Episode 115: Prosecuting Discretion – Transcript

August 8, 2017


The word law has its roots in old English. It basically means to regulate and it basically has the same root meaning today. When we say law, we share this idea that we’re talking about a system that enforces rules. But in reality, there are different sets of rules. There are state rules or laws that differ from state to state, and there’s an entirely different set of rules that are federal laws. And on top of that, prosecutors in state and federal courts bring different interpretation to enforcing laws in court cases.

This week on Life of the Law Reporter Marylee Williams tells the harrowing story of some people who got caught up in two different systems of laws, and two prosecutors who saw their crime from two very different perspectives, with long term consequences. Our story… 10 hours to 20 years.


TODD DRAPER: I think it was a standard holiday weekend… nothing out of the ordinary, prior to this. Hello my name is Todd Draper. I’m a Lieutenant with the Medina police department

My interview with Todd, we’re going to use first names in this story, is in the Medina City Hall. We’re in the former council chambers, at a wooden table with enough room for Todd’s file folder, black police issued radio, and his Lipton Diet Citrus Green tea.

TODD DRAPER:  I have a citrus tea and push on till lunch.

Todd works for the Village of Medina Police Department. Medina is in Western New York, right between Buffalo and Rochester. About 6,000 people live here. The village is a square: on the inside, quaint family homes with front porches and on the outside edges, flat-factories line two-laned roads. The further out you go, the more farmland and apple orchards you run into.

We’re here to talk about a crime Todd responded to seven years ago. This crime was unusual for Medina, and the case would grow into something even more controversial. It started with a phone call from Todd’s girlfriend around 5 in the morning on July 5th, 2010

TODD DRAPER: When my girlfriend called I just assumed something was wrong. I remember as soon as I saw the caller ID, before I even answered radio, I was rapidly accelerating to get over there assuming the worst, that something was going on. For her to call me in the middle of the night, that rarely happened. When I answered the phone, she said, “Somebody is knocking at the door. I think. I looked out the window, I think it might be homer.”

Homer Marciniak, a 77 year old bachelor, was their neighbor. They lived right across the street from Homer on Mead Avenue.

TODD DRAPER: So she saw him as he was walking away because nobody answered the door.  He was en route to the neighbors house to knock on their door when I pulled up.

Homer lived alone in a simple, unassuming, white house. The intruders cut his phone line, and he didn’t have a cell phone, which was why Homer ended up knocking on Todd and his girlfriend’s  door.

TODD DRAPER: He had a white t shirt on and he had underwear on and no shoes so that was the first thing that I noticed as I pulled up.


Todd tried asking Homer some questions. But getting information wasn’t easy because Homer had a speech impediment.

TODD DRAPER: He would always carry a pad and pen around

I wanted to know more about Homer, so I started looking for photos of him in the local newspaper and online. Then, by chance I met Judy Ehrenreich and her son through the local librarian. She said she might have photos she could show me. I only found one.

Sitting in Judy’s living room, she flipped through the tea-colored faded pages of her photo album. The 78 year old’s husband grew up alongside Homer and was one of his close friends.

Judy finds the photo she’s looking for. In the picture, Homer is maybe in his mid-twenties, wearing his uniform from the service station he worked at. His face square, glasses horned rimmed, and smile slightly off kilter. In all honesty, he looks like he didn’t want his photo taken and resigned to someone else’ will.

Most people in Medina knew Homer because they saw him riding his vintage Harley Davidson, which he kept in pristine condition.

VOX: “He loved his motorcycles.”  “It was his first Harley.”  “He use to sit straight up in that thing and you hear that noise when he’s shifting those gears.”

But, for a lot of people, the motorcycle is about as much as they knew. Homer is described as shy, a characteristic some link to his speech impediment.

VOX: “I use to go down to the bar and drink. Homer didn’t socialize like that.”

Homer had friends. But the ones I talked to didn’t have any deep insights. They basically all said the same thing.

VOX: “Homer, he was one of the nicest people.  I’ve never seen him mad.”

A nice, friendly elderly man, in a simple house, in a tiny village — it all left the police wondering what happened and why it happened?

VOX: “I think that naiveness is what got him in trouble.”

