Janet Difiore.

The Court Report

By Richard Blassberg




Anthony DiSimone Innocent All Along!
United States District Court Southern District Of New York
300 Quarropas Street White Plains, New York

Judge Charles L. Brieant Presiding


Tuesday February 6th United States District Court Judge Charles L. Brieant issued his ruling in the Anthony DiSimone case, that had been remanded several months earlier by the Second Circuit Court of Appeals for the purpose of an evidentiary hearing into just what, if anything, the Defendant, or his counsel at trial, some seven years ago knew, or should have known, about a mountain of Brady material, evidence, that if exposed to the jury would have tended to establish the innocence of the Defendant, and likely produced a different outcome at trial.


As the District Attorney’s Office was compelled to disclose many weeks earlier, literally moments before the commencement of the hearing, there were some 372 pages from 52 boxes of evidence, including exhibits, never shared with DiSimone, or his attorney at trial, involving a confession and corroborative evidence that one Nick Djonovic had, in fact, committed the Intentional Murder for which DiSimone was convicted under a theory of Depraved Mind Murder.

Back in the summer of 2006 Judge Calabresi, of the United States Second Circuit Court of Appeals, presiding over oral arguments in an appeal by the Westchester County District Attorney from a writ of habeas
corpus which had been granted by Judge Brieant in response to Defendant’s claim that he had been convicted of a crime, Depraved Indifference Murder, for which insufficient evidence had been presented, declared, “In twelve years on this bench I have never seen such a Brady violation.”

The DA’s Office had to withdraw their opposition to Mr. DiSimone’s petition for a writ of habeas corpus in order to avoid the protracted evidentiary hearings that surely would have repeatedly demonstrated and exposed publicly, the extreme prosecutorial misconduct engaged in by the DA’s Office under Jeanine Pirro, as well as a year’s worth of activity by that same office under Janet DiFiore, desperately trying to cover up the wrongdoing. And, continuing to keep an innocent man in prison, knowing full well that another individual, Djonovic, had confessed to the murder six days after the incident that took the life of 21-year-old Louis Balancio fully 13 years ago, the DA, nevertheless, was arguing that the Court should only grant the petitioner a conditional writ of habeas corpus thus allowing the commencement of a new trial within ninety days.

Mr. DiSimone’s attorneys argued that to grant a conditional writ would have been Double Jeopardy under the provisions of the Fifth Amendment, as he had already been acquitted of Intentional Murder at trial, and he could not be convicted of Depraved Mind Murder today, under Policano, as he was seven years ago. Judge Brieant, additionally, pointed to the fact that “the Brady materials have raised very serious issues of actual innocence,
clearly rising to the level of reasonable doubt as to whether DiSimone, as opposed to Djonovic, was the killer.” And, despite showing great kindness to the present district attorney, Brieant, did, however, note, “The only purpose of a remand to leave this issue for further litigation in the state court, (as DA DiFiore was moving the Court to do) when it could only come out one way, is to impose on the Defendant and continue his unconstitutional incarceration into the foreseeable future.”

Judge Brieant, always a gentleman, fully mindful of other cases currently in the appeals process or likely to be in the future, that may very well have been wrongfully prosecuted as well, and, wishing to encourage the DA’s Office to be more forthcoming and more fair, was indeed kind and gentle in his handling of the present administration of the District Attorney of Westchester County’s Office. Even when he emerged from chambers after a spontaneously called conference, many weeks earlier, when Assistant DA Livingston, moments before the start of the mandated evidentiary hearing, confessed to the presence of a mountain of Brady material, the great judge thoughtfully emerged with words of kindness rather than scorn.

His kindness was intended to encourage frankness, not only from the DA’s Office that, for twelve years, and often engaged in tyrannical, criminal practices, but was also intended as a message to all prosecutors entrusted with the solemn responsibility of bringing about justice by not only prosecuting the guilty but protecting the innocent.

Judge Brieant ruled:

“Accordingly, this Court, as a matter of discretion orders the entry of a Final Judgment which shall grant an unconditional writ of habeas corpus to Mr. DiSimone, provide for his release, bar his retrial, dismiss the indictment, and expunge the conviction on Count II from the record.”

He further declined to issue a stay pending appeal, but did stay the execution of his ruling for 20 days “to permit the District Attorney, if so advised, to seek a further stay pending appeal from our Court of Appeals.”

Analysis:

District Attorney Janet DiFiore would be well advised to shut down any further effort to obtain a conditional writ of habeas corpus. Under the circumstances, in light of the extreme heights of prosecutorial misconduct engaged in by her predecessor, and protected for more than a year by her own office, any further pursuit of Mr. DiSimone would only serve to confirm the already obvious conclusion that she is essentially of no different stripe than Mrs. Pirro, a district attorney she once rated with an A-plus.

DA DiFiore must by now recognize the wisdom of the adage, “Be careful what you wish for.” Anxious as she was to become District Attorney, and willing to do what many would not have done to rise to that throne, she must now endure a ‘rough ride’, one that was however clearly foreseeable, particularly by one who had spent several years in the Office. Surely, upon taking office more than a year ago, Ms. DiFiore had to have acquainted herself with those high-profile cases on appeal, and had to have known that there were 52 boxes and 372 pages of Brady material that had been kept from Anthony DiSimone, an innocent man, for 13 torturous years.

Given the double mandate imposed upon every prosecutor, and woven into the trust invested by the People in their sitting prosecutors, to both “prosecute the guilty, and protect the innocent,” how could she perpetuate the fraud that Jeanine Pirro, in her sick, self-promotional, agenda had perpetrated against Mr. DiSimone and his loved ones. Why did it not occur to her, before Defense attorneys skillfully put her back to the wall, that what she discovered regarding the wrongful prosecution, and conviction of Anthony DiSimone needed to be set right, as
only she could have? Indeed, Judge Brieant, a prince of a judge, was most gentle and kind in referring to such a criminally malicious scheme as was worked against Mr. DiSimone by DA Pirro, and defended by DA DiFiore, as a “botched job.”

What ADA Clem Patti, and ADA Steven Bender knowingly did to Anthony DiSimone, and his family, in order to continue to collect their County-paid salaries, and their retirement benefits can only be described as cruel and inhumane. Currently in private practice, reached at his office for a comment, Mr. Patti’s response was, “I have nothing to say about it.”

The time has come when Congress must consider legislation that will reign in those who are capable of such prosecutorial misconduct. Civil remedies, even millions of dollars, cannot replace the life, the years, stolen by such mindless, and venal behavior, nor such ruthless, intentional betrayal of the public trust. Prosecutors, both State and Federal, guilty of engaging in such prosecutorial misconduct must be held accountable, and exposed to both financial and incarcerative penalties without the “safe haven” of any statute of limitations.

Now that it is evident that Anthony DiSimone did not murder Louis Balancio, the District Attorney’s Office of Westchester has a solemn obligation to publicly apologize to both the DiSimone and the Balancio families for having perpetrated and defended such a cruel hoax for so many years. And, furthermore there is an obligation to the People of Westchester, to bring to trial, and to justice, Nick Djonovic, if, in fact, he is still living and can be apprehended.