The 2009 conviction of a Queens doctor for hiring a relative to fatally shoot her husband outside a Queens playground was marred by hearsay and a distracted judge who wanted to get to a tropical vacation, the celebrity lawyer Alan M. Dershowitz argued in an appellate hearing on Wednesday.
Mr. Dershowitz, a Harvard law professor who has represented O. J. Simpson and Patricia Hearst, told a four-judge panel that his client, Mazoltuv Borukhova, was the victim of a judge who rushed the proceeding, and that there was no direct evidence that Ms. Borukhova paid a hit man, a key part of her conviction of first-degree murder.
“You don’t make a decision that will affect people’s lives because you want to be sipping a piña colada,” Mr. Dershowitz complained, adding that the hurried pace prompted Dr. Borukhova’s original lawyer, Stephen P. Scaring, to deliver “a terrible closing argument” during which he lost his place and train of thought.
Justice Robert J. Hanophy of State Supreme Court, who presided over the trial, declined through a spokesman to comment. But Donna Aldea, the assistant district attorney defending the conviction, said the judge’s push for speed was motivated not by his vacation later that month but to prevent exhausted members of the jury from resigning; she also described Mr. Scaring’s closing as “eloquent.”
The hearing on Wednesday returned to the spotlight a dark tale combining religion and vengeance that had riveted the news media and legal journals. The trial, which unfolded over seven months in a Queens courtroom, had provided a rare window into the previously obscure close-knit Bukharian Jewish community, where Dr. Borukhova and her husband, Dr. Daniel Malakov, an orthodontist, were respected as embodiments of immigrants-made-good until their relationship turned deadly.
Dr. Malakov was shot and killed execution-style as he stood with his 4-year-old daughter, Michelle, at a playground in Forest Hills in October 2007. He and Dr. Borukhova had been embroiled in a long child-custody battle, and Dr. Borukhova was in the park the day Dr. Malakov was killed. She and a cousin, Mikhail Mallayev, who prosecutors said pulled the trigger, were both convicted of first-degree murder and sentenced to life in prison.
Dr. Borukhova’s brother, mother and three sisters attended the appellate hearing on Wednesday, staring blankly ahead as Mr. Dershowitz made his arguments. Dr. Malakov’s family sat in another row, with photos of him pinned to their chests.
Mr. Dershowitz’s argument — lasting about 35 minutes in a rapid-fire Brooklyn-style oratory that has engaged and in some cases enraged countless judges and juries — was emphatic.
How was it, he asked, that Justice Hanophy forced defense lawyers to cram overnight to deliver closing arguments, while prosecutors had the whole weekend to prepare theirs? He complained that Dr. Borukhova had not been allowed to answer any question that began with “why,” including why she bought a hidden tape recorder ahead of the murder and obsessively recorded private conversations.
And he insisted that there was no definitive money trail linking his client to the murder.
Beyond the vacation, Mr. Dershowitz also complained repeatedly that Justice Hanophy had allowed hearsay to intrude in the trial, including a conversation in which Dr. Borukhova’s sister Sofia was purported to have warned Dr. Malakov’s father, Khaika, that his son would be killed if he did not return Dr. Malakov’s daughter, Michelle, to her mother, Dr. Borukhova.
Ms. Aldea, the prosecutor, insisted that the conversation was relevant, and was part of an elaborate plan, concocted by Dr. Borukhova, to scare Dr. Malakov into bringing his daughter to the park and set him up for murder.
And she said the trial had proved Dr. Borukhova’s close association with the gunman, Mr. Mallayev, citing evidence that they had called each other no fewer than 90 times in the days leading up to the murder, after she learned she was losing custody of her daughter to her husband.
“It is not required that if you hire someone to murder your husband that you pay with a check,” Ms. Aldea told the appellate judges. “People can have that money under the mattress.”
Dr. Borukhova, who is being held at the Bedford state women’s prison in Westchester County, did not attend the hearing.
Nathan Dershowitz, Mr. Dershowitz’s younger brother and the main author of the appellate brief, said he had recently visited their client in prison, where she was finding solace in the Talmud, rabbinical texts and frequent prayer. He said she received regular visits from family, including her daughter.
Speaking outside the courthouse after the proceedings, Khaika Malakov said he was confident that his former daughter-in-law would spend the rest of her life behind bars.
“Nothing will be changed,” he said. “She is guilty. She must pay for her crimes. I lost my son and nothing can bring him back.”
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