The Advocate
Richard Blassberg

Epidemic of Prosecutorial Misconduct
Urgently Demands Legislation

Last week brought a significant achievement in the effort to bring real justice to the Criminal Justice system throughout the United States, with the announced exoneration of Jerry Miller, believed to be the 200th wrongly convicted, and incarcerated, innocent individual cleared by DNA evidence since the first known reversal in 1989.

Unlike Jeffrey Deskovic, well-known to Guardian readers, who was in his sixteenth year behind bars, when freed through the efforts of the Innocence Project, Miller had already been paroled, having served 25 years, prior
to his recent exoneration by DNA evidence. What has many observers concerned is the fact that the first 100 cases took thirteen years, but only five more years to double the figure.

In fact, those numbers should not really be all that surprising given the fact that the technology obviously was not distributed everywhere, equally, all at once, and the rules of criminal procedure, not to mention court backlogs and protocols, vary from state to state, and between jurisdictions within each state, exclusive of the federal system. Those of us who have been involved with criminal justice for some time know very well that there have been many more cases of wrongful prosecution and conviction, even over the last fifty years, than we can ever hope to uncover and rectify. In fact, it is no overstatement to estimate that fully 30%, or more, of those who have gone to prison since 1957, were not guilty of the crime for which they were convicted.

Such is the reality of jurisdictions in which 97% of all felony indictments are disposed of by plea-bargain. One must understand that it is logical to assume that where a defendant can easily avoid as much as 75-90% of the prison time he is facing, if convicted after trial, by merely “copping a plea,” and yet insists upon his innocence, and is willing to incur the risk, and the expense, of going to trial, there is, at least a fair chance that he is, in fact, innocent. But, on the other hand, given the attractiveness of avoiding a possible 20, or 25-year sentence, many innocentindividuals, particularly those without significant resources, will take a “generous” plea deal, offering 1 ½ to 3 years, or possibly even probation. Many innocent individuals reside in state and federal prisons because they took that option.

Unfortunately, plea-bargaining has degenerated over the years to where it has become more like an addiction than a remedy for overcrowded calendars and overextended prosecutorial caseloads. And, while, in the purest sense, the Constitutional sense, it has become a device amongst many in the contemporary prosecutor’s
bag of tricks, it is the single most subversive factor in the “Criminal Justice Equation.” Prosecutors, for the most part, ignore half of their sworn mandate, the half which calls for “protection of the innocent,” preferring, instead, merely to “prosecute the guilty,” whomever they say is guilty. All too often it becomes a contest, a test of wills, and certainly not a “search for the truth.” What’s Justice got to do with it anyway?

Of course, it varies from jurisdiction to jurisdiction, but few district attorneys, and fewer United States Attorneys, are heard exclaiming that their investigation revealed the fact that an individual charged by police was, in fact, innocent.

That’s simply not what prosecutors believe the voting public wants to hear, ever. There’s just far too much politics and money tied up in the criminal justice system at every level. Hence, prosecutorial misconduct is not merely commonplace, but rampant and pervasive.

The Westchester District Attorney’s Office, in 1990, under Carl Vergari, had no compunction about sending a sixteen-year-old boy, Jeffrey Deskovic, to prison for 15-Years-To-Life for Rape and Murder despite the fact that his DNA and hair follicles did not match those found in, and on, the body of a 15-year-old schoolmate.
ADA George Bolen, arrogant, insensitive, but insulated, creature that he was, merely told the jury that Angela Correa, 15, a Peeksill High School student, had simply, “had consensual sex with someone else prior to her rape and murder.” Was there even any attempt, ever, to identify the “consensual partner?” Of course not.

That was the very worst kind of prosecutorial misconduct, because not only did it send a totally innocent boy of sixteen to prison for the next sixteen years of his life, but also it left Steven Cunningham, the actual perpetrator, at large in the Peekskill community where he once again killed another young woman little more than three years later. That same office, in 1994, this time under Jeanine Pirro, would turn a brutal stabbing and homicide in the City of Yonkers, into a 13-year lie and confabulation simply to satisfy the personal political needs of a very
sick, psychopathic, prosecutor, despite the fact that she had a confession from the actual killer just six days after the incident.

