Thursday, January 15, 2009
Judge Adler Would Give Rogue
DAs Another Bite Of The Apple
Last Thursday morning, January 8th, Anthony DiSimone, accompanied by his attorney, Murray Richman, appeared before State Supreme
Court Justice Lester B. Adler, for what Adler would describe as a Hearing For Determination Of Readiness. That description was really a tipoff as
to the mindset with which the Judge entertained the “Reply Memorandum In Support Of Motion To Dismiss The Indictment And Preclude A Retrial,” a 13-page argument drafted by John R. Bartels, Jr., Esq., Of Counsel, presented by Mr. Richman.
In reality, DiSimone, his Attorney, and some members of family, as well as friends, had come to Court, as had the parents and family of the late
Louis Balancio, to receive the Decision And Order of Judge Adler with respect to the Motion submitted by Richman to dismiss the indictment.
And, there was every good, legally justifiable reason, to vacate that indictment handed up in December of 1997 by a Westchester grand jury in
response to the confabulated, tortured version by then-District Attorney Jeanine Pirro of the events outside the Strike Zone Bar on Central Avenue in Yonkers in the wee hours of February 4, 1994 that supposedly resulted in the death, from multiple stab wounds, 13 in all, of one, not quite 21-year-old Louis Balancio, member of the Hell’s Kitchen Gang.
Mrs. Pirro was barely in office one month when the incident occurred involving some 25 or more young adults, many of them of Italian-American
ethnicity, some Irish-American, still others Albanian-American; a number of girls in the area, several guys, supposedly the “Tanglewood Boys.” Pirro saw what she hoped would be an opportunity to shake the notion that she could not prosecute, and deal with, “La Cosa Nostra”, a hindrance to her potential political rise attached to her since 1988 when she was withdrawn from consideration for Lieutenant Governor because of her spouse, Al’s, tight connection to Suburban Carting and owners Jimmy Galante and Tommy Milo.Within six days of the brutal murder of Balancio,
Pirro was in possession of a confession from the actual murderer, a young Albanian-American named Nick Djonovic who was upset by the attention Balancio was paying to his girlfriend. But an Albanian would not suit self-promotionally-motivated Pirro, who allowed Djonovic to escape to Yugoslavia while she concocted her own version of events and searched for the right Italian, hopefully one with some family connection to the “Mob”, that would suit her purposes.
Anthony DiSimone was not her first choice. Darren Mazzarella, who actually held Balancio down while Djonovic stabbed away, got the first call. Darren, and his brother, also named Nick, had already established themselves as a kind of minor “Murder Incorporated”, having wasted Nick’s employer, and a youthful gang member, in the Bronx. They had each been apprehended by federal authorities subsequent to the Balancio killing,
and were vulnerable and willing to play their part in whatever plot Pirro was prepared to script.
The Mazzarellas would ultimately cut a ‘sweetheart’ deal for themselves into Witness Protection at public expense while avoiding sentencing for
their pleas on their federal raps for more than 10 years now. For all that they got from the Government in return, Darren, who would be Pirro’s chief ‘witness’ against Anthony DiSimone, at no point testi- fied that he ever saw him kill anybody.
In point of fact, Mrs. Pirro, and her henchmen prosecutors, Clement Patti and Steven Bender, had nothing truthful in the way of evidence that, in
any way, implicated DiSimone in the death of the Balancio boy, but much that exculpated him, not only pointing to his innocence, but also directly pointing to Nick Djonovic.
Within hours of Pirro’s scheduled classic press conference to announce DiSimone’s indictment by a fourth grand jury late in December of 1997,
after three prior grand juries had refused to, she had received a telephone call from Mark Pomerantz, Assistant United States Attorney for the Southern District of New York and head of the Office’s Criminal Division, questioning how she intended to announce DiSimone’s indictment for a
murder she had had a confession, a bloody leather jacket, and numerous other items of evidence about from Nick Djonovic, who she had allowed
to escape to Yugoslavia.
The fact was, in December of 1997, nearly four years after Louis Balancio lay mouldering in his grave, and Anthony DiSimone continued to
live in plain sight in Yonkers with his wife and her family, Mrs. Pirro & Co. had collected some 376 pages, 52 boxes and miles of tape-recorded conversations that all pointed to the fact that Anthony was innocent of the charges she wanted to bring against him.
It is important to point out, at this juncture, that all of the exculpatory evidence to which I make reference, the overwhelming majority of which
was deliberately and unlawfully kept from his defense, and naturally, from the jurors when Anthony DiSimone was brought to trial in 2000, remained concealed in the Offices of the Westchester County District Attorney while Anthony remained locked up in state prison for a crime he didn’t commit, until in 2006, Attorney John Bartels, Jr., pressing hard for the truth in the Federal District Court of Judge Charles L. Brieant in White Plains, and the Second Circuit Court of Appeals in Foley Square, Manhattan, backed Valerie Livingston, Assistant DA in the Westchester Appeals Bureau, an outrageous liar who we witnessed commit-ting perjury both before Judge Brieant and a three-judge panel including Presiding
Judge Calabresi at the Court Of Appeals, against the wall.
Judge Brieant, on a Remand from the Court above, was mere seconds from opening a long, protracted evidentiary hearing that would’ve been
most embarrassing to DA Janet Di-Fiore and her effort to prevent Mr. DiSimone’s release on a writ of Habeus Corpus when Livingston was compelled to break down and rescind her opposition to the writ, followed by her exit from the courtroom, in tears.
She had every good reason to be crying because she had been caught up in the “tangled web” of lies and deceit with respect to Mr. DiSimone,
and had defended by repeated perjury and misrepresentation before the federal courts what presiding Judge of the Second Circuit Court of Appeals
had called, “The worst Brady violation I have seen in 12 years on the Bench.”
