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Oct 28, 2009 12:18 PMPublication: The Southampton Press

Proving Oddone's intentions will be burden of prosecution

Oct 28, 2009 12:18 PM

At the start of her opening statement in the murder trial of Anthony Oddone, Assistant District Attorney Denise Merrifield said that the prosecution would prove to the jury that the defendant, who choked Andrew Reister resulting in his death, in a Southampton bar last summer, intended to kill his victim when he wrapped his arms around the man’s neck.

Her assertion was the all-important first step in the case she will mount in the month-long trial now underway.

When he was arraigned in county court in August 2008, Mr. Oddone was charged with two separate counts of murder in the second degree: one accusing him of intentionally killing Mr. Reister, the other of showing a “depraved indifference” for human life resulting in his death. State law requires that the prosecution choose one of the two charges to argue at trial, rather than leaving it to the jury to decide between the two. Each count carries a maximum sentence of 25 years to life in prison, but each presents the prosecution with a different set of legal challenges and pitfalls in satisfying the burden of proof.

By opting to pursue the count alleging an intentional killing, Ms. Merrifield said the prosecution is not claiming that Mr. Oddone, 26, went to the Southampton Publick House on the night of August 6, 2008, looking to kill Mr. Reister. Rather, she said she will show that once Mr. Oddone and Mr. Reister had started to struggle—after Mr. Oddone rebuffed an order by Mr. Reister to stop dancing on a table—and Mr. Oddone had gotten his arms around the bouncer’s neck, that he held the chokehold on Mr. Reister even after he had stopped resisting and, witnesses said, clearly had fallen unconscious, showing an intent to kill him.

To prove the charge, two veteran defense attorneys said this week, Ms. Merrifield will have to prove that Mr. Oddone must have known that he was killing Mr. Reister as he choked him for what witnesses have claimed was anywhere between 45 seconds and three or four minutes.

“[The prosecution] will look to prove intent by showing what the defendant’s conduct was after the fight started and that the obvious and necessary consequences of those actions would have to have been the death of a person, and that the defendant was aware of that,” said John Carman, a former Suffolk County assistant district attorney, now a private defense attorney in Nassau County. “The problem is, consequences are not always obvious and necessary when you have circumstances that color it in the chaos of a bar fight. Then you also have a level of aggression on the part of the decedent. And you have a lot of drunk witnesses.”

Mr. Reister, early witnesses in the trial have said, shoved Mr. Oddone off the low table he was dancing atop. The defense will seize on that initiation of physical contact by the much larger man—Mr. Reister is said to have been 6 feet 4 inches and weighed 250 pounds, Mr. Oddone 6 feet 1 inch and 180 pounds—in claiming that Mr. Oddone was only defending himself, and that his judgment of the amount of force he was using was clouded by the fear that the larger man would hurt him if released, attorneys said.

“The defense will argue extreme emotional distress, and that it was self-defense,” said Dennis Lemke, a defense attorney for 18 years. “For the prosecution, it will be a matter of showing his mindset. Pulling the trigger on a gun takes a half second, choking someone to death can take a matter of minutes. She will say that actions speak louder than words. If you’ve got him in a chokehold and, at some point, the guy stops resisting, then he becomes unconscious, with people yelling at him, ‘Stop, stop, stop!’ and he doesn’t stop, he is finishing him off. That’s what she’ll say.”

Mr. Carman said the pandemonium in the bar, the physical attempts to stop Mr. Oddone’s attack—including blows to his head, according to eyewitness testimony—and the clouded thought process of a person in stressful situation will be difficult obstacles for Ms. Merrifield to overcome in proving that Mr. Oddone, at some point, made a conscious decision to kill Mr. Reister.

“You need specific intent—the jury needs to be able to conclude that his intention was to kill him, not just subdue him,” Mr. Carman said. “How does she meet her burden? I think it’s tough in this case. It sounds as though this thing got out of control very quickly. With adrenaline going ... a person who, if you let go, could turn the tables on you in a flash ... it’s not difficult to show a jury how he might not have realized what he was doing.”

Mr. Carman said that if the jury is not convinced Mr. Oddone actually knew he was killing Mr. Reister and intended to do so, they might turn to the lesser charge of first-degree manslaughter, which he said is likely to be introduced as an alternative at some point before the jury goes into deliberations. Manslaughter carries a penalty of up to 10 years in prison.

