Witness for the Persecution
With breathless intensity Kim Mascola's story jumps from the TV screen:
"Tonight on Crime Special Edition, 'MURDER FOR HIRE!,'" thunders the announcer. "A wealthy lawyer hires a hit man to kill his unborn twins, even if it means murdering their mother. And what was her crime? Well, she wasn't Jewish. It's a Dateline/Court TV exclusive!"
This past fall, cable's Court TV repeatedly aired this hourlong special, based on a February 1996 Dateline NBC broadcast. Dateline had been Kim Mascola's big break. But as she recalls on a recent morning, in the end she was used, misled. "Dateline called and said, 'We want to do it as a woman's survival story, what you've been through.' But they made it so sensational."
It's hard not to. Mascola's former boyfriend, Hollywood, Florida, lawyer David Lusskin, stood trial in January 1995 for conspiring to murder her after she refused to abort her unborn twins -- his twins, too, because he'd impregnated her.
"Even his defense lawyer acknowledged that Lusskin was a spoiled son of privilege," Dateline correspondent Victoria Corderi proclaims on-screen. "A 34-year-old attorney with few clients, who spent most of his days playing computer games."
Lusskin's family didn't approve of Mascola because she wasn't Jewish, the jury heard, and Lusskin feared that having out-of-wedlock twins might interfere with his dreams of one day becoming a judge.
Then Mascola appears on TV being interviewed by Corderi, telling how Lusskin called the unborn kids a "tumor," a "mound of flesh."
"I disagree," Mascola replies. "I feel it live. I feel it tick."
Why had she stayed with Lusskin despite years of his family's disapproval? Corderi asks.
"I loved him," Mascola responds. "I just loved him, and there wasn't any strings attached to that."
Why had she loved him so much? Corderi prods.
"How do you explain that? I don't know, you know, I don't know why. Is it the physical? Was it a physical thing? There was a lot of chemistry between us."
After a commercial break, viewers watch as prostitute/police informant Bonnie Johnson testifies about the tape recorder she had carried in a cigarette pack in her sock as she spoke with Lusskin in the summer of 1993. Then they hear the scratchy, muffled voice of David Lusskin. "I want to make sure she doesn't give birth to those twins," he tells Johnson. "How, I don't care."
Later, after Johnson informed Lusskin she'd found a hit man to do the job, she taped him suggesting ways to carry out the task. "How about, you know, using a baseball bat across the stomach," he suggests. "We're talking, you got to hit her hard enough, enough that can cause internal damage and bleeding."
The plot was never carried out. Johnson informed Hollywood police, who set up around-the-clock protection for Mascola, eventually arresting Lusskin in September 1993.
On TV, Dateline segues into its second half, but the story no longer deals with Mascola's survival. "Now," Corderi tells viewers, "instead of a devoted girlfriend, she was a scheming manipulator." Footage of a strained Mascola on the witness stand fills the screen -- hair pulled back, drab olive-green blouse -- as Corderi pounds: "Kim Mascola was, the defense said, a gold digger, a would-be actress whose movie career spans a few seconds as an extra in this 1985 Burt Reynolds movie Stick." (A film clip of Mascola's head flashes across the screen.) "Her real career, the defense said, was trying to become Mrs. David Lusskin, and her pregnancy was no accident!"
On the witness stand, Mascola is being cross-examined by Lusskin defense attorney David Bogenschutz, who tells the jury that this trial is about a "cast of crazies, people with no lives except that they create them out of their own fantasies."
Bogenschutz to Mascola: Did you in fact attempt to get pregnant?
Bogenschutz: You continued to see him and you continued to have relations with him, did you not, knowing that he was not using protection and that you have been told by a doctor that your birth control method might not be effective, correct?
None of that mattered. Jurors later told Dateline they listened again and again to the Johnson tapes, zeroing in on the tone of Lusskin's voice as he talked about the baseball bat across the stomach.
On January 20, 1995, after deliberating for five hours, jurors convicted David Lusskin of solicitation to commit first-degree murder and solicitation to commit the killing of unborn children.
Eight days later Brett and Brittany, Kim Mascola's twin boy and girl, turned one year old.
