The Wrongful Prosecution of John Giuca

1. The Murder

On Saturday, October 11, 2003, college student Mark Fisher went out with some friends on the Upper East Side of Manhattan. At a bar, he ran into Angel DiPietro, a classmate from Fairfield University, who was out with some of her friends, including a girl named Meredith Denihan and a guy named Albert Cleary.

Eventually, they met up with Albert’s neighbor and friend, John Giuca, who was out with some of his friends. As the night came to a close, Mark, Meredith, Angel, Albert, and John found themselves standing on the street, unsure of what to do next. When the group was unable to find Mark a way home, John, whose parents were away in Florida, invited the group back to his house.

Shortly after arriving at John’s, they were joined by more of John’s friends, including a kid from the neighborhood, Antonio Russo. At some point, Mark says he needs to go to an ATM. Russo accompanies him, and he makes an ATM withdraw at 5:23am. Soon after their return, Angel and Albert leave and go to Albert’s house.

At 5:57am, John placed a call to Albert, letting him know that Mark was on his way to his house (presumably because that’s where Angel was, the only person he knew from the party). Because it is much colder out now than the previous evening, Mark asks John to keep the blanket he has draped over his shoulders.

Forty minutes later, Mark Fisher was shot and killed in front of 150 Argyle Road, a few blocks from John’s house and directly across the street from Albert’s.

2. The Crime Scene

Investigators found the body of Mark Fisher laying face down in the driveway of 150 Argyle Road. He’d been shot five times; the blanket from John’s house lay underneath his feet. He had abrasions on the right side of his face, as well as his right hand, suggesting he’d been in a fight with a left-handed individual prior to his death (John is right-handed; Albert is left-handed).

Though Mark was shot five times, only two shell casings were found at the scene; the other three never recovered. What appears to be a right, petite, barefoot footprint left in the mud near one of the spent shell casings seems to have alluded crime scene investigators, though it is visible in one of the crime scene photos.

At 9:05am, police begin to canvas the area. From these initial investigations, they were able to determine some key facts:

the couple who owned the driveway where Mark Fisher’s body was found were woken up by their dog barking at voices in their driveway just prior to the shooting. They described the voices as of “young people” and specifically identified one as belonging to a “young female”
the same couple also heard the sound of a van door sliding shut immediately following the shooting
at least five residents on Argyle Road saw or heard a vehicle speed down Argyle Road following the shooting
those who saw the vehicle described it as either a large or mid-size, dark-colored vehicle; at least two described the vehicle as a “van”

Despite their proximity to the crime (their house appears in the background of many of the crime scene photos) Albert, Angel, and Albert’s mother stated they did not hear gunshots.
Meanwhile, Antonio Russo went to a neighbor’s house at approximately 7am, asking him to cut off his braids, a style he’d worn for years. He also fled to California.

Police forensic detective documents evidence

3. The Investigation

Investigators interviewed Mark’s friends the following day, who described speaking to Angel multiple times on the 12th in an effort to locate their friend. They told police how, despite their efforts, they were unable to get a straight answer from her regarding Mark’s whereabouts; how multiple people spoke to Angel that day, and each time, she gave them a different story. The rest of Mark’s friends, including Angel’s two roommates, became suspicious as she continued to give various accounts to each of them. Angel’s own police interview, taken on the 14th, is nowhere close to what she testified to at trial. Read more about Angel’s statements here. Despite this, she is only interviewed one more time prior to trial.
Detectives also interviewed other party attendees. The murder garnered significant media attention, and in February of 2004, the (now disgraced) former Brooklyn District Attorney Charles Hynes took control of the investigation. Removing the original detectives, he put together an “elite” team of prosecutors from his office and detectives from the “major case squad” of the NYPD. Lead by former ADA Michael Vecchione (who, along with Hynes, has been linked to multiple wrongful convictions), the team included ADA Anna-Sigga Nicolazzi (ASN), ADA Patricia McNeil, former ADA Josh Hanshaft, and two major case squad detectives. The major case squad, according to author and former MCS detective William Oldham “was about creating cases.”

Officially, Hynes cited a lack of progress in the case as his reason for making the change. However, a review of the record shows that detectives were making progress, and were heading in a particular direction (not towards John). When the DA’s office took over, those lines of inquiry were abandoned, and the investigation went in an entirely different direction.

