How To Win A High Profile Criminal Trial (Part III)

FullSizeRender-294x300(In last week’s post on winning high profile criminal trials (part II), I discussed the importance of thinking outside the box and creating an atmosphere in the courtroom wherein the government is fighting to keep up with the defense lawyer instead of the other way around: fighting the safe, conservative fight in a high profile case will result in a safe, conservative loss.)

A Defense Lawyer in a High Profile Criminal Trial Must Be Quick-Witted and Quick-Thinking

A sense of humor and ability to think on one’s feet are crucial hallmarks for any top criminal defense attorney.  Any of the best New York criminal trial lawyers I have known have had one thing in common: incredible senses of humor and ability to think quickly – and oftentimes hilariously – on their feet.  And there’s a good reason for this: when you’re defending a very difficult case with a tremendous amount of evidence against your client, the jury is ready to convict before the opening statements are completed.  The default position at the start of the case oftentimes includes a bored jury, disgusted with your client and just biding its time until they can convict and go home to their lives.  So what can a defense lawyer do to stop that runaway train to disaster?  Entertain the jury.  Connect with the jury.  Make the jury laugh.  It’s like anything else in life: make the jury like you enough that they’re willing to listen to what you have to say, willing to give you – and your client – the benefit of the doubt.  And there’s not much competition in the humor or likability department when going up against a prosecutor: first, prosecutors are by their definition required to play it much straighter than a defense lawyer can as they are representatives of the government; second, prosecutors are notoriously stiff and less entertaining than defense lawyers (though I have experienced some very rare exceptions).  Bottom line: if your lawyer can’t entertain you, the client, he’s certainly not going to have the presence during a high profile criminal trial to cause the jurors to follow him over the mountain to an acquittal.

The ability to think quickly on one’s feet is also a requirement for any of the best criminal trial attorneys.  And this skill does not necessarily correlate to intelligence: plenty of Harvard-trained lawyers cannot react fast enough on the fly in the midst of a stressful, high profile trial.  If your lawyer does not demonstrate this somewhat rare ability, you as a defendant are finished.  No matter how much preparation is done for a trial, unanticipated opportunities and issues will arise during the trial which will require the appropriate responses.  If these chances are missed or handled incorrectly, disaster could strike. As Mike Tyson famously said, “everyone has a plan until they get punched in the mouth.”  Same goes with trials.  An example: the first cooperating witness who testified for the government during the Gotti trial was Frank Fappiano.  It was crucial for our chances that Fappiano be beaten soundly during his cross-examination; after all, he was the witness who would set the tone for the rest of the trial.  If he escaped intact, the jury would believe exactly what they had anticipated: that this trial was a mere inquisition with overwhelming evidence and they needed to simply sit through it until they could vote to convict.  If he was shown to be a liar while testifying, the jury would see that everything I had asserted during my opening statement was true: that the government’s evidence was weak and could not be trusted — and perhaps the defense should be listened to and believed.  This was a hugely important cross.  Yes, I had a tremendous amount of impeachment material that I had worked hard to find.  But would that be enough?

Fappiano provided me a golden opportunity just a few minutes into my examination.  It is a well-known rule for cooperating witnesses that they not be permitted to have contact with each other prior to their trial testimony for fear that it will appear that they shared information in order to “get their stories straight.”  Similarly, they are not permitted to be told by government agents what is going on in the case in which they are about to testify.  They are simply prepped to testify about what criminal acts they heard or saw and not have any extra information which might unfairly color – or contaminate – their testimony.  If they are shown to have received extraneous information about the case – including press reports – then anything they testify to is suspect.  I laid a minor trap for Fappiano, hoping he would fall into it: just one week before the trial, one of Mr. Gotti’s codefendants – Joey D’Angelo – decided to cooperate with the government.  It was not the biggest story in the case as the government already had the embarrassment of riches of about a dozen cooperating witnesses scheduled to testify but it was something that no imprisoned cooperating witness about to testify in the case should have known about – unless they were receiving outside information about the case.

One of my main themes in my opening statement just the day earlier was that many of the government’s witnesses were extremely close to the manipulative Sammy Gravano, the high-profile cooperating witness who had helped convict Mr. Gotti’s father years earlier.  Gravano, despite admitting to 19 murders, had received a ludicrously low sentence of 5 years by pretending to have turned over a new leaf.  Of course, once free he had gone back to his old ways of dealing drugs, only to be arrested and incarcerated again.  My argument was that these “Sons of Sammy” were similarly dishonest and manipulative and were well-schooled by him in lying to prosecutors, judges and juries alike.  Here’s how a spontaneous bit of cross-examination went when discussing a murder Fappiano was involved in:

Q. You, Sammy and Joe D’Angelo were the main people involved
in this murder, and Eddie Garafola and Huck Carbonaro?
A. Yes.
Q. All of Sammy’s guys?
A. Yes.
Q. And you Joey D and Gravano are all cooperators now; correct?
A. Sammy, Joe and myself, yes.
Q. How do you know Joe D’Angelo is a cooperator?
A. Because he was a codefendant in this case. I don’t see him
sitting here anymore.
Q. How do you know he didn’t plead guilty?
A. I heard from people that — in the news that he was
cooperating.
Q. You were watching the news about this case?
A. It came in on the CNN in prison.
Q. You were watching it?
A. I happened to come in and seen it.
Q. Came in one day and seen it. When?
A. I don’t remember. A week ago maybe.
Q. You have cable TV where you are?
A. Some channels, yes.
Q. You are allowed to watch all the news channels, some of the
news channels?
A. You can get a handful of them.
Q. You get CNN, though?
A. Yes. That is how I found out about it.
Q. What did the news report say?  It was only a week ago that he cooperated.
A. I don’t remember what it said. Cooperator in — another
cooperator in the Gotti case was cooperating.
Q. Did it say anything else?  Just mentioned the name?
A. That was it. It was quick.
Q. Do you remember who the reporter was?
A. No.
Q. What he or she looked like?
A. No, it came on the bottom of the screen.
Q. Joey D’Angelo’s name came on the crawler of the screen of CNN?
A. Yes.
Q. Like after the baseball scores?
A. There was a ticker tape on the bottom. I don’t remember
how it came off.
Q. You didn’t actually see a newscast you just read the
zipper, crawler at the bottom of the screen?
A. Yes.
Q. Pope is shot, Mets beat the Braves 5-3, and Joey D’Angelo flips
in the Gotti case?
A Something like that.
Q. You are telling the truth now?
A. Yes, I am.

This obviously false testimony was the first of many times the jury would be openly laughing at Fappiano during his testimony after being caught in a series of lies.  By the time he wobbled off the stand the next day, the government’s case had taken a huge blow and the jury was clearly with me.  And I owed it all to my ability to think quickly on my feet regarding an unexpected answer from the witness.

You Want to Win A High Profile Criminal Trial?  Better Hope Your Lawyer Has a Giant Ego

Yes, any great criminal trial attorney wants to come off as if he’s humble, a salt of the earth Atticus Finch.  But let’s be honest: if your lawyer doesn’t have a large enough ego to think he can shock the world in a high profile case, you’re losing your case.   A lawyer with a big ego doesn’t like to lose — and will do anything withing the bounds of the law to win.  Case in point: one of my main themes during the Gotti case was that alleged shooting victim, radio host Curtis Sliwa, was so dishonest and greedy that he would exploit the shooting for financial purposes.  What I learned during my investigation was that Sliwa was paid for speeches — and the speeches were often made in Jewish temples in the New York area wherein Sliwa would describe the story of his shooting purportedly by the Gotti crew and how the only thing in his wallet which was not covered with blood was a dollar coin allegedly given to him by the late Hasidic Rabbi Schneerson.

In an effort to learn more about the financial aspects of Sliwa’s exploitation of the shooting, I first created an email address under the name of one of my favorite baseball players, Hank Greenberg.  I then contacted Sliwa’s booker named Sandy Bakum via email and said that I was Henry Greenberg from “Temple Beth O’r” (the name of my childhood temple) in New Jersey and wished to have Sliwa give his famous “Rebbe dollar” speech at our temple.  She enthusiastically told me she would send over DVDs of Sliwa’s performance of this speech (I had taken out a PO box with a street address around the corner from my apartment) along with a contract.  A few days later, the package came: along with the DVDs was a contract calling for Sliwa to be paid $25,000 for a 50 minute speech!  I was stunned at his greed and willingness to exploit his shooting for financial gain.  With this information in hand, I felt that the jury would never trust a word of Sliwa’s testimony about the shooting as it could all be designed for his next big payday.

Sliwa’s cross-examination was already a debacle for him due to his dozens of public lies over the years about his inflated crime-fighting prowess; the coup de grace would be about his speaking fees pertaining to the very shooting he had just finished testifying about. Here’s how it went; keep in mind that I was waving around what appeared to be a contract the entirety of this exchange:

