The murder conviction of a Brooklyn man who masterminded the killing of a college football player after a house party was reinstated by the state Court of Appeals Tuesday.
A year ago, a lower court tossed out John Giuca’s conviction in the fatal shooting of Mark Fisher in Ditmas Park in 2003 over allegations of prosecutorial misconduct.
Giuca’s lawyer claimed prosecutors had given special treatment to a jailhouse snitch and cut him a break on a burglary conviction, which was hidden from the defense.
On Tuesday, the Court of Appeals claimed there was “no reasonable possibility that the verdict would have been different if the information at issue had been disclosed," court papers showed.
Giuca, 35, was convicted in 2005 for the Oct. 12, 2003, murder of Fairfield University football player Mark Fisher after a blow out at a home on Argyle Road.
A portion of the case against Giuca was based on the testimony of drug addict-turned-informant John Avitto, who claimed Giuca confessed to him that he pistol-whipped and beat Fisher.
Eight years later, Avitto recanted his testimony.
Another man, Antonio Russo, is serving time for firing the shots that killed Fisher, then 19. Prosecutors said Giuca gave Russo the order and the gun to kill the student.
Giuca’s attorney Mark Bederow appealed the conviction after learning that high-ranking members of the Brooklyn District Attorney’s office paid special attention to Avitto’s cases.
At the time of Giuca’s trial, it was believed that Avitto testified without receiving any favors in exchange from the Brooklyn DA, something Bederow claims happened.
“Prior to testifying, Avitto frequently violated the conditions of his drug program, but was released each time after his cooperation against Giuca was discussed with the court,” court papers filed by Bederow noted. “On one such occasion, just three days before he testified, Avitto brought up his cooperation himself.
“None of this evidence was disclosed to the defense,” Bederow wrote.
Based on the new information, a judge threw out Giuca’s conviction last year, but he wasn’t allowed to go free because the Brooklyn DA filed an appeal with the state Court of Appeals.
Giuca’s lawyer called Tuesday’s decision a setback. “It’s disappointing that the Court found that evidence that would have eviscerated Avitto’s credibility didn’t warrant a new trial,” Bederow said. “Our push for a fair trial for John Giuca will continue."
As far as the Brooklyn DA is concerned, it’s case closed.
“We are pleased that the State’s highest court recognized that this defendant received a fair trial, is in fact guilty and that his conviction should stand," a spokesman for the Brooklyn DA said Tuesday.