He's Been Locked Up for 13 Years. Will This Tape Free Him?

'TOUGH GUYS CARRY NINES'                      
Before convicting John Giuca of murder, his prosecutor recorded a conversation with a snitch whose account suggests Giuca didn't do it. Why is the DA just handing that over now?

by Hella Winston
The Daily Beast

“I believe he bullshitted me,” Joseph Ingram told homicide prosecutor Anna-Sigga Nicolazzi.

Ingram was in her office in 2005, a career criminal out in the world to tell her about his conversation with a boastful murderer, Antonio Russo, who didn’t seem to know the sort of gun he’d used in his crime. But what Russo did know, Ingram told Nicolazzi, was that he’d shot a man five times and killed him.

And, Ingram told Nicolazzi, in Russo’s telling and that of the other man who she would soon convict of that murder, that other man, John Giuca, had no role in the crime.

Giuca, now back on Rikers Island and awaiting a new trial after his murder conviction was vacated in February, hopes the tape he by rights should have known about all along could help him finally win his freedom in what may be one of Brooklyn’s strangest and saddest miscarriages of justice.

Giuca was convicted in 2005 for his supposed role in the 2003 murder of Mark Fisher, a star college football player beaten and shot dead during his first trip alone as a young man into New York City in a crime that made national headlines. Nicolazzi convinced a jury to hold Giuca to account despite a lack of physical evidence tying him to the murder, contradictory witness testimony, and multiple incompatible and shifting theories and accounts at the trial of his supposed crime.

A separate jury also convicted Giuca’s friend Antonio Russo, who was the last person seen with Fisher, according to witnesses. Russo, who was known to carry a gun, cut off his signature dreadlocks just after the murder and then flew to the west coast after telling people he was in trouble.

Three successive district attorneys have stood by Giuca’s conviction through his several unsuccessful appeals, a reinvestigation of the case in 2014 by the office’s internal Conviction Review Unit, and Giuca’s final 2015 appeal to vacate his conviction after the three key trial witnesses all recanted their testimony and in which he documented serious allegations of misconduct by Nicolazzi.

In February, a unanimous appellate panel overturned his conviction and ordered a new trial, citing Nicolazzi’s failure to disclose information that could have undermined the credibility of a prosecution witness and allowing and even soliciting what she knew to be false or mistaken testimony by that witness. The DA has moved to get permission to appeal the reversal, even as they push ahead with a new trial in the old murder.

With the witnesses having recanted, prosecutors re-interviewed Russo in prison. He confessed to committing the murder alone, without implicating Giuca in any way. Prosecutors are required to turn over any potentially exculpatory evidence they find, and they promptly disclosed that interview to Giuca’s lawyer, Mark Bederow. Two months later—and 13 years after it was recorded—they also turned over Ingram’s interview.

In both accounts, Russo said that he acted alone.

Ingram told Nicolazzi he met Russo on a bus ride the two took from Rikers to Bellevue. He said Russo confessed to shooting Fisher after attempting to rob him. According to Ingram, Russo said he then “called John’s house” and subsequently went there, “knocked on the door... John answered the door. The kid [Russo] asked him to get rid of the weapon and John refused.”

Ingram also says that he and Russo “discussed the weapon” and that it “boiled down to a .22,” but not until after Russo initially told him that he had used a 9mm (the gun used to kill Fisher was in fact a .22 caliber).

“I believe he bullshitted me,” Ingram tells Nicolazzi, explaining that Russo told him he shot five shots (Mark Fisher was shot five times).

“I know a little bit about shootings and this sort of thing... most .22 automatics carry five 5 shots, the cheap ones.”

When asked by Nicolazzi why he believed Russo lied about the weapon, Ingram replied: “Tough guys carry nines.”

What Ingram recounts is remarkably similar to the account that Russo gave DA investigators in March of this year—specifically, that he shot Fisher after trying to rob him and that he had used a 9mm German Luger.

The contents of Ingram’s interview undermine what the prosecution ultimately argued at trial—that after the murder Russo returned the gun to Giuca, who then asked another witness, who has since recanted his testimony, to get rid of it (the murder weapon was never recovered). Ingram’s statements also contradict those of another trial witness who’s since recanted, and who testified at trial that Giuca told him that he was at the scene of the murder and participated in beating Fisher before Russo shot him.

So the informant told the prosecutor that Russo said he did it, and by himself, and that Giuca said that he didn’t do it. The prosecutor—despite her legal obligation—does not appear to have shared that information with the defense.

Giuca’s lawyer, Mark Bederow, argues in a new motion filed Tuesday and first reported here, that Ingram’s interview is exculpatory for Giuca and by law should have been turned over to his lawyer before trial—13 years ago.

(The only information the defense apparently received related to Ingram, who was not called to testify at the trial, was a hand-written list of convictions for a possible witness identified as “James Ingram.” The typo would likely have kept Giuca’s lawyer at the time from connecting “James” with Joseph Ingram’s 61-page rap sheet)

Because the tape was apparently withheld until the DA’s office put it in a huge dump of materials related to the case and provided to Bederow last week, Giuca didn’t get the chance to raise it in the hearing on his 2015 motion to vacate his conviction—a hearing whose subject was just such violations.

Bederow’s latest filing asks a judge to dismiss the new murder trial, given the ”lost” tape, or, failing that, to reopen the appeals panel hearing that’s already vacated Giuca’s conviction, so that the judges considering the DA’s appeal of that decision are aware of this latest bit of long-withheld information.

(Joseph Ingram died in 2006 and thus cannot testify about his conversations with either Russo or Giuca, further prejudicing Giuca, Bederow argues.)

It is unclear from the tape precisely how Ingram—who spent most of his adult life in New York prisons—came to be speaking with Nicolazzi at the Brooklyn DA’s office. Bederow implies in his filing that the DA arranged for Ingram, a state prisoner, to be moved to Rikers Island for the purpose of gathering information about Fisher's murder from Giuca and Russo, notwithstanding their knowledge that both defendants were represented by counsel, so that anyone acting on behalf of the state would have needed to go through their attorneys.

Nicolazzi, who was allowed to moonlight as a True TV host while the Brooklyn DA’s Conviction Review Unit researched the case, has never spoken publicly about it except under oath during Giuca’s successful appeal of his conviction last year. Then, she insisted that all appropriate material had been turned over to the defense before the trial.

Asked to account for the apparent 13-year delay in disclosing the recording and whether the conviction review unit had been aware of it, the DA said only that “we are reviewing this motion.”

Nicolazzi, who has since left the DA’s office and now stars in the TV show True Conviction, was not immediately available for comment.