The right eloquence needs no bell to call the people together and no constable to keep them. ~ Emerson

Monday, December 8, 2008

Valiant or Vigilante?

The Associated Press has taken note of an article, entitled “Mother Justice,” written by Christopher Ketcham in the January 2009 issue of Vanity Fair. It tells the story of Doreen Giuliano and her extraordinary efforts to save her son from a life behind bars for a murder conviction. The background of the case is as follows.

John Giuca was a twenty-year-old kid from Brooklyn with a high-school diploma and looks good enough to land him bit parts in several movies. He also had a history of questionable run-ins with police. He hung out with a tough crowd, self-styled as the “Ghetto Mafia.”

One night in 2003, Giuca met nineteen-year-old Mark Fisher during a party Giuca hosted while his parents were out of town. Fisher was found dead on the street nearby at 7 AM the next morning, shot five times and wrapped in a blanket owned by Giuca’s parents.

Giuca claimed he gave Fisher the blanket and offered him a place to sleep because he was drunk. He did not know why Fisher went outside or who shot him. The Brooklyn District Attorney maintained Giuca took offense at Fisher’s behavior during the party and gave fellow gang member Antonio Russo a .22-caliber handgun, ordering him “to go show that guy [Fisher] what's up.”

During Giuca’s and Russo’s trials, prosecutors produced four witnesses, each of whom told differing stories. One said Giuca confessed to him that he had directed Russo to commit the crime. Another said Giuca told her he had lent the gun to Russo but did not order the killing. Still another, a jailhouse informant, said Giuca admitted to pistol-whipping Fisher and standing by as one of his friends pulled the trigger.

The jury in the Russo case took two days to find him guilty as the triggerman, nearly deadlocking. Giuca’s jury took only two hours to convict him. Both defendants received twenty-five years to life in prison.

Doreen Giuliano, Giuca’s mother, sat in the courtroom listening, day after day, and what she heard did not add up to a guilty verdict. Giuliano found she could not let go of her misgivings. Over her husband’s initial objections and finally with his support and aid, she decided to “go undercover” and see if she could learn about possible inappropriate behavior among the jurors in her son’s trial.

Since most of her potential targets were men, the forty-six-year-old Giuliano set about to transform herself. She slimmed down at the gym, dyed her hair blonde, and acquired a tan and sexy wardrobe.

She assumed a fake identity, Dee Madison Quinn, a recent California transplant to Brooklyn, replete with a fake ID, phony business cards and a cell-phone account. Then Giuliano rented an apartment that she furnished sparsely but plausibly and there installed an expensive hidden recording device procured from an espionage-supply store in Manhattan.

After a couple false starts with other jurors, Giuliano honed in on Jason Allo, a thirty-one-year-old construction worker. Two things made her suspicious. During the trial, Giuliano’s brother reported he overheard Allo telling fellow jurors he really wanted to smoke a joint. That did not strike her as someone taking his responsibilities seriously. More significantly, she recognized him as someone she had previously seen in her neighborhood. If he knew her son, he should have been ineligible to serve as a juror.

Giuliano began riding a bike near places she knew Allo hung out. They soon met, seemingly by chance, and she charmed her way into a relationship with him.

A pattern emerged in which Giuliano invited Allo to her phony apartment, where she cooked him dinner and the two would talk and drink wine late into the night. She knew he liked pot, so she bought pot from him, bought pot for him, and smoked pot with him.

Their romantic involvement never escalated beyond flirting because Allo felt no strong sexual attraction to her. However, Giuliano is clear she would have done anything required to help win a new trial for her son.

Over many months, Giuliano learned three key things that called the appropriateness of Allo as a juror into question.

Allo admitted he knew Giuca by reputation and that he hung with a “bad gang,” despite filling out a pre-trial questionnaire in which he swore the defendant and witness were unknown to him. He defied the judge’s orders to avoid news coverage about the case and went out of his way to learn more about Giuca. Most important, his prior knowledge and the additional information he obtained had prejudiced him again Giuca.

Allo told Giuliano he had “been the first” to vote guilty, when many of the other jurors were still expressing doubts over the conflicting evidence. “Technically, by law, I shouldn’t have even been in that jury,” Allo bragged. And Giuliano got it all on tape.

At this point, Giuliano came out from undercover, hired a lawyer, and filed a motion demanding that the verdict in her son’s trial be set aside. The Brooklyn District Attorney is reviewing the motion.

The chances of ultimately overturning Giuca’s conviction remain slim but they would be nonexistent if not for his mother’s astounding efforts. That is at the core of the issues I see this story raising. No one can deny she is an amazingly dedicated parent but did she cross ethical and legal lines in her zeal to exonerate her son? I see several compelling issues arising from Giuliano’s motivations and actions.

