Tamar Lapin View Author Archive Get Author Rss Feed March 1 2019 138am Updated
It's now or never for convicted "Grid Kid" killer John Giuca.
Ever since he was first implicated in college student Mark Fisher's death in 2003, Giuca has maintained his innocence — but his most recent attempt at clearing his name could be his last.
"It's an all-or-nothing appeal," Giuca's attorney Mark Bederow recently told The Post.
His client's years-long fight for freedom took a step backward last month when Brooklyn Supreme Court Justice Danny Chun issued a ruling upholding the 2005 murder conviction.
It was the second time in six years that Chun struck down Giuca's bid to overturn the guilty verdict.
But the convicted killer isn't giving up. His lawyer filed a motion on March 23 seeking permission to appeal Chun's decision.
"Everything in this case is at stake in this application," Bederow said last week.
"If we are denied leave to appeal, then a man who is most certainly innocent … will have the courthouse doors shut without opportunity to appeal his conviction."
'Inconsistent' theories of guilt
It's the latest twist in a complex legal saga that has weaved its way through state and federal court for the better part of the last two decades.
Giuca, now 38, filed his first unsuccessful motion to vacate the verdict back in 2008, arguing he didn't get a fair shot because of juror misconduct at his trial.
He and another man, Antonio Russo, were tried for the murder in neighboring courtrooms with separate juries, during the late former Brooklyn District Attorney Charles Hynes' tenure. Each was sentenced to 25 years to life.
Fisher, a 19-year-old Fairfield University football star, was gunned down on the morning of Oct. 12, 2003 after attending a party at Giuca's house with a college classmate, Angel DiPietro, in Prospect Park South.
His body was found at the end of a driveway on nearby Argyle Road, shot five times and lying facedown on a bloody blanket.
Neighbors reported hearing the sound of gunshots and a car drive away. Some said they heard car doors open and close and the voices of young people, including a woman.
The murder gripped New York's attention and made national headlines as it took cops more than a year to arrest Russo and Giuca.
Russo, who witnesses said was the last person to see Fisher alive, and who cut off his signature dreadlocks and flew to the West coast shortly after the murder, confessed to detectives in a 2018 jailhouse interview. And while he didn't implicate Giuca, he also didn't clear him.
But Giuca's defense team says in its latest court filing that the case against him relied upon "pressured witnesses" and a jailhouse snitch "to support numerous (and inconsistent) theories of his guilt."
One such theory, based on testimony from Giuca's friends, was that Russo, a 17-year-old high-school dropout who lived nearby, had attacked Fisher alone and then gone back to Giuca's home to give him the gun to stash.
The informant, John Avitto, had a conflicting theory: that Giuca and Russo attacked Fischer together, with the former pistol-whipping the victim and the later taking the gun away and doing the shooting.
Two successive district attorneys have stood by Giuca's conviction through the appeals and a 2014 review of the case by the office's internal Conviction Review Unit.
New evidence emerges
Giuca's second motion to vacate the verdict in 2015 made serious allegations of misconduct against star Brooklyn Assistant District Attorney Anna-Sigga Nicolazzi, now the host of the Discovery+ crime series "True Conviction."
The defense team alleged Nicolazzi suppressed evidence that would have case doubt on the claims made by Avitto, who recanted his testimony in 2015, saying he fabricated his story to curry favor with the DA on his criminal charges.
Chun, the Brooklyn judge, denied the motion, finding that Giuca had still received a fair trial.
But an appellate court reversed Chun's ruling in 2018, tossing Giuca's conviction and ordering a new trial.
The verdict, however, was reinstated by the state's highest court, the Court of Appeals, in 2019.
The court agreed that Nicolazzi had failed to disclose impeachment evidence about Avitto, but held the information wouldn't have been "material" at trial because of the "strong evidence" of Giuca's guilt, including "his efforts to dispose of the gun shortly after the murder."
In what it calls a "cruel twist of irony," Giuca's defense claims another piece of previously suppressed evidence — which the Court of Appeals could not consider in its ruling — would have cleared him.
That evidence is a recording of a 2005 interview between Nicolazzi and another Rikers Island inmate, Joseph Ingram, who alleged Russo confessed to committing the crime — and that Giuca refused to get rid of the gun for him.
Giuca argued that his trial lawyer never received the tape. Both his trial attorney and Russo's trial attorney confirmed they had not received the Ingram recording.
The latest appeal before Chun argued that the knowledge of both the Ingram recording and the evidence casting doubt on Avitto's testimony could have swayed the jury in Giuca's favor.
But Chun still ruled there was no "definitive evidence" that the recording was improperly withheld, and that it was actually "more likely" that it had been disclosed before trial.
He also found there was no "reasonable probability" that the verdict would have been different either way.
One last shot?
In the latest filing, Bederow argues the court should allow Giuca to appeal the ruling "so that it will have the opportunity to hear the relevant facts and correct the injustice of Justice Chun's decision and afford Giuca a fair trial."
"We think the decision, respectfully, couldn't be more wrong," Bederow told The Post.
There's no formal timeline, however, for when a judge will rule on his motion and either allow the appeal to proceed or deny it, essentially shutting the door on the case.
"We will respond to the motion in court," the Brooklyn DA's Office responded.
Giuca, meanwhile, remains behind bars at New York State's Coxsackie Correctional Facility. He's 17 years into his sentence and it will be nearly another decade before he's able to seek parole.
His state of mind is "up and down," said Bederow, adding that his client has "been living in prison wrongfully for 17 years in connection with a case where over the years he gets piecemeal exculpatory evidence."
Giuca has experienced "every high and low imaginable," his lawyer said.
"But he is also a fighter and he's in a good place in terms of continuing the fight."
Source: https://nypost.com/2022/04/03/john-giuca-mounts-last-ditch-attempt-to-toss-conviction/
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