“I wouldn’t say there was proof of disclosure,” Brooklyn prosecutor Melissa Carvajal recently testified in the latest hearing in the John Giuca case.
Carvajal was referring to whether trial prosecutor (and now reality TV star) Anna-Sigga Nicolazzi gave Giuca’s defense team an audiotape of an interview she conducted with a Rikers informant six weeks before Giuca’s 2005 trial for the murder of Fairfield University student Mark Fisher.
On the stand this past Wednesday, Nicolazzi echoed Carvajal, stating that there is not “proof-positive” that she turned over the recording.
The current proceeding, which resumes Thursday, is known in New York as a 440 hearing, wherein a judge decides whether new evidence brought to light by a defendant’s appeals team merits a new trial. This is the second 440 hearing in Giuca’s case—whereas the vast majority of defendants never even receive one.
The first hearing, in 2015, examined whether Nicolazzi provided the defense with details of the favorable treatment a separate Rikers informant named John Avitto received in exchange for pivotal testimony against Giuca. As Indy readers will recall, 10 appeals judges agreed that Nicolazzi had committed misconduct, but New York Chief Judge Janet DiFiore deemed the actions not “material” (because she and other four other Court of Appeals judges insisted that other evidence of Giuca’s guilt outweighed the misconduct).
In the spring of 2018, as Carvajal began to prepare for a possible retrial of Giuca, she found an audio recording of a second Rikers informant, Joseph Ingram, who had been interviewed by Nicolazzi at the DA’s office six weeks before the September 2005 trial. Carvajal, who recently left the Brooklyn DA’s office, turned over the tape to Giuca’s current lawyer, Mark Bederow.
In the recording, Ingram, who was in the same cellblock as Giuca at Rikers, explains that he had traveled to Bellevue for blood tests with Antonio Russo, who was convicted of killing Fisher. According to Ingram, Russo told him that after the murder, he had unsuccessfully tried to get Giuca to take the murder weapon, a gun.
At the trial, Nicolazzi told the jury that Giuca got rid of the gun for Russo, thus making Ingram a favorable witness for the defense. But on the witness list Nicolazzi provided to Giuca’s trial lawyer, Sam Gregory, she incorrectly named Joseph Ingram as “James Ingram” and never called him, so he wasn’t vetted by Gregory.
Thus far in the current hearing, the DA’s team has been claiming that Nicolazzi did not view Ingram’s story as credible, with Nicolazzi stating that in her view Ingram “was sent by Giuca.” But if she didn’t find his story to be valid, Ingram should not have been included on the prosecution’s witness list.
Brooklyn Judge Danny Chun, who sided with the DA’s team in defense of Nicolazzi’s actions in the earlier hearing, has not seemed particularly impressed by the arguments made by the office this time around. In ordering the current 440, Chun said it would focus on whether evidence favorable to Giuca was disclosed, and thus far that has not been established.
The DA’s team has repeatedly pointed to a letter that Nicolazzi sent Gregory two weeks before trial, in which she requested 15 cassette tapes, vowing to return them with her recordings of witness interviews. But as Bederow has demonstrated in the current 440 hearing, the letter is unreliable evidence, because during the trial it was made clear that Nicolazzi failed to turn over recordings of her interviews with at least two of those fifteen witnesses, one of whom, Meredith Denihan, was a pivotal figure in the prosecution’s case.
On Wednesday, Nicolazzi asserted that her failure to turn over the Denihan tape before trial was an “inadvertent mistake.” But on Thursday, the DA’s lead prosecutor in the hearing, Janet Gleeson, opened her cross-examination by stating that Nicolazzi “screwed up” by not turning it over.
The final major witness in the hearing is Giuca’s trial lawyer Sam Gregory, who has already submitted a sworn statement in which he says that he never received the Ingram tape. Given that Ingram’s account of what Russo told him clearly could have helped Giuca’s defense, Gregory certainly would have at least interviewed Ingram.
Nicolazzi no longer includes Giuca’s conviction in the promotional materials for her TV work. Despite the obstructed courtroom views because of Covid barriers, her testy exchanges with Bederow produced two days of lively courtroom theater last week. But in an unexpected twist, the reality TV star requested not to be on camera.
See Related Posts below for more information on the Giuca case.
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