But the TV special isn't over yet. It moves to Lusskin's February 1995 sentencing, where Mascola approaches the witness stand to testify, then suddenly reaches out toward her ex-boyfriend. Says Corderi, "It was, to the amazement of all in the courtroom, a hug."
As the victim in the case, Mascola was permitted to offer her views before sentencing. "I beg the court to put the children first by granting leniency to David Lusskin," she says.
Then, under questioning from the prosecutor in the case, she calmly acknowledges that her mercy flowed from the promise of money. The night before, she explains, Lusskin's mother Marlene had offered through an intermediary to pay Mascola $250,000 if she could persuade the judge to keep her son out of prison. Instead Broward Circuit Judge Mark Speiser sentenced Lusskin to fourteen years in state prison. Mascola, her rescue effort unsuccessful, didn't receive a penny.
"I was asking for leniency for a man to support his children," she explains on the Dateline broadcast. "I've got to do what I've got to do to provide for my children. And if there's an avenue, I will take it."
Kim Mascola kneels on her living room floor in front of the stuffed animals and the little beach ball and the red, yellow, and blue toy truck. Legal entrails surround her: stacks of complaint papers, motions, motions to amend motions, and countless letters from countless lawyers. Even her kitchen cabinets are stuffed with legal papers.
"January 28 will be the twins' fourth birthday," Mascola says, "and I have to be in appellate court in West Palm Beach. Can you believe I have to go through another year of this? He's in jail, the kids don't have any money, and the lawyers are trying to get something I don't have. You know how I feel? They're making me feel like a criminal for being a good mommy. In the old days, as long as someone didn't hurt me, I'd do anything to help [people]. Now it's stand back -- I don't trust anyone."
Three years after David Lusskin's trial, 39-year-old Mascola lives in a world of fear and desperation, struggling to provide for Brett and Brittany. She receives no support from Lusskin, who now resides in Belle Glades Correctional Institution in Palm Beach County, or his multimillionaire family.
Since the trial Mascola has married Terrence "Tyler" Reinsmith, the evening DJ on Big 106 (WBGG-FM). She suffers a degenerative spinal condition. Unemployed, she receives about $1300 a month in federal disability benefits for herself, the twins, and a thirteen-year-old son from her previous marriage to John Mascola. She lives with Reinsmith and the three children in a two-bedroom condo in a modest complex in West Broward. (For security reasons she fears disclosing the exact location.)
Mascola says she owes more than $50,000 in legal fees. Various lawyers continue to besiege her, including Robin Abraham, an Orlando entertainment lawyer who claims Mascola violated their contract. Abraham sued Mascola, killing a $200,000 movie deal that would have brought the Mascola/Lusskin story to a national TV audience.
Then there's Barry Franklin, a North Miami Beach lawyer who represented Mascola in her effort to obtain child support from David Lusskin. Franklin says she owes his firm more than $20,000. He took legal action to freeze a bank account that contained the twins' social security money.
Having escaped murder Mascola portrays herself now as a crusader, fighting against a legal system she says cares more about lawyers than children. The reality is more complex -- buried in thousands of pages of legal documents that raise questions about whether Mascola has used the system as well as been used by it, and whether innocent children are a justification or an excuse for ignoring the law.
Not surprisingly the lawyers who demand money say they have been abused by Mascola -- that she is a "professional plaintiff," retaining representation and then refusing to pay, "falsely claiming that they have allegedly harmed her."
When Lusskin was on trial for trying to kill her, his attorney called her a "gold digger." These days other lawyers characterize her in equally unsavory terms. One claims "that she is an actress, that she has dramatized this whole thing, that she is not believable, she's a liar, that she's not entitled to anything," and on and on.
"Every attorney I know wants to kill me, I think," Mascola says. But she argues that whatever she's done, she's done for the twins, and the lawyers and the judges should do the same. "If a man commits a crime," she contends, "the courts have to make sure the children are provided for. The children should be given the primary protection, not the criminal.
"These children are totally forgotten in all this. This is a story about two children who survived, who weren't a statistic." Mascola's words rush forth now, angry and agitated. "And now they're being made to justify their existence, defend their existence. This is a sad state of affairs for our court system, for mothers in general, for women with children struggling every day."
