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Why Is The Brooklyn DA Still Keeping John Giuca Behind Bars?

Theodore Hamm Mar 29

Issue 234

This past February a New York appeals court unanimously overturned the conviction of John Giuca, citing prosecutorial misconduct during a high-profile 2005 Brooklyn trial for the murder of 19-year-old college student Mark Fisher. Despite recantations by three of the four witnesses who directly implicated Giuca in Fisher’s death, newly elected DA Eric Gonzalez is planning a retrial (currently scheduled for May 1). A full understanding of the case requires a journey into Brooklyn’s not-so-distant past when Joe Hynes was DA and the Post and Daily News still drove the local news cycle. The tabloids may have diminished in influence, but Hynes’ dubious legacy endures.

[Updated Below]

“I’m ready to do the perp walk,” Clarence Norman assured reporters outside the office of Brooklyn District Attorney Joe Hynes on the second Thursday evening of October 2003. Brooklyn’s powerful Democratic Party boss would spend that night on a cot in a conference room of 350 Jay Street, in advance of his arraignment the next morning on a slew of corruption charges. There was no particular reason for Norman’s solo slumber party at the DA’s office, but Joe Hynes knew how to create tabloid headlines.

That same weekend, a college student named Mark Fisher was found murdered in Brooklyn. After bar-hopping on the Upper East Side, the 19-year-old Fairfield University football star traveled to a house party in the leafy surroundings of Prospect Park South. At 6:40 a.m. on Sunday, Oct. 12, residents on Argyle Road heard several gunshots and a vehicle speed away. Thus began a saga ready-made for the tabloids.

Two years later, the unrelated cases would converge in the chambers of Kings County Supreme Court at 320 Jay Street. In late August 2005, Clarence Norman went on trial for an illegal campaign contribution, a whopping $10,000 that was used for election supplies. On Monday, Sept. 12, jury selection began in the dual cases of John Giuca and Antonio Russo, both facing murder charges for Mark Fisher’s death. The trials took place in neighboring courtrooms, or what’s known as “double-feature,” which ensures an abundance of local media coverage.

One of the key witnesses in the Giuca case now works in the Brooklyn DA’s office. That’s not the only conflict of interest.

That Tuesday, Sept. 13, was the 2005 Democratic primary in New York City was hardly a coincidence. In targeting Norman, Hynes was going after the most powerful black politician in Brooklyn, who also happened to be supporting the DA’s main challenger, John Sampson. But by prosecuting Giuca for the high-profile murder of a fellow white kid, Hynes could not be charged with racism. (Antonio Russo, whose mother is African-American, did not fit the bill.) That may sound like an extremely cynical calculation, but politics often outweighed justice for the Hynes administration, which has seen several of its murder convictions overturned in recent years.

There’s not much left in the DA’s original case against Giuca: no physical evidence placed him at the murder scene, three of the four key witnesses recanted, and the alleged motive — a gang-initiation rite — has little substance. What hovers over the proceedings, however, is the legacy of Joe Hynes. Under Ken Thompson and now Gonzalez, the DA’s Conviction Review Unit has issued 23 exonerations — but almost none have involved leading prosecutors from the Hynes era. And like Gonzalez, many of the key players in the Giuca case spent the bulk of their careers in the Hynes administration.

In fighting to maintain what appears to be the very shaky conviction of John Giuca, Gonzalez and his administration seem unable to escape the ghost of Joe Hynes.    

   

Anna-Sigga Nicolazzi, lead prosecutor in the Giuca case, was a rising star in the Brooklyn DA’s office. Nicolazzi joined the Homicide Bureau in 2001, and over the next decade would compile a 35-0 record in murder cases; after Ken Thompson defeated Hynes in 2013, she served as chief of trials in the same bureau. In late December 2004, a grand jury returned Nicolazzi’s indictment of Giuca and Russo, and the case went to trial only nine months later — a conspicuously faster pace than most other Brooklyn murder cases at the time.

In February 2005, Hynes illustrated the unique importance of the election-year case by appointing an “elite team” to oversee it. Nicolazzi now worked with notorious prosecutor Michael Vecchione and two of his deputies from the Rackets Bureau. Nicolazzi borrowed some tricks from Vecchione, who is best known for railroading Jabbar Collins in a 1995 murder trial via ruthless witness coercion. Appeals court judges also frequently noted Vecchione’s penchant for introducing new theories about a case during his closing argument, which is considered misconduct because the defense cannot respond to any such material.

The press had a field day when John Giucia stood trial in 2005. This time the headlines are different.

During Giuca’s trial, Nicolazzi coerced witnesses and speculated wildly about the defendant in her summation. One witness who has since recanted says Nicolazzi threatened his child custody; another received favorable treatment after violating his drug treatment sentencing. In her closing statement, Nicolazzi claimed for the first time that Giuca (in addition to Russo) actually shot Fisher. As Giuca’s mom, Doreen Giuliano, recalls, Vecchione came into the courtroom “at least twice” to confer with Nicolazzi about the progress of the case. The reason Vecchione couldn’t devote his full energies to the Giuca trial was simple: he was next door leading the prosecution of Clarence Norman. The tabloids had a field day.

