US Atty Garcia Must Probe DA’s Prosecutorial Misconduct.

“Sorry” Won’t Cut It - Culpable Prosecutors and Police Must Be Identified and Punished.

“The integrity of the courtroom is so vital to the health of our legal system that no violation of that integrity, no matter what its motivation, can be condoned or ignored.”

- United States Supreme Court Justice Louis D. Brandeis

On June 21st of last year Presiding Judge Calabresi, United States Second Circuit Court of Appeals, listening to oral arguments in the Anthony DiSimone case declared, “In twelve years on this Court I have never seen such a Brady violation.” He had only seen the tip of the iceberg. Incensed by what little he was aware of, Judge Calabresi could not begin to know the depth of criminal misconduct, engaged in by the Westchester District Attorney’s Office, that lay beneath the surface.

The oral argument was in connection with an appeal by District Attorney Janet DiFiore of a writ of habeas corpus that had been granted by United States District Court Judge Charles L. Brieant to Anthony DiSimone, who had challenged the sufficiency of evidence that produced his conviction for Depraved Indifference Murder in the stabbing death of Louis Balancio in 1994.

On August 22nd The Second Circuit Court of Appeals held that Mr. DiSimone’s Constitutional Right to Due Process had been violated by the Westchester District Attorney’s “failure to produce Brady material in a timely fashion.” District Attorney Jeanine Pirro’s Office had withheld exculpatory information, which, had it been produced would likely have resulted in an acquittal of Mr. DiSimone.

The Second Circuit remanded the case back to the District Court for an evidentiary hearing to determine whether DiSimone, or his trial attorneys knew, or should have known, about the suppressed Brady material. At that point in the proceedings, the Appellate Court was merely aware that there had been a confession by one Nick Djonovic that he had committed the crime, some six days after the incident.

However, in November, just two months ago, in Federal District Court, White Plains, before Judge Brieant, literally at the very last moment before the start of the evidentiary hearing, Assistant DA Valerie Livingston stepped forward to declare that the Westchester District Attorney’s Office was withdrawing their opposition to Anthony DiSimone’s petition for a writ of habeas corpus, but was moving the Court to make the grant “conditional.”

ADA Livingston conceded that neither Mr. DiSimone, nor his trial counsel, knew, or should have known, about the suppressed Brady material, despite having argued to the contrary to the United States Second Circuit, and the State Supreme Court Appellate Division, for seven years. In addition to reversing themselves, the District Attorney’s Office ‘coughed’ up 376 pages of “new Brady material,” much of which corroborated Nick Djonovic’s confession.

Defense Counsel, in voluminous papers filed January 5th, in United States District Court, White Plains, rightly declares, “The State’s failure to produce the new Brady material was no mere oversight.” DiSimone’s Memorandum of Law continues, “The State now claims it found the new Brady material during its preparation for the remand hearing. In fact, the trial prosecutors, (Clement Patti and Steven Bender) were personally involved in thecollection of much of the suppressed Brady material. The State’s concession results instead, from the realization that its attempt to deprive Mr. DiSimone, and the jury, of the facts contained in 376 pages of Brady material would have been exposed at the remand hearing ordered by the Second Circuit.”

Incredibly, despite conceding that they have been lying to both the State and Federal Appeals Courts for some 7 years the Westchester District Attorney’s Office has the colossal nerve to cling to the notion that Anthony DiSimone, victim of their malicious prosecutorial misconduct, is entitled only to a Conditional Writ of Habeas Corpus. In other words, even after all of their criminal conduct, and malicious, intentional violation of every one of the man’s Constitutional Rights, the DA’s Office has the unconscionable gall to ask a federal judge, a man of Justice and Integrity, Charles L Brieant, to give them another opportunity to try to convict him of a crime they have known for nearly 13 years he did not commit.