In the Spring of 1995, with David Lusskin in prison, Kim Mascola hoped for a movie or book deal as one way to support her twins. But even though Court TV had broadcast the Lusskin trial to a national audience, and Mascola had appeared on the nationally syndicated Maury Povich show with others whose lovers had attempted to kill them, no firm offers had come in. A local film producer had shown some interest, "but the money she could come up with, I needed more," Mascola explains now.
That spring Dateline NBC made initial contact with Mascola about producing a segment that would air the following February. Figuring she needed an entertainment lawyer, she discussed the situation with local children's advocate Eleanor Mendlein, who, Mascola recalls, "was trying to form a little group for judicial reform in Family Court. Because I had a lot of media attention on me, Eleanor had asked me to come and hand out some fliers at the courthouse, get some petitions signed, give her some names of some local news producers that had worked with me -- that she might be able to call and use my name."
When Mascola asked Mendlein about an entertainment lawyer, Mendlein recommended a personal contact in Orlando -- Robin Abraham. Mascola called Abraham, and the two women met for the first time in a Denny's restaurant in Hollywood in April 1995. With a laugh Mascola recalls their first encounter: "She talked fast, she walked fast, she looked a little bit like Joan Rivers."
Abraham's legal experience, Mascola adds, "looked impressive, and we were about the same age, we had children. I felt our goals were similar in the fact that we wanted things better for our daughters.... I thought we had a common ground, a common goal. I felt I could trust her."
The Denny's discussion led to a formal "engagement agreement" in which Mascola retained Abraham's firm, International Legal Counsel (ILC), to represent her on "any and all media or entertainment articles, books, films, videos, and/or made-for-television movies." The agreement gave ILC 30 percent of all gross proceeds but required that all the money first be deposited in an ILC trust account in Orlando, from which ILC would send Mascola her 70 percent share -- less expenses.
Mascola signed the agreement on June 2, 1995. The following month a Dateline crew spent several days in Hollywood, interviewing Mascola with Abraham present. That fall Mascola wrote to Abraham, "Please go forward and release information concerning the airing of NBC Dateline.... Generate as much interest as you can in the making of this movie. Support for the twins depends on it."
When the Dateline NBC episode aired in February 1996, it immediately attracted big-league interest. In Los Angeles, dePasse Entertainment -- the company that produced the miniseries Lonesome Dove, Streets of Laredo, and Small Sacrifices -- began discussing a deal that would give Mascola $25,000 for a one-year option on a TV movie. If dePasse actually produced and sold a two-hour movie, Mascola would receive $200,000.
"There are very few stories that we have responded to as passionately as we have to yours," company CEO Suzanne dePasse wrote to Mascola. "As producers we feel that there's a responsibility to tell your story with compassion, dignity, and in a way that will mine the important issues that affect women every day. With careful handling, we feel your story will enlighten others to the injustices of the legal system toward women."
As Mascola recalls now, dePasse was "offering more money than anyone, and dePasse was basically a women's-issue company and that really impressed me. I wanted it to be a movie that women and children across America could look to with pride, that said, 'Gosh, when the system fails you, when your man fails you, when you feel your friends fail you, you can still do this, you can still raise your children, you can still go on.'"
In late April dePasse sent a final option agreement to Abraham, who sent it to Mascola to sign. Before she signed it, however, an argument flared between Mascola and Abraham over their own contract. Mascola claims that Abraham informally had agreed to take only 20 percent but didn't rewrite the contract to reflect the change; Abraham contended -- and continues to contend -- that her 30 percent contract was legally binding. Mascola also claims that during their argument Abraham withdrew from representing her; Abraham responds that Mascola fired her and broke their contract.
Whatever words were exchanged, in May 1996 Mascola informed dePasse Entertainment that Abraham no longer represented her. As a result Mascola and dePasse signed an agreement giving Mascola $25,000 for a one-year option on her story. Mascola then directed dePasse to send Abraham a check for only $7500, the lawyer's 30 percent share of the option money. Under the terms of Mascola's contract with Abraham, all the money should have gone to ILC for disbursement. Instead $17,500 went directly to Mascola.
