John Avitto, a drug addict and predicate felon, was incarcerated with John in early 2005. At the time, Avitto was thirty- five and in for a burglary charge, which would eventually result in his 18th conviction (at least). Unbeknownst to John and his attorneys, he’d also recently been diagnosed with schizophrenia.
John’s lawyers were unaware of him as a witness at all until two days before he testified. He was the last witness against John, and despite having presented most of her case by then, ASN hadn’t yet mentioned Avitto once. She didn’t include him when she laid out her case in her opening statement, and John’s lawyers never received any statements from him (the DA said no statements were written down and no notes were taken), so his testimony remained a mystery until he was actually on the stand.
Avitto testified that, some time in February, he was on the visiting room floor at the same time that John was on a visit with his father, aunt, and step-sister. He said that during the visit, he overheard “everything being said by the father”, and that he heard John’s father ask him “why did you have a gun with you” to which John replied “I just had it.”
This is where Avitto’s schizophrenia diagnosis would have been helpful to the defense, because the conversation Avitto described was impossible. In the years prior to John’s arrest, John’s father suffered multiple strokes, which severely impaired his ability to speak and left him unable to say more than two or three words at a time. His speech was so severely limited that even up until his recent death he was unable to speak in full sentences. John’s step-sister and aunt, who were also present on this visit, confirm this conversation never took place, and that, especially at that time, it would have been impossible.
Avitto also testified that John told him that “they” were at “the party”, that “they” ran out of alcohol, and needed money. That Mark offered to go to an ATM, and that John and two other people went with him. He said John told him he got angry when Mark only took out $20, pulled out a gun, hit Mark with it, and then one of his other friends grabbed the gun from him and shot Mark.
Like Albert and Lauren, this scenario conflicts with all of the available evidence:
- The ATM receipt is time stamped at 5:23AM. We know from the 911 call and the witnesses on Argyle that Mark wasn’t killed until 6:40, an hour and 17 minutes later.
- The ATM Mark visited was located in a bodega called 117 on Coney Island Avenue. Mark was shot and killed on Argyle Road, not Coney Island Avenue.
- Mark went to the ATM once that evening, with Antonio Russo, and came back to John’s house after. John stayed at his house. This was confirmed unanimously by everyone at the party.
In 2013, Avitto recanted his testimony, telling John’s attorneys that he got his testimony from tabloid articles about the murder. He also told them that, despite testifying that he never asked for nor received consideration for his testimony, this was actually his sole motive for coming forward (more on this below.)
The Deal With Avitto
Based on the record, and by Avitto’s own admission, it is now beyond dispute that this witness got a deal in exchange for his testimony- and that it was deliberately concealed.
When Avitto pled guilty to burglary in February of 05, he was ordered by the court to complete an 18-24 month inpatient drug treatment program. If he completed it, his indictment would be dismissed; if he failed, he’d be sentenced to 3 ½-7 years in prison. He was released from Rikers Island in April.
By June, Avitto absconded, and a bench warrant was issued for his arrest. In addition, according to a letter written to the Judge on June 16th by his drug counselor, Sean Ryan, Avitto also tested positive for cocaine.
With a bench warrant out for his arrest, and the possibility of spending the next 7 years in prison, Avitto met with ASN and the case detectives and said he had information on the Mark Fisher murder. That same day, Avitto appeared in court on the warrant, escorted by ASN and the case detectives.
Immediately, ASN approached for an “off the record” conversation with the Judge, after which the Judge immediately vacated the warrant. Instead of being sentenced to prison, Avitto was released on his own recognizance. Though his plea required him to be in an inpatient program, he was permitted to stay at his mother’s residence and attend an outpatient program.
Between June and when he testified in September, Avitto violated at least 7 more times. Each time, the DA requested no bail, and Avitto was released on his own recognizance.
At trial, ASN claimed there was “no evidence of a deal” and mocked John’s lawyers for even suggesting it. She said Avitto came forward because he wanted to do the right thing- despite his waiting four months before coming forward, right after he got in trouble and thought he was going to prison.
The Ryan Letters
One of the more troubling aspects of Avitto as a witness is the recent discovery of a fraudulent document, created to conceal information from John’s lawyers that would have severely damage Avitto’s credibility and shed light on the troubled man’s motives for testifying.
While Avitto was in and out of various treatment facilities, his drug counselor, Sean Ryan, was giving written updates to the court. Two of those letters, from September 19th and September 20th of 2005, are below.
The September 19th letter describes an incident that took place on September 19th in which Avitto was discharged from Kingsboro Rehabilitation Center for smuggling in contraband. This letter corresponds to a hearing that took place on September 19th, where Avitto freely admits to smuggling in contraband, telling the judge he was stressed out because he was testifying in a murder trial later that week (Avitto testified on September 22nd).
The second letter, from the 20th, white washes the events leading up to Avitto’s testimony:
- all references to the facility Avitto was thrown out of, and of the violation itself, are deleted
- “defendant” is changed to “client” in the first sentence and sporadically throughout the letter
- In order to paint Avitto as someone who is “doing good” in the program (as he testified to), and therefore doesn’t require constant supervision by the court, reference to his next court date is deleted
It is also clear that the entire letter was re-written- certain words are abbreviated, the text itself is larger, there are grammatical errors and omitted letters and numbers that aren’t in the first, a different supervisor (whose name is spelled incorrectly) signed it, etc.
What’s more, the September 20th letter was never submitted to the courts. In it, Ryan states that Avitto’s “whereabouts are unknown”. Cleary, this is false, since he was in court with Avitto the day before (his notes also prove that Avitto was in his office on September 20th). Had it been submitted to the Judge, she’d have known it was a lie. In fact, it would appear the second letter was written solely for, and immediately given to, John’s attorney. This is evidenced by the fact that this letter is the only place that “Seafield Rehab” is referenced; John’s attorney mentions “Seafield” in his cross-examination of Avitto, never “Kingsboro.”
So if it had no legitimate purpose in Avitto’s case, why does it exist?
It’s important to remember that Avitto testified two days after the letter was written, and three days after he was kicked out of yet another program. This latest infraction, especially coming when it did, didn’t coincide with the portrait the DA painted of Avitto- a guy who got his life together, was “doing good” in his program, and who came forward “to do the right thing.” The deletion of the infraction itself, the name of the facility in which it took place, and reference to the upcoming court date all show an effort to paint Avitto as a man who wasn’t struggling, and who the courts weren’t concerned about, and thus, weren’t monitoring closely. That he was responsible, and could be trusted.
Most importantly, these modifications, especially the deletion of the next court date, and changing the word “defendant” to “client”, point to an effort to mislead the reader into thinking Avitto’s current case was over- therefore, he’d have no reason to ask for a benefit. ASN even describes Avitto’s status as “sentenced” during trial, misleading the jury in the same fashion. If Avitto were a man who was already sentenced, he’d have no reason to ask for anything in exchange for his testimony. If, however, he was revealed for what he was- a flailing drug addict, constantly monitored by the court, ordered to complete a drug program in which his performance was abysmal, with a lengthy prison sentence looming inevitably in his future, not only would it have been obvious that he came forward hoping for a deal, but that his credibility should be met with scrutiny.
“From my experience reviewing the conduct of prosecutors, the conduct of Ms. Nicolazzi in relying upon the possibly forged and certainly fabricated September 20th Ryan letter to enhance Mr. Avitto’s credibility is as brazen as any conduct I have encountered.” – Bennett Gershman
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