David Sweat's brutal path to prison

In 2003, reporter Nancy Dooling spent eight days digging into thousands of pages of documents in the murder of Broome County Sheriff's Deputy Kevin J. Tarsia to reconstruct what had happened July 4, 2002. The original three-part series ran August 17, 18, 19, 2003.

The sound of three "pops" coming from Grange Hall Park woke Timothy Finch from his sleep. He wondered if the sounds were fireworks.

It was 3:45 a.m. July 4, 2002.

Three more "pops" sounded. Finch, 38, a Town of Kirkwood employee, pulled on his adidas sneakers and Yankees jacket and grabbed his cell phone. He heard tires screeching as he dressed.

He walked out of his house and made his way to the park's baseball field through a path from his back yard. From there, he could see a car sitting in the park, lights on. It was out of place. He was nervous. With his cell phone, he called the Kirkwood state police barracks six miles away and told a trooper about the "pops" and the car. It was 4:01 a.m.

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Several hundred feet away, out of Finch's sight, Broome County Sheriff's Deputy Kevin J. Tarsia lay on his back, his legs twisted under him, likely already dead from two bullets that had been fired point blank into his head.

When Tarsia's killers, Jeffrey A. Nabinger Jr. and David P. Sweat, admitted they killed the deputy, the judge in the case, Patrick H. Mathews, unsealed the court files he'd closed to the press and public.

What emerged alongside the solid police work done on the case are several missteps and oversights, alongside details about the murderers, the crime and the victim himself.

A life of crime

Sweat took pride in his gold 1990 Honda Accord. It had been souped up and decorated with red "APC" decals on the windshield and side mirrors and a yellow "R" decal on the rear windshield. It sported a moon roof.

The car gave him a freedom to move around, a freedom he lacked for long stretches of his life.

Five years earlier, when Sweat was 17, Broome County Judge Martin E. Smith sentenced him to two to four years in prison. He served 19 months for felony attempted burglary.

Sweat was no stranger to Smith's courtroom. In a 1996 crime, he and a friend planned an elaborate theft of computers and cash from a youth-group home in Binghamton. The plan involved tying up a woman and locking her in a storage room.

A counselor saw them before they could carry out their plans and the police were called.

What made the crime stand out was that it had been plotted on paper, complete with a sketch of the group home and the location of the computers and money.

Sweat was a mapper and a planner.

During a search of his Broome County Jail cell in 1997, corrections officers found a list of all the thefts Sweat planned to commit if a judge gave him a furlough. The judge didn't.

Four days after Sweat's July 6, 2002, arrest for Tarsia's murder, police searched bags of garbage left on the back porch of an apartment at 15 Dickinson St., Binghamton. Buried with urine-filled soda bottles and the other detritus of Sweat's life was a hand-drawn map.

It was a sketch of Mess' Fireworks, a Great Bend, Pa., gunshop and fireworks business, marked by Sweat's fingerprint.

Partners in crime

Sweat and Nabinger were cousins through their mothers. They were the same age. They shared similar backgrounds: broken homes, sketchy schooling and trouble.

They were always together, friends said, although they resembled each other only with their slight builds. Neither held a job for any length of time. Sweat turned to marijuana dealing. Nabinger smoked it. Both were occasionally homeless. Both flitted from woman to woman. Sweat fathered a child.

Following the late 1990s crime spree, Sweat and Nabinger faded from local police blotters. Sweat went to state prison, but he didn't stop planning.

Never enough guns

Sweat talked often about shooting people, witnesses said. He had numerous guns, and talked of getting more.

Sweat had once told Roger M. Henry, his mother's boyfriend, that he used a scanner to help him evade police and that "if the cops came for him, he'd blow them away," Henry told police.

One incident seemed to fan his antipathy toward cops. In May 2002, 21-year-old Michael J. Fisher Jr. pulled a gun on two state troopers during a routine traffic stop in Kirkwood. Fisher, after wounding a trooper in the hand, died in a hail of bullets.

