Judge recuses himself from high-profile Brooklyn case of alleged wrongful conviction

April 14, 2015 By Charisma L. Troiano, Esq. Brooklyn Daily Eagle

Brooklyn Supreme Court Justice Alan Marrus, Eagle file photo by Mario Belluomo

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A Brooklyn judge who presided over a high-profile murder case — now turned into a case of suspected wrongful conviction — has recused himself from all upcoming proceedings on the case.

Last week, citing the appearance of bias against a defendant, Brooklyn Supreme Court Justice Alan Marrus recused himself from a pending motion to vacate, filed by convicted murderer John Giuca. Marrus was the original judge who presided over Giuca’s 2005 murder trial and sentenced the then-21-year-old Giuca to 25 years to life for the murder of a young college student.

In March, Giuca — via his attorney Mark Bederow — filed a Criminal Procedure 440.10 motion to vacate his conviction. In it, Giuca alleged that prosecutorial misconduct by the Brooklyn District Attorney’s Office, during Charles J. Hynes’ administration, led to his wrongful conviction for the murder of college student Mark Fisher.

Without prompting by either the prosecution or defense teams, Marrus wrote to Brooklyn Justice Matthew D’Emic, administrative judge for Kings County Supreme Court criminal term, seeking reassignment from the case.

To prevent “the least bit appearance of bias in deciding this new application (the 440.10 motion), even though I am confident I would be completely fair, I request you reassign this motion,” Marrus wrote in his recusal request.

It is common practice for a 440.10 motion to vacate to be assigned to the original trial judge, Michael Farkas, president of the Kings County Criminal Bar Association, advised the Eagle.

Bederow, Giuca’s attorney, appeared unfazed by Marrus’ act.

“I have no comment on Justice Marrus’ decision to recuse himself,” Bederow said in an email response to the Eagle. “It makes no difference to us who the presiding judge is; we are confident that we will prevail on our motion and demonstrate that John Giuca was deprived of a fair trial.”

Mark Fisher, the murder victim, was a student at Fairfield University when he was killed in 2003. He had gone barhopping in Manhattan and ended up fatally shot in the Prospect Park South section of Brooklyn.

In 2009, Giuca’s attorney filed a motion to vacate, citing results from an undercover investigation conducted by Giuca’s mother, Doreen Giuliano. Giuliano resorted to a curious tactic of concealing her identity — including losing weight, dying her hair blond and purchasing provocative clothing — in an attempt to befriend a juror who deliberated on her son Giuca’s murder case. Giuliano claimed that during her yearlong investigation the juror admitted wrongdoing and a bias against Giuca. Giuliano captured most of the supposed evidence on audiotape.

Marrus, at the time, declined to hold a hearing on the post-verdict investigation by Giuliano, and in a 17-page statement dismissed the motion to vacate. In it, Marrus reprimanded Giuliano for “vigilante” investigation and an unwarranted invasion of a juror’s privacy.

“Every juror who has served or will serve in a case should be alarmed by the conduct of the defendant’s mother in this case,” Marrus wrote in his 2009 memorandum on dismissal. “The extraordinary actions of Giuliano to invade the privacy of jurors require a decisive response which sends a clear message that New York courts will protect its jurors,” the judge continued.

In his request to recuse himself from Giuca’s most recent motion to vacate, Marrus cited a bias that may be inferred from his prior decision regarding Giuca’s mother.

“[A] reasonable person in the defendant’s shoes would certainly remember how this judge castigated his mother in that decision,” Marrus wrote in his recusal letter to the court. Marrus also noted that his ruling in the case was upheld on appeal.

Other factors may have contributed to Marrus’ decision to remove himself from the Giuca case. In 2012, Marrus appeared on an episode of the true crime television show, “On the Case with Paula Zahn.” In the episode in question, Marrus declined to comment on the merits of the case, citing pending litigation, but did note that he stood by the jury’s decision to convict Giuca for murder.

“The jury found Giuca guilty. They heard the evidence, they made the decision,” the judge said in his television debut.

In general, judges are not permitted to appear on a television program to discuss cases, a spokesperson from the Office of Court Administration advised the Eagle. There are, however, exceptions to this general rule. One noted exception is a judge’s comment on a closed case. Giuca’s case and immediate appeal concluded in 2009.

Also in January 2012, Marrus’ son, Justin L. Marrus, joined the Brooklyn DA’s office as a prosecutor. The junior Marrus is still employed as a Brooklyn prosecutor, a spokeswoman for the office confirmed.

Giuca’s case continues to make headlines. Current Brooklyn District Attorney Kenneth Thompson’s Conviction Review Unit reviewed Giuca’s case, and in January 2015, Thompson said he would stand by the conviction after a review by the unit. At an unrelated press conference in March, Thompson doubled down on his decision to affirm Giuca’s conviction.

“We looked at this case closely,” Thompson said, referring to his Conviction Review Unit and Independent Review Panel — an outside group of attorneys that assists the DA’s Office in conviction review. “We’re standing by John Giuca’s conviction…It was my decision that he was convicted based on the evidence and that we should not disturb the conviction. That was my decision before, and that is my decision today.”

The DA’s office declined to comment on Hon. Marrus’ recusal decision.

Giuca’s case has since been reassigned to Acting Brooklyn Supreme Court Justice Dineen Riviezzo.