Janet Difiore.

The Court Report
By Richard Blassberg

A Decade Too Late, The Wheels Of Justice Finally Start Turning

Wednesday, July 25th, with the holding of oral arguments by Westchester County Court Judge Rory J. Bellantoni, the Wheels of Justice finally began turning in the case of Officer Richard DiGuglielmo, maliciously and
wrongfully prosecuted, convicted, and sent to state prison for a crime he did not commit, a decade ago. A New York City Transit Police Officer for twelve years at the time of the incident, Officer DiGuglielmo did, in fact,
fire “three shots to center mass” killing Charles Campbell who was beating DiGuglielmo’s father with a metal baseball bat, late in the afternoon of October 3, 1996. Simply, and accurately stated, DiGuglielmo did what
the law called for under the circumstances, both in his capacity as a police officer, and as a civilian. Under two
separate applicable New York State statutes his response, saving the life of an unarmed, innocent, civilian was a
justifiable homicide irrespective of the fact that the life he saved was that of his middle-aged father.

The bat-wielding assailant, Charles Campbell, was an amateur boxer and body builder, with a long criminal
record, including violent offenses, who was known, even amongst his associates and employers, to have “a short
fuse.” He had already broken the elder DiGuglielmo’s hand, and had severely injured his leg with blows, that
one eyewitness said, “could be heard a block away.” Another witness had said Campbell was going to “crush the father’s head like a watermelon.” And, in fact, Campbell was swinging to do precisely that when shot, as the bullet entry points clearly demonstrated, despite DA Pirro’s fiction to the contrary.

Officer DiGuglielmo’s parents, and some 18 other supporters filled one side of the spectators gallery, as
Defense Attorneys Andrew Shapiro, and Steven Lewis engaged Assistant DAs Robert Sauer and Timothy Ward in argument of the merits of several issues raised in a 440.10 Appeal of DiGuglielmo’s conviction for Depraved
Indifference Murder.

Analysis

In any of sixty-one other counties of New York State, other than Westchester County, under DA Jeanine Pirro, the fact pattern would not have called for an indictment. But, for Mrs. Pirro, Officer Richard DiGuglielmo
represented a prosecution of opportunity, not unlike her malicious, and unlawful prosecution of Anthony DiSimone for the murder of Louis Balancio, three years earlier. Each of these young men, totally innocent of the crime that Mrs. Pirro couldn’t resist falsely accusing them of, went to prison for the sole purpose of furthering her twisted political agenda.

Neither prosecution, nor the confabulated fiction attached to each, had anything to do with finding the truth, or bringing about justice. Judge Bellantoni opened the proceedings addressing the Defense with, “The focus has changed as we have gone forward. I want to give the Defense the opportunity to make a record.” The Judge was making reference to the 440.10 Application that he had been considering for many months meeting with both sides, Defense and Prosecution attorneys, in conference, in an attempt to deal with a number of issues that had continued to develop, from investigation going forward, suggesting that significant information had been, and continues to be, withheld by the District Attorney’s Office.

The premise of a 440.10 Application is that there are issues, particular information, ‘unavailable’ to a convicted
defendant, at the time of his trial and conviction, which, if presented to the trier of fact, the jury, would
likely have produced a different outcome. In DiGuglielmo’s case there are a number of such issues. One involves the fact that the crime for which he was convicted, Depraved Indifference Murder, is one for which he could not be indicted, much less convicted today. However, despite that fact, the State’s highest court, the New York Court of Appeals, under the politically self-serving hand of Judith Kaye, has outrageously closed the door to all but a very few wrongfully and unlawfully prosecuted and convicted for four decades under the statute. There was nothing ‘indifferent’ about Officer DiGuglielmo’s action, having fired three rounds to center mass at close range, precisely as trained to for twelve years by the New York City Police Department, in such circumstances. And, the jury, considering those circumstances, refused to convict him of Intentional Murder, or even Assault.

Analysis


In light of the New York Court Of Appeals’ cowardice over the last year, when put to the test by the United States Second Circuit Court of Appeals, the issue of Depraved Indifference Murder has become one that will
go all the way to the Supreme Court because Judith Kaye, and Company would rather violate the Constitutional rights of several hundred innocent citizens than admit to the Court’s complicity over forty years.

A number of other issues were raised in DiGuglielmo’s present 440.10 Application. Referencing, perhaps the most urgent, Judge Bellantoni declared, “The key witness, Mr. Dillon who saw the incident from start to
finish and was closest to the parties, has unequivocally stated that his trial testimony was inaccurate as he was worn down.” Attorney Andrew Shapiro went on to explain the implications of Mr. Dillon’s recent submissions to
the Court. He indicated, firstly, that the issue of coercion of a witness, that would be a serious violation if engaged in by police and/or prosecutors, was implied. And, secondly, Shapiro discussed his concerns that the DA’s Of-fice never provided trial counsel with information regarding the numerous interrogations Mr. Dillon is claiming occurred between his first statement to Dobbs Ferry Police, the evening of the incident, October 3, 1996, and the statement he gave in the early morning hours of October 8th, concealment of which Shapiro said would constitute “a Rosario violation.”

