Thursday, January 15, 2009
The Advocate
Richard Blassberg
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and deal with, “La Cosa Nostra”, a hindrance to her potential political rise attached to her since 1988 when she was withdrawn from consideration for Lieutenant Governor because of her spouse, Al’s, tight connection to Suburban Carting and owners Jimmy Galante and Tommy Milo.Within six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
years ago.
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
disagree honestly.”
Showing posts with label Anthony Disimone. Show all posts
Showing posts with label Anthony Disimone. Show all posts
Thursday, January 15, 2009
Thursday, July 10, 2008
Westchester Guardian/Janet Difiore.
Thursday, July 10, 2008
The Court Report
By Richard Blassberg
District Attorney Vindictively Pursues
Still Another Wrong-Headed Prosecution
Wife Of Accused Sets Record Straight
Westchester Supreme Court, White Plains
Judge Lester B. Adler Presiding
Wednesday morning, July 2, Anthony DiSimone, who was released from State Prison under a Writ of Habeas Corpus, granted by Federal District Court Judge Charles L. Brieant 16 months ago, appeared in State Supreme Court before Judge Les Adler for a pre-trial hearing held specifically for the purpose of resolving the issue of whether his present attorney, Murray Richman, would be permitted to continue representing him.
At a previous appearance before Adler, Assistant District Attorney Timothy Ward, had raised the question of a possible conflict of interest
on the part of Mr. Richman based upon information that the District Attorney’s Office was relying upon to the effect that Richman had represented a potential witness in the anticipated trial, in another matter.
Prior to the opening of the hearing, Attorney Richman had assured his client, and his client’s family, that he had thoroughly checked his records and that, “There is no way, absolutely no way, there is any conflict of interest.” His assertion would be con-firmed minutes later in pen court.
Judge Adler had called Defense Attorney Richman and ADA Ward into his chambers for a brief conference prior to the hearing. Adler
opened the proceeding stating, “We are here today so that this Court can make an educated decision with respect to whether Mr. Murray Richman can represent Mr. DiSimone.”
He then called upon ADA Ward, who proceeded to explain that investigators from the District Attorney’s Office had determined that, in fact, the witness to which he had made prior reference was actually represented by Attorney Corozza in November of 2006, the time
frame referenced earlier by Ward, and that the DA’s Office was satisfied that there was no conflict in Mr. Richman’s representation of
DiSimone. Ward assured the Court, “From our standpoint, we think that clears it up.”
Murray Richman then responded, “Your Honor, I must repsectfully request to represent Mr. DiSimone. Judge Adler then, turning to
Anthony DiSimone, said, “Mr. DiSimone, I want you to state whether you are aware of the possible risk going forward, although, as of now,
there appears to be no conflict. DiSimone acknowledged the awareness of his present situation.
Adler then stated, “Bail conditions are continued.”
Mr. Ward spoke up requesting that the Court “repeat Parker Warnings.” Adler responded by proceeding to remind Mr. DiSimone that in the event he were to fail to show up for Court at an assigned date and time, the case would go forward without him. Prior to the hearing, Annmarie DiSimone, Anthony’s wife, told reporters, “I think this trial is a good thing because it will bring out and fi-nally expose all of the corruption that was involved in my husband’s conviction. If the proper investigation was done in the first place, Anthony would never have
been indicted.”
Analysis:
Anthony Di-Simone, who was acquitted of Second Degree Intentional Murder, but convicted of Depraved Indifference Murder following a jury trial in the stabbing death of Louis Balancio, February 4, 1994 outside the Strike Zone Bar in Yonkers, is presently free on $500,000
bail bond having been released on a Writ of Habeas Corpus, following the Second Circuit Court of Appeals’ discovery that his conviction and
continued imprisonment was based upon extreme prosecutorial misconduct; a Brady violation so onerous and so enormous that Judge Calabresi described it, saying, “In twelve years on this Court I have never seen such a Brady violation.”
Calabresi was referring to the concealment by former District Attorney Jeanine Pirro and current District Attorney Janet DiFiore of 376 pages, 52 boxes, and miles of taped interviews and conversations withheld from Defense, exculpatory to Anthony DiSimone and pointing to the real murderers. Mrs. DiSimone’s comments to reporters indicating that she thought that the upcoming trial was “a good thing,” is understandable in light of more than 14 years of lies and harassment, not to mention seven years of wrongful imprisonment that her husband,
and their entire family, have had to deal with, as well as the financial burden they will be dealing with for many years because of the cruelty
and self-serving misconduct of both Jeanine Pirro and Janet DiFiore.
From our perspective, it is dif-ficult to conceive the charge under which DA DiFiore hopes to try and convict Mr. DiSimone. Given that he
was acquitted of intentional murder more than eight years ago following a jury trial, and the charge for which he was convicted, Depraved Indifference Murder, has been clarified and redefined since 2004 by the State Court of Appeals in terms that clearly would preclude the act of stabbing someone 13 times from eligibility as a Depraved Indifference Murder; not to mention the mountain of evidence she has been forced to turn over, that not only is exculpatory to DiSimone, but reveals who the actual confessed killer and his accomplice were.
