#577 Jason Flom with John Giuca

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[laughs] Drop what you're doing and listen to "Hey Jonas" on the iHeartRadio app. Apple Podcast or wherever you listen to your podcast. [music] Everyone sees me as a food player. But before anything else, I'm human. Every single day I'm still learning how to live with problems, mistakes, relationships, emotions, ever since I was born. This isn't a normal podcast. Everything here is just spontaneous, real and genuine. Just honest conversations about what it means to be alive. I'm Javier El Chicharito Hernandez and listen to learning to be human on iHeartRadio, Apple Podcast or wherever you get your podcasts. [music] Hello again, it's Connor Hall, senior producer for wrongful conviction with another case update and behind the scenes insights. And I have to revisit John Chuka. I remember the first time I heard about him. Not the murderer itself. I mean, if you were in New York at that time, you couldn't escape the coverage. Probably because this tragic murder fulfilled every suburb inite's nightmares about big bad New York City. And this was only about a decade after the highest number of murders ever recorded here. So when something happens that actually fits that terrifying belief about dangerous people lurking around every corner, it becomes pretty easy to sell copies of the New York Post. And just like so many others at that time, I was clueless about the prevalence of wrongful convictions. It wasn't until working with Jason that I found out that the sparse view that I knew about at that time were in much greater company. But John's case came to me, not from Jason. I've already knew John's mother, Doreen. But from a famous pizza spot in Carol Gardens, Brooklyn. I used to live right around the corner and one of the servers who I knew, you know, we were catching up on the subway. She just had a new born and I told her about the podcast that I just started producing. And she just like stopped me and was like, you need to look up John Juke. And eventually I ended up reaching out to his mom, Doreen on social media. And after covering the case, I remember how grateful she was that I had nailed down all the moving parts and people and motivations at play in John's story. You know, it's one of those cases where you have to understand the misconduct more than the incident itself. And so that was 2023 and since then Doreen and I we make time to see each other every once in a while. We have meals together. She introduces me to other folks in this community, journalists and exonerees legal advocates. I think she also introduced me to James Henning who, you know, brought us Carl Miller's case who was just recently exonerated. And James eventually became John's new lawyer. Now where we left off in 2023, it seemed like the best bet for John was petitioning the New York governor to take jurisdiction away from Brooklyn and give it to a special prosecutor. I mean, that's how little faith they had at attending justice here in Brooklyn. But James Henning has pulled off a miracle in John's case and gotten him back into court with newly discovered evidence. Another recantation and I'll tell you about that during this new edit of John Jooka's episode used to be in two parts. Now it's one. Okay, anyway, I'll be popping back in when the time comes to better explain where things stand for John. On October 11, 2003, three groups of college kids, one from Long Island, another from Brooklyn, as well as New Jersey, ran into one another at a bar on the upper east side of Manhattan. A mutual friend among them, Angel Di Pietro, knew Brooklynite Albert Cleary, as well as her Fairfield University classmate, Mark Fisher, a football player from New Jersey. When the night started to wind down and all of the trains along Island, New Jersey had stopped running, Albert Cleary's friend, 20 year old John Jooka, offered up his house in Flatbush, Brooklyn for an after party and a place to crash. A few of John and Albert's friends joined, including a neighborhood tough guy named Antonio Russo. Sometime before 6am, Angel and Albert walked to his nearby house. Since Angel was the only person Mark Fisher knew, he left to find his way over to Albert's with Antonio Russo and soon ended up fatally shot without his wallet on the driveway across from Albert Cleary's house, a blanket from John's house at its feet. In the immediate aftermath, Antonio Russo cut his dreadlocks and absconded to Cala Ornia, a police investigation revealed that other voices at a corridor were heard before the gunshots. Albert and Angel denied any knowledge and soon statements were made that alleged that John Jooka was involved. The motivations and level of involvement varied, but with this many witnesses placing blame on John, there had to be something to it, but this is wrongful conviction. Welcome back to Ronfell Confiction. Today we have a story that was front page news all over New York City when it happened with flaring headlines. Solace's headlines about wannabe Brooklyn gangsters who allegedly conspired at an after party to kill a suburban college football star who just happened to be in their midst. When in fact there were no gangsters, only a group of friends and the murder was not a group effort at all. The only group effort here took the form of multiple conflicting false statements against a member of that group, John Jooka, and John is calling in from prison in upstate New York right now. John, I'm sorry you're here, I do need circumstances, but we're very honored to have you. Thank you. The only good news in this whole miserable story is that his attorney is Mark Bedero. Welcome to Ronfell Conviction. Glad to be here, thanks for having me. And Mark, why was this such a high profile case? This was a big one, I mean at the time I was a prosecutor man had and it was in the fall of 2003 it felt like there was an update on this flawed investigation every day. It was the grid kid murder case because Mark Fisher was a 19 year old good looking college football player from New Jersey who went to Brooklyn for the first time in his life. And unfortunately he ended up dead on the street. The grid kid murder case became sensational from day one. And that moniker actually referred to the admitted grid kid killer, John's co-defendant Antonio Russo. But somehow John's face was also plastered on the front page of tabloids. As if he was some sort of criminal mastermind or co-conspirator to somehow actually involved the prosecution never actually decided on any one theory. They just put all this stuff out there and the press ate it up and polluted the jury pool. Now don't forget the HBO series The Sopranos was an absolute cultural phenomenon at this time. By the time his trial came around you actually had the prosecutor comparing him to Tony soprano and talking about ordering hits to build up street credibility for a non-existent gang which in fact was just a bunch of knucklehead teenagers in Brooklyn calling themselves names. And this alleged gang was called the ghetto mafia, right? So John what exactly was the ghetto mafia? Oh my god. We had some people who used to hang out with us who never even heard of that name. Some people who considered it a joke and there were other people who didn't. One thing was never was an actual gang. John was just a regular 19 year old Brooklyn kid. So let's talk about your life before all of this John. You grew up in flat push Brooklyn, right? It's like a little enclave in flat push called plastic box south. I guess you could say I grew up in a regular middle class