Conviction in Balancio slaying overturned

An unscrupulous prosecutor and withheld evidence again

NEW YORK - Former District Attorney Jeanine Pirro's office withheld "very serious" evidence that could have pointed to another killer in the high-profile Louis Balancio slaying, a federal judge ruled in overturning the murder conviction of Anthony DiSimone. Judge Charles Brieant ordered reputed Tanglewood Boys gangster DiSimone freed from prison, but stayed his release for 20 days so prosecutors could appeal. The office of current District Attorney Janet DiFiore said yesterday that it would do so in an effort to get a new trial.

Last year, DiFiore's office offered DiSimone a new trial in the 1994 slaying after admitting prosecutors improperly withheld 52 boxes of evidence from the defense in 1999. But Brieant said the misconduct was so severe that prosecutors shouldn't get a new trial because the withheld evidence "has raised very serious issues of actual innocence, clearly arising to the level of reasonable doubt." The Monday decision, coming a day after the 13th anniversary of the stabbing, stunned the parents of the 21-year-old victim.

"There was never any question about guilt," said his father, former Yonkers Councilman Jeffrey Balancio. "The whole question was around a process technicality, and it appears Brieant has just thrown everything overboard. It just doesn't make any logical sense to me at all."

Pirro did not return a telephone call seeking comment, nor did lead DiSimone prosecutor Clement Patti, now a lawyer in private practice in White Plains. Relatives of DiSimone contacted him at Green Haven state prison in Dutchess County, to inform him of Brieant's decision. DiSimone's lawyer, David Feureisen, said he was "very pleased" and "hopeful he will be released." "Prosecutors clearly did not follow the rules," he said.

Feureisen accused Pirro's office of failing to turn over more than 300 pages of evidence, including the police statement of a Yonkers man named Luvic Gjonaj, who told police that his cousin, Nickoun Djonovic, admitted that he stabbed Balancio during the Feb. 4, 1994, melee outside the former Strike Zone bar on Central Park Avenue in Yonkers. "It's too much evidence, in my opinion, to believe this was just an oversight," Feureisen said. The prosecutor is required to turn over such materials, known as "Brady" evidence, to the defense.

The judge, however, said he's not concerned whether the withholding of information by Westchester prosecutors was "willful and intentional or merely unthinking and highly negligent." "It is not a function of this court to punish the prosecutors for their misconduct ... but rather to see that justice is done in the case," Brieant wrote in his decision.

DiSimone, 40, the son of a reputed Lucchese crime family captain, was accused of repeatedly stabbing Balancio during a brawl. He disappeared after the killing, along with Djonovic. Following an international manhunt, DiSimone walked into a Yonkers police precinct in November 1999 and surrendered. A year later, a jury found him guilty of second-degree murder, under the theory he showed a "depraved indifference" to human life. He was cleared, however, of intentionally killing Balancio.

He was sentenced to 25 years to life. In December 2005, Brieant tossed out the conviction, citing a 2004 precedent by New York's highest court. The state court ruled that a defendant could not be legally convicted of a reckless murder charge when prosecutors present a slaying as being deliberate. Brieant did not free DiSimone at that time, freezing any action pending an appeal by the Westchester District Attorney's Office.

Late last year, DiFiore's office acknowledged it improperly withheld evidence in the trial and submitted an affidavit agreeing to DiSimone's request to have his conviction declared invalid due to legal error. "We are doing these things, Your Honor, out of a sense of fairness and justice," Assistant District Attorney Valerie Livingston said at the time. Her office wants a retrial, as does the victim's family.

The father, Jeffrey Balancio, said "the whole point was that, worst case, there would be another trial because of this technicality. But just to have him throw his hands up and say, 'Heck with it, throw it all overboard and just overturn the ruling,' seems unconscionable."

Former prosecutor Bennett Gershman, a professor at Pace University Law School in White Plains, said Brieant's ruling had seriously tarnished Pirro's reputation as a crime fighter. Gershman, a longtime Pirro critic, called the violation of DiSimone's rights "as outrageous an example of prosecutorial misconduct as there is." "They deliberately denied the defendant a fair trial, that's what it comes down to," he said. "It doesn't get any worse than this, and I say that not just because it's Jeanine Pirro." Gershman said the case could also be compared to the recent DNA exoneration of Jeffrey Deskovic, who said Pirro refused to review his claims of wrongful conviction in a Peekskill rape and murder. "This shows that she's not a professional prosecutor. It shows that she's about winning at all costs and breaking the rules to win," he said.

Brieant's ruling joined a string of recent setbacks for Pirro, who lost last year's race for state attorney general after abandoning a brief, gaffe-plagued challenge of Sen. Hillary Rodham Clinton.

Yesterday, U.S. Attorney Michael Garcia said an investigation sparked by Pirro's attempt to eavesdrop on her husband was continuing; on Tuesday, a television industry executive revealed that programmers had passed on plans for Pirro to host a daytime reality show called "Celebrity Jury." Brieant's ruling in favor of DiSimone wasn't the first time he overturned a guilty verdict in a Westchester slaying.

In 2001, the judge threw out Paul Cox's manslaughter convictions for stabbing Lakshman Rao Chervu and Shanta Chervu in 1998, ruling that prosecutors breached religious privilege by forcing Cox's fellow members of Alcoholics Anonymous to testify against him. But that ruling was reversed on appeal and the U.S. Supreme Court refused to hear the case.

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