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).
It has been quite a summer. Having been involved in the criminal justice system for more than forty years, I feel as if there has never been a summer with so much going on – and so much attention being paid to it. Ferguson, Missouri, is the most recent and most alarming event, following so closely on the Staten Island chokehold case. These cases have focused serious attention on the police-citizen relationship that was front and center last year in the stop-and-frisk decision and the settlement of that lawsuit by the new New York City mayor.
We have been witness to the unprecedented actions of the Brooklyn, New York Conviction Integrity Unit in the District Attorney’s office, and to the dismissal of erroneous convictions in that county. These dismissals have been followed by substantial financial settlements by New York City. The New York Times ran a series of editorials urging the decriminalization of marijuana possession in some circumstances, and another editorial calling for revisions in the virtually-non-existent clemency process. Four state governors are either being tried, charged, or investigated.
Rampant prisoner abuse has been exposed just as claims made by prisoners has spiked, and there is now dialogue about the excessive use and destructive results of solitary confinement. The entire capital punishment process has come under scrutiny because the drug companies who provide the lethal drugs to accomplish our executions are no longer willing to do so. There is increasing focus on our entire system of punishment because of international attention on our disgracefully large prison population.
On an international level, we have also been witness to mass executions in Egypt and a long-awaited English investigation of the poisoning of a Russian journalist in London. Scotland abolished its long-standing and unique corroboration requirement. We were witness to an historic event: a Black, South African, and female judge presiding at the trial of a young white male, who happened to be an internationally acclaimed athlete.
Having been raised on a September to September calendar, and having continued with that conception of the “year” as a law professor, I am pausing to wonder what we will witness in the next twelve months.
For now, the staff of the PCJI are taking a two-week break. We will resume our blog after Labor Day, on September 4.
With an interesting perspective on the problem of wrongful convictions, the investigators, Kim Anklin and Bob Rahn, tell the story of how they helped uncover and produce the evidence that established a wrongful conviction in Brooklyn. Take a moment to read the full article about the Jonathan Fleming case, written by one of the investigators.
Kim Anklin, The Investigation of a Wrongful Conviction: The Jonathan Fleming Case.
Two developments in New York State took place last week that may reveal a less strict approach to compensating exonerees. First, David Ranta, a man who was framed by Brooklyn detective Louis Scarcella and served 23 years in prison for a murder he did not commit reached an agreement with the office of the City Comptroller, Scott Stringer, to receive $6.4 million in compensation. Ranta’s $150 million claim was settled by the city comptroller, Scott Stringer, without a law suit ever being filed and thus without involving the City’s legal department. This was the first case to be disposed of by the new Conviction Integrity Unit in the Brooklyn District Attorney’s office, and that office joined in the application to vacate the conviction. While Stringer took some heat for this decision, he made clear that spending millions of dollars and many years in litigation would not do anyone justice in a case where the district attorney joined in the motion to vacate the conviction.
Second, New York State Attorney General Eric Schneiderman announced legislation that would allow people who have confessed or pleaded guilty to a crime they did not commit to sue the state for damages. This change seemingly would go hand in hand with the amendment to N.Y. CPL § 440 that allowed convicted defendants who had plead guilty to bring a post-conviction motion for DNA testing. As Schneiderman noted in his announcement, 10 of the 27 people in New York who have had their convictions vacated based on DNA had falsely confessed or pleaded guilty. Such people will be able to sue for compensation even if they cannot prove that their confession or guilty plea was coerced. The proposed bill would also extend the statute of limitations for wrongful conviction compensation claims from two to three years.
These developments make sense. NYC Comptroller Stringer’s decision to settle a claim without years of expensive litigation is a welcome breath of fresh air in our overly contentious adversary system and will allow the millions that would have been spent on defending the indefensible to be used to pay other wrongfully convicted individuals or for other important criminal justice purposes. Similarly, given what we now know about the causes of wrongful conviction, we should welcome the end of our pretending that false confessions do not exist.
- Frances Robles, Man Framed by Detective Will Get $6.4 Million From New York City After Serving 23 Years for Murder, The New York Times (Feb. 20, 2014).
- Joel Stashenko, Wrongfully Convicted Get Support from AG’s Proposed Bill, NYLJ (Feb. 20, 2014).
- Attorney General Eric Schneiderman: Wrongfully Convicted May See State Aid, Brooklyn News 12 (Feb. 19, 2014).
- Glenn Blain, AG Push for Help to Wrongly Convicted, Daily News (Feb. 18, 2014).
- Schneiderman Backs Claims for Wrongful Convictions, The Wall Street Journal Online (Feb. 18, 2014).
The murder convictions of two men, Sharrif Wilson and Antonio Yarbough, were vacated by N.Y.S. Supreme Court Justice Raymond Guzman last week. The two men were 15 and 18 at the time of the murders and each had served 21 years in prison. District Attorney Ken Thompson consented to the vacatur and promptly dismissed the cases against them.
The two teenagers had been out together when Antonio Yarbrough returned home to find the grisly murder scene: his mother, young sister, and another young girl had been brutally murdered. The men consistently maintained their innocence and no physical evidence connected them to the crime. Last year, testing of material under Yarbrough’s mother’s fingernails revealed DNA that matched a subsequent rape and murder that occurred while the two were in prison. The killer remains unidentified.
- Antonio Yarbrough, Sharrif Wilson Exonerated For Triple Murder After Decades in Prison, Huffington Post (Feb. 9, 2014).
- Wrongfully Imprisoned Men Antonio Yarbough and Sharrif Wilson join “Piers Morgan Live”, Piers Morgan Live (Feb. 7, 2014).
- Haley Draznin, DNA Evidence Frees 2 Brooklyn Men Convicted in 1992 Triple Murder, CNN Justice (Feb. 6, 2014).
- Gabrielle Fonrouge, DNA Clears Men After 21 Years in Prison for Family’s Murder, New York Post (Feb. 6, 2014).
- Denis Hamill, Hamill: Tony Yarbough’s Brooklyn Murder Conviction Should be Reversed, Daily News (Jan. 19, 2014).