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DiGuglielmo Family Hires Investigators in Latest Bid
By Jonathan Bandler and Shawn Cohen
The Journal News
(Original Publication: January 23, 2007)
They may have failed in court, but they are still refusing to give up hope. Supporters of a former New York City police officer who fatally shot a man outside a Dobbs Ferry deli are relying on a vigorous public relations campaign and determined private investigators to free Richard DiGuglielmo from prison.
The investigators, who have tracked down witnesses across the country, claim to have new evidence that should get DiGuglielmo's 1997 murder conviction overturned. Two witnesses now suggest they were coerced by police into changing their accounts, one saying he was pressured to abandon his initial description of the shooting as self-defense.
The witnesses also suggest they were tape-recorded when police interviewed them, and the defense maintains DiGuglielmo's case was prejudiced because no tape recordings were ever turned over.
But others who were approached by the investigators accuse them of using heavy-handed tactics to pressure them into changing statements that proved damning to the ex-officer's case.
On Oct. 3, 1996, DiGuglielmo shot a bat-wielding Charles Campbell outside the DiGuglielmo family's Venice Deli on Ashford Avenue during a parking dispute. Campbell had already struck DiGuglielmo's father in the leg with the bat after a scuffle in which Campbell was hit several times and subdued by DiGuglielmo, his father and his brother-in-law. A year later, jurors rejected DiGuglielmo's claim that the shooting was justified because he was defending his father and convicted him of second-degree murder, not because he intended to kill Campbell but because he showed a depraved indifference to human life. He is serving 20 years to life at Eastern Correctional Facility in Ulster County.
Family launches new bid
After years of failed appeals, the family hired private investigators in the hope of finding new evidence that could resurrect the case. The investigators, retired New York Police Detectives Thomas Duno and Lawrence Eggers, were brought into the case by Jerry Palace, another retired detective and investigator for Court TV's "The Wrong Man" series. Palace never managed to feature the case on the show or on other networks - he said the racial tones of a white, off-duty police officer shooting a black man were too controversial. But he grew convinced DiGuglielmo was unfairly convicted.
"We all believe there was an injustice here," Palace said, sitting with Duno and Eggers for a recent interview with The Journal News. "We all would have done the same thing. The guy was using a bat, a deadly instrument, and he hit Richie's father. Richie's got the right to use deadly force."
The investigators are the latest addition to an extensive campaign - complete with a marketing specialist, rallies and a comprehensive Web site about the case - to garner support for DiGuglielmo as his lawyers push one more appeal. The publicity DiGuglielmo's supporters are drumming up is in stark contrast to the silence of the family and defense team during the trial. Steven Lewis, the lawyer for DiGuglielmo's brother-in-law, said it was a strategic mistake not to use the media in the months after the killing and during the trial to counter public pronouncements by then-District Attorney Jeanine Pirro and Campbell's family and supporters.
DiGuglielmo's team says Pirro tainted the jury pool by publicly suggesting the killing was racially motivated. They also claim the police coaxed witnesses to go against DiGuglielmo.
"It seems an incredible coincidence that all the statements of witnesses who were subject to reinterviews and rereinterviews tend to go in the same direction," Duno said. "They go from initially justifying DiGuglielmo's actions to the opposite."
Westchester prosecutors called the latest appellate effort "not only meritless, it is readily transparent." They obtained sworn affidavits from four officers involved in the case - two current lieutenants and two retired detectives - that they not only didn't tape-record either of the witnesses but had never tape-recorded any witness statements during their careers.
"This motion is a blatant attempt by the defendant to manufacture out of thin air any issue that can enable him to keep his post-judgment litigation alive, even after he has been repeatedly rejected by every court, state and federal, that has considered his many entreaties over the past decade," wrote Assistant District Attorney Robert Sauer and Second Deputy District Attorney Anthony Servino.
They contend that the investigators have misrepresented who they were to witnesses.
"They attempt to pry statements from their targets with fantastic tales about the defendant having been 'railroaded' by the Dobbs Ferry Police Department and generally impugn the competence and integrity of the police who investigated this case," the prosecutors wrote.
'He has to fully pay'
Campbell's family is also speaking out against this latest legal push.
"They'll do whatever they can to try to discredit a decision that was made by 12 jurors," said the victim's brother, William Campbell. "They're doing everything they can to get him out of jail and I'm doing whatever I can to keep him in. He has to fully pay for killing my brother."
DiGuglielmo's latest appeal is broken into two efforts to have the verdict vacated.
One is the continuing claim that he was improperly convicted based on recent state Court of Appeals decisions limiting when prosecutors can charge depraved indifference murder. His lawyer, Andrew Schapiro, argues that those rulings should be retroactively applied. To not do so, he contends, would be to keep DiGuglielmo in prison for committing an offense that was only a crime because the courts were misconstruing the law.
The second is the contention that new evidence exists that should permit further appeal. Two witnesses, Michael Dillon and James White, signed affidavits claiming that police tried coercing them into changing their statements to suggest that Campbell was no longer a threat when he was shot.
Dillon insisted that his first interview was tape-recorded. White said he remembered a tape recorder in the room when he was first interviewed. Because no tape recordings were ever turned over to the defense, DiGuglielmo's team contends that, if there were any, the conviction should be thrown out because there is "at least a reasonable possibility" that the failure to disclose the recordings affected the outcome of the trial.