To achieve her evil, and clearly criminal, ends Pirro, and numerous assistant district attorneys, medical examiners, police, forensic experts, and even a judge, who just happened to be dating Pirro’s mother, all conspired to keep more than 376 pages, and 52 boxes of exculpatory information and exhibits, Brady material, from the Defense for more than thirteen years. Again, arrogance, no fear of legal reprisal or personal consequences, combined with a total disregard for Constitutional Rights, produced a seven-year prison stay for the innocent accused, as well
as prison sentences for other, unrelated, trumped-up offenses, prosecuted against witnesses who refused to lie about the original brutal stabbing.

It is difficult enough to accept the fact that 200 exonerations hardly represent even the tip of an enormous iceberg, given that honest, good faith mistakes can be made by the most well intentioned prosecutor. However, realizing the reality that in the vast majority of state and federal prosecutions intentional violations occur in the name of “winning by any means necessary,” the need for serious measures to stem the tide, indeed the epidemic, of malicious prosecutions, is all to evident.

What is needed here in New York State, and perhaps in most states, is serious legislation which will accomplish three essential goals:

First, a permanent commission must be established to make legislative recommendations, as well as overseeing their enactment and execution.

Second, legislation must be enacted that establishes financial, and incarcerative penalties for prosecutors who engage in malicious, and intentional, prosecutorial misconduct, calculated to deny defendants their Constitutional Rights.

Third, serious revisions must be made to the Code of Criminal Procedure, taking into account technological advancements, and social changes over the last fifty years, in an effort to level the playing field and enhance the
possibility of Constitutionally correct prosecution and the application of Due Process.

We Ask The Westchester DA’s Office: How Many More Are You Concealing?

In Our Opinion...

The Westchester Guardian, having reviewed much of the 376 pages of Brady material, information tending to establish his innocence, unlawfully hidden from Anthony DiSimone for thirteen years, in the massive effort to perpetuate Jeanine Pirro’s confabulated lie, must now ask, when will the DA’s Office make a full and truthfulaccounting to the People of Westchester? Fifty-two boxes of exhibits, and 376 pages of exculpatory testimony and statements are not things that were likely to be lost, or missing, in the offices of any law-abiding District Attorney.

We were present several months ago when Assistant DA Valerie Livingston was compelled, at the very last moment, to tell Federal District Court Judge Charles L. Brieant that there would be no need to go forward with the scheduled evidentiary hearing because the District Attorney’s Office “was withdrawing opposition to the grantingof a writ of Habeas Corpus to Anthony DiSimone,” as they had found 376 pages and 52 boxes of Brady materials that they were turning over to DiSimone’s attorneys, “in the interest of justice.” Of course, having made that admission, the DA’s Office was opposed to an unconditional grant, petitioning the Court, instead, to keep DiSimone locked up, anyway. Livingston left Brieant’s Court literally in tears.

The truth is the Westchester County District Attorney’s Office had its back to the wall. Simply put, they could not allow the evidentiary hearing to go forward that would have lasted for weeks, exposing in minute detail all the evidence, including a confession that clearly pointed the finger of guilt at Nick Djonovic, an Albanian youth, whohad stabbed Louis Balancio to death at the Strike Zone Bar in 1994, and who Pirro had allowed to escape to Albania as she pursued the prosecution of someone more in keeping with her self-promotional agenda.
Pirro saw the tragic death of young Louis Balancio, reportedly a member of the Hell’s Kitchen Gang, as an opportunity to prove that, despite her husband Al’s known connections to the Mob, the Cosa Nostra, she could prosecute Organized Crime.

