mega-trials: risks and rewards

Mega-trials: Risks and RewardsAuthor(s): DEBRA CASSENS MOSSSource: ABA Journal, Vol. 74, No. 3 (MARCH 1, 1988), pp. 74-77Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20759798 .Accessed: 17/06/2014 01:36

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LITIGATION

Mega-trials:

Risks and Rewards BY DEBRA CASSENS MOSS It was "duty day" for criminal de

fense lawyer David Lewis, which meant he would be assigned to an

indigent client, and paid out of gov ernment funds. Lewis, working out of a converted Manhattan storeroom with no windows, had been practic ing four and a half years, taking ap pointed cases because he needed the business. His biggest high-profile case had been defending a member of the IRA and it had lasted six weeks.

Typically, on duty day Lewis would receive a handful of bad check cases, minor briberies or small drug cases. But this day, in February 1985, Lewis was assigned by the federal court in New York to defend Salva tore Evola in the famous Pizza Con nection case.

Evola was one of 22 men charged with involvement in a Mafia ring that allegedly imported $1.6 billion in her oin from Italy over 10 years and laun dered drug money through pizza parlors in the Northeast and Mid west.

The trial began Sept. 30, 1985, and lasted 17 months. Transcripts filled more than 40,000 pages. During the trial, one lawyer would suffer a heart attack, one defendant would be killed, and another would be shot and paralyzed.

Gaetano Mazzara's body was

found in a garbage bag in Queens in December 1986. Pietro Alfano was

paralyzed when he was shot in Greenwich Village in February 1987.

As for his appointment, Lewis says, "It was sort of like taking a wrong turn at the Metropolitan Op era, and coming out with the wig and the spear, and suddenly you're the tenor."

It was Lewis' introduction to what

Debra Cassens Moss is a lawyer and a reporter for the ABA Journal.

may be the longest federal criminal jury trial, king of what are now known as mega-trials. It was a classroom for

criminal defense lawyers who learned some of the unique problems associ ated with long trials in which many defendants are charged with multiple counts.

"It was so unmanageable," says Michael Kennedy, who represented one of the alleged leaders of the drug ring, Gaetano Badalamenti, the re

puted former head of the Sicilian Mafia. "There were 55,000 taped con versations, all in Sicilian. The alle gations went back to a time before I was born. They actually talked about things in the 1930s that had occurred with Lucky Luciano and some other names from the vague past."

Two main factions of defendants emerged during the trial, with de fense strategies that sometimes con flicted. The jurors and lawyers both became bored. Lawyers experienced health problems and had little time for personal lives. Many had clients

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David Lewis

whose money ran out.

Prosecutors favor mega-trials because they can join defendants and promote judicial economy, says Louis Freeh, who, as chief of the Organized Crime Unit in the U.S. Attorney's Of fice for the Southern District of New York, helped prosecute Pizza Connec tion. He says that "taking an integral group of criminals and basically put ting them all out of business at the same time" is an effective law en forcement mechanism.

Defense lawyers claim that pros ecutors favor mega-trials because of the "spillover prejudice" that occurs as jurors begin to lump all the defen dants together in their minds, and be cause defendants whose stories conflict help the prosecution by mak ing each other look bad.

Freeh's strategy was successful, for the most part. Lewis' client, Ev ola, was convicted of conspiracy and drug charges, and later pleaded guilty to the same charges just before sen tencing in hopes of leniency. He was sentenced to 15 years in prison. Ken nedy's client, Gaetano Badalamenti, was found guilty of conspiracy and maintaining a continuing criminal enterprise. He was sentenced to 45 years in prison and fined $125,000.

They were among 18 found guilty in March 1987, although one was convicted of lesser charges. An other, Badalamenti's son Vito, was acquitted. All had been accused un der the Racketeer Influenced and Corrupt Organizations Act.

While lawyers agree the Pizza Connection case was a mega-trial,

they disagree on the definition. Gerald Lefcourt, who worked on

a proposed position paper on mega trials for the National Association of Criminal Defense Lawyers, defines a mega-trial as one which has several defendants, several counts, and charges a variety of criminal con duct. Any trial lasting longer than a

74 ABA JOURNAL / MARCH 1, 1988


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month or two is usually a mega-trial, he says.

Robert Fogelnest represented Salvatore Salamone, who was con

victed of lesser charges (currency vi olations). He says that, in a mega-trial, more information is given to the fact finder than can be remembered.

According to Lewis, "A mega trial is when the 'Seven Santini Brothers' deliver the indictment, and it takes an entire wagon train to de liver the discovery."

The number of mega-trials be gan to increase in the 1980s as RICO, which was passed in 1970, became a "favorite prosecutorial tool," accord ing to Lefcourt. He estimates that

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Michael Kennedy

around 50 mega-trials have been held. In New York in the last three years, federal prosecutors have brought at least two dozen prosecutions that lasted more than three months, says Freeh. They include several high profile Mafia cases such as the Com mission trial, in which eight bosses of five organized crime families were

successfully prosecuted, and the re cent racketeering case involving the reputed Genovese crime family.

Mega-trials have come under increasing criticism from criminal defense lawyers,

who say they are unfair to the defen dants swept up in them. In fact, two Pizza Connection lawyers, Robert Koppelman, whose client Vito Bada

lamenti was acquitted, and Ivan Fisher, whose client Salvatore Cata lano was accused of being a top leader of the drug ring, say they would not take a 17-month case again.

Lewis notes that it took 10 months of trial before the name of his client, Evola, was even men tioned in the Pizza Connection case.

During that time, he says, the jury heard enough evidence about other defendants to become prejudiced against his client.

