Lawyer’s Battle Over Conduct in 2003 Murder Case in Brooklyn

by Stephanie Clifford
The NY Times

It was lawyer versus lawyer Monday, as a top Brooklyn homicide prosecutor took the stand in a hearing revisiting a murder conviction in a 2003 killing.

Anna-Sigga Nicolazzi, the chief of trials in the homicide bureau at the Brooklyn district attorney’s office, was testifying about the prosecution of John Giuca, who was convicted of killing Mark S. Fisher, a college football player, and has long contested the verdict.

In a hearing that began on Nov. 16, Mr. Giuca’s lawyer has sought to persuade a judge to throw out the conviction or to order a new trial.

The lawyer, Mark A. Bederow, has argued in court filings that prosecutorial misconduct in the trial occurred when Ms. Nicolazzi, who was then the lead prosecutor in the case, did not turn over evidence that would have undermined the statements of a jailhouse informer who testified against Mr. Giuca, among other issues.

Mr. Fisher, a Fairfield University student, began drinking and barhopping on the Upper East Side the night before he was killed. He ended up in Prospect Park South with Mr. Giuca and a group of other young people. At just after 6 a.m. on Oct. 12, 2003, Mr. Fisher was shot and killed.

Prosecutors argued that Mr. Giuca and a co-defendant, Antonio Russo, were members of a gang and went after Mr. Fisher for street credibility. They said Mr. Giuca was jealous over a woman Mr. Fisher was flirting with and was angry at Mr. Fisher’s drunken behavior and that led the men to argue. Separate juries found each man guilty, with Mr. Giuca’s jury returning in just two hours.

A jailhouse informer, John Avitto, testified at trial that he had overheard Mr. Giuca telling his father that he had a gun, and that Mr. Giuca had talked about his role in the crime when they were at Rikers Island together.

Mr. Bederow’s questions on Monday concentrated on a few points: Should Ms. Nicolazzi have been more suspicious of Mr. Avitto? Did she cover up favorable treatment he received from the prosecution so he would seem more credible and she could continue a streak of victories at trial? Were there records about his drug treatment and mental state that could have helped the defense?

Ms. Nicolazzi’s stance was consistent. “I believe in the case, I believe it was tried justly, I will sit here as many times as I need to,” she said. When Mr. Bederow asked if she had a personal stake in the conviction’s being upheld, she said, “You have questioned my integrity repeatedly, so that is certainly personal to me.”

A prosecutor who has tried 36 homicide cases, Ms. Nicolazzi brought her own box of documents with her, and she recalled dates and other details from memory, often supplying them to Mr. Bederow before he could include them in a question.

Mr. Bederow, too, was precise — and pointed — as he reviewed Mr. Avitto’s long and troubled history document by document.

Ms. Nicolazzi testified that she did not know before 2014 about Mr. Avitto’s mental problems, including that he claimed to have heard voices and was on psychiatric medications. She said she does not look into witnesses’ health records as a matter of course, explaining that witnesses have privacy rights. “If there was anything that concerned me I absolutely would’ve” asked for records, she said, but “there was nothing.”

“He was alert,” she continued. “He was oriented.”

Mr. Avitto signed a health-information waiver last year, when the Conviction Review Unit of the Brooklyn district attorney’s office was looking into his case. (That unit upheld Mr. Giuca’s conviction this year. The current hearing is a separate proceeding in State Supreme Court before Justice Danny K. Chun.) His health documents were then delivered to the district attorney’s office, and Ms. Nicolazzi said Monday that she saw those documents for the first time in 2014.

“The defense attorney at the time would have been entitled to have” those documents, she said, but she did not know about them then.

As to the drugs he was taking, “those certainly would have been turned over to the defense had we had them,” she said.

She said she believed Mr. Avitto in part because his records checked out. He was in Rikers at the same time as Mr. Giuca, and they had visits at the same time, making it possible that Mr. Avitto overheard one of his conversations with a visitor.

When Mr. Bederow pressed her on whether Mr. Avitto had received special treatment — for instance, Ms. Nicolazzi, then a senior homicide prosecutor, accompanied him on a routine drug-court visit — she maintained that he had not. The court, not the prosecutor, determined what happened to him on his drug case, she said.

When he asked if Mr. Avitto lied during the trial, she said: “I don’t believe so, no.”

In testimony last week, Mr. Avitto came across as muddled. He frequently forgot facts or lost his train of thought. He testified that he had lied at trial about Mr. Giuca’s involvement so he would get more lenient treatment from the court on his open drug case. He also said that voices in his head had told him to do so. Then he said that he had come forward now because this had “been eating me up.” In an emotional address to Mr. Giuca, he said, “Please forgive me — it was only to help myself.”

But in a recorded conversation with an investigator for Mr. Giuca, which was played in court by the prosecution, Mr. Avitto said that he had testified truthfully at trial, but wanted to get back at Ms. Nicolazzi and to do so would say he had lied.

During the daylong testimony, Ms. Nicolazzi broke from her cool demeanor only once, when Mr. Bederow questioned whether she had seen a letter relating to Mr. Avitto.

“The one you accused me of forging? Yes, I did,” she said.

“You should be more careful — that’s not the one I accused you of forgery on,” Mr. Bederow shot back.