In light of all of the above, and further, in light of the fact that on February 27th, in New York City, at the United States Court of Appeals for the Second Circuit, ADA Livingston handed Mr. DiSimone’s attorneys a one-paragraph letter informing them that “additional material from 1997, which may, or may not, constitute Brady material,” had been found, We believe it is long past the time that District Attorney’s Office must come forward and level with the People of Westchester.

If the District Attorney’s Office was really intending to act “in the interest of justice,” upon Mrs. Pirro’s exit an inventory of all the outstanding cases on appeal, particularly homicides and other major crimes, should have been taken. And, all of the evidence, including all of the Brady material that had been intentionally withheld from those Defendants in each case, should have been turned over, thus separating the Office from the treachery and lies that had been employed by Jeanine Pirro.

Perhaps the Office did, in fact, review all of the major appeals, as they should have. In that case they were perfectly well aware that they were concealing a mountain of evidence that would have cast more than “reasonable doubt” upon the guilt of Anthony DiSimone, but chose nevertheless not to do the right thing! Any way one looks at it, the Office’s continuing pursuit and harassment of Mr. DiSimone perpetuates the unlawful conspiracy of Jeanine Pirro, Clement Patti, Steven Bender, and the entire supporting cast, whose prosecutorial misconduct sent an innocent man to prison.

We now ask two very important questions:

• How many more innocent individuals, sent away to prison by the prosecutorial misconduct of Jeanine Pirro, are you covering up? And,

• When will you stop protecting Mrs. Pirro and start protecting the People of Westchester?

It’s High Time We Prosecute Rogue Prosecutors.

“One Who Would Enforce The Law Must Live By It”

We must no longer tolerate the unlawful and unconstitutional acts of rogue prosecutors, district attorneys, federal prosecutors, and special prosecutors, alike, who ply their profession as though they are above the Law, abovescrutiny, and accountability. William Pitt put it most succinctly, “Where law ends, tyranny begins.” It is no overstatement to suggest that the People of Westchester lived under a tyrannical regime for twelve years headed by District Attorney Jeanine Pirro, and, furthermore, that many in that regime, many of the key players, survive in the current DiFiore administration.

The mere fact that the chief law enforcement officer was the spouse of the most outrageous white-collar criminal in her jurisdiction speaks volumes regarding the level of news management, and election fraud needed to perpetuatethe power and the influence of that DA. Pace University Law Professor Bennett Gershman, speaking of Pirro on Cable television, recently declared, “she may be one of the worst prosecutors in the United States.” Of course, apologists, and others with some personal stake in the Pirro Myth, will say that every prosecutor has had their share of bad cases, hoping that the really egregious cases such as Jeffrey Deskovic, Anthony DiSimone, coming to light, and opening the eyes of reasonable people, will remain buried under a dozen years of self-promotional hype and media cooperative culpability.

However, one does not need a law degree to know that a prosecutor who saw fit, in a brutal murder case, to withhold more than 376 pages of Brady material (exculpatory information about the accused) and 52 boxes of exculpatory exhibits, was totally unfit to occupy the office of District Attorney. After all, One who would enforce the law must live by it.

Jeanine Pirro, elected DA in three fixed elections, lived her life, and ran the business of her Office, the Peoples’ business, as though she was above the Law. The withholding of a mountain of exculpatory evidence from Anthony DiSimone, as outrageous as it was, over a 13-year period, beyond her term in office, was by no means an exception, nor “a mere blip in an otherwise exemplary record,” as her apologists would have us believe. Quite the contrary. While it may ultimately come to be recognized as the high-water point of her prosecutorial misconduct, the handling of the Di-Simone case was totally consistent with “patterns and practices” repeatedly engaged in over the course of DA Pirro’s twelve year reign.