By November, the DA’s office secured an indictment for Antonio Russo. Despite the fact that three separate individuals told police that they saw Russo with a gun in his waistband both before and after the murder (one was even threatened by Russo with a gun), a month later on December 21, 2004, John was arrested as well. Eight months after that, the two men went on trial for murder.
At John’s grand jury, despite calling over two hundred witnesses, the prosecution secured the (conflicting) testimony of only two. Based on the testimony of these two witnesses (two more would follow post-indictment), prosecutors alleged that Mark’s murder was the result of a robbery attempt by Russo and that John supplied him the murder weapon.
John has always maintained his innocence.

4. The Trial

John Giuca’s September 2005 trial was an exercise in cognitive dissonance. So much information discovered during the investigation was omitted from the trial completely that, in many ways, the murder presented at trial and the murder itself scarcely resemble each other.
With no physical evidence linking John to the crime, no eyewitnesses, and no murder weapon, the prosecution (lead by Anna-Sigga Nicolazzi) relied heavily on four witnesses- three of which testified to wildly different alleged admissions made by John; all of which were inconsistent with each other (despite two witnesses apparently describing the exact same conversation), or were disproven by the physical evidence. Three of these witnesses have recanted (Lauren Calciano, Anthony Beharry, John Avitto)

Based on these witnesses, the prosecution offered multiple theories, picking them up and abandoning them at will; none of which included the vehicle so many witnesses heard and/or saw, or that a female was likely present.

These facts, likely critical pieces of information, pointed away from John and proved that (despite their smorgasbord of theories) the prosecution never came close to uncovering the truth. Therefore, the prosecution simply discarded them, and the jury never heard them.
During the trial, prosecutors offered the robbery theory through one witness but quickly moved through a variety of new theories: that John was angry at Mark for sitting on a table; that he was jealous over a girl (which wasn’t offered in testimony but was wild speculation made by the prosecutor); that the murder was part of a gang initiation (also a product of the prosecutor’s imagination); and finally, that Mark was killed at the ATM because he only got out $20. Though this final theory (based on the testimony of John Avitto) is made impossible by the physical evidence, during summation the prosecutor implored the jury to discard the first theories; that, if they were going to believe anybody, it should be him, because Avitto was “similarly situated” with John in jail, and that his testimony “made the most sense”.

Witnesses with crucial information that refuted the prosecution’s claims about John gave those particular portions of their testimony in front of Russo’s jury only, or not at all.
For example:

Only one of the witnesses who told detectives he saw Russo with a gun in his waistband testified, yet this important detail was omitted.
Another witness testified that Russo told him that he actually got the gun somewhere else entirely.
Multiple witnesses testified that Russo had confessed to them that he’d killed Mark, citing various reasons (none of them involving John) and that he seemed to be bragging about it.

None of these facts were presented to John’s jury.

For her part, Angel’s testimony served merely to corroborate some of Albert’s narrative and served as a de facto alibi witness for him. The inconsistencies of her previous statements were never explored.

To account for the discrepancies in the testimony, the prosecution simply pretended they didn’t exist. For example, regarding Al and Lauren’s testimony, which stood in stark contrast with each other, the prosecution said they were “saying the same thing, just in different ways.”
Not only did the prosecution ask the jury to disregard these discrepancies, they then vouched for their truthfulness. Ironically, while they were telling the jury they could “trust” these witnesses who were “being very honest”, they were simultaneously telling them about phone calls that never happened, misleading them about polygraph results, adamantly denying giving a deal to John Avitto in exchange for his testimony (evidence of which is now irrefutable), and misstating the law. To fill in the cracks, the prosecution speckled inflammatory rhetoric throughout the trial, assassinating John’s character and speculating wildly on matters not presented in evidence with no factual basis. And, finally, hiding critical pieces of information from the fact finders that didn’t fit their narrative.

Three of the four witnesses against John have recanted in the last two years, two of them detailing how they were intimidated, threatened, and essentially forced into testifying. The third witness who recanted has admitted that he received a deal from prosecutors for help resolving his own case, providing an incentive for him to lie. The fourth witness, Al Cleary, has been thoroughly and completely discredited.

Read the case for Prosecutorial Misconduct here