Mark Fisher, a star football player at Fairfield University, was fatally shot in a quiet Brooklyn neighborhood in 2003. Two men were convicted in his killing. One of them is fighting to prove his innocence. Will he get a chance to prove it?
John Giuca and Mark Fisher had never met before the night of Oct.12, 2003. Giuca was a college student from Brooklyn studying criminal justice. Fisher was a star football player at a Connecticut university. But their lives would forever be intertwined after meeting while out at a bar on Manhattan’s Upper East Side. Because by the following day, Fisher would be dead, and Giuca would be arrested for his killing.
Residents were awoken by the sound of gunfire just before 7 a.m. that Sunday morning. Fisher, 19, was found dead sprawled in the driveway of a home on Argyle Road in Prospect Park South, a quiet Brooklyn neighborhood. Giuca invited a few friends after a night in the city, knowing his parents were out of town.
The after-party turned deadly when a lifeless Fisher was discovered with several gunshot wounds to his body, just a few blocks away from Giuca's home. One neighbor recounted looking out their bedroom window and saw a car speed away, The New York Times reported.
Giuca and another man, Antonio Russo, were both convicted of federal murder in July 2005 in connection to Fisher's death. Russo was charged with the actual shooting and Giuca for allegedly ordering the killing and providing the murder weapon, according to the Times.
Russo told detectives, who were sent to interview him in March 2018, that he and Fisher walked several blocks away from Giuca's home. Russo also allegedly confessed that the "gun was his," the Daily Beast reported.
Russo said he then took the gun from his waistband, pointed it and Fisher and "told [him] to run," the outlet reported.
Both pleaded not guilty and they had separate trials that each resulted in guilty verdicts. They were sentenced to 25 years to life in prison.
Giuca Maintains His Innocence From Behind Prison Walls
For many years, Giuca has maintained his innocence from behind prison walls, but with little luck proving his case in the court system. Kings County Judge Danny Chun rejected a 2015 motion filed by Giuca's lawyer, Manhattan defense attorney Mark Bederow, to have his conviction thrown out claiming key evidence had been suppressed. And, in 2018, a unanimous appellate court ordered a new trial for Giuca, but that was eventually overturned in the state's highest court in 2019, the New York Daily News reported.
But in 2018, a tape was released by the prosecutor's office revealing a jail informant, Joseph Ingram, telling a detective and prosecutors on the case in 2005 that Russo had confessed to Fisher's murder. That tape was reportedly not turned over to Giuca's attorneys at the time of the trial.
In the most recent twist of the legal saga, Judge Chun of Kings County Court agreed last year to reexamine Giuca's murder convictions after the potentially exculpatory evidence surfaced.
The evidence on Giuca's case was "concealed from Giuca for more than 13 years," Giuca's attorney Mark Bederow wrote in a statement to Inside Edition Digital, therefore Giuca should be granted "a new and fair trial."
This Is the Second 440 Hearing in John Giuca's Case. It Will Determine Whether New Evidence Can Warrant a Re-Trial
Bederow alleges the prosecutor on the case, Anna Sigga-Nicolazzi, concealed the 2005 tape recording, which could have exculpated Giuca of his charges, according to a filed motion to dismiss the charges.
Chun asked to hold a 440 hearing to "determine whether or not the people either suppressed, or failed, or did not turn over, the tape in question," he said in March 2020.
In New York, a 440 hearing is where a judge decides whether new evidence is enough to merit a new trial for a defendant.
Because of the coronavirus pandemic, the 440 hearing had been postponed numerous times. But on Thursday, the hearing to discuss the tape recording in question began.
Detective James McCafferty, a retired detective who became involved in Giuca's case six months after the murder, testified at Kings County Court Thursday morning. Det. McCafferty worked on the Brooklyn South Homicide Squad in 2003, according to reports. He retired from the NYPD in 2019.
Retired NYPD Detective Says He Was In Room With Anna Sigga-Nicolazzi During Tape Recording
McCafferty recounted when Ingram, the informant in the audio, told him and Nicolazzi that Antonio Russo had confessed to the crime and cleared Giuca of any involvement with concealing the murder weapon. McCafferty testified in court that he was in the room with Nicolazzi when Ingram gave his recorded testimony.
