In 2014, when the Conviction Review Unit claims they were reinvestigating the whole case, prosecutors never even bothered to interview the man who stood at the very heart of the story; the man who was convicted of being the shooter, Antonio Russo. Instead, John Giuca was simply denied by the Conviction Review Unit and kept in prison after a perfunctory reevaluation.
It wasn't until after John Giuca's conviction was thrown out in February of 2018, and prosecutors were trying to gather evidence to drag Giuca back to trial, that they finally went to go interview Russo. This effort to polish a turd, and continue to build evidence for a bad case went south when Russo admitted to this crime, and admitted to acting alone.
Now prosecutors are mischaracterizing Russo's confession by saying that it "doesn't prove anything," when in fact, it shows that Russo did this, and Giuca wasn't involved. They now have the perpetrator giving them a declaration against penal interest by giving them an outright admission, which upends everything they said about Giuca at trial.
***Definition of Amicus Curiae: Latin for "friend of the court." Plural is "amici curiae." Frequently, a person or group who is not a party to an action, but has a strong interest in the matter, will petition the court for permission to submit a brief, usually while the case is on appeal, in the action with the intent of influencing the court's decision.
Attorneys of Record for Amici Curiae on John Giuca's behalf are as follows; Joel Rudin, Barry Scheck, Nina Morrison, John C. Schoeffel, Somil Trivedi, Philip Desgranges, Christopher Dunn, Ross E. Firsenbaum, and Tara E. Levens
The bulk of the trial testimony came from Albert Cleary, who told detectives several different stories before incriminating John. Albert told the jury that he and Angel DiPietro left John's house at some point on the morning of October 12th and walked back to his house. He testified that he and Angel went to sleep and woke up at around 11am. He claimed not to remember the 5:57 phone call (he also told police he didn't recall this phone call, which they found odd, since it was over a minute long). During a previous interview, but not at trial, Albert mentions cleaning out the garage sometime that morning.
Albert testifies that he went to John's house the following night, and that Lauren, John's girlfriend, was also present. According to Al, John confides in both of them that he was angry at Mark Fisher the night before for sitting on a table and disrespecting his home, so he gave Tony Russo a gun and told him to "show him what's up." He says Russo went outside to wait, and that John sent Mark outside. Outside, on the corner of Turner Place and Stratford Road, Al says Russo accosted, beat up, and shot Mark.
There are multiple issues with Albert's testimony, which, when combined, expose it as nothing more than a litany of easily identifiable and discredited lies.
Albert vs. Lauren
As alluded to above, both Albert and Lauren claim to be present for the same conversation. However, their accounts differ in every significant way- from the time of the meeting to the substance of the conversation.
In Lauren's version, John said Russo came to him and said he wanted to rob "Albert's friend" and asked him for a gun and that John gave it to him. She testified that John never said anything about disrespect, wanting to "show Mark what's up" or sending Russo outside to wait for Mark. In fact, she testified that Mark and Russo left John's house together. Conversely, Albert never mentions a robbery.
Albert says the meeting happened in the evening, whereas Lauren says it was during the day. Albert testified that John was freaking out and wondering if Mark was still alive and hoping that he was. Lauren testified that it was Albert, not John, who was pacing, nervous and making comments like "I wonder if it's going to be in the newspaper" and "I don't even know if he's dead or alive".
The Table Incident
In Albert's version, the catalyst for the murder was an incident in which Mark sat on a table. This incident first appeared in Albert's interview from November 16, 2003:
When asked about any problems with Mark and any other's present at the party at John's house, Al advised that Mark barely spoke and was drunk. Al describes Mark as "zombie like". The only incident that Al was able to recall was when Mark sat on a table that he thought was a chair. Tommy told Mark to get off of the table, and sit somewhere else. Al does not recall any additional incidents. He reiterated that Mark barely interacted with the others.
He also mentions this story in his grand jury testimony:
That's when - - some time when this happens Tom has a problem with Mark because he is kind of like very wasted, sitting on something like a table. And Tom goes up to him. He is like "what is your problem? It is not a chair. There is a chair there. Sit down."