Homer, the man in his underwear, waited in the police car while Todd called an ambulance and his patrol partner. Jose Avila was also on the midnight shift. He got to the scene shortly after Todd.

JOSE AVILA: July 5th. I remember it and it was supposed to be the hottest day of the year and it was it was like 102 degrees here in Medina.

Jose had been the police chief more than a decade at this point and was hands-on, to put it lightly.

JOSE AVILA: I took every crime, every issue, every situation in this town and this community as personal. I couldn’t imagine what poor Homer went through that evening, and to know that his priceless comic book collection had been stolen.

Let me repeat that, “His priceless comic book collection had been stolen.” That’s why Homer Marciniak house was broken into.

TODD DRAPER:  At approx 0400 hours,

Todd’s reading his police statement from that early morning in July 2010. He dug it out of the case file.

TODD DRAPER: Marciniak woke up and got out of bed to use the bathroom. As he approached his second story bedroom doorway an unknown person wearing a mask struck him in the face causing him to fall to the ground. The subject tied a t- shirt around his face and instructed him not to move. Marciniak estimated that subjects were in his home for approx 15 to 20 minutes.  

While cops combed over the house, Homer was at the local hospital. Todd and Jose were up all night. They couldn’t rest. Not yet. It was all about trying to figure out who did this.

JOSE AVILA: I immediately thought the possibility of outsiders coming in because this was not common. But I reached out to my informants. Some I had to pay 20 bucks you know whatever. And they all tell me the same thing, “No. I didn’t hear about it. But I’ll check I’ll call you back.” And you know you get phone calls an hour or two later, no nothing.

The police needed Homer to help piece together what exactly happened. When he got back from the hospital around 10 a.m. early the next morning, the officers took Homer upstairs to his bedroom — where he had been assaulted.

TODD DRAPER: It was kind of overwhelming. He just went through this traumatic incident. Had just been to the hospital and been treated for injuries and now was coming back to the scene where this occurred and the whole time having to answer questions about it. Almost having to relive it. 

Maybe it was being hit in the face. Maybe it was his prized possessions being stolen. Whichever, walking back into his home and up the stairs to his bedroom, Homer was clearly upset. And he wasn’t breathing right. The officers brought him back downstairs, gave him a glass of water, and sat him down on the couch. Around 11 a.m. they send him back to the hospital.

JOSE AVILA: It became apparent to us that something was physically happening to him that wasn’t right and he needed to get back to the hospital. His personal well-being then became more important to me than solving the case. I thought that maybe later on I could interview him but that never materialized. He died.

On July 5th around 2pm of a heart attack.

A few hours earlier Homer had left the hospital.  He seemed  okay. Now, the officer’s only witness to the break-in was gone, and the criminals were who knows where, possibly miles away. Todd and Jose’s job was to identify and arrest the culprits, but their opinion of what had actually happened and what the people who broke into Homer’s house were guilty of was, as it turns out, not entirely clear.

So the investigation changed. Todd and Jose weren’t just looking into a break-in and assault. It was now a suspected murder.

JOSE AVILA: He would have lived I have no doubt in my mind that he would have been there July 6 had he had not had this thing done to him this terrible crime.

The police only had one solid lead: the stolen comic book collection.

TODD DRAPER: They weren’t like DC marvel comics. They were unique comics and many of them were military themed. And he would have them in you know plastic protective sleeve.  

Homer had about 400 antique comic books valued around 50,000 dollars, according to the Medina police report. Some guns, cash, and jewelry were also taken. But nothing worth as much as the comics.

He was a collector of things, not just comics. Homer wasn’t a pack-rat. He was selective and appreciated his collections. Homer never threw away anything, but not in a pack-rat kind of way. He was selective and appreciated every item.

JOSE AVILA: It wasn’t the monetary value of those magazines or those books or those comic books that really meant something to Homer. I think that they were just his something that he had purchased over the years and to him it was his child, you know? That’s what I think.

Jose and Todd say they knew what they had to do. Find the comic books. Find the criminals. And it wasn’t just the Medina cops working the case; they called in other police departments. But it was personal for these two men.

JOSE AVILA: And that’s the other thing to this whole case that you know you’re there with someone for an hour or two and then they’re dead because of selfish people. You know it stays with you.

