Despite Recanting Witness, Judge Rejects 'Grid Kid Killer' Appeal

by Hella Winston
Gothamist

 

The witness that helped convict John Giuca for the murder of Mark Fisher in 2003 had a strong motive to cooperate and has since recanted, but that was not enough to sway a Brooklyn judge to order a new trial. Yesterday Justice Danny Chun rejected arguments that a prosecutor withheld favorable material from the defense and presented false and misleading testimony pertaining to a key witness, and denied Giuca's motion to vacate his 2005 conviction.

After the decision was read aloud in court, Giuca’s mother, Doreen Giuliano, collapsed in sobs. The family of Mark Fisher was escorted from the courtroom in silence.

Giuca, dubbed the “Grid Kid Killer” by the tabloids, has always maintained his innocence in the Ditmas Park murder, and this is not the first time he has lost a bid for a new trial. Prior appeals related to juror misconduct and a petition to the Brooklyn DA's Conviction Review Unit containing witness recantations and claims of prosecutorial misconduct have all failed.

Giuca, 32, has served a little over a decade of a 25-to-life sentence.

But Giuca's lawyer, Mark Bederow, says he is undeterred and plans to seek leave to appeal the judge's decision.

In his motion and in hearings late last year, Bederow presented evidence that a drug addicted jailhouse snitch named John Avitto came forward to the prosecutor, Anna Sigga Nicolazzi, with information on Giuca right after he fled a court mandated drug program.

Bederow argued that Avitto reasonably believed he was in danger of being incarcerated—a judge had told him multiple times the failure to complete the program could result in a jail sentence—and that his cooperation could help him in his own drug case. Bederow also presented mental health records that established that, prior to his cooperation with the Giuca prosecution, Avitto had admitted to a history of lying to help himself.

Bederow also elicited testimony from Nicolazzi that she personally escorted Avitto to court on his own case and warned him that the judge might put him in jail. She also testified that after she approached the bench and notified the judge that Avitto was offering information in the Mark Fisher case, Avitto was released.

This is key, Bederow contends, because regardless of what Nicolazzi told the judge, Avitto could reasonably have construed his release as a benefit resulting from his cooperation. And case law that holds that anytime a witness receives—or perceives he has received—such a benefit, that must be disclosed to the defense, who may in turn use it to impeach a witness’ credibility.

At Giuca’s trial, the jury heard none of the details surrounding Avitto’s cooperation with the prosecution and were told only that he came forward out of a desire "to do the right thing." The failure to disclose these details, Bederow argued, violated the prosecutor’s legal obligation.

Avitto later testified that he “made up” his account. “I did it because—I'm sorry, again. I did it to help myself. I was scared to go to prison for three-and-a-half to seven, okay,” he told Giuca from the stand.

Judge Chun was not persuaded, finding that “the defendant failed to prove that Avitto was promised or gained any benefit for testifying in the defendant’s trial.”

The judge also failed to credit Avitto’s recantation, which was not in fact central to Bederow’s argument.

“We believe the Court focused on the wrong issues,” Bederow said after the ruling.

“Evidence of a concrete, tangible agreement of a benefit between Avitto and Nicolazzi is not the issue; what matters is that the DA deliberately kept the jury ignorant of evidence that would have demonstrated Avitto's cooperation was principally motivated by his desire to help himself not the altruistic motive put forth by Nicolazzi,” Bederow said.

“The issue is whether [Avitto] testified accurately in 2005. This issue cannot be resolved simply by deciding he is not credible now. All of the [records] and other non-Avitto evidence at the hearing establishes that he would do or say anything to help himself with jail just a few weeks and months before he offered to cooperate. Then he gets in trouble, knows he might get prison and immediately calls the DA. And we are supposed to believe…that his motive was a pure heart to do the right thing?”

After the decision, Brooklyn DA Ken Thompson released a statement: “The judge’s ruling shows, which we've said all along, that John Giuca received a fair trial.” The statement went on to assert that “the bottom line is that Giuca murdered Mark Fisher and is now rightfully in prison for committing that horrendous crime.”

But Giuca’s mother has no plans to give up. "John’s a mess, suffering, got anxiety,” she said as she left the courtroom. “All we want is a fair trial. Give him a fair trial."