NEWS RELEASE
Martin Tankleff and Other Exonerees and Legal Experts Testify at Senate Democratic Forum on Preventing Wrongful Convictions
Exonoree speaks for first time in public about his nearly 20-year long ordeal Today, State Senators Eric Schneiderman (D-Manhattan/Bronx), Velmanette Montgomery (D-Brooklyn) and Bill Perkins (D-Manhattan), Assemblymembers Michael Gianaris (D-Queens), Adriano Espaillat (D-Manhattan), Rory Lancman (D-Queens) and Ellen Young (D-Queens), and leading criminal justice advocates took part in a public forum to address wrongful convictions and the creation of an independent “Innocence Commission” in New York State.
At the forum, testimony was presented by exonerees Martin Tankleff and Alan Newton, Steve Saloom of The Innocence Project, which is affiliated with the Benjamin N. Cardozo School of Law, Bernice Leber, President of the New York State Bar Association, Barry Kamins, Chair of the NYS Bar Association’s Task Force on Wrongful Convictions, and Jonathan Gradess, Executive Director of the New York State Defenders Association.
Schneiderman, who chairs the New York State Senate Democratic Task Force on Criminal Justice Reform and also serves as the ranking Democrat on the Senate Codes Committee and as a Commissioner on the New York State Commission on Sentencing Reform, has worked to nsure that the guilty are punished and innocent persons are (safeguarded).
Testimony from today’s forum will be used to develop legislation that ensures the public’s trust in New York’s criminal justice system.
“No one who is entrusted with ensuring the integrity of our criminal justice process—and most importantly the legislators who make our laws—can, in good conscience, ignore the prevalence of wrongful convictions in our state,” Senator Schneiderman said. “There are known flaws in the system, with eyewitness identification, interrogations, and preservation of and postconviction access to DNA, that we can and should remedy. There are also contributing factors that we don’t understand, and we have a responsibility to identify and remedy those as well.”
Testifying today about the need for reform in our criminal justice system was Martin Tankleff, who was convicted and sentenced to 50-years-to-life after allegedly confessing to his parents’ double-homicide. Last year, after serving over 17 years in prison, the New York State Appellate Court 2nd Department unanimously overturned his conviction. On Monday, the office of New York State Attorney General Andrew Cuomo vacated his indictments and decided not to retry Mr. Tankleff.
“I clearly do not want another person to experience what I have been experiencing for nearly twenty years,” said Mr. Tankleff. “The larger meaning of my case is to point out the gaps in our system, which is that when there is a horrible, obvious mistake made, there is no mechanism for correcting it. To leave it to the judicial and prosecutorial entities to correct their own mistakes is what leads the wrongfully convicted, like myself, to remain imprisoned for many, many years.”
Steve Saloom, Policy Director at The Innocence Project, indicated that the circumstances in the Tankleff case were not unique. The Innocence Project has helped to exonerate 215 individuals in the United States since 1989. According to Saloom, “Twenty-three people in New York served years or decades in prison before DNA proved their innocence, more than almost any other state in the nation. Nobody – not the police, prosecutors, judges, victims, or the public at large – benefits from these wrongful convictions. The only person who benefits is the real perpetrator of a crime, who eludes justice. In order to restore public faith in the justice system, it is critically important that we learn from each wrongful conviction by examining their causes and understanding the reforms that can prevent them. We applaud the New York Bar Association for taking the first steps towards doing so and we commend Senator Schneiderman for convening this Task Force to understand how the legislature can best act to prevent wrongful convictions.”
Saloom and others spoke about the need for an independent innocence commission as a tool for addressing wrongful convictions in the state. For several years, and without success, the state legislature has sought to establish an innocence commission empowered to evaluate the lessons of these exonerations. Such a commission would examine each case, with a specific eye towards what investigative and court processes – and what prosecutorial and defense shortcomings—contributed to those wrongful convictions.
Such a commission would make recommendations to adopt reforms that increase the accuracy of criminal investigations, strengthen prosecutions, and protect the innocent. Many other states have learned from wrongful convictions in this manner; they have researched cases and potential reforms, heard testimony from experts, and issued reports and recommendations on issues including eyewitness identifications, false confessions, and forensic laboratory oversight.
The New York State Bar Association recently created a task force of criminal justice experts from across the state’s criminal justice system that will review the state’s wrongful convictions, seek to understand their causes, and issue recommendations to improve the accuracy of New York’s criminal justice system. This NYSBA task force has great potential to inform policymakers about the reforms New York needs to adopt in order to further enhance the quality of justice across our state. Legislation has been introduced in Albany to permanently establish and fund such a commission.
“Fundamentally, we became lawyers and public servants to help others,” testified Bernice Leber, President of the New York State Bar Association. “I can think of no worse fear than being imprisoned – even for one day – for a crime that one did not commit.” “The Bar Association’s Task Force has identified 56 cases in New York where a convicted defendant was later exonerated, either by the use of DNA testing or based on non-DNA methods, and we plan to review each of those cases and produce a report by January 2009,” said Barry Kamins, Chair of the recently established Bar Association Task Force on Wrongful Convictions.
State Senator Velmanette Montgomery, a long time advocate for reforming criminal justice policies in New York, continued “The hundreds of exonerations across the nation over the past several years should inspire us to fix the cracks in our criminal justice system. By examining current exonerations and recommending ways to reform our criminal justice procedures, an independent commission will act as a guide to ensure that our criminal justice system is working properly, and that we are only convicting the real perpetrator of a crime.”