So, they followed leads on their own time, outside of work.

JOSE AVILA: I would look through the papers and try to find some antique store or antique dealer or something. And I grabbed my wife and son and we would jump in the car and a Sunday, whatever, we would go there and of course I’d be looking for someone selling comic books or anything along the lines of what was stolen out of Homer’s house. 

Todd and other law enforcement went to comic book stores in cities and towns near Medina.

TODD DRAPER: What does it feel like as an officer, particularly in a village like Medina, to have a case go cold? Um honestly, it sucks. Yeah that three months, as the days and weeks and eventually months started going by, I honestly did not think we would develop info that would lead us to solve the case.

But then, in October, three months after the home invasion, Jose’s phone rang in the middle of the night.

JOSE AVILA: This phone call was the best phone call I got in a long time. I mean you could have called me and told me that I won a million dollars. I would rather had this phone call than that. 

It was the Rochester police station. There was a woman in custody who mentioned something about, “the old man who died in Medina.” The Rochester police officer knew enough to call Jose.

JOSE AVILA: I got in the car. I didn’t even have my gun belt, my badge, nothing. My wallet nothing. And I raced at 100 miles an hour to Rochester. I mean I was that excited that something, maybe. I always knew that this is how we were going to solve this.  

This was the break Jose and Todd were waiting for.

JOSE AVILA: When I spoke to her at the Rochester Police Department, within a minute I said this baby’s ours.

In a few days, some of the people involved with the home invasion were rounded up and brought into the Media Police Station. One had to be tracked down and brought in from Florida. But, in this case, being involved didn’t necessarily mean breaking into Homer’s house. It didn’t even mean being in Medina during the break in.

Rico Vendetti, a middle-aged, bespectacled, Rochester entrepreneur, wasn’t in Medina the morning of the break-in.

JOSE AVILA: I call him the puppet master.

According to the court documents, Rico paid people to steal the comic book collection, effectively bankrolling the operation. But here’s the thing. The officers never figured out how Rico learned about the comics. But they thought it started with an appraisal or sale.

JOSE AVILA: Homer went to Rochester with a list of comic books and from there someone learned about Homer having those antique comic books

Turns out, the break-in at Homer’s place wasn’t Rico’s only illicit operation. He also ran a shoplifting ring. It worked like this. He paid people to steal things, like thumb drives or breast-milk pumps, from stores. Then turned around and sold those items online.

JOE CARDONE: We realized that it was more than a single arbitrary home invasion and it was more of an organized crime ring. 

Joe Cardone is the District Attorney for Orleans County, which includes the village of Medina.

JOE CARDONE: If the facts warrant somebody being convicted then I’m gunna be balls out trying to do that.

He’s been the DA in Orleans County for more than twenty years. He’s prosecuted a lot of cases.

JOE CARDONE: I’ll go to state conferences of other district attorneys and they’ll say, “Joe. What do you have in the water up in Orleans County cause you guys have some pretty strange situations.

And Joe took the same approach to this case as he does to all of them. Research and prosecute. That’s what Joe does.

JOE CARDONE: Clearly what had happened to him in his home was what ultimately resulted in him having a heart attack and dying. I mean that would be a logical position for anybody to take.  The indictment is dated Nov. 15, 2010 against Arlene Combs, Donald Griffin, Juan Javier, Albert Parsons, Trisha Sauber, Terry Stewart, Rico Vendetti and Timothy Williams

These eight men and women were charged with burglary, assault, and grand larceny. Not murder. Joe didn’t think he could prove they murdered Homer beyond a reasonable doubt.

JOE CARDONE: I had learned! that earlier in the week he was having chest pains or some type of complication and that was well before the home invasion occurred so was his heart attack something that was coming on? You know was he having some health problems where this would have happened anyway? Then, what really made it murky water for me was the fact that after he had been assaulted and law enforcement and medical officials responded to the scene and took him to the Medina hospital, there was a fairly extensive work up done in terms of checking him all out, you know. Was his heart okay? Had he experienced any types of small heart attacks or anything like that? And you know you have a medical doctor who decided to release him.

