Tuesday, May 20, 2014

Mistrial In Nicodemo Murder Case

By George Anastasia
For Bigtrial.net

Shortly after mobster Anthony Nicodemo's attorney offered a bizarre carjacking defense last week to explain how his client became an unwitting getaway driver in the December 2012 murder of Gino DiPietro, a person following the trial rolled his eyes and scoffed.

"There's no way a common-sense jury buys that story," the observer said.

But common sense doesn't always apply in Common Pleas Court, a sometimes illogical Alice in Wonderland judicial world where the unexplainable happens. This morning, as the defense was preparing to call its first witness, it happened again.

Judge Jeffrey Minehart declared a mistrial late this morning after dismissing two more jurors in the case. That left the panel with just 11 members and apparently neither side wanted to proceed at that point. The case blew up amid reports that police have opened an investigation into possible jury tampering.

At least one family member of the defendant was questioned this afternoon, but one law enforcement source cautioned that it was too soon to determine whether a juror had been approached. An overheard conversation in the hallway outside the 11th floor courtroom contributed to the concern raised by law enforcement that a juror might have been compromised, but by late this afternoon there were no definitive answers.

One of the jurors who was dismissed this morning was a South Philadelphia resident, but it was unclear if he had been the target of jury tampering. Minehart placed a gag order on the lawyers in the case when the trial opened last week. Neither Assistant District Attorney Brian Zarallo nor defense attorney Brain McMonagle were permitted to comment.

Minehart said little about what had transpired, but dismissed the panel after meeting with attorneys for about an hour behind closed doors in his chambers. He has scheduled a status conference for June 12. It is expected that the District Attorney's Office will retry the case.

Law enforcement sources said late today that there are several options to further shield a jury the next time around. While there were only two alternates selected this time, as many as six could be added. One alternate was dismissed last week and another this morning for what were described as routine and benign reasons. It was the third juror who was let go that raised concerns.

A new panel could also be sequestered, an extreme measure, but one that is permitted. The most extreme option would be a request for a change of venue that would move the case out of Philadelphia Common Pleas Court. No decision has been made with regard to any of those issues, according to sources familiar with the process.

Nicodemo, who has been held without bail since his arrest minutes after DiPietro was gunned down in a mid-afternoon assassination, will remain in prison pending the new trial. As the defense prepared to open its case, the central question was whether the 42-year-old mobster would take the stand in his own defense.

Zarallo had taken four days building an impressive, if circumstantial, case after Nicodemo. The evidence included witness testimony that Nicodemo's black Honda Pilot was the getaway car that a masked gunman jumped into after pumping six bullets into DiPietro.

DiPietro, 50, was slain in the 2800 block of Iseminger Street as he was getting into his pickup truck. The shooting occurred shortly before 3 p.m. on December 12, 2012.

A mailman who heard the shots, described how he saw a masked gunman in a hoody running from the shooting scene. Another witness, who was passing by, described how the gunman ran passed him and jumped into a Honda Pilot that was parked in an alleyway with its engine running. The witness got the license tag of the vehicle.

The Honda was registered to Nicodemo whose home in the 3200 block of South 17th Street is a five-minute drive from the murder scene. Within 20 minutes police were knocking on Nicodemo's door and taking him into custody. They also obtained a search warrant and seized the Honda which was parked behind his row home. Inside the vehicle, wrapped in a jacket and stuffed behind the driver's seat, they found a .357 magnum that, according to testimony from forensic experts, was the murder weapon.

Zarallo, in his opening statement to the jury last week, said that the evidence linked Nicodemo to the conspiracy to murder DiPietro and that while he didn't pull the trigger, he was just as guilty as the shooter. The Assistant District Attorney twice mentioned Domenic Grande, a friend of Nicodemo's and a mob associate, as someone who fit the description of the gunman. He also said that Grande's fingerprint had been found on the hood of the Honda Pilot.

Grande has never been charged and McMonagle said he would be in court at some point during the trial, an apparent reference to an appearance as either a character witness or a courtroom supporter of the defendant. The case, however, never got that far.

McMonagle, in his opening, had told the jury that Nicodemo was a victim of the chaos that surrounded the shooting. He said his client was sitting in his Honda when a masked gunman unexpectedly jumped in the vehicle and told him to drive. McMonagle implied that his client was forced at gunpoint to flee the scene. The lawyer said the gunman later jumped out of the Honda, but left the murder weapon behind.

The defense opening raised several questions. Why didn't Nicodemo report the carjacking? And why, when he was taken into custody, didn't he mention it to the police? Instead, he has sat in prison since December 12, 2012.  Zarallo was expected to hammer away on those issues had Nicdemo taken the stand.

Legal sources in the defense community said the scenario laid out by McMonagle was the only one that could explain away the irrefutable evidence linking his client to the getaway car and the murder weapon. With this morning's mistrial, it may be several more months before another jury gets to ponder that defense argument.

Common sense would suggest that the explanation is bizarre at best. But in Common Pleas Court, bizarre is not necessarily unusual.

George Anastasia can be contacted at George@bigtrial.net.