In the past year, 10 distinguished New York State appellate judges have divided evenly on whether John Giuca received a fair trial 14 years ago in the sensational “Grid Kid Slaying” in which Giuca and Antonio Russo were convicted of killing Mark Fisher, a college football player, after a night of drinking and partying in the city. Russo was the actual killer, and the evidence against him was strong. The proof against Giuca, by contrast, was relatively weak. Giuca has protested his innocence and has aggressively battled to overturn his conviction. His mother, in a highly publicized gambit, went undercover to try to expose misconduct by a juror. Last year the Appellate Division, Second Department, vacated his conviction, concluding that the trial prosecutor suppressed evidence that would have significantly impeached the key prosecution witness. This week the Court of Appeals reversed that decision, concluding that the nondisclosure was immaterial.

The overriding question has always been whether Giuca received a fair trial. The prosecutor throughout the trial portrayed the killing as gang-related and Giuca as a young mafia-type hoodlum. She overwhelmed the jury with incendiary suggestions and evidence of gang affiliation, gang emblems, and gang violence. There was no direct evidence of Giuca's role in causing Fisher's death. Prosecution witnesses gave different accounts of Giuca's statements and motives. Given the numerous inconsistencies, the prosecutor presented differing theories of Giuica's guilt but nevertheless, implausibly, assured the jury that all of the witnesses were telling the truth and that it really didn't matter which theory the jury chose because, as she stated in summation, “You know that this defendant is every bit involved in this crime.”

But it seems reasonably clear that without the testimony of John Avitto the prosecutor may not have had a winning case. Avitto was the prosecution's bombshell. A drug addict with a long criminal record and serious mental and emotional problems, Avitto faced seven years' imprisonment for a burglary conviction and had recently absconded from a drug treatment program. He was called by the prosecutor on the last day of the trial, without any notice to the defense. Avitto, who was a jail-mate of Giuca's, testified that Giuca told him he helped kill Fisher. His testimony directly contradicted the testimony of the other witnesses as well as the prosecutor's original theory of the case.  Avitto told the jury he did not receive any benefits for his testimony and that he just wanted to do the right thing for the first time in his life. The trial prosecutor vouched numerous times in her summation that Avitto told the truth. Avitto has since recanted, admitted his testimony was untrue, and apologized to Giuca, but the damage was done.

All of the post-conviction proceedings have focused on Avitto's credibility, particularly his testimony that he received no benefits from the prosecutor, and on whether the trial prosecutor violated her constitutional and ethical obligations under the landmark case of Brady v. Maryland by failing to disclose to the defense certain benefits that Avitto received. The critical issue at a 2016 hearing was whether the prosecutor failed to disclose information that would have impeached Avitto's credibility or whether, as the prosecutor claimed, there were no benefits and Avitto testified for altruistic reasons. The court (Chun, J.) found there were no benefits and that Avitto's testimony at the hearing describing the assistance he received from the prosecution was “absolutely incredible,” “laughable,” and “embarrassing.” Ironically, while Avitto's credibility was derided by the hearing court, it was lauded by the trial prosecutor during her summation: “Everything Avitto told you is credible;” ”Avitto was being truthful”; “you can trust Avitto;” “Avitto was very honest;” “You know that Avitto isn't making it up.”

However, the jury never learned that Avitto was not telling the truth. According to the Appellate Division, which unanimously reversed the hearing court's decision and vacated Giuca's conviction (Dillon, JP, joined by Balkin, Hall, and LaSalle, JJ):

After Avitto left the drug program on June 9, 2005, he contacted police that same day regarding providing information on the defendant's case, and that a warrant was issued for Avitto's arrest on June 10, 2005. The evidence further demonstrated that Avitto met with detectives and the prosecutor on June 13, 2005. During that meeting, Avitto informed the detectives and the prosecutor that he had left the drug program, and that a warrant had been issued for his arrest. Furthermore, the detectives and the prosecutor, in addition to his caseworker, accompanied Avitto when he returned to court on June 13, 2005. The prosecutor appeared on behalf of the District Attorney's office and informed the court that Avitto was cooperating in a murder investigation. Moreover, there was evidence which demonstrated that the prosecutor discussed with Avitto's caseworker and the court the possibility of Avitto entering another drug program, and having him reside with his mother. Additional evidence demonstrated: that Avitto had not done well while in the drug program; that he had violated the conditions of his plea agreement on numerous occasions; that he was discharged from one drug program for bringing cigarettes into the program and distributing them to other patients; and that during at least one of several court appearances related to violations which occurred subsequent to June 9, 2005, the issue of Avitto's cooperation and upcoming testimony was mentioned. Moreover, the District Attorney's office had sent an email communication to the agency overseeing Avitto's drug treatment, requesting that his case be marked “for special attention,” and that the District Attorney's office be kept posted as to his progress.