The kidnapping of Jing Kelly’s infant son, the intimidation and coercion of witnesses in the Richard DiGuglielmo case, the ‘tit-for-tat’ prosecution of Marci Stein, the malicious prosecution and conviction of Matthew McKerrick,the framing of Steven Nowicki for a crime that never happened, the use of a false confession in the Selwyn Days “double homicide” that was really a murder/suicide, despite the total lack of forensic evidence, and, in the Kareem Bryan so-called “Bedroom Bandit” case, are but a few of scores of confabulated, self-promotional cases in which assistant district attorneys, medical examiners, police officers, and expert witnesses, each of whom, for their own unethical, self-preserving reasons, joined conspiracies. Those conspiracies targeting innocent persons, prosecutions of opportunity, were knowingly and maliciously pursued, employing every prosecutorial misconductpossible in a cynical, depraved effort to win convictions, irrespective of the innocence or guilt of the accused, and with utter disregard for human life or dignity, much less any concern for judicial integrity.

The stain embedded in the fabric of the Westchester District Attorney’s Office by Jeanine Pirro remains today in the presence of far too many, once young and high-minded attorneys who were twisted and turned rogue, and left behind, in her destructive wake.

It is no longer sufficient to speak in generic terms about the atrocities that were ruthlessly and wantonly visited upon the DiSimones, the Nowickis, the DiGuglielmos. the McKerricks, the Days, Lee Holt, Jing Kelly and her son Tristram, and numerous other victims of Pirro’s tyrannical reign, not to mention Jeffrey Deskovic. All of them cry out for exposure and Justice. Indeed, the People of Westchester, in light of the horrific actions taken by assistant district attorneys, and others, inside, and outside of the Westchester DA’s Office, calculated to send Anthony DiSimone to prison for a murder committed, and confessed to by Nick Djonovic, can no longer trust, or rely upon the statements or intentions of that office.

As recently as two weeks ago Assistant DA Valerie Livingston stood before three judges of the United States Court of Appeals for the Second Circuit, the second-highest tribunal in our nation, and lied shamelessly totheir faces, much as she had lied to the Appellate Division, Second Department, of State Supreme Court for many years, with regard to Anthony Di-Simone, and countless other innocent defendants. Livingston lied withouthesitation, without conscience, much as ADA Laura Murphy lied to the jury in the Marci Stein case in 2001, when she told them that two teen-aged student/accusers “had no financial, or other motive in testifying against their teacher, Marci Stein,” when, in fact, the DA’s Office, and Laura Murphy, knew full well that the students had filed notice of claim in Federal Court, and would ultimately collect $220,000 for their efforts.
The same Laura Murphy had no qualms about demanding airfare from Jing Kelly to cover the cost of Gail Hiler’s flight to Canada to kidnap Jing’s infant son. Murphy had no problem over-charging Kelly with Felony CustodialInterference, a charge that was inappropriate by definition given the husband who had been a threat to their child’s safety and well-being.

ADA George Bolen, who hastily retired just days before Jeffrey Deskovic emerged from state prison, had no uneasiness telling a jury sixteen years earlier, that the reason 15-year-old Angela Correa’s lifeless body was found with DNA in her vagina, and hair follicles on her body that did not match 16-year old Jeffrey Deskovic’s was because, “she had consensual sex with someone else before she was raped and murdered.” Bolen was lucky that Mr. Correa, didn’t beat the living hell out of him for defaming his poor deceased daughter, in order to convict another youngster who he knew was innocent.

Of course the family of Pat Morrison, the next murder victim of Angela’s killer, Steven Cunningham, have their own reason to loathe Bolen’s despicable prosecutorial misconduct.

And, then there is the Richard DiGuglielmo case, where a metal bat wielding amateur boxer, who happened to be a Black man, had broken the hand of a middle-aged deli owner, severely injured his leg, and was swinging for his head, when he was felled by “three shots to center mass” fired by the victim’s son who happened to be a New York City Transit Police Officer, with twelve years on the job.

