Prosecutorial Misconduct

“A prosecutor may ‘strike hard blows, but he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
 –Berger v. United States

“It is my opinion that Mr. Giuca did not receive a fair trial. It is my further opinion that ADA Nicolazzi deviated on numerous occasions from ethical standards relating to a prosecutor’s conduct in the presentation of evidence and argument to the jury. By her distortion, subversion, and suppression of evidence, and improper arguments to the jury, ADA Nicolazzi undermined Mr. Giuca’s right to a fair trial, and corrupted the integrity of the jury’s verdict. ADA Nicolazzi, in order to win a murder conviction in a high profile case, recklessly disregarded a prosecutor’s overriding responsibility as a minister of justice to ensure that only reliable and trustworthy evidence be presented to the fact-finder. She further violated her ethical responsibilities to avoid using misleading, deceptive, and inflammatory tactics which have the potential to skew a jury’s careful and rational assessment of the proof, and her conduct prevented the jury from arriving at a fair and reliable verdict.”
— from Bennett Gershman's letter to the DA

Avitto — Brady Violation 1

“The existence of any agreement between the DA and a witness, made to induce the witness to testify, must be disclosed under Brady.
- People v. Cwikla

Prosecutor Nicolazzi:

  • “The defense has suggested with respect to Avitto well, he’s willing to say anything because he’s trying to help himself and he’s getting some sort of deal. There is no evidence of that.”
  • “If he had gotten some consideration, then there would be absolutely nothing to hide about that.”
  • There is absolutely no evidence, no evidence at all [that Avitto got a deal]”.

Evidence to the contrary:

  • On June 13, 2005, the same day Avitto first met with the DA, Nicolazzi escorted Avitto into court to clear up a bench warrant, immediately had an “off the record” conversation with the judge, and he was immediately released
  • Between June and September, Avitto relapsed twice and absconded at least 7 times; each time, he was released without bail
  • Though his agreement with the court was to spend 18-24 months in an inpatient program, he was allowed to remain in an outpatient program
  • The September letters
  • From Avitto’s sworn statement:

"From June 2005 to September 2005, despite several violations of my plea agreement, the DA kept it's promise to help keep me out of jail and from being sentenced to prison for violating the conditions of my plea in exchange for testifying against Giuca. Satisfied in the assistance I had received from the DA, I agreed to testify against Giuca."

“As ADA Nicolazzi knew, I only approached law enforcement after I had absconded from my program and faced a lengthy prison term specifically for the purpose of getting their assistance if I agreed to help them by testifying against Giuca. I told ADA Nicolazzi this during our first meeting. She knew I was seeking assistance from the DA in exchange for testifying against Giuca."

Avitto — Brady Violation 2

“Evidence which impugns the credibility of the DA’s principal witness against the defendant tends to negate his guilt and, therefore.. must be disclosed to the defense.”
– People v. Waters

  • The prosecution had in their possession knowledge that Avitto was diagnosed with schizophrenia around the same time the alleged conversations took place and did not disclose this to the defense

Avitto — Brady Violation 3

“Withholding brady in a ‘trial by ambush’ tactic result[s] in unfairness and deprive[s] the defense the opportunity to be thoroughly prepared for trial.”
- People v. Waters

“trial should not be a sporting event where each side remains ignorant of the facts in the hand of the adversary until events unfold at trial.”
 – People v. Grega

  • Avitto’s testimony was favorable because it contradicted every other witness
  • John’s defense was unaware that Avitto was testifying until two days prior
  • Nicolazzi doesn’t mention him at all when she laid out her case in her opening statement, or anywhere else during trial until two days prior
  • No documents regarding Avitto were given to the defense until two days prior
  • No documents regarding the substance of Avitto’s testimony were ever given to John’s defense; they became aware of his statements for the first time while he was on the stand

False/Misleading Statements

“The prosecutor has a special duty not to mislead; the government should, of course, never make affirmative statements contrary to what it knows to be the truth.”

  • United States v. Myerson

Phone Records - ASN told the jury that John called Lauren “right after the murder”, displaying a consciousness of guilt. This was false. John’s phone records, which were submitted by the prosecution, show that John’s last phone call to Lauren was at 6:22- twenty minutes before the murder; allowing testimony that John was “frantically” trying to call Meri at a time that John’s home phone records prove she was still at his house

The Polygraph- During trial, ASN asked Albert “did you go so far as to on your own go and take a polygraph exam?”, leaving the jury with the false impression that Cleary’s polygraph results were consistent with his trial testimony when, in fact, the opposite is true (link the Al’s polygraph) (also violates the New York Rules of Professional Responsibility, Rule 3.4(d)(1); “a lawyer must not offer evidence he or she knows is inadmissible”

Al’s Attorney- ASN mislead the jury about Albert’s immediate retention of an attorney  (which she implied was evidence of guilt) by referring to his attorney as a “close family friend”

Avitto’s Status-ASN refers to Avitto as being “sentenced” and his drug program as a “sentence”, misleading the jury into thinking his case was over and completely resolved (in which case, a “deal” would be unnecessary)

Misleading Comments During Summation

-ASN told the jury that Lauren’s testimony alone was enough to convict John of felony murder; untrue
-“Multiple witnesses told you that Russo would do anything this defendant said.” Untrue; only one witness said this, Al Cleary 
-“Lauren told you that Cleary, when he was listening to the story coming from the defendant, from the news Giuca was giving him and then Lauren corroborated that too.” Untrue; Lauren didn’t corroborate Cleary and, in fact, told the jury she never heard John say anything about a table, getting a body, disrespect, or showing anyone what was up 
-Despite Al testifying that another individual was the “leader” of the gang, ASN referred to John as the leader or head 17 times
- Referred to Avitto as “sentenced” and that to believe he got a deal the jury would have to believe in a conspiracy between the judge, the cops, and the DA’s office
-Referred to Al’s lawyer as a “close family friend” instead of calling him his lawyer