State Senator Bill Perkins agreed with his colleagues and added, “The Central Park Five are perfect examples of how innocent individuals can be wrongfully convicted of crimes they did not commit. Frighteningly, if this case had warranted the death penalty, then these young men would have had their lives ended because our system failed them.” “Just as we study the causes of wrongful deaths, our criminal justice system needs an autopsy to determine how to prevent even more innocent people from being imprisoned,” said Assemblyman Michael Gianaris (D-Queens), who is the author of legislation to establish an Innocence Commission in New York (Assembly Bill A4317). “One innocent person spending years in prison for crimes he or she did not commit is one too many. Unfortunately, recent history proves that the problem is more widespread than anyone would like to admit. This is a systemic problem that requires a systemic solution. ”
Addressing the information provided by the Innocence Project, Manhattan Assemblyman Adriano Espaillat commented, “The Senate’s Democratic Task Force on Criminal Justice Reform provides the citizens of New York the opportunity to examine how we are best able to protect the public while at the same time protecting the rights of individual citizens. There have been individuals from my district, like Fernando Bermudez, who have suffered for years because our procedures for eyewitness identification do not account for human error.”
Martin Tankleff was joined by Alan Newton, a Brooklyn resident who served 22 years in prison for a crime he did not commit. Mr. Newton was exonerated, with the assistance of the Innocence Project, in 2006. “It is essential that we create an innocence commission so that we can enact the necessary reforms to prevent wrongful convictions, so that other people don’t suffer the same fate I did,” said Newton.
“The hundreds of wrongful convictions exposed by DNA exonerations are a gigantic stain on the face of our criminal justice system,” testified Jonathan Gradess of the New York State Defenders Association. “Worse, these numbers only hint at the number of men and women who have lost, and those who will lose, their liberty due to systemic problems resulting in bad lawyering. An efficient and effective public defense system would be a big step in preventing wrongful convictions.”
The Court Report
By Richard Blassberg
District Attorney Vindictively Pursues
Still Another Wrong-Headed Prosecution
Wife Of Accused Sets Record Straight
Westchester Supreme Court, White Plains
Judge Lester B. Adler Presiding
Wednesday morning, July 2, Anthony DiSimone, who was released from State Prison under a Writ of Habeas Corpus, granted by Federal District Court Judge Charles L. Brieant 16 months ago, appeared in State Supreme Court before Judge Les Adler for a pre-trial hearing held specifically for the purpose of resolving the issue of whether his present attorney, Murray Richman, would be permitted to continue representing him.
At a previous appearance before Adler, Assistant District Attorney Timothy Ward, had raised the question of a possible conflict of interest
on the part of Mr. Richman based upon information that the District Attorney’s Office was relying upon to the effect that Richman had represented a potential witness in the anticipated trial, in another matter.
Prior to the opening of the hearing, Attorney Richman had assured his client, and his client’s family, that he had thoroughly checked his records and that, “There is no way, absolutely no way, there is any conflict of interest.” His assertion would be con-firmed minutes later in pen court.
Judge Adler had called Defense Attorney Richman and ADA Ward into his chambers for a brief conference prior to the hearing. Adler
opened the proceeding stating, “We are here today so that this Court can make an educated decision with respect to whether Mr. Murray Richman can represent Mr. DiSimone.”
He then called upon ADA Ward, who proceeded to explain that investigators from the District Attorney’s Office had determined that, in fact, the witness to which he had made prior reference was actually represented by Attorney Corozza in November of 2006, the time
frame referenced earlier by Ward, and that the DA’s Office was satisfied that there was no conflict in Mr. Richman’s representation of
DiSimone. Ward assured the Court, “From our standpoint, we think that clears it up.”
Murray Richman then responded, “Your Honor, I must repsectfully request to represent Mr. DiSimone. Judge Adler then, turning to
Anthony DiSimone, said, “Mr. DiSimone, I want you to state whether you are aware of the possible risk going forward, although, as of now,
there appears to be no conflict. DiSimone acknowledged the awareness of his present situation.
Adler then stated, “Bail conditions are continued.”
Mr. Ward spoke up requesting that the Court “repeat Parker Warnings.” Adler responded by proceeding to remind Mr. DiSimone that in the event he were to fail to show up for Court at an assigned date and time, the case would go forward without him. Prior to the hearing, Annmarie DiSimone, Anthony’s wife, told reporters, “I think this trial is a good thing because it will bring out and fi-nally expose all of the corruption that was involved in my husband’s conviction. If the proper investigation was done in the first place, Anthony would never have
been indicted.”
Analysis:
Anthony Di-Simone, who was acquitted of Second Degree Intentional Murder, but convicted of Depraved Indifference Murder following a jury trial in the stabbing death of Louis Balancio, February 4, 1994 outside the Strike Zone Bar in Yonkers, is presently free on $500,000
bail bond having been released on a Writ of Habeas Corpus, following the Second Circuit Court of Appeals’ discovery that his conviction and
continued imprisonment was based upon extreme prosecutorial misconduct; a Brady violation so onerous and so enormous that Judge Calabresi described it, saying, “In twelve years on this Court I have never seen such a Brady violation.”