The killing was determined to be a “clean shoot,” a justifiable homicide, by NYPD investigators. It was a justifiable killing even if the shooter had not been a police officer, but merely a civilian, under the Statute of Self-defense,Defense of Others. However, as a police officer, it was Richard DiGuglielmo’s sworn duty to do precisely what he did. That is, in any other County of New York State, but Westchester, under Jeanine Pirro; and, especially, notwhen the perpetrator was Black and the shooter Italian-American.

Clement Patti, Patricia Murphy, and Perry Perrone would team up to give Jeanine Pirro the self-promotional prosecution and conviction only intimidation of witnesses, to recant and reword their statements, the withholdingof blood evidence and other forensic evidence, and the poisoning of the jury pool by ‘trial in the press’ for one year, could produce.

Then there was Selwyn Days, a severely brain damaged man accused of a ‘double homicide’ in the deaths in Eastchester of a wealthy 79-year-old widower and his live-in lover/housekeeper, an undocumented alien fromTrinidad and Tobago. There was a video-taped false confession, produced after 36 hours in handcuffs on a chair in the basement of Police Headquarters in Mount Vernon. Naturally, the secretly taped confession contained no administration of Miranda Warnings, and was filled with no fewer than 37 mistakes of fact directly contradicting the police accounts.

ADA Robert Prisco, Medical Examiner Luis Roh, Psychiatrist Angela Hegarty, and a whole host of other conspirators teamed up to convict Mr. Days, when, in fact, the incident was actually a murder/suicide in which thehousekeeper killed her employer in a fit of rage, and then killed herself.

Three Town of Eastchester Police Detectives, Barletta, Astorita, and Kiernan, plus a uniformed police officer, who was quickly made a detective, all responded to the crime scene, the house, and removed several hundred thousand dollars in cash and bearer bonds, that could not be spent until they could locate and convict a “patsy.”
At trial the police could not account for the cash and bearer bonds, that evidence in the trial established they were aware of, and knew the location of. The prosecution could not produce one trace of physical evidence link- ing Mr. Days to the crime scene, although the deaths of Archie Harris the elderly homeowner, and Betty Ramshiram, the Home Health Aide, were brutal and involved a great deal of blood and violence. Not one fingerprint, no body fluid, or DNA, not one hair follicle, or footprint; nothing to link Selwyn Days, or anyone else, other than the decedents to the crime scene. Furthermore, there was no evidence to suggest that the Defendant or any member of his family had come into any money since the incident four years earlier. Mr. Days was convicted, and sentenced to two consecutive 25-year to Life sentences, soley on the strength of a false confession.

It was also a false confession from the Conference Room at Mount Vernon Police Headquarters that sent Mrs. Pirro’s so-called “Bedroom Bandit” to prison for 43 years, despite the fact that the actual perpetrator who matched the description by one of the victims completely, from his hair to his underwear, was turned loose in a major blunder by the Mount Vernon Police. The attorney for the accused, Mayo Bartlett, at trial, would produce an official transcript of a police telephone communication clearly indicating that the actual perpetrator was turned loose, and that “a confession would have to be gotten out of Kareem Bryan,” but Judge Les Adler refused to let the jurors hear it.

The case was prosecuted by ADA Michelle Lopez the Office’s sex crimes specialist, accompanied by ADA Calvin Scholar, neither of whom appear to lose much sleep over knowingly prosecuting and convicting innocent individuals with false confessions. Each has a particular propensity for working around the Constitutional rights of accused individuals, especially regarding issues of identification. This case was no exception.

The above-referenced cases are but a few amongst scores of intentional, malicious prosecutions, by many tainted, misguided assistant DAs who long ago stopped looking for the Truth, or the opportunity to bring about Justice. No doubt the first time they knowingly and intentionally sent an innocent person away to prison it might have made them feel badly. But, as they did it over and over again to keep Jeanine Pirro happy, and to continue drawing their pay checks every other week, it simply became a game.