As Joe began to build his case against the eight, Here’s what Joe knew. First, Homer had a history of heart problems. According to court documents, less than two weeks before the break in, Homer visited his doctor complaining of shortness of breath. Second, after getting stitches at the hospital after the break-in, the hospital staff deemed Homer was healthy enough to let him return home. His heart checked out. And it wasn’t until later that afternoon, at 2pm that he died.  Third, the coroner performed an autopsy the day after Homer’s passing, and ruled the cause of death undetermined. And, finally, a review of the case by the coroner read quote, “the appropriate manner of death is natural.” End quote.

But, and there’s always a but, the coroner’s  final review also read, quote, “although there was likely a contributory role that the causality could not be stated within a reasonable degree of medical certainty,” end quote. Meaning the burglary and assault maybe played some role in the heart attack, but it couldn’t be definitively proven. So Joe Cardonne, the District Attorney said he couldn’t prove murder.

JOE CARDONE: That was a hard decision because I think anybody looking at it and didn’t require much legal training to have that opinion, would think that, ‘wow this man’s home was broken into and he was assaulted early in the morning of July 5th and he was dead,’ and why wouldn’t that constitute murder?

But how the local DA saw the case and what he could charge the defendants with wasn’t the end of the case.

JOE CARDONE: We would have only been able to charge certain crimes that occurred here in Orleans County whereas the federals could involve things that happened in a multitude of different jurisdictions. 

Remember how Rico ran a shoplifting ring? Well he wasn’t just selling to people in New York state. He shipped goods all over the country, and that’s important because across state lines means across jurisdictions.

Joe Cardonne, the local DA could only prosecute crimes in New York state. So, he contacted the U.S. Attorney’s Office. It moved up to federal court, and was considered a possible Racketeering case. If you don’t know what Racketeering is watch a mob movie. It’s basically organized crime. Rico’s shoplifting ring fell under that definition.

JOE CARDONE: We would have only been able to charge certain crimes that occurred here in Orleans County whereas the federals could involve things that happened in a multitude of different jurisdictions.

HERB GREENMAN: Always thought it was a shoplifting case. It was not a case that should have been prosecuted federally. I thought it was stupid to do that but that was my opinion.

Herbert Greenman is a criminal defense attorney in  Buffalo, New York. He represented one of the defendants in the case, Donald Griffin.

HERB GREENMAN: This case was the wrong place at the wrong time…

The shoplifting ring was why this case went federal, but racketeering or organized crime wasn’t the only charge.

Donald Griffin, along with Rico Vendetti , Arlene Combs, Albert Parsons and two others were charged in federal court with second-degree murder. Second-degree murder in this case translates to these four people committed the crime that caused Homer Marciniak’s death.

It was what prosecutors call a violent crime in aid of racketeering. Now there is a federal murder statute, but it wasn’t used here. Federal prosecutors charged them with violating New York State Penal Law. Under violent crime in aid of racketeering, federal prosecutors can basically adopt the state law where the violent crime occurred. Yeah, you can do that. Even though Joe Cardone, the local District Attorney you heard from earlier didn’t think he could charge them with murder and get a murder conviction under New York State Law, that didn’t stop federal prosecutors.

So Donald, Rico, Arlene and Albert were charged with second degree murder. They faced federal consequences for a state crime. And those consequences were serious.Under federal law, if convicted of second degree murder, the mandatory sentence is life in prison without the possibility of parole. Life meant life.

HERB GREENMAN: If a jury could find that this act was a link to the causation of the person’s death than that would be sufficient for a jury to find somebody guilty of a homicide. So you can see the standard was pretty low in a case like this because it would be easy for a jury to say, “Well what he did ultimately was the link.” 

Donald admitted to hitting Homer during the break-in, and along with murder he was charged with assault.

Now, the facts of Homer Marciniak’s death didn’t change, just the court system and prosecutors pursuing the case. In building his defense of Donald, Herb, his defense lawyer  struggled with key questions. Did the break-in and assault cause Homer Marciniak’s death, and was it provable beyond a reasonable doubt?

HERB GREENMAN: If Mr. Marciniak had been a healthy man he certainly never would have died from what happened from being sort of slapped in the face. The law is anything but black and white. I’m not a doctor who can look an x-ray and see that the bone is broken. Pretty easy to do that. We don’t have X-rays and the practice of what we have is a lot of subjectivity. There is no right and wrong. What works is what’s right and what doesn’t work is wrong. 

