NYS’s Top Court Gives Prosecutors Green Light to Conceal Evidence From Defendants

by Theodore Hamm


Did John Giuca give Antonio Russo the gun that killed Mark Fisher in a high-profile 2003 Brooklyn murder? Did a glamorous prosecutor (and now TV expert on criminal law) deprive Giuca’s defense lawyer of substantive evidence that her key witness got favorable treatment from the Brooklyn DA’s office?

In its June decision restoring John Giuca’s 2005 murder conviction, New York’s highest court ruled that the evidence of Giuca’s guilt outweighed prosecutor Anna-Sigga Nicolazzi’s misconduct.

That the 5-1 majority decision by the Court of Appeals was written by Chief Justice Janet DiFiore was no coincidence. Prior to being named by Gov. Andrew Cuomo as the state’s top judge when her predecessor Jonathan Lippman retired in 2015, DiFiore had spent the bulk of her career as a Westchester prosecutor, serving as DA from 2006 until she moved to the Court of Appeals in 2016. Lippman, a strong proponent for defendants’ rights while chief justice, had never been a prosecutor.

DiFiore’s ruling in the Giuca case was “a backward-looking decision,” says veteran exoneration lawyer Ron Kuby. “Instead of forcing prosecutors to live up to their constitutional duties,” he continues, “the decision encourages the suppression of favorable evidence — and after conviction, allows prosecutors to argue the defendant was so guilty that the evidence didn’t matter.”

Four appellate division judges had unanimously overturned Giuca’s conviction in early 2018, a decision that the Brooklyn DA’s office appealed. In advance of the Court of Appeals hearing of oral arguments this past April, exoneration lawyer Joel Rudin wrote a lengthy advisory brief on Giuca’s behalf, which was co-signed by the Innocence Project, ACLU and the Legal Aid Society, among many other groups. In response to DiFiore’s majority decision reversing the lower court’s ruling, Judge Jenny Rivera — a former CUNY Law School professor with a strong civil rights background — issued a forceful dissent.

In reinstating Giuca’s conviction, DiFiore and her colleagues thus repudiated leading exoneration advocates and at the same time bucked recent legislative initiatives in Albany toward greater prosecutor accountability and full disclosure of evidence. Yet while all of the 10 appeals judges have found misconduct, how can the five on the higher court know for certain that Giuca is guilty?

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In September 2005, John Giuca and Antonio Russo were each convicted for the 2003 murder of Fairfield University student Mark Fisher after a house party in Prospect Park South. The tabloid-ready trial of both defendants was handled by Brooklyn ADA Anna-Sigga Nicolazzi, who was considered the star prosecutor in Joe Hynes’ office.

A decade later, Giuca’s attorney Mark Bederow argued in a hearing that newly discovered evidence Nicolazzi had withheld from Giuca’s trial lawyer provided grounds for a retrial. Brooklyn Supreme Court Judge Danny Chun found no misconduct on Nicolazzi’s part. In early 2018 the appellate division reversed Chun’s decision and ordered a retrial, but last month the Court of Appeals overruled the appellate division and affirmed Giuca’s 2005 conviction.

The evidence not turned over by Nicolazzi to Giuca’s trial lawyer pertained to the favorable treatment Rikers jailhouse informant John Avitto received in exchange for testifying against Giuca. Nicolazzi had not mentioned Avitto in her opening statement. Two key eyewitnesses then contradicted each other regarding why Giuca allegedly gave Russo the murder weapon, although neither placed him at the scene. Nicolazzi then brought forth Avitto, whose testimony enabled the prosecutor to revise her theory of the case and now claim that Giuca was at the scene, gave Russo the gun and told Russo to kill Fisher.

The question debated by the appellate judges is whether Nicolazzi turned over all evidence to the defense of the favorable treatment she and the DA’s office provided to Avitto, who had been cycling through Brooklyn’s drug court and had been at Rikers on a burglary charge when he claimed to have overheard Giuca tell his ailing father and two aunts that he handed off the gun to Russo.

Nicolazzi gave Giuca’s trial lawyer Sam Gregory some but not all of the evidence he requested, leaving out Avitto’s medical records (he was on medication for hallucinations while at Rikers) and details regarding Nicolazzi’s unusual appearance at drug court on his behalf. Nor did Gregory receive the internal correspondence from the DA’s office, which included an email from Anne Swern — then a top Hynes executive who oversaw the drug courts — deeming Avitto’s case worthy of “special attention.”

In her majority decision, DiFiore acknowledges that there was indeed “undisclosed evidence that would have enabled [Gregory] to deepen his argument that Avitto was testifying falsely in order to receive favorable treatment from the court.” She does not submit an explanation for why such material was not turned over, however. Instead, she argues that the pivotal issue is the “materiality” (i.e. relevance) of the information. Because Gregory presented other facts about Avitto’s questionable track record and possible motive to lie, DiFiore thus asserts that the undisclosed stuff would have made no difference in any of the jurors’ determinations.

