Trial and Error?

FLORENCE, Colo. —  Robert Levine knows all the stories.

The gray-haired man talking with his wife over in the corner is a mob lawyer from the Midwest. The stout, mustachioed gentleman opposite him is a Mexican drug lord holding court with his extended family, complete with mournful wife, bored-looking daughter and solicitous son-in-law.

Scattered about elsewhere in the linoleum-tiled waiting room on visiting day in the U.S. penitentiary here are gang members, violent felons from nearby Indian reservations, armed robbers and drive-by hit men.

Robert Levine is the one you don’t expect to fit, given that this is maximum security and he was raised in an upscale New York suburb, graduated from New York University and once co-owned a successful Phoenix real estate firm.

“That was another Bob Levine,” he says with a shrug. “That Bob Levine died the day he was accused of murder.”

Accused and convicted, that is, of having arranged the murders of his own brother and sister-in-law at their suburban Chicago home over a soured business relationship. He was sentenced to four consecutive life terms, virtually assuring that he will spend the rest of his life in prison.

That leaves him with an endless amount of time to reflect on a system that he says railroaded him behind bars for a crime he did not commit. Of course, it is not unusual for convicted felons to brood on the injustice of their trials. Robert Levine, 56, is no different: His complaints range from inadequate trial counsel to dumb jurors to the introduction of hearsay evidence.

Yet, some elements do set his case apart, according to a three-month investigation by The Times. A close look at Levine’s incarceration raises the question of whether the criminal justice system broke down during his prosecution, seriously affecting his right to a fair trial.

The Times probe found that:

* Only two of the dozens of witnesses who testified against Levine connected him directly to the murders--and both were notorious liars who were in prison at the time they testified. Both received reduced sentences because of their testimony.

One of those was a repeat felon named John Gary Rinaldo, who was once called “a pathological cheat” by a federal judge in Los Angeles. A longtime white-collar crime figure in Orange County with a history of manipulating people with his glib manner, Rinaldo, 58, is now in prison in Oregon awaiting trial on a prison-escape charge.

The other was the actual hit man, an oft-unemployed figure named Bruce William McKinney, whose fantasy life included a false claim to have served in Vietnam with the Green Berets. He was the one who fingered Levine as the plot’s mastermind.

* Rinaldo, whose testimony was critical to the conviction, was a jailhouse snitch who testified that Levine told him about the murder during a chance encounter. More than two years after the 1989 murders, Levine met Rinaldo at the Metropolitan Detention Center in downtown Los Angeles--a hotbed of jailhouse snitches, legal experts say.

At the time, Rinaldo was using an alias and claiming to be a lawyer.

“This is a type of evidence with a long and sordid history,” says John Wiley, an expert in evidence at UCLA Law School. “There’s a reason we call convicts ‘cons’ for short.”

* Trial transcripts indicate that Levine and his counsel were misled about Rinaldo’s true identity and the full extent of his criminal record. As a result, Levine’s attorney was at a severe disadvantage during Rinaldo’s testimony.

* The prosecution may have inadvertently fed Rinaldo information about the case during pretrial debriefings, giving him grist to enhance his credibility on the stand, Levine believes. So far that has been impossible to confirm, for the government has refused to turn over to Levine notes and reports he says were prepared by FBI agents during debriefings. The government contends that the notes don’t exist. In some ways, Levine’s case has the trappings of a checkout-line novel, including a sensational midmorning double murder in an exclusive suburb and a plotter with supposed Mafia ties. The other elements include a victim loathed by many people who knew him well, an accused who was the peacemaker in a family known for its ugly feuding, a surprise witness and a well-publicized trial that left some key questions unresolved.

Levine has waged a struggle for several years to win a new trial--so far without success. Unless he succeeds, the most he can look forward to is the transfer to a nearby medium-security prison. If his prison record remains spotless, that may happen in the next 10 to 15 years.

Tranquillity Shattered The murders of Donald and Marsha Levine were sensational news in the Midwest. Starting with the gunshots that shattered the tranquillity of the tony Chicago suburb of Munster, Ind., on Nov. 9, 1989, the case remained front-page news in local papers for months.