Calabresi was referring to the concealment by former District Attorney Jeanine Pirro and current District Attorney Janet DiFiore of 376 pages, 52 boxes, and miles of taped interviews and conversations withheld from Defense, exculpatory to Anthony DiSimone and pointing to the real murderers. Mrs. DiSimone’s comments to reporters indicating that she thought that the upcoming trial was “a good thing,” is understandable in light of more than 14 years of lies and harassment, not to mention seven years of wrongful imprisonment that her husband,
and their entire family, have had to deal with, as well as the financial burden they will be dealing with for many years because of the cruelty
and self-serving misconduct of both Jeanine Pirro and Janet DiFiore.
From our perspective, it is dif-ficult to conceive the charge under which DA DiFiore hopes to try and convict Mr. DiSimone. Given that he
was acquitted of intentional murder more than eight years ago following a jury trial, and the charge for which he was convicted, Depraved Indifference Murder, has been clarified and redefined since 2004 by the State Court of Appeals in terms that clearly would preclude the act of stabbing someone 13 times from eligibility as a Depraved Indifference Murder; not to mention the mountain of evidence she has been forced to turn over, that not only is exculpatory to DiSimone, but reveals who the actual confessed killer and his accomplice were.
NEWS RELEASE
Martin Tankleff and Other Exonerees and Legal Experts Testify at Senate Democratic Forum on Preventing Wrongful Convictions
Exonoree speaks for first time in public about his nearly 20-year long ordeal Today, State Senators Eric Schneiderman (D-Manhattan/Bronx), Velmanette Montgomery (D-Brooklyn) and Bill Perkins (D-Manhattan), Assemblymembers Michael Gianaris (D-Queens), Adriano Espaillat (D-Manhattan), Rory Lancman (D-Queens) and Ellen Young (D-Queens), and leading criminal justice advocates took part in a public forum to address wrongful convictions and the creation of an independent “Innocence Commission” in New York State.
At the forum, testimony was presented by exonerees Martin Tankleff and Alan Newton, Steve Saloom of The Innocence Project, which is affiliated with the Benjamin N. Cardozo School of Law, Bernice Leber, President of the New York State Bar Association, Barry Kamins, Chair of the NYS Bar Association’s Task Force on Wrongful Convictions, and Jonathan Gradess, Executive Director of the New York State Defenders Association.
Schneiderman, who chairs the New York State Senate Democratic Task Force on Criminal Justice Reform and also serves as the ranking Democrat on the Senate Codes Committee and as a Commissioner on the New York State Commission on Sentencing Reform, has worked to nsure that the guilty are punished and innocent persons are (safeguarded).
Testimony from today’s forum will be used to develop legislation that ensures the public’s trust in New York’s criminal justice system.
“No one who is entrusted with ensuring the integrity of our criminal justice process—and most importantly the legislators who make our laws—can, in good conscience, ignore the prevalence of wrongful convictions in our state,” Senator Schneiderman said. “There are known flaws in the system, with eyewitness identification, interrogations, and preservation of and postconviction access to DNA, that we can and should remedy. There are also contributing factors that we don’t understand, and we have a responsibility to identify and remedy those as well.”
Testifying today about the need for reform in our criminal justice system was Martin Tankleff, who was convicted and sentenced to 50-years-to-life after allegedly confessing to his parents’ double-homicide. Last year, after serving over 17 years in prison, the New York State Appellate Court 2nd Department unanimously overturned his conviction. On Monday, the office of New York State Attorney General Andrew Cuomo vacated his indictments and decided not to retry Mr. Tankleff.
“I clearly do not want another person to experience what I have been experiencing for nearly twenty years,” said Mr. Tankleff. “The larger meaning of my case is to point out the gaps in our system, which is that when there is a horrible, obvious mistake made, there is no mechanism for correcting it. To leave it to the judicial and prosecutorial entities to correct their own mistakes is what leads the wrongfully convicted, like myself, to remain imprisoned for many, many years.”
Steve Saloom, Policy Director at The Innocence Project, indicated that the circumstances in the Tankleff case were not unique. The Innocence Project has helped to exonerate 215 individuals in the United States since 1989. According to Saloom, “Twenty-three people in New York served years or decades in prison before DNA proved their innocence, more than almost any other state in the nation. Nobody – not the police, prosecutors, judges, victims, or the public at large – benefits from these wrongful convictions. The only person who benefits is the real perpetrator of a crime, who eludes justice. In order to restore public faith in the justice system, it is critically important that we learn from each wrongful conviction by examining their causes and understanding the reforms that can prevent them. We applaud the New York Bar Association for taking the first steps towards doing so and we commend Senator Schneiderman for convening this Task Force to understand how the legislature can best act to prevent wrongful convictions.”
Saloom and others spoke about the need for an independent innocence commission as a tool for addressing wrongful convictions in the state. For several years, and without success, the state legislature has sought to establish an innocence commission empowered to evaluate the lessons of these exonerations. Such a commission would examine each case, with a specific eye towards what investigative and court processes – and what prosecutorial and defense shortcomings—contributed to those wrongful convictions.