First, there is the question whether Giuliano had the right to tape her conversations with Allo? The legal standard, as I understand it, allows recording public conversations because, by their nature, they are subject to others overhearing them, while private conversations, by their nature, require consent to be recorded.

In at least one instance, Giuliano got Allo to admit wrongdoing to another person, in addition to herself, at a bar. However, she recorded most of his confessions at her apartment when they were alone together.

New York is among the thirty-eight states that allow single-party consent to tape a private conversation. Giuliano’s lawyer insists she “had a right to record those conversations” under state law.

It is beyond dispute that Allo conducted himself unethically, perhaps criminally, as a juror but I wonder if his lawyers could make a plausible argument that Giuliano did the same obtaining information from him. The objection here is not the presence of a wire as a violation of privacy but the degree to which Giuliano went to create an atmosphere of intimacy and trust between them.

She spent months plying Allo with food, alcohol, and drugs, as well as sympathetic personna, to create the illusion of herself as a sounding board. He told her things not simply because they were alone but because he saw her as loyal to his confidences.

“I'll tell you this but I would never tell anybody else,” he began when he first opened up to her about his misbehavior as a juror.

There is also Giuliano’s use of sex as a lever to obtain information. Allo may well have been more willing to strike up a friendship with an older but sexy “party girl” – the image Giuliano assumed – rather than with an sympathetic mother figure but this also calls into question how much more he might have engaged in bragging and exaggeration about his jury exploits. Although he did not want to sleep with Giuliano, there was sexual tension between them. He clearly enjoyed and felt flattered by her attentions to him.

Much of the objections raised above can be countered by pointing out they are no different from methods routinely used by undercover police officers. This is true but raises the second serious issue in this affair. Did Giuliano cross the line from investigation into vigilantism with her pursuit of jurors?

Granted, she did not start from a desire to extract vengeance on Allo but she was determined to override the guilty verdict obtained by authorities. In some ways, the non- specific nature of her suspicions makes the extensiveness and fanaticism of her measures unusually unsettling. Were her attempts to win another trial for her son motivated by a desire for justice or to circumvent justice by any means necessary? The results she obtained were serendipitously fortunate for her cause but did they justify her means?

Giuliano said there was nothing she would not do and her actions appear to bear out her commitment on this point. How far might she have gone? The possibilities here are not limited to how much she did or might have harmed Allo or anyone else in her quest, physically or psychologically, but include her own welfare too.

A third issue is that Allo is not the sole reason for Giuca’s conviction. Eleven other assumedly unbiased jurors voted against him too. During closing arguments, the District Attorney argued, “This case begins, continues, and ends with John Giuca. All roads in this case lead back to this defendant. If it were not for this defendant, Mark Fisher would still be alive today.”

If Giuca gave Russo a gun or told him to murder Fisher or both, then he is guilty of far more serious wrongdoing than Allo lying on a pre-trial questionnaire and deserves to remain in prison. Given the publicity generated by this case and sympathy felt toward Giuliano, Giuca might receive as much positive jury bias at retrial as he did negative bias from Allo the first time around. It would be unfortunate should he win release in a retrial based on this, rather than the facts of his case.

Finally, the crux of Giuliano’s evidence is that Allo committed misdeeds while attempting to judge the guilt or innocence of her son. Turnabout is fair play. Should the Brooklyn D.A. charge Giuliano with possession of marijuana, since she admits to purchasing it and smoking it with Allo during the course of her sting operation?

The bottom line is that Allo admitted to biased behavior as a juror and this ought to be enough to win Giuca a new trial. Giuliano should feel happiness for her son’s second chance and pride in her ability to prevail against daunting odds. Then, she ought to seek psychological help dealing with what is an understandably stressful ongoing event in her life. Despite the eventual validation of her suspicions, she proceeded more from a sense of obsession than objectivity, more under a force of compulsion than control.

Getting the right treatment/support might turn out to be especially critical for Giuliano if Giuca fails to receive a second trial or is given one and then loses it as well. How will she ever be able to finally let go and find acceptance, given the exceptional degree to which vindicating her son has already driven her?

Perhaps there is yet one more issue to consider. The question will inevitably arise whether this yet another empowered woman being denigrated when she ought to be congratulated, especially since she used her own sexuality as a means to bring down a male target? Would anyone raise similar issues to the ones I have in this post about a father driven to similar ends and employing similar means?

I have to admit that I think there is a good chance a man might not be subject to the same scrutiny and culpability. However, I must counter in response that shouldn’t he ought to be? I think the answer to that question is “yes.”

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