Gail Trait -- Buffalo,
N.Y., July 17, 1978
Trait, 26, stabbed her four
children to death and then told police she was trying to save her
soul. Relatives said she spoke of a voodoo curse. Trait served 10
years in prison before an appeals court overturned her conviction
and ruled her insane. She spent another 10 years in a psychiatric
Possessed Child Killer
Voodoo rites of passage and
possession by Satan were not deemed adequategrounds for an
insanity plea for an East Side woman who killed her four children
in the summer of 1978. At least not right away.
Gail Trait, a 26-year-old student of liberal
arts at Erie Community College and a single mother. snapped one
day. She butchered her four children, ages two to nine, at her
motherís East Side apartment, two weeks after the children were
returned to her from child protective services. Trait spent 10
years in prison before a court overturned her conviction and ruled
her insane. She spent the next 10 years in a psychiatric hospital.
The lost of innocents
By Cara E. Richards
Therer was only one article in the New York
Times about a second female mass murderer, Gail Trait, who killed
her four children on July 17, 1978, in Buffalo. New York. That
article detailed her conviction on four counts of second-degree
murder in the deaths of the unnamed children: a 2-year-old boy and
three girls ranging in age from 4 to 9. She had pleaded insanity,
but the jury apparently did not agree. The Times did not mention
her sentence or give any additional details.
The Buffalo newspaper, however, was more
informative: the three girls were Kylia (8), Amina (6), and Inez
(4); the two-year-old boy was named Demario.
Their mother, Gail Trait (26), had been
separated from their father for about two years. She was a student
at Erie Community College, a liberal arts major specializing in
social sciences, and had recently moved with her children into her
The children, who had been in the custody of
the Erie County child welfare officials, had been returned to her
two weeks before they were killed.
Gail's defense attorney attempted to convince
the jury that she was insane at the time of the crime. Several
psychiatrists for the defense saying that she was a paranoid
schizophrenic and those for the prosecution saying that she killed
in anger and knew what she was doing.
The jury believed the prosecution
psychiatrists, and Gail was convicted in December 1979. She was
sentenced to twenty-five years to life in prison on February 25,
1980, but on June 15, 1988, New York State's high court refused to
block an April 8, 1988, ruling granting her a new trial.
This last Buffalo News article saqid tat she ha
killed her children in a voodoo rite, which had been mentioned
when she first was arrested but which the police say was
"unfounded". We have no records of additional articles, and she
still in prison in June 1988.
OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
April 8, 1988
THE PEOPLE OF THE STATE OF NEW YORK,
GAIL TRAIT, APPELLANT
Appeal from judgment of Supreme Court, Erie County, Mintz, J.
-- murder, second degree.
Denman, J. P., Boomer, Green, Lawton and Davis, JJ.
Judgment unanimously reversed on the law and
new trial granted. Memorandum: The right to the effective
assistance of counsel is guaranteed by both the Federal and State
Constitutions (US Const 6th Amend; NY Const, art I, ? 6). The
constitutional requirement is met so long as the evidence, the
law, and the circumstances of a particular case, viewed in
totality and as of the time of the representation, reveal that the
attorney provided meaningful representation (People v Baldi,
54 N.Y.2d 137, 147). In reviewing
claims of ineffective counsel, our concern is to avoid confusing
true ineffectiveness with mere losing tactics and according undue
significance to retrospective analysis (People v Baldi, supra, at
146). There is no requirement that counsel be free from any errors
in the conduct of the trial and his conduct must be considered in
its entirety (People v Dietz,
79 A.D.2d 476, 480). What constitutes
effective assistance cannot be precisely defined but varies
according to the particular circumstances of each representation
(see, People v Baldi, supra, at 146; People v Droz,
39 N.Y.2d 457, 462). "However it is
elementary that the right to effective representation includes the
right to assistance by an attorney who has taken the time to
review and prepare both the law and the facts relevant to the
defense * * * and who is familiar with, and able to employ at
trial basic principles of criminal law and procedure" (People v
Droz, supra, at 462).
The record in this case establishes that
defense counsel failed to provide meaningful representation to
defendant. His opening statement was ill-conceived and ineptly
developed. It was rambling and disconnected; it elicited 21
sustained objections, largely because counsel engaged in argument
that was appropriate only for summation. His pretrial preparation
was inadequate. His decision to forbear making pretrial motions,
in the circumstances of this case, was unwise. He did not appear
in opposition to the People's motion for an order precluding
pretrial motions. Counsel's trial preparation was inadequate to
the extent that his direct and cross-examination of witnesses was
rendered largely ineffective. The lack of preparation was
particularly evident in the examination of defense psychiatrists
and thus provided minimal support for the insanity defense. This
omission left these witnesses unnecessarily vulnerable to skillful
cross-examination which proper preparation could have avoided. The
trial court observed that counsel alienated the jurors to such an
extent that it may have had an adverse effect on their verdict.
Counsel's decorum and deportment, characterized by the court at
times as inexcusable
and reprehensible, may have contributed to this alienation.
Counsel engaged in excessive and purposeless cross-examination of
prosecution witnesses. The effect of the answers elicited during
this aimless cross-examination of experienced police officers,
especially as to whether they had ever witnessed a more gruesome
crime, was undoubtedly damaging to the defense. Counsel declined
to cross-examine a jail matron who gave testimony extremely
unfavorable to the defense; instead, he simply told the jury on
summation to dismiss this testimony as fabricated and incredible.
We perceive no benefit in further enumerating
the numerous examples of errors and misconduct on the part of
defense counsel as reflected in this record. They were pervasive.
In sum, the totality of the omissions, misconduct and the errors
forces the conclusion that counsel's performance deprived
defendant of her right to effective assistance of counsel as
commanded by the Sixth Amendment of the US Constitution.
In view of our holding, we do not address the
issue of whether the prosecutor intentionally used peremptory
challenges to exclude blacks from the jury in violation of
defendant's rights under the United States and New York