Brooklyn DA Ken Thompson Passes On a Chance to Right a Potential Wrongful Conviction

Back in January, after his Conviction Review Unit (CRU) had completed a yearlong re-examination of the state’s case against John Giuca, Brooklyn district attorney Ken Thompson announced his decision to uphold Giuca’s conviction. “This defendant got a fair trial,” Thompson told the New York Times.

Begging to differ, in March Giuca’s defense attorney, Mark Bederow, filed a 440.10 motion to vacate the conviction. Mr. Thompson’s office filed a response and now Mr. Bederow has followed with a sur-reply, filed this past Monday [July 6^th]. Next month, on August 20^th, the judge will issue a decision that could either grant or deny the motion to vacate, or order a hearing to further establish certain facts. While the district attorney’s office has already consented to a hearing, Mr. Bederow has argued that a hearing would be unnecessary, as the salient facts that require the conviction to be vacated are not in dispute.

Regardless of what the judge decides, the way Mr. Thompson has dealt with the Giuca case should complicate the picture some have painted of his office as a beacon for the handling of wrongful conviction claims. While there is no doubt that Thompson’s CRU has done significant, praiseworthy work in this area—completing approximately 38 investigations and vacating 13 convictions as of late May, according to a spokesperson—none of those vacated convictions involved high profile cases like Giuca’s. And none of them advanced claims relating primarily to the constitutional rights, rather than the innocence, of the defendant(s), making Thompson’s decisions in those cases relatively politically easy.

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In 2005, John Giuca was convicted along with another man for the 2003 brutal, headline-grabbing slaying of college student Mark Fisher. Giuca has always maintained his innocence and after his trial his mother, Doreen Giuliano, set out to prove he had been framed by assuming a fake identity and changing her appearance in order to befriend a juror who had served on the case. Even though she obtained compelling evidence, in the form of secret recordings, that the juror should have been disqualified from sitting on the jury, the judge disagreed and refused even to hold hearings on the tapes; his decision contained a scathing denunciation of Ms. Giuliano. Appeals followed, all of which were unsuccessful.

But then Giuca hired Mr. Bederow to reinvestigate the case and in February of 2014, just one month after Mr. Thompson took office, Mr. Bederow filed a petition with the new DA’s CRU. The petition did not argue Giuca’s innocence, although the evidence it marshaled eviscerated the state’s case for his guilt by pointing out numerous inconsistencies and holes in its theory of the crime and the testimony of its witnesses, three of whom recanted in sworn statements obtained by Mr. Bederow.

More than that, the petition alleged that Giuca’s constitutional rights had been violated. These allegations concerned conduct by the trial prosecutor, Anna-Sigga Nicolazzi, related to one of the (now recanting) witnesses, a jailhouse snitch named John Avitto.

A career criminal, Avitto came forward to Ms. Nicolazzi immediately after triggering a mandatory prison sentence in his own criminal case by screwing up in a court-ordered drug program he had agreed to attend as part of the terms of his plea deal. Avitto told Ms. Nicolazzi that Giuca had confessed to him in jail, and that he had also overhead an incriminating conversation between Giuca and his father in the visiting room at Rikers.

At trial, Ms. Nicolazzi misled the jury into believing that Avitto had no motive to testify other than the goodness of his heart. She elicited testimony from him that gave the impression that his own drug case was now finished and that he was “doing good” in his current drug program. For once, Ms. Nicolazzi told the court, Avitto was simply “doing the right thing.”

But as it turned out, just days before he was set to testify in the Giuca trial, Avitto had gotten into to trouble again and was tossed from his drug program, which put him at risk for incarceration—something Mr. Bederow discovered after finding a letter, dated September 19, 2005, from Avitto’s drug counselor in his court file. According to that letter, Avitto had been discharged from the drug program, thereby violating the conditions of his plea. Despite this, according to a transcript of a court appearance related to that violation, no bail was sought and none was set, to the bafflement of the judge, who noted that the court was “apparently” giving Avitto another chance—language that would seem to indicate that such a disposition might not have been her preferred course of action.

At first blush, this letter looked much like one Giuca’s trial lawyer had received, except that letter was dated September 20, 2005, and made no mention of Avitto’s recent program discharge and the fact that it had put him, once again, in legal jeopardy. It also omitted a reference to Avitto’s upcoming court date shortly after the Giuca trial—yet more evidence that Avitto’s legal problems were ongoing. Finally, the September 20th letter referred to Avitto as a “client” of the drug program, not a defendant, as he had been identified in the September 19^th letter, reinforcing the false impression that Avitto’s criminal case had been long settled.

It is unclear how this second, cleaned-up letter came to be drafted and Mr. Bederow does not hazard a guess. However, the fact that the information it contained—that Avitto was far from out of the woods in his own case—was never given to Giuca’s defense attorney was key, Mr. Bederow argued, because had he known about it, the lawyer could have raised questions about Avitto’s motives for cooperating with the DA that could have caused the jury to see his testimony in a more skeptical light.

Mr. Bederow made other discoveries as well. Documents from Avitto’s court file revealed that immediately after he came forward to cooperate with the DA he was taken to drug court by none other than Ms. Nicolazzi herself. Then, following an off-the-record conference between Ms. Nicolazzi and the judge, Avitto was released on his own recognizance.

