Thursday, June 12, 2008

The Court Report
By Richard Blassberg

Deskovic Civil Action Continues
In Preliminary Pre-Trial Mode
United States District Court, White Plains
Judge Kenneth M. Karas Presiding

Judge Karas was his usual frank and perceptive self, addressing Plaintiff Jeffrey Deskovic’s attorney, Nick Bruskin, who had filed a Motion To Amend since his last appearance. Plaintiff ’s Attorney Jennifer Loren, who had attended the first pre-trial hearing on April 10, also was present, but Barry Scheck was not.

Karas opened the proceedings announcing the fact that Assistant Attorney General John Knudson, representing the State of New York and the Department of Corrections, “still wants to change venue.” Attorney Stuart Kahan, representing the County of Westchester, former Deputy Chief Medical Examiner Dr. Luis Roh, and former Westchester Assistant DA George Bolen, spoke up, “I’m the only party opposing the motion to amend the complaint, if the effort to amend involves ADA George Bolen. It does not set forth a potential claim
in line with the Russo case. We are not dealing with the withholding of exculpatory information.”

Judge Karas responded, “It is not just a withholding of DNA information.” Mr. Kahan: “Whatever Bolen may have done, it was in his prosecutorial function.”

Judge Karas: “The Brady obligation is ongoing forever.”

Mr. Kahan tried to argue the point with the Judge, but discovered a well-informed jurist who actually took the time to fully familiarize
himself with the facts and allegations of the case. Karas advised Kahan, “It’s what Bolen conscripts Roh to do; to explain away the DNA
evidence.”

The Judge then followed up with, “You think that if an ADA gets a doctor to make up information that explains away exculpatory information, that act is not malice?”

Kahan responded, “There’s all kinds of things prosecutors investigate after indictments.”

Karas then asked, “What do you do with Plaintiff ’s effort to fit this case under Buckley? It’s like shopping for a witness.” He continued,
telling Attorney Kahan, “What we have here is ADA Bolen saying Dr. Roh, see what you can do.” Jeffrey Deskovic’s attorney, Nick Bruskin, then jumped in, in response to a nod from the Judge, saying, “I can’t put it any better than you have, Your Honor. Probable
Cause is vitiated.”

Karas then inquired of Bruskin, “Your theory is he didn’t have beyond a reasonable doubt,” referring to Bolen’s case.

Bruskin responded, “I don’t see how the Prosecutor is immune.”

Bolen’s attorney, Mr. Kahan, was trying to make the argument that his client’s conspiring, and scheming, with another of his clients, Dr.
Luis Roh, fully eight months before bringing a 16-year-old whose DNA and hair follicles did not match the man who raped and murdered 15-
year-old Angela Correa, to trial, anyway, was by way of “trial preparation.”

But Karas just wasn’t buying into it. So, the attorney decided to change gears, arguing that Deskovic’s use of three medical experts did not conform to Federal Rule of Civil Procedure No. 26.

Attorney Bruskin quickly responded, “We think the facts are not in dispute, and are most unusual.” Judge Karas, at that point, teasing,
turned to Bruskin and suggested, “If it turns out that Dr. Roh is really bad at what he does, then you wouldn’t have a case against Roh or
Bolen.”

Attorney Brian Sokolov, representing the City of Peekskill, Police Chief Eugene Tumolo, and Detectives McIntyre and Levine, spoke
up, declaring, “The Plaintiff ’s use of other incidents that go back to 1980 go to Monell.”

Karas immediately picked up on Sokolov’s statement, saying, “Plaintiffs get accused all the time with, you have made conclusory claims;
you haven’t stated a claim for which the Court can bring about relief.” Turning to Sokolov, Karas went on, “You can make a claim that Roh’s
statements were based on lack of knowledge.”

At that point, Sokolov took some liberty and told the Judge, “Speaking for all Defense counselors, our complaint is not so much substantive
as it is style.”

Analysis:

The seven Defense attorneys in Judge Karas’ Court last Monday must continue to cope with the unenviable task of having to defend numerous individuals whose acts, with respect to Jeffrey Deskovic, an innocent 16-year-old boy, wrongfully prosecuted and convicted of
rape and murder, were, and are, indefensible. As a consequence, in an effort to mitigate and minimize the damages for which their clients
will be held liable, they are attempting to cover over the ugly facts, by which the Plaintiff was robbed of 17 years of his life, by using arguments involving procedural matters and questions of so-called “prosecutorial immunity.”

