Harborite Cleared After Long Trial

by Rick Murphy | October 10, 1996

A Sag Harbor man and the company he worked for were cleared of wrongdoing Friday after a two-week trial in County Criminal Court, by a jury that found they were not responsible for the death by carbon monoxide poisoning of the tennis great Vitas Gerulaitis.

Bartholomew Torpey and East End Pools Inc., which is owned by Hank Katz, a physical education teacher at Pierson High School, still face a civil suit brought by the Gerulaitis family.

Mr. Torpey, beaming but subdued, said softly that he was "very happy, and glad it's finally over" to a contingent of TV cameras and reporters, and quickly left the building.

"We never felt we were responsible," said Mr. Katz, a resident of Southampton.

"Scapegoats"?

The defense attorneys, John O'Brien and David Clayton, had suggested the accused were "scapegoats." Not a single defense witness was called; instead, Mr. O'Brien and Mr. Clayton successfully shot holes in the testimony of prosecution witnesses.

They maintained their clients had been arrested to short-circuit a probe that might have targeted Martin Raynes, the millionaire Southampton homeowner on whose estate the tennis star died. Prosecutors said afterward, however, that they still believed the charges were warranted.

The Suffolk District Attorney and police investigators determined lethal carbon monoxide had escaped from a faulty pool heater in the basement of the pool house into the room where Mr. Gerulaitis was sleeping. Mr. Torpey and East End Pools were accused of installing the heater improperly.

Faulty Venting

Mr. Raynes, a high-profile Manhattan real estate executive, is married to Patti Davis, the daughter of Marvin Davis, the Texas oil mogul. He owns the Meadow Lane estate with his mother, Beatrice Raynes.

Both, along with the defendants in the criminal proceeding, have been named in the $63 million wrongful-death suit filed by the Gerulaitis family. So has Teledyne Laars Inc., the manufacturer of the pool heater, and Synergy Gas, which has an office in Southampton.

Testimony during last week's trial revealed that Mr. Torpey installed the pool heater in April 1995, and that it had been vented improperly.

The defense argued that the pool house in which Mr. Gerulaitis died, on Sept. 18, 1995, had been used by guests all summer, and that a Teledyne Laars technician had worked on the heater just three days before the tennis star arrived at the estate.

Pipe Was Pivotal

The jury chose to focus on a pivotal venting pipe. Mr. Torpey installed the pipe, agreed Mr. O'Brien, but did not afterward cut it the 12 inches or so that allowed a basement door to close properly. The prosecutor, Edward Heilig, maintained it did not matter who cut it, because the gas escaping was toxic whether the pipe had been trimmed or not.

Last Thursday, the jury requested readbacks of testimony given by Jeffrey Ketchman, an expert hired by the Rayneses. He had testified that cutting the pipe by a foot or so would have a "negligible effect" and "wouldn't have made a difference" in the carbon monoxide flow into the basement.

However, during cross-examination the defense forced Mr. Ketchman to admit he had not actually tested to see whether, at the pipe's original length and with the door open, there would have been fumes. After the jury asked to rehear similar testimony by a civil engineer, the mood of the defendants brightened considerably.

The Verdicts

After almost two days of deliberation, the verdicts came back Friday just before lunch: Mr. Torpey, innocent of the charge of second-degree criminally negligent homicide, the pool company acquitted of the same charge, as well as of second-degree manslaughter.

The focus now shifts to the civil case, where a jury - if it gets that far - needs only to determine that a "preponderance of evidence" exists in order to find the defendants guilty, as opposed to guilt "beyond a reasonable doubt."

Drew Biondo, the District Attorney's director of communications, claimed that the fact the jury deliberated for two days validated the charges.

D.A.'s Rebuttal

"There were substantive issues that had to be addressed," he said, pooh-poohing the charge that the arrests were made to protect the Rayneses.

"The Rayneses didn't install the heater, they merely purchased it," said Mr. Biondo. "They relied on professionals to install it. The installation created a dangerous situation - not just for someone sleeping in the house, but for anyone. It could have harmed someone who went in there to change his clothes."

The matter of the cut pipe was not addressed by the prosecution. Mr. Biondo said that was because carbon monoxide is heavier than air, and would have been sucked back into the basement by the air-conditioning unit regardless of whether or not the metal louver door to which the heater had been vented was open.

Teledyne Technician

Mr. Biondo acknowledged that James Cosmano, the Teledyne Laars technician who was on the scene three days before the death, was granted immunity from prosecution in return for his testimony.

The defense team, and some of the jurors, said Mr. Cosmano's presence three days before the tragedy aroused the reasonable doubt necessary to acquit the accused.

However, said Mr. Biondo, "Mr. Cosmano didn't install the unit. It was the installation that was done improperly."

Mr. O'Brien countered that people had been staying in the pool house most of the summer, and that things went awry only after Mr. Cosmano "tinkered" with the system.

Jurors' Deliberations

One juror, Charlene Azzara, said the majority favored acquittal on the first day, and that the others were convinced after hearing the readbacks and hearing Justice Richard Klein reread elements necessary for conviction.

Justice Klein instructed the jury, just 10 minutes before the verdict was delivered, that to find the defendants guilty their action "must be a cause of death." They could not be held responsible, he said, "if an act by another intervenes."

Ms. Azzara said the jury felt Mr. Cosmano's presence a short time before the tragedy made it impossible to be sure what had happened, though she said the jurors agreed Mr. Torpey had done a "sloppy" job.

Charlotte Reatherford, a friend of Mr. Torpey's, said he still had significant legal bills to pay, and will have more if the civil suit moves forward.

"It's disrupted his life. It was nerve-racking," Ms. Reatherford said.

"It hurt him. He's just about tapped out," said Mr. O'Brien. Mr. Torpey left the pool business at the end of 1995 and now works for a construction company.