It was this contaminated, ugly case that was before Judge Adler last Thursday. This case, where, although they had the power to do it themselves,
the United States Second Circuit Court of Appeals, having directed the granting of the writ of Habeus Corpus, was not about to clean up after the State Court’s mess entirely, preferring, instead, to make the State deal with the wrongfully-obtained indictment in light of all of the prosecutorial
misconduct, and the malicious motive, that had gone into it.
Such was the opportunity to finally make right what had been so wrong for nearly 15 years; the Big Lie from Jeanine Pirro’s mouth, that had been tearing at both the DiSimone and Balancio families for so very long. However, Judge Adler had no intention of ending either the injustice or the agony. Adler opened the proceedings with, “On DiSimone, the Court has rendered its decision, and it will be handled on the second call. The Attorneys have gone to Judge Molea for scheduling.” Had he decided to vacate the original indictment, there would have been no need for scheduling as there would be nothing to schedule.
The incident which took the life of Louis Balancio had occurred more than four years prior to the day in 1999 when Anthony DiSimone, having
learned that he was now indicted and sought for the murder, walked into Yonkers Police Headquarters to surrender. The entire time he had been
living in plain sight, in Yonkers, having never left the area whatsoever. He was kept in the County Jail, without bail, for a year thereafter while Pirro, Patti, and Bender, not to mention the Yonkers Police Department, and 40 DA investigators worked at trying to tie him to the murder for a
total of five years. His trial was presided over by Judge James Cowhey, who was dating Mrs. Pirro’s mother, Esther Ferris. The Judge was actively engaged in the conspiratorial effort to keep any and all information about Nick Djonovic, the actual murderer, from the Defense and, more importantly, from the jury.
It was against this historical background that last Thursday Judge Lester B. Adler handed up his 20-page Decision and Order denying Anthony
DiSimone’s Motion to Dismiss the original indictment for the crime of Depraved Indifference Murder, which, under the facts of the case, nobody
could be charged with today, or, alternately Intentional Murder, for which DiSimone was acquitted by the original jury and cannot be charged with
under the Constitutional prohibition against Double Jeopardy of the Fifth Amendment.
In point of fact, under rulings from New York’s highest court since 2004, nobody may be charged and indicted, both for Intentional and Depraved
Mind Murder at the same time for the same incident, a fact that Judge Adler has known since he presided over the Selwyn Days’ trial nearly five
In reviewing Judge Adler’s Decision And Order, we made a number of observations. On Page 7, Adler points to the fact that as recently as September 15, 2008, “Defendant again moves to inspect the grand jury minutes and to dismiss the indictment on the grounds of legal insufficiency of the evidence.” Given all of the contortions and adjustments the State’s highest court, in its effort to finally deal with a nearly 40-year “leg-up” for the State’s prosecutors, over the past five years, having first cited the “Law of the Case”, a strictly procedural doctrine, as a constraint to granting Defense’s motion, Adler justifiably, and properly, launches into a four-page mini-history of the high court’s multiple attempts to limit some four decades of Unconstitutional application of the Depraved Mind Murder Statute.
However, having taken the extensive tour from Gonzalez through Jean -Baptiste, and properly expressed the recent evolution of the Depraved Mind statute, apparently finding no rock-solid mandate with respect to said changes, to grant Defense’s motion, Adler concludes, “In the absence of
any extraordinary circumstances which would warrant a departure from the doctrine of The Law Of The Case, his [DiSimone’s] renewed motion
to re-inspect the grand jury minutes and to dismiss the indictment on insufficiency grounds, is denied.”
With all due respect, we must take issue with Judge Adler, and suggest that any time a prosecutor, or prosecutors, acting in concert, have concealed 376 pages, including a confession by the actual murderer, 52 boxes, including the bloody jacket worn by the actual murderer, and miles of recorded telephone and in-person conversations with witnesses, FBI agents, and Assistant United States Attorneys, all of which are exculpatory to the individual wrongfully indicted, tried, and convicted, God help us if all that does not constitute “Extraordinary Circumstances.”
Judge Adler would definitely seem to be out of sync with the indignation and outrage felt by the justices of our nation’s second highest court when
they granted Mr. DiSimone a writ of Habeus Corpus for the “worst Brady violation” the presiding justice had seen in 12 years on the Court. Surely
Adler is engaging in classic British understatement when, on Page 12 of his decision, he opines, “Defendant’s federal writ of Habeus Corpus granted on the ground of a Brady violation, not on the ground that the evidence presented at trial was legally insufficient.”
We are talking about multiple Brady violations and multiple acts of prosecutorial misconduct so wrongful and malicious in nature, and so numerous
as to provoke the comment from Judge Calabresi, presiding over the Federal Court of Appeals, dubbing it “the worst” he had seen.
But Judge Adler sees no reason not to give the Office responsible for such dastardly conduct, the Office that has already robbed Mr. DiSimone of seven years of his life and liberty, and driven the decedent’s family half-crazy with their lies and confabulations, another crack at it!
Perhaps Mr. DiSimone’s Attorney, Murray Richman, stated it best when he told this reporter, speaking of Judge Adler’s decision: “We will review
the entire decision with a mind toward reargument. It is apparent on its face that the Court relied on old grounds rather than punishing the
People for their wrongdoing.
“How does society benefit when prosecutors can withhold exculpatory material and have a do-over? “When I was a kid in the Bronx, playing kids’ games, if my opponent did something wrong, he didn’t get a do-over.” Mr. Richman then concluded, “I respect the Judge and honest men can