They have asked Westchester County Judge Rory Bellantoni to grant an evidentiary hearing to determine whether there were recordings.
They also have affidavits from witnesses in other cases suggesting that retired Detectives William Gelardi and Joseph Ellman had been involved in tape-recording witnesses in the past, despite the detectives' recent claims to the contrary.
Dillon was a 20-year-old TCI Cable trainee at the time of the Venice Deli shooting. He and his supervisor, Kevin O'Donnell, were heading to an installation and stopped their truck on Ashford Avenue when they saw the fight. Afterward, O'Donnell gave a statement to police but had to revise it later when they pointed out things he said were impossible based on other witness accounts. Dillon's initial statement to police suggested that DiGuglielmo was justified in shooting Campbell. He said Campbell had struck the father with the bat "at full force and very hard. I could hear the smack from the intersection." When DiGuglielmo ran inside and came out with the gun, "the black male was still swinging the bat at the older male" just before the shots were fired. That same night, Dillon was interviewed by NewsChannel 4, and told the reporter, "You see your father getting beat with a bat, you've got to do something about it, so it's self-defense, as far as I saw."
Dillon's second signed statement to police was four nights later. He said that when DiGuglielmo ran out of the deli immediately before the shooting, Campbell "was now holding the bat in a baseball-type stance and was not swinging the bat at anyone, he was just holding it in a ready position."
He minimized the impact of Campbell swinging the bat, saying he had only swung low at the elder DiGuglielmo, and said that the shooting did not have to happen. "I think he was just holding the bat to protect himself and did not have the intention of seriously hurting anyone."
Witness recants again
Now, according to an affidavit written by Duno and signed by him, Dillon said that his initial statement to police and his TV news interview were correct. He claims he was subjected to several lengthy interviews by police during the intervening days and that by late Oct. 7, early Oct. 8, the time of the second typed statement, "I was so worn out and exhausted by the past few days of police interrogation that I didn't read it carefully before signing it and I did not object or change wording and phrases in the statement that were not my words and did not accurately reflect my memory."
DiGuglielmo's team refused to say where Dillon lives or help reporters in reaching him, and efforts to find him were unsuccessful.
Dillon's affidavit does not explain his trial testimony. He maintained on the witness stand that he was mistaken when he initially told police Campbell was shot while swinging the bat at the elder DiGuglielmo. The Channel 4 interview was not shown to the jury - to the dismay of the defense, which wanted the emotional impact of a witness suggesting self-defense on the night of the killing. But jurors did learn of what Dillon told the reporter. During cross-examination, he said he was not sure he had ever told anyone the shooting was in self-defense. A TV and VCR were brought to the witness stand and Dillon watched his interview and listened with headphones. He then acknowledged giving the interview. But when asked if he still felt that way a year after the shooting, he answered, "After thinking about it, no."
White, the brother of a Dobbs Ferry police sergeant and a Westchester County prosecutor, was never called as a witness at the trial. His signed statement to police indicates that "the black man was still swinging the bat at the father." His affidavit reads that Campbell's swings were "hard enough to kill a man." When DiGuglielmo came out of the deli, "Campbell was still swinging the bat at the elder DiGuglielmo, who was still backing away from Campbell, who was advancing on the elder DiGuglielmo." He said two shots were fired as Campbell "was in the act of swinging the bat at the older DiGuglielmo."
In the affidavit, he claimed that each time he spoke with police the week after the shooting, they tried to put words in his mouth and tried to get him to change his recollection of events.
Prosecutors contend that defense lawyers knew White was unreliable, otherwise they would have called him to the stand because his statement appeared to be favorable to DiGuglielmo.
Lewis said he was not surprised that Dillon and White recanted, considering the circumstances under which police questioned them repeatedly.
But similar criticism is now being leveled at DiGuglielmo's investigators.
"If they come back, I'm going to have those two guys arrested," said Maria O'Donnell, a retired Yonkers police officer whose husband, Kevin, saw the shooting.
Maria O'Donnell said investigators showed up at their house in Florida twice, declaring the second time that "it was in my husband's best interest to talk to them rather than face federal prosecutors who come grab him." Her husband said one of the investigators made what he perceived to be a veiled threat by sarcastically declaring, "You have a nice house here. You like it here?"
Duno and Eggers also recently stopped by the Cortlandt home of another witness, Leif Larsen. Larsen was driving past the deli when he observed the shooting, and told police that he saw Campbell rocking the bat in a circular motion but standing still as the others approached him just before he was shot.
"I just told (the investigators) what I had seen," said Larsen. "I told them that if they got this man off on a technicality, I'd be very upset because I feel justice was done. They were looking to find something wrong with what the police did. They asked me if I was harassed by the police. I told them I was not. Everything the Police Department did was professional."
The investigators deny making threats and say they are only pursuing the truth in an effort to free a man they say should never have been sent to prison.
Jeffrey Sussman, a public relations and marketing specialist who is part of the team hired by the DiGuglielmos, said everyone involved is working toward this goal.
"The bottom line," Sussman said, "we want to show Richard DiGuglielmo may have been railroaded into prison for acting as he was taught to act as a cop and defending his father from being killed."