statement to Smith “doesn’t admit anything that’s specifically in the indictment.”
Farkas wrote, “The defendant’s statements to the police are but one piece of evidence in the case. The prosecution does not rely, even primarily, on the defendant’s statements to the police.”
The judge said other evidence includes recorded phone calls under police supervision placed by the alleged victim to Solomon the day before he was arrested; the contents of his home computer; and the victim’s testimony.
In ruling the confession admissible, Farkas said the police did “nothing unduly coercive” to Solomon.
Frumkin testified that the battery of tests he administered to Solomon showed that the former teacher “has an extremely difficult time being around people.
“He prefers to be alone. He’s asocial, not antisocial,” he said.
He said his tests showed Solomon to be of “average to high-average intelligence,” but Frumkin added, “He tries to take the easy way out in dealing with stressful situations.”
Solomon said during his testimony that Smith told him, falsely, that the police had a dress with DNA on it. Solomon said he replied, “Great, that’ll clear me.”
Frumkin testified that false evidence techniques are “designed to get guilty people to confess.”
But sometimes, he said, people with low intelligence or those with certain psychological problems are vulnerable to confessing falsely under the same circumstances.
Farkas disagreed. “There is no finding that the defendant suffers from any special disability which might make him unusually susceptible to otherwise routine police questioning,” the judge wrote.
“Finally, the length of time between when the tests were administered (by Frumkin) and the police interview in this case makes such testimony minimally relevant,” she wrote in her decision.