upbringing. First I went to public school, PS139, then I went to Catholic school around third grade when my mother met my stepfather. So your parents broke up when you were young? Yes, when I was five years old. My stepfather, but considering him like my father also, I didn't look at it as a negative thing really. My real father went on to get married again and that woman who he married already had kids. So he had a family over there too and I considered them family also. But then as I had two fathers, like two men in my life who loved me and wanted to see me succeed and supported me. And your biological father ended up suffering a stroke when you were 19, which ended up having relevance in this case. But at that time, like you said, both he and your stepdad were supportive of you. You were trying to succeed as an actor and actually got some work as a teenager. Yes, I was on school around. I got to meet Jack Black, the guy from War and Order. So I was on War and Order like ten times. I played a dead kid on War and Order. I remember one funny story that I'm on War and Order and the dead kids are weighing on the pavement. I have big blood all over my head and everything. And I remember the two actors, Jerry or back and the other one. christmas yeah and they have to kneel down and search my pockets i have a pair of keys so jerry or guys kneels down and and he kneels right on the keys and in some of the bitch and they're like cut and then i had smoked some weed before i went and this is not part of script and he goes it smells like marijuana and they're like cut and he's like what what he's talking about he's like i don't know it smells like marijuana and my stepfather's looking at me like oh my god i'm gonna fucking kill you and jerry or back rest in peace and your stepfather was there too so it sounds like you had this great sort of blended Brady Bunch sort of a family situation and the woman at the center of it your mom Dorine i know her from rallies and events and calls and texts and she's just a pillar of strength and somebody i admire greatly yeah she always told me that war enforcement was a good guy i remember this growing up she was encouraging me to go to john jay encouraging me to become a cop her brother is a correctional officer my uncle Eddie that's another crazy irony about your story which is that while you were pursuing an acting career you were also studying criminal justice at john j college yes and what you learn about the criminal justice system in school is just 180 degrees from the reality they say that you have all these rights and they're not gonna rest people like this standard is met and then they don't get convicted or what's this standard is met on it's just none of that it's true yeah you saw those standards go out the window pretty quickly when the false statements that were used to obtain your arrest warrant and conviction didn't even form a cohesive narrative now one of the people who gave false testimony against you was your girlfriend at the time Lauren Colciano now we're gonna read from her recantation later but you two had started dating in high school right she was my first love i was with her since i was about kind of 15 or 16 why you so practically live at her house sometimes i know her whole family you ended up hiring her family's attorney sam Gregory who had previously represented her father south colciano he was head of maintenance in the world trade center he went to federal prisons because world trade center got robbed they said it was about four million americans this is in the 90s sometimes for whatever her father's mistakes were the da was eventually able to use her father's situation among other things in order to coerce her false testimony against you they were also able to coerce or incentivize your friend albert cleary as well who was arguably closer to this incident than you were albert's mother Susan cleary was the vice president of the kings county gop executive committee the group in brokland that can authorize what is known as a wilson pacula which allows a candidate from another party to run on that party's ticket and it can be used in order to run unopposed or in the case when a candidate loses their party's primary election whether or not that was a bargaining ship used to keep her son's name out of the investigation that's something we'll never know a lot of people say the system is broken i don't think it's broken i think it's working exactly how they intended it to work as like a battering ram for the rich and powerful yeah and as we've seen in cases like yours the prosecutors office will use high-profile cases for publicity with the hope of reaping those benefits come election time now back in two thousand three the d_a_ was charles joe hines now anyone who's familiar with our podcast is familiar with the problems in brokland during the hinds era nineteen ninety two thousand thirteen maybe in the last ten or fifteen years when people have really been paying attention to the problem of wrongful convictions i think a lot of the momentum on this really started when people like and tomson were running against hines ten years ago and exposing bad case after bad case and this is exhibit a and many of the people who worked under hines who were responsible and complicit and so many of the wrongful convictions of that era are still there today and those who have moved on to private practice or even careers in media like the trial prosecutor in this case anisega nick latsy those former hines a d_a_s their reputations and public fates are arguably tied to the political fate of the brokland d_a_s office in terms of the graduates of the hines d_a_s office this trial prosecutor was their superstar she's on tv today as an expert on everything that's right in criminal justice and it would have been humiliating for the brokland d_a_ to take her down why would anyone be proud of sending an innocent man to prison and effectively compounding the tragic loss of another young man's life so let's get to the incident the crux of everything we're discussing the awful night of october eleven into the twelfth of two thousand and three it was columbas day weekend mark fisher who went to fairfield university in connecticut and some of his friends went to the city and partied john jucah and his friend albert clear and a few others also went to the city and the groups ended up being connected through a very interesting person in this sorted process named angel d_p_a_t_ro who was a college classmate and theoretically friend of mark fisher who also was friendly with albert cleary so you had the brookland contingent which was john albert cleary and two more neighborhood friends angel d_p_a_t_ro and her friend marideth denahan from long island and mark fisher who had come in from new jersey and they met at a bar on the upper east side of Manhattan which at the time was known to college kids for being the home of many bars that had pretty loose id policies and so now it was getting late and the long island and new jersey kids had to figure out a way home on the train the last train left the next one didn't leave till sometime the next morning so they were stranded so i opened my house in them in the cab it was me albert marideth mark and angel me and albert paid for the cab and then after we got there a few more people showed up i'm pretty sure it was kami jimmy my brother was home and then Antonio russo russo had a house right behind john so they were certainly friendly from the neighborhood now and tonio russo was a strongly built high school dropout who wore dreadlocks and sold weed which