I hadn’t thought about the DiGuglielmo case in a long time, until I saw Nathan Burney’s post on the outcome of the appeal of Richie DiGuglielmo’s 440.10 motion to vacate the conviction based upon two witnesses who, naturally long after the trial, came forward to say that the police had pushed them to change their testimony.

This was a highly racially charged case, with DiGuglielmo accused of shooting a black man, Charles Campbell.  To make things worse, Richie DiGuglielmo was an off-duty cop.  Nathan’s post provides a detailed description of the facts of the case, but the crux of the defense was that DiGuglielmo claimed that he shot Campbell as he was about to swing a bat and strike DiGuglielmo’s father.  The problem was that two neutral witnesses watching the incident testified otherwise.

Two witnesses saw it from inside a truck parked right there. After the shooting, they made statements to the press and to the police that Campbell was still swinging the bat at the old man, had swung at his head, and was about to swing again when he got shot.

At trial, however, they testified differently, telling the jury only that Campbell was holding the bat in a batter’s stance, but was not swinging the bat, when DiGuglielmo shot him.

The then-Westchester County District Attorney, now TV judge of the slimiest sort, Jeanine Pirro, seized the opportunity to try the case in the media, as was her wont.  It was lurid, racist, horrible.  Every cliche that could be used to obscure the facts was.  Pirro had big plans for herself, especially after her husband went to prison.  Apparently, his was the only crime about which she was totally unaware. How odd.

The Appellate Division, Second Department, is one of those very strange courts, where the outcome can vary wildly based on the composition of the bench.  This bench wasn’t a good one for DiGuglielmo.  Nathan sums up the decision:

It’s a horrible decision, and we’re frankly surprised that it made it out of the draft stage in this form.

Here’s the logic, in a nutshell:

(1) Based on the testimony at trial, the jury must have concluded that the father was being the aggressor, and that the victim was backing away, and most importantly that the victim was not swinging at his head.

(2) The new evidence contradicts those conclusions. The new evidence is that the men in the truck saw the victim swinging at the father’s head, and was about to do so again. The new evidence is that they made multiple statements to that effect on the day of the shooting, but only changed their stories after several days of police pressure to do so.

(3) Because the new evidence is contrary to what the jury concluded, it must be something the jury didn’t believe. Therefore, the jury wouldn’t have believed this new evidence. And so the new evidence wouldn’t have changed the jury’s mind.

That’s circular reasoning. The jury didn’t believe the victim was about to take a swing at the old man. Therefore, the jury wouldn’t have believed evidence to the contrary. So it wouldn’t have made a different to introduce such evidence.

I’m not as clear that I would describe the reasoning as circular, as much as they’ve written the significance of witnesses out of the script.  The implicit finding that the senior DiGuglielmo was the aggressor, not Campbell, isn’t troubling in itself, but troubling in that the jury arrived at it based on less than truthful testimony at the hands of the police. 

The Second Department’s conclusion, that the truthful and accurate testimony of witnesses on the central point of the defense, wouldn’t change the outcome, seems horribly (or typically, according to your perspective) cynical.  These independent witnesses provided testimony that not only failed to support the defense, but supported the prosecution.  While there’s no ironclad guarantee that it would have resulted in acquittal, that’s not the test.  It need only offer a reasonable probability.  Given the critical nature of the testimony, and its importance to the defense at trial, this seems manifest.

Yet the court held :

In sum, considering the trial and newly discovered evidence in combination, the circumstances did not support an objectively reasonable inference that a deadly strike with the bat was imminent. Had the jury heard the evidence of undue police pressure on witnesses and fully credited the October 3rd statements of Dillon, O’Donnell, and White, the People still would have disproved the defense of justification beyond a reasonable doubt. The defendant, thus, failed to meet his burden of establishing the probability that, had the newly discovered evidence been received at trial, the verdict would have been more favorable to him

What makes little sense is the conclusion that the prosecution would have disproved the defense, despite the truthful testimony, beyond a reasonable doubt.  There is no basis whatsoever to support this conclusion, since it’s all about the evidence.  The testimony of these two men was the evidence. 

Most troubling about this strange abuse of reason is that the false testimony was induced by the police, a fact avoided by the same reasonable probability test so that the Brady denial can be sloughed off.  This aspect contributes to the reduction of evidence to a farce on the back end of the trial.  It’s oh-so-critical when it serves to impugn and convict up front, and it’s so inconsequential, nearly worthless, afterward.

I’m likely less convinced than others that DiGuglielmo was justified in firing the shots that killed Campbell.  I’m a big believer that shooting and killing people is something to be avoided if at all possible, and I suspect that it was quite possible here that the day could have ended with no one dead.  The sense of imminence and alternatives is largely in the eyes of the guy with his finger on the trigger, and I’m hardly clear that Richie DiGuglielmo’s choice wasn’t terribly wrong.

But I still expect him to be tried on truthful testimony, and it’s incomprehensible that the addition of critical neutral testimony of Campell swinging the bat at the senior DiGuglielmo, and the subtraction of critical neutral testimony that Campbell wasn’t threatening the old man with a bat about to take his head off, can be dismissed out of hand.

Either way, the only person happy about this is TV Judge Jeanine, who dodged another bullet in her quest for validation.

Postscript: A bit of irony is that Marty Tankleff, whose decision is mentioned in passing by the Second Department, is a paralegal in Nathan’s firm.  It appears that he is also a supporter of Richie DiGuglielmo.  While Tankleff, as noted at the end of Nathan’s post, knows a little something about wrongful convictions, and no doubt brings zeal to his efforts, I’m not sure that it doesn’t also bring a lack of detachment when it comes to the ultimate decision of whether DiGuglielmo was right or wrong to pull the trigger.  It’s good, however, that he’s found a place to put his efforts to good use, and I wish him well.