Attorneys divided on whether accused Linda Stein killer should testify

By Sean Gardiner | February 12, 2010 07:44PM

With the prosecution’s case against celebrity real estate broker Linda Stein’s personal assistant winding down, lawyers for accused murderer Natavia Lowery will soon have to make the ultimate defense call; whether to have her testify or not.

The trial will start its fourth week Tuesday after a four-day hiatus caused by presidential holidays sandwiching a weekend.

So far some of the evidence produced against Lowery, who is charged with Stein’s Oct. 30, 2007 murder and grand larceny, has included bank and credit card records detailing more than $30,000 of theft. There has been testimony that the 28-year-old Lowery answered Stein’s cell phone and told people the broker was out when video revealed Stein, 62, hadn’t left the building the day she was killed. And then there were Lowery’s written and videotaped confessions to the murder.

In fact, Lowery thought things were going so poorly for her last week that she asked the judge if she could change her attorneys, who by then she was no longer speaking to. When that request was denied, Lowery’s supporters in the audience screamed at the judge and several of them were removed or left the courtroom.

The Manhattan district attorney’s office declined to discuss the case and Lowery’s attorneys’ office was closed today and they couldn’t be reached for comment. So The Real Deal instead asked three of the city’s most experienced criminal defense attorneys what they would if they were in the position of Lowery’s attorneys.

“Obviously she’s got to testify,” said Jeffrey Lichtman, who gained an acquittal for mobster John Gotti Jr. among others. “It’s the worst case I’ve ever seen. [The prosecution has] a mountain of evidence, an air-tight, believable confession and the defense hasn’t laid a glove on any of the witnesses. At this point, her only recourse is to testify. She’ll do that and she’ll lose and she’ll go to jail for the rest of her life.”

Last week during a homicide trial, William Flack, a former Bronx prosecutor who is now a defense attorney, advised his client not to take the stand and won an acquittal. “Without knowing the case from the inside” and getting a chance to conduct a mock cross examination of Lowery to see how she would stand up, Flack said it’s impossible to say if she should testify or not. But, he said, “generally it’s usually not a good idea to have your client testify.”

Flack, whose most recent high-profile defense was that of “Sopranos” actor Lillo Brancato’s cohort in the murder of an off-duty Bronx police officer, said the intensity and pressure of taking the stand in your own defense, especially if you’re facing substantial time, is too overwhelming for most people. When that happens, he said, “even a truthful person can be made to look like a liar.”

Dino Lombardi, a former prosecutor in Brooklyn and Queens who is now a defense attorney, said Lowery’s taking the stand will depend upon what her attorneys are hoping to achieve.

If they believe she’s going to be convicted, her testimony might help mitigate her charges.

“You might put her on hoping that she comes off as sympathetic and the jury convicts her of manslaughter instead of murder,” said Lombardi, who once gained an acquittal in a double murder despite the fact that the wallet of his client was found in the backseat of the slain couple’s crashed car. “If she gets up there and says, ‘I hit her but I didn’t mean to kill her’ or something like [that], it might be worth it. But when you’re talking about repeated blows, with great force and heavy blunt trauma, then that’s probably not going to work.”

Lombardi also said that Lowery’s confessions are the most damning evidence against her. Right now her attorneys can try to attack the confessions by claiming the police coerced her to give false confessions after hours of interrogation. But if they put Lowery on the stand, the jurors’ focus on who is or isn’t telling the truth shifts squarely on Lowery. And she has a lot to explain.

“Trying to show that the confessions were false or unreliable is a tough sell to begin with,” Lombardi said. “But I don’t see how she could go up there and explain those confessions and all that evidence away. Not when she’s going to be questioned by an experienced prosecutor. “

Another thing that Lowery will have to explain if she testifies is why she turned her pants inside out after visiting Stein on the day of the murder, as pictures in today’s New York Post reveal. Pictures from the security cameras in Stein’s Upper East Side apartment on the day of the murder show Lowery entering wearing her pants normally and exiting with them turned inside out. Up until now, Lowery’s attorneys had leaned heavily upon the fact that, despite Stein being brutally bludgeoned to death, in the security pictures no blood is visible on her clothing.

“That’s the last nail in the coffin,” Lichtman said. “She did everything she could to try to hide it, meanwhile all she did was leave more evidence. She’s going down whether she takes the stand or not.”