was the reason he gave for coming over to john's house in the 2018 interview with the cops to sell weed to some of those who were interested and according to three people russo had a gun in his waistband both before and after the murder one of those three people said they had been threatened with it he's the tough guy he's a little bit crazy not in the legal sense just in the real world sense making everyone uncomfortable but for now he's supplying weed to this otherwise fun after party at john's house now what's nice about Antonio russo's statement to detectives in 2018 is that it takes some of the guesswork out of what actually happened now russo said that he and fisher went to the ATM together so fisher could buy weed the receipt said 423 but according to the bank it was an hour behind this was 523 am so russo and fisher returned to john's house a little after that now Albert and angel were there when they returned so they soon left together to go to alberts which was only a couple of blocks away they were there when they came back from the ATM yet and then they slip out they say they said goodbye to people but i don't remember them saying goodbye to anybody i just remember them disappearing without marina they're marked by the way both of whom had a reasonable expectation that they'd be sticking with angel and Albert which was their only connection to this after party now we're not sure why they were left behind but nonetheless marina's had fallen asleep and before mark actually did you called Albert at 557 am to let him know that mark was on his way over and then russo left with him correct now it was cold out right so mark asked john if he could take the blanket that he had draped over his shoulders and that becomes an interesting topic of conversation or evidence if you could call it that later on what we know is that 40 minutes later mark fisher was shot and killed in front of 150 argyle road which was just a few blocks from john's house and directly across the street from alberts correct now according to google maps this is about a five minute walk less than a quarter of a mile so we're not sure what happened in those other 35 minutes the free floating radicals if you will are mark fisher and tonio russo angel dp atro and albert clearing the people who lived on argyle road they heard voices and the woman whose bedroom was right above the driveway where mark was found heard car doors opening and closing also heard young voices and she was adamant that one of those was a female voice right the occupant of 150 argyle road hero co swaric said that she was awakened by her dog barking and heard the sound of a car door opening and shutting swaric went on to say that the view from her second story window was obstructed by foliage but she heard more than two young people talking the conversation specifically did not sound like an argument and one of the voices was female she said that she went back to bed and a bit later she and her husband heard gunshots and called police now from russo's 2018 detective report russo said that while on argyle road he pulled out his german luger nine millimeter which belonged to him and him alone he took fisher's wallet and told him to run before firing a shot at the ground to let fisher know that the gun was real and loaded he then fired a shot at fisher who fell to the ground when fisher asked him why he had shot him russo emptied his clip into him killing him on the spot the blanket from john's house lay underneath his feet mark fisher's body had been shot five times they did a canvas of the neighborhood some people said that they heard shots and also a saw a dark colored car speeding away now russo said that there was a woman in a car who could identify him when he was fleeing the scene he got rid of the wallet and a sewer near his house it was later recovered by police now an Immediately after the crime, Antonio Russo did a few things that a guilty person might. He used to wear braids in all life and he shaved his head. Russo then decides to take a vacation in California for a month and just disappear. And it'll become clear that Russo's 2018 account is definitely missing a few details. But what is absolutely certain is that he said he did this alone with his own gun. Our working theory has always been that Albert and Angel stumbled in to Russo doing something bad and didn't want to get involved in coming after him because he's a monster. Russo said he saw a girl, the neighbors heard a girl by their own admission. Albert and Angel are across the street. Now wouldn't you know it? Who do you think the only people on the block when they interviewed people at the house that said they didn't hear anything? I've been to this neighborhood and the neighbors driveways are maybe at most 20, 30 yards across the street from the other neighbors front doors. The morning after the murder, Albert and Angel quickly decamped to her long island home where they hung out with her father all day, a place clear he had never been before. And Angel's father, James D. Pietro, was a prominent defense attorney. He's a prominent lawyer, frequent financial donor, close friend to Heinz. Interestingly, Angel had plans to follow in her dad's footsteps and later passed the bar. And then a short time later, she gets hired as a prosecutor to the point where her and Nicolazzy are colleagues for years. You can't make this up. So okay, so back to the immediate aftermath. At around 10 a.m. that morning, Angel began receiving phone calls from family and friends of Mark Fisher and she told them that Meredith Denahan had given Mark trainfare and he had taken a train around 8 or 9 a.m. Angel also told detectives that she had spoken of Meredith on the morning of October 12th, who allegedly told her that Mark had woken John up around 6 a.m. and asked where to catch a train. But Meredith denied that this conversation ever took place. This is two days in and they knew that Angel wasn't telling the truth. In 2004, late spring early summer, you could see they spent a lot of time tracking her and trying to interview her friends and roommates and they all said we didn't believe her. She's telling different stories and the people who believe Angel is not telling the truth more than anyone else are Mark Fisher's family. They went so far as to sue both her and Cleary after John was convicted. They asked the DA for this police paperwork that talked about these neighbors on our Gile Road who said we heard a girl and the Brooklyn DA's response was we're not giving you that. And then we're protecting Angel even back then. If it at least appears as if some deal was made with her or perhaps with her father to keep her out of the crosshairs. So this is all super interesting. But how do the vulnerabilities of Albert and Angel having maybe seen Russo commit this crime and covering for that fact? How does this get directed towards John and this narrative with the ghetto mafia? When the cops interviewed Antonio Russo a couple days after the murder, he is the one who planted the seed in the cops ears that there was this big tough gang named ghetto mafia of which John and others were involved in and that they could have been behind this. As soon as I found out that the police wanted to talk to me, I went right there to the precinct. As a matter of fact, Lauren Calciano drove me. That was the 7-0 precinct detective which are the same guy who stuck a plunger up the guy's ass, Avenue Lima. And for those who don't remember the awful case of Avenue Lima and brace yourself, it was 1997 in the 70th precinct or the 7-0 as it was called. And Mr. Luima was effectively kidnapped by police from the scene of a fight outside of a club. They accused him of assaulting one of the four police officers with them, then brutally beat him. And when back at the 70th precinct, they sexually assaulted Mr. Luima with a broken broomstick. And so these officers knew that you knew that story. They tried to like subtly threaten me with that too when I was in the precinct. They said, "You have to use the bathroom." I said, "I don't have to use the bathroom." They said, "You have to use the bathroom." I'm like, "What?" And they took me to the bathroom and they tried to question me in the bathroom. And I'm like, "Oh my fucking god." I'm fucking believable. 