OFF TOPIC - NY- Inmate freed after brother's confession

3-22-2009 New York:

WHITE PLAINS - Kian Khatibi, convicted of a near-fatal stabbing, was still behind bars after nine years when his older brother revealed a shocking secret to family during Thanksgiving dinner in 2007.

As Kian's father spoke about how he missed his son, his brother Kayvan started to cry and told relatives that he was the one who committed the crime, according to family members.

"He was getting very emotional," Kian's younger brother, Sean, said Friday. "His first comment was that he was responsible for Kian being in prison."

Kian was exonerated, released on his birthday in September. But Kayvan, despite his purported confession, cannot be prosecuted because the five-year statute of limitations in the case has expired.

Now 11 years since the stabbing outside a Pleasantville bar, Kian has filed a legal claim warning that he may sue the village of Pleasantville for wrongful arrest and prosecution.

But he refuses to get angry, even at his older brother. He just wishes his sibling had spoken up sooner.

"The whole ordeal has been very upsetting for me, and it has put me in the situation to either offer forgiveness or anger," he said Friday at an eatery near his home in White Plains. "Do I see anger toward my brother when I'm looking forward? No, and I refuse to look backwards. I'm moving on with my life."

Efforts to contact Kayvan were unsuccessful. Kian said he doesn't keep in contact with him.

He is not willing to talk in detail about the crime, nor is he willing to discuss his brother, a New York City resident with a severe drug problem, he said.

"I don't know what was going through his mind," Kian said. "His first priority is not the family. It's the drugs and it has taken control of him."

At one point while Kian was in prison, Kayvan was arrested for impersonating him during a traffic stop in Pleasantville.

Kian said he is trying to leave all this "negativity" behind, saying the only way he can move forward is if he focuses on his future. Now 33, he's taking classes at Westchester Community College and aspires to be a civil rights lawyer.

The stabbing took place outside the former Lock, Stock & Barrel bar, now Paulie's, on Marble Avenue on Jan. 11, 1998.

Kian was then 22, a resident of Pleasantville taking a semester off from Westchester Community College so he could earn money as a waiter. Both he and his brother had past trouble with police; Kian had been arrested several times for offenses such as trespassing, drunken driving and harassment, authorities said, though he said he has no criminal convictions.

Kian and his brother both went to the bar that night, but Kian said they weren't there together.

After a disturbance inside, Kian was ordered to leave. A Yorktown resident in his 20s was later stabbed four times and almost died from blood loss during a street fight outside. Another person was also hurt.

Pleasantville police arrested Kian three weeks later and charged him with first-degree assault.

Brian Stone, his former defense attorney, said both victims testified at the trial and at least one of them identified Kian as the stabber "based on a momentary viewing."

"This was an identification that was subject to very close questioning," Stone said, struggling to recall details of the trial.

Both Kian and his brother testified, both denying involvement in the stabbing, Stone said.

"I interviewed the brother," the lawyer said. "There was no evidence I had to reflect that anybody, be it the brother or anybody else, stabbed the guy."

When the guilty verdict was read, Kian said, "I looked up to the left on the wall in Westchester County Supreme Court and I looked to where it said 'In God We Trust' right in the courtroom. And then I looked to the jury and I was confused to say the least."

He was sentenced to serve seven to 14 years, and spent time in several state prisons. He said he used that time to hone various skills. He learned Spanish, Chinese and Farsi. He also spent several years as an apprentice for a chef preparing food for civilian and police staff. But his greatest focus was on studying the law; he would spend most nights in the prison libraries studying various cases. Over the years, he said, he submitted several motions to overturn his conviction, to no avail.

He said the Westchester District Attorney's Office under Jeanine Pirro and later Janet DiFiore were not receptive to his efforts.

"I understand many people in prison claim their innocence and that, of course, burdens the system and causes claims such as mine at times to go unheard," he said. "And I believe that's what kept me in prison for all these years."

Then in November 2007, as the Khatibi family in White Plains sat in the living room chatting after their feast, Kayvan gave his veiled confession. When pressed, he offered details, Sean and a lawyer for Kian said.

"The father and one of the sisters began to question him and say how come you're now saying this after 10 years?" said Angelo MacDonald, who represented Kian in the motion to overturn the conviction. "The confessing brother then said a number of details about the stabbing which were consistent with how the stabbing occurred, where he stabbed the victim, where he put the knife. For the next hour, he was confessing to this, crying, saying he didn't mean to do it."

When Kian, then at Hudson Correctional Facility near Albany, was told of the news, he filed the initial motion to dismiss his case. Westchester prosecutors objected. Hearings that were held featured testimony from Kian's family; Kayvan also took the stand, but exercised his constitutional right to remain silent.

MacDonald said Kayvan, had he confessed under oath, may have perjured himself because he said during the original trial that he was not involved in the stabbing.

"It's ironic that he'd be testifying to the truth but he'd be perjuring himself," MacDonald said.

County Judge Barbara Zambelli vacated the conviction.

"She is my hero because she had the courage to review the facts and not turn a blind eye, thinking I was just another prisoner," Kian said.

On Sept. 23, Kian's birthday, prosecutors said in court that they would not object to his immediate release; they would later dismiss the original indictment. He was allowed to walk out of the courtroom a free man.

"They took off the handcuffs and I didn't even know what to do at that point," he said. "I had to ask several times the officers there - 'Can I walk out that way? Can I walk out that door?' And they kept saying, 'Yes.' "

After stepping outside, the first thing he did was go to Bloomingdale's, where his sister bought him two new pairs of jeans. Then he had lunch with relatives and, as he put it, "started making plans for the future."

He has been taking classes at Westchester Community College, and he's seeking to go to New York University or Columbia University in the fall.

Unlike other overturned convictions of recent years, such as the Jeffrey Deskovic case, Kian's release initially got no public attention.

The District Attorney's Office made no statements at the time and would not comment for this article, saying the case has been sealed.

The Pleasantville police chief and an attorney representing the village declined to comment on the case due to pending litigation.

Kian's notice of claim against Pleasantville, filed this month, seeks unspecified damages, claiming authorities unlawfully imprisoned him, subjected him to "malicious prosecution" and violated his constitutional rights. ..News Source.. by Shawn Cohen