The Court Report
By Richard Blassberg
“As Judge Brieant said, ‘He was hiding in plain sight.’ ” Attorney John Bartels, Jr. referring to his client Anthony DiSimone
United States Court of Appeals for the Second Circuit
500 Pearl Street, New York City, New York
Dennis G. Jacobs J.P., Pierre N. Leval, and Sonia Sotomayor J.J.
Tuesday, February 27, Attorneys John Bartels, Jr. and David Feureisen appeared in the United States Court of Appeals for the Second Circuit in New York City, representing Anthony DiSimone, Respondent, in an appeal petition by Westchester District Attorney Janet Defiore. The DA was seeking to stay the February 5, 2007 decision of Federal District Court Judge Charles L. Brieant granting an unconditional writ of habeas corpus to Mr. DiSimone, and calling for his release, the barring of his retrial, dismissal of his original indictment, and the expunging of his conviction in the stabbing death, thirteen years ago, of Louis Balancio, outside the Strike Zone Bar in Yonkers.
Presiding Judge Jacobs opened the proceedings with a statement that it was the Court’s “intention to rule on the stay, as well as the
appeal.” Assistant DA Valerie Livingston, representing the Westchester District Attorney, and John Bartels, counsel to Anthony DiSimone,
each indicated their consent, and Ms. Livingston launched into her argument. Dorothy and Jeffrey Balancio, parents of the deceased Louis Balancio, each of whom had recently been speaking out strongly against Judge Brieant, and his decision, were present, as were two other assistant district attorneys.
Couching her argument as a matter of “States Rights” Livingston was very critical of District Court Judge Brieant and the relief he had fashioned in his decision under the Federal Rules of Procedure Section 22.54. Despite the horrific prosecutorial misconduct, the withholding from the Defense of 376 pages, and 52 boxes of Brady material, information, including a confession from the actual murderer of Louis Balancio, and corroborative statements from eye-witnesses, Livingston was arguing that the Westchester District Attorney wanted Anthony DiSimone kept in prison because, in the DA’s opinion, he was a “flight risk.”
When probed by Presiding Judge Jacobs regarding her assertion that DeSimone was a flight risk, Ms. Livingston proceeded to make patently
false statements to the Court. She told the Justices that during the five years that followed Louis Balancio’s death, DeSimone was unmarried, not receiving mail, and was unseen by anyone. She went on to assert that he had the financial capability and the connections to leave the country. Judge Jacobs interrupted Livingston to ask if she knew where DiSimone had gone.
When she admitted that she did not, Jacobs remarked “Just because you might not know where I’ve been for the last five years doesn’t
mean I left the country.” Judge Sotomayor compelled Livingston to acknowledge the DA’s misconduct, asking, “So you concede
the Brady issue you consented to?” Judge Leval quickly followed with, “You don’t contest that the Defendant would have the right to
contest re-prosecution in the State Court?” Livingston again acknowledged, but argued that because of the New York State Court of Appeals’
failure to definitively attach retroactivity to their most recent re-defining of the Depraved Indifference Murder statute Anthony DiSimone would not benefit from the current interpretation, and in effect would be vulnerable to re-prosecution.
ADA Livingston was speaking rather ‘fast and loose’ with very obvious stress in her voice patterns. Judge Sotomayor, apparently somewhat distressed with her presentation repeatedly suggested that she was confusing the major issues, and went so far as to tell her that her language was “sloppy.” She asked Livingston, “Would it be your position that the State would have the right to re-try on reckless endangerment?”
Livingston shot back with, “The ruling Judge Brieant issued exceeded his authority.” Sotomayor explained, “Judge Brieant was saying you won’t be able to try him for Intentional Murder because of Double Jeopardy.” Livingston insisted, “This is a State Court issue.” Sotomayor again told Livingston, “You are confusing two issues.” She then advised Livingston, “Judge Brieant had to assess the circumstances of the Brady violations. Once we vacate the conviction that’s holding the Defendant, you have no right to hold him.”
ADA Livingston continued to argue, “The legal sufficiency of the evidence is a matter for the State Courts.” Judge Jacobs next asked, “How
can it be reckless to jump on top of someone and stab him a dozen times?” Then turning to Livingston’s claim that Mr. DiSimone should not
be released because he was a flight risk, Jacobs asked, “Why shouldn’t we consider that the Defendant will be available if released to the streets?” Judge Leval spoke up telling Livingston, “A new trial is not the remedy for Due Process violations.” John Bartels next addressed the Court, immediately setting the record straight with regard to Anthony DiSimone’s circumstances and whereabouts during the five years
following the death of Louis Balancio. He told the Court. “The Petitioner was married in New York, and lived at a different address than
his parents. He lived at the home of his wife’s parents in Yonkers, and mail carriers and neighbors testified that he lived there.” He went on, “As Judge Brieant said, ‘He was hiding in plain sight.’ ”
Judge Leval spoke up, “When the claim is that the conviction was obtained unconstitutionally, has the person been imprisoned unconstitutionally? Then the relief is release him!” Having instructed the litigants that they were “reserving opinion,” within minutes of completing all of the items on their calendar, Justices Jacobs, Sotomayor, and Leval, issued their decision calling for Anthony DiSimone’s immediate release from Green Haven Prison, and affirming all of Judge Brieant’s ruling with the exception of his bar to retrial by the
State, an issue the Court preferred to avoid.
Valerie Livingston’s voice showed great stress as she lied to the Justices of the United States Second Circuit Court of Appeals, obviously
under orders from DA Janet DiFiore. At points, the panel, thoroughly familiar with the facts, appeared to be losing their patience with her,
particularly when she spoke over them.
Any objective observer must now question why DA Janet Di-Fiore, upon entering the Office in January 2006, and discovering 376
pages, and 52 boxes of exculpatory materials, did not make a clean break with Jeanine Pirro’s unconstitutional prosecutorial misconduct?
But, having chosen to further conceal it, thus joining the 13-year conspiracy to hide the truth, and to keep an innocent man behind
bars; why, after being caught, does she persist in wanting to retry, and convict that man?
Why did ADA Livingston tell the Court, “It’s an ongoing investigation?” And, what is the meaning of a letter to Mr. Bartels, given
to him the day of the hearing, and shown to The Guardian, advising him that there is still more Brady material needing to be turned
over to the Defense, more than the 376 pages and 52 boxes?
There is much more to this case that needs to be exposed. Mr. Bartels, speaking to the Court, declared, “I submit this is a rare case.”
Those who have followed the modus operandi of the Westchester District Attorney’s Of-fice under Jeanine Pirro, know very well that it is
not rare in quality, only in quantity, the extreme quantity of Brady materials withheld, and the elaborate prosecutorial misconduct by numerous willing co-conspirators.