John Giuca
John Giuca is an American convicted of second-degree felony murder in the 2003 death of 19-year-old Mark Fisher. Giuca's conviction was unanimously overturned in 2018 on grounds that lead prosecutor Anna-Sigga Nicolazzi had withheld favorable evidence from the defense. However, the New York Court of Appeals reinstated Giuca's conviction in June 2019.
Background
At the time of his arrest, Giuca was living in a three-story family home in Prospect Park South, Brooklyn, while studying criminal justice at John Jay College of Criminal Justice, and occasionally working as a film and TV extra.On October 11, 2003, Giuca was out partying with friends in Manhattan. Mark Fisher, unknown to Giuca, ended up in the group's company after meeting a fellow student, Angel DiPietro, at an Upper East Side bar and following DiPietro and a girlfriend to Giuca's for an impromptu party. Also in attendance were Albert Cleary and Antonio Russo, neighborhood friends of Giuca.
Police responded to reports of gunfire at 6:30 a.m. and found Fisher's dead body on Argyle Road, just 50 feet away from Cleary's bedroom window and three blocks away from Giuca's house. Fisher had been shot five times.
Russo, who had been in trouble with the law previously, cut his hair that morning and left for California.
A year later, Russo and Giuca would both be charged with murder and stand trial as co-defendants with separate juries. At trial, the prosecution alleged that Giuca was the leader of a gang and Fisher's murder was ordered by Giuca for "street cred".
Giuca's supporters say he was simply a young man with friends from a variety of backgrounds.
Investigation
According to Giuca, he last saw Fisher sitting on Giuca's sofa draped in a blanket. Giuca said he had fallen asleep after the party ended and had no knowledge of the murder. Giuca's house was searched and he was repeatedly stopped and frisked. According to author and former NYPD detective Robert Mladinich, Albert Cleary became a prime suspect as he was involved in a beating in the Bronx and that case was still active.Fisher's family was unhappy with how their son's murder was being investigated and felt that some officials were eager to have the case forgotten. Under pressure to get results in the high-profile case, police announced witnesses were being uncooperative. Media attention leading up to the 2005 Democratic primary for District Attorney frequently highlighted the investigation into Fisher's death, and much of the coverage was critical of the District Attorney's office for failing to apprehend the killers. In February 2004, D.A. Charles Hynes convened an “elite” task force led by Michael Vecchione and Anna Sigga-Nicolazzi.
After a year of little progress in the case, witnesses began to come forward, implicating Russo and Giuca. Russo was arrested on November 19, 2004, and Giuca was arrested on December 21, 2004.
2004 Criminal trial
Prosecution arguments
In her opening argument in Giuca's trial, lead prosecutor Nicolazzi offered a theory explaining the murder that she hoped to substantiate with testimony by Giuca's former girlfriend and by his best friend. She claimed Giuca's fantasies about being a crime boss had led him to form a gang known as the "Ghetto Mafia" and to orchestrate Fisher's murder. The prosecution accused Giuca of giving Russo a gun, bringing Fisher to Russo and participating in beating Fisher. Prosecution evidence included the witnesses’ hearsay accounts of what Russo had said about his own involvement and of Giuca's role in the murder.Cleary, an original suspect now turned state's witness, testified that, hours after the body was discovered, Giuca said, "we may have had something to do with that." Cleary said that Giuca mentioned that he had led Fisher out the house to where Russo was waiting with a gun to rob Fisher, but when Fisher put up a fight, Russo had shot him dead. Cleary also offered that, in the weeks before the murder, Giuca spoke about having the gang kill someone, and had shown him a Ruger.22 pistol at his house.
After witnesses offered conflicting accounts, Nicolazzi produced her final witness, junkie John Avitto, who claimed that while imprisoned at Rikers Island he had overheard Giuca confess to the murder, but with a completely different account of the events.
Defense arguments
Giuca pled not guilty to the crime. Defense attorney Sam Gregory told the court that if Russo had committed the murder, it was without Giuca's knowledge, participation or approval, and that prosecution witnesses had given untruthful and contradictory testimony. Gregory said that Cleary had given evidence before a grand jury while failing to mention that, prior to the murder, Giuca had allegedly become angry when Fisher sat on a table in Giuca's house. The defense also asserted that Cleary, who had been convicted of an unrelated assault, considered himself to be a "tough guy," and implied that Cleary could have told Russo where to find the gun that was used to kill Fisher.Giuca's defense attorney explained to the court that Giuca had not aided Russo, but that under pressure to get results in the case, prosecutors had coerced Cleary's and Giuca's ex-girlfriend, Lauren Calciano, to give false testimony about Giuca having confessed to involvement in the murder.
Gregory also dismissed Avitto's testimony as a complete fabrication aimed at winning leniency from the authorities.
