“In twelve years on this Court I have never seen such a Brady violation.”
Last Tuesday, August 22nd, the United States Court of Appeals for the Second Circuit handed up a decision in the Anthony DiSimone case. The appeal was by Westchester District Attorney Janet DiFiore’s Office, as Cross-Appellee, in opposition to an earlier decision by Federal District Court Judge Charles Brieant, granting a writ of habeas corpus, on a challenge to sufficiency of evidence, which produced a conviction for Depraved Indifference Murder. The decision, which reversed the lower Court’s ruling, for “procedural insufficiency,” more importantly exposed the prosecutorial misconduct, and outright unlawful activities engaged in by former DA Jeanine Pirro, and now justified, and defended, by Janet DiFiore, her successor.
Specifically, although the main thrust of the original petition filed by DiSimone, with the Federal District Court, dealt with the sufficiency of evidence presented in connection with his conviction for Depraved Indifference Murder in the death of Louis Balancio, the real significance of the decision is its detailed exposure of the calculated, and unlawful activities engaged in by a malicious prosecutor bent on convicting an innocent Defendant, for her own purposes, at any cost. The case arises from a street brawl in front of the former Strike Zone Bar, on Central Avenue in Yonkers, in 1994, between some thirty local toughs that resulted in the death of the 21-year-old college student who suffered a total of thirteen stab wounds.
Defendant DiSimone, who continued to live in plain sight in the City of Yonkers, with his wife and infant son, became the target of one of DA Pirro’s more imaginative propaganda efforts. She would falsely claim that he had run off to Sicily, and that he was being pro tected by the Cosa Nostra. She would twice try to indict him, failing each time, while succeeding in indicting Darin Mazzarella, a known criminal charged in other homicides and present at the Strike Zone incident. Finally, only after empanelling a so-called “special grand jury” and offering immunity from prosecution, and placement into a witness protection program to Mazzarella, and his equally violent, and criminal brother Nick, in return for testimony against DiSimone,, was Mrs. Pirro able to secure an indictment against him.
The 29-page decision, authored by Justice Calabresi, the presiding judge of the three judge panel, who listened to the oral arguments offered by John R Bartels, Jr., attorney for Anthony Di-Simone, and Valerie A. Livingston, for DA Janet DiFiore, on June 21, disposes of the Defendant’s principle contention within the first half of the text concluding, “Because we find that DiSimone’s insufficiency claim was procedurally defaulted, we need not, and do not consider its merits:”
DiSimone, who was acquitted at trial of intentional murder, by a jury of his peers, was arguing that his conviction for Depraved Indifference Murder was not supported by the evidence produced at that trial, in accordance with a line of recent New York State Court of Appeals decisions in Gonzalez, Payne, and Policano, and several other cases over the past 2 ½ years. However, Sufficiency of the Evidence, although the basis of Judge Brieant’s habeas corpus grant, was not the only claim brought by DiSimone. There was the Brady violation claim, dealing with the obligation of the Prosecution to present to Defendants any, and all, information turned up by the Prosecution, which may be exculpatory to the Defendant, as well as the Confrontational Clause, the right of an Accused to confront his accusers as guaranteed by the Constitution.
Of these, the Federal Appeals tribunal was most interested in, and offended by, the particulars of DiSimone’s Brady claim. The Court, in its decision, summarized DiSimone’s Brady claim, stating, “DiSimone argues that the state violated its Brady obligation by failing to disclose, until near the close of the government’s case, information that a person other than DiSimone had asserted that he had stabbed the victim twice just before DiSimone allegedly stabbed the victim.”
This reporter was present on June 21st of this year for the oral arguments at the United States Second Circuit Court of Appeals, when Presiding Judge Calabresi made his impassioned declaration, “In twelve years on this Court I have never seen such a Brady violation.” That declaration not only set the direction the Court would be pursuing that day but, in a broader sense, it represented a harbinger of things to come, as federal and state appellate tribunals become increasingly aware of the egregious and morally bankrupt practices engaged in by the Westchester District Attorney’s Office for twelve years under the Pirro regime.
In fact, on February 10, 1994, just six days following the Balancio murder, Yonkers Police Detective Robert Molinaro had interviewed a 21-year-old Yonkers resident, Luvic Gjonaj, who provided a signed statement indicating that on February 6, 1994, his cousin, Nickoun Djonovic, had told him that he had been at the Strike Zone bar on the Thursday night of the incident, and had gotten involved in the fight, and had stabbed two people, one of whom was Louis Balancio, who he admitted stabbing twice, once in the chest. Furthermore detectives had obtained a search warrant for Djonovic’s apartment, found, and seized a bloody jacket, corroborating his confession.
However, Mrs. Pirro was not interested in this evidence because it did not fit the scheme and the profile she needed to project. Pirro saw the tragic events at the Strike Zone as an opportunity to help her shed her well-earned reputation as a prosecutor who didn’t prosecute Organized Crime. Her husband Al’s connection to it helped reinforce that reputation. She was determined to make this brawl between young street fighters into a Mafia thing. And, so naturally a murderer, even a confessed murderer, named Nickoun Djonmovic, somehow just wouldn’t fill the bill, the way someone with an Italian sounding name would.