After excusing Nicolazzi’s misconduct, DiFiore maintains it cannot be “ignored that…the People presented strong evidence of [Giuca’s] guilt at trial.” Yet what the chief judge calls strong evidence is quite flimsy. She refers to the “self-incriminating statements Giuca made to friends,” but neglects the fact that none of the statements placed Giuca at the scene (thus contradicting Avitto’s claims, which Nicolazzi repeatedly stressed in her summation). DiFiore insists that Giuca made “efforts to dispose of the gun shortly after the murder,” which is based solely on the trial testimony of a witness but leaves out the fact that the gun was never found. And she says that there was a blanket from Giuca’s house found at the murder scene, which proves nothing because there’s no dispute that Fisher had been at Giuca’s house party.

The brief on Giuca’s behalf written by Joel Rudin (and co-signed by the Innocence Project’s Barry Scheck and Nina Morrison, et al.) zeroes in on the question of why a prosecutor should be allowed to withhold key evidence. Rudin, best known for the protracted exoneration fight he and Jabbar Collins won against the Hynes administration, foregrounds DiFiore’s late 2017 directive to state judges that prosecutors must turn over “favorable information” to defendants, regardless of whether the prosecutor deems the material important. He explains that New York courts have long held that it’s the role of the jury, not the prosecutor, “to evaluate the truthfulness and the significance of evidence that favors the defense.”

Judge Jenny Rivera’s dissenting opinion in the Giuca case is in sync with the Rudin brief. As Rivera explains, “there is no dispute that the prosecutor suppressed information about her involvement” in helping Avitto get uniquely favorable treatment at drug court three months before the trial. In Rivera’s view, Nicolazzi’s undisclosed appearance at drug court, where she approached the bench to speak directly with the judge (who then gave Avitto a favorable deal), could have allowed the jury to infer that Avitto got something in return for his damning testimony. (Notably, one of the four appellate judges who initially overturned Giuca’s conviction, L. Priscilla Hall, had presided over Brooklyn’s drug court.) Nicolazzi’s moves, according to Rivera, amounted to a “particularly egregious violation of our law and the prosecutor’s ethical obligations” regarding disclosure of evidence.

“Nicolazzi’s conduct was outrageous,” says Mark Bederow, whose legal battle on behalf of Giuca produced another piece of evidence — a detailed pre-trial statement in 2005 by Joseph Ingram, another Rikers informant, that describes Russo acting alone and includes that Giuca did not help Russo get rid of the gun. Not surprisingly, Nicolazzi also failed to turn that over. Toward the end of the audio-recorded statement, Nicolazzi asks Ingram (who was also with Giuca at Rikers), “Was there any conversation about speaking with John’s lawyer?” about what Russo had told Ingram. Ingram’s answer was “no, because his lawyer is on vacation.” Nicolazzi’s concern about what Giuca’s lawyer might know clearly suggests her intent to conceal evidence that undercut her case.

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The willingness of DiFiore and her colleagues to excuse Nicolazzi’s misconduct is alarming. Westchester exoneree Jeffrey Deskovic, who now advocates on behalf of others wrongfully convicted, argues that DiFiore’s decision “shows the problem when prosecutors become judges.”

As Westchester DA, DiFiore gained notoriety in 2006 for allowing the DNA test that cleared Deskovic of a 1990 conviction for the rape and murder of a Peekskill teenager. (DiFiore’s predecessor, Jeannine Pirro, had refused to allow that test.) While DiFiore has continued to use his case to show her bona fides regarding wrongful convictions, Deskovic opposed her nomination in late 2015 as chief judge precisely because she had blocked many subsequent potential exonerations.

“Fair trial rights not upheld by the courts, and are only on paper, in reality do not exist,” says Deskovic regarding the Giuca decision. He adds that the ruling conflicts with the current direction of public policy in New York State. Last summer Gov. Cuomo agreed to the formation of a prosecutorial misconduct commission, an initiative pushed by Deskovic and other leading exoneration advocates.

Earlier this year the legislature passed the discovery reform bill, which makes major improvements in New York State criminal procedures. Under the new rules, and in accordance with DiFiore’s 2017 directive, prosecutors would be required to turn over all exculpatory evidence, which would include the Avitto materials and the Ingram statement.

And yet, like a district attorney’s office unwilling to admit wrongdoing, New York’s highest court redecided Giuca’s guilt and tailored its ruling accordingly. “My worst fears about Difiore leading the Court of Appeals have been realized with the Giuca decision,” says Deskovic.

The next step for Giuca is to ask for a new trial based on the newly acquired Ingram evidence (and perhaps supplemented by Russo’s 2018 confession that he acted alone, which he gave to investigators sent by the Brooklyn DA’s office). The process is the same as what began in 2015 with the hearing based on the Avitto evidence. Once again, Giuca is setting forth on a long and winding road towards justice.