Looking Back: Prosecutorial Misconduct and the Complex DiSimone Case

By Jeffrey Deskovic

“Looking back” will feature reprints of articles that Jeff previously wrote while a columnist at The Westchester Guardian, which encompass topics that are applicable here in CA as well as across the country and not simply applicable to NY.

Westchester District Attorney Janet DiFiore is clearly guilty of moral turpitude in her ongoing effort to retry Anthony DiSimone for a murder she knows he did not commit. DiSmone stands accused of stabbing Louis Balancio to death.

Regular readers of the Guardian are aware of the DiSimone fiasco covered extensively by this newspaper over the past four years. For new readers, a brief overview of the case is in order.

Louis Balancio, not quite twenty-one, and a member of the Hell’s Kitchen Gang, was stabbed to death outside the Strike Zone Bar in Yonkers in February of 1994. At first, D.A. Jeanine Pirro indicted Darren Mazzarella and Nick Djonovic  for the murder. Mazzarella restrained Balancio while Djonovic stabbed him to death. Djonovic confessed to the murder six days after he committed it.

To advance her political agenda, Pirro cut a deal with Mazzarella in 1997 in which he agreed to testify against an innocent Anthony DiSimone. In exchange, indictments against Mazzarella and his brother for two unrelated murders were tabled. At the time, Mazzarella was a federal snitch in the Witness Protection Program. The U.S. Attorney’s Office was strongly opposed to Pirro’s deal because it did not believe DiSimone killed Balancio.

Mazzarella lied to the grand jury and Pirro’s assistants suborned his perjury. Three grand juries saw through the lies. On her fourth try, Pirro persuaded a grand jury panel to indict DiSimone in December 1997. She permitted confessed killer Djonovic  to flee to Yugoslavia. She had no interest in any suspect other than one with an Italian-American surname because she was hell bent on disproving public criticism that she was soft on the Mafia because her husband, legal fixer Al Pirro, had well-known Mafia connections.

She succeeded, and DiSimone was convicted in 2000.

More than three years ago, the U.S. Court of Appeals for the Second Circuit in Manhattan released DiSimone after he served seven years in Greenhaven State Prison. Why? Because DiFiore acknowledged her office concealed 376 pages of documents, 104 boxes of evidence, and miles of audio tape from DiSimone’s defense counsel before his trial.

DiSimone’s case echoes my experience with Pirro. she knew my DNA did not match the semen in Angela’s Correa’s rape kit. Nonetheless, Pirro repeatedly resisted my attempts to have that semen tested against the statewide DNA database. She was determined to uphold my wrongful conviction at all costs and let me rot in prison for sixteen years for a crime committed by Steven Cunningham. He confessed to murdering Correa after the rape kit DNA matched him.

My conviction was engineered by assistant District Attorney George Bolen. It happened when Carl Vergarri was Westchester D.A., but Bolen remained a major player in the D.A.’s office under Pirro.

Janet DiFiore continues to insist DiSimone is guilty of murdering Louis Balancio. Why? She wants to preserve the reputation of her office and protect assistant District Attorney Steven Bender and former A.D.A. Clement Patti, the trial prosecutors involved in securing DiSimone’s conviction later thrown out by the federal court.

On Wednesday, July 21, 2010, I attended a pre-trial conference in Justice Les Adler’s court. Based on Adler’s remarks, I walked away with the clear impression DiFiore’s purpose in continuing the case is to force DiSimone to accept a plea bargain so DiFiore can save face.

Adler tenaciously held to an October 4 re-trial date, and yet conceded, “There are some discovery issues” outstanding which he characterized as “an understatement.” It remains to be seen whether DiFiore will continue to stonewall or turn over the discovery to DiSimone’s defense counsel, Murray Richman.

DiSimone was acquitted of intentional murder in his 2000 trial, but convicted of reckless or so-called “depraved indifference” murder. A key issue for re-trial is whether Adler will permit the D.A. to try DiSimone for reckless murder at all.

Prosecutors like the reckless murder charge. It gives them a fallback position when they have a weak case to convict for intentional murder. They prefer the “one from column A and one from column B” Chinese menu of murder charges because it dramatically increases their chances to obtain a compromise verdict. Where a victim has died, juries want to hold someone responsible and the defendant is the only man sitting in front of them. They tend to compromise and vote for reckless murder where the evidence does not prove intentional murder. That is what happened to DiSimone in 2000.

Louis Balancio was stabbed thirteen times. The murder laws were in a state of flux when DiSimone was convicted the first time around but clarified by New York’s court of appeals in recent years, as described in Sam Abady’s cover story on the Richard DiGuglielmo case (Guardian, July 1st , 2010). Today, a defendant cannot be guilty of reckless murder in cases where the killing was clearly intentional. It is hard to imagine how stabbing a victim thirteen times was not intentional, but instead, a mere act of recklessness—like driving drunk down a crowded street.

Jeffrey Deskovic, Esq, MA, is an internationally recognized wrongful conviction expert and founder of The Jeffrey Deskovic Foundation for Justice, which has freed 9 wrongfully convicted people and helped pass 3 laws aimed at preventing wrongful conviction. Jeff is an advisory board member of It Could Happen To You, which has chapters in CA, NY, and PA. He serves on the Global Advisory Council for Restorative Justice International, and is a sometimes co-host and co-producer of the show, “360 Degrees of Success.” Jeff was exonerated after 16 years in prison-from age 17-32- before DNA exonerated him and identified the actual perpetrator. A short documentary about his life is entitled “Conviction“, and episode 1 of his story in Virtual Reality is called, “Once Upon A Time In Peekskill“. Jeff has a Masters Degree from the John Jay College of Criminal Justice, with his thesis written on wrongful conviction causes and reforms needed to address them, and a law degree from the Elisabeth Haub School of Law at Pace University.  Jeff is now a practicing attorney.

About The Author

Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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