The Court observed, “DiSimone made three separate requests for Brady material.” First in pre-trial motions in January 2000, then one week before the start of the trial, in a letter dated September 25, 2000, and finally, on October 2, 2000, just before jury selection. At no point did Mrs. Pirro’s Office turn over the Gjonaj statement, instead, moving to suppress its admission, stating, “It is the People’s position there is no link in the chain of evidence that connects Nick Djonovic to the commission of this homicide.”
Mrs. Pirro, anxious to convict someone she had maliciously and dishonestly portrayed as a member of Organized Crime, would now engage in the worst kind of prosecutorial misconduct, including subornation of perjury, to achieve her ends. And, she was not alone in her evil conspiracy. Judge James Cowhey, who, not so coincidently, dated her mother, Ester Ferris, was involved in the conspiracy to convict an innocent defendant, right up to his eyeballs, as Judge Calabresi indicates, “The trial court did not turn the statement over to the Defense until eleven days after it had received it from the Prosecution, shortly before the close of thestate’s case.”
Cowhey then refused to grant a motion by DiSimone’s attorney seeking a continuance, and time to put together a strategy, based on the new information which had been withheld. He then proceeded to reject three motions for mistrial that were based on the glaring Brady violations.
The Appeals Court decision leaves little doubt that the materials unlawfully withheld from DiSimone, “tended to support a potential Defense theory that, whatever DiSimone’as involvement in the fight, he was not the cause of Balancio’s death.” Justice Calabresi states, “Whatever else it may be, it is not murder to shoot a dead body. Man dies but once.”
He then gets tough with Janet DiFiore, who now appears to relish defending and justifying Jeanine Pirro’s outrageously unlawful prosecutorial misconduct, declaring, “ The government’s contentions to the contrary are wholly without merit.” He goes on, “In the first place, if there were questions about the reliability of the exculpatory information, it was the prerogative of the Defendant and his counsel, and not of the Prosecution, to exercise judgment in determining whether the Defendant should make use of it.”
The Court concludes that the information was favorable to the Defendant, and material, and that its late disclosure significantly influenced the outcome of the trial. The Court further notes the existence of one very small spot of blood supposedly connecting the Defendant, on a sweater that, interestingly was never proven to have belonged to DiSimone. The Court reminds that, “No witness testified to seeing the stabbing, and the murder weapon was not recovered.”
What the Court may not have known was that the Prosecution’s so-called Blood Splatter Expert was hired two days before the trial, and was paid more than $30,000 to make his assessments from photographs. Neither could the Court be aware of Mrs. Pirro’s antics. Appearing several times in the trial courtroom with the victim’s mother, and on television and in the press with her as well, all calculated to improperly persuade the jury.
Judge Calabresi declares, “We hold that there is a reasonable probability that had this material (the statement implicating Djonovic) been available the result in the case would have been quite different.”
Those who have observed the patterns and practices over twelve years in the Westchester District Attorney’s Office under Jeanine Pirro are only too well aware of the repeated outrageous prosecutorial misconduct, and outright criminal activity engaged in to achieve her despicable self-promotional agenda, The Anthony DiSimone case is but one of a long list of serious injustices perpetrated by Jeanine Pirro and a small number of misguided and selfishly motivated prosecutors whose criminal and reprehensible actions are just now slowly coming to light.
There are numerous innocent individuals, who, like Mr. DiSimone have been incarcerated for crimes they did not commit. They and their families have paid, and continue to pay, for the mistake the People of Westchester made three times when they entrusted Jeanine Pirro to be their chief law enforcement officer. Over Time, as the courts recognize the magnitude and the frequency of Mrs. Pirro’s evil, criminal deeds, underthe color of law, the taxpayers of Westchester will be burdened with the cost of compensating her victims.
The Depraved Indifference Murder Statute has been a “boondoggle,” abused and manipulated by prosecutors throughout New York State for 39 years, with the full knowledge and complicity of the state’s highest court. Not until March 2004, with the Gonzalez Decision, out of Rochester, did the Court of Appeals begin to seriously, if not wholeheartedly, come to grips with the injustices worked by ruthless prosecutors throughits nebulous and confusing language.
Some prosecutors more than others, those whose agendas were most self-promotional, such as Jeanine Pirro, and Charles Hynes, abused the statute to the level of criminality, frequently offering juries, and unwary judges, a smorgasbord selection of murder theories, Intentional, or Depraved Mind, counting on the notion that “juries love to compromise.”
Those of us who attended the oral arguments in the DiSimone case, emerged from the courthouse not quite sure of what we had witnessed, given that the principle claim involved Depraved Indifference Murder, and yet, the three justices had continued to dwell on, and ask questions, almost exclusively, about Brady violations. Later that day we got a glimpse of what was on their minds, when the Court posted information on the Policano case, and took the most unusual step, calling upon the New York State Court of Appeals for “certification” regarding the Depraved Indifference Murder Statute, and whether the rules of interpretation under which that court has been recently operating constitute “old, or new, law.”
In reality, the Federal Court was saying to the state’s highest court, “You’ve permitted this situation that unjustly, and unfairly advantages prosecutors to go on for nearly forty years. And, now, suddenly two years ago, you began dealing with it. Well, some of the residue is landing on our steps, so please give us some guidance to help us clean up your mess.”