Mark says- - he doesn't say anything. He goes and sits down on the chair. Tom like turns around, looks at the rest of us like what is with this kid. Why is he so wasted. And nothing more of it.
Tommy has even stated that it was he, not John, that told Mark to move. But during the trial, Albert testified that it was John, creating the basis for one of their motives. However, on cross, Albert admitted that he had changed the story after speaking to the prosecutors in the previous 24 hours.
Albert testified that Mark was attacked, beaten, and shot by Tony Russo on the corner of Turner and Stratford Road, which is a block up from John's house.
However, we know that Mark was actually shot four blocks away, in front of 150 Argyle Road, across the street from Albert's house.
How do we know this? Because all of the available evidence tells us this is the case. Mark's body was found in the driveway of 150 Argyle Road- not Stratford or Turner pl. The 911 caller lived two doors down from Albert on Argyle, and every resident who heard the gunshots came from Argyle Road. Not a single person on Stratford Rd or Turner Pl. reported hearing gunshots. These witnesses also heard or saw a vehicle fleeing the scene. The couple who lives at 150 Argyle Road heard voices just prior to the shots, specifically that of a female voice, coming from the driveway where, just moments later, Mark's body was discovered. Two shell casings were also found at the scene. It is beyond dispute that whatever happened to Mark did not happen, as Albert alleged, on the corner of Stratford Road and Turner Pl.
In fact, Albert's house seems to be the only house on the street that didn't hear the gunshots, or police sirens, or anything else for that matter (they also apparently never looked out a window). Though they lived at the epicenter of the crime, all they knew of what happened was what Albert's mother heard second hand from a neighbor. They also, apparently, didn't hear the police knocking on their door either, because their house does not show up on the police canvas conducted at 9:05 that morning. Albert's bedroom window even looks out over Argyle Road, and over the crime scene. And yet, he maintains he heard nothing.
Not only is Albert's story clearly false, but the location switch poses an interesting question: was Albert purposefully moving the crime towards John's house, and away from his own?
Other Facts About Albert Cleary:
Multiple witnesses heard or saw a dark-colored vehicle fleeing the scene. At least two described seeing a van, and the couple who lived at 150 Argyle Road heard a van door slide close just after the gunshots. At the time, the Cleary's owned a dark-colored van.
The 5:57 call
During his November 16, 2003 interview, Albert is asked about a phone call he received from John on the morning of October 12th at 5:57 am that was over a minute long- the longest phone call in case. Albert says he doesn't remember this call. He's asked about it on the stand, and he again says he doesn't remember the substance of the call.
Why? Because, as John's lawyer tried to ask him on the stand (before he was cut off by the prosecutor) and as John's mom told Paula Zahn in 2009, John was calling to tell Albert that Mark was on his way to his house. Because Angel, the only person Mark knew at the party, was at Albert's house, so, naturally, he wanted to find her before going home. This phone call quite literally brings Mark right to his doorstep.
The Incident in The Bronx
Prior to October 12, 2003, John had never been arrested. Albert, however, had and was three years into a five-year probation sentence. He was asked about it during trial:
A: I was out celebrating a birthday with some of my friends from school. We went out drinking, we got drunk and late at night, we got into a fight with some kids outside of a bar. The cops saw the fight, stopped, you know, we ran, the cops got me.
Q. What was done by you, as a group, to the person or victim in that case?
A. Two kids got beaten pretty badly, they got abrasions all over. They went to the hospital.
Q. And you were locked up over this thing, correct?
A. I was in booking for two days.
Q. And it would be fair to say that after these guys were on the ground unconscious, you kicked them in the head and beat them with your first, correct?
A. That's what the paperwork says.
Q. So, these guys were helpless, they were on the ground, correct, right?
A. They were on the ground.
Q. And so, what you do is, you step on the defenseless, correct, literally, with your boots, right?
Mark's autopsy noted that the right side of his face and hands were heavily bruised, suggesting he was in a fight with a left-handed person before he was shot. John is right handed. Albert Cleary is left-handed.
