Echoes of Injustice: Second Department Sends Cop Back to Prison in Racially-Charged Case from the 90s

When we first moved to NYC in 1997, we thought we knew what racial tension was. After all, we’d grown up in various parts of the South and out West, and had seen and heard quite a lot of invidious prejudice. But we hadn’t seen anything, by comparison. We’d seen dislike and resentment out there, but the vitriolic race relations of the 50s and 60s had died down by our childhood in the 70s and 80s. We weren’t prepared at all for the outright hatred various groups expressed for each other in the grand metropolis. That first year here in the Manhattan DA’s office was an eye-opener. The city, especially the outer boroughs, seemed less like a melting pot than a petri dish, with virulent strains of hatred all fighting each other. Many working-class whites routinely used epithets one almost never heard in the South any more, and openly despised black people. Lots of black people hated white people right back, and seemed to have a bizarre animus towards jewish people, who we’d always thought of as champions of civil rights. African immigrants hated African-Americans, who they saw as lazy and as giving them a bad name. Every ethnic group seemed to have a derogatory name that everyone else used.

And this internecine feuding was still turning to violence in the ’90s. We’d never heard about the Howard Beach or Bensonhurst dramas of the late ‘80s, but here in the city that tension was still high. Al Sharpton hadn’t yet faded into irrelevance, and it seemed like he and his protestors spent half their time marching in circles somewhere or other. Right before we started at the DA’s office, the Abner Louima case happened, leading not only to renewed distrust of the NYPD, but even more racial tension. And just when that started to die down, the Amadou Diallo shooting flared it up again.

It was shocking to us. But to our friends who’d grown up here, it was just normal background. It was just the way things were.

So that’s what the culture was like in 1996, when a fight between some Italian men and a black man over a parking spot turned violent, the black man swung a baseball bat at an older Italian man, whose son — an off-duty cop — shot the black man to death.

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On October 3, 1996, in the suburb of Dobbs Ferry just north of the city, a black man named Charles Campbell parked his Corvette at a deli, in a spot reserved for deli customers. But he went into a different store across the street. When he came back, he saw the owner of the deli placing a sticker on the Corvette. Campbell got angry and started a fight. The deli owner, his son Richard DiGuglielmo (the off-duty cop), and a third man (Robert Errico, the cop’s brother-in-law) wound up fighting with Campbell.

The fight ended, and Campbell walked back to his Corvette. During the fight, his shirt had come off, and the deli owner brought it over to him while his son and the other man went back towards the deli. But then Campbell opened the back of the Corvette, grabbed a metal baseball bat, and kneecapped the old man with it.

The old man went after him to try to take the bat away, while his son ran into the deli to get a pistol. Campbell went to the other end of the parking lot, swinging at the old man with every step. By this time, the old man had taken a crack to the hand, as well. Several witnesses saw Campbell threatening with the bat, now, holding it in a stance like he was about to swing.

At that moment, DiGuglielmo ran up with the gun and shot Campbell three times, killing him.

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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 trial was a mess. The local district attorney, Jeanine Pirro, was a publicity hound (and more than a bit of an embarrassment to those of us in other DA’s offices), and tried the case in the press, basically calling this a hate crime and accusing the DiGuglielmos of being racist. She dearly wanted to get a cop convicted here. After the defense rested, the prosecution figured out that they weren’t going to win on the charge of intentional murder, and switched their theory to “depraved indifference” to children who were on the street near the deli.

Forgetting that the prosecution’s job is to prove what really happened, and not plead in the alternative two different ways it might have happened, they asked for both theories to be presented to the jury as alternatives. The jury threw them a bone, convicting DiGuglielmo of depraved-indifference murder, not realizing that it carries the same penalties as intentional murder. DiGuglielmo got 20 years to life, for defending his father.

The appeals were a mess, too. We’ll spare you the details.

Fast-forward to 2006. The two key witnesses from the trial, who had witnessed the events from their truck, had now come forward with evidence that they had been pressured by the police to change their stories, during a course of police interrogation in the days following the shooting.

This was clearly new evidence that would have had a big impact on what the jury would have thought. And it was certainly evidence helpful to the defense that had not been disclosed by the People. So at the very least there was a clear Brady violation. And maybe it counted as newly-discovered evidence that would have resulted in a more favorable verdict.

So DiGuglielmo filed a CPL 440.10 motion to vacate the conviction. The court, to its credit, found this to be the right kind of newly-discovered evidence, and certainly Brady material.

In a detailed, 69-page decision, Judge Bellantoni vacated the conviction, and on September 19, 2008, DiGuglielmo was released from prison.

The DA’s office appealed.

This week, DiGuglielmo was ordered back to prison.

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What happened?

What happened is, the Appellate Division screwed up. You can read the opinion here, and see for yourself.

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.

And how is that not Brady, at the very least?

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And compare this brief, careless decision with the more lengthy one below. Say what you will about it, Judge Bellantoni’s decision is not lacking in analysis of the law and the facts. And he clearly made every effort to do it right.

The judiciary must not take on the coloration of whatever may be popular at the moment. We are the guardian of rights, and we have to tell people things they often do not like to hear.” – Hon. Rose E. Bird. Our oath requires that we make the right decisions, even if difficult and unpopular. It must be stated that this Court, in its above discussions and ultimately, its decision in this case, certainly does not intend to disrespect the memory of Charles Campbell or the Campbell family. This decision was not made lightly. Indeed, for the past two years, the Court has struggled with, and considered, all of the arguments and positions connected with the issues in this case and it’s ruling is consistent with the undercurrent of the criminal justice system – that where an injustice has occurred, all benefit of the doubt, consistent with current case law and precedent, must be afforded an accused. Thus, for the factual and legal reasons stated above, this result is mandated by the principles of justice.

(Decision and Order, Sept. 17, 2008 at 67.)

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And it’s just a slap in the face for the Appellate Division to cite to People v. Tankleff, 49 A.D.3d 160, 180-181, in support of its decision here. In Tankleff, the defendant showed there was a reasonable probability that, had all of the new witnesses testified at trial, the outcome would have been different, and the Appellate Division granted Tankleff a new trial. Here, the same thing happened. So at a minimum DiGuglielmo ought to have been awarded a new trial.

Instead, the court simply sent him back to prison, without even giving a jury the opportunity to evaluate all of the new and old evidence and witnesses.

This decision sends an awful and disturbing message: Innocence is irrelevant.

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This week’s decision is one of the biggest screwups we’ve seen in a long time. And the result is tragic.

Think about it. The man was wrongly convicted in the first place, after a show trial making him a scapegoat of the racial politics of the day. He spent 11 years in prison, unjustly. But then justice finally prevailed, and he got his freedom back. He got to return to life and his family. And then, with a callous stroke of the pen, a badly-reasoned decision rips him away from that cherished freedom, and tosses him back into prison.

Going in the first time was bad enough. We can’t imagine how much worse it must be this time.

Badly done, Appellate Division.

[Our paralegal, Marty Tankleff (no stranger to unjust convictions himself) contributed to this piece.]