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Now Cleary had denied knowing anything and he actually has a lawyer go on national TV to say we're cooperating. We know nothing. They even commissioned a polygraph in which Cleary passed the polygraph in which he said, "I don't know anything about this. I've been truthful. I've told the police everything I know, which ostensibly at that time was I know nothing." So John, when did you get the feeling that this investigation had shifted and the heat was being directed towards you? When they appointed this elite investigative unit consisting of Brooklyn's ADA and Major Case Quad Detectives and Michael Vecchion was spearheading that team. So even with Albert shouting from the rooftops that he "passed the polygraphs" saying that he didn't know anything, this elite investigative unit headed by the now disgraced Michael Vecchion and he had Albert ready to say whatever the hell he could dream up in order to save himself. And as we mentioned, he wasn't the only one. The two most important pieces of false testimony centered around when Albert and your girlfriend at the time, Lauren Calciano met up with you at your house sometime on October 12th in the aftermath of the murder. What the DA claims is later that night or the day according to Lauren, that John is meeting with his girlfriend Lauren and Albert in his bedroom. According to the DA, he tells them what happened. And according to Cleary, John tells him Mark disrespected my house by sitting on a table. At one point, Mark sat on a table and to tell you the truth, it wasn't a big deal. This is something that they tried to blow at a proportion later on and make it like it was a big deal, but it was actually nothing. Tommy said something to him and he got off the table and that was it. But sitting on a table, I've never heard that beside it as a reason to kill anyone. According to Cleary, John tells him it pissed me off. So I told Russo take my gun and show him what's up. Basically gave the order. Lauren again, ostensibly at the exact same meeting says what happened is John told us Russo had approached him that night and said, I want a rob, Mark, can I borrow your gun? She claims it's during the day. Albert claims it's at night. And the common denominator here is that both of these witnesses had denied for a year knowing anything until they were pressured and threatened with all kinds of things. Lauren was threatened with her future, very embarrassing details about her personal life. Albert was threatened with jail, perjury, all kinds of things. He was on probation for kicking the crap. out of somebody a few months earlier. And so at a bare minimum, you have conclusive proof that either one of Lauren or Albert take your pick. I would argue it doesn't even matter, just demonstrates they're all foolish shit. But you have conclusive proof that the prosecution has no problem calling at least one witness it knows is flat out purgering themselves. Now, Cleary, he also added to that story that, you know, I was talking to John and this guy Rob Legister, the head of ghetto mafia and John and Rob were talking about how we don't have enough street credibility. So we need to catch a body. Legister at the time was a college student in North Carolina. And we of course have a sworn affidavit from this register guy saying this is all a bunch of nonsense. He's never called to testify to any of this. But yet at the trial, you have Nicolasi talking about capos, soldiers, orders, Tony soprano, it's insane. So these are the two fall statements that eventually got John and died at a secret grand jury. Now, Antonio Russo had already been arrested in November 2004. Why that took so long? Nobody knows. After Russo got arrested, that was it. I thought and then I went shopping. It was a couple of days before Christmas on December 21st, 2004. And I bought a whole bunch of Christmas gifts for everyone. And I was on my way home to put up the Christmas tree for my mother. And they were there in front of my house. So you spent Christmas on Rikers Island. And Joe Hines had a serious primary challenge in 2005. As part of his taxpayer funded election campaign, he was making a big splash in the media with your case. After I got arrested, they rushed my case to trial in eight months because of that election. And they didn't plan on losing. So they needed to support their two false witnesses with more bullshit. And it went out and found another friend of yours with a vulnerability to exploit a guy named Anthony Bajari. Yes, he was another witness who satisfied the formula of claimed for a year and a half that he didn't know anything. But after being heavily pressured, claimed that the morning after the homicide that John called him up and asked him to do him a favor and pick up an item and leave it on the corner for somebody else to pick up. And Bajari testified that he looked at the item and that it was a firearm. So that testimony was potentially very damaging, but was problematic for a lot of reasons. He was threatened with losing his son and with being prosecuted for actually possessing the gun, which is a legal fiction. The DA was threatening to prosecute him for possession of a gun that they had no evidence of where it was or whether it was operable or anything else. It was alleged that John and Bajari had called each other back and forth to plan how he would leave the gun under a box on the street for some mystery buyer who would leave the money in its place. Oh, they had to do to prove that that wasn't true. With get these phone records. And then what case with this many coerced and or incentivized witnesses would be complete without a jailhouse snitch. So in walks John of Edo who did time at Rikers while you were there, he had a burglary charge and was eventually sentenced to a drug rehab program with the burglary sentence suspended pending his completion of the program. But he fell off the wagon and now all of a sudden in swoop the Brooklyn DA's office to snatch up another willing participant in John's railroading. So you and Antonio Russo went to trial together. Tell us about the state's case. The jury is being told essentially that Jucas childhood friend Albert Cleary is going to come in and tell you that John as a member of this gang Getto Mafia told Albert that they wanted to increase their street credibility so they needed to kill someone that Mark Fisher sat on a table in his family room. This was such an act of disrespect that it made Jucca rage to the point where he told Antonio Russo take my gun and you quote unquote show Fisher what's up which apparently is their way of saying shoot him. I remember that he tried to say that I told Russo to wait in the bushes and ambush him on turniple. There was no blood trail from Turner all the way to his house. So he was just an obvious lie and he pushed a 1 p.m. phone call up to 11 which angel D Pietro