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Appellate Division Overturns Murder Conviction

Zachary Gibian, of Hauppauge, who was convicted of killing his stepfather with a samurai sword, may get a new trial after an appellate court finds that a Suffolk judge made mistakes at the 2006 trial. Newsday file photos and video

Photo credit: Michael E. Ach | Zachary Gibian stands outside his home at 396 MacArthur Blvd., Hauppauge after being released on bail. Gibian was later convicted of murdering his dad with a samurai sword. (March 17, 2005)

Originally published: August 12, 2010 7:55 PM - A Hauppauge man found guilty of killing his stepfather by nearly beheading him with a samurai sword may get a new trial, after a state appellate court overturned the conviction because it found mistakes in how a Suffolk judge handled the 2006 case.

Zachary Gibian, now 23, was denied a fair trial by trial Judge Robert W. Doyle on several grounds after the high-profile 2005 slaying, according to a 3-1 decision by the appellate panel. The panel ordered that Gibian be returned to Suffolk County for a new trial.

"We believe he was denied the right to present a defense in a fair and balanced manner, and we're very grateful that the appellate division agreed with us," said one of Gibian's attorneys, Joseph Ferrente, of Hauppauge, who handled Gibian's appeal.

Upon hearing the news Thursday, Suffolk District Attorney Thomas Spota said he will ask the state Court of Appeals to weigh in on the case. If that court agrees to consider the appeal, its decision will trump that of the lower court.

In a case marked by one outlandish twist after another, Gibian first confessed to killing his stepfather, Scott Nager, 51, then took the stand to say that his disabled mother, Laura Nager, was the real killer. Another scene stopper in the case came when Troy "T.J." Harrelson, the son of Long Island Ducks founder Bud Harrelson, took the stand to say that he had helped Gibian, a friend, dispose of the sword. Harrelson later pleaded guilty to his role in the crime.The jury deliberated for seven days before finding Gibian guilty of second-degree murder on Dec. 13, 2006. Doyle imposed sentence on July 17, 2007, and Gibian is now serving 25 years to life upstate.

The appellate panel found that Doyle made at least three serious errors in overseeing the case. First, they said, Doyle should have allowed Gibian to testify about what his mother allegedly told him about how she killed her husband. Doyle did not allow that testimony, calling it hearsay.

The panel also said the judge should have investigated claims of jury misconduct. In particular, the decision says that one juror told the judge that another juror, who was a court officer in another county at the time, was injecting her professional knowledge into the jury deliberations, which is not allowed.

Finally, the panel found the judge should not have interrupted Gibian's defense lawyer, William Keahon of Islandia, during his closing statement to impose a time limit on his argument. Keahon said he will ask a judge to set bail in the case pending the retrial. "From day one of this case I totally believed in Zach's innocence," Keahon said.

Defense lawyer Stephen Scaring, of Garden City, said it's unlikely the state's highest court will even agree to hear the case. He said that court is looking for cases where there are novel or highly disputed legal issues and the issues in the Gibian appeal seem straightforward to him.

If the Court of Appeals does not take the case, prosecutors could decide to drop the charges, ask Gibian to plead guilty to a less-serious crime than he was originally charged with, or they could opt to retry the case.

Retrying a case years after the crime could be difficult for prosecutors and for the defense, lawyers said Thursday.

Prosecutors must contend with relocating witnesses and convincing a jury those witnesses still clearly remember details, said Richard Klein, a criminal law professor at Touro Law School.

But Scaring said the defense is at a disadvantage too, having lost the element of surprise. In the first trial, Gibian's allegation that his mother was the real killer stunned everyone in the courtroom, including the prosecutor.


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Keahon, Fleischer & Ferrante
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