"Sweat said if he ever was stopped after a crime, he would do the same thing to avoid going back to prison," Jennifer Seely told police after Tarsia's shooting.

One Dirt Road

Guns weren't the only items Sweat and Nabinger stole that spring.

Scattered through various local police blotters in June and July are reports of stolen vehicles, all taken from used car lots in Binghamton, Kirkwood and Fenton.

Two days before Tarsia died, a 1979 Winnebago was taken from a city car lot.

The camper was part of a plan that Sweat and Nabinger had, a witness said. They would live in the camper in the woods behind Felchar Manufacturing Co. in Kirkwood, going four-wheeling in their stolen trucks like modern-day desperados.

The vehicles were left off a remote dirt road — Sweat, Nabinger and their friends called it "One Dirt Road" — that runs behind Felchar.

It's where Sweat, Nabinger and a third man, Shawn Devaul, then 23, would meet late on July 3, 2002, to plan a second gun burglary, this one in Great Bend, Pa.

Thieves in the night

Sweat, Nabinger and Devaul headed for Pennsylvania at about 11:15 p.m., Devaul told police after the shooting. The fireworks and gun business is just over the border from Kirkwood. Sweat drove his Honda.

The trio spent more than an hour driving around Hallstead, Pa., the community just south of Great Bend, until they found a truck to steal.

Nabinger drove the truck, following Sweat and Devaul in the Honda. They drove north on Route 11, turned right onto Grange Hall Road, and pulled into the small, unlighted park a few hundred yards up the road.

Sweat parked the Honda. He and Devaul climbed into the back of the truck and lay down. All three donned ski masks and gloves. All three were armed.

At Mess' Fireworks, Nabinger rammed the back of the truck into the front door of the business, breaking a wall and setting off an alarm. A neighbor, up early to prepare a fire pit for a pig roast on the Fourth of July, heard the wall smash.

The three ransacked the business, looking for handguns, long guns and knives, Devaul said. The weapons were tossed into Nabinger's Chicago Bulls duffel bag. The three men piled back into the truck.

Around 3:30 a.m., Nabinger pulled the truck into Grange Hall Park.

It was time to move the weapons into the Honda.

Death in the park

Tarsia, on patrol during the night shift, was probably on his way to eat dinner at his Grange Hall Road home, about a quarter-mile from the park.

The simple park has a baseball field, a playground, a picnic pavilion and a parking area. Did the presence of two vehicles in the park at such an early hour spark Tarsia's curiosity?

The deputy pulled into the parking lot at an angle, and aimed his car's spotlight toward the Honda and the truck and past them into a stand of small trees and brush. Sweat dove beneath the truck. Nabinger and Devaul tore into the patch of trees.

What is known about what happened next is based on Devaul's confession and what Sweat and Nabinger confessed to in court: Tarsia got out and walked around his patrol car. The beam from the deputy's flashlight fell on the unloaded assault rifle that Sweat clutched in his hand. In Sweat's other hand was a loaded Glock.

Sweat claims that Tarsia began to draw his own weapon — also a 40-caliber Glock. Sweat, true to the words he had once spoken, came out from under the truck, gun firing.

Some of Sweat's bullets hit Tarsia's body armor; others missed. One plowed deep into Tarsia's belly, nicking his small intestine and striking one of his kidneys. The shot knocked him down. Still, Tarsia continued to struggle, reaching for his gun. Sweat jumped into the Honda, and ran Tarsia over, dragging him across the rough asphalt of the parking lot.

Panic, his defense attorneys would later say, drove him to run over Tarsia. The car broke Tarsia's ribs and his right femur, but the deputy continued to move around on the ground, still fighting. Sweat got out of the car, his attorneys said, moaning and crying: "I'm sorry, I'm sorry."

Nabinger came flying out of the trees. Nabinger said in court that Sweat told him to shoot Tarsia, but neither Sweat nor Devaul's stories back that up. All agree on this: Nabinger fired a Kahr 9 mm at Tarsia. After one shot, the gun's magazine fell out.

Nabinger picked up Tarsia's Glock, which had apparently dropped out of his hand when Sweat struck him with the car.