Q. No, I’ll do it. You give paid speeches; do you?
A. On occasion, yes.
Q. How often?
A. I would say maybe one a month.
Q. One a month?
A. One every two months.
Q. How much did you get paid for those speeches?
A. Anywhere from a thousand dollars to $5,000.
Q. Are you sure about that?
A. Sure, 5,000, maybe 10,000, depends on the subject matter
and may be doing seminars or workshops.
Q. You just went from 1,000 to 5,000, now you’re saying maybe
10,000?
A. Well, if I’m giving seminars and workshops in addition,
yes, it might be as high as $10,000.
Q. What about $25,000?
A. I don’t remember a specific amount of that nature, but I
may have received that.
Q. So it went from one to five to ten, now we’re at 25,000?
A. I may well have received an honorarium of that type.
Q. Do I hear 50,000, maybe?
A. No. Q. 25,000 is tops. Actually, I don’t remember 25,000, I’m sorry.
Q. You don’t remember that. Okay. How long are these
speeches that you give to generate these honorariums?
A. It depends on what I am being asked to do. Generally about
an hour and a half, and it may be also combined with workshops
and seminars.
Q. Do you sign your tax returns?
A. Yeah.
Q. Do you look at them —
A. With my wife.
Q. Do you look at them before you sign them?
A. Pretty much, yes.
Q. Do you carefully review them?
A. Yes, sir.
Q. Do you sign them under penalties of perjury?
A. Yes, sir.
Q. You would never lie; would you?
A. I have lied in the past, but no, I would not lie now.
Q. Because you’re past that?
A. Excuse me?
Q. You’re past that; is that correct?
A. Yes, sir.
Q. Now you speak to non-profit organizations?
A. That is correct.
Q. So would one of the non-profit organizations let’s say be a
Jewish temple, perhaps, that you might be speaking to about
anti-Semitism?
A. That might be one of the presentations that I’m making.
Q. Is that the kind of thing that you have done in the past; correct?
A. That is correct.
Q. And you have gotten paid for it?
A. Yes.
Q. Don’t you normally request $25,000 per speech?
A. No.
Q. Don’t you have a booker?
A. No, no booker.
Q. You don’t have a booker named Sandy Bakum?
A. Oh, Sandy assists Mary my wife in getting all the information that
the people request, whether it’s DVDs, background information
or such.
Q. She doesn’t help you set up your paid speeches ledger?
A. She gives them all the information they request,
absolutely.
Q. Does she help you set up paid speeches?
A. Yeah, goes from Mary, and then she finds out from me if I’m
interested in doing it, then Sandy stays in touch with them and
provides them all the information that they require.
Q. Are you aware that Sandy communicates directly with people
who are trying to set you up for paid speeches?
A. Yeah, after — the request goes through us.
THE COURT: Mr. Lichtman, I am losing the idea of
whatever the relevance is about.
Q. Are you aware that Sandy tells people that you usually
garner $25,000 for appearances?
MR. KIM: Objection.
THE COURT: I’ll allow it.
Is that what she is told to say, that’s your standard
charge?
THE WITNESS: No, that’s not a standard charge. I
have done speeches for zero dollars, $25, 10,000 or 5,000.
Q. Exhibit JG46 is a contract I’m approaching with, and let me know after you read
this if this refreshes your recollection that you usually
garner $25,000 per appearance and it goes down from there
depending on the need?
A. (Pause) That is correct.

The Washington Post wrote about this exchange after the trial:

“Worse, Sliwa seemed to fib almost nonstop on the stand. Initially, he said his speaking fee was $1,000 to $5,000.  A few questions later, that figure stood at $25,000.  One of the stories he tells when he gives those speeches sounds suspiciously like a fable.  It concerns a dollar coin given to him by the late Hasidic leader Rabbi Schneerson.  It was the only thing, Sliwa claims, that wasn’t covered in blood the morning he was shot.  What are the odds?

Those bullets, he grudgingly admitted on the stand, had been bad for his gut but pretty good for business, raising his profile and landing him some lucrative speaking gigs.

By the time he left, Sliwa had shed the mantle of victimhood.  He just seemed like an opportunist.”

Conclusion

High profile criminal trials require every effort and resource.  High profile criminal trials require lawyers who are willing to go to the ends of the earth to win their case — not a pedestrian effort.  Case in point: the year before my Gotti trial, Martha Stewart was convicted in the same courthouse in a trial the media described as “a total rout.”  Same jury pool, same courthouse, same United States Attorney’s Office as my case.  Which defendant do you think had a better chance going in?  A popular TV figure or an imprisoned, admitted mob boss formerly convicted of Racketeering?  And which defendant walked out without a conviction?  The difference: a lawyer who refused to lose.

Jeffrey Lichtman has received the highest rating (AV) from the Martindale-Hubbell Legal Directory, is recognized in the Bar Register of Preeminent Lawyers and has also been selected as a New York City Super Lawyer for being a leader in his field of criminal defense.  Mr. Lichtman has received a rating of 10.0/10 Superb rating from Avvo Lawyer Directory and was profiled in the New York Daily News, The New York Times as part of the “Public Lives” series and in a two-part series in Super Lawyers magazine.  He can be reached at (212) 581-1001.