NEW YORK (CBSNewYork/AP) — The doctor was murdered in the middle of a bustling park on a sunny October day in front of his 4-year-old daughter, shot in the back by a man cloaked in black. His estranged wife, Dr. Mazoltuf Borukhova, was there, trying to help as he lay bleeding.
Borukhova was later convicted of hiring her distant cousin to gun down her husband amid a rancorous custody battle and sentenced to life without parole. Her trial was marked by tearful family feuds, religious beliefs that kept the Ukrainian Jews from holding trial on the Sabbath — and a judge’s impending vacation.
A state appeals panel must now decide whether to throw out her conviction after her celebrity lawyer’s argument that the presiding judge pushed the trial to a conclusion so he could go on his tropical trip.
Alan Dershowitz, who argued the case in front of the panel recently, said Queens justice Robert Hanophy rushed the 2009 case, pressuring attorneys and the jury, so he could make his March 17 getaway.
“He should’ve canceled his vacation plans,” Dershowitz argued. “This is a murder case. … You don’t make decisions based on sipping pina coladas.”
Dershowitz, who has also defended Leona Helmsley, O.J. Simpson and Patricia Hearst, stepped in to argue the case, in part because Borukhova’s trial attorney argued he wasn’t treated fairly by the judge.
Overturning a jury verdict, especially in a first-degree murder trial, is rare but not unheard of. But the complicated case deserves a new trial because it was rife with hearsay and presided over by a judge who acted wrongly, Dershowitz argued.
Donna Aldea, a prosecutor in the Queens district attorney’s office who helped try the case and argued the appeal, disagreed. She said that the verdict was rightly reached by a keen jury, and that the judge’s personal plans had nothing to do with it.
Hanophy retired a few months ago; telephone calls for this article made to home numbers listed in his name weren’t answered.
The story really begins before Daniel Malakov was shot to death on Oct. 28, 2007. It starts with a divorce and bitter custody battle.
The victim and his wife belonged to an insular community of Bukharian Jews from the former Soviet republic of Uzbekistan, and New York is home to the largest Bukharian population in the United States. They had much in common: Both had immigrated to the U.S. and were successful, she an internist, he an orthodontist.
Their marriage did not last long, and Borukhova did not make the divorce or custody proceedings easy — she fought her husband, claimed he was abusive, and was often difficult during supervised visits with their only child, Michelle, according to court documents. It culminated in a ruling by a family court judge giving Daniel custody of Michelle.
He referred to the “torturous history of the relationship” between the two and praised Daniel’s efforts to bond with his daughter, which he contrasted with Mazoltuv’s “interference or overbearing, or for lack of a better word, smothering of this child.”
The ruling was read aloud during the seven-week trial by Michelle’s legal advocate. Dershowitz argued on appeal that the reading biased the jury.
When Michelle was turned over to Malakov, Borukhova taped the event, which was also played for a jury. It showed a shrieking, inconsolable child being pried from her mother’s arms.
The custody battle was the last straw, prosecutors argued.
“He took my child. It’s already been decided. His days are numbered,” Borukhova said, according to prosecutors.
She hired her distant cousin, Mikhail Mallayev, to kill Daniel. They exchanged no fewer than 90 calls in the days before the murder. He was paid $20,000 for the job, a jury found.
The case was lengthy partly because the defendants observed the Sabbath, so court was not held on Fridays. Borukhova testified in her own defense at the last minute — a move that irritated the judge, Dershowitz argued. He punished the defense attorney by giving him little time to prepare a closing statement, while allowing prosecutors the weekend to work, he said.
The result was a sloppy mess by an attorney known for precision and professionalism, Dershowitz argued.
Queens prosecutor Donna Aldea disagreed, calling the argument “eloquent,” and said his statements that he didn’t get enough sleep and was making mistakes was a ploy to get sympathy from the jury.
During the trial, the courtroom was packed; the two families sat separated. A court officer led them in and out, single file. There were often loud outbursts and wails from both sides. Some murmured Scripture. Others wept.
During the appeal, they came together again: Sofia, Borukhova’s curly-haired sister, who was never charged but believed to have been involved in the plot, and Gavriel, Malakov’s lithe brother who has custody of Michelle, now 7. He wore a button with Daniel Malakov’s picture.
Daniel’s father, Khaika Malakov, was optimistic that his former daughter-in-law would remain behind bars. But he worried, still.
“Nothing can bring my son back,” he said. “It is always sadness for me.”
Both Borukhova, 36, and Mallayev, 53, are serving life in prison without parole. Borukhova was assigned to Bedford Hills Correctional Facility in Westchester County, the state’s only maximum-security prison for women.
Mallayev is serving his time at the Clinton Correctional Facility near the Canadian border. He has filed a notice that he would appeal his conviction but he has not filed papers. The outcome of his case will likely be affected by hers.
Michelle visits her mother in prison about once a month. The custody battle over her continues.
(TM and Copyright 2011 CBS Radio Inc. and its relevant subsidiaries. CBS RADIO and EYE Logo TM and Copyright 2011 CBS Broadcasting Inc. Used under license. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.)