In a letter to Abraham after their initial argument over the 70/30 split, Mascola wrote, "Robin, you had me convinced of your outrage at the crimes committed against me and my children, and that your satisfaction came from changes we would be instrumental in making for the sake of our daughters and their future. You have proven by your words and actions that you have misrepresented yourself. I am deeply disappointed."
Mascola would soon be even more disappointed. Abraham, in various communications with Mascola and dePasse, demanded her contract be honored.
On June 20, 1996, Abraham filed suit against Mascola and dePasse Entertainment seeking unspecified damages resulting from what she considered a breach of contract.
"Ms. Mascola is a professional plaintiff," Abraham said in a hearing in Broward Circuit Court this past November. "This is yet one more attempt of Ms. Mascola to not pay an attorney to whom she owes a debt."
Abraham's lawsuit launched an avalanche of motions and countermotions. The Mascola-Abraham relationship, chronicled in Broward Circuit Court case 96-8426, currently fills ten volumes, with no end in sight. That circumstance led Judge Patti Englander Henning to remind the combatants in November 1996, "I am your judge, not your pen pal."
For Mascola the Abraham lawsuit was disastrous. It had the effect of stopping all work on a TV movie entitled "Murder for Hire," based on Lusskin's plot to have his unborn twins killed. The project, with an estimated budget of more than $1 million, was being discussed with NBC for possible broadcast in late 1996, dePasse Vice President Charmaine Jefferson told the court in Summer 1996.
But as Jefferson pointed out in an affidavit, "Because of the newsworthiness of Ms. Mascola's story, her life-story rights are perishable, and if the project is not completed promptly and on schedule, it may never be made."
She appears to have been correct. In another affidavit, this one filed this past July, Jefferson told the court, "The 'Murder for Hire' project has been dropped by NBC, and the option held by dePasse on Ms. Mascola's life-story rights has expired."
A completed dePasse movie could have meant as much as $200,000 to Mascola. A new deal is unlikely while Abraham continues to pursue her lawsuit. "She's holding us hostage," Mascola says now. "Everybody lost. She killed the goose."
If Mascola's life is told now through dry depositions and courtroom transcripts, it once gushed forth from modeling PR packets.
"Let's Meet Kim," began a 1980 bio from Cover Girl, a Miami modeling school. She was known as "Kim York" back then: 5'7" with hazel eyes, a budding actress-model who takes "very good direction," according to the bio. "We at Cover Girl are confident Kim York will hit it big one day very soon."
Kim, her brother, and their parents had moved from Bayonne, New Jersey, to Miramar in the late Sixties when Kim was ten years old. Her father worked as a labor-relations executive for Eastern Airlines, her mother as a real estate agent. Kim loved horseback riding and took flying lessons as a teenager. After graduating from Miramar High School in 1976, she worked as a bank teller. In 1978 she moved on to Cover Girl, where she coordinated fashion shows and model workshops while trying to launch her own modeling career. She also took psychology courses part-time at Nova Southeastern University. In the early Eighties she attended Brown Institute in Fort Lauderdale, a broadcasting school, then worked as a production assistant at WAXY-FM (it since has become Big 106 FM) and did voice-overs at WLRN-FM public radio (91.3).
There was another side to her life, however. After high school she eloped with a local musician, John Mascola, and the couple had a son, Jonathan, in 1984. John and Kim divorced in 1986. With a young son to raise and vexed by a troubled marriage, Kim's modeling career went nowhere, although she managed to wangle an appearance as an extra in Burt Reynolds' Stick while working at WAXY.
In order to try to correct her degenerative spinal condition, Mascola underwent her first back surgery at age nineteen. She began receiving federal SSI disability benefits for her condition in 1982, and now receives $693 a month for herself and $189 for each of her three children. She has not been employed since the radio jobs in the mid-Eighties.
Mascola's first contact with David Lusskin came after high school, when her parents relocated from Miramar to the wealthier South Lake Drive neighborhood in Hollywood, where the Lusskin family also lived. Mascola particularly resents the "gold digger" label the defense lawyer tried to pin on her at Lusskin's criminal trial. "David and I practically lived down the street from each other," she says. "I wasn't exactly someone from across the tracks."