Nicolazzi had also kept Hynes and his inner circle posted about developments in the Giuca investigation. In a 2015 deposition, Nicolazzi recalled “at least two different meetings at different times with [Hynes] asking us for updates about the case.” Nicolazzi also mentioned speaking to Hynes directly about John Avitto, the Rikers informant who came forward in June 2005 claiming that Giuca had confessed to him. The day after Nicolazzi made her first court appearance on Avitto’s behalf, she received an email from Anne Swern, then Hynes’ in-house counsel (or #3 person in the office). In the message — subject line: “[A]vitto” — advised Nicolazzi as well as the prosecutors who oversaw the DA’s drug treatment programs to “mark the John Avitto case for special attention.”

Compounding the obstacles Giuca faced were Hynes’ connections to the families of two key figures in the case, Angel DiPietro and Albert Cleary. DiPietro, a fellow Fairfield University student, was the only person Fisher knew at the party in Brooklyn. (On the day of the murder DiPietro gave friends three different explanations of Fisher’s whereabouts.) Angel is the daughter of criminal defense attorney James DiPietro, a longtime Hynes ally. Albert, meanwhile, is the son of Susan Cleary, vice chair of Brooklyn’s Republican Party. In the 2005 race, Hynes sought and received permission from the Brooklyn GOP to run on its ballot line in the general election, a fallback plan in case he lost the primary to John Sampson. During the afternoon following Fisher’s early-morning murder, Albert and Angel (who weren’t romantically involved) went to meet James DiPietro at the family’s stately Long Island home.

Early in the case, both the NYPD viewed Albert Cleary and Angel DiPietro as uncooperative witnesses, and evidence continues to suggest their presence at the murder scene. However, both not only escaped prosecution but also testified against Giuca. In short, Hynes, Nicolazzi and company stacked the deck really high against Giuca, and the jury quickly found him guilty of second-degree murder.

   

Despite the daunting odds Giuca faced in the original trial, whether his attorney Sam Gregory mounted a vigorous defense is an open question. As Doreen Giuliano recalls, Gregory, a Brooklyn courthouse regular, was in Alaska for the month of August 2005. And when she tracked him down to ask questions about the mid-September trial, Giuliano says, the lawyer was “very annoyed” that she was interrupting his vacation. That may be hindsight — but Gregory clearly made some perplexing decisions in his defense of Giuca.

For example, Gregory called no witnesses on Giuca’s behalf. Yet included in the prosecution material handed over to the defense was a detective’s report (or DD-5) from Hideko Swornik, a resident of 150 Argyle Road, where the body was found. According to the DD-5, Swornik heard “a car door opening and closing” and “more than two people” on the street outside her home, including “one female voice” (of a “young” person), prior to the gunshots. (Given that Cleary lived directly across the street and DiPietro spent the night at his house, the statement points in their direction.) Swornik’s next-door neighbor also told detectives that she heard the shots, then saw an “older four-door” car drive away. Four other neighbors also reported hearing both gunfire and a car, yet Nicolazzi’s trial narrative included neither a female nor a vehicle at the scene.

Gregory also opted not to put Robert Legister on the stand. At the trial, Cleary had testified that Legister (then away at college) was the “boss” of a gang called the “Ghetto Mafia,” with Giuca serving as his “capo” and Russo as Giuca’s “soldier.” Yet Giuca’s then-girlfriend Lauren Calciano also testified that rather than an “organized” outfit, the Ghetto Mafia was “simply what the guys called each other.” Similarly, in a 2014 affidavit, Legister stated the Ghetto Mafia was “not a ‘street gang.’ It was a group of guys from different areas of Brooklyn who hung out together.” According to Legister, it was “ridiculous” to suggest that he and the others created any structure, hierarchy or titles. Gregory easily could have shown that the Ghetto Mafia was a not a real gang, but instead, let Nicolazzi stoke the jury’s fears of a menacing crew.

As the recent appeals court decision made clear, Nicolazzi and company went out of their way to help John Avitto, the Rikers informant who testified at the trial. Gregory, however, had the opportunity to expose the weakness of that testimony in front of the jury. On the stand, Avitto claimed that in the visitor’s room at Rikers, he overheard Giuca’s father ask his son, “Why did you have a gun with you?” A series of strokes, though, had severely impaired Giuca’s dad’s ability to speak. During the trial, Giuliano and other family members frantically brought medical records proving that fact to Gregory, but he once again chose not to use the information.