Such a commission would make recommendations to adopt reforms that increase the accuracy of criminal investigations, strengthen prosecutions, and protect the innocent. Many other states have learned from wrongful convictions in this manner; they have researched cases and potential reforms, heard testimony from experts, and issued reports and recommendations on issues including eyewitness identifications, false confessions, and forensic laboratory oversight.
The New York State Bar Association recently created a task force of criminal justice experts from across the state’s criminal justice system that will review the state’s wrongful convictions, seek to understand their causes, and issue recommendations to improve the accuracy of New York’s criminal justice system. This NYSBA task force has great potential to inform policymakers about the reforms New York needs to adopt in order to further enhance the quality of justice across our state. Legislation has been introduced in Albany to permanently establish and fund such a commission.
“Fundamentally, we became lawyers and public servants to help others,” testified Bernice Leber, President of the New York State Bar Association. “I can think of no worse fear than being imprisoned – even for one day – for a crime that one did not commit.” “The Bar Association’s Task Force has identified 56 cases in New York where a convicted defendant was later exonerated, either by the use of DNA testing or based on non-DNA methods, and we plan to review each of those cases and produce a report by January 2009,” said Barry Kamins, Chair of the recently established Bar Association Task Force on Wrongful Convictions.
State Senator Velmanette Montgomery, a long time advocate for reforming criminal justice policies in New York, continued “The hundreds of exonerations across the nation over the past several years should inspire us to fix the cracks in our criminal justice system. By examining current exonerations and recommending ways to reform our criminal justice procedures, an independent commission will act as a guide to ensure that our criminal justice system is working properly, and that we are only convicting the real perpetrator of a crime.”
State Senator Bill Perkins agreed with his colleagues and added, “The Central Park Five are perfect examples of how innocent individuals can be wrongfully convicted of crimes they did not commit. Frighteningly, if this case had warranted the death penalty, then these young men would have had their lives ended because our system failed them.” “Just as we study the causes of wrongful deaths, our criminal justice system needs an autopsy to determine how to prevent even more innocent people from being imprisoned,” said Assemblyman Michael Gianaris (D-Queens), who is the author of legislation to establish an Innocence Commission in New York (Assembly Bill A4317). “One innocent person spending years in prison for crimes he or she did not commit is one too many. Unfortunately, recent history proves that the problem is more widespread than anyone would like to admit. This is a systemic problem that requires a systemic solution. ”
Addressing the information provided by the Innocence Project, Manhattan Assemblyman Adriano Espaillat commented, “The Senate’s Democratic Task Force on Criminal Justice Reform provides the citizens of New York the opportunity to examine how we are best able to protect the public while at the same time protecting the rights of individual citizens. There have been individuals from my district, like Fernando Bermudez, who have suffered for years because our procedures for eyewitness identification do not account for human error.”
Martin Tankleff was joined by Alan Newton, a Brooklyn resident who served 22 years in prison for a crime he did not commit. Mr. Newton was exonerated, with the assistance of the Innocence Project, in 2006. “It is essential that we create an innocence commission so that we can enact the necessary reforms to prevent wrongful convictions, so that other people don’t suffer the same fate I did,” said Newton.
“The hundreds of wrongful convictions exposed by DNA exonerations are a gigantic stain on the face of our criminal justice system,” testified Jonathan Gradess of the New York State Defenders Association. “Worse, these numbers only hint at the number of men and women who have lost, and those who will lose, their liberty due to systemic problems resulting in bad lawyering. An efficient and effective public defense system would be a big step in preventing wrongful convictions.”
Thursday, March 8, 2007
Janet Difiore.
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.
Analysis
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.
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.
Analysis
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.
Innocent Man Goes Home 13-Year Pirro Lie Finally Ends.In Our Opinion...
“A Ringleader Of Atrocities”
We had the privilege and pleasure of accompanying Anthony DiSimone’s wife, Annmarie, his mother Diane, and his sister Nicole, who, together with Jeffrey Deskovic, traveled to Green Haven State Prison in Stormville last Wednesday to pick up Anthony and bring him home. Thus ended the 13-year torment and torture former DA Jeanine Pirro visited upon their lives when she decided the confession of the murderer of Louis Balancio, and more than 376 pages of corroborative testimony, and 52 boxes of exhibits were not good enough to prosecute Nick Djonovic because he was Albanian, and she needed an Italian killer to satisfy her self-promotional agenda. She wanted to prove that despite her husband’s connections to it, she could prosecute Organized Crime. And, of course, to her that meant someone whose name ended in a vowel, someone Italian.
It was never about guilt or innocence. It was always about making the DA look good, and, Clement Patti and Steven Bender who conducted the prosecution, and scores of others, including the trial judge, James Cowhey,who dated Pirro’s mother, knew it too. It would require four grand juries but Pirro would eventually get an indictment. “If at first you don’t succeed, try, try again.”
Mrs. Pirro could care less how many innocent lives she was destroying. She had done it countless times before. She could care less that she was letting the actual killer, Nick Djonovic, flee the country while she told one lie after an other to the parents of stabbing victim Louis Balancio. She was a great liar, so great that even now thirteen years later, confronted with a mountain of compelling evidence, including a confession, that Djonovic was their son’s murderer. Dorothy and Jeffrey Balancio would rather not acknowledge the truth, preferring instead to go on supporting and espousing a lie, if only to keep worshipping and believing in Mrs. Pirro.