It’s no game! What George Bolen did to Jeffrey Deskovic, what Clem Patti and Steven Bender did to Anthony DiSimone, what Clem Patti, Patricia Murphy, and Perry Perrone did to Richard Di Guglielmo, what Laura Murphy did to Jing and Tristram Kelly and to Marci Stein, and what Michelle Lopez and Calvin Scholar did to Kareem Bryan were all nothing short of criminal. Such mindless, malicious acts, calculated to deprive innocent persons of their liberty, are crimes against humanity, and must be prosecuted as such.

The time has come when we must enact legislation making it a crime for prosecutors to knowingly withhold Brady material, or alter evidence, or suborn perjury, or coerce false testimony, or false confessions, or tamper with evidence, or fail to give, and adhere to Miranda Rights. We must enact legislation that will provide for stiff prison sentences, as well as substantial financial penalties for prosecutorial misconduct.

The Westchester Guardian intends to contact every member of the New York State Assembly and Senate with regard to such legislation over the next several weeks, as well as Governor Spitzer, and Attorney GeneralCuomo, to discover their positions and to discuss ways of expediting passage of such necessary legislation. Professor Gershman, author of Prosecutorial Misconduct, is known to have long ago suggested such legislationand is currently studying, and writing on the matter.

US Atty Garcia Must Probe DA’s Prosecutorial Misconduct.

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

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

- United States Supreme Court Justice Louis D. Brandeis

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Federal Appeals Court Exposes Pirro’s Misconduct

“In twelve years on this Court I have never seen such a Brady violation.”

Last Tuesday, August 22nd, the United States Court of Appeals for the Second Circuit handed up a decision in the Anthony DiSimone case. The appeal was by Westchester District Attorney Janet DiFiore’s Office, as Cross-Appellee, in opposition to an earlier decision by Federal District Court Judge Charles Brieant, granting a writ of habeas corpus, on a challenge to sufficiency of evidence, which produced a conviction for Depraved Indifference Murder. The decision, which reversed the lower Court’s ruling, for “procedural insufficiency,” more importantly exposed the prosecutorial misconduct, and outright unlawful activities engaged in by former DA Jeanine Pirro, and now justified, and defended, by Janet DiFiore, her successor.

Specifically, although the main thrust of the original petition filed by DiSimone, with the Federal District Court, dealt with the sufficiency of evidence presented in connection with his conviction for Depraved Indifference Murder in the death of Louis Balancio, the real significance of the decision is its detailed exposure of the calculated, and unlawful activities engaged in by a malicious prosecutor bent on convicting an innocent Defendant, for her own purposes, at any cost. The case arises from a street brawl in front of the former Strike Zone Bar, on Central Avenue in Yonkers, in 1994, between some thirty local toughs that resulted in the death of the 21-year-old college student who suffered a total of thirteen stab wounds.

Defendant DiSimone, who continued to live in plain sight in the City of Yonkers, with his wife and infant son, became the target of one of DA Pirro’s more imaginative propaganda efforts. She would falsely claim that he had run off to Sicily, and that he was being pro tected by the Cosa Nostra. She would twice try to indict him, failing each time, while succeeding in indicting Darin Mazzarella, a known criminal charged in other homicides and present at the Strike Zone incident. Finally, only after empanelling a so-called “special grand jury” and offering immunity from prosecution, and placement into a witness protection program to Mazzarella, and his equally violent, and criminal brother Nick, in return for testimony against DiSimone,, was Mrs. Pirro able to secure an indictment against him.

The 29-page decision, authored by Justice Calabresi, the presiding judge of the three judge panel, who listened to the oral arguments offered by John R Bartels, Jr., attorney for Anthony Di-Simone, and Valerie A. Livingston, for DA Janet DiFiore, on June 21, disposes of the Defendant’s principle contention within the first half of the text concluding, “Because we find that DiSimone’s insufficiency claim was procedurally defaulted, we need not, and do not consider its merits:”

DiSimone, who was acquitted at trial of intentional murder, by a jury of his peers, was arguing that his conviction for Depraved Indifference Murder was not supported by the evidence produced at that trial, in accordance with a line of recent New York State Court of Appeals decisions in Gonzalez, Payne, and Policano, and several other cases over the past 2 ½ years. However, Sufficiency of the Evidence, although the basis of Judge Brieant’s habeas corpus grant, was not the only claim brought by DiSimone. There was the Brady violation claim, dealing with the obligation of the Prosecution to present to Defendants any, and all, information turned up by the Prosecution, which may be exculpatory to the Defendant, as well as the Confrontational Clause, the right of an Accused to confront his accusers as guaranteed by the Constitution.