Nabinger fired twice, point blank, into Tarsia's face.

Scene in the park

Three "pops" roused Finch from his sleep and sent him on a dark walk to the park.

Finch could see one or possibly two vehicles in the parking lot from his stance on third base. Everything was quiet. The killers were nowhere in sight. The darkness and the fog obscured the sheriff's logo on Tarsia's car from Finch, but the strange light — the deputy's spotlight — shone into the night.

A second blinking light was also visible. It turned out to be a light in the trunk of Tarsia's patrol car. Nabinger, after shooting Tarsia, coolly walked to the patrol car, removed the keys from the ignition, and opened Tarsia's trunk. He pillaged the deputy's equipment bag, taking traffic flares and arrest forms. Both would later show up in stolen vehicles on a remote dirt road.

Finch was the first person to report the incident. When the troopers didn't show, he decided to go home. A clock in his kitchen read 4:35 a.m. He went back to bed.

Tarsia's body would lie in the parking lot for nearly two hours until a Windsor man, Michael West, on his way home after working the night shift in Conklin, saw Tarsia and the patrol car at about 5:40 a.m.

Now, almost two hours after Finch's call, the hunt for the killers would begin.

Investigation begins

Every police agency in Broome, and some from surrounding counties, wanted to help find Tarsia's killers. Leads in the crime kept pouring in, and veteran Sheriff's Lt. Dale Hamilton was handing them out to other investigators to pursue.

Then, late in the afternoon of July 5, in the midst of other calls, the police heard from a 16-year-old Kirkwood girl who named David Sweat as a "likely suspect" in the homicide.

Sweat and his friend Jeffrey Nabinger carried guns, she told investigators — weapons like the ones carried by the two cops who interviewed her that night.

She was present, she said, when the two stole pickup trucks from a used car dealer in Fenton months before Tarsia's killing. And she also told police about One Dirt Road. That's where the cops would find the stolen vehicles, she told them.

Police took her tip seriously. Behind Felchar that night, they also would find Sweat's Honda, which she had identified.

Police formed a watch around the Honda and the entryway to the road, staking out the vehicle to see if anyone would claim it.

At 11 p.m., a man and woman on bicycles wheeled into the entrance of the road. They were instantly surrounded, frisked and handcuffed.

The cops pulled out the man's wallet and looked at his driver's license. It identified him as David P. Sweat. The woman was Virginia Roberts, Sweat's sometime girlfriend.

The cops decided to let the pair go, after telling them police were conducting a training exercise and that they should leave.

An officer tailed them back to 300 Foley Road, a house rented by Sweat's mother's boyfriend. The phone line at the house was being tapped, as was that of Nabinger's mother, who lived on Broome Street in Dickinson.

Also that evening, Nabinger was picked up by Binghamton police at Amsbry and Chenango streets in the city. Nabinger and a friend, Rob Brown, were standing near a truck that had been stolen days earlier.

Nabinger and Brown were taken in for questioning, but only about the truck.

Then they, like Sweat, were let go. Like Sweat, Nabinger spent the rest of the night at his mother's house. That night, police intercepted a call between 300 Foley Road and Broome Street.

Meanwhile, evidence was starting to pour in. Human tissue found on the undercarriage of the Honda would match Tarsia's DNA. A search of the stolen vehicles also would yield important evidence. Traffic flares and Tarsia's equipment bag were discovered in a stolen Winnebago, as was the handgun Nabinger used to take the first shot at Tarsia.

DNA from clothing found in the vehicles behind Felchar also would be tied to Nabinger.

Sweat was arrested at 10:30 a.m. as he left 300 Foley Road.

Police approached Roberts shortly afterward and persuaded her to talk. She said Sweat and Nabinger had told her at the July Fourth party at 300 Foley Road what they had done early that morning. They talked while they cleaned two handguns in the garage.

"The cop was in the wrong place at the wrong time," Sweat told her. "Then the cop got shot. And run over."

"He should have been a firefighter," Nabinger said.