Mascola met Lusskin through neighborhood friends in 1982, a year after he moved home after graduating from the University of Miami with a degree in computer systems analysis. He moved into an apartment above his parents' garage and tried to start a computer business. Mascola was married during this period, and she and Lusskin were only friends; on a 1984 resume she listed as a reference David Lusskin, president of Computers Unlimited.
During Mascola's 1986 divorce, Lusskin provided moral support, and their friendship deepened. They began dating the following year, but then Lusskin moved to Michigan to attend Thomas M. Cooley Law School in Lansing. After law school he returned home, passed the bar exam in 1989, and began practicing law the following year. Once again Lusskin lived above his parents' garage. His law office, which he shared with his brother Benjamin, also an attorney, was a condo owned by his mother, Marlene.
With his return from Michigan, Lusskin and Mascola began dating steadily, but according to Mascola, Lusskin's mother Marlene disapproved of her because she wasn't Jewish. When Mascola stayed overnight in the garage apartment, he made her park down the street so his mother wouldn't know she was there.
Reflecting now on their relationship, Mascola considers herself almost a social worker, helping Lusskin try to escape a very strange family. "David was a computer nerd," Mascola says. "I thought he was trapped. I thought I could help him."
Their romance turned rocky early in 1993 when Mascola says she found out Lusskin was having an affair. That June she learned she was almost two months pregnant.
These days Mascola still grows angry over the way Dateline NBC portrayed how she got pregnant, leaving the impression she somehow tricked Lusskin: "That really upset me. David would never take any responsibility for birth control. I was on the pill.... I had told David my doctor had said I was on antibiotics and I should use other precautions, just to double up for protection. I expressed this to David -- he was like, no, no. He found every excuse why we couldn't use a diaphragm, why it bothered him, he wasn't going to use condoms..., that his father is a doctor and knows these things, and there was no way I was going to get pregnant.
"I think that's important to bring out as far as character is concerned."
Arguments over whether she would have an abortion led to the final breakup. "Have a nice life," Lusskin told her on the phone. Then he began plotting to hire someone to hit her across the stomach with a baseball bat.
"The law should say, 'Family, your son did this -- he's a part of your family, he's in jail, and you have the means,'" Mascola reasons. "The family should be held responsible in some way."
But as Mascola has discovered, both in and out of court, David Lusskin's family -- father Bret, brother Benjamin, and especially mother Marlene -- wants nothing to do with her and the twins, Bret and Marlene's grandchildren. (Speaking on behalf of his family, Benjamin Lusskin declined to comment to New Times on the Lusskins' views.)
During Lusskin's criminal trial, his attorney David Bogenschutz called the Lusskin family dysfunctional, acknowledging that Marlene paid most of her then-34-year-old son's living expenses. "And so," Bogenschutz told the jury, "David Lusskin grew up in the shadow of, and probably covered by, the skirts of his mother."
Those skirts were not large enough to keep her son out of prison. After paying more than $100,000 for his defense, Marlene made the presentencing offer that shocked the courtroom: She would pay Mascola $250,000 to help raise Brett and Brittany until age eighteen if Mascola could persuade the judge to keep David out of prison. Charles Pasco, the lawyer who served as go-between for the offer, told reporters at the time, "Ms. Lusskin is a grandmother of eleven children, including the twins, and I've always known her to be a caring and giving parent and grandparent, and I think she had the children's best interests at heart."
That interest apparently ended when the judge sentenced her son to fourteen years in prison. She fell apart when the judge made his pronouncement and was helped from the courtroom, sobbing, eventually collapsing in a hallway. In the years since then, Marlene Lusskin, whose disapproval of Mascola was central to her son's decision to kill the unborn twins, has fought in court to avoid helping them in life.
Money is not exactly an issue. In the 1993 divorce case between Marlene and Bret Lusskin -- which, at twelve volumes, takes up two entire boxes -- the couple's assets were listed at approximately $8 million. They sealed the final settlement agreement, reached in January 1995, at the same time their son was on trial.