We feel the time has come when the Balancios must acknowledge that more than 376 pages, and 52 boxes of information, including a confession, are no “mere technicality.” They will believe whatever their mentality willpermit them to. But, Anthony DiSimone did not kill their son!
We feel the time has come when the Balancios must acknowledge that more than 376 pages, and 52 boxes of information, including a confession, are no “mere technicality.” They will believe whatever their mentality willpermit them to. But, Anthony DiSimone did not kill their son!
Mr. DiSimone emerged into the sunlight of a new day last Wednesday afternoon to the waiting arms of his wonderful wife, mother, and sister, who never gave up hope, and, also into the arms of Jeffrey Deskovic, who spentseven years longer than he had to in state prison because of Mrs. Pirro’s cruel refusal to permit the DNA found in the body of his alleged victim to be compared with the State’s DNA Data Bank.
Anthony and Jeffrey shared several minutes alone speaking in words only those who have survived the ordeal of wrongful imprisonment can understand. When We asked him to characterize Mrs. Pirro, Anthony, an avid reader, reached out to Virgil, the Roman poet, dubbing her “A Ringleader of Atrocities.”
Thursday, February 15, 2007
Janet Difiore.
The Court Report
By Richard Blassberg
Anthony DiSimone Innocent All Along!
United States District Court Southern District Of New York
300 Quarropas Street White Plains, New York
Judge Charles L. Brieant Presiding
Tuesday February 6th United States District Court Judge Charles L. Brieant issued his ruling in the Anthony DiSimone case, that had been remanded several months earlier by the Second Circuit Court of Appeals for the purpose of an evidentiary hearing into just what, if anything, the Defendant, or his counsel at trial, some seven years ago knew, or should have known, about a mountain of Brady material, evidence, that if exposed to the jury would have tended to establish the innocence of the Defendant, and likely produced a different outcome at trial.
As the District Attorney’s Office was compelled to disclose many weeks earlier, literally moments before the commencement of the hearing, there were some 372 pages from 52 boxes of evidence, including exhibits, never shared with DiSimone, or his attorney at trial, involving a confession and corroborative evidence that one Nick Djonovic had, in fact, committed the Intentional Murder for which DiSimone was convicted under a theory of Depraved Mind Murder.
Back in the summer of 2006 Judge Calabresi, of the United States Second Circuit Court of Appeals, presiding over oral arguments in an appeal by the Westchester County District Attorney from a writ of habeas
corpus which had been granted by Judge Brieant in response to Defendant’s claim that he had been convicted of a crime, Depraved Indifference Murder, for which insufficient evidence had been presented, declared, “In twelve years on this bench I have never seen such a Brady violation.”
The DA’s Office had to withdraw their opposition to Mr. DiSimone’s petition for a writ of habeas corpus in order to avoid the protracted evidentiary hearings that surely would have repeatedly demonstrated and exposed publicly, the extreme prosecutorial misconduct engaged in by the DA’s Office under Jeanine Pirro, as well as a year’s worth of activity by that same office under Janet DiFiore, desperately trying to cover up the wrongdoing. And, continuing to keep an innocent man in prison, knowing full well that another individual, Djonovic, had confessed to the murder six days after the incident that took the life of 21-year-old Louis Balancio fully 13 years ago, the DA, nevertheless, was arguing that the Court should only grant the petitioner a conditional writ of habeas corpus thus allowing the commencement of a new trial within ninety days.
Mr. DiSimone’s attorneys argued that to grant a conditional writ would have been Double Jeopardy under the provisions of the Fifth Amendment, as he had already been acquitted of Intentional Murder at trial, and he could not be convicted of Depraved Mind Murder today, under Policano, as he was seven years ago. Judge Brieant, additionally, pointed to the fact that “the Brady materials have raised very serious issues of actual innocence,
clearly rising to the level of reasonable doubt as to whether DiSimone, as opposed to Djonovic, was the killer.” And, despite showing great kindness to the present district attorney, Brieant, did, however, note, “The only purpose of a remand to leave this issue for further litigation in the state court, (as DA DiFiore was moving the Court to do) when it could only come out one way, is to impose on the Defendant and continue his unconstitutional incarceration into the foreseeable future.”
Judge Brieant, always a gentleman, fully mindful of other cases currently in the appeals process or likely to be in the future, that may very well have been wrongfully prosecuted as well, and, wishing to encourage the DA’s Office to be more forthcoming and more fair, was indeed kind and gentle in his handling of the present administration of the District Attorney of Westchester County’s Office. Even when he emerged from chambers after a spontaneously called conference, many weeks earlier, when Assistant DA Livingston, moments before the start of the mandated evidentiary hearing, confessed to the presence of a mountain of Brady material, the great judge thoughtfully emerged with words of kindness rather than scorn.
His kindness was intended to encourage frankness, not only from the DA’s Office that, for twelve years, and often engaged in tyrannical, criminal practices, but was also intended as a message to all prosecutors entrusted with the solemn responsibility of bringing about justice by not only prosecuting the guilty but protecting the innocent.
