AUBURN - On the day that Roy “Kip” Brown was officially and finally cleared of Sabina Kulakowski's murder, Cayuga County District Attorney James Vargason said there are a trio of tragedies surrounding the beloved Cayuga County daycare worker's killing.

There is the tragedy of Kulakowski's savage May 1991 murder. Kulakowski was found outside the Blanchard Road, Aurelius, farmhouse she lived in with bite, strangulation and stab wounds marring her body after firefighters had quelled a fire at the farmhouse.

There was the incarceration of a man who vociferously maintained his innocence from the beginning of the murder investigation through his liberation in January after 15 years in a maximum-security state prison.

“I can honestly say I regret that very much,” Vargason told Brown during a hearing Monday as Brown leaned forward to hear the recantation of the prosecutor who convicted him at trial.

And there as the fact that the most viable suspect in Kulakowski's murder, Barry Bench, committed suicide in 2003 by laying down in front of an Amtrak train.

“God have mercy on his soul,” Brown said during a press conference following the dismissal of Cayuga County indictment No. 91-46 by Cayuga County Surrogate Judge Mark Fandrich because he decided the evidence now available would not lead to Brown's conviction during a new trial.

“I hope you are able to put your life together as best you can,” Fandrich said. “I hope you are able to conquer your disease.”

Brown, stick-thin and with sallow skin, is in poor health because of hepatitis C and advanced cirrhosis of his liver.

Brown wore a leather jacket, black pants and a black T-shirt that read, “Not guilty.”

“If you're not in a cage, you're alive,” Brown said.

Brown was freed from a 25-year-to-life sentence following a court appearance in January because more sensitive DNA testing found the profile of Barry Bench, the brother of Kulakowski's estranged boyfriend, Ronald, on a red shirt reading “Bonjour y'all New Orleans.”

The shirt, found 150 feet from Kulakowski's body, is believed to have been worn by her the night of her killing.

But while Brown is rightfully cleared of Kulakowski's killing and there is nothing that supports the theory that Brown and Bench killed her together, Vargason said, investigations have not developed enough information to explain how Bench could have come to commit such savagery.

What is known is that on the night of the murder, Bench had a domestic incident around 5 p.m. with his common-law wife, Tamara Heisner Eckstadt.

According to affidavits Bench and Eckstadt gave in 1991, Bench took his clothes and went to Jake's Tavern where he had five 12-ounce Budweisers. Then Bench met Heisner at the local firehouse after he drove by their home while blowing his horn. The two made up at the firehouse and went to bed until being awaken at 3:30 a.m. by repeated telephone calls from Cayuga County fire dispatcher Michael Besner about the fire.

During the recent reinvestigation of the murder, Kevin Connelly, a fellow patron at Jake's Tavern, said in a Dec. 28 statement, that he and Bench had been the only patrons at the bar, that Bench was acting strange and that Bench left the bar at midnight, a half-hour or earlier than Bench told investigators.

“He seemed angry about woman, or at least his old lady, that is what he called her. He banged his hand on the bar, and his beer bottle while he talked. He seemed hyper. I knew Barry to be hyper anyway but more so that night,” Connelly said in the statement.

Eckstadt said in a Dec. 27, 2006, interview with Cayuga County Sheriff's Detective Brian Schenck, that Bench was alcoholic, abusive and bit her 10 to 12 times over the years.

“He started biting me two to three years into our relationship and stopped at the time of Sabina's death,” Eckstadt said in her statement.

She said in the interview that he may have gone to the farmhouse to have a place to crash because he was the black sheep in his family and not free to go to any of his relatives or to discuss the real estate transfer of the farm that was owned by his brother, Ronald.

In an e-mail sent to Vargason in the early hours of Christmas 2006, Tamara Eckstadt wrote that, “To Barry, alcohol and sex went hand-in-hand. So figuring he wouldn't be getting anything from me that night, he may have well expected it from Sabina, or intended to take it from Sabina. I'm sure Sabina fought with everything she had. Barry would've bitten her to subdue her (usually for sex, from my own experience). It worked to subdue me many times as it was shockingly painful. One bite subdued me, but it may have taken several tries on Sabina before he gave up. I doubt that Sabina would've given in under any circumstance. I believe that Barry may have killed her just trying to subdue her during the fight. At this point, I don't even believe he had a motive because I don't believe he intentionally killed her.”

