This past June, as The Indypendent reported, New York’s Court of Appeals reinstated the Brooklyn murder conviction of John Giuca in a ruling sharply criticized by exoneration advocates for excusing prosecutorial misconduct. In reversing a Brooklyn assault conviction last month, however, the same court staked out a principled pro-defendant position.
Which direction New York’s highest court is headed in terms of protecting defendants’ rights is not yet clear. But the more recent ruling further illustrates the misdeeds of prosecutor Anna-Sigga Nicolazzi in the Giuca case.
‘The DA’s Office talks due process, but that’s not how the sausage is made in Brooklyn.’
In mid-October, the Court of Appeals unanimously ordered a new trial for Rong He, who was convicted in 2013 for a non-fatal stabbing two years earlier at a Bay Ridge nightclub. Ahead of the trial, He’s defense counsel asked prosecutors for contact information for two witnesses, both of whom had told the police that there were two assailants. The statements undermined the DA’s argument that He had committed the assault alone.
In response to the defense’s request for contact info, prosecutors said that they would contact the witnesses and give them He’s lawyer’s phone number. The DA’s office did not provide evidence that the witnesses were in danger.
At the September oral arguments, Court of Appeals Judge Jenny Rivera immediately asked Brooklyn Assistant District Attorney Seth Lieberman if the procedures in He’s case remained the office’s policy. Lieberman confirmed that was so but tried to defend the practice on the grounds that it prevented witness tampering. The judges clearly were not impressed. In their October ruling, all seven agreed that the prosecutors’ actions amounted to “suppression of the requested information” and thus violated He’s rights under the SCOTUS Brady decision.
Providing the names of potentially exculpatory witnesses but then obstructing access to them is one way for prosecutors to hide them in plain sight. As documented in the latest filing in the Giuca case, prosecutor Nicolazzi deployed a variation on the same theme.
As Hella Winston reported in the Daily Beast, amid its appeal last year of the 2nd Appellate Division’s unanimous reversal of Giuca’s murder conviction, the Brooklyn DA’s office turned over previously undisclosed evidence to Mark Bederow, Giuca’s current lawyer. The new material consisted primarily of a lengthy interview Nicolazzi conducted with Joseph Ingram, a Rikers cellmate of Giuca, just over two months before the September 2005 trial.
In the tape, Ingram informs Nicolazzi that while en route from Rikers to Bellevue Hospital for medical treatment he sat next to Antonio Russo, who faced trial for the same murder as Giuca. Nicolazzi’s theory of the case was that after killing Fairfield University student Mark Fisher, Russo gave the gun to Giuca, who then disposed of it.
Ingram, however, told Nicolazzi that according to Russo, Giuca never received the gun (which was never found). The Court of Appeals did not consider Ingram’s statements when it ruled that the most telling evidence of Giuca’s guilt was his possession of the murder weapon.
Just before the trial, Nicolazzi placed Ingram on her witness list — a clear sign that she found him to be credible. However, she identified him as “James Ingram,” not Joseph. And she didn’t provide the tape of the interview to Giuca’s defense counsel, as required.
During the trial, Nicolazzi nevertheless declared in court that she had turned over “every statement” by Giuca or Russo. And just before her summation, she announced that she would not be calling “James Ingram” to the stand.
By first misnaming Ingram, then never calling him to testify, Nicolazzi thwarted any attempts by Giuca’s trial lawyer Sam Gregory to speak with Ingram, who could have explained what he told Nicolazzi. Such chicanery is another way for a prosecutor to hide an exculpatory witness in plain sight.
In response to the Court of Appeal’s Rong He ruling, the DA’s office tells The Indy that “We are adjusting our practice in accordance with the new [discovery] law that affords the defense access to witnesses’ contact information.” The law takes effect on Jan 1.
Even so, as Giuca’s appeals attorney Mark Bederow notes, the DA’s appeals bureau continues to defend convictions that involved various dubious practices, including those of both He and Giuca. “The office talks up due process in its ‘Justice 2020’ vision,” Bederow says, “but that’s not how the sausage is made in Brooklyn.”
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