Did The Brooklyn DA Frame An Innocent Man For A College Student's Murder?

by Hella Winston
Gothamist

 

It's not every day that a 27-year veteran of the NYPD openly contradicts a prosecutor and admits under oath that he was “not sure if I believed anything” about a key conversation relayed by a jailhouse informant whose testimony helped put a man in prison for 25 years to life. Or that the detective’s partner testifies that the informant “absolutely” gave false testimony at trial. Or that the snitch himself breaks down in sobs on the stand as he recants his trial testimony and begs the defendant to forgive him for “only trying to help myself.”

But those are the kinds of stunners that emerged from a recent hearing in Brooklyn Supreme Court to determine whether the Brooklyn district attorney violated the rights of John Giuca, convicted in 2005 for the 2003 murder of a handsome college football player named Mark Fisher.

The case against Giuca—fueled by a prosecution narrative populated by teenage mobster wannabes the press appeared to swallow whole—grabbed tabloid headlines for two years and literally earned the prosecutor, longtime homicide ADA and media darling, Anna-Sigga Nicolazzi, a medal.

At trial, the prosecution advanced several inconsistent theories: The murder was the result of a robbery gone awry, a hit ordered by Giuca to boost the street cred of his “gang.”

Or maybe it was provoked by Fisher when he angered his assailants by refusing to withdraw more money from an ATM machine.

The first two versions had Giuca supplying the gun to the killer but not participating in the actual murder, while the third version involved Giuca pistol-whipping Fisher before one of his two accomplices shot him dead.

Over the course of several weeks in November and December, Giuca—who has always maintained his innocence—presented evidence he hopes will lead the judge, Justice Danny Chun, to vacate his conviction. He has already lost several appeals and last year his conviction was upheld once again, after a year-long review by the Brooklyn District Attorney’s Conviction Review Unit (CRU) led Brooklyn DA Ken Thompson to declare that Giuca had received “a fair trial.”

Fisher’s family was in court every day of the hearing, sitting stoically as they listen to testimony.

Giuca’s central claim before the court is that Nicolazzi withheld favorable material from his defense attorney and presented false and misleading testimony at trial pertaining specifically to the jailhouse informant, a drug addict with mental health issues and a lengthy rap sheet named John Avitto.

Not surprisingly, the DA denies these charges and it will ultimately be up to the judge to decide the issue. Whatever its outcome, the hearing has exposed fissures in the foundation of the DA’s original case against Giuca so profound that, all these years later, fundamental questions of just how, why and by whom Mark Fisher was killed remain unanswered.

The events that led to John Giuca’s arrest and conviction began in the wee hours of October 12, 2003, when 19 year-old Mark Fisher, a strapping college student from New Jersey, accompanied an acquaintance named Angel DiPietro from a bar on the Upper East Side to an impromptu party at Giuca’s parents’ Ditmas Park home.

Fisher knew no one else at the party aside from his college classmate DiPietro. Others in attendance included Albert Cleary, the son of a prominent member of the Brooklyn GOP and a childhood pal of Giuca’s who was also close friends with DiPietro’s boyfriend, and Antonio Russo, a nearby neighbor.

Records show that at 5:23 a.m., Fisher, accompanied by Russo, withdrew $20 from a nearby ATM; both men then returned together to Giuca’s house. At some point after that, Fisher fell asleep on Giuca’s couch and Cleary and DiPietro took their leave, later telling investigators they walked the three blocks to Cleary’s stately home on Argyle Road and went to sleep.

At 6:40 a.m., Fisher, his body beaten and shot five times, was found dead about 50 feet across the street from Cleary’s driveway. Only two shell casings were found at the scene.

During a police canvass of Argyle Road the morning of the murder, a number of residents reported hearing multiple gunshots and the sounds of a car door opening and closing, and a car driving away. Several people told cops they saw a dark vehicle leaving the vicinity of the shooting. One couple, who lived in the house outside of which Fisher’s body was found, told police they heard the voices of young people, including a distinct female voice.

Early media reports quoted then-NYPD Commissioner Ray Kelly saying that investigators were operating under the theory that the crime “emanated from a dispute” over a girl and that Fisher was “jumped by a group” and put into a car or van as he left Giuca’s house.