This did not match Avitto’s trial testimony, in which he told a story that had him being taken to court by his drug counselor who, he testified, “got him another shot.” While Avitto did note the presence of “the DA,” during that appearance, neither he nor Ms. Nicolazzi did anything to clarify that that “DA” was in fact Nicolazzi herself, rather than the prosecutor on his own case, let alone note that she had had a private bench conference with the judge.

These details are critical because the law mandates that whenever a witness receives a benefit—either explicitly or tacitly—in exchange for his testimony, that fact must be disclosed to the defense. Indeed, case law has established that even if there is no discussion between the witness and prosecutor about any actual or potential benefit, any action undertaken by the prosecutor that could be construed by the witness as a benefit must also be disclosed.

And in this case it was not. Instead, trial transcripts show, Ms. Nicolazzi not only failed to disclose her appearance on Avitto’s case, but elicited testimony from him that concealed her involvement in it—a fact that, had it been known to the jury, may well have given them a reason to question both Avitto and Ms. Nicolazzi’s credibility in claiming that by testifying he was merely “doing the right thing.”

Ms. Nicolazzi even went so far as to mock Giuca’s lawyer when, during a conference with the judge about the judge’s impending instructions to the jury, Giuca’s lawyer expressed his belief, based on his experience with jail house informants, that despite having no concrete proof, “something is going on here to protect [Avitto].”

Mr. Thompson’s CRU apparently was not moved by Mr. Bederow’s arguments and upheld Giuca’s conviction, offering scant public explanation of its decision beyond some comments questioning the reliability of the witness recantations—standard operating procedure for prosecutors in these situations—which were not in fact relevant to Giuca’s constitutional claims. Indeed, the office addressed the constitutional arguments only after Giuca’s 440.10 put them front and center. And while its answers appear to do little to help their case, they do reveal an instinct common to even the most enlightened prosecutors to protect those prosecutions whose flaws emanate from the conduct of their own.

In a sworn affirmation attached to the DA’s response, Ms. Nicolazzi denies doing or promising to do anything that was “intended” to constitute a benefit to Avitto. Even if that’s true, it doesn’t matter. It is Avitto’s expectation or perception of her actions—rather than her own intentions—that matters, according to the law.

And while Ms. Nicolazzi does admit to appearing in court on Avitto’s case, she does not address her off-the-record conversation with the judge, the contents of which numerous prosecutors, former prosecutors and defense attorneys agree most certainly included information that Avitto was a cooperating witness.

“If she wanted Avitto’s case to run its course,” former prosecutor turned defense attorney Dan Bibb told the Observer, “she would have told an investigator to take him over there [rather than going herself]. She went specifically to tell the judge to keep him out of jail. I did the same thing [when I was a prosecutor]. But the defense was aware of it.”

Tom Schiels, another former prosecutor, with about 130 cases—including 30 homicides— under his belt, told the Observer that while he is not comfortable commenting on the particulars of this case, “If you’ve got an informant, you are going to go [to court] and make sure the judge knows that he’s cooperating. You wouldn’t say on the record in public, ‘this guy is a cooperator please let him go,’ because you don’t want to put him in danger. Of course, there would be an off the record or out of the public ear on the record [conference] that would be sealed. The information that would be given [to the judge] is that this guy is a cooperator, give him a break, let him go.”

But even absent such a conversation, the mere appearance of a prosecutor in court on the case of a cooperating witness, followed by that witness’s immediate release on his own recognizance, is enough in and of itself to merit disclosure to the defense.

According to Joel Rudin, a criminal defense and civil rights attorney who has represented numerous defendants in wrongful conviction actions, “Prosecutors do things with a wink and a nod and they don’t do things on the record and they don’t think anyone will discover it. They say ‘where is the smoking gun?’ There doesn’t need to be a smoking gun. These are circumstances where a witness would likely believe there was a benefit.”

Mr. Rudin added that “considering that the defense lawyer specifically asked” the prosecution for information that “would explain why this witness was cooperating, or whether he had gotten a benefit, it is impossible to understand why the circumstances here were not” a violation of Brady, or the requirement that a prosecutor disclose any information favorable to the defendant or that might impeach the credibility of witness.

“It’s disturbing that it’s undisputed that [this] happened,” Rudin noted, “but apparently the DA doesn’t seem to be troubled by it. It suggests that it could continue to happen.”

Perhaps most perplexingly, despite noting that she has read the defense’s papers, Ms. Nicolazzi also swears that “Avitto did not give any testimony at trial that, at that time, I believed to be false, or that I now believe to have been false.”

But attached to the defense’s motion is a copy of the never disclosed letter written by Avitto’s drug counselor, evidence proving that when Avitto testified he was “doing good” in his drug program, he was clearly lying—something Ms. Nicolazzi apparently does not concede.

In consenting to a hearing before the judge has even made a decision to hold one, some observers believe that the district attorney is hoping to turn this into a credibility contest between Ms. Nicolazzi and Avitto, both of whom would most certainly testify. And despite Mr. Bederow’s contention that the facts that support the vacating of Giuca’s conviction have already been established by the documents he has uncovered, a hearing would nevertheless provide the public with something that is all too rare when it comes to the work of prosecutors: transparency and a sense of accountability.