Eckstadt was scheduled to take a polygraph the day after a second interview with Schenck on Jan. 18, but she called to cancel because she wanted to consult an attorney first, according to the papers Vargason filed Monday in the case.

On Jan. 29, Eckstadt's attorney, Katy Karlovitz, who also represented Brown during his years of appeals, told Schenck she would not make any more statements.

“Indeed if Roy Brown is innocent, as the newly discovered evidence suggests, then the People believe Tamara Heisner-Eckstadt held the keys to his freedom for almost 16 years,” Vargason wrote. “If Barry Bench set the house afire and committed the murder, the People believe it would have been impossible for Ms. Heisner not to have seen, heard, or otherwise observed something consistent with those crimes when he returned that night. What was his demeanor? Did he smell of smoke? Did he conceal or destroy evidence (i.e is that why he washed his hands at the firehouse, as Ms. Eckstadt recounted in her statement)? Did he make admissions? Specifically, did Bench admit to doing what Ms. Eckstadt ‘theorizes' he did in her e-mail? We will never know. If Ms. Eckstadt knows, she has never told this office or the police, and it appears that she never will.”

But to the minds of Brown's attorneys, the greatest concerns in their client's case is the alleged misconduct.

On the other hand, former Cayuga County District Attorney Paul Carbonaro said he still believed much of the case against Brown was strong.

“Essentially, to release Roy Brown was the court's decision. I certainly would have no disagreement with that,” Carbonaro said. “I am somewhat surprised at Mr. Vargason's decision to not let a jury decide his guilt or innocence.”

In papers Brown's attorneys filed Monday, they included a letter sent March 2 from Dr. Lowell Levine, a forensic dentist who works with the New York State Police Forensic Investigation Center, that he could exclude Brown having caused the bitemarks on Kulakowski's body.

Brown, who has dentures now, is missing two front incisors just to the left and right of his two front teeth. Levine said that based upon wax examples he took of models taken of Brown's dentition in 1991, that he could not have made the bitemarks. Levine was consulted initially by Carbonaro and was used by Vargason to compare Bench's dental records, photographs of Bench and three jaw fragments with 10 teeth obtained when Bench's body was exhumed from a cemetery in Victory to the bitemark wounds.

Peter Neufeld, one of Brown's attorneys and co-director of the non-profit Innocence Project law clinic, also says Brown's original trial lawyer, James McGraw, should have received Levine's handwritten notes when he was consulted by Carbonaro and that Carbonaro dismissed using Levine because he contradicted the viability of Brown as a suspect.

“Why did Mr. Carbonaro instead of saying, ‘My God, the foremost forensic odontologist says this evidence is an exclusion, not an inclusion, maybe I should go relook at this case, maybe I should find somebody else,' why did he instead tell Dr. Lowell Levine, ‘Don't write a report'?” Neufeld said.

“You can't frame anybody more than that,” Brown said. “You take something that shows they didn't do it; you slip it under the rug, and say ‘I'm not going to use that. I'm going to call the local dentist here and fix my paperwork up for me, come in here and testify in court as the people's expert witness.'”

But Carbonaro maintains that the information about Levine's opinion was available to Brown's lawyers; that they were given the green light to talk to him and that they could have called Levine to the stand.

He also said that Levine's opinion was preliminary when he consulted with him.

Brown became a suspect in Kulakowski's murder because of the bitemark evidence, evidence that Brown had threatened the lives of county workers more than once over his children's custody, that he had violently bitten women he was involved with and that he was released from Cayuga County Jail May 17, 1991, days before Kulakowski was killed.

Vargason said that once that it was clear that Brown was not the biter, and therefore, the killer of Kulakowski, the indictment could not stand.

But he said it would have been a “colossal error in professional judgment not to question and not to focus on him.”

“The sheriff's department considered Brown a suspect (from day one),” Vargason added. “There was nothing malevolent about that. He made himself a suspect. It would have been irresponsible of the sheriff's office not to look at him.”