Though they were not interviewed that morning, both Cleary and DiPietro ultimately told detectives they had been sleeping soundly at the time of the shooting and had not heard a thing.

But records show that DiPietro, whose father is a well-known criminal defense attorney in Brooklyn, changed her story several times during the course of the investigation. At trial, DiPietro testified that it was Giuca who had reported that Fisher had left his home safely, in a panicked 11 a.m. call to Cleary.

As it happened, phone records confirm that there was no 11a.m. call from Giuca to Cleary.

But none of this was raised by Giuca’s trial attorney and Nicolazzi was able to use DiPietro’s testimony to suggest that Giuca had called Cleary that morning as part of an attempt to cover up his involvement in the murder.

For his part, Cleary, who at the time of Fisher’s death was on probation for a violent assault in the Bronx, insisted he knew nothing about the murder and provided the DA with the results of a polygraph exam indicating as much.

Then, about a year after the murder and apparently under increasing pressure by investigators eager to solve the high-profile crime, both Cleary and Giuca’s girlfriend Lauren Calciano, who had not attended the party, told investigators that Giuca had confessed to them together.

This suggested that Cleary had either lied in his polygraph exam or later at trial against Giuca, and neither possibility is a sterling endorsement of his credibility as a witness. Cleary and Calciano’s statements were the only evidence linking Giuca to the crime—but, notably, they didn’t match.

Both claimed that Giuca admitted to providing Russo with the gun he then used to kill Mark Fisher, and both said that Giuca was not present for the murder. Yet each offered a different description of Giuca’s role in the crime.

Cleary said that Giuca told them he gave Russo the gun and instructed him to show Fisher “what’s up” after Fisher “disrespected” him by sitting on a table in his house.

Calciano said Giuca told them that Russo planned to rob Fisher and asked Giuca for a gun.

Calciano put the time of the alleged confession in the afternoon after the murder, while Cleary said Giuca confessed to them at night.

Cleary also accused Calciano of removing evidence for Giuca, something she denied and for which she was never charged.

Shortly after these revelations, Giuca was indicted on charges of second-degree murder, robbery, and criminal possession of a weapon. The tabloids dubbed him the “Grid Kid Killer,” and would go on to paint Giuca, who was at the time enrolled at John Jay College of Criminal Justice, as a capo in a Sopranos-obsessed local gang dubbed the Ghetto Mafia.

The “gang” portrayed by the prosecution was more like a group of longtime neighborhood friends, their alleged “boss”—who did not testify at trial—at the time of the murder a student double-majoring in economics and accounting at a college in North Carolina.

Russo—who had cut his long, dreadlocked hair immediately following the murder and skipped town—was also charged with robbery and murder. He pointed the finger in numerous directions, alternately linking Giuca and Cleary to the crime, and citing several different sources for the gun. Like Giuca, Russo did not testify at his trial or Giuca’s.

About three months before Giuca was set to stand trial, Avitto came forward to the cops with his own tale of a confession by Giuca. He met with Nicolazzi and told her that Giuca had admitted to the killing while the two were locked up in Rikers some four months earlier.

Avitto’s version of the alleged confession had Fisher visiting an ATM with Giuca and two unnamed accomplices, who beat and then shot Fisher after he angered them by withdrawing only $20.

Avitto’s story was completely different from the confession Giuca allegedly made to Calciano and Cleary; it was also the sole piece of evidence that placed Giuca at the murder scene. Avitto’s story also introduced a second ATM trip into the narrative, something for which the prosecution also had no evidence.

None of Giuca’s alleged confessions involved a car or van, or the presence of a female at the scene, as reported by the residents of Argyle Road.

At trial, Nicolazzi dispensed with the inconsistencies in the stories of Calciano and Cleary using a kind of logical sleight of hand.

The “discrepancies” in their accounts were “natural,” Nicolazzi told the jury, the product of so much time elapsing and their refusal to “come clean” for a year. Ultimately, she said, their conflicting stories were evidence of “the truthfulness of what they told you from the witness stand.” Nicolazzi had turned their serious credibility issues into proof of their credibility.