“We could never get straight answers out of him,” Giuca says regarding Gregory’s moves in the case. Giuca recalls questioning Gregory’s decisions not to cross-examine Angel DiPietro or use his father’s medical records. “He said things like ‘I’ve been handling trials for 20 years. Listen to me.’ And I thought that since I am innocent, it won’t matter.” Giuca’s mom, who ponied up $100,000 for Gregory’s counsel, feels “robbed” of her money — not to mention the last thirteen years of her son’s life. (Gregory didn’t return the messages left by The Indypendent with his longtime assistant.)

Giuca’s current attorney, Mark Bederow, is now preparing to mount a comprehensive defense. There’s only one remaining witness from the original trial who directly implicated Giuca in the murder: Albert Cleary. Yet, as Bederow explains, Cleary initially “denied knowing anything about Fisher’s death for more than one year. He and his lawyer commissioned a polygraph and presented a report to the DA in order to prove his lack of knowledge.” At the time of the murder, Cleary was on probation for a Bronx assault and thus vulnerable to DA threats. “If the DA’s office believed Cleary was credible,” Bederow says, Nicolazzi “assuredly would not have resorted to a dubious jailhouse informant like Avitto.”

   

Given the flimsy case against Giuca, why Gonzalez is planning for a retrial merits scrutiny. Such a move appears to be supported by Fisher’s family, several of whom attended the February hearing, where the DA’s office arranged for them to be escorted into the courtroom. Fisher’s parents have long maintained that while Giuca was involved, so too were Cleary and DiPietro. It’s quite unlikely that Gonzalez will expand the prosecution’s targets in the case, however.

Angel DiPietro, after all, was hired by Hynes in 2012 fresh out of law school and remains an assistant district attorney under Gonzalez. That DiPietro has a reputation for competence among her colleagues further complicates matters. While it’s unlikely that Gonzalez will need help from Susan Cleary or the Brooklyn Republican Party, prosecuting Albert Cleary would undermine the case against Giuca. Notably, neither DiPietro nor Cleary has immunity, yet both seem protected.

Most of the prosecutors in the case — including Nicolazzi — are no longer in the DA’s office. But as host of her own true-crime cable TV show, “True Conviction,” Nicolazzi continues to champion her 35-0 record and highlight her work in the Fisher case. Her celebrity status may be something the Brooklyn DA’s office takes pride in, but others view her in a different light. “Given Nicolazzi’s conduct in my son’s case,” Doreen Giuliano says, “all 35 of her murder convictions should be investigated.”

Gonzalez frequently touts his office’s Conviction Review Unit as a national model of exonerations. Led by Homicide Bureau veteran Mark Hale — who partnered with Nicolazzi in a high-profile 2008 trial (for the murder of NYPD cop Russel Timoshenko) — the CRU upheld Giuca’s conviction. Of the 23 people the CRU has exonerated since 2014, only one case involved a high-ranking prosecutor from the Hynes era still in the office (Anne Gutmann, who put away Derrick Hamilton). Even though Hale is not considered to be a Vecchione ally, the CRU has not overturned any of the latter’s many questionable cases. Hale also prosecuted well over 100 cases during the Hynes era, none of which have resulted in CRU exonerations.

In her prosecution of Giuca, Nicolazzi relied on Vecchione’s playbook of dirty tricks. But it’s hard to imagine that she was the only other Brooklyn prosecutor who did so under Joe Hynes’ watch. Even so, Gonzalez seems unlikely to shake free of that legacy anytime soon. Having spent his entire professional career in the Brooklyn office, Gonzalez has plenty of longstanding relationships with fellow Hynes-era veterans. And he has many friends among defense counsel. On March 14, Gonzalez spoke at a fundraiser for Sam Gregory’s summer program that brings underprivileged Brooklyn teens to Alaska.    

Meanwhile, as the DA’s office concocts its retrial strategy, John Giuca, now approaching 35, awaits his fate in the hellhole otherwise known as Rikers Island. Many people watching the case closely suspect that Gonzalez and company are hoping to grind down the defendant in order to make him accept a potential plea offer; one possibility is that he could be released with time served (but a murder conviction on his record and no recourse to sue for damages). In any event, Rikers is a “madhouse,” says Giuca, wearily.

UPDATE: The Daily Beast reports that in late March, Antonio Russo told NYPD detectives that he murdered Mark Fisher and acted alone. Notably, the confession — which places a car with a woman able to identify Russo at the scene — does not exculpate Albert Cleary and Angel DiPietro. Whether the statement is enough to force the DA to finally drop the case against Giuca remains to be seen.

Theodore Hamm is editor of Frederick Douglass in Brooklyn (Akashic Books) and chair of journalism and new media studies at St. Joseph’s College in Clinton Hill, Brooklyn.

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Photo (top): Doreen Giuliano, who wants her son’s slippery murder conviction overturned, stands at the gates of Rikers Island where he is being held awaiting retrial. Credit: Theodore Hamm.