Did an Ambitious Prosecutor Convict the Wrong Man for the Killing of Mark Fisher?
Ms. Nicolazzi went on to win a conviction in that case, but perhaps her biggest victory had come five years earlier, when two separate juries returned guilty verdicts in the 2003 murder of a handsome, young college football player named Mark Fisher. Fisher had been shot to death on an early autumn morning on Brooklyn’s stately Argyle Road, after a night of partying with a group of other young people. From the start, investigators found themselves up against a brick wall. The partygoers lawyered up almost immediately and for over a year none of them claimed to have any information about the brutal slaying. The lack of cooperation stunned investigators and caused anguish for the Fishers, who have claimed they felt abused and mistreated by the original prosecutor.
Cast of Characters
Anna-Sigga Nicolazzi
Charles “Joe” Hynes
Mark Fisher
Antonio Russo
John Giuca
Doreen Giuliano
Lauren Calciano
Mark Bederow
Jay Salpeter
Angel DiPietro
Meredith Denihan
Albert Cleary
Michael Vecchione Prosecutor in Brooklyn D.A.’s office |
But all that changed around the spring of 2004 when the D.A. convened an “elite” task force headed by his controversial Rackets Chief Michael Vecchione and including Ms. Nicolazzi. This new team empaneled a special, investigative grand jury and suddenly, the story goes, people finally began to talk, ultimately implicating two young men, Antonio Russo and John Giuca, in the murder. Mr. Giuca and Mr. Russo were tried and convicted in 2005 and both were sentenced to 25 years to life. A little less than a month later, Joe Hynes went on to secure a fifth term in office, after winning a hotly contested primary the day before opening arguments in the Fisher case. That same year, Ms. Nicolazzi received the prestigious Thomas E. Dewey medal from the New York City Bar Association, followed by an astounding $43,000 raise.
Ever since the verdict, Mr. Giuca’s mother, Doreen Giuliano, has been telling anyone who would listen—including Paula Zahn in a 2010 one-hour special on the case—that her son did not receive a fair trial. No forensic evidence and eyewitnesses connected him to the crime and much of the key testimony against him had come from people who had either been suspects themselves or had something to gain by their cooperation with the D.A. Ms. Giuliano was certain that most of the people who testified against her son had lied on the stand, and had done so either with the knowledge of, or under pressure from, prosecutors. She also came to believe that the jury, which delivered its guilty verdict in under two hours, had in some way been tainted, and she reasoned that if only she could prove it, her son would have to be granted a new trial.
In a move that was as ballsy as it was misguided, Ms. Giuliano assumed a fake identity and changed her appearance in order to befriend a juror who had sat on her son’s trial. Over the course of many months, the man admitted in secretly recorded conversations that he had had undisclosed connections to the case and a bias against Mr. Giuca (the juror claimed to hate Jews and mistakenly believed Mr. Giuca is Jewish) that should have disqualified him from serving on the jury.
Ms. Giuliano thought she had hit pay dirt: here was the evidence she needed to get her son a new trial. But the judge didn’t agree and in a scathing decision excoriated and mocked Ms. Giuliano, calling her “irresponsible” and a “vigilante,” and refused even to hold a hearing on the recordings. Appeals on the issue that followed were also unsuccessful.
But then, about two years ago, Ms. Giuliano hired a new lawyer, Mark Bederow of Bederow Miller LLP, to reinvestigate the case. What he and retired NYPD detective-turned-private investigator Jay Salpeter uncovered would appear to vindicate Ms. Giuliano in her belief that her son was deprived of a fair trial. Those discoveries did not relate to the conduct of any juror, but to that of the always meticulously prepared prosecutor from central casting, Anna-Sigga Nicolazzi.
In order to understand just how questionable that conduct was, it is important to start at the beginning, back in the early morning hours of October 12, 2003, when Mark Fisher accompanied a college acquaintance, Angel DiPietro, to a house party at Mr. Giuca’s home in the Ditmas Park section of Brooklyn.