As often happens when violence erupts in unexpected places, the shots also shattered the quiet veneer of a successful businessman’s family.

On the surface, Don Levine may have seemed nothing more than a successful real estate developer with a string of Chicago-area shopping centers and other commercial properties in his portfolio. But underneath he was a man who made enemies easily.

“I used to call him ‘Darth Vader,’ ” recalls Toby Stoffa, Robert Levine’s sister-in-law. “He was rude, pompous, insensitive, aggressive and hateful. I never was around him when he was nice to anybody . . . except his brother Bob.”

He was cutthroat and unscrupulous in business; according to testimony at Robert’s trial, he even cheated a longtime friend out of $1.2 million in a land deal and once left his own father holding more than $100,000 in liabilities on a failed partnership.

He was egotistical among friends and belligerent to employees.

“I think one might describe him as a megalomaniac,” Marvin Bendau, a Phoenix mortgage broker who knew both brothers, recalled at Robert Levine’s trial.

Exhibit A was Don Levine’s 50th birthday party in 1984, a garish affair with an Arthurian theme, complete with live jousting and Don seated on a throne, decked out as royalty.

“He wanted to be king, literally,” Bendau said.

He also had a volcanic temper that employees found dismaying.

“You never knew when he was going to go off,” testified Elke Flavell, a receptionist at a real estate firm owned by Robert Levine, during the trial.

In contrast, Robert Levine was a peacemaker, the only person big enough to face Don in mid-tirade and calm him down. Sometimes Robert handled Don by reasoning; more often, by shouting back at him.

“You had to be very confrontational with Donald,” he recalls. “He was like a spoiled child.” On the other hand, he says, “our thinking in business was almost 100% identical.”

While Don spent most of the year in Chicago, Robert managed their joint real estate projects in Phoenix. They talked on the phone every day, sometimes more than once; during the several months a year Don and Marsha spent in Phoenix, the two brothers were almost inseparable.

They had only one main area of disagreement, friends say. That was Pat Steward, Robert’s second wife and a successful businesswoman in her own right. Pat was the joint owner with Robert of Elles Corp., the real estate firm through which Robert managed the brothers’ Phoenix interests.

But Don couldn’t stand her. Acquaintances remember him being especially rude to Pat, who was not above dishing it right back. Their mutual animosity took an obvious toll on Robert, who was forced to mediate between his wife and his brother. Their marriage came close to crumbling under the pressure. (The couple divorced after Robert’s conviction.)

In fact, Don’s feelings about Pat may have set the stage for the vitriolic tantrum he threw in Robert’s office one day six months before the murders.

With Robert and Pat on vacation in Europe, Don had come down to Phoenix to tend the brothers’ affairs. One Friday afternoon he happened to take a look at the books of several Phoenix developments under Robert’s management.

Moments later he erupted. Red-faced and out of control, he cursed profanely at everyone within range. Robert and Pat were embezzling, he spluttered, according to testimony in court. They were all going to jail, he screamed--he would see to that.

In minutes he had much of the office staff in tears. They cowered for shelter. Pictures flew off the walls as he threw his beefy frame against Robert’s locked office door in a vain attempt to get at the evidence he was convinced lay locked inside.

Normally the staff turned to Robert to quell his brother’s rages. But he was not only a continent away, this time he was the very object of Don’s wrath. Even when Louise Row, an office manager, reached Robert in Italy, he was no help, refusing even to get on the phone with his brother.

“Let him settle down,” he said. “It’s nothing. When we get back home, it’ll all be worked out.”

As Robert had predicted, things simmered down quickly upon his return from vacation in three weeks, especially after a closed face-to-face meeting at which he documented that the amount of money “missing” from the accounts was not $300,000, as Don had claimed, but a few hundred bucks. Most of the rest, it turned out, had been transferred on the books by Don’s written order or spent to pay Don’s own American Express bills.