Verdict and sentencing
Giuca and Russo were tried together, but with two separate juries. The felony murder rule allows a person to be held responsible for a murder committed in the course of a felony or by being complicit to the felony, regardless of intent. After three hours of deliberation, a jury found Giuca guilty on charges of second-degree murder, robbery and multiple counts of criminal possession of a firearm. Russo's jury took two days to find him guilty. In October 2005, Giuca and Russo were each given a sentence of 25 years to life.Free John Giuca
After Giuca's sentencing, a group wearing T-shirts bearing the slogan "Free John Giuca" distributed pamphlets outside the courthouse. In the pamphlets, the group claimed that only a small portion of the 150 people who had been subpoenaed to testify before the grand jury had been called to testify in the trial, and that Giuca had not led a gang.According to Giuca's supporters, injuries to Fisher's body indicating a left-handed assailant, the location of Fisher's body and details of 911 calls alerting the police all implicate a crucial prosecution witness in the murder of Fisher. Russo and Giuca were brought to trial six weeks before the primary election in which Hynes won a hotly contested nomination battle.
Giuca's supporters also pointed to a case in which courts determined prosecutorial misconduct by Hynes' office.
"Mother Justice"
Giuca's mother, Doreen Giuliano, has led a fight to free her son that has attracted widespread attention from media outlets in the United States and abroad, including Nightline, On the Case with Paula Zahn, The Early Show, Anderson Live, Vanity Fair, The New York Times, The Guardian and the Sydney Morning Herald. She has also been featured in online media including The Huffington Post and the Gothamist. Giuliano's crusade has earned her the nickname "Mother Justice".Allegations of misconduct
Guica's supporters have adduced police statements, prosecution arguments and what they believe to be multiple inconsistencies in witness testimony. They claim that the prosecution brought a contradictory case by arguing for multiple mutually exclusive motives and outcomes, such as asserting that Giuca had pulled the trigger while also accusing Giuca of having ordered the killing to occur while he was not at the scene.Charles Hynes
Allegations of prosecutorial misconduct by former District Attorney Charles Hynes have been raised in several cases similar to Giuca's. Those recently winning appeals in such cases include Anthony Yarbough, Jonathan Fleming, Darryl Austin, Robert Hill, Alvena Jennette, David Ranta, William Lopez, Ronald Bozeman, Darrell Dula, Jabbar Collins and Jeffrey Deskovic. Hynes has since become notorious for wrongful convictions and politically motivated prosecutions.Jason Allo
Looking for evidence that could win her son a new trial, Giuliano investigated members of the jury. After somehow obtaining jurors' home addresses, which are not officially available to the defendant, Giuliano targeted juror Jason Allo, whom a friend of Giuca's had recognized in the courtroom. Using the alias Dee Quinn, Giuliano rented an apartment close to Allo's residence, transformed her appearance and established a close relationship with him.Giuliano secretly recorded her conversations with Allo. After nearly a year, she had collected audio of Allo allegedly talking of his biased and antisemitic attitudes toward Giuca and connections to the case that should have disqualified him from serving on the jury. However, State Supreme Court Justice Alan D. Marrus dismissed the recordings, ruling that they were unreliable, and condemned Giuliano's surreptitious activities as "reckless".
Giuliano then began to investigate those who had testified against her son, starting with John Avitto, Giuca's former cellmate who had testified under oath that Giuca had told him he had committed the murder. While digging through files, Giuliano found that prosecutor Anna-Sigga Nicolazzi had met with Avitto before he gave his testimony and had struck a deal with Avitto to free him of his pending drug charges in return for favorable testimony in court. Avitto has since recanted his testimony.
Recantations
Two of the four prosecution witnesses were former suspects in the case. Three of the four witnesses have recanted, two of whom have alleged that they were intimidated and threatened in order to coerce their testimony. The third witness who recanted has admitted that he received a deal from prosecutors for help resolving his own case, providing incentive for him to lie.John Avitto
On July 8, 2013, John Avitto recanted his testimony and testified in 2015, apologizing in open court to Giuca.Lauren Calciano
In 2014, Giuca's ex-girlfriend, Lauren Calciano, officially recanted her testimony. She had originally testified that Giuca had told her that he had given Russo the gun to rob Mark Fisher. In recanting, Calciano asserted that she was pressured by prosecutors to incriminate Giuca.Anthony Beharry
Anthony Beharry testified that a day or two after the murder, he and Giuca phoned each other back and forth, during which time Beharry nervously took the gun, put it in the trunk of his car and left it under a box on the street for someone else to pick up. He later recanted, indicating that he had not seen Giuca for approximately a week after the murder and that he was pressured to implicate himself and Giuca.Appeals
Using Giuliano's Jason Allo recordings, a legal brief was filed by Giuca's attorney Lloyd Epstein, arguing that Giuca did not receive a fair trial because Allo had failed to disclose his connection with and knowledge of people in the case. Giuca's lawyers said that "Allo's failure to disclose his personal knowledge of Giuca disqualified him as a juror regardless of whether he acquired this knowledge before or during the trial, or both." The Appellant Division 2nd Department denied the request for a hearing to review evidence of juror misconduct against Allo. Through his attorney, Allo has said the allegations made about him are not true. In November 2010, a panel of four judges ruled that even if alleged statements the former juror had made to Giuliano were true, there were no grounds for overturning Giuca's conviction. On May 14, 2013, federal judge Frederic Block denied Giuca's federal habeas petition.In February 2014, an attorney acting for Giuca submitted a petition to Hynes' replacement as Brooklyn district attorney, Kenneth P. Thompson, requesting that the conviction be voided. In the petition, it was alleged there had been prosecutorial misconduct, a failure by the defense lawyer at trial to point out multiple inconsistencies in the prosecution's case and recantation of testimony by key prosecution witnesses.