Fisher had started off the evening barhopping in Manhattan with a different group of friends, but after unexpectedly running into Ms. DiPietro and taking a liking to one of her friends, Meredith Denihan, he found himself happily separated from his original group. Fisher, Ms. DiPietro and Ms. Denihan then met up with another friend of Ms. DiPietro’s, Albert Cleary, the son of a prominent member of the Brooklyn GOP, who was out with his buddy, John Giuca. When the group had trouble getting into another bar, Mr. Giuca invited them to party at his house, as his parents were out of town.
According to what investigators were able to piece together, the group arrived at Mr. Giuca’s place around 5 a.m. and began smoking and drinking. At some point, other people joined the party, including Mr. Russo, who was a nearby neighbor. At 5:23 a.m. Fisher, accompanied by Mr. Russo, withdrew $20 from a nearby ATM and both returned to Mr. Giuca’s home within minutes. At some point, Fisher and Ms. Denihan fell asleep and Ms. DiPietro and Mr. Cleary, who lived about three blocks from Mr. Giuca on Argyle Road, left Mr. Giuca’s house.
At about 6:40 a.m. Fisher was shot five times about 50 feet across the street from Mr. Cleary’s driveway on Argyle Road. Cops arrived on the scene within minutes and found his body lying atop a blanket they later confirmed came from Mr. Giuca’s home. Fisher’s wallet was missing but an ATM receipt in his pocket revealed his identity. Only two of five shell casings were recovered from the scene.
During a police canvass of Argyle Road that morning, many residents reported hearing multiple gunshots and the sounds of a car door opening and closing, and a car driving away. Several people reported seeing a dark vehicle leaving the vicinity of the shooting. The couple outside of whose home Fisher’s body lay also reported hearing the voices of young people, including a distinct female voice. Notably, according to police reports, cops apparently did not interview anyone at the Cleary home that morning, though Mr. Cleary and Ms. DiPietro would later claim that they had been asleep at the time of the shooting and had heard nothing.
But police reports indicate that in the hours and days after the murder, Ms. DiPietro, whose father is a well-known criminal defense attorney and was herself hired by Mr. Hynes as a prosecutor in 2012, gave conflicting and inaccurate accounts about the time leading up to and after Fisher’s death. For example, two of Fisher’s friends called Ms. DiPietro around 11:30 a.m. the morning of the murder, looking for him. Ms. DiPietro told them he had left the party safely a few hours earlier. Ms. DiPietro later claimed that Ms. Denihan had been the source of that information but that turned out to be a lie; the two had not spoken that morning, as Ms. Denihan had been angry at Ms. DiPietro for abandoning her in a strange home.
Ms. DiPietro also told detectives that Mr. Cleary had received an 11 a.m. cell phone call that morning from Mr. Giuca, who was trying to find out where Fisher and Ms.Denihan were. A month later, Ms. DiPietro changed her story, saying Mr. Giuca’s only—and frantic—concern in that 11 a.m. call was the whereabouts of Ms. Denihan, as he had told Mr. Cleary that Fisher had left his house safely.
But as it turned out, none of this was true. According to Mr. Cleary and Mr. Giuca’s phone records—which were obtained by prosecutors—the first call Mr. Giuca made to Mr. Cleary was at about 1 p.m. And Mr. Giuca’s panicked search for Ms. Denihan? Phone records also confirm testimony elicited from Ms. Denihan by Ms. Nicolazzi that at 11 a.m. that morning she was using the phone in Mr. Giuca’s kitchen, trying to reach a family member or a car service to take her back home to Long Island. Had Mr. Giuca really been frantically looking for Denihan at 11 a.m., he would have found her in his own home, obviating the need to call Mr. Cleary.
One might assume that all of these inconsistencies would have placed Ms. DiPietro’s credibility in serious doubt, but as it turned out, her demonstrably false timeline of events inexplicably became part of the official case narrative at trial, pushed by Ms. Nicolazzi.
