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?

 

Related Readings:

• 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).