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I think there's a good chance that Mr. Oddone will kill someone else in a fit of rage if released.
By Sam (252), Westhampton Beach on Oct 28, 09 2:45 PM
The witnesses say that Andrew turned away...and Oddone jumped on his back. Self dense????? I don't think so!! Obviously Oddone wanted to continue fighting... sounds like he has rage issues. Murder2! He is not safe to be loose in society.
By AnonymousSgh (183), Sag Harbor on Oct 28, 09 2:58 PM
1 member liked this comment
Unfortunately I think Oddone will get the lesser charge. I hope not but I have little faith in our legal sytem
By razza5350 (1911), East Hampton on Oct 28, 09 6:21 PM
anonymousSgh....i dont know if u have been at the trial but only one witness said that....many other witnesses have said that oddone was pushed off the bar by the bouncer. i pray for the reister family during there difficult time and for my friend tony
By friend of tony (9), ronkonkoma on Oct 28, 09 10:00 PM
bar? Don't start rumors......
By AnonymousSgh (183), Sag Harbor on Oct 28, 09 11:03 PM
anonymousSgh....i dont know if u have been at the trial but only one witness said that....many other witnesses have said that oddone was pushed off the bar by the bouncer. i pray for the reister family during there difficult time and for my friend tony
By friend of tony (9), ronkonkoma on Oct 28, 09 10:00 PM
I will pray for the Reister family and I am going to add the jury to my pray list.
By Disgusted (45), Sag Harbor on Oct 28, 09 10:40 PM
Its really a stretch to accept the arguement that Oddone believed his LIFE was in danger. Even if you believe the story Oddone was pushed. Okay fine, he was pushed. He was pushed hard lets say. He was cursed at lets say. One of these articles makes a good point that the use of DEADLY force when defending yourself is only acceptable when you fear for your life, when you fear you may be killed first. Is there really any signs, evidence, testimony, etc that the bouncer was going to KILL Mr. Oddone??? ...more
By Sam (252), Westhampton Beach on Oct 29, 09 8:25 AM
2 members liked this comment
Friend of Tony: Have you ever been to the Publick House? The tables or as you are calling it bar is in the seating area and are no higher then thigh high, so please stop trying to make it sound as if he was pushed off a bar and had a distance to fall. Couls you tell me I heard and do not want to spread or create rumors but did mr. Oddone serve in our military?
By MACK (50), Southampton on Oct 29, 09 8:38 AM
The second Mr.Reisters bodywent limp and his arms fell to his side is when humanity was gone and animalistic behavior emerged.To hold on long after that requires derangement.
By STANNER (15), SOUTHAMPTON on Oct 29, 09 12:09 PM
3 members liked this comment
The reporting on a flash point crime like this continues to be both sporadic and superficial. What is this article about??? U quote some guy who wasn't there to say all these witnesses were wrong because time is always shorter. Huh??? How about a reporter who goes to the trial, takes notes, writes articles based on these notes and puts the 911 calls on the web. I know u are the only game in town with Jerry up McGintees butt and Hamptons.com becoming a lifestyle site but come on. It is 2009 ...more
By HB 4 Life (72), Hampton Bays on Oct 30, 09 9:53 AM
i agree, the reporting on this case is very lackluster.
By slamminsammy (104), East Moriches on Oct 30, 09 4:06 PM
Thank you Michael for the fine reporting. We look forward to your next update on the trial this week.
By PBR (4956), Southampton on Oct 30, 09 8:29 PM
The whole thing is horrable. But I do agree with Sam, Oddone has an anger issue and would be very dangerous if allowed on the streets again. I for one if he sat next to me in a restaraunt or anywhere else will get up and leave. Who will be his next victim? Girlfriend or someone who looks at him funny. Whether they prove it was intentional or not, he cant be trusted. He needs a lobotomy.
By North Sea Citizen (568), North Sea on Oct 31, 09 7:27 AM
More crack reporting from the slowest newsroom in the nation. Who cares if this newspaper is a weekly, the internet is a daily at the very least and if the Press doesn't want to update somebody else will come along and put this out of touch liberal bastion to the scrap heap where it belongs.
By HB 4 Life (72), Hampton Bays on Nov 4, 09 10:25 AM