Still, the testimony that really nailed Mr. Giuca belonged to Mr. Cleary. In the beginning of the investigation, Mr. Cleary had claimed he knew nothing about the murder and about a month after Mr. Hynes announced the formation of the new investigative team submitted a polygraph to that effect though his lawyer, Phil Smallman. But after the D.A. began to put the heat on him regarding the status of his probation in connection with a violent assault he committed only months earlier, in which he rendered a man unconscious, Mr. Cleary changed his tune.
In the grand jury, Mr. Cleary recounted how the group had gone to Mr. Giuca’s home to party and that at some point one of the other guests got annoyed at Fisher for sitting on a table. He also testified that Mr. Russo and Mr. Fisher went to the ATM and came back within five minutes. Given the time stamp on the ATM receipt that would have been right around 5:30 a.m. However, Mr. Cleary said he and Ms. DiPietro had left Mr. Giuca’s house at about 5:15 a.m. (Ms. DiPietro testified they had left at 6:10 a.m.). Contrary to Ms. DiPietro, but consistent with the phone records, Mr. Cleary also noted that Mr. Giuca had called him around 1 p.m. that afternoon. In fact, in a sworn interview just days before his grand jury testimony, Mr. Cleary had explicitly corrected Ms. Nicolazzi when she mistakenly suggested that call came in the morning.
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Then the bombshell: Mr. Cleary told the grand jury that Mr. Giuca had confessed to him and Mr. Giuca’s girlfriend, Lauran Calciano, the evening after the murder. He claimed that Mr. Giuca told them he had been angry at Fisher for disrespecting his house and that he gave Mr. Russo a gun and told him to “show [Fisher] what’s up.” Mr. Cleary then said that Mr. Giuca explained how Mr. Russo had ambushed Fisher outside of Mr. Giuca’s house on nearby Turner Place, beating and then shooting him before returning the gun to Mr. Giuca.
But Mr. Cleary’s testimony changed in significant ways at trial, where Ms. Nicolazzi painted him as the witness with the “full story.” She also cleverly misled the jury about what should have been a serious credibility issue for Mr. Cleary: the fact that he had submitted polygraph results indicating he knew nothing about Fisher’s murder. Without referring to its substance, Ms. Nicolazzi improperly referenced the fact that Mr. Cleary had taken a polygraph test—polygraph results are inadmissible as evidence—leading the jury to infer that his polygraph result was consistent with his trial testimony. In fact, all those results really proved was that Mr. Cleary had been lying then or was doing so now—either way, a death blow to his credibility.
This time, Mr. Cleary testified that it was Mr. Giuca and not another guest who was angry that Fisher had sat on the table. And the motive for the killing? It wasn’t merely to show Fisher “what’s up” for disrespecting Mr. Giuca’s home, but represented a kind of gang initiation. Mr. Cleary told the grand jury that Mr. Giuca, who had graduated from Bishop Ford High School and had been taking courses at John Jay College of Criminal Justice, was in fact a “capo” in a local gang known as the Ghetto Mafia. He also recounted an alleged conversation that took place prior to the murder between Mr. Giuca and the gang’s supposed “boss”—a college student in North Carolina double-majoring in accounting and economics—about the gang’s need to bolster its credibility by “getting a body.”
And notably, he changed his prior sworn testimony to comport with Ms. DiPietro’s, testifying that the call from Mr. Giuca came “in the morning”—a lie plainly debunked by the phone records Ms. Nicolazzi herself had placed into evidence.
As for Ms. Calciano, even though she and Mr. Cleary supposedly heard it together, her version of Mr. Giuca’s alleged confession differed in important ways from Mr. Cleary’s, down to the time of day it occurred. Ms. Calciano also added a motive of robbery to the mix, testifying that Mr. Giuca told them that Mr. Russo planned to rob Fisher and asked Mr. Giuca for a gun.