Yet the signs that Pat, not Robert, might have been the real object of Don’s wrath emerged soon after. For although the brothers’ business resumed as before, there was one important change. They implemented a new partnership arrangement that observers say had the effect of cutting Pat Steward entirely out of all the deals in which Don was involved. It was just as Don preferred.

Still, few who witnessed the episode knew about such deep family undercurrents. Don, the man who was never embarrassed, never publicly retracted his accusations. For many of his friends and business associates, the vivid memory of Don calling his brother a thief and threatening retribution was the first thought that came to mind when they learned Don had been murdered.

A Stranger Enters At 9 a.m. on Nov. 9., 1989, while parents in minivans were still pulling up in front of a school on a quiet block in Munster to drop off their kids, a young man ran out of the house across the street, screaming and with blood streaming down one side of his face. He made his way to the school, where surprised office workers showed him to a phone from which he could call for help.

Police summoned to the house at 1535 35th St. found Marsha Levine in the front foyer, dead from a pistol wound to her chest. Donald was crumpled on the kitchen floor near the rear of the house, mortally wounded; he died on the operating table hours later without regaining consciousness.

Don Levine’s son, Mark, told investigators that he had answered the doorbell to find a stranger in plain clothes holding a Federal Express package for him. Producing a gun, the man forced Mark to the floor and slugged him on the head with the weapon just as his mother came into the hallway.

“I heard my mom scream, ‘Oh, Donald!’ and that’s the last time I ever heard her say anything,” he testified later. Then he picked himself up off the floor and ran for help.

Police investigating the murders quickly turned up reports of Don’s dispute with his brother. It was a short step from there to speculating about the benefits that Robert might gain from his brother’s death--more control of their partnerships, say, or a bequest from Don’s will, or revenge for the accusation of theft.

Mark himself, in the aftermath of the murders, urged his parents’ friends not to trust his Uncle Bob. Over the ensuing weeks, according to later testimony, he continued to make clear to friends and acquaintances that he regarded his uncle as a thief. In short order, many of Robert’s development projects collapsed, eventually forcing him to file for bankruptcy.

Then just before Christmas, police arrested Bruce McKinney, 40, a resident of Phoenix, who had written his home phone number on the receipt for the rental car he had driven to the Levine house Nov. 9 and left his fingerprint on the FedEx package dropped at the scene.

McKinney was a bearish character who fantasized openly about having served with the Green Berets in Vietnam. He had held a number of odd jobs around Phoenix, once working in Grizzly Adams-like garb as a totem-pole carver at Rawhide, a historical village and theme park just outside of town.

He was also familiar to the Levine family. McKinney had grown up with Bill Levine, younger brother of Donald and Robert. More interestingly, he had been an occasional employee of Robert’s and Pat’s real estate firm and for a time managed one of their apartment buildings.

With McKinney’s arrest, police turned up the pressure on Robert. One day local police descended en masse on his office to take him in for questioning. They let his friends and associates know that his role in the killings was being scrutinized.

They also pressured McKinney. Indiana prosecutors announced they would seek the death penalty for the killings--then delayed his trial a few months to give him time to think it over.

Finally McKinney summoned the FBI to his jail cell to name Robert Levine as the plot’s mastermind. In return, the state agreed to drop the death penalty and the federal government agreed to place him in a witness-protection program in prison, where he remains.

Sibling Rivalry Levine’s jury trial began in federal court in Hammond, Ind., on June 10, 1991, with Bruce McKinney billed as the star witness.

Prosecutor Ronald Kurpiers II opened by painting a vivid picture of sibling rivalry. Seventeen witnesses related how Don Levine had openly bragged about relegating his brother to the ill-paid role of employee and gofer. Don’s actions placed Robert “in a financial stranglehold,” Kurpiers argued.

Even worse, Don was planning a full-time move to Phoenix, where his glowering presence would present even more of a threat to Robert’s livelihood.

That led Robert to seek out McKinney and propose murder, according to court testimony. There was a carrot-and-stick quality to Robert’s approach, McKinney testified: Don was so rich, Robert said, that McKinney would become a millionaire from the proceeds of the murder. But what really drove him into the plot, he said, was fear: Robert hinted that the Mafia had approved the hit on his brother and would kill McKinney’s wife and children if he balked.

