SYRACUSE, N.Y. (WSYR-TV) — Citing insufficient evidence, wrongdoing by the president judge, and “prosecutorial misconduct” by the Onondaga County District Attorney, the defense attorneys for Robert Neulander are asking a higher court for a third trial.

The appeal, obtained Tuesday, March 7, by NewsChannel 9 lays out six categories arguing why the former doctor, twice convicted of murdering his wife, was deprived of his right to a fair trial.

His second trial ended on March 17, 2022, with a jury convicting him a second time of murder and tampering with evidence.

The jury didn’t believe his story that his wife, Leslie, died from falling in the shower.

The six themes, as argued by the defense, are:

  1. Overall insufficient evidence
  2. A fundamentally unfair trial because the jury was able to consider why Jenna Neulander didn’t testify
  3. Medical witnesses were asked non-medical questions and were encouraged to offer opinions
  4. “Prosecutorial misconduct” by the Onondaga County District Attorney
  5. The court’s “cumulative errors” rendered the trial unfair
  6. An “unduly severe” sentence of 20 years to life in prison

Two key pieces of the defense’s argument are based on what they feel is wrongdoing by the president judge, Onondaga County Court Judge Thomas Miller and Onondaga County District Attorney Bill Fitzpatrick.

To understand the case against Judge Miller, it’s best to understand what happened at the end of the trial related to what’s called a “missing witness” charge.

Because Neulander’s defense team strategically decided against calling his daughter, Jenna Neulander, to testify, the judge allowed the jury to consider her absence in its deliberations.

In the appeal, the defense team argues her testimony wasn’t relevant to the case they were building, therefore she shouldn’t have been expected to testify and shouldn’t be considered a “missing witness.”

The appeal brief reads: “The court told the jury it could infer that the defendant’s own daughter, who was in the house on the morning in question, would have offered testimony that would have incriminated him. It is hard to imagine a more damning instruction.”

The case against DA Bill Fitzpatrick relates to his questioning of a former medical examiner hired by the defense.

“The entire tenor of the DA’s cross-examination was irreverent, irrelevant, condescending, and theatrical,” reads the legal brief. “Over repeated defense objections, the following exchange ensued with the DA ultimately vilifying Arden as “the devil.'”

The lawyers are referencing Fitzpatrick’s use of the phrase: “Give the devil his due.”

At the end of his cross-examination, DA Bill Fitzpatrick invoked Dr. Jonathan Arden’s scandalous resignation as the Washington, DC Medical Examiner, calling him guilty of sexual harassment.

“This was baseless and inflammatory character assassination,” the defense argues of its “most important witness.”

The appeal concluded: “The DA’s misconduct… poisoned the trial.”

Neulander and his defense attorney’s arguments are just half of what the State Court’s Appellate Division in Rochester will consider. DA Fitzpatrick gets to file his counter-argument by the end of March.

In a statement to NewsChannel 9, Tuesday, Fitzpatrick said: “We will respond appropriately in our reply brief.”

When it comes to the accusation that his case lacked evidence, Fitzpatrick replied: “24 jurors have found the evidence sufficient.”

Neulander’s second trial was a result of the State Appellate Division in Rochester, the same court hearing this second appeal, overturning the first conviction.

As the case continues in court, Neulander is serving his prison sentence in Elmira.