"They didn't want anyone knowing how much was actually there," Mascola says.
(Since their initial settlement, the Lusskins have battled in court over the Golden Isles Professional Building in Hallandale and various other commercial and residential developments.)
The parents' attitude toward their son's criminal case was the subject of a 1994 deposition given by Bret Lusskin as part of the divorce case. After being asked whether he ever bragged about keeping $100,000 in a paper bag in his office ("I don't recall"), Bret Lusskin was asked by his wife's attorney about a request to put up his and Marlene's $600,000 lakefront home in Hollywood as collateral for their son's bond.
Bret Lusskin: I said no because of David's action. I felt he would do something to forfeit the bond somewhere along the line and lose the house.
Q: Is it true, sir, that you told David that the way he could get out of jail was to get his mother to settle the divorce case right away?
Lusskin: I may have suggested it.... Because then she could sign the house away by herself.
Q: And didn't you say, "It's the only leverage you'll ever have on your mother" to David as part of that conversation?
Lusskin: I don't recall.
In various divorce documents, Marlene Lusskin listed among her possessions a $4000 pair of diamond earrings, a gold ring worth $10,000, and a $10,000 Rolex "Presidential" watch.
The couple also owned several vehicles: two 1978 Rolls Royces, a 1981 Mercedes 300 diesel, a 1982 Mercedes convertible, a van, a truck, and a military tank, for which Dr. Lusskin paid $18,000 and spent about $60,000 rebuilding. In the divorce settlement, Marlene and Bret were awarded one Rolls and one Mercedes each; she got the van, he got he truck and the tank.
To Mascola the cars symbolize Marlene Lusskin's attitude toward the twins. With all that money and her Mercedes and her Rolls, Marlene still went to court to seize David's $29,000 Mazda RX-7, preventing Mascola from selling it to raise child-support money.
"They don't need that car," Mascola fumes. "They're not exactly lacking for transportation."
Mascola's battle for Lusskin family money began in March 1994, dragging on for more than three years. She first sought financial support for the then-infant twins from their father. After his January 1995 conviction, she tried to persuade the courts that his family should be required to provide support. Mascola has gone through five lawyers, one of whom is suing her and another who is being paid by the taxpayers of Florida. The files in Broward Circuit Court Case 94-3032 are measured in boxes, some stored at the county courthouse in Fort Lauderdale, some in the Fourth District Court of Appeal in West Palm Beach, leading Circuit Court Judge Linda Vitale, who took over the case in December 1995, to observe this past February, "This case has gotten out of hand."
The legal issues, however, changed very little between this past April, when the case was finally settled, and August 1994, when Richard Perlini, Mascola's lawyer at the time, questioned David Lusskin about what assets he had for support of his then-seven-month-old twins. When Perlini asked Lusskin who owned the Sony TV in his apartment, Lusskin responded, "My mother does."
Marlene Lusskin also loaned her son jewelry, sometimes for years at a time, and he lived rent free in the two-bedroom apartment above the garage at the family home in Hollywood. His mother owned the office condo where David and Benjamin practiced law. She had sprung for all of its furnishings, and the brothers paid no office rent. David and Benjamin shared ownership of three speedboats, and David's apartment overflowed with electronic gadgets, top-of-the-line stereo equipment, four Macintosh computers, and hundreds of computer games.
In a 1994 deposition regarding the child-support case, Mascola recalled that she once asked David the following hypothetical question: If there were ever a fire in his apartment, what would he carry out?
Mascola was also asked if she had knowledge of any trust fund agreement with David Lusskin as beneficiary and replied she saw something like that "when he was playing at his computer, and I used to be over his shoulder massaging them or whatever.... He mentioned something -- something about a million-dollar sum in some conversation, you know."
A few moments later she added, "I never really cared about his money. It used to make me sick, actually."
It made her more sick, however, when she learned that under the law David Lusskin was broke. After his 1993 arrest, his mother lent him more than $100,000 to pay for a defense lawyer. "A large amount of loans was loaned to me by my mother to pay some of the fees," Lusskin testified during the 1994 child-support hearing. "I didn't have assets at the time to pay that money."