For Robert made one more chilling prescription, McKinney testified. All three members of Don’s family must die, and in a specific order. Mark first, then Marsha, and Don last. Only that way, Robert said, could he be sure of inheriting all the money in his brother’s estate.

Yet as Robert’s defense lawyer, a former U.S. prosecutor named Kevin Milner, contended, Robert was fully aware that the bulk of his brother’s fortune was held in trusts that would flow to members of his wife’s family. Rather than standing in line for an inheritance, he said, Robert would find it virtually impossible to get a cent of Don’s estate, even if none of Don’s family survived.

In fact, he showed, Don’s death led to Robert’s financial collapse and a personal-bankruptcy filing.

The core of Milner’s defense strategy was to give the jury an answer to the troublesome question: If not Robert, who? For it did appear that the circumstantial evidence in the case pointed more closely to his client than to almost anyone else in Don Levine’s circle.

Nevertheless, Milner proposed a candidate: Mark Levine. He suggested that Mark had met McKinney at one family gathering or another. He tried to develop a portrait of Mark as a greedy only child who craved his parents’ money, rather than as the devoted son who rarely let a day pass without calling his mother from his college or law school dorm, as family friends recollected. Mark was the clearest beneficiary of the murders, Milner argued. Mark was the only member of the family not seriously injured by McKinney, who even left him an opportunity to escape the slaughter.

Finally, Milner pointed out that the police had even subjected Mark to two lie-detector tests. Neither was conclusive.

In any event, Mark strenuously denied the allegation, which clearly failed to register with the jury.

Milner was more successful at undermining McKinney. Under Milner’s cross-examination, he confessed to lying about such exploits as serving with the Green Berets; in fact, he had never served in Vietnam at all.

Although he had testified that Robert proposed that his brother be killed with “bombs, rifles, guns, poison . . . “ even “high-tech rockets,” Robert never delivered any such weapons to McKinney, who ended up using his own .357 Magnum to do the job.

Milner also ridiculed the Mafia angle.

“The Mafia couldn’t use their own hit men,” he asked, “so they searched . . . and they came up with Bruce McKinney, real estate worker, to do this hit, is that right?”

“I don’t know how they came up with me.”

“Did Robert say to you why the hit men who would be killing you and your family couldn’t kill Don or Marsha or Mark?”

“It didn’t come--it didn’t come up.”

Finally, Milner reminded the jury that McKinney had spent nearly nine months in jail awaiting trial before linking Robert Levine as part of the murder plot.

“McKinney’s testimony was very damaging to Robert, but it sounded a little crazy,” says Rebecca Donaldson, a San Diego lawyer who represented Levine during a round of appeals. McKinney’s testimony alone would have been “insufficient to sustain a conviction,” she said, “and the charges would have been dismissed for lack of corroboration.”

That’s when Kurpiers called John Rinaldo to the stand.

The name meant nothing to Levine. When he and Milner had scrutinized the witness list, they had assumed he was no one but a procedural witness, such as a hotel clerk or phone worker summoned to authenticate a document for evidence.

But when Rinaldo stepped through the courtroom doors, Levine was shocked.

“That’s Lee Alpert!” Levine exclaimed.

‘Oasis of Intelligence’ Starting in the 1980s with the sale of fraudulent second trust deeds to unsuspecting investors, John Rinaldo had afflicted Southern California with a series of increasingly squalid scams. His first conviction came in 1985, netting him a three-year term in federal prison for bilking 7,000 investors out of $10 million.

Soon after his release he surfaced again, attempting to defraud a Santa Ana home loan company of $362,000 by masquerading as a lawyer for a Kuwaiti family whose assets were tied up by the Iraqi invasion of their homeland.

The family wished to put up their Newport Beach mansion as collateral for a loan, he said. But the home’s owners--Iranian, not Kuwaiti--knew nothing of the deal, and the documents Rinaldo submitted for the loan were all forged. The FBI agents sent to arrest him found him driving a stolen Mercedes.