How dare an Office, publicly financed, filled with such guilt, and so entrenched in trickery, corruption, and deceit, insult the Court by suggesting that Anthony DiSimone is entitled to anything less than a Grant of Unconditional Habeas Corpus, and disposal of his indictment? How dare such vile betrayers of the Public Trust, depended upon to “protect the Innocent,” once forced into conceding the truth, even suggest that there is any good reason to permit them to further torture this innocent man, much as they continue to torture other Innocents, Richard DiGuglielmo,Steven Nowicki, Selwyn Days, to name but a few?

A prosecutor’s office, which having concealed 376 pages of exculpatory information from a man who they willfully, and maliciously sent to prison for Life for a murder that they knew 13 years ago had been committed, and confessed, to by another individual, must now become the target of a federal investigation, not only into its criminal conduct in this case, but also the emerging evidence of PRACTICES AND PATTERNS over many years, calculated to do violence to the Constitutional Rights of scores, if not hundreds, of innocent citizens, many of whom still languish in prison.

Jeanine Pirro, evil and self-serving as she may have been, did not achieve her heinous criminal objectives without the willing, and intentional assistance of numerous supporting cast members. Principal amongst them, in this, the DiSimone case, and clearly needing investigation and prosecution, were Clement Patti, and Steven Bender. A prosecution that throughout a wrongful trial, and for 7 years thereafter repeatedly declared, “There is no link in the chain of evidence that connects Nick Djonovic to the commission of this homicide,” cries out for prosecution and punishment!

Counsel for Mr. DiSimone, John Bartels, Jr. and David Feureisen, as part of their Memorandum of Law submitted to Judge Brieant on January 5th, made a clear and compelling argument for the granting of an Unconditional Writ of Habeas Corpus to their client. That same statement is an equally compelling argument for the investigation, and prosecution of Jeanine Pirro, Clement Patti, and Steven Bender, as well as all other individuals, clearly aware of Mr. DiSimone’s innocence, who, nonetheless, committed acts calculated to help convict him by depriving him of his Constitutional Rights. That statement reads:

“If on the egregious facts of this record the indictment is not now dismissed, and retrial barred, the message to all prosecutors in this state is that they can intentionally violate the Brady rules with impunity, lie to the Court, and play ‘hide and seek’ without consequence. If they are not caught, no one will ever know. If caught, the only remedy will be a new trial; the prosecutor’s game clock will be rewound, reset, and the game replayed.”

The United States Attorney’s Office is surely the right agency to conduct the investigation and prosecution called for, as the crimes and violations alleged clearly involve federal issues, civil rights violations under color of law.Furthermore, the Justice Department is already very familiar with Mrs. Pirro, going back at least to 1997 and her’s and her spouse’s federal tax fraud case. Furthermore, as recently as eight months ago United States Attorney Garcia made a public appeal to citizens of Westchester, going so far as to publish a toll-free phone number to encourage individuals to bring forth information about issues of public integrity and corruption here in Westchester.

Additionally, neither the Governor, by way of appointment of a special prosecutor, nor the State Attorney General, who just ran against Jeanine Pirro, are in any better position to deal with the serious issues and offenses involved in the DiSimone case, and numerous other cases now in the appeals process, without first having to overcome arguments of “political retaliation.” Mr. Garcia is only too well-informed by now not to realize that there are numerous other cases with equally disturbing information regarding serious Civil Rights violations by Pirro, several of her ADA’s, and police agencies throughout Westchester, to ignore this call for action.

Certainly, the Justice Department is already well aware of DA Jeanine Pirro’s ‘hands on’ involvement in Nick Spano’s election fraud issues in 2000. 2002, and 2004, not to mention her own fixed elections in 1997 and 2001.And, furthermore, it is not merely a Pirro investigation that is called for, but an investigation of the unlawful activities of several individuals, in the Office “ under color of law;” ADA’s Clement Patti and Steven Bender in the DiSimone case, George Bolen in the Jefferey Deskovic case, under DA Carl Vergari,. and, numerous other individuals, police, medical examiners, etc. all of whom willingly sold out their sworn duties to insure their twice-monthly paychecks.