Judge Brieant ruled:
“Accordingly, this Court, as a matter of discretion orders the entry of a Final Judgment which shall grant an unconditional writ of habeas corpus to Mr. DiSimone, provide for his release, bar his retrial, dismiss the indictment, and expunge the conviction on Count II from the record.”
He further declined to issue a stay pending appeal, but did stay the execution of his ruling for 20 days “to permit the District Attorney, if so advised, to seek a further stay pending appeal from our Court of Appeals.”
Analysis:
District Attorney Janet DiFiore would be well advised to shut down any further effort to obtain a conditional writ of habeas corpus. Under the circumstances, in light of the extreme heights of prosecutorial misconduct engaged in by her predecessor, and protected for more than a year by her own office, any further pursuit of Mr. DiSimone would only serve to confirm the already obvious conclusion that she is essentially of no different stripe than Mrs. Pirro, a district attorney she once rated with an A-plus.
DA DiFiore must by now recognize the wisdom of the adage, “Be careful what you wish for.” Anxious as she was to become District Attorney, and willing to do what many would not have done to rise to that throne, she must now endure a ‘rough ride’, one that was however clearly foreseeable, particularly by one who had spent several years in the Office. Surely, upon taking office more than a year ago, Ms. DiFiore had to have acquainted herself with those high-profile cases on appeal, and had to have known that there were 52 boxes and 372 pages of Brady material that had been kept from Anthony DiSimone, an innocent man, for 13 torturous years.
Given the double mandate imposed upon every prosecutor, and woven into the trust invested by the People in their sitting prosecutors, to both “prosecute the guilty, and protect the innocent,” how could she perpetuate the fraud that Jeanine Pirro, in her sick, self-promotional, agenda had perpetrated against Mr. DiSimone and his loved ones. Why did it not occur to her, before Defense attorneys skillfully put her back to the wall, that what she discovered regarding the wrongful prosecution, and conviction of Anthony DiSimone needed to be set right, as
only she could have? Indeed, Judge Brieant, a prince of a judge, was most gentle and kind in referring to such a criminally malicious scheme as was worked against Mr. DiSimone by DA Pirro, and defended by DA DiFiore, as a “botched job.”
What ADA Clem Patti, and ADA Steven Bender knowingly did to Anthony DiSimone, and his family, in order to continue to collect their County-paid salaries, and their retirement benefits can only be described as cruel and inhumane. Currently in private practice, reached at his office for a comment, Mr. Patti’s response was, “I have nothing to say about it.”
The time has come when Congress must consider legislation that will reign in those who are capable of such prosecutorial misconduct. Civil remedies, even millions of dollars, cannot replace the life, the years, stolen by such mindless, and venal behavior, nor such ruthless, intentional betrayal of the public trust. Prosecutors, both State and Federal, guilty of engaging in such prosecutorial misconduct must be held accountable, and exposed to both financial and incarcerative penalties without the “safe haven” of any statute of limitations.
Now that it is evident that Anthony DiSimone did not murder Louis Balancio, the District Attorney’s Office of Westchester has a solemn obligation to publicly apologize to both the DiSimone and the Balancio families for having perpetrated and defended such a cruel hoax for so many years. And, furthermore there is an obligation to the People of Westchester, to bring to trial, and to justice, Nick Djonovic, if, in fact, he is still living and can be apprehended.
By Richard Blassberg
Anthony DiSimone Innocent All Along!
United States District Court Southern District Of New York
300 Quarropas Street White Plains, New York
Judge Charles L. Brieant Presiding
Tuesday February 6th United States District Court Judge Charles L. Brieant issued his ruling in the Anthony DiSimone case, that had been remanded several months earlier by the Second Circuit Court of Appeals for the purpose of an evidentiary hearing into just what, if anything, the Defendant, or his counsel at trial, some seven years ago knew, or should have known, about a mountain of Brady material, evidence, that if exposed to the jury would have tended to establish the innocence of the Defendant, and likely produced a different outcome at trial.
As the District Attorney’s Office was compelled to disclose many weeks earlier, literally moments before the commencement of the hearing, there were some 372 pages from 52 boxes of evidence, including exhibits, never shared with DiSimone, or his attorney at trial, involving a confession and corroborative evidence that one Nick Djonovic had, in fact, committed the Intentional Murder for which DiSimone was convicted under a theory of Depraved Mind Murder.
Back in the summer of 2006 Judge Calabresi, of the United States Second Circuit Court of Appeals, presiding over oral arguments in an appeal by the Westchester County District Attorney from a writ of habeas
corpus which had been granted by Judge Brieant in response to Defendant’s claim that he had been convicted of a crime, Depraved Indifference Murder, for which insufficient evidence had been presented, declared, “In twelve years on this bench I have never seen such a Brady violation.”
The DA’s Office had to withdraw their opposition to Mr. DiSimone’s petition for a writ of habeas corpus in order to avoid the protracted evidentiary hearings that surely would have repeatedly demonstrated and exposed publicly, the extreme prosecutorial misconduct engaged in by the DA’s Office under Jeanine Pirro, as well as a year’s worth of activity by that same office under Janet DiFiore, desperately trying to cover up the wrongdoing. And, continuing to keep an innocent man in prison, knowing full well that another individual, Djonovic, had confessed to the murder six days after the incident that took the life of 21-year-old Louis Balancio fully 13 years ago, the DA, nevertheless, was arguing that the Court should only grant the petitioner a conditional writ of habeas corpus thus allowing the commencement of a new trial within ninety days.