The panel found that the District Attorney's office did not disclose any of this information to the defense. Because of this nondisclosure, and “giving proper deference to the credibility findings of the hearing court, we nevertheless find that the nondisclosure of this evidence by the prosecution, even if it was as a result of negligence and not by design, created a reasonable possibility that the prosecution's errors affected the jury's verdict.”

The Court of Appeals, (DiFiore, C.J., joined by Stein, Garcia, Wilson and Feinman, JJ) reversed, despite what appears to be a procedural rule precluding review by the Court of Appeals when the Appellate Division's decision is on the facts and not on the law alone (see CPL §450.90(2)(a)). Judge Rivera dissented. Despite inconsistencies in the prosecution's proof, and contradictions in the prosecution's theory of guilt, the court decided there was ample evidence linking Giuca to Fisher's murder. The court acknowledged that certain information was never disclosed to the defense: that the prosecutor who participated in Avitto's first court appearance was the trial prosecutor, that the prosecutor failed to correct Avitto's false testimony that he was “doing good” in the drug program, and that the District Attorney's office was monitoring Avitto's progress in the drug program. But after carefully reviewing the Brady jurisprudence, and the prosecutor's duty to disclose favorable evidence to the defense, the court rejected the Appellate Division's conclusion that there was a tacit understanding between Avitto and the prosecution that Avitto would receive or hope to receive certain benefits in exchange for his testimony. Acknowledging New York precedents supporting a prosecutor's duty under Brady to disclose tacit agreements, the court concluded that the Appellate Division gave an “overly broad” interpretation of these precedents because both Avitto at trial, and the prosecutor at the hearing, denied there were any promises or understandings, and “a witness's wholly subjective hope of favorable treatment, in the absence of any objective circumstances that reasonably substantiate the witness's expectation, cannot unilaterally form the basis of a tacit understanding.”

While conceding that the prosecution has a “broader responsibility” to disclose favorable information to the defense, and that the undisclosed evidence “would have enabled the defense to deepen his argument that Avitto was testifying falsely in order to receive favorable treatment,” the court concluded that the undisclosed evidence would have been merely cumulative of evidence which defense counsel had already used to impeach Avitto, and since counsel had effectively impeached him, there is no “reasonable possibility” that the additional undisclosed information would have changed the jury's verdict.

Judge Rivera issued a strong dissent. She argued that the undisclosed information showing how the District Attorneys' office had helped Avitto possessed qualitatively greater impeachment value than general impeaching evidence relating to a witness's criminal background or violations in a drug program. After noting Avitto's critical role in tying all the disparate and contradictory pieces of evidence together, Judge Rivera found that the suppressed information relating to the prosecution's actions on Avitto's behalf may likely have influenced Avitto's testimony and the jury should have been told about this information. Indeed, this information would have enabled the defense to much more effectively refute the prosecutor's assertion that Avitto was simply “doing the right thing” by testifying, and that the DA's actions on Avitto's behalf may have emboldened Avitto to commit other violations, which he did, in he belief that he could get away with it. Moreover, the information could have been used to show how the prosecutor misled the court and jury by her “particularly egregious violation of our law and the prosecutor's ethical obligations” by eliciting the false testimony from Avitto that he was doing well in the program. Judge Rivera asked rhetorically: Given the suppressed information, would at least one juror thought that Avitto hoped for favorable treatment or to curry favor with the DA's office? Would at least one juror have believed that Avitto was getting special treatment in exchange for his testimony?

If truth-seeking is what a criminal trial is all about, then, as Judge Rivera observed, expansive discovery and disclosure by prosecutors “should be the norm” rather than “efforts at gaming the criminal justice system.” Ironically, Chief Judge DiFiore, who wrote the majority opinion denying Giuca relief, laudably ordered all judges in the state to remind prosecutors of their legal and ethical obligations to disclose favorable evidence to the defense. And the recent historic discovery legislation enacted by New York's legislature reinforces Judge DiFiore's directive.

But the fact remains that prosecutors always possess all of the evidence in a case, and can decide unilaterally what evidence to use, and what evidence to hide. And if a prosecutor decides to hide evidence that might help the defense, as in the Giuca case, that evidence may never come to light. But even if the evidence ultimately does get exposed, a heavily-nuanced and hyper-technical interpretation of a prosecutor's disclosure duty, at least as interpreted by the five judges in the Giuca case, may protect, and maybe even encourage, prosecutorial gamesmanship.

Bennett Gershman is a professor at Pace Law School and a former prosecutor with the Manhattan District Attorney's office. The author was retained by Giuca's family to help file a petition seeking review of his conviction and alleging prosecutorial misconduct.