testified falsely to as well. You had called Albert just before 1 p.m. that day. Phone records corroborated that but both of them testified to an 11 a.m. call. So it might be plausible that you were the alleged source of all their shady information during the immediate aftermath. Now there's something else about Albert's time on the stand. Nikolasi brought up the polygraph he had taken to prove he didn't know anything about the crime but in a very misleading context. When he was on the stand after he says the exact opposite of that polygraph he says he does know everything about it. She asks him. Then he take a polygraph and he said yes and then of course knowing polygraphs on admissible and court. So she knew Fang Gregory would object and it was affirmed. So the jury thought that he took and passed that polygraphs about what he was saying now it was never cleared up that he took a polygraph to the exact opposite of what he was saying now. That is really devious. Now they called your ex girlfriend Lauren Coliseon of the stand whose testimony just can't be squared with Albert Cleary's version of the same exact conversation between the three of you on October 12th. Both stories could not be true. There could not have been the same meeting that Albert and Lauren are talking about and Albert's talking about John complaining about disrespect and ordering Russo to commit a murder when Lauren is saying no what happened as Russo said I just want to rob the guy can I borrow your gun. And John this was the first time that you were hearing the one time love of your life falsely implicating you in a murder. That was crushed. She stared at me the whole time she was up there and it wasn't like a malicious like she wasn't staring me down. She was looking at me like as if she was saying I'm sorry with her eyes. So we've gone over three of the four substantive witnesses. Albert Cleary, Lauren Coliseon and Anthony Bajari. Lauren and Anthony have both recounted as has the jailhouse snitch John Avito whose testimony were about to cover. He claims that I was in jail with John and I was having visitation in Rikers Island the same time John was and he was with his father and two women and Avito says I overheard John in response to the question from his father. Why did you have a gun with you? John said I don't know I just did an in essence acknowledge having a gun. What the jury never learns is that John Juca's father prior to this jailhouse visitation which did happen by the way and it's not surprising that the snitch would use a kernel of truth that could be documented by looking at jail records. But what the jury didn't know and presumably the DA didn't know it was at John's father that had a series of debilitating strokes and as a result he couldn't speak. He could only say one or maybe sometimes he would string two words together at a time. He couldn't say what Avito said that he said. The jury also didn't know that the family relatives the women who were present would have strenuously denied that occurred. They have sworn under oath in affidavits that this never happened. And there was even more to this false testimony where Avito claimed to hear incriminating statements directly from John. This time completely changing the location of the crime. The murder unquestionably is on our Gile Road that shots were heard by the residents. But Avito says, no, what happened is John told me that he went to the ATM with Mark Fisher which as you also said earlier was an hour before the murder. But this is what snitches do. They read papers. They see the news and they concoct. He says when Mark Fisher withdrew money at the ATM that John told me he pulled out a gun, pistol with Mark Fisher beat him up and then Russo took the gun and shot him. So the story changes dramatically. On top of the fact that this is coming from a jailhouse snitch who again was trying to avoid a prison sentence. So what did Sam Gregory do about Avito? Unfortunately, he didn't even know about John Avito until right before trial. There's no offer proof meaning here's what he's going to say. There's no notice to the defense that oh, by the way, we're going to argue through this witness that Jucco was physically there and did it. So he wasn't prepared to try a case on a theory other than the nonsense inconsistencies that was going to come out of Lauren and Albert. You know, if the defense had been aware of this from the beginning, they could have tactically prepared differently. He could have prepared to have John's father's doctor testifying his father's limitations or the two women could have testified to the actual substance of the conversation. Instead, they're caught with their pants down. Now, the defense did argue in their summation that the mere fact that they called Avito as a witness was kind of a Hail Mary because Lauren and Albert had inconsistent stories. That led the prosecutor to respond that John Avito was just for once in his life being a good guy motivated to do the right thing and that's the only reason he's cooperating. And that was just a bald-faced lie. So they squashed his problems in exchange for testimony. For the time being, they kept him out of jail despite repeated violations and a mandatory prison sentence. And then, once he was no longer needed a year later when he violated the program again, they threw him out with a trash and into prison he went when he no longer had any value to them. So this exchange of leniency for testimony represents just one Brady violation, but there's another major one in which Russo admitted to a fellow inmate named Joe Ingram to acting alone. And we'll get into that Ingram evidence in more detail later, but back to trial. So now they go from two conflicting versions of this crime to three convicting versions of this crime. They're really supposed to take one theory and prove it beyond a readable doubt, not give the jurors Chinese food menu of different theories because then you might have some jurors that believe this and some jurors that believe that it's called the unanimity issue, where they have to be unanimous about something. Yeah, to offer a menu of theories and basically say it doesn't matter. You know, he did it, which is essentially what the summation amounted to is not consistent with due process. And it leads to a jury possibly being six jurors say, what if he ordered a murder for jurors saying, what if he gave him a gun for a robbery and what if two jurors say, maybe he was physically there? Okay, but we all agree he did it. Okay, guilty. That's absurd. It was the worst day of my life. I was sentenced to 25 to life on October 19, 2005. I wasn't even alive for 25 years at that point when I got sentenced. I didn't even know what 25 years felt like. Hey, I'm Hota Kotby, host of the podcast Joy 101 with Hota Kotby. Together, we're going to have meaningful conversations with the world's most fascinating people like when actress Olivia Munn shared how she overcame fierce health challenges. I've gone through breast cancer and it helped my mother through breast cancer and that was more difficult. Listen to Joy 101 with Hota Kotby on the I Heart Radio app, Apple Podcasts or wherever you get your podcasts. All right, listen up. Our podcast is called, hey Jonas, we've got to hear since everyone has a podcast we wanted to as well. And now our good friend Nile Horn is joining the show. I was going, boys. Hey Nile. It was the same thing with slow hands. You know, our tastes so good can be about food. You too, Joe. Drop what you're doing and listen to Hey Jonas on the I Heart Radio app, Apple Podcasts or wherever you