Bellantoni then asked Shapiro, “How is it Rosario material?” Shapiro proceeded to explain that if, in fact, the Dobbs Ferry Police had interrogated Mr. Dillon, as he alleges, between his first statement and his last, four or more times in between, on October 4th, 5th, 6th, and 7th, there had to be memo pads, follow up reports, and possibly tape recordings none of which were ever turned over to the Defense. Shapiro went on to elaborate
on the issue of tape recording of statements by the Dobbs Ferry Police, indicating that despite denials by that department, Mr. Dillon and other witnesses have reported the use of tape recorders.

Judge Bellantoni, at this point, revisited the Depraved Indifference Murder issue, remarking, “The Payne, Suarez, and Feingold rulings cannot be applied retroactively, thus keeping a person in prison who, if he were tried today, could not be tried under the Depraved Indifference Murder Statute.” He went on, “You would like me to rule that the Court of Appeals ruling is Unconstitutional.”

Shapiro came back, “We are not saying that Depraved Indifference Murder is not a crime, but, that under the statute as it is today, our client could not be tried under it.” Bellantoni responded, indicating that he was
in no position to overrule the state’s highest court irrespective of his own position on the matter.

Returning to the affidavit of the key witness, Michael Dillon, Bellantoni said, “There are allegations that Mr. Dillon gave a statement and then was questioned six or seven hours a day for several days.”

ADA Sauer interjected, “On September seventh he’s on the stand and he’s being cross-examined. Why doesn’t he say something?” Sauer goes on, “We have no reports of other contacts with the police between his first and
his last statements.” He tries to make the argument that there were only two statements.

Then Judge Bellantoni asked Mr. Sauer how it could be that the Dobbs Ferry Detectives could have spoken only of two statements given that there were also statements on the fourth, fifth, and sixth of October? He then proceeded to raise the issue of a possible Brady violation in the District Attorney’s failure to give information of several interviews of witnesses to the Defense Attorneys.

Apparently lacking any substantive counter to the Judge’s statements, Mr. Sauer attempted to use Mr. Dillon’s statement that he was “tired,” and lacked the opportunity to review his statement, on October 7th, (that actually
ran for some 3 ½ hours, beyond 1:00am the morning of the eighth.) Bellantoni then explored the difference between intimidation and coercion on the part of police interrogators. Mr. Sauer again insisting, “There was no information that there were any other interviews between the fourth and the eleventh. We gave everything we had to the Defense.”

At this point in the proceedings, obviously sensing the District Attorney’s resistance to possible exposure of prosecutorial, and/or police misconduct that might come out at a hearing from witnesses under oath, and
subject to cross-examination, the Judge, addressing Mr. Sauer, asked, “Isn’t it true that the best way to resolve this is with a hearing? You said before we can’t judge the credibility of Mr. Dillon based on the affidavits.”

Sauer responded, “No Your Honor.”

The Judge came back, “Isn’t there a presumption that the outcome might have been different if he gave a story on the witness stand that is remarkably different from his original statement?”

Sauer, then tried to slip one by the Court remarking, “They are trying to raise issues they could have raised on cross-examination at trial.”

Analysis


Of course, Mr. Sauer knew very well that the whole point of the discussion thus far involved the failure of the District Attorney’s Office to turn over, to the Defense, discovery materials that would have revealed the
multiple interrogations that occurred between Mr. Dillon’s first statement to the Dobbs Ferry Police and his so-called “second statement.”

Mr. Shapiro then spoke of a “fundamental misunderstanding of Rosario,” referencing multiple interrogations, and asking, “How could it not have been different if a witness had said, I lied?” Turning to Bellantoni he went on, “Your Honor is right; in the initial filing and in our motion we referred to the pressure having been applied.”

The Judge then added, “Doesn’t it make a difference if the witness comes to Court and says this was self-defense?” Then Mr. Shapiro posed the question most difficult for the Prosecution, “In the interest of truthfulness and finality why are the People opposing a hearing?”

Glancing down at the Defense filings, Bellantoni then stated, “These papers were filed in September 2006, and this Court has contemplated it for almost a year.” Then, turning to Mr. Sauer, he asked, “Are you saying the
standard for granting a hearing is the same as for calling for a new trial?”

Analysis

That question, of course, highlighted the very purpose of the oral argument, essentially a hearing to determine whether there should be an Evidentiary Hearing to expose and explore the issues before the Court with respect to the possible withholding of significant discovery materials. It is not such a shocking allegation, after all, regarding a District Attorney’s Office that the legal community has now come to recognize was quite capable
of concealing 376 pages and 52 boxes of exculpatory material in order to send an innocent man, Anthony DiSimone, to prison for life, while perpetuating a thirteen-year lie.

There followed discussion of other information that investigators for the Defense have recently uncovered involving one of the jurors who had been convicted of a crime, and who would never have sat on the jury had
that fact been revealed.

Stating, “I don’t believe Mr. Dillon’s testimony here, is incredible,” Bellantoni indicated that he would conduct a hearing, the purpose of which will be, in his words, “to run down, once and for all, exactly what Mr. Dillon
is alleging.” The dates of the hearing agreed upon were September 24th, 25th, and 26th. It would appear the Wheels of Justice have finally begun to turn for Richard DiGuglielmo.