On June 9, 2016, Giuca was again denied in his appeal for a new trial. "I have denied the defendant's motion to vacate the judgment," Brooklyn Supreme Court Justice Danny Chun announced in court. The judge also ruled that Giuca had received a fair trial. Mark Bederow, Giuca's attorney, confirmed that he would appeal the verdict, saying "His rights were violated. I have no doubt that when it gets up on appeal, will be vacated."
2018 conviction reversal
On February 7, 2018, a state appellate court in Brooklyn reviewing Nicolazzi's case against Giuca unanimously overturned the conviction and sent it back to the Brooklyn district attorney's office.Aftermath of conviction reversal
Russo's confession
On March 22, 2018, Antonio Russo confessed to killing Mark Fisher. In a statement that was passed along to Giuca's lawyer, Russo told detectives that he had committed the murder after leaving Giuca's home with Fisher, also stating that the gun was Russo's.Subsequent bail hearings
On February 20, June 28 and September 6, 2018, Giuca was denied bail despite having his conviction overturned.New York Court of Appeals
On June 28, 2018, in a letter to the Brooklyn district attorney, New York's highest court announced it would hear Giuca's case, with oral arguments scheduled for April 30, 2019.''Amicus curiae''
In the months leading up to the April 30th oral arguments, a large number of amicus curiae briefs were written in support of Giuca, from parties including the National Association of Criminal Defense Lawyers, Innocence Project, American Civil Liberties Union, New York Civil Liberties Union, , Legal Aid Society, Bronx Defenders, , and .Oral arguments, April 2019
The appeals court heard arguments on April 30, 2019 to determine whether Giuca should be granted a new trial. Mark Bederow, a former prosecutor turned criminal defense attorney, represented Giuca. He filed a brief arguing that the prosecution's key witness in the murder trial, John Avitto, had only testified to avoid incarceration for violating the terms of a drug-treatment program. This information had not been given to the defense at trial and Giuca argued that such a disclosure could have changed the outcome of the trial. Giuca's defense claimed evidence shows that prosecutors were in contact with officials from Avitto's drug treatment program to monitor his status. Prosecutors denied any arrangement with Avitto.June 2019 decision
On June 11, 2019 the New York Court of Appeals ruled that, even if prosecutors had failed to disclose material that may have helped Giuca's defense, the outcome of the trial likely would have been the same. Chief Judge Janet DiFiore, writing for the majority of the court, wrote: "We hold that, to the extent there was any suppression of impeachment material, there is no reasonable possibility that the verdict would have been different if the information at issue had been disclosed.”Associate Judge Jenny Rivera wrote in a dissenting opinion that prosecutors had an obligation to provide the defense with information that may have supported arguments against Avitto's testimony.
Associate Judges Leslie Stein, Michael J. Garcia, Rowan D. Wilson and Paul Feinman signed the majority opinion with DiFiore. Associate Judge Eugene Fahey took no part in the case.
August 2019 Appeal
On August 6, 2019, the Guica legal team filed a CPL 440.10 motion to vacate his conviction based on a taped interview where jailhouse informant John Ingram tells prosecutor Nicolazzi that Russo had confessed to him that he had killed Fisher alone, with his own gun. The tape was only handed over to the defense team by current ADA Melissa Carvajal, on June 4, 2018. In this newly filed motion, Bederow argues that Ingram’s interview is exculpatory for Giuca and by law should have been turned over to his lawyer before trial—13 years ago.The state responded to the motion on November 26, indicating that the lead Prosecutor could not recall whether she had handed over the tape. Nonetheless, they affirm that there is “no reasonable possibility” that the Ingram recording would have led jurors to acquitting Guica. Guica responded this on January 31 outlining that had the jury known that Russo admitted robbing and murdering Mark Fisher by himself and that Giuca refused to get rid of the murder weapon for him and Nicolazzl's previous suppression of evidence of key witness John Avitto's motive to lie, , it is reasonably possible that the cumulative impact of this evidence, would have led to a different outcome at trial.