During trial, ASN is asking Albert about his decision to finally "come clean" (he doesn't incriminate John until a few days before his grand jury testimony). She then improperly asks him whether he took a polygraph, suggesting that his testimony was truthful since it was corroborated by a polygraph exam.
Albert did in fact take a polygraph test in June of 2004, months before he ever incriminated John, in order to take the heat off of himself. Here is the actual polygraph exam Albert took:
As you can see, the polygraph exam doesn't corroborate Albert's testimony. In fact, it destroys it. There are only three conclusions one can draw from it:
- Albert lied under oath at trial
- Albert submitted a fake polygraph to police
- Albert is such a good liar he was able to beat a polygraph
False Alibi and Asking Neighbor to Lie
Two very strange things happened following the murder of Mark Fisher.
The first comes from a neighbor of the Cleary's, who told a private investigator in 2013 that in the days following the murder, Mrs. Cleary came to her house and asked her not to reveal anything about her son to the police.
The second requires a bit of backstory.
When the police found Mark's body, the only thing he had in his pocket was an ATM receipt. The ATM receipt was date stamped as 4:23 AM. (pg. 373). This fact was then reported by the New York Post. On October 30, 2003. At some point, however, police learned that the machine was actually an hour off, so the transaction happened at 5:23, not 4:23. Unbeknownst to Mrs. Cleary, when she told the New York Times in February of 2004 that her son was home by 4:30, she was using an erroneous piece of false information to set up an alibi that was impossible. The one thing that is consistent throughout all of Albert's statements is that he was present when Mark Fisher and Tony Russo left for the ATM, and was present when they returned. This means he was there until at least 5:30, and could not have been home by 4:30 as Mrs. Cleary claimed.
Prior to testifying in the grand jury, Albert Cleary waived his immunity, a move that has puzzled those in the legal community. A witness, especially a reluctant one, is typically offered immunity as a means of enticing them into testifying. Being granted immunity would mean that the witness could not be prosecuted for anything associated with the particular crime they are testifying about. It is very unusual for a witness to waive their immunity; it is unheard of if that witness is reluctant.
Albert went to extraordinary lengths to avoid testifying in this case- even submitting a polygraph report to prove he knew nothing. According to his testimony, he lied to police for a year. Mark Fisher's body was found across the street from his house an hour after Albert was with him at John's house. He had good reason to accept, and even insist, on having automatic immunity. The only conceivable reason he would have to waive his immunity is if he didn't actually waive his immunity. In other words, if the waiver was for show, and he had a private understanding with the DA's office that he wouldn't be prosecuted.
The Wilson Pakula Connection
In 2005, Charles Hynes (a democrat) was up for re-election. Facing a challenging opponent and the possibility of losing the primary, to former New York State Senator John Sampson, he went before the Kings County Republican Party Executive Committee and asked for their endorsement, allowing him to run as the Republican Candidate. This type of endorsement, which allows a candidate to cross party lines and run for a party they are not registered with is known as a "Wilson Pakula". Hynes was granted the endorsement and became the Republican Candidate.
Hynes was granted the endorsement again in 2013. Before the primary, Hynes stated that, should he lose his party's endorsement, he would drop out of the race and not utilize the Republican endorsement only to lose, change his mind, and run as the Republican candidate. Hynes lost again in the general election.
Susan Cleary's position as vice chair of the committee that was responsible for handing out an endorsement to the DA's office that was simultaneously handling a murder case that he was long considered a suspect in, and in which he ultimately became it's most controversial witness, is the very definition of "conflict of interest."
One Last Thing to Consider:
Q. Well, let me ask you this, who was it that said for the first time - - withdrawn.
Who was it for the first time that said Mark Fisher was dead? Did you tell John, or did John tell you?
A. Angel told me.
Q. Between you two, did you tell John or did he tell you?
A. I told John.
MR. GREGORY: No further questions.