Bederow, a Manhattan defense attorney, played the audio in court last month. In the audio, Ingram said he and Russo, both inmates at Riker's Island, met on a bus to Bellevue hospital in Manhattan where they were both scheduled to see a hematologist in July 2005.
Russo and Ingram ended up rooming together at the hospital, and the two became friendly.
In the recording, Ingram told Det. McCafferty and Nicolazzi that Russo confessed, while at Bellevue, to killing Fisher. Ingram said Russo told him that after he shot Fisher, he went to Giuca's home, which was a few blocks away from the murder scene.
Russo allegedly told Ingram that after the shooting, he then asked Giuca to dispose of the murder weapon, but Giuca refused, according to court documents.
Ingram was named on a witness list created by Nicolazzi at the time of the trial, but McCafferty said last month that he and Nicolazzi both agreed that Ingram would not make a good trial witness because the information he provided was "unreliable."
They reasoned that Ingram "didn't remember where he got the information from," Det. McCafferty said.
Now that the tape has resurfaced, Bederow believes there is still a fighting chance to reverse Giuca's murder conviction.
Prosecutor Anna Sigga-Nicolazzi has previously claimed that with the growing pile of evidence during the trial, she did not remember whether she turned over the Ingram tape.
“I cannot say with any certainty whether or not, either prior to or during the defendant’s trial, I provided...an audiotape or transcript of Ingram’s statement,” Nicolazzi said in a 2019 sworn statement, the News reported.
The Brooklyn District Attorney's office said that Ingram's statement was hearsay and would not have changed the verdict on Giuca's trial.
Nicolazzi Retired From the District Attorney's Office in 2017 and Has Moved To a Career in Television. She Hosts the True-Crime Show, "True Conviction."
Nicolazzi retired from the District Attorney's office in 2017 and is now the host of a true-crime show called "True Conviction."
The former prosecutor sat on the stand earlier this month during a two-day testimony where she maintained that Joseph Ingram's sworn testimony seemed not "credible" and "implausible."
"I didn't know exactly how he would play it, because while I did not believe all of what he was saying, certain things I believed to be true, certain things I didn't," she testified. "I thought that the defense may have tried to call him."
Nicolazzi described herself in court as "meticulous" and "thorough."
She also said that she "had the intention of disclosing" the Ingram tape –– but when asked, she could not answer whether or not the tape was actually handed over to Giuca's trial lawyer at the time, Sam Gregory.
Ingram was interviewed by Nicolazzi just six weeks before Giuca's September 2005 trial.
"I cannot say with any certainty whether or not either prior to or during the defendant's trial I provided the defendant's attorney an audiotape or transcript of Ingram's statement...or otherwise inform [his attorney] of the existence of that statement," Nicolazzi testified.
During the trial, Nicolazzi provided Gregory a witness list where she incorrectly named Joseph Ingram as "James" on her witness list. She admitted to believing his name was "James Ingram."
Nicolazzi said that Ingram used his name interchangeably and used "different aliases" including "James" and "Joseph."
While on the stand earlier this month Nicolazzi also added that she believed Ingram's statement was ordered by Giuca. She also testified that Ingram's statement would "be favorable to the defendant," according to the transcript.
Trial lawyer Sam Gregory, who represented John Giuca in 2005, testified last week that although he received a witness list he never heard about the Ingram tape.
In fact, the first time he listened to the audio recording was in 2018, when Brooklyn prosecutor Melissa Carvajal discovered the files.
Gregory says had he known about the tapes, he would have found a way to interview Ingram as a potential witness.
When asked if she found any proof of disclosure of the evidence to Giuca's defense, Carvajal answered, "no, I wouldn't say there was any proof of disclosure."
Carvajal had begun preparing for a potential retrial of Giuca in Spring 2018 when she excavated old files –– including the allegedly never-revealed Ingram audio recording.
Carvajal handed over the audiotape to Mark Bederow, Giuca's current lawyer. She recently left the Brooklyn District Attorney's office.