Neufeld also said that a jailhouse informant, Gordon Wiggins, was not thoroughly vetted and that such testimony is only used in weak criminal cases.

Carbonaro counters that prosecutors must take witnesses as they come.

Previously, Neufeld also argued that then DA investigator Peter Pinckney discounted concerns expressed by Besner, the Cayuga County fire dispatcher working the night of Kulakowski's killing, about Bench's behavior.

Neufeld continues to call for a non-partisan “innocence” commission to deconstruct wrongful criminal investigations. He is pleased the legislation has been introduced to create such a commission.

Brown is the eighth New York defendant to be exonerated in a little over a year, according to the Innocence Project.

“You have to all be concerned with this matter not just because of what happened to Roy Brown. But because if prosecutors and police continue to do what they did to Roy Brown, they'll continue to do it to your brothers and to your fathers,” Neufeld said.

But Vargason said the criminal justice system is not broken.

“It's the best in the world. That doesn't mean that it's perfect,” Vargason said. “I can tell you our system of justice that convicted him also freed him.”

Amid the swirl of media and public interest in Brown's case, the death of a woman is lost, Carbonaro said.

“I am deeply disappointed for Sabina Kulakowski,” Carbonaro said.

“The fact that this happened at all. As the balance goes she is the victim here. She is the one who died in a horrible, horrible way. I think everyone has lost focus of that.”

Staff writer Amaris Elliott-Engel can be reached at 253-5311 ext. 282 or at amaris.elliot-engel@lee.net

Investigation reopened

Sabina Kulakowski's murder is once again the subject of an open homicide investigation.

The Cayuga County Sheriff's Office is still seeking help from the public with its ongoing investigation.�

A witness, interviewed in 1991, reported driving by Kulakowski's residence on Blanchard Road in Aurelius around the time of the murder and observing a light-colored Dodge Aries K car parked on the road near the home. The witness described it as gray or another light color. Authorities believe the car was of a 1980s vintage. Anyone that may recall a vehicle matching this description associated with Kulakowski or murder suspect Barry Bench is asked to call Detective Brian Schenck at 253-3545.

Anyone who knew Barry Bench, his girlfriends or his associates in the late 1980s or early 1990s is also asked to call Schenck.

Timeline

May 23, 1991: Sabina Kulakowski was found murdered when firefighters responded to a blaze at her Blanchard Road, Aurelius, farmhouse.

Jan. 23, 1992: Roy Brown is convicted of her murder. He was sentenced to 25 years to life. Brown - who never stops maintaining his innocence - tries several times, without success, to appeal his conviction.

Dec. 24, 2003: After obtaining affidavits that reference strange behavior by Barry Bench the night of Kulakowski's death, Brown mails a letter to Bench urging him to confess.

Dec. 29, 2003: Bench commits suicide within a few days by laying in front of an Amtrak train.

April 27, 2006: Cayuga County Judge Peter Corning orders the testing of two cotton swabs and their vials taken from bite marks on Kulakowski's body.

June 6, 2006: No discernible DNA profile is found from the samples.

Aug. 23, 2006: District Attorney James Vargason agrees to further DNA testing of vaginal smear slides, fingernail clippings and the red nightshirt.

Sept. 8, 2006: Corning orders the retrieval and the testing of all of the items.

Nov. 16, 2006: Testing by the New York State Police Forensic Investigation Center finds low levels of DNA from more than one individual on the nightshirt. The DNA profile of an unknown male, “John Doe,” is found on the nightshirt but there are other alleles that could have originated from others. Nothing is found from the vaginal smear slides or fingernail clippings besides Kulakowski's DNA.

Dec. 6, 2006: Test results are submitted from Brown's attorneys indicating a match between Barry Bench's daughter Katherine Eckstadt's DNA sample and the NYSP's “John Doe” profile.

Dec. 21, 2006: Corning says that further evidence must be presented and reserved ruling on the motion to vacate Brown's conviction.

Jan. 23, 2007: Following further investigation by the Cayuga County District Attorney's Office and Sheriff's Office, including finding a DNA match between Barry Bench's exhumed body and the John Doe DNA profile on the nightshirt, Cayuga County Surrogate Court Judge Mark Fandrich orders that Brown's murder conviction be vacated and Brown released.