Close to the end of the trial, Nicolazzi decided to put Avitto on the stand. This came after both Cleary and Calciano had already testified—and had undermined eachother’s credibility, with Cleary accusing Calciano of removing a gun bag from Giuca’s home and Calciano denying the accusation and calling it a “lie.” (When asked at the hearing whether this meant one of them had not testified truthfully, Nicolazzi perplexingly responded “Not necessarily, but maybe.”)

In her trial summation Nicolazzi told the jury that “everything [Avitto] told you is credible,” and that his story was the one that made the “most sense,” because it placed Giuca at the crime scene, where, she said, he may even fired some shots himself—a rather brazen claim, considering this was something that Giuca wasn’t actually charged with and for which Nicolazzi presented no other evidence.

The jury took just over two hours to render a guilty verdict. "He was set up," Giuca's mother repeated to "whoever would listen," according to the Times. (She would later go to extraordinary lengths in an attempt to exonerate her son.) In Russo's case, it took one more day. Both were later sentenced to 25 years to life.

At the recent hearing—which the judge granted based on what is known as 440.10 motion Giuca filed earlier this year to vacate his conviction—Nicolazzi testified that “we always believed, and I still believe that there was more than one person present at the time Mark Fisher was beaten and killed.”

But she also conceded that Giuca’s alleged confession to Avitto could not have been true because, while Avitto said that Giuca described the robbery and murder as happening immediately after an ATM trip, “basically at the same time, at the same transaction…all one and the same,” she never in fact believed that Fisher made a second trip to an ATM—a striking admission considering that in her summation at trial she made several references to a “first” ATM visit, implying there had been a second.

The fact that Avitto’s story did not comport with any of the other evidence in the case did not raise any red flags for Nicolazzi about his credibility; in fact, she testified, it actually convinced her he was being truthful.

In a rambling response to Giuca's attorney Mark Bederow’s questioning she testified that she believed what Avitto had told her because “it was more like a conversation [he and Giuca] had had some time before, which in this case was months, and not being as focused because they weren’t kind of putting it in his brain for any particular purpose at the time that he’s hearing about it, and the when and the what, where.”

So, rather than consider that that the jailhouse snitch might have been lying about Giuca’s confession, Nicolazzi apparently preferred to believe that Giuca was something of a serial false confessor to murder who was nonetheless guilty.

As it turns out, however, there was ample reason to believe that Avitto’s credibility might have been less than stellar.

In fact, Avitto had a documented history of making things up to benefit himself. A mental health note written by a Rikers psychiatrist just three months before Avitto came forward to law enforcement about Giuca’s confession indicated that Avitto had fabricated claims that he was suicidal in order to be removed from the general population and put into the mental health facility at Rikers, where he believed he would be more comfortable. The note quoted Avitto as saying that he “had to do what I had to do to change my situation.”

Giuca’s attorneys and other experts believe that Nicolazzi should have been aware of these records and turned them over to the defense as information favorable to Giuca.

But at the hearing she testified that, despite a defense request any records related to Avitto’s drug and psychiatric history, she never even investigated Avitto’s mental health background and thus did not have those records. Indeed, the records only came to light when Thompson’s CRU requested them last year—and nonetheless concluded that Giuca got a fair trial.

That is not the only issue Giuca’s attorneys have with Nicolazzi’s handling of the case. One of Giuca’s key claims relates to the circumstances surrounding Avitto’s cooperation with the district attorney and just what the defense knew about those circumstances.

Avitto came forward with his information about Giuca only after he absconded from a court-mandated drug program and, because of this violation of his plea agreement, faced arrest and a 3-7 year prison sentence.

At the hearing, he testified that he “made up” his account of Giuca’s confession—which he claims to have constructed from newspaper reports he read at the time—so the DA would help him get his warrant “squashed” and keep him out of prison and in a drug program.

Addressing Giuca from the stand, Avitto said, “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. I mean, if you look at my rap sheet and all the prison time I did, three-and-a-half to seven, you would probably think I could do that anytime. But I was scared. So what I did was, we were friends in there and I said to myself when I got out and I violated, I said I could come up with a story about you and put pieces together from what I read in the newspaper and everything and get the D.A.s to help me get out of my warrant."

Avitto went on: "I knew I couldn't do a drug program at that time. I knew it for a fact. So, I kept warranting, walking out of programs, walking out of programs, walking out of programs, and I just fabricated the story more and more so the D.A. would believe me about you. And I'm truly, truly sorry. Please forgive me.”