Mr. DiSimone’s attorneys argued that to grant a conditional writ would have been Double Jeopardy under the provisions of the Fifth Amendment, as he had already been acquitted of Intentional Murder at trial, and he could not be convicted of Depraved Mind Murder today, under Policano, as he was seven years ago. Judge Brieant, additionally, pointed to the fact that “the Brady materials have raised very serious issues of actual innocence,
clearly rising to the level of reasonable doubt as to whether DiSimone, as opposed to Djonovic, was the killer.” And, despite showing great kindness to the present district attorney, Brieant, did, however, note, “The only purpose of a remand to leave this issue for further litigation in the state court, (as DA DiFiore was moving the Court to do) when it could only come out one way, is to impose on the Defendant and continue his unconstitutional incarceration into the foreseeable future.”
Judge Brieant, always a gentleman, fully mindful of other cases currently in the appeals process or likely to be in the future, that may very well have been wrongfully prosecuted as well, and, wishing to encourage the DA’s Office to be more forthcoming and more fair, was indeed kind and gentle in his handling of the present administration of the District Attorney of Westchester County’s Office. Even when he emerged from chambers after a spontaneously called conference, many weeks earlier, when Assistant DA Livingston, moments before the start of the mandated evidentiary hearing, confessed to the presence of a mountain of Brady material, the great judge thoughtfully emerged with words of kindness rather than scorn.
His kindness was intended to encourage frankness, not only from the DA’s Office that, for twelve years, and often engaged in tyrannical, criminal practices, but was also intended as a message to all prosecutors entrusted with the solemn responsibility of bringing about justice by not only prosecuting the guilty but protecting the innocent.
Judge Brieant ruled:
“Accordingly, this Court, as a matter of discretion orders the entry of a Final Judgment which shall grant an unconditional writ of habeas corpus to Mr. DiSimone, provide for his release, bar his retrial, dismiss the indictment, and expunge the conviction on Count II from the record.”
He further declined to issue a stay pending appeal, but did stay the execution of his ruling for 20 days “to permit the District Attorney, if so advised, to seek a further stay pending appeal from our Court of Appeals.”
Analysis:
District Attorney Janet DiFiore would be well advised to shut down any further effort to obtain a conditional writ of habeas corpus. Under the circumstances, in light of the extreme heights of prosecutorial misconduct engaged in by her predecessor, and protected for more than a year by her own office, any further pursuit of Mr. DiSimone would only serve to confirm the already obvious conclusion that she is essentially of no different stripe than Mrs. Pirro, a district attorney she once rated with an A-plus.
DA DiFiore must by now recognize the wisdom of the adage, “Be careful what you wish for.” Anxious as she was to become District Attorney, and willing to do what many would not have done to rise to that throne, she must now endure a ‘rough ride’, one that was however clearly foreseeable, particularly by one who had spent several years in the Office. Surely, upon taking office more than a year ago, Ms. DiFiore had to have acquainted herself with those high-profile cases on appeal, and had to have known that there were 52 boxes and 372 pages of Brady material that had been kept from Anthony DiSimone, an innocent man, for 13 torturous years.
Given the double mandate imposed upon every prosecutor, and woven into the trust invested by the People in their sitting prosecutors, to both “prosecute the guilty, and protect the innocent,” how could she perpetuate the fraud that Jeanine Pirro, in her sick, self-promotional, agenda had perpetrated against Mr. DiSimone and his loved ones. Why did it not occur to her, before Defense attorneys skillfully put her back to the wall, that what she discovered regarding the wrongful prosecution, and conviction of Anthony DiSimone needed to be set right, as
only she could have? Indeed, Judge Brieant, a prince of a judge, was most gentle and kind in referring to such a criminally malicious scheme as was worked against Mr. DiSimone by DA Pirro, and defended by DA DiFiore, as a “botched job.”
What ADA Clem Patti, and ADA Steven Bender knowingly did to Anthony DiSimone, and his family, in order to continue to collect their County-paid salaries, and their retirement benefits can only be described as cruel and inhumane. Currently in private practice, reached at his office for a comment, Mr. Patti’s response was, “I have nothing to say about it.”
The time has come when Congress must consider legislation that will reign in those who are capable of such prosecutorial misconduct. Civil remedies, even millions of dollars, cannot replace the life, the years, stolen by such mindless, and venal behavior, nor such ruthless, intentional betrayal of the public trust. Prosecutors, both State and Federal, guilty of engaging in such prosecutorial misconduct must be held accountable, and exposed to both financial and incarcerative penalties without the “safe haven” of any statute of limitations.
Now that it is evident that Anthony DiSimone did not murder Louis Balancio, the District Attorney’s Office of Westchester has a solemn obligation to publicly apologize to both the DiSimone and the Balancio families for having perpetrated and defended such a cruel hoax for so many years. And, furthermore there is an obligation to the People of Westchester, to bring to trial, and to justice, Nick Djonovic, if, in fact, he is still living and can be apprehended.
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