Attorney Bruskin advised the Court that Plaintiffs anticipate 50 to 60 depositions. Accordingly, the Judge laid out a tentative schedule,
over the next 12 months, with a Case Management Conference scheduled for May 8, 2009. Having grasped the seriousness with which Judge Karas viewed the allegations against the Defendants, most of whom were demonstrably acting in concert, and having had a taste of the narrowness of the Judge’s interpretation of those prosecutorial activities possibly eligible for immunity, Attorney Sokolov took the opportunity to inform the Court that he intends to interplead Deskovic’s trial attorney into the case.

Forced By Federal Court To Cough
Up A Mountain Of Evidence Of His
Innocence, Vindictive DA DiFiore
Wants To Retry Anthony DiSimone

Westchester District Attorney Janet DiFiore knows perfectly well that Anthony DiSimone is totally innocent in the killing of Louis Balancio outside the Strike Zone Bar in Yonkers February 4, 1994. She even knows who the actual murderers were, Darin Mazzarella, previously charged in two other unrelated murders, who held Balancio in place, while Nick Djonovic stabbed him to death 13 times. She knows the
truth because when she took office in January 2006, she inherited a mountain of exculpatory evidence that her predecessor, Jeanine Pirro, had kept hidden from DiSimone for nearly 12 years.

DiFiore, not at all unlike Pirro, upon becoming District Attorney, made a conscious decision to continue to unlawfully withhold 376 pages, 52 boxes and miles of audiotaped live and telephone conversations, some with the United States Attorney’s Office, all of which support
Mr. DiSimone’s innocence, and point to Djonovic and Mazzarella.

For 16 months, until the point in Di-Simone’s federal appeals process, when District Court Judge Charles L. Brieant was about to gavel open, what would have been a very revealing and embarrassing Evidentiary Hearing process for her of-fice, perhaps over several weeks, DiFiore kept the evidence, including Djonovic’s confession six days after the killing, as well as his blood-covered leather jacket, from the Court and the Defense. Only when faced with certain slow and painful exposure, did she relent and cough up evidence kept concealed for 13 long years, seven of which DiSimone spent wrongfully convicted and imprisoned.

All throughout the appeals process, her Assistant District Attorney, Valerie Livingston, boldly, and incredibly, lied to District Court Judge Brieant and to three-judge panels of the United States Second Circuit Court of Appeals. The presiding judge of one such panel, in August
2006, Judge Calabresi, not yet even fully aware of quite all of the evidence being concealed, described the extreme unlawful conduct of the Westchester District Attorney’s Office, saying, “In twelve years on this Court I have never seen such a Brady violation.”

More than a year ago, the Federal Court released Mr. DiSimone on a Writ of Habeus Corpus. After seven years of wrongful imprisonment, he has managed to find employment and has attempted to resume some semblance of a normal life with his wife and young son.

Analysis:

Under the circumstances, last Thursday’s activity in Supreme Court Justice Les Adler’s courtroom in which a $500,000 bail was set, and the preliminary activity needed to retry DiSimone were set in motion, one can only conclude that what we are now witnessing is but the latest chapter in the extreme prosecutorial misconduct that has driven the response to Louis Balancio’s death for some 14 years now.

Despite any suggestion to the contrary, District Attorney DiFiore cannot try Anthony DiSimone, either for Second Degree Intentional Murder, a charge for which he was originally acquitted at trial, nor for Depraved Indifference Murder, for which he was wrongfully, and unlawfully, convicted because the State’s highest court has many times, since that conviction, explained that killings such as Balancio’s,
involving multiple stab wounds, do not fall under the Depraved Mind Theory.

DA DiFiore is well aware of those facts, and she is equally well aware of the fact that irrespective of all of the above, no jury, which will be made aware of all of the exculpatory evidence she was compelled to turn over, could ever convict Mr. DiSimone. Therefore, we can only conclude that her present course of action is both by way of the most malicious form of harassment, and a blatant attempt to frighten an innocent man into negotiating an unnecessary plea deal in order to prevent his civil action anticipated as a result of all of the civil rights violations he and his family have been made to endure for more than 14 years.