New York Times


Citing Misconduct, Lawyer Seeks Review of Conviction in ’03 Brooklyn Killing
By VIVIAN YEE
JAN. 30, 2014

The murder riveted New York City and stymied detectives for months: What chance meetings and turns of fate led Mark Fisher, a photogenic 19-year-old college football player from New Jersey, to end up shot dead on a quiet Brooklyn street, his body wrapped in a yellow blanket?

More than eight years after two young men Mr. Fisher had met during a midautumn night of barhopping and partying in 2003 were convicted in his killing, a lawyer for one of the men, John Giuca, is preparing to ask the new Brooklyn district attorney, Kenneth P. Thompson, to overturn his client’s conviction. Mr. Giuca’s lawyer, Mark Bederow, said in an interview that he planned to cite what he called serious flaws in the trial and misconduct by prosecutors.

Mark Fischer
Mark Fischer

John Giuca
John Giuca

Antonio Russo
Antonio Russo
Mr. Bederow also pointed to conflicts of interest involving the district attorney at the time, Charles J. Hynes, who last year lost a re-election bid to Mr. Thompson amid reports he had presided over a series of wrongful murder convictions and a pattern of prosecutorial misconduct in his office.

Mr. Giuca’s conviction was considered a victory for Mr. Hynes, who was in a tough re-election fight at the time; its review now carries political overtones for Mr. Thompson, whom defense lawyers are pressing to make good on a campaign theme by aggressively investigating the possible wrongful convictions.

“We have thoroughly reinvestigated the case for several months, and none of the incriminating evidence that was presented to the jury was credible,” said Mr. Bederow, who also cast doubt on prosecutors’ theory of the case, saying prosecutors had presented five different chains of events at Mr. Giuca’s trial. “We believe that the entire foundation of the case against him has crumbled.”

Mr. Giuca, who was 20 when Mr. Fisher died, is serving a sentence of 25 years to life; the other convicted man, Antonio Russo, who was 17 at the time, is serving the same sentence. Mr. Giuca captured headlines again in 2008 when his mother, Doreen Giuliano, revealed she had disguised herself and used a false identity to record one of the jurors in her son’s trial admitting that he should have been disqualified from the jury.

Several appeals on Mr. Giuca’s behalf, including one citing Ms. Giuliano’s recordings, have been unsuccessful.

Mr. Bederow said Mr. Giuca’s prosecution was riddled with police and prosecutorial misconduct, though he declined to describe specific problems. The district attorney’s team in the case included Mr. Hynes’s longtime deputy Michael F. Vecchione, who has been accused of intimidating and coercing witnesses in other cases. (Mr. Vecchione and Mr. Hynes have denied the allegations.)

The district attorney’s office declined to comment on Wednesday.

Mr. Vecchione began supervising the Fisher case after investigators spent months trying to persuade several key witnesses in the case to cooperate, to little avail. Some were friends and classmates of Mr. Fisher, a sophomore at Fairfield University, who joined him at an Upper East Side bar that night. Others were people he met that night, including Mr. Giuca, who invited Mr. Fisher and other young people to his home in Prospect Park South for the night.

In the early morning hours, prosecutors said, Mr. Giuca and Mr. Russo, who they said belonged to a local gang called the Ghetto Mafia, lured Mr. Fisher outside and killed him. They offered several theories for how the murder occurred. In one version of events, Mr. Giuca gave Mr. Russo the gun and told him to shoot Mr. Fisher after Mr. Fisher angered Mr. Giuca by sitting on a table; in another, Mr. Giuca and Mr. Russo both shot him.

Antonio Russo was also convicted of the murder.  After investigators intensified pressure on witnesses under Mr. Vecchione, Mr. Giuca and Mr. Russo implicated each other, and two others agreed to testify: Albert Cleary, one of the young men’s Brooklyn friends and who lived near Mr. Giuca, and Angel DiPietro, a classmate of Mr. Fisher who went to Mr. Giuca’s house with them. They said that they had been asleep in Mr. Cleary’s house, near where Mr. Fisher’s body was found, but that they had heard no gunshots.

Even after the arrests, Mr. Fisher’s parents said publicly that they believed others in the group of young people partying at Mr. Giuca’s house were involved in the murder. They later sued Ms. DiPietro, saying she had failed to keep Mr. Fisher safe. The lawsuit was dismissed in 2007.

In 2012, Mr. Hynes hired Ms. DiPietro as an assistant district attorney. Her father, James DiPietro, a prominent defense lawyer, has donated to Mr. Hynes several times, including $3,000 in 2012. When political opponents criticized Mr. Hynes for Ms. DiPietro’s hiring last year, he said through a spokesman that it was unrelated to the Fisher case.

Mr. Bederow said there was “the appearance of a conflict of interest” in Mr. Hynes’s relationship with Mr. Cleary, who was on probation in 2003 after assaulting a man and who had waived the customary immunity that witnesses receive before testifying before the grand jury in the Fisher case, leaving himself open to prosecution.

Facing a challenging Democratic primary in 2005, Mr. Hynes received help in the form of an endorsement from the Brooklyn Republican Party’s executive committee, of which Mr. Cleary’s mother, Susan Cleary, was a member, allowing him to run as a Republican in the general election if he lost the primary. His statement at the time thanked Ms. Cleary for her support.

Ms. Cleary and her son could not be reached for comment. Mr. Hynes did not respond to a voice mail message requesting comment on Thursday.

Innocent Imprisoned
Truth in Justice