Of these, the Federal Appeals tribunal was most interested in, and offended by, the particulars of DiSimone’s Brady claim. The Court, in its decision, summarized DiSimone’s Brady claim, stating, “DiSimone argues that the state violated its Brady obligation by failing to disclose, until near the close of the government’s case, information that a person other than DiSimone had asserted that he had stabbed the victim twice just before DiSimone allegedly stabbed the victim.”

This reporter was present on June 21st of this year for the oral arguments at the United States Second Circuit Court of Appeals, when Presiding Judge Calabresi made his impassioned declaration, “In twelve years on this Court I have never seen such a Brady violation.” That declaration not only set the direction the Court would be pursuing that day but, in a broader sense, it represented a harbinger of things to come, as federal and state appellate tribunals become increasingly aware of the egregious and morally bankrupt practices engaged in by the Westchester District Attorney’s Office for twelve years under the Pirro regime.

In fact, on February 10, 1994, just six days following the Balancio murder, Yonkers Police Detective Robert Molinaro had interviewed a 21-year-old Yonkers resident, Luvic Gjonaj, who provided a signed statement indicating that on February 6, 1994, his cousin, Nickoun Djonovic, had told him that he had been at the Strike Zone bar on the Thursday night of the incident, and had gotten involved in the fight, and had stabbed two people, one of whom was Louis Balancio, who he admitted stabbing twice, once in the chest. Furthermore detectives had obtained a search warrant for Djonovic’s apartment, found, and seized a bloody jacket, corroborating his confession.

However, Mrs. Pirro was not interested in this evidence because it did not fit the scheme and the profile she needed to project. Pirro saw the tragic events at the Strike Zone as an opportunity to help her shed her well-earned reputation as a prosecutor who didn’t prosecute Organized Crime. Her husband Al’s connection to it helped reinforce that reputation. She was determined to make this brawl between young street fighters into a Mafia thing. And, so naturally a murderer, even a confessed murderer, named Nickoun Djonmovic, somehow just wouldn’t fill the bill, the way someone with an Italian sounding name would.

The Court observed, “DiSimone made three separate requests for Brady material.” First in pre-trial motions in January 2000, then one week before the start of the trial, in a letter dated September 25, 2000, and finally, on October 2, 2000, just before jury selection. At no point did Mrs. Pirro’s Office turn over the Gjonaj statement, instead, moving to suppress its admission, stating, “It is the People’s position there is no link in the chain of evidence that connects Nick Djonovic to the commission of this homicide.”

Mrs. Pirro, anxious to convict someone she had maliciously and dishonestly portrayed as a member of Organized Crime, would now engage in the worst kind of prosecutorial misconduct, including subornation of perjury, to achieve her ends. And, she was not alone in her evil conspiracy. Judge James Cowhey, who, not so coincidently, dated her mother, Ester Ferris, was involved in the conspiracy to convict an innocent defendant, right up to his eyeballs, as Judge Calabresi indicates, “The trial court did not turn the statement over to the Defense until eleven days after it had received it from the Prosecution, shortly before the close of thestate’s case.”

Cowhey then refused to grant a motion by DiSimone’s attorney seeking a continuance, and time to put together a strategy, based on the new information which had been withheld. He then proceeded to reject three motions for mistrial that were based on the glaring Brady violations.