His strategy worked. After Avitto came forward to Nicolazzi the judge declined to send him to prison and instead released him on his own recognizance. This happened yet again, just before Avitto was set to testify against Giuca.

This is critical because the law requires that whenever a witness receives a benefit—either explicitly or tacitly—in exchange for his testimony, that fact must be disclosed to the defense, who can in turn use it to raise questions about the witness’s initial motives for coming forward as well as his motive, bias or interest at the time he actually testified.

In fact, case law has established that even if there is no discussion between the witness and prosecutor about any actual or even possible benefit, anything a prosecutor does that could be construed by the witness as a benefit must also be disclosed. It is then up to the jury to figure out whether and how that might impact the witnesses’ credibility.

Giuca’s defense attorney Mark Bederow obtained information that Avitto came forward with his story about Giuca’s jailhouse confession almost immediately after he had absconded from his program. Bederow also learned that, after meeting with Avitto in her office Nicolazzi—accompanied by one of the lead detectives on the case—personally walked Avitto to court to deal with his own arrest warrant. While there, she had an off-the-record conference with the judge, who then released Avitto on his own recognizance.

None of this was disclosed to the defense.

What’s more, at trial Nicolazzi allowed Avitto to testify in a way that concealed her appearance on his case that day in court.

Ken Taub, the attorney initially assigned to the Fisher murder, defended the Brooklyn DA’s office at the hearing. He made it clear he doesn’t buy Avitto’s recantation and at the hearing went so far as to declare his “disgust” with him in open court.

Taub also made hay of the fact that Avitto first recanted to a woman who lied to gain his confidence and now claims to have a romantic relationship with Giuca.

But ultimately, it’s Nicolazzi’s actions—and not Avitto’s credibility—that are critical to Giuca’s claim. At the hearing, both Nicolazzi and the detective testified that before they walked him to drug court they warned Avitto there was a possibility the judge might put him in jail. Nicolazzi also testified that in her off-the-record discussion with the judge she was “sure that I explained to her the circumstances of his return was that he was in my office giving information or purported information on a case that I was working on” and that she had made both the judge and Avitto’s drug counselor aware that Avitto had said he wanted to be placed in a drug program better suited to his mental health needs.

However, under repeated questioning by Bederow, Nicolazzi also insisted that because she had made no “deal” with Avitto in return for his cooperation, her appearance on his case was not something she was obligated to disclose to Giuca’s defense attorney.

“I think it would be different if it was being asked and somehow suppressed but, no, I don't think there was any obligation then, nor do I think now, to disclose it, that anything was being hidden, that we were under any obligation to disclose.”

But all of that misses the point, says Joel Rudin, a leading civil rights attorney who has successfully represented numerous defendants in wrongful conviction actions. It is not only what Nicolazzi may or may not have said to Avitto but also how he could have interpreted her actions that matters

“Nicolazzi told Avitto he might go to jail, then she—the prosecutor handling the very case he was volunteering to testify in—personally spoke to the judge, then the judge released him. It is illogical to contend that the witness did not have reason to think that Nicolazzi had helped him.”

Rudin added, “She admits that she brought his proposed cooperation to the judge’s attention, which made him a prospective prosecution witness in a high-profile murder case and undoubtedly could have influenced the judge’s decision, which could have gone either way. It is concealment of information like this that leads to wrongful convictions.”

Of course, it’s possible that had these facts been disclosed the jury may still have voted to convict Giuca. But since they weren’t, and since Avitto’s last-minute testimony was critical to the case, all Bederow has to show, according to Rudin, is that there is a “reasonable possibility” that its disclosure, as well as the fact that the jury was misled, would have affected the outcome of the trial. “Given the pivotal importance of the issue of why this witness testified the way he did, the standard is satisfied here.”

A spokesperson for the Brooklyn DA's office declined to comment on the record about the hearings.

Whether the judge agrees remains to be seen. But what seems crystal clear is that, whatever the decision, we are no closer to knowing just why and how Mark Fisher was murdered 12 years ago.

Hella Winston is a Senior Fellow at the Schuster Institute for Investigative Journalism.