Petition Seeking to Void Brooklyn Murder Conviction Calls Verdict a ‘Sham’

New York Times

The 2005 conviction of John Giuca for the murder of Mark Fisher, a college football player from New Jersey, was a “sham” built on prosecutorial misconduct, a feeble defense, contradictory evidence, a biased juror and the testimony of witnesses who have since recanted, Mr. Giuca’s lawyer wrote in a scathing petition to be sent to the Brooklyn district attorney on Monday.

Mr. Giuca has long maintained that he was innocent in the death of Mr. Fisher, a 19-year-old college sophomore who was shot to death in Brooklyn in 2003. Mr. Fisher’s body was found wrapped in a yellow blanket near Mr. Giuca’s house after a night of drinking and partying with him and other young people. His lawyer asserts that prosecutors mishandled the case and that the trial verdict should be voided after revelations that three key prosecution witnesses have recanted, saying they testified under pressure or to avoid prosecution.

“Justice is not served by the continued incarceration of a man who did not receive a fair trial and who was convicted on false, flimsy, incompatible, and now thoroughly discredited, evidence,” Mr. Giuca’s lawyer, Mark Bederow, wrote in the petition to overturn the conviction.

The petition’s timing favors Mr. Giuca: The new Brooklyn district attorney, Kenneth P. Thompson, vowed before he took office in January to aggressively review dozens of possible wrongful murder convictions won by his predecessor, Charles J. Hynes — who prosecuted Mr. Giuca.

Mr. Giuca’s “continued incarceration will only add to the public’s growing lack of confidence in the Brooklyn criminal justice system, which in recent years has suffered black eye after black eye,” Mr. Bederow wrote.

At the trial, the lead prosecutor, Anna-Sigga Nicolazzi, offered several different theories for why and how Mr. Giuca, along with his co-defendant, Antonio Russo, shot Mr. Fisher.

In one, Mr. Russo, a Brooklyn friend of Mr. Giuca, decided to rob Mr. Fisher and asked Mr. Giuca to give him a gun, which he used to kill Mr. Fisher and then returned to Mr. Giuca. At the trial, Lauren Calciano, Mr. Giuca’s former girlfriend, testified that Mr. Giuca later admitted he had given a gun to Mr. Russo. But Mr. Bederow wrote that Ms. Calciano recently contacted him, admitting she had lied because prosecutors had intimidated her.

In an affidavit, she said prosecutors had implied she was involved in the crime, threatened to charge her with perjury or obstruction, told her investigators had recovered compromising photos of her and threatened to bring up a delicate personal matter if she did not testify. She said detectives mentioned they knew her father was in prison, telling her that not cooperating was “going to make it hard on him and my family.” She had hoped to work for the United States Marshals and attend law school, and investigators told her to “think about my future,” she said. Mr. Bederow said she wrote him after receiving a pleading letter from Mr. Giuca.

Ms. Nicolazzi said Ms. Calciano’s testimony was enough to convict Mr. Giuca. But toward the end of the trial, she introduced yet another theory: A jailhouse informant, John Avitto, testified he had overheard Mr. Giuca admit to having the gun when his father asked him about it during a visit. He said Mr. Giuca had confessed to pistol-whipping and punching Mr. Fisher after Mr. Fisher withdrew only $20 from an A.T.M. near Mr. Giuca’s home; then “another guy” took the gun and shot Mr. Fisher.

Mr. Avitto, too, has recanted, saying he approached prosecutors in hopes of cutting a deal and fabricated his testimony based on newspaper stories. Though facing more prison time after leaving a court-ordered drug treatment program, he said Ms. Nicolazzi personally came to his court hearing, after which he was released again.

“My hope was that the D.A. believed I was useful to them and that in return the D.A. would help me with my case,” Mr. Avitto said in his affidavit.

Compounding Mr. Avitto’s false testimony, Mr. Bederow wrote, was prosecutors’ failure to disclose most of it to Mr. Giuca’s defense lawyer, leaving him little time to prepare — one of several prosecutorial violations Mr. Bederow cites that could undermine the conviction. Yet even when inconsistencies were apparent in other witness statements, Mr. Giuca’s lawyer, Samuel Gregory, did not point them out; he also failed to investigate other leads, Mr. Bederow wrote.

A third witness, Anthony Beharry, testified that he had disposed of a gun from Mr. Giuca’s house after the murder, but has recanted. He said he testified only after prosecutors promised him immunity, threatened to charge him with perjury and implied he would not be able to see his daughter, who was the subject of a custody battle, unless he cooperated.

As for a fourth key witness, Albert Cleary, Mr. Bederow noted what he said were multiple instances in which Mr. Cleary contradicted his own earlier statements, records or others’ testimony.

Mr. Bederow also revived an argument that made headlines in 2008, when Mr. Giuca’s mother revealed she had disguised herself and used a fake identity to seduce one of Mr. Giuca’s jurors. She recorded him admitting he should not have been picked for the jury because he had read news coverage of the case and knew some of the witnesses.