Nabinger was picked up around 4 that afternoon after he took a back way out of his mother's home.

He and Sweat were charged with first-degree murder. Devaul, based on information provided by the Kirkwood teenager and a statement made to police that afternoon by Sweat, was picked up in Greene, while walking with his girlfriend and their baby.

Sweat speaks

By day's end, in a confession that would create problems for prosecutors down the road, Sweat would tell them more than they expected to hear.

Interrogators at the state police station in Kirkwood began the questioning. Sweat agreed to talk and was informed of his Miranda rights, including the right to remain silent and the right to have legal counsel.

He agreed to speak to the police without a lawyer.

But as soon as the topic of the Tarsia slaying came up, Sweat demanded a lawyer, court documents show.

The questioning immediately stopped. At 12:22 p.m., Sweat was taken by sheriff's department patrol car to the Broome County Public Safety Building and put in a holding area.

An hour later, Sweat became talkative again. At 1:30 p.m., he asked to speak to Sheriff's Sgt. Vasili Yacalis, who'd interviewed him earlier in Kirkwood.

Yacalis checked first with District Attorney Gerald F. Mollen, who also was in the building. Mollen told Yacalis to find out what Sweat wanted.

"There was no suggestion or direction to do any questioning of Sweat," Mollen said in an affidavit filed later with the court.

Yacalis walked into the room where Sweat was being held. According to Mollen, Sweat made a startling statement: "I shot at the cop first because I thought he was going to shoot at me."

Yacalis went back to Mollen and told him what Sweat had said.

Mollen, the county's district attorney since 1987, was well aware, he said in his affidavit, that the general rule in New York state was that once a suspect in custody asks for a lawyer, the person cannot change his mind and undergo more questioning without a lawyer. Defense attorneys would pounce upon the second questioning of Sweat as a violation of Sweat's constitutional rights. They would demand that the statements be suppressed by the judge and placed off limits during trial.

And the potential consequences didn't end there. Any evidence gathered as a result of the "poisoned" statement also stood the risk of being excluded as evidence at trial.

But Mollen and police needed answers. While they knew Sweat and Nabinger were connected in some way with the burglary at Mess' Fireworks and with Tarsia's killing, they believed there may have been others involved, and that they might be on the loose, armed and a threat to the community.

Mollen, also in the affidavit, said he believed the case could end up in federal court because Tarsia's killers crossed the New York-Pennsylvania line during a night of crime. Federal courts have different rules about suppression; Sweat's statement would likely be ruled admissible there.

Mollen decided to go for it.

At 1:29 p.m., Sweat was read a Miranda warning a second time. Questioning resumed.

This is what Sweat said:

•Tarsia's service weapon, a 40-caliber Glock, and the weapon Sweat used to shoot Tarsia, a stolen 40-caliber Glock, were in a white plastic Giant market bag, hidden in weeds behind Sweat's mother's house at 300 Foley Road.

•A person named Shawn who lived in Greene took part in the burglary of Mess' Fireworks and was at the shooting but did not participate in Tarsia's killing. Sweat didn't know Shawn's last name. A call to police in Greene helped pinpoint Shawn as Shawn Devaul of Greene.

•Robert Brown, a friend of Nabinger and Sweat, was brought to Sweat in the building and told by Sweat to tell the truth about "everything." Brown, who was being questioned about the Tarsia killing, had first told police he knew nothing about the crimes. After speaking to Sweat, Brown told police that Sweat and Nabinger described the killing in each other's presence. They also had told him about the slaying.

Evidence

Defense attorneys would later ask a judge to suppress Sweat's second statement, Shawn Devaul's statement, Brown's statement and the discovery of the guns. All were the "fruit" of the poisoned statement, defense attorneys argued.

A search warrant had been executed at 300 Foley Road on July 6, and investigators were combing the house and property for clues. Defense attorneys would argue that additional police were sent to 300 Foley Road after Sweat told them where the guns were, and they found them where he said they were hidden.

Nabinger was picked up later that afternoon. At 5:30 p.m., under police questioning, he also would invoke his right to counsel.