listen to your podcasts. [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] Everyone sees me as a football player, but before anything else I'm human. Is the Anormasi to alien sexist? What is love? Real Madrid or Varsa? From everyday an ordinary to the deep and extraordinary. Irrubinality comes out with spiral secretaries end up on the table and goals and lessons are to win this life in an perfect and fair and fair place. "Penning, I have to go and walk on a very beautiful day!" "We are here to connect." "Este chanit." "And Fabiel at Chalitornandes and together we are with Icar Radio, we're going to make the ordinary extraordinary stay close." "It is a character." "Listen, to learn to be human or Icar Radio, Apple Podcast or wherever you get your podcasts." "When I came up state, I automatically started trying to go to the low library life, but it's hard to even get about a bed in the morning." "No one's what's being done to you, but I was going to the low library every day at one point trying to get to know the law." "And that's when I saw that my prosecutor, Nicolasi, used the prosecutorial misconduct playbook." "She suppressed evidence more than once that we can prove between course and witnesses mistating the full work." "We even mistating the law, she told the jury that what Lawner said alone is enough to convict me, no felony murder." "And that's not really true either." "But then really those early years will more about my jurimist conduct issue." "I understand that one of your friends was with your mom and noticed somebody in the jury that he recognized." "I'm pretty sure it was the day the verdict he saw one of the jurim and he was like, "Oh, shit, I know this guy from the neighborhood." "And then your mom puts on her literal superhero cape." "You're going to have to hear this to believe it. I can't say enough about Zorin." "I'm going to try to go through multiple private investigators first. She's got Riddolf and she just has to take matters into her own hands as she did." "She watched him for a period of time and eventually started communicating with him, recorded her interactions with him. They began an ostensible friendship. And after a period of time, she started talking about the case. "And this guy, Jason Allell, started saying things, including admitting that he never should have been on the jury because he knew some of the people." "He said that his cousin who also used to hang out at a house that I hung out at. She thought I was guilty. Said his cousin wouldn't lie to me about something like that. He said, "Guys, that I used to hang out with, used to bully his brother. I didn't even recognize the name that he was talking about." "The other thing was that he said, he couldn't get off the work, but once he told him about which case it was, his boss gave him off and said, "I want to see that fucking kid fry. He'll give him off with pay, something like that." All kinds of things were coming out of the sky's mouth, including that he didn't like Jews. Obviously, the name "Juka" sounds like "Ju," but it's Italian. "I can't even process this." There's just no question that the case should have been tossed because of the juror misconduct. "He even admitted that he was pushing these other jurors into a guilty party." When they filed a motion to reverse the conviction on that issue, for whatever reason, those recordings were not authenticated in the proper way. The judge who denied the motion went farther and said, "Even if it was proper, I would deny it on the merits because this is an assault on the judicial system for somebody to be going after a juror." The criticism was actually leveled entirely at Doreen for exposing this rather than the juror who clearly had no business being on the case. She didn't do anything wrong, she didn't commit any crimes, she was just dug for the truth and she got it and they didn't like what they found out or what they heard. So I got involved in this in 2012. It was contacted by Doreen, John's mother or who some know as mother justice. When she showed up in my office with just stacks of papers, the first piece of paper that was on top of this whole pile was a transcript in the people of the state of New York versus John Avedo. And it was the court appearance in which Avedo had gone to court after he started meeting with John's prosecutor. And the appearance for the DA on the cover of this transcript was Anasega Nicolazzi, who was John's prosecutor. She showed up to one of his court appearances and made sure he didn't go to jail. There was no reason why a homicide prosecutor on the biggest murder case in New York City would be appearing on a mundane return on warrant for some moep who had a burglary sentence because he violated a drug program other than the fact he had to be cooperating in the murder case. But the major one was the white washed drug program violation documents that they gave us for John Avedo. They put them up on a stand and got him to say that he wasn't getting anything and didn't want anything in return for his testimony. No meaning see and no benefits at all. Meanwhile, he just fucked up seven or eight drug programs and got like all these violations. But they gave us drug program violation reports that didn't have any of that stuff on there. And then later when we got the case file, we got the real copy of the exact same document. If you hold them up to each other, they are the same document, but they have more sentences in them. So somebody just highlighted that part, personally, and printed it out and gave it to us. They just packed them up there and made it look like he was just trying to be a good citizen and then he didn't want anything in exchange for his testimony. He was a total white. And so I knew within the first day I met Doreen that this case was sideways. And all of this is happening in the ramp up to the historic run of Ken Thompson. During the election in 2012, 13, a lot of this news about Angel D. Pietro came out. And again, the idea that she could be hired by Heinz as a prosecutor and be Nikolazzi's colleague years later, just to absurd on his face that Ken, he asked me about what is all this. In my view, he wanted to campaign on Juca ironically enough. And maybe it was my mistake at the time, but I told him I don't want to talk to you about anything. I'm saying Juca related because you're probably going to be the next DA and I'm telling you right now I'm going to be coming to you to write this wrong. And I look back and one of my sins in this case is probably not unloading to him because ironically what he would have probably done is campaigned on it. So Ken Thompson challenges Heinz against long eyes in the primary. He wins. And what does Joe Heinz do? He'd had to call in a favor from Albert's mother on the Kings County GOP executive committee and get the Wilson Packel a waiver to allow him to run as a Republican. the sneaky political move to take a second bite at the apple. But Ken Thompson, he wins. So now Mark, at this point, you're thinking, it's time to resolve this once and for all. Yeah. When we did bring the case to the conviction review unit, we presented them with all kinds of evidence, including literally hundreds, if not thousands, of pages, of medical records of John Jucacinier, who had the strokes that we talked about, which meant that the avidos story couldn't happen. We presented them with a sworn affidavits of the two women who were at that jailhouse visit, who denied that conversation, ever took place. We presented them with overwhelming proof of how angel and Albert clearly testified falsely and how it