Then in June 1994 his mother made the loan to her son a legal contract. He signed a promissory note to her for $107,500, payable on demand but at no interest. That gave Marlene legal claim to her son's assets. In partial repayment of the note, David further testified, "I gave her all my stocks.... my savings account CD, wrote her a check for $6800."
That asset transfer occurred a few days before a hearing on the child-support issue. General Master Philip Schlissel, who heard testimony and made initial recommendations in the case, took note of the timing of the asset transfer. "I am going to make a finding that this is not a run-of-the-mill case," Schlissel wrote. "The court also can't escape the fact that the promissory note was not done at the time that he received the money but was only done for purposes of this litigation."
The promissory note permitted Marlene Lusskin to go after her son's 1993 Mazda RX-7, for which he had paid $29,000 cash, part of a $40,000 inheritance. In 1996, with David in prison, Marlene filed suit against her son, demanding payment on the note, with the Mazda to be used as a partial payment. Marlene's lawyer in that suit was Benjamin, who filed motions on stationery from the "Law Office of David L. Lusskin, Esq."
In May 1996 Marlene Lusskin got the Mazda, which was moved to her South Lake Drive driveway with her Mercedes and her Rolls.
Recipients in child-support cases are entitled to be represented by the State of Florida, and in November 1996 Assistant State Attorney General Robert Julian became Mascola's lawyer. Julian went after the Lusskin family's money, arguing in a February 1997 hearing that Benjamin had received money from his brother's law-practice cases. "Benjamin Lusskin accepted assets that were David's... that came to him after his conviction, that he admits was David's money that should be available for the support of the kids."
Julian also argued that "Marlene Lusskin testified that approximately $20,000 or $30,000 of David's stock was transferred to her just prior to the motion [to freeze her son's assets]."
"They have been stonewalling from day one," the assistant attorney general said of the Lusskins.
Responded Judge Vitale, "This case needs to be concluded."
"My job is to see that all the money that's available is available to her children," Julian shot back.
As the hearing continued, Mascola grew more strained, suggesting that the imprisoned Lusskin might get a computer job to provide support, leading to this bizarre exchange:
Vitale: But obviously at the present moment, it's probably not possible for him to obtain employment in the computer industry.
Mascola: Your honor, my girlfriend recently, she's an at-home mother, is working with a computer company out of her home.
Vitale: I know. But I don't know that they allow that from jail.
Mascola: We don't know. We don't know. What? We don't -- we don't know.
Vitale: We kind of know.
Finally this past April, Vitale ruled in favor of the Lusskins: "They do not owe child support.... There is only one biological father at issue here.... Although the emotions understandably run high in the case, the assets and income do not. The only readily available assets have been expended for attorney fees both in this case and on the criminal matter."
Vitale ruled that even though the brothers practiced law together, they were not a formal partnership, so the firm's assets could not be used for child support. She also ruled that David had transferred his share of boat ownership to brother Benjamin, and that while David had transferred $23,000 in stock to his mother, that stock already had been awarded by another judge to one of Mascola's former lawyers, Richard Perlini, to pay his fees.
Vitale concluded that Mascola, after more than three years in court, was entitled to $6196 in back child support. She also noted that money collected from David Lusskin's old law cases amounted to $5500, which the firm should pay to Mascola.
Because he was now in prison, his income was zero, Vitale concluded, and set future child support at zero.
The State of Florida is appealing that order.
On one side of the Big 106 FM stationery, Brett Mascola has scrawled his name in lime-green crayon along with lots of stars. On the other side, his mother has used pencil to draft a complaint to the Florida Bar. This one protests "a writ of garnishment on my only account and sole support for the children, freezing their social security monies. I was left unable to purchase diapers or medicine prescribed by the pediatrician for the twins."
Mascola filed the bar complaint this past June after one of her many attorneys, Barry S. Franklin, demanded to be paid. "I knew I had to get the twins' prescription," she angrily recalls, "and when I called the bank to see the available balance, it said minus $6000. I couldn't imagine what had happened. My God, I was hysterical, and then I found out it was him."
