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).
The Brooklyn District Attorney has promised to review 50 convictions that relied on the work of police detective Louis Scarcella – linked to “troubling aspects” of one case that was recently overturned.
The newly established Conviction Integrity Unit will review all of the cases where Scarcella was the lead detective and where the police investigation culminated in a conviction after trial.
The New York Times reported that Scarcella relied on a single eyewitness to make at least a dozen cases. The witness was known to be a drug-addicted prostitute who claimed to have seen multiple different murders happen before her eyes.
We applaud DA Hynes for establishing a Conviction Integrity Unity, and for focusing on the work of Scarcella. However, we believe that broader interpretation of the Brady rule would have prevented these convictions and could prevent other miscarriages of justice going forward. Any time a police informant takes the stand, the prosecution should be required to discover and disclose not just a witness’s prior record and the benefit expected in exchange for testimony (that information is required to be disclosed now – pursuant to the current conservative interpretation of Brady), but also information about all the other cases where the informant has testified in the past. If defense counsel had been told that Scarcella’s informant had traveled around Brooklyn spotting murders, counsel might have argued to the jury that the informant’s testimony was simply not credible. The prosecution might have reached that same conclusion on its own. But, since Scarcella was not required to enlighten the prosecution regarding the informant’s special history, the prosecution could turn a blind eye and keep defense counsel in the dark too. A broader reading of the Brady obligation would put a stop to such willful ignorance.
Read the New York Times May 19, 2013 editorial on Brady here:
Brooklyn District Attorney Charles Hynes has announced that his office will review convictions that involved evidence secured by a specific police detective. This is welcome news. Similar action is being called for in Chicago.
One wonders, however, whether having acknowledged the need for review, the district attorneys should request a state commission look into these prior convictions. While it is possible that prosecutors were duped by false evidence given to them by the police, it is also possible that prosecutorial misconduct or at least willful blindness helped lead to wrongful convictions in these cases. Conviction Integrity Units could serve a useful purpose as one of several avenues for identifying potential wrongful convictions for review. But if the purpose of maintaining or restoring confidence in the criminal justice system is to be achieved or real reform enacted, New York State’s Commission on Wrongful Convictions should consider appointing an independent body to take over.