During his interrogation, Nabinger was offered cigarettes. Later, cops would get a DNA sample from Nabinger's saliva on the butts. It would match that on a cigarette butt found at the crime scene in Grange Hall Park, although at least one other person had left DNA on the crime scene butt, court papers say.

And police hunted Devaul in Greene. The tall, gangly, pony-tailed 23-year-old would give them, at 5:56 p.m. July 6, 2002, what they needed: a confession.

The confession

Devaul described the first trip to Pennsylvania to steal a truck and the second trip to commit a burglary at Mess', where they would steal guns. He described the Chicago Bulls gym bag that Nabinger owned and used that morning for the break-in.

The three were moving the stolen firearms from the stolen truck to Sweat's Honda Accord in Grange Hall Park, when they saw a vehicle turn off Route 11 onto Grange Hall Road.

"I thought it was a cop car, because of the headlights setup," Devaul said in his police statement. "And I believe (Sweat) said 'cop.' "

He and Nabinger ran into a clump of bushes; Sweat hid under the truck. Devaul heard about 10 gunshots, he said, then a squeal of car tires and a small "thump type" noise. He heard Sweat say "I'm sorry, I'm sorry."

Then Nabinger came out of the bushes. Devaul heard two more shots.

When Devaul emerged from the bushes, he heard another shot. He saw Sweat and Nabinger rush toward the Honda. Nabinger first slammed into Devaul and then turned and pillaged Tarsia's patrol car trunk.

Talk of a plea

Nabinger and Sweat were indicted in August 2002 on the murder and other felony charges. On Dec. 13, Mollen filed notices indicating that he planned to proceed with a death-penalty case against them.

On Dec. 18, in a conference between prosecutors, defense attorneys and the judge — though off-limits to the press and public — the issue of guilty pleas was raised. Mollen said neither he nor the Tarsia family were ready to accept guilty pleas. The brutality of the crime, and the loss of Tarsia to his family, had left raw wounds.

The family wanted Sweat and Nabinger to die.

Meanwhile, work on the case plowed on.

Mollen conceded in writing that Sweat's second statement and his July 5 statements to police — when he was questioned after stumbling into a group of police who were investigating the murder — would be inadmissible. Sweat, defense attorneys learned, had not been read his Miranda rights July 5. Defense attorneys also took issue with the search warrants issued in the case.

But on July 21, Sweat pleaded guilty to one count of first-degree murder. The next day, Nabinger did the same.

Both would serve life sentences in state prison with no hope of release. They would not appeal. If anything happened to change the status of the pleas, federal prosecutors would step in and the two would face death-penalty trials in federal court.

It was Mollen's call to accept the guilty pleas.

But even if the case went to trial, there was no guarantee that a jury would sentence them to death. The only other option from a jury trial would be the same penalty Sweat and Nabinger ultimately accepted: life without parole.

SOURCES

Most of the information used to assemble the story come from pre-trial motions, prosecution responses to motions, defense attorney's responses to the prosecution and supplemental additions to pre-trial motions in volumes 1-13; documentation of police leads; affidavits from prosecutors and defense attorneys; transcripts from court hearings; judicial orders; search warrant applications; witness statements (including Shawn Devaul's voluntary statement); transcripts of a tapped phone conversation between Jeffrey Nabinger and Virginia Roberts; court documents detailing both Nabinger's and Sweat's criminal histories; police reports filed by Binghamton SWAT members; and letters between prosecutors and defense attorneys.

Interviews were conducted to clear up inconsistencies and omissions in court documents. Those interviewed include Col. Harry Corbitt, New York state police, Albany; Capt. Mark Lester, Troop C, Sidney; Broome County District Attorney Gerald F. Mollen; Steven Tarsia; Lisa Tarsia; Broome County Sheriff's Deputy Mark Oliver.
Jeffrey A. Nabinger Jr. declined a Press & Sun-Bulletin interview. David P. Sweat did not respond to a request for an interview, nor did Shawn Devaul.