Indicted on five counts of bank fraud and money laundering and lacking the money for bail, Rinaldo was sent to await trial at the Metropolitan Detention Center in downtown L.A. That’s where he met Robert Levine.

Levine had been traveling with Pat in Mexico when he learned that he had been indicted for murder for hire. He surrendered in San Diego to federal authorities, who transferred him to the detention center to await extradition to Indiana.

Denied bail and cut off from his family and friends, Levine says, he felt adrift. None of the lawyers he knew from the real estate business in Phoenix was qualified to defend him in a federal criminal trial, leaving him temporarily without legal representation.

Among the tattooed desperadoes who made up much of the jail population, one man stood out. Trim, polished and articulate, the man who introduced himself as a lawyer named Lee Alpert “was an oasis of intelligence among idiots,” Levine says.

Over the next five days, he says, he spent hours with “Alpert” chatting or playing Scrabble. Alpert explained his presence in the detention center with a tale of having been swept up by mistake in a government sting operation aimed at a gold dealer. Nothing to do with him, he assured Levine.

As for why he would cool his heels in jail when he could easily raise bail, he explained that he was making $15,000 a month dispensing legal advice to the other inmates without spending a dime on overhead. He needed the money and figured that a couple of months of this would set him on his feet.

On its face the story reeked of implausibility. But “Alpert,” after all, was a professional con man good enough to have fleeced thousands of investors, including doctors and lawyers.

“He is a very accomplished liar,” Levine says in something of an understatement.

In any event, Milner, ambushed by Rinaldo’s appearance, scrambled to salvage his client’s defense. He argued that as a lawyer, Rinaldo could be prevented by the attorney-client relationship from testifying to anything Levine might have told him in prison.

The argument had some merit--the rule does not require that the “lawyer” actually be one, only that the “client” have a reasonable belief that he is. But prosecutor Kurpiers ridiculed the notion.

“I’m almost speechless at the outrageousness of the suggestion,” he told the judge. “This man has never held himself out to be a lawyer. . . . He’s a regular guy.”

That was untrue. Rinaldo’s habit of misrepresenting himself as a lawyer was at the center of his most recent indictment, which cited him no fewer than 10 times for “claiming he was an attorney named Lee Alpert.”

But that and other details about the full extent of Rinaldo’s criminal background remained unknown to Milner and Levine until after the trial. Granted less than a week to delve into Rinaldo’s background, Milner failed even to learn enough to challenge Rinaldo’s sugarcoated rationalizations of his two fraud convictions.

Milner was unable to challenge a host of Rinaldo’s assertions from the witness stand about his past. For example, Rinaldo:

* Claimed to have earned a law degree from Van Norman College, which was later merged into Pepperdine University. Pepperdine has no record of his having attended either institution.

* Denied ever having used an alias other than “Alpert,” but his federal indictment listed at least one other that he used.

* Testified that prosecutors in his first trial had characterized his offense as making “reckless business decisions” when, in fact, they charged him with overseeing a complex multimillion-dollar fraud.

On the stand, Rinaldo spun a compelling, if peculiar, tale. He claimed that Levine had admitted to recruiting McKinney for the murders and that he acknowledged being associated with the Mafia “for quite a period of time.”

Levine contends Rinaldo’s story was an amalgam of information drawn from Levine’s indictment at the detention center, facts he could have gleaned when he was interviewed by the FBI and Kurpiers before his court appearance, and of plausible fabrications designed to fill gaps in his knowledge.

Rinaldo also claimed that Levine had demonstrated to him how he had physically held a gun to the victims’ heads and pulled the trigger--although no one had ever contended that Levine himself was present at the murders.

He seemed not to have known that the victims were Levine’s relatives, describing them only as “a businessman” and his wife. He even claimed to have known Levine years earlier during a working stint in Phoenix and helpfully supplied the name of an Arizona Mafioso with whom Levine had been associated. In fact, the two had never met before their encounter at the detention center.

