Once again, John Giuca's bid for a new, and much fairer, trial than he had in Brooklyn ten years ago has been frustrated after an evidentiary hearing in which the prosecution's star witness admitted he lied at Giuca's trial and the prosecution's misconduct was further exposed as a brazen effort to hide the truth from the jury. None of this appeared to matter to Judge Danny Chun, who bought every argument the prosecution made, however absurd and unsupported by law, to send Giuca back to prison.
Called the "Grid Kid Slaying," Giuca was convicted in 2005, along with Antonio Russo, of murdering Mark Fisher, a young college football player, after a night of drinking and partying in the city. Russo was the actual killer, and the case against him was strong. By contrast, the case against Giuca was extremely weak, resting almost entirely on inconsistent statements of friends, several of whom have since recanted, and the stunning testimony of career criminal and drug addict John Avitto, a jail-mate of Giuca's, who testified that Giuca confessed to him he helped kill Fisher. Avitto told the jury he received no benefits from the prosecution for his testimony; his motive in testifying was "to do something right" for the first time in his life.
Judge Chun's decision, which likely will be appealed, rests on two separate grounds. First, as the prosecution claimed throughout the proceedings, Avitto received absolutely no benefits from the prosecutors for his testimony, and his testimony at the trial was truthful. Second, that although Avitto had a long documented history of drug abuse and psychiatric illness that would have undermined his credibility -- records of agencies the prosecution worked with -- the trial prosecutor, Anna-Sigga Nicolazzi, claimed she did not know about this information and had no duty to look for it.
Judge Chun's opinion, regrettably, appears to have misunderstood the legal principles concerning government benefits to informants and stool-pigeons like Avitto. Judge Chun appears to have accepted the prosecution's argument uncritically. Thus, Avitto, who had absconded from his drug treatment program several times and faced up to seven years in prison, testified that he was brought by a detective to Nicolazzi's office to tell her he had information about the Giuca case. Nicolazzi, and this is not disputed, then accompanied Avitto to court on his outstanding warrant and after she conferred with the judge at the bench, Avitto was released. The jury never learned these facts, which on their face show quite dramatically Nicolazzi's intercession to help Avitto. Judge Chun concluded that the prosecution conferred no benefits on Avitto which would have been required to be disclosed to the jury. Judge Chun reached this conclusion because, as he believed, there existed no formal "understanding or agreement" between Nicolazzi and Avitto; that Nicolazzi "did not promise any benefit to Avitto;" and there was no "written cooperation agreement" between them, which according to Judge Chun was "standard practice."
But Judge Chun missed the point. The test is not whether there was any formal agreement; the test - and the law is very clear on this - is whether there is any reasonable basis in fact for the informant to believe that he is gaining special treatment from the prosecution because of his cooperation, and whether that special treatment might reasonably have motivated him to falsify his testimony. The test is not what the prosecution believed or intended. Prosecutors are not dumb. They know there are many ways to communicate informally to a witness that they are pleased with the witness's assistance and will help that witness in return. A wink, smirk, a nod, a handshake may give a witness the tacit assurance that his cooperation will be reciprocated. Judge Chun did not answer two key questions: Why did Nicolazzi accompany Avitto to court after he was arrested on the warrant and brought to her office where she interviewed him? And most importantly, why did she keep that information from the trial jury?
Nicolazzi's testimony at the hearing was absurd. She claimed that as an officer of the court she was required to take Avitto to court herself. Why? There was a detective who had custody of Avitto and would take him to court. And there was an assistant district attorney already in court. Why did Nicolazzi need to go to court except to assist Avitto with his outstanding warrant? Why did Nicolazzi feel compelled to tell the judge that Avitto was cooperating with her if she had no interest either way in what happened to him? Judge Chun added confidently that even if the jury was told that Avitto received a benefit from Nicolazzi, it would not have affected the verdict. How does Judge Chun know that? How does he know with such assurance what the jury might have concluded?
Moreover, it is incontestable from Avitto's psychiatric and drug abuse records that Avitto at the time he testified was dysfunctional and emotionally disabled. The records show indisputably that he was a pathological liar, suicidal, suffering from persistent and severe mental illness, had fantasies and auditory hallucinations, suffered from post-traumatic stress disorder, felt paranoid, took heavy medication for mood disorders, had a poor memory and high level of distractability, and lied to the authorities to get preferential treatment. This information was kept from the jury, but if the jury knew about it, it likely would have destroyed Avitto's credibility. Why did the jury not know about this critical evidence? Nicolazzi pleaded ignorance, and Judge Chun believed her, stating, without citing any legal authority, that Nicolazzi had no legal or ethical duty to learn about the devastating psychiatric and drug treatment records of her star witness.
Neither Nicolazzi nor Judge Chun should get a pass here. Nicolazzi, a tough, seasoned Brooklyn homicide prosecutor and star TV commentator, trying one of the biggest cases of her career, claimed that she was not the least bit curious or even interested in the background, psychiatric profile, and drug abuse history of her star witness. And she also made the astonishing argument that Avitto had a right to privacy, even when his testimony could put a young man in prison for life. This is such raw and abhorrent prosecutorial gamesmanship, and Judge Chun actually endorses it. Put aside for a moment Nicolazzi's brazen tactic of playing the ostrich, and burying her head in the sand so that she can claim ignorance of the truth. Is this a tactic that a prosecutor - the most powerful official in government and sworn to serve justice - should be allowed to embrace when there is the chance that revealing these facts to the jury might destroy the credibility of her star witness? Is this a tactic that a prosecutor seeking to serve the cause of justice should embrace when this information might cause a responsible prosecutor to conclude that the person she is prosecuting might be innocent? Isn't this the kind of information that a jury should have in order to evaluate the truthfulness of a witness?
Judge Chun lands some heavy blows on Avitto's credibility. Judge Chun is very confident that Avitto told the absolute truth at Giuca's trial but lied shamelessly at the hearing. Judge Chun is quite confident that Avitto was "absolutely incredible," "was not remorseful or repentant," sought to "grab attention and the spotlight," "would say whatever it took to get that attention and spotlight," and indeed, "was so patently incredible it bordered on being laughable and embarrassing." There are two obvious responses to Judge Chun's ad hominem remarks about Avitto. First, it is entirely possible, even to a judge, that a life-long junkie and career criminal who has been diagnosed as paranoid and a pathological liar might sound like that. Second, if that is Judge Chun's takeaway, one has to wonder whether any professional and responsible prosecutor encountering Avitto would ever believe anything Avitto said, including Avitto's preposterous claim - which Nicolazzi dramatically repeated to the jury as the solemn truth - that Avitto was informing on Giuca because "he wanted to do something right for the first time in his life." Indeed, one might be inclined to echo Judge Chun's hard-hitting put down of Avitto - that such a statement "was so patently incredible it bordered on being laughable." But it got Nicolazzi a conviction, which is really all that mattered.