Friday, April 6th, 2012


United States v. Pitera, No. 10-1564-cr (2d Cir. April 3, 2012) (Jacobs, Miner, Katzmann, CJJ)

In this opinion by the late Judge Miner, the circuit rejected the claim of Thomas Pitera, formerly of the Bonanno crime family, that the district court erroneously rejected his application for DNA testing of “newly discovered” evidence.

Pitera was convicted in 1992 of various racketeering and CCE offenses that were predicated on seven murders, and received a life-plus-thirty-year sentence. Since then, he has regularly sought post-conviction relief. Most pertinent to the issues on this appeal is a 1999 habeas petition in which Pitera unsuccessfully alleged that evidence seized from one Frank Gangi, the main cooperator against him, would prove that Gangi was the “true killer.” The district court denied relief, noting that Gangi had admitted at Pitera’s trial that he was a participant in many of the murders, and explained that he had done them with Pitera. The habeas court also noted that Pitera’s involvement in the murders was corroborated by other evidence, including the recovery from Pitera’s home of items belonging to the victims and a recorded phone call where he discussed disposal of the bodies.

In the current litigation, Pitera returned to the claim that Gangi committed the murders of which Pitera was convicted. He filed a claim under the Innocence Protection Act, 18 U.S.C. 3600 (“the Act”), asking the government to compel DNA testing of six items of evidence allegedly seized from Gangi. Pitera alleged that a finding of either a victim’s or Gangi’s DNA would raise a reasonable probability that Gangi, and not Pitera, was the murderer. The district court denied the application, and the circuit affirmed.

The circuit started by answering a question it had not yet reached – the standard of review. It concluded that whether a prisoner is entitled to DNA testing under the Act is reviewed de novo, with the related findings of fact reviewed for clear error. Here, the court had little trouble affirming. The issues Pitera raised were the same ones he raised in 1999, albeit with a “speculative forensic twist.” Even if the materials allegedly recovered from Gangi showed only DNA from Gangi and one or more victims, this would not raise a “reasonable probability that” Pitera did not commit the offense because, as noted above, the government’s theory was that Pitera and Gangi committed the murders together. The circuit again relied on Gangi’s trial testimony and the same corroborating evidence that the district court relied on in the earlier habeas litigation.

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