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Body found at foot of the driveway between 150 and 144 Argyle Road. Mark Fisher was shot about 50 feet from Albert Cleary’s house. (Photo by Hella Winston for the New York Observer)
That wasn’t the most important discrepancy in Ms. Calciano’s testimony. At trial, Ms. Nicolazzi attempted to argue that the phone records not only told the story of the crime, but pointed in various ways toward Mr. Giuca’s guilt. In her opening, she made a particular point of the fact that Mr. Giuca had called Ms. Calciano “right after the murder” presumably to unburden himself. But once again, the phone records tell a different story. The only call from Mr. Giuca to Ms. Calciano that morning was at 6:22 a.m. But that was about 20 minutes before the shooting. Mr. Giuca’s next call to Ms. Calciano was later that afternoon.
Ms. Calciano has since recanted her testimony; Mr. Bederow obtained a sworn affidavit in which Ms. Calciano claims that prosecutors threatened to make life difficult for her and her family—and that Ms. Nicolazzi herself led her to believe that totally irrelevant but highly embarrassing personal information about her would likely come out—if she didn’t testify against Mr. Giuca.
But perhaps the most curious aspect of the trial was the prosecution’s last-minute decision to put a drug-addicted jailhouse snitch named John Avitto on the stand, through which Ms. Nicolazzi introduced an entirely new theory of the crime. Mr. Cleary, it seemed, no longer had the “full story.”
Mr. Avitto testified that Mr. Giuca had confessed to him in jail, where he said he also overheard Mr. Giuca and his father discussing the murder in the visiting room. In Mr. Avitto’s version, Mr. Giuca, Mr. Russo and a third individual had beaten Fisher after he refused to hand over $20 he had withdrawn from an ATM. In this story, Mr. Russo wrestled the gun from Mr. Giuca and shot Fisher. At one point, Ms. Nicolazzi argued, with no evidence at all, that Mr. Giuca himself may have shot Fisher.
Despite the fact that his account contradicted that of every other witness, in her summation Ms. Nicolazzi told the jury that Mr. Avitto was “truthful” and that “everything [he] told you is credible.” This could not have been farther from the truth and there is evidence to suggest that Ms. Nicolazzi knew it.
As it turned out, Mr. Avitto came forward to prosecutors in June of 2005, three months before the start of Mr. Giuca’s trial. With an already lengthy rap sheet, earlier that year he had pleaded guilty to burglary and received a conditional sentence from justice Patricia DiMango: successfully complete rehab and the indictment gets dismissed; use drugs, skip out or get tossed from the program and face three and a half to seven years behind bars.
Mark Fisher was shot about 50 feet from Albert Cleary’s house. Mark Fisher was shot about 50 feet from Albert Cleary’s house. (Photo by Hella Winston for the New York Observer)
Mr. Avitto was released to a drug program in April 2005 and two months later absconded and snorted cocaine, resulting in a warrant for his arrest. Now a fugitive facing a possibly hefty prison sentence, he contacted law enforcement offering information on Fisher’s murder.
Court records show that Ms. Nicolazzi herself accompanied Mr. Avitto to court on June 13, 2005. After an off-the-record conversation between Ms. Nicolazzi and the judge, Mr. Avitto was released on his own recognizance. Three days later he was bench warranted again for cocaine use and was again released without bail, but with a warning from the judge that anything short of full cooperation with his drug program would land him in the slammer.
But in mid-August, Mr. Avitto was deemed “non-compliant” with his treatment and relapsed on cocaine later that month. In early September, he was sent to detox, but took off from that as well. His docket sheet notes he was released on his own recognizance and “no one requested bail.”
At trial, Ms. Nicolazzi questioned Mr. Avitto in a way that concealed she had personally appeared before the judge about his burglary case, allowing Mr. Avitto to speculate that “The judge of my case and I guess [my drug counselor] had a talk and he got me another shot.” When she asked him whether he was given, promised or “even asked for” anything in return for his testimony, he answered, “No.” By law, any such benefit must be disclosed to the defense.
