12/11/2015 08:44 am ET Updated Dec 10, 2016

The Giuca Case, and the Prosecutor's Willful Blindness to the Truth

It was a sensational New York murder trial - the Grid Kid Slaying - in which two young men, John Giuca and Antonio Russo, alleged members of a Brooklyn street gang, were convicted in 2005 of killing a young college football player, Mark Fisher, after a night of drinking and partying in the City. Russo was the actual killer, and the evidence against him was strong. The case against Giuca, by contrast, was weak. Two friends testified he told them he put Russo up to it, and gave Russo the gun, but their stories contradicted each other's, and their credibility was suspect. One of these witnesses has since recanted, claiming that the Brooklyn D.A.'s office threatened to destroy her career unless she testified.

However, it was a third witness, John Avitto, who was the prosecution's bombshell. Avitto, a drug addict with a long criminal record, who faced seven years imprisonment for a burglary and had recently absconded from a drug treatment program, was called by the prosecutor on the last day of the trial, without any notice to the defense. Avitto, who was a jail-mate of Giuca's, testified that Giuca told him he had helped kill Fisher. Avitto told the jury he did not receive anything for his testimony and he just wanted to do the right thing for the first time in his life. Avitto has since recanted his testimony, and has apologized to Giuca, but the damage, of course, was done.

Giuca has protested his innocence from the start, and has aggressively battled to overturn his conviction. His mother, in a highly publicized gambit, went undercover to try to expose misconduct by the jury. Giuca's principal litigation attack, however, has been to show he did not receive a fair trial because of flagrant misconduct by the prosecutor. A hearing is currently underway in Brooklyn Supreme Court to determine whether Avitto's testimony was false, and whether the prosecutor suppressed favorable evidence that would have destroyed Avitto's credibility.

Giuca's prosecutor was Anna-Sigga Nicolazzi, chief of homicide trials, and a high-profile TV personality who claims she has never lost a homicide case. Her conduct in the Giuca case, especially her handling of Avitto, is under scrutiny. She accompanied Avitto into drug court after he was detained on a warrant, but after she conferred with the judge, Avitto was set free. Nicolazzi did not disclose to the defense that she had interceded on Avitto's behalf; nor did she have any doubt about the truthfulness of Avitto's story, even though it contradicted the testimony of every other witness, and even though the detective who interviewed him told her he thought Avitto was lying.

However, a responsible prosecutor dedicated to doing justice and promoting the truth would likely have investigated Avitto's background of drug abuse and mental health, and if any evidence was discovered that raised substantial questions about whether he was telling the truth. There would be a constitutional and ethical duty to disclose it to the defense. A responsible prosecutor would have discussed Avitto's condition with the doctors, and mental health and drug officials who had examined and treated him. A responsible prosecutor would have reviewed his psychiatric and drug records. Nicolazzi did none of these things. Why? She claims she did not because she had no obligation to do so.

Even if Nicolazzi had made a superficial inquiry about Avitto she would have learned the following from Avitto's records introduced at the current hearing: he was suicidal and tried to commit suicide three times, once recently; he suffers from serious and persistent mental illness; he often has fantasies and auditory hallucinations; he sees snakes; he hears voices, including voices ordering him to kill himself; he is bipolar; he suffers from post-traumatic stress disorder; he feels paranoid, and takes medication for mood disorders and anxiety; his memory is poor; he has a high level of distractibility; he admits he lied to get preferential treatment and other things he wants. As he stated to the mental health officials: I had to do what I had to do to change my situation.

At last week's hearing Nicolazzi claimed she was ignorant of Avitto's mental and emotional impairment, but admitted that such information would have helped Giuca's defense. She admitted that when she called Avitto to testify at the end of the trial, she knew that there was no way that Giuca's lawyer could have discovered this information independently. When Avitto took the stand, the defense asked for records of Avitto's psychiatric treatment and drug abuse. But Nicolazzi claims she had no records, did not know of any records, and that there was no reason for her to look for records of Avitto's mental and drug history. Indeed, she claimed that by seeking this information she would have been violating Avitto's right to privacy. She did not ask Avitto to waive the right because, she says, she didn't have any obligation to do so.

In other words, Nicolazzi, a tough Brooklyn homicide prosecutor and a star of TV's Investigating Discovery Channel claims that the right to privacy of a mentally and emotionally disturbed felon, a fugitive who had absconded from a drug program and had committed over a half-dozen other drug violations, outweighed the right of a young man charged with murder to a fair trial, and outweighed her duty to disclose to the defense any information that would have aided the defense in attacking the credibility of her key witness. Indeed, Nicolazzi even asked Avitto at trial how he was doing in the drug program, and Avitto answered that he was doing good.

There are prosecutors, and there are good prosecutors. The goal of the prosecutor is to win; the goal of the good prosecutor is to do justice. Prosecutors ask a jury to convict if the evidence is legally sufficient; good prosecutors won't force a defendant to trial unless they are morally convinced of the truthfulness of their proof and of the defendant's guilt. Prosecutors won't look for evidence of innocence; good prosecutors will.

Nicolazzi's claim of ignorance as an excuse for her noncompliance with her constitutional and ethical duty of disclosure resembles a defendant's claim of ignorance as an excuse to avoid criminal liability. For example, a defendant charged with drug possession might claim he didn't know what was in the package he was carrying. However, using the so-called Ostrich instruction, a judge typically would advise the jury that a defendant may not avoid guilty knowledge by shutting her eyes for fear of what she would learn, or burying her head in the sand so she will not see or hear bad things. Should a prosecutor be held to a less demanding standard? When a prosecutor believes there is a reasonable probability that exculpatory evidence exists and deliberately chooses to be indifferent to finding it, a prosecutor should be deemed to know of its existence, and be held to have violated her duty of disclosure.

Finally, Nicolazzi in her summation vouched for Avitto's truthfulness: "Everything Avitto told you is credible; Avitto was being truthful; You could trust Avitto; Avitto was very honest; You know that Avitto isn't making it up. How could she responsibly vouch for Avitto's truthfulness without knowing anything about his psychiatric and drug abuse history?

Assuming Nicolazzi did not actually know about Avitto's psychiatric and drug abuse history, she intentionally shut her eyes to learning about damning information that was staring her in the face. She became an Ostrich and buried her head in the sand so she would not learn things that might impair her chances of winning a conviction. Her gamesmanship should shame all prosecutors.