The Appeals Court decision leaves little doubt that the materials unlawfully withheld from DiSimone, “tended to support a potential Defense theory that, whatever DiSimone’as involvement in the fight, he was not the cause of Balancio’s death.” Justice Calabresi states, “Whatever else it may be, it is not murder to shoot a dead body. Man dies but once.”

He then gets tough with Janet DiFiore, who now appears to relish defending and justifying Jeanine Pirro’s outrageously unlawful prosecutorial misconduct, declaring, “ The government’s contentions to the contrary are wholly without merit.” He goes on, “In the first place, if there were questions about the reliability of the exculpatory information, it was the prerogative of the Defendant and his counsel, and not of the Prosecution, to exercise judgment in determining whether the Defendant should make use of it.”

The Court concludes that the information was favorable to the Defendant, and material, and that its late disclosure significantly influenced the outcome of the trial. The Court further notes the existence of one very small spot of blood supposedly connecting the Defendant, on a sweater that, interestingly was never proven to have belonged to DiSimone. The Court reminds that, “No witness testified to seeing the stabbing, and the murder weapon was not recovered.”

What the Court may not have known was that the Prosecution’s so-called Blood Splatter Expert was hired two days before the trial, and was paid more than $30,000 to make his assessments from photographs. Neither could the Court be aware of Mrs. Pirro’s antics. Appearing several times in the trial courtroom with the victim’s mother, and on television and in the press with her as well, all calculated to improperly persuade the jury.
Judge Calabresi declares, “We hold that there is a reasonable probability that had this material (the statement implicating Djonovic) been available the result in the case would have been quite different.”

Those who have observed the patterns and practices over twelve years in the Westchester District Attorney’s Office under Jeanine Pirro are only too well aware of the repeated outrageous prosecutorial misconduct, and outright criminal activity engaged in to achieve her despicable self-promotional agenda, The Anthony DiSimone case is but one of a long list of serious injustices perpetrated by Jeanine Pirro and a small number of misguided and selfishly motivated prosecutors whose criminal and reprehensible actions are just now slowly coming to light.
There are numerous innocent individuals, who, like Mr. DiSimone have been incarcerated for crimes they did not commit. They and their families have paid, and continue to pay, for the mistake the People of Westchester made three times when they entrusted Jeanine Pirro to be their chief law enforcement officer. Over Time, as the courts recognize the magnitude and the frequency of Mrs. Pirro’s evil, criminal deeds, underthe color of law, the taxpayers of Westchester will be burdened with the cost of compensating her victims.

The Depraved Indifference Murder Statute has been a “boondoggle,” abused and manipulated by prosecutors throughout New York State for 39 years, with the full knowledge and complicity of the state’s highest court. Not until March 2004, with the Gonzalez Decision, out of Rochester, did the Court of Appeals begin to seriously, if not wholeheartedly, come to grips with the injustices worked by ruthless prosecutors throughits nebulous and confusing language.

Some prosecutors more than others, those whose agendas were most self-promotional, such as Jeanine Pirro, and Charles Hynes, abused the statute to the level of criminality, frequently offering juries, and unwary judges, a smorgasbord selection of murder theories, Intentional, or Depraved Mind, counting on the notion that “juries love to compromise.”

Those of us who attended the oral arguments in the DiSimone case, emerged from the courthouse not quite sure of what we had witnessed, given that the principle claim involved Depraved Indifference Murder, and yet, the three justices had continued to dwell on, and ask questions, almost exclusively, about Brady violations. Later that day we got a glimpse of what was on their minds, when the Court posted information on the Policano case, and took the most unusual step, calling upon the New York State Court of Appeals for “certification” regarding the Depraved Indifference Murder Statute, and whether the rules of interpretation under which that court has been recently operating constitute “old, or new, law.”

In reality, the Federal Court was saying to the state’s highest court, “You’ve permitted this situation that unjustly, and unfairly advantages prosecutors to go on for nearly forty years. And, now, suddenly two years ago, you began dealing with it. Well, some of the residue is landing on our steps, so please give us some guidance to help us clean up your mess.”