New York’s Highest Court to Consider 2003 Brooklyn Murder Case

NEW YORK — The murder case of John Giuca — a twisting 13-year-long saga that has already been heard at a two-week trial, several state appeals, a federal appeal and countless courtroom hearings — will soon be considered by another legal body: the Court of Appeals, New York state’s highest court.

The high court said it would hear Giuca’s case in a letter to the Brooklyn district attorney’s office that was dated June 28 and received by prosecutors this week. It was not only the latest turn in the marathon proceeding, but also a rarity for the Court of Appeals, which mostly hears civil matters and accepts only a small fraction of criminal cases.

The high court took the case after a lower appeals court tossed out Giuca’s conviction in February. Giuca, 34, has been in prison since 2005 when a Brooklyn jury found him guilty of killing Mark Fisher, a 19-year-old college student who was shot to death after a raucous house party in 2003.

The lower appeals court ruled that the district attorney’s office had withheld evidence from the defense about assistance that the trial prosecutor gave to a witness in the case. In a process that could take several months to finish, the high court will now consider the district attorney’s appeal of the lower court’s decision, saying in its letter that “questions of law are involved which ought to be reviewed.”

In October 2003, Fisher had been barhopping on the Upper East Side of Manhattan with his friends on the night before he was murdered and, after a string of fateful coincidences, ended up among mostly strangers at a party at Giuca’s house in Prospect Park South. Shortly after 6 a.m. the next day, Fisher was found dead, wrapped in a blanket from Giuca’s house, at the foot of a driveway across the street from the home of another person from the party.

At the trial, prosecutors presented three different theories as to how Giuca took part in the shooting, one of which was offered by John Avitto, a jailhouse informer who testified that Giuca had talked about his role in the murder when they were at Rikers Island. While prosecutors have long claimed that they never struck a deal with Avitto for his testimony, the lower appeals court found that there was a deal and that the jury might have voted to acquit Giuca had it known about it at the time.

Since the conviction was reversed, prosecutors have been moving forward on two separate tracks in Giuca’s case, hoping that the Court of Appeals would take the matter even as they prepare to retry him. As part of their preparations, prosecutors have been going through the evidence in the case, turning some of it over to Mark A. Bederow, Giuca’s appellate lawyer.

Last week, Bederow was given a report by the Conviction Review Unit, a special team of prosecutors within the district attorney’s office that investigated Giuca’s case in 2015 and found his guilty verdict had been properly obtained. In that report was an interview with a former detective, Thomas Byrnes, who helped secure Avitto’s cooperation. Byrnes’ statements about Avitto in the interview were significantly different from those he later gave at a hearing in the case. But because the interview was turned over to Bederow after prosecutors asked the Court of Appeals to take the case (in what is called a leave application) the high court will most likely not be able to consider the discrepancy.

“The Brooklyn D.A. is ethically obligated to immediately notify the Court of Appeals that they suppressed favorable material evidence,” Bederow wrote in an email Thursday. “It is outrageous that their misconduct deprived the judge of an accurate record before he decided the D.A.'s leave application.”

Oren Yaniv, a spokesman for the district attorney’s office, said, “We are pleased that the Court of Appeals agreed to hear this case, and we look forward to presenting our arguments in court.”