For more, see “Why Is the Brooklyn DA Keeping John Giuca Behind Bars?”
John Giuca’s long journey to overturn his 2005 murder conviction took another step backward Monday as Brooklyn State Supreme Court Judge Danny Chun ruled that new evidence discovered in 2018 was not sufficient grounds to overturn the original jury verdict.
Chun’s decision came as no surprise to Giuca’s defense team. This is the second time that after what’s called a 440 post-conviction hearing, Chun has upheld Giuca’s conviction for the murder of Fairfield University student Mark Fisher. The vast majority of convicted defendants never get even one 440.
According to Giuca’s defense attorney Mark Bederow, “Justice Chun’s ruling held us to a higher standard than we were obligated to meet. We are not dismayed because we have absolute confidence that the appellate division will again reverse him.”
In 2018, a four-member appellate panel unanimously reversed Chun’s decision that upheld Giuca’s conviction after the first 440 hearing. The panel found that trial prosecutor Anna-Sigga Nicolazzi had withheld evidence of favorable treatment she had given to a key witness.
Two years later, the appellate division again overturned Chun’s ruling in a different 440 case. This time, four judges agreed that James Davis had received ineffective assistance of his trial counsel, who failed to interview five witnesses to the murder, two of whom had named someone else as the shooter.
After the reversal in Giuca’s case, the Brooklyn DA’s office appealed to New York’s highest court. In restoring the original conviction, Chief Judge Janet DiFiore issued a 2019 ruling widely derided by exoneration advocates.
DiFiore deemed the evidence withheld by Nicolazzi to be “not material” (i.e. not relevant) because other evidence of Giuca’s guilt outweighed it. Such an elastic standard, which allows DA offices to excuse prosecutorial misconduct, is anything but progressive.
“There was no doubt going in that Chun had made up his mind before this hearing,” says Doreen Giuliano, Giuca’s mom. “The same judge who already rejected a 440 shouldn’t get to handle the next one.”
In Monday’s ruling, Chun insisted that the two defense lawyers in the case — Sam Gregory (representing Giuca) and Jonathan Fink (representing Antonio Russo, the confessed killer) — both had foggy memories when they testified in the current 440 hearing that they did not receive a recording that Nicolazzi had made with a jailhouse witness who met both defendants at Rikers in 2005.
Judge Chun is viewed by several former Brooklyn prosecutors as a member of the “DA’s team.”
The statements by that witness, Joseph Ingram, potentially could have helped Giuca’s defense and clearly hurt Russo’s case. Both lawyers testified that had they received the recording, they definitely would have sought out Ingram. Nicolazzi, however, made such contact even more difficult by identifying Ingram as “James” instead of Joseph on her witness list.
Attorneys Gregory and Fink are courthouse regulars, yet Chun chose to discredit their testimony and argue that it was “more likely” than not that Nicolazzi turned over the recording to the defense teams. As The Indypendent has previously reported, Chun is widely viewed as a member of the “DA’s team.”
Chun further insisted that the Ingram recording was inadmissible hearsay evidence, which Giuca’s current counsel disputes. In any event, Chun concluded, the Ingram recording was — you guessed it — “not material.”
In his handling of the ongoing 440 hearing of Anthony Sims, Chun has also appeared to be working in tandem with the DA’s office. Although he initially seemed skeptical of the prosecution’s main original witness, Julius Graves, he was notably hostile when two key witnesses appeared on behalf of Sims in early February.
Although a police report confirmed that witness #1 (who prefers not to be named) had indeed stated that Graves, not Sims, was the killer shortly after the 1998 murder, Chun repeatedly interrupted her and shook his head.
When #1, a savvy city worker in her early 40s, at one point accused “you guys” [i.e. Chun and the prosecutors] of taking her statements “out of context,” Chun ordered the statement that implicated him to be “stricken from the record.”
It was a petty gesture, since there was no jury. But the question remains: Is Chun really fulfilling his role as a judge?
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