But Rinaldo’s testimony did corroborate much of McKinney’s. When he returned to Southern California for his own sentencing, Rinaldo came armed with a glowing recommendation from Kurpiers citing his critical role in securing Levine’s conviction.

At the sentencing, Los Angeles federal Judge Stephen V. Wilson was troubled by Rinaldo’s history as, in his words, a “pathological cheat” with the “sophistication to perpetuate further fraud.” But Wilson bowed to Kurpiers’ endorsement. Instead of 57 months of imprisonment, the standard penalty, he gave Rinaldo 46 months.

A few months later, pleading that his life was in danger because of publicity about his testimony, Rinaldo persuaded the government to transfer him to a minimum-security prison farm in western Oregon. A few months later, he escaped from the institution in a stolen prison truck.

He was not found until June 10, 1995, when Costa Mesa police caught him in a stolen car on Harbor Boulevard. Inside the car police found four fraudulent driver’s licenses, all bearing Rinaldo’s photograph; faked Social Security cards and credit cards; and dozens of other suspicious papers. A fingerprint check turned up his correct name, and he was eventually sent to state prison for auto theft. He is currently in federal custody in Portland, Ore., awaiting trial on escape charges.

A Lesson Learned Robert Levine continues to protest his innocence and prepare appellate briefs with the assistance of an Indiana attorney. Thus far his petitions for a new trial have failed, but they keep coming.

Just last month, U.S. District Judge Rudy Lozano rejected Levine’s second petition to him for a new trial, this one based on the suppression at trial of details of Rinaldo’s background. Lozano, who presided over the original trial, ruled that the evidence against Levine, including testimony from McKinney, outweighed any impact Rinaldo’s appearance could have had on his conviction. Levine says he will appeal that ruling even as he prepares new petitions over the government’s withholding of documents and other evidence.

But as long as that effort proceeds without resolution, he remains in maximum-security prison among the drug barons and gang members. Some he is friendly with, some he considers regular guys. But he has learned a lesson about consorting with other prisoners.

“This place is full of John Gary Rinaldos,” he says, running his eyes around the prison visiting room one recent weekend. “Only perhaps not as smooth.”

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

ROBERT LEVINE

1941: Born in Flushing, N.Y.

1960: Graduates Great Neck North High School

1964: Graduates New York University with a bachelor’s degree in business administration.

1966-77: First marriage, (two children.)

1978-1991: Second marriage, (no children.)

1969-70: Contracts manager for the Department of Housing and Urbvan Development in Chicago.

1970-72: Becomes assistant vice president of Ogden Development Corp. in Chicago.

1972: Moves to Phoenix, works for various investment and development companies.

1981: Forms Elles Corp., a real estate development firm, with wife Pat.

1991: Indicted and convicted of murder for hire in the deaths of his brother and sister-in-law, Donald and Marsha Levine.

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

John Rinaldo’s Record

February ‘84: Indicted on 15 counts of federal mail fraud in connection with the collapse and bankruptcy of American Home Mortgage Corp. and the loss of $10 million by 7,000 small investors. Pleads guilty to one count.

May ‘85: Sentenced to three years in federal prison.

August ‘87: Permanently barred from associating with any investment advisor by the Securities & Exchange Commission, which said he “willfully” carried out a fraudulent Ponzi scheme at American Home Mortgage.

April ‘91: Indicted by a federal grand jury on three counts of bank fraud, one count of money laundering, and one count of attempted money laundering in connection with a scheme to defraud an Orange County bank of $362,000.

September ‘91: Sentenced to 46 months in federal prison after being convicted on all five felony counts.

May ‘92: Escapes from a minimum-security federal prison in Oregon and flees the area in a stolen car.

June ‘95: Arrested by Costa Mesa police on suspicion of vehicle theft and giving an alias to a police officer.

June ‘95: Pleads guilty to driving a stolen vehicle. Though it is his third felony conviction, he is not charged under California’s “three-strikes” law, probably because of confusion in official records about his true birth date. Sentenced to three years in state prison.

January ‘97: Released from state prison and taken into custody by federal marshals, who take him to Portland to face prison-escape charges.