contradicted what they told the police and contradicted all the other available evidence. And while this is in the CRU, we're talking 2013, 2014. Amazingly, this is when the recantations start rolling in. So in 2014, Lauren Colceado recanted, "Here's her quote, "I have regretted this testimony since I was first pressured to claim this by law enforcement officials. I've repeatedly told them that they did not have any information regarding John's alleged involvement in this crime. Law enforcement pressured and frightened me to the point that I ultimately relented and told them what they wanted to hear. Specifically, I was pressured to admit that John had told me that he gave Tony Russel a gun before Tony shot and killed Mark Fisher. She goes on to say, "Law enforcement officials suggested that I was involved in the aftermath of the crime by telling me that Albert Cleary had told them that I removed a gunbag or evidence from John's house. Although this was untrue, I recognized the seriousness of this claim. Law enforcement officers threatened me with jail and told me that I could be charged with obstruction and/or perjury. ADA Nicalazi told me that if I did not cooperate with her, the police would show up in my place of employment with a subpoena. ADA Nicalazi referenced a very personal issue between John and me, which was discussed only in our private letters. She told me, "You do not want this to come out of trial. I interpreted this as a not-so-subtle threat that I would be publicly humiliated by the DA if I did not cooperate." ADA Nicalazi and detectives told me that they were aware that my father was in prison and that by not cooperating with them, I was, quote, "going to make this hard on him and my family." More than any other factor, this threat influenced me to testify in the manner that they desired. Now, this thing goes on for eight full pages. She also, in her affidavit, explained how Albert Cleary lied because I was there and what he said was not true either. And she also gave a little insight into what Gettomophia was. She said, "I was around these people during this time period and Gettomophia is a name of a bunch of local kids and knuckleheads, not some sophisticated street gang." We also gave them a sworn affidavit from, if you recall, when we talked about Albert Cleary, the guy that he said was the boss of the gang who had spoken to John about, "Let's catch a body." And that's why maybe Mark Fisher was shot. And he very calmly explained under oath that I was going to college in North Carolina and I was not the leader of a gang. And John and I did not discuss how to get a body or anything like that. And then John Avedo recats. He did. And Avedo, we got all of his Rikers Island jail record. Sure enough, he was a diagnosed paranoid schizophrenia who had been taking psychotropic drugs, including Cerequil. And part of his symptoms and what Cerequil treats are people who suffer auditory hallucinations. So it turns out that the guy who says I overheard a man who can't speak, ask questions about a murder. Had a history of actually hearing voices. And seeing snakes was another one of his visual hallucinations. We had many, many meetings with their conviction review unit and they declined to overturn the conviction either on innocence or on any constitutional violations. When Kent Thompson took office, there were 25 of his honorations and that gave me so much hope. The difference between me and all those other guys is that the ADA that put them in jail doesn't work there anymore. But when it came to me, when Kent Thompson got elected, he didn't fire Nikolasi. So she did still work there. When John Avedo and Lauren Calciano and others had risk to themselves. They're contraverting sworn testimony with new sworn testimony when they went in to see the conviction review unit. What the DA did was record them, square them in, make transcripts and put them under oath. When the Brooklyn DA witnesses were interviewed, Anna Seagannick-Alozzi, others, they weren't sworn. There's no record of their interviews. And the report has never been made public. It's never been shared like so many others that they do share. It says if they viewed the JuCA conviction review as an exercise in preparing for a post-conviction motion and locking down these witnesses to cross examine them if they testify for the defense. They covered for her instead of doing justice like they should have. I mean, there was a mountain of evidence that pointed away from me and they just didn't care. They denied me and used what we gave them to try to counter me in the court. This was in late 14 and by first couple months in 15 we filed a motion. That culminated in a reversal in February of 2018. Yeah. Well, I got the reversal of the John O'Vito issue and the fact that Nikolazzi did give him benefits. My jury should have known about that. I got a unanimous decision that this case should be reversed and he should get a new trial. And then I go back down to Rikaz Island and I sit there for a year and a half. And during the discovery process, you discover this recording that was made with a guy named Ingram. ADA Nikolazzi made a recording in 2005 before the trial. And this was a guy who was probably trying to help himself somehow or he told him he had information. And he said things that she didn't want to hear. Joseph Ingram was in the same cell block as John and traveled to Bellevue for medical treatment one day with Antonio Russo. And him and Russo were on the bus chitchatting. He said Russo admitted he did this alone. That I wasn't there. Nothing to do with it. None of that. And Russo admitted to Ingram that I tried to get John to take the gun after the murder. I went to his house and he wouldn't do it. He told me leave, go, no. This tape was not disclosed prior to trial. It was disclosed to me in 2018. And when the DA was contemplating a retrial, they actually so desperate to get Juca. They sent these detectives up there to interview Russo to secure his cooperation to testify against John. And instead what he tells them is I did it alone with my own gun. But the new trial was never actualized. So for now they didn't have to contend with this evidence. In June 2019, the New York Court of Appeals reinstated the conviction that you had reversed in 2018. And John went back to state prison. And it was obvious by the decision that they didn't know the facts of the case. Although they agreed with us that Nicolazzi suppressed evidence, they argued it was not material to the outcome of trial, which is reasoning, which is mind-boggling, given that Nicolazzi's whole summation, as I told you earlier, was about how critical a witness of veto was and how credible he was and how altruistic he was and how he established the real theory of what happened. And one would think that if the defense had known the full story about his credibility and demolished him as it should have been, that would somehow have impacted the significance of his testimony. But in the five one opinion against us, they argued it wasn't material because a veto had been impeached about other things. And it was Judge Rivera in a very lengthy descent to explain why that reasoning was flawed and why his credibility on this particular issue was so important and why the behavior of the trial prosecutor was intended to mislead the judge, the jury, and defense. You don't usually see a judge of the court of appeals call out a prosecutor and essentially say you engaged in deliberate misconduct in violation of your ethical responsibilities. But again, in Brooklyn, nobody cares. They do care. It seems