Prosecutors Prepare to Retry the 2003 Killing of a College Student
Posted May 1, 2018 11:30 p.m. EDT
NEW YORK — Despite a series of recent setbacks, prosecutors said Tuesday that they intend to retry a Brooklyn man in the 2003 murder of a New Jersey college student, setting up another courtroom battle in a case that has already seen a two-week trial, numerous appeals and countless hearings.
In February, the long-running legal saga of the man, John Giuca, was upended when a state appeals court tossed out his guilty verdict, ruling that the Brooklyn district attorney’s office withheld evidence from his initial lawyer and relied on testimony from a witness who lied during the murder trial in 2005. Twenty-one at the time, Giuca was convicted with a friend, Antonio Russo, of killing the student, Mark Fisher, after a raucous night of drinking in Manhattan ended at a party at Giuca’s home in the Prospect Park South neighborhood of Brooklyn.
Now 34, Giuca maintained his innocence throughout more than 13 years in prison, and in the months he has since spent in jail on Rikers Island, where he was moved after the appeals court threw out his conviction. In the wake of the appellate ruling, prosecutors said they still believed he was guilty and had enough evidence to convict him again. At a hearing Tuesday in state Supreme Court in Brooklyn, the prosecutors repeated that position, adding that even now — 15 years after Fisher’s death — they were continuing to investigate the case in preparation for a second trial.
Mark A. Bederow, a lawyer who has handled Giuca’s serial appeals, has already cast doubt on the district attorney’s chances at a second trial. In court on Tuesday, he repeated his own position, saying that the prosecutors on the case were “sitting three months later in an even weaker position than in February.” One of the witnesses the prosecution called at the first trial, a jailhouse informant named John Avitto, was discredited by the appeals court, Bederow noted. Another potential witness, Angel DiPietro, a then-college student who left the house party not long before Fisher was killed, has an unusual conflict of interest, he said: She now works for the district attorney’s office.
Recently, investigators from the office went to visit Russo in prison, hoping that he could be persuaded to testify against Giuca. But according to police reports that Bederow quoted in court, Russo exonerated Giuca, telling the investigators that he had killed Fisher by himself, with his own gun.
Bederow noted that the prosecutors have also reached out to another witness, Lauren Calciano, Giuca’s former girlfriend. Though Calciano implicated Giuca at the first trial, she later recanted, saying that the police and prosecutors coerced into her testifying. But when Calciano was interviewed under oath in 2015 by a special unit in the district attorney’s office that handles wrongful convictions, prosecutors on the team did not believe her recantation was credible. In fact, while they agreed that she had been pressured into altering her story, they concluded it was not by the authorities, but instead by Giuca and his family.
As if the case were not already confusing enough, all this pretrial jockeying could be rendered moot by what amounts to a judicial wild card. The New York Court of Appeals, the state’s highest court, is now considering whether to hear the district attorney’s challenge to the lower court’s reversal of Giuca’s conviction.
If the high court takes the case, it could, in a stroke, reverse the reversal, and send Giuca back to prison.