The U.S. Attorney’s office lined up a medical expert willing to testify that the break-in and assault could have caused Homer’s  heart attack. Herb, Donald’s defense attorney was concerned.

HERB GREENMAN: We were very worried that out of this case that there was a potential that a jury would have found him guilty and he was looking at a life sentence. You know, aside from the death penalty, that’s the most serious sentence you can get. There’s nothing more serious. And to think that a young man his age could be spending the rest of his life in jail which is pretty horrific.

So imagine trying to argue this case. Donald admits he hit Homer Marciniak, an elderly man with a bad heart. Homer died 10 hours later.

HERB GREENMAN: It’s not exactly you know a case where the jury is going to be enamored with the people who did it. What I was going to have to do was to humanize my client by giving a lot of background information, as much as I could get in, and to let them know that this was an unfortunate set of circumstances but not a case where he should be punished to the extent that a murder conviction would carry.

If the case went to a jury trial and he was found guilty, the risk was he would be sentenced to life in prison. So, Herb advised Donald to take a plea deal. In fact, all seven defendants took pleas. The case of whether they committed second degree murder never went to trial.

Donald, Rico, Arlene and Parsons each got 20 years in federal prison, admitting guilt to various offenses. Rico and Arlene Combs, the sole female federally charged with second degree murder, admitted guilt to Racketeering. Parsons got 20 years for violent crime in aid of racketeering – assault. But Donald was the only one with second degree murder attached to his sentence.

HERB GREENMAN: I think the shock of it just hit him all of a sudden and he broke down. When we first started talking about it, it did look like that’s what we’re going to do. And for the first time he cried pretty hard and showed his emotions. He had not shown a lot of emotions up until that point. But then he realized a good part of his life was going to be spent in jail. And I think he came to that realization and I think it hurt a lot more than he thought it was going to hurt. 

So, this whole thing started with a break-in to steal a comic book collection, and it ended with a charge of second degree murder  – a charge that was never brought to trial and never proven..

HERB GREENMAN: Do I believe in my heart of hearts that I have a young man serving 20 years in jail who really doesn’t deserve to be in jail for 20 years? Pretty much I do believe that. But you know he was in the federal system, and the federal system is a very difficult, sometimes harsh system of justice. But it is what it is.

Yes, people broke the law. But how much did they break the law and which laws did they break? In this case, it depends who you talk to.

The folks in Medina who knew Homer–and some who  didn’t–believe he was murdered.

VOX: “He died from people robbing his house.” “And then after they robbed him he had that heart attack. That broke my heart. Homer would still be alive.” “You know I understand that he had a heart attack but as far as I’m concerned they still killed him. Every other day he’d be up here walking around. So I mean he was healthy and I’m sure if it hadn’t been for the beating he took he’d be alive today.”

There wasn’t a trial by jury and a unanimous verdict to decide whether or not this was murder. The plea deals potentially rescued the men and woman involved in the crime from a murder charge, and possible conviction and life in prison. Taking the plea deal meant for their role in breaking into Homer’s house and stealing his comic book collection, they would have to give us 20 years of their life to prison.

For Life of the Law, I’m Marylee Williams.



10 Hours to 20 Years was reported and produced by Marylee Williams. Tony Gannon senior produced this episode. Our Post Production Editors are Kirsten Jusewicz-Haidle and Rachael Cain.

Our engineer was Ceil Mueller at KQED Radio in San Francisco.  Music in this episode was composed by David Szetshey, Jazar, the Losers, Blue Dot Sessions, Poddington Bear, and April.

Special thanks to UC Berkeley’s Graduate School of Journalism, Ben Manilla, and editors Anna Sussman, Kara Platoni, and Julie Caine. We had background research from University of Detroit Mercy Law School Associate Dean for Academic Affairs and Associate Professor of Law Richard Broughton. Editorial assistance from Lacy Jane Roberts, Teresa Cotsirilos, and Jennifer Glenfield. Special thanks to Harlan Haskins, Megan Dunbar, and Armin Samii.


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