though about bending over backwards and doing mental gymnastics to maintain this inexplicable wrongful conviction, which it seems they did when you were able to get a hearing on this Brady material this recording that was made with a guy named Ingram in front of Justice Danny Chund. Now I have sworn statements and there's been sworn testimony from Rousseau's lawyer and from Sam Gregory that they didn't get this evidence and they would have remembered it if they did. And then we had testimony from Nicolasi who said, I can't say whether I did or didn't, but if I did, it was not purpose, but I probably did. And this was litigated a couple of years ago in front of Justice Chund who found that the DA probably disclosed it, notwithstanding the fact that Rousseau's lawyer, and Sam Gregory explained why this would have been significant evidence and steps they would have taken and had they known about it back then, but nevertheless, Justice Chund found that we did not satisfy our burden that it wasn't disclosed. And I just respectfully, because I like him personally, but the ruling on that case is just flat out 100% wrong. So that brings us to 2023. At which point I believe there was a petition to the governor to appoint a special prosecutor taking the case out of Brooklyn. But eventually, John and Doreen were looking for new blood. And they found an attorney here in Brooklyn named James Henning. And perhaps without some of the baggage from Mark's strategy, Albert Cleary, after 21 years, with no contact from John since his conviction, decided to unburden himself and go on the record. As we presume, TN Angel D. Pietro were targeted early on when they circled the wagons in an attempt to protect themselves from both law enforcement and Anthony Russo. Not only had they threatened Albert with prosecution, but also with dragging his mother in for the grand jury. In his sworn affidavit, he recalls that he was convinced that John's prosecution was inevitable and that he needed to protect himself and his family. So he cooperated and molded his statements to the state's narrative, even as their needs changed. Now he admits that the whole ghetto mafia street cred business was just made up. The John never told him about ordering Russo to show Fisher what's up, nor had he given Russo a gun. Which begs a question that has bothered me since I found out about this case. Why couldn't investigators just accept that Russo did this alone? Like he said to Encrum before trial. And again, in 2018, what's it that Cleary and D. Pietro were so buttoned up? That they got hungry for another body, thinking that someone else was involved was the mafia theory in the age of the sopranos just so irresistible. Who knows? Now, Hennings knew 440 motion, just one in evidentiary hearing, but curiously, not on actual innocence, only on newly discovered evidence, which is a shame considering that that will exclude the totality of exculpatory evidence, misconduct, and constitutional violations that we've just covered here. Instead, Judge Danny Chun has only agreed to hear Albert Cleary and Lauren Calciano's recantations. It turns out that her powerful recantation quoted earlier was never ruled on in court, so we really hope this hearing isn't just some opportunity for Danny Chun to try to ignore the entire context of John's innocence and deny him again on the grounds that these two recantations, they're not enough to overturn the conviction, get John a new trial. And I mean, take a second, imagine a new trial without Cleary, Calciano, D. Pietro, Bahari, or Avedo, just Anthony Russo saying he did it by himself with his own gun. Yeah. So if this goes as I sincerely hope, I'll be able to keep a promise that I made John back in 2022. I'm going to buy you one of those giant beers at Farrell's. You know where to find me as soon as you get home. Everyone else, stay vigilant because they only really do their dirt in the dark. And with that, I'll leave you with bettero and John's closing thoughts from the original episode. I know that, you know, in the eyes of the Brooklyn D.A. at this point, they just wish we would go away and fade away and he would do his time and Doreen would stop fighting. I believe in this 100%. I have no doubt that John was wrongfully convicted. I have confidence in his actual innocence. I believe to my core that he didn't commit this crime. And that's after reviewing all the evidence. And I certainly believe and know based on my review of the evidence of the law that his rights were violated several different ways and that this was not a trial. It was a railroading just Brooklyn style justice in the Charles Heinz administration and those skeletons are still there. It's just been too much suffering for too long. It's wrong. Powered on top of wrong. Powered on top of injustice. It's an ongoing tragedy. Not only am I being affected, but my family is being crushed from this. They took my youth for me and all the experiences I would have had. And I feel like a financial burden on my family too. I can anchor around their neck. And my mother is getting older now. I pray every day that I can come home while she's still alive and she makes it. And they took all that time away from me that I was supposed to have with her. Being in prison wrongfully is much different than being here for something you actually did. That's what me and a lot of these other guys have already been on your show haven't commented. I feel like you put them, some of them who I even never met because when you're here for something you actually did, I see it. These other guys, they get into a routine and they just accept it. And when you hear wrongfully, it's impossible for you to accept. Thank you for listening to "Rontful Conviction." You can listen to this in all the Lava For Good podcasts. One week early and add free by subscribing to Lava For Good Plus on Apple Podcasts. I want to thank our production team, Connor Hall and Kathleen Fink, as well as my fellow executive producers, Jeff Campler, Kevin Wardis, and Jeff Clyburn. The music in this production was supplied by three-time Oscar-nominated composer, J. Rouse. Be sure to follow us across all social media platforms at Lava For Good and at Rontful Conviction. You can also follow me on Instagram @itsjasonflom. Rontful Conviction is a production of Lava For Good Podcasts and association with Signal Company #1. We have worked hard to ensure that all facts reported in this show are accurate. The views and opinions expressed by the individuals featured in this show are their own, and do not necessarily reflect those of Lava For Good. Joy is essential and it's also elusive, but now. There's a new and exciting way to start your journey toward a more joyful existence. Joy 101. It's a new podcast hosted by me, Hota Kotby. If you're craving inspiration to maximize your joy, tune into these candid, uplifting, and moving on air chats. Open your free iHeartRadio app search, Joy 101, and listen now. Alright, listen up. Our podcast is called "Hey Jonas, but for your sense everyone has a podcast we wanted to as well." And we've had some incredible guests so far, and now our good friend Nile Horn is joining the show. How's it going boys? Hey Nile. You too, Joe. Drop what you're doing and listen to "Hey Jonas" on the iHeartRadio app, Apple Podcast or wherever you listen to your podcast. Everyone sees me as a food player, but before anything else I'm human. Everything here is just spontaneous, real, and genuine. I'm Javier El Chicharito Hernandez and listen to learning to be human on iHeartRadio, Apple Podcasts or wherever you get your podcasts.