"In those 10 months, there was

testimony that millions of dollars were shipped to Switzerland in card board boxes," he said. "Thousands and thousands of kilograms of drugs were moved by people who weren't even in the room. And we got a back ground history of the Mafia using hearsay of only the dead, such that one of the defense lawyers literally stood up and moved for a seance."

Lewis and other defense lawyers are pleased with one recent opinion

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Gerald Lefcourt

that examines how mega-trials are

prejudicial to defendants and a strain on the court system, U.S. v. Gallo, 86 CR-452 (E.D.N.Y., August 28, 1987).

In Gallo, Judge Jack Weinstein severed a 14-defendant RICO case against the alleged Gambino crime family into seven trials under discre tionary Rule 14 of the Federal Rules of Criminal Procedure.

In complex trials, it is difficult for jurors to keep straight the evi

dence and charges against each de fendant, Weinstein said. In addition, jurors will have trouble following limiting instructions when, for ex

ample, a statement will be "only ad missible as to defendant A on Counts X and Y, and predicates 6, 9, 20 and 21."

Defendants charged in only a small number of counts are espe cially harmed, he said, because of the likelihood of spillover prejudice. "The courts must be scrupulous to avoid the spectre of guilt by association? or, more likely, guilt by confusion," he declared.

Jurors and judges also experi ence severe hardships while endur ing long mega-trials, according to

Weinstein. "The effect on the judge's health presents a serious matter of concern," he said. "The grinding ten sion of such a long, complex case, particularly where the judge is mak ing rulings which are on the border line of probative force and prejudice, is debilitating."

The case proceeded more quickly because of severance, according to Lefcourt, who represented a clerk of the court charged with passing infor

mation about sealed indictments to the Mafia in the Gallo case. Six of the defendants' cases were heard in three trials which took a total of about six weeks. Two pleaded guilty (includ ing Lefcourt's client), one had his case dismissed, and trial was pending for another.

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Louis Freeh

?RA im IRNIAI / MARCH 1 1 QAft TS



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Jack Weinstein

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Nonetheless, the longest of the severed trials could be considered a

mega-trial in its own right. It lasted three months for four defendants.

Prosecutors also gain an advan tage in mega-trials when defendants with conflicting trial strategies un dermine each other. That happened in Pizza Connection when two fac tions emerged?the Badalamenti fac tion led by Gaetano Badalamenti of Sicily, and the Catalano faction led

by Salvatore Catalano, the chief American defendant.

Badalamenti's attorney, Ken

nedy, admitted his client was a mem ber of the Mafia. But he claimed that because Badalamenti opposed the heroin trade, some New York Mafia members (presumably the Catalano faction) had plotted to kill him in coded phone conversations recorded by the government. "There were many defendants who were bent on

denying the existence at all of the Mafia, so they fought very heavily against any effort we made," says Kennedy.

A member of the Catalano fac tion, Salvatore Mazzurco, claimed that the coded phone conversations were not about a Mafia war at all, but were actually about the importation of precious stones.

When Mazzurco testified that he did jewelry business with Badala menti, Kennedy cross-examined him, trying to show that there was no business relationship, and that Maz

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Robert Fogeinest

zurco worked for those in the Mafia who wanted to kill Badalamenti.

As a result, jurors not only had to choose whether to believe the defense or the prosecution, but also which de fense story, if any, to believe. The lack of a unified defense gave more cre dence to the prosecution.

"I think experienced prosecutors have seen over the years that there are distinct prosecutorial advantages to bringing together disparate defen dants into the same room and letting them cut each other up," Kennedy says. "It's like bringing the Hatfields and the McCoys into court on some

charge and pitting them against each other."

Lack of cooperation also pro duced lengthy and repetitive cross examinations by defense lawyers who failed to agree on who should do the questioning and what topics should be covered. "It was as if the lawyers were being paid by the word," com

plains Kennedy. Six different lawyers cross-ex

amined one government witness for several weeks, says Fisher, so that the witness endured a total of one month of questions by prosecutors and de fense lawyers.

The problem with such long cross-examinations is that there can be a backlash against the defense lawyers as juries empathize with the person testifying. "The jury begins to feel sorry for him, day after day, tricky question after tricky question, each lawyer using his own wiles to dazzle and befuddle the guy," says Fisher.

Lefcourt says defense lawyers should cooperate in sharing impeach

ment material, deciding the order for opening and closing statements, and deciding who will conduct cross-ex aminations and what will be covered.

Before defense lawyers enter joint strategy sessions, Lefcourt says, they should prepare and sign a joint defense agreement, which makes it clear that they are expected not to di vulge information learned there about co-defendants.

Cooperation is one of several strategies that should be used to cope with the unique problems arising in mega-trials. Another problem, de spite all the high drama of Mafia wars and drug deals, is boredom.

Lewis jokes that the lawyers kept a running tally of which jurors were

asleep. About halfway through the case, Kennedy says he moved for a mistrial on the grounds the jury had been "irreparably benumbed." Lewis admits that he was bored at times.

To combat boredom, lawyers have to make their presentations "as theatrical and interesting" as possi ble, says Kennedy. Changes in sched ule also keep the jury interested, he says. For example, the court could run some sessions only in the after noon or morning, holding an occa sional Saturday session to give time off during the week.

Lawyers should also try to sim plify as much as possible in such long, complicated cases, according to Fo gelnest. "I want to be able to com municate to the person who reads the New York Daily News, maybe even the Post" he says, "not the New York Times"

In Fogelnest's closing argument, he tried to limit the issue to whether Salