The judge who presided when a jury found nurse Ann Marie Truscio guilty of injecting 13 patients with insulin overdoses, one of which allegedly killed a man, has again rejected a motion to cancel her conviction.
Erie County District Attorney Frank A. Sedita III claims the case is over, because Truscio's lawyer allegedly missed a deadline to appeal the ruling by Wyoming County Judge Mark H. Dadd.
Truscio's attorney, retired State Court of Appeals Justice George Bundy Smith Jr., said Sedita is wrong and the appeal deadline has been met.
Dadd, in a ruling dated April 4 but not stamped by a Niagara County Court clerk until April 30, brushed aside Smith's arguments for vacating the jury's verdict that Truscio was guilty of one count of criminally negligent homicide and 12 counts of first-degree assault.
Truscio, 53, of Lockport, served 10 years in prison and is on parole until 2015. She maintains she is innocent and that there were numerous legal flaws in her trial.
Truscio was charged with murder and manslaughter in connection with the 1988 death of Edwin Klein, 74, in Niagara Falls Memorial Medical Center.
In 1995, a jury rejected those charges but found Truscio guilty of criminally negligent homicide and of assault for insulin injections in 12 other patients that year.
Because of conflicts of interest, the case ended up being prosecuted by Thomas P. Franczyk, then an Erie County assistant district attorney and now a judge.
Truscio's trial counsel was the late Dennis P. O'Keefe, a former assistant U.S. attorney who admitted at Truscio's sentencing that he wasn't up to speed on some of the legal differences in rules of evidence between federal and New York courts.
Dadd, as he did in 2005, when other attorneys representing Truscio tried to get him to vacate the convictions, rejected the effort without holding a hearing or oral arguments.
"The court sees no reason to depart from its prior holding," Dadd wrote.
Truscio said in an email to The Buffalo News that she wasn't surprised by Dadd's ruling, but Dadd's court was expected all along to be only the first stop on a tour through the appellate courts.
Sedita, however, said Friday he thinks Truscio is going nowhere because Smith allegedly missed a deadline to file a notice of appeal within 30 days.
Donna A. Milling, chief of Sedita's appeals bureau, said Smith had to make that filing within 30 days of May 10, when Milling said she served him with a copy of Dadd's order.
But Smith said he never received Dadd's opinion until June 10, so the clock didn't start ticking until then.
"Within a week, I filed a notice of appeal," Smith said. "[Sedita] is absolutely incorrect."
Smith said Franczyk misled the jury on the cause of Klein's death -- the original death certificate listed natural causes and was altered later -- and didn't turn over information to the defense that Smith believes he should have.
Among those items was the fact that two other nurses were fired by the medical center about the same time as Truscio after being questioned by police, and that Truscio was absolved by police from any connection with starting a fire at a nursing home where she previously worked.
"Any one of those things is enough to vacate that conviction, and, I contend, get Ann Marie Truscio completely off the hook," Smith said.