Creating False Evidence

see The Ryan Letters

Eliciting False Testimony

“A prosecutor’s deliberate deception by the presentation of testimony known to be perjured violates due process and is ‘inconsistent with the rudimentary demands of justice.”
-Mooney v. Holohan

Avitto’s Drug program- Avitto testified he was “doing good” in his drug program and had only relapsed once. ASN was well aware that both of these were false:

  • Avitto violated at least seven times between June and September
  • He admitted to doing cocaine the day before he first met with the DA and had a bench warrant out for his arrest at the time
  • He’d either absconded from, or been thrown out of, every program he’d been placed in up to that point
  • His most recent violation, where he was caught smuggling contraband into the program and was subsequently removed, occurred just three days before he testified
  • Avitto relapsed at least twice, once on June 12th (the day before he first met with the DA)

Consideration for testimony -- from Avitto’s Affidavit:

“ADA Nicolazzi asked me if I had asked for anything in exchange for my testimony. I swore that I did not ask for  anything in exchange for my testimony. This testimony was false… She knew that I was seeking assistance from the DA in exchange for testifying against Giuca.

-Schizophrenia Diagnosis– Avitto testified that he took Seroquel for sleep, after which ASN questions him extensively about why he has trouble sleeping, his past, etc.
-  According to Avitto’s PSR report (which ASN had, or should have had), Avitto was diagnosed with schizophrenia at Riker’s Island, and was prescribed Seroquel due to this diagnosis
-  Avitto was diagnosed with schizophrenia around the same time the alleged conversation he overheard took place.

-Avitto’s Version of Events – ASN knew John Avitto’s version of events was false because she knew it contradicted the physical evidence, testimony from party goers, testimony from Al and Lauren, and every witness on Argyle Road.
- Everyone at the party who testified told the jury that Mark went to the ATM with Russo and came back, and that John remained at his house
- Physical evidence proves this story was false because the ATM receipt was time stamped at 5:23AM, and Mark was killed until 6:40AM, an hour and 17 minutes later
- Mark wasn’t killed anywhere near the ATM (located on Coney Island Avenue); he was killed on Argyle Road, across from Al Cleary’s house, where his body was discovered and where all the witnesses who heard gunshots lived

-Cleary’s Version of Events –ASN knew Cleary’s version of Mark’s murder was false because she knew he couldn’t have been attacked or killed on the corner of Turner and Stratford Road and she must have known Cleary’s attempt to move the murder the four blocks from his house to near John’s was suspicious
-ASN knew no one on Stratford Rd or Turner Pl. reported hearing gunshots, unlike the residents on Argyle Road, and she knew where Mark’s body was found
-ASN knew the distance between John and Al’s house was four blocks, a point that was never clarified to the jury, and that this moving of the crime away from his house and towards John’s was convenient and suspicious

-“Get a body” conversation- ASN knew this conversation likely never took place as the individual with whom John supposedly had it (the leader of the alleged gang) was away at college in North Carolina at the time studying finance and accounting, making him an unlikely gang leader

Vouching for the Credibility of Witnesses

“A prosecutor may not vouch for the credibility of witnesses.”

  • People v. Russell

-ASN told the jury they “knew” about closely contested evidentiary matters 43 times
-ASN told the jury that witnesses were “being truthful”, “were credible”, “honest” and that the jury “could trust them” at least 18 times

Testifying as an unsworn witness/ASN unethically giving her own opinion

“ A prosecutor may not become an unsworn witness in the case.”

  • People v. Spence

“A prosecutor is forbidden to express his or her personal belief or opinion as to the truth or falsity of the evidence, or guilt of the defendant.” – ABA Model Rules, Rule 3.4(e); ABA Standards for Criminal Justice, Standard 3-5.8(b); New York Rules of Professional Conduct, Rules 3.4(d)(2) and 3.4(d)(3)

ASN statements during summation:

  • “the gun which I know is the murder weapon in this case” (this despite having never recovered the murder weapon, never finding a gun in John’s possession, and no evidence that the weapon she refers to was the murder weapon)
  • the idea that Cleary was trying to cover for himself “makes absolutely no sense and is patently absurd.”
  • “absolutely the murder weapon” (see above)
  • Despite only having indirect, flimsy evidence, ASN told the jury at least 5 times that John was “absolutely guilty”

Speculating on matters not in evidence

“A prosecutor may not comment upon matters not in evidence or otherwise engage in speculation.”

  • People v. Woodrow
  • In Summation, ASN offered a new motive, not supported by any testimony or otherwise entered into evidence, where “the girl was paying attention to Mark” and John was “rebuffed”
  • ASN also offered a new theory not supported by any testimony or otherwise entered into evidence where John participated in the murder and “may have even fired some of those shots himself”
  • ASN suggested that the 5:57 phone call from John to Cleary was John trying to entice Cleary to “be a part of his plan” even though John explains why that call was placed and Cleary doesn’t remember it altogether
  • ASN offered another theory, again not supported by any evidence, that “Mark was supposed to be robbed during the first visit to the ATM”

Witness Claims of Intimidation and Coercion by the Prosecutor

See the recantations (PDFs):

Lauren Calciano
Anthony Beharry
John Avitto