In June 2005, Nicolazzi won convictions in the unrelated cases of Demetrius Williams and Jermaine Cox. Juries found both defendants guilty of felony murder. Williams was convicted as a participant in the killing of Joab Thompson in a Coney Island robbery in June 2003, and Cox was sent away for complicity in the death of Cody Knox during a dispute at the Fulton Street Mall in November of that year.
Mark Bederow, attorney for both Cox and Giuca, tells The Indypendent that the two cases “contain strikingly similar due process violations. Nicolazzi suppressed evidence that favored the defense, which she concealed and exploited with unequivocal, yet blatantly false statements.”
In the Williams case, Nicolazzi deployed a dubious tactic she would repeat in the Giuca trial: changing her theory of the case as she went along. In her opening statement, Williams did not have a bulge in his waistband indicating that he had a gun. At closing, it now appeared clear that he was carrying the murder weapon.
Nicolazzi further assured jurors that Williams was involved in killing Thompson because of what was seen on surveillance video. There was one problem, however: Critical footage showing Williams working in tandem with his co-defendant had been erased by an NYPD video technician, purportedly by a power surge.
Williams’ attorney James Henning also sees other flaws in Nicolazzi’s prosecution.
“There was insufficient investigation of contrary claims by witnesses and there are questions surrounding the reliability of the main cooperating witness,” says Henning. “It mirrors allegations of misconduct in other Nicolazzi cases.”
In the Cox case, Nicolazzi leaned heavily on the testimony of a heroin-addicted witness named April Vasquez. In pre-trial court appearances, Nicolazzi twice stated under penalty of perjury that the NYPD had shown a photo of Cox to Vasquez prior to the police lineup. As Vasquez initially testified, prior to identifying him in the lineup, she had been given a Polaroid of Cox by a detective, who asked if he was the person she saw “with knives” before the victim was stabbed to death.
Such a problematic action caused Judge Matthew D’Emic to hold a hearing on whether there had been any photos. Nicolazzi told D’Emic that there had been none, assuring him that “every detective” who testified confirmed that fact. After conferring with Nicolazzi in the hallway, the witness revised her testimony, saying she didn’t remember a photo.
After Cox’s conviction was upheld by the appellate division in 2008, Cox received a response to a FOIL request to the Brooklyn DA’s office that included documentation establishing that a photo of Cox had indeed been shown to Vasquez. That had been done by detectives who did not testify at the trial.
If a witness “is shown a single photo of a defendant right before the lineup, that identification would not be allowed into the trial,” Bederow explains. “But even after her witness exposed her, Nicolazzi still denied there had been any photos and misled the judge” by leaving out the role of the detectives who did not appear in court.
Three months after the Williams and Cox convictions, Giuca stood trial for felony murder as an accomplice in the October 2003 murder of Fairfield University student Mark Fisher. During the trial, Nicolazzi changed her theory of the case, with Giuca not at the scene of the crime during her opening statement but there during her summation.
In early 2018, the appellate division overturned Giuca’s conviction because Nicolazzi had not disclosed the favorable treatment she provided to another heroin-addicted witness, John Avitto, who claimed to have overheard Giuca confessing to the crime at Rikers. Avitto’s revelation (which he has since recanted) was crucial to Nicolazzi’s revised explanation to the jury. In both the Cox and Giuca trials, Nicolazzi vouched for her pivotal witness by stating that while each had a checkered past, their testimony was motivated by their desire “to do something right.”
Last June, the Court of Appeals reinstated Giuca’s conviction, arguing that although Nicolazzi should have disclosed her work on behalf of Avitto, that was outweighed by other evidence of Giuca’s guilt. A few months prior to the court’s decision, the Brooklyn DA’s office turned over an audiotape in which a second Rikers informant, Joseph Ingram, explained to Nicolazzi a few months before the trial that Giuca’s co-defendant Antonio Russo had acted alone.
Nicolazzi did not provide the tape to Giuca’s defense attorney, and although she included Ingram on her witness list, she repeatedly identified him as “John” and never called him to appear. Giuca’s team thus never tracked down Ingram. Brooklyn judge Danny Chun is scheduled to rule this week whether those actions by Nicolazzi provide grounds to overturn Giuca’s conviction.
The patterns of misconduct by Nicolazzi nonetheless seem quite clear. “How can her false representations and nondisclosure of evidence have been anything other than deliberate?” asks Bederow. “How many of her other cases are flawed? At some point, the Brooklyn DA, the Brooklyn judiciary and Nicolazzi’s television producers need to address this.”
Theodore Hamm’s Bernie’s Brooklyn: How Growing Up in the New Deal City Shaped Bernie Sanders’ Politics is now available from O/R Books.