Updated 09/22/2010 10:02 AM
Will Christopher Porco get a new trial?
There's a new development in the case of Christopher Porco, the Delmar man convicted in the 2004 murder of his father and attempted murder of his mother. Porco could get a new trial. Our Solomon Syed explains.
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ALBANY, N.Y. -- When they arrived at a grisly murder scene in November 2004, investigators testified at trial that Christopher Porco's mother, Joan, nodded when they asked if her son committed the crime.
"Her injuries were absolutely horrific and it's been our position from the beginning that she didn't understand the question," said Terence Kindlon, Porco's attorney.
Kindlon spoke with YNN while holding the letter from Judge Robert S. Smith, granting the 27-year-old Porco the right to take his case before the Court of Appeals. If successful, his client would get another trial.
"What it is, is it's called testimonial hearsay," said Kindlon. "She was answering a specific question under a set of circumstances that did not involve the defense at all."
Earlier this year, a mid-level appeals court agreed with that argument, saying the jury should not have heard testimony about Joan Porco's alleged head nod. But they also upheld Christopher Porco's conviction.
Legal analyst Paul DerOhannesian said this latest appeal will likely have the same outcome for one very big reason.
"There was overwhelming evidence of guilt, so even though there was a mistake in admitting the head nod, it was harmless error," said DerOhannesian.
Albany County District Attorney David Soares issued a statement saying, "Every defendant convicted of a crime after trial in our country has the right to appeal. The defendant in this case has the absolute right to exhaust every avenue in his pursuit to overturn the decision of the jury. We will continue to fight to preserve the will of the jury and the people of Albany County."
A second appeal is extremely rare, though. Allowing the possibility that Porco, behind bars since 2006 serving 50 years to life, could one day walk free.
"The district attorney's office has been arguing from the get-go that they have a very provable case without the nod," said Kindlon. "And we say, hallelujah, bring it on."
A scheduling order has not been issued yet. Mountains of legal briefs will be filed on both sides when that does happen. Arguments aren't expected to begin until next spring, or possibly as late as next fall.