Franklin garnished the bank account as part of a lawsuit he filed in July 1996, claiming that Mascola owed his firm more than $20,000. "Here I was asked to take on what I considered to be a monumental task," Franklin said in an October 1996 deposition on the fee dispute. "It involved a lot of work, a lot of expense, and I wasn't getting paid, for whatever the reason. There was no money involved for a tremendous amount of work."
There were, however, movie rights.
Mascola had secured Franklin's services in 1995 after being dissatisfied with Richard Perlini. Mascola and Franklin discussed filing a civil lawsuit against the Lusskin family for damages stemming from the murder plot, and Franklin also took over the paternity/child-support case. The civil action, which was never filed, was to be a contingency case -- Franklin receiving a percentage of whatever he collected from the Lusskins. The child-support case, however, involved a retainer agreement with hourly fees and expenses to be paid by Mascola.
As security Franklin demanded that Mascola assign "proceeds from any movies, books, talk show engagements, or other such like matters sufficient to satisfy any and all attorney's fees and costs owed" to Franklin's firm.
Thus did Franklin come into contact with Abraham, the Orlando entertainment lawyer who thought she controlled Mascola's movie rights.
In February 1996 -- as the dePasse Entertainment movie deal was being discussed -- Mascola told Abraham that Franklin was claiming her story rights. According to Abraham, Mascola also told her that Franklin was supposed to be working only on a contingency basis, so he had no right to send her monthly billing statements or to tie up her rights as security.
On that basis Abraham called and wrote Franklin, angrily demanding that he relinquish his claim to the story rights. "I was being accused of high crimes and misdemeanors," Franklin groused in his deposition. "I said I don't need this aggravation, it's not worth it. I'm going to withdraw from the [support] case, which is what I did."
But in July 1996, Franklin reappeared, filing suit against Mascola to collect his fees in the support case. It turned out she had signed a retainer contract and that the monthly fee statements were valid. In his deposition Franklin said some lawyers consider Mascola an "actress" and a "liar."
When Vitale ruled on Franklin's suit in November 1996, she noted that lawyers are supposed to avoid incurring fees that are "not cost-effective," and continued, "the basic problem with this case appears to be that the parties are embroiled in animosity concerning issues that are unrelated" to the support case. With Franklin claiming more than $20,000 -- on top of the $20,000 awarded to Mascola's first lawyer (Perlini) -- Vitale concluded: "The attorneys' fees in this case are out of proportion with the cause of action and the results that could possibly be obtained in the action."
Vitale reduced the amount Mascola owed Franklin to $6800. Franklin is appealing.
This past June he also obtained the writ of garnishment freezing the money in Mascola's bank account, which held the twins' social security money.
"I had to go to court myself, because I couldn't afford to get an attorney," Mascola says now. "I showed Judge Vitale the social security check.... This is all I have to use for the twins. I've got to buy diapers, for crying out loud. They're still in diapers. I wish they were potty trained."
Vitale decided to split the money in the bank account between Mascola and Franklin -- from his writ of garnishment Franklin obtained $679.25.
The Abraham lawsuit continues with motion after motion and no resolution in sight. "It just goes on and on," Mascola says quietly, with increasing desperation. "It's very confusing, very disheartening."
Her current attorney in the movie-deal case, Steven Naturman of Miami, has told her he will have to withdraw. "It's bankrupting his firm," she explains. Figuring she now owes Naturman about $30,000, she adds with a sigh, "I'll probably spend the rest of my life paying him off."
In the support case, Mascola's appeal is being handled by the state revenue department in Tallahassee; she says the attorney there doesn't return her phone calls.
The Florida Bar threw out her complaint against Barry Franklin, finding no ethical violations. On January 28 Franklin will argue before appellate judges in West Palm Beach that he deserves more than $6800. Mascola plans to be there, even though January 28 will be the twins' fourth birthday.
"The basic issue is still that these people are stealing from my children," Mascola declares angrily. "This is about two kids who survived only to be buried in the legal system. I hope some attorneys will come forward.
Get the This Week's Top Stories Newsletter
Every week we collect the latest news, music and arts stories — along with film and food reviews and the best things to do this week — so that you'll never miss New Times Broward-Palm Beach's biggest stories.