Ms. Nicolazzi also elicited testimony from Mr. Avitto that he was “doing good” in his drug program. But a September 19, 2005 letter in Mr. Avitto’s court file, written and signed by his drug counselor, Sean Ryan, shows that was hardly the case. The letter noted that Mr. Ryan had been contacted by Mr. Avitto’s latest treatment program and was “informed that the defendant was being discharged” for smuggling cigarettes into the facility and distributing them. The discharge, according to the letter, violated “the conditions of his plea.” Again, no bail was sought and none was set. This was just three days before Mr. Avitto was set to testify at Mr. Giuca’s trial.
The defense, however, received an altered version of the letter, dated September 20. In it, Mr. Avitto was referred to as a “client” rather than a defendant and there was no reference to his most recent violation and expulsion from rehab—and the fact it could send him back to jail.
The letter, apparently signed by Mr. Ryan and a different supervisor, also declared Mr. Avitto’s whereabouts unknown. But docket notes confirm that Mr. Ryan had appeared before a judge with Mr. Avitto just the day before and told the court Mr. Avitto had been booted from the program for bringing in cigarettes.
It is unclear how this second, cleaned-up letter came to be drafted. Mr. Ryan no longer works for the program and attempts to reach him were unsuccessful. Whatever its genesis, the letter’s omission of Mr. Avitto’s expulsion from his program is significant. It enabled Ms. Nicolazzi to present him falsely as someone with nothing to gain from his cooperation with the D.A. against Mr. Giuca, and left Mr. Giuca’s trial attorney in the dark when, had he known the facts, he could have impeached Mr. Avitto’s credibility. In fact, in her summation Ms. Nicolazzi characterized Mr. Avitto as an “honest” guy who, although he had “made mistakes over and overall in his life,” was “for once” trying to do “something right” by testifying against Mr. Giuca.
Mr. Avitto has also recanted his testimony in a sworn affidavit obtained by Mr. Bederow. Mr. Avitto now says he fabricated his entire story based on newspaper accounts in pursuit of a quid pro quo from the D.A.: help prosecutors out with a difficult, high-profile case and in return avoid the lengthy prison sentence he was facing for violating the terms of his own deal … Bolstering his credibility is the fact that medical records show that Mr. Giuca’s father, having suffered a series of debilitating strokes, was unable to carry on a conversation.
Doreen Giuliano is certain that most of the people who testified against her son lied on the stand.
There’s no doubt that some of what Mr. Bederow has uncovered in his review should have been pounced on by Mr. Giuca’s defense attorney, like the fact that Ms. Nicolazzi elicited demonstrably false testimony from witnesses about the timing of certain phone calls, or that Mr. Giuca’s father was incapable of speech, or that multiple residents of Argyle Road had told police they heard a car and young people’s voices at the crime scene and yet the prosecutors failed to call any of them.
But court transcripts also indicate that certain crucial pieces of discovery, like Ms. Calciano’s grand jury testimony, were “accidentally” withheld from him until the very last minute, and that the information that Mr. Avitto had been bounced from his most recent drug program days before he testified was likely never made available to him at all, preventing him from effectively cross-examining Mr. Avitto.
In that same Paula Zahn program where Doreen Giuliano made a plea for a new trial for her son, Ms. Nicolazzi was asked whether it is difficult to get a conviction in case that appears to have been based so heavily on circumstantial evidence.
“Every case is different and sometimes this type of evidence, you’re talking about circumstantial or statements, it can be the most overwhelming at times because when you put each piece on top of the other, you wind up with a mountain,” Ms. Nicolazzi responds, adding, “And when you’re at the top it only points to one thing, and that’s what we had here.”
It now seems that mountain is crumbling, and that a combination of key witness recantations and improper conduct by the prosecutor may well lead the Brooklyn D.A., who is currently reviewing the case and will not comment—except to say that “Anna-Sigga Nicolazzi is an experienced and highly-respected veteran homicide prosecutor”’—to vacate Mr. Giuca’s conviction. But even if that happens, we won’t, of course, be any closer to knowing the truth about Mark Fisher’s murder. Tragically, the more that is uncovered, the more it seems that knowing the truth was never the prosecution’s aim.
Hella Winston is a sociologist and freelance investigative journalist. She lives in New York City.