Prof. Bennett L. Gershman of Elisabeth Haub School of Law at Pace University, in his most recent Huffington Post blog titled Judge Drops Ball in “Grid Kid Slaying” Case, comments on yet another instance of blatant prosecutorial misconduct. This one involves a Brooklyn prosecutor who failed to reveal information about circumstances surrounding the testimony of the prosecution’s star witness. As Prof. Gershman suggests, it appears that there was in fact a quit pro quo between the prosecutors office and Avitto, which the Judge chose to ignore.
This was the defendant John Giuca’s second try at a new trial. Prof. Gershman focuses on the court’s misplaced acceptance of the testimony of a career criminal, John Avitto (Giuca’s cell-mate), who claimed Giuca had confessed to him and who also claimed he had not received anything in return for his testimony. Prof. Gershman articulates the test that should be applied and concludes that the court failed to engage in the appropriate analysis.
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.
Prof. Gershman asks:
… 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?
- People v. Giuca, No. 8166/2004 (App. Div. 2d Dep’t June 9, 2016) (Motion to Vacate Judgment – Decision and Order).
- Bennett L. Gershman, Judge Drops Ball in “Grid Kid Slaying” Case, The Huffington Post Blog (June 15, 2016).
- Harry Siegel, Kafka Comes to Brooklyn: The Trials for John Giuca, Daily News (June 11, 2016).
- Andrew Denney, Judge Denies Bid to Upset Giuca Murder Conviction, NYLJ (June 10, 2016) (may require login).
- Hella Winston, Despite Recanting Witness, Judge Rejects ‘Grid Kid Killer’ Appeal, Gothamist News (June 10, 2016).
- Christina Carrega-Woodby, Brooklyn Judge Refuses to Overturn ‘Grid Kid Slayer’ John Giuca’s Murder Conviction, Denies New Trial, Daily News (June 9, 2016).
- James Ford, John Giuca, So-Called Grid Kid Murder, Denied New rial Despite New Info Supporting His Innocence, PIXO (June 9, 2016).
- Bennett L. Gershman, The Giuca Case, and the Prosecutor’s Willful Blindness to the Truth, The Huffington Post Blog (Dec. 11, 2015).
POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.
The lead editorial in the New York Times of June 6, 2016 addresses an important issue: the all-too-frequent failure or resistance of prosecutors to comply with their constitutional obligation to produce to the defense evidence in their possession that is potentially exculpatory or mitigating for a defendant. To address this issue, the editorial suggests that the United States Department of Justice should monitor the practices of district attorneys’ offices in which such problems have arisen in the past.
This proposal may have merit, but it contains at least one troubling issue indicated in the editorial’s title: “To Stop Bad Prosecutors, Call the Feds.” This title and the editorial’s text suggest that the problem at issue is entirely or primarily the fault of local district attorneys’ offices and that such problems are absent or de minimis in the offices of federal prosecutors.
The editorial’s concern for fairness to individuals facing state criminal charges is to be applauded, but its proposal raises questions regarding federal prosecutors, who themselves are members of the Department of Justice, the department that would conduct the oversight. Will federal overseers, eager to advance their careers, monitor prosecutors in their own department as carefully as they review prosecutors in state offices? Will the Department’s oversight mandate be limited to local district attorneys’ offices? If so, will this foster an idea that federal prosecutors are exempt from scrutiny regarding their compliance with Brady v. Maryland?
In considering the editorial’s proposal, it is perhaps worth remembering an old question asked by the Roman poet Juvenal: Quis custodiet ipsos custodes? Who will guard the guardians?
Today, the US Supreme Court is considering a question of
whether the constitution is violated if the chief judge on the highest court of the state refuses to disqualify himself in a death penalty appeal where he was the chief prosecutor who authorized the defendant’s death sentence, obtained the death sentence though his office’s misconduct, and campaigned for the judgeship by showing how many people he put on death row, including the defendant.
Interestingly, amici included many judges, including the late Judge Judith Kaye, who argued that the judge should have recused himself, and a group of professional responsibility law school professors on the same side.
Prof. Bennett Gershman analyzes the issues and implications of Williams v. Pennsylvania in his latest HuffPost article titled A Perfect Storm: Judicial Prosecutorial Misconduct, and a Death Sentence and outlines the various issues involved in this case. The ultimate question is not only whether the judge should have disqualified himself when deciding the defendant’s death penalty appeal but also whether, if he didn’t, his bias on the panel decision was nothing more than a harmless error. As Prof. Gershman concludes that
…without Justice Scalia, a 4-4 split on the Supreme Court is possible. And if that is the result, then under the Supreme Court’s rules the decision of the Pennsylvania supreme Court would be affirmed – and Terrence Williams will be executed.
- Pennsylvania v. Williams, No. 15-5040, ___ U.S. ____ (to be argued on Feb. 29, 2016).
We all think and say it: images are worth a thousand words. The same is true when prosecuting a case. Prof. Bennett L. Gershman of Pace Law School, in his latest HuffPost piece titled Prosecutorial Misconduct Using Courtroom Technology, challenges the way some prosecutors put on their cases when using technology. He suggests that many increasingly cross the line when they use technology to suggest that “‘beyond reasonable doubt’ is really not that demanding” of a standard, when they use “visual trickery” to awaken an angry and emotional reaction out of jury, or when they sway juries by showing “misleading and prejudicial images” during their closing arguments.
Prof. Gershman states that
[a]lthough there’s nothing inherently wrong with using technology in the courtroom, more and more prosecutors cross the line by exploiting the power of technology to skew the way juries analyze the evidence, and thereby prejudice a defendant’s right to a fair trial.
Check it out and share your thoughts.
- Evelyn Marcus, Note, The New Razzle Dazzle: Questioning the Propriety of High-Tech Audiovisual Displays in Closing Argument, 30 Vermont L. Rev. 361 (2005-2006).
- Gregory J. Morse, Techno-Jury: Techniques In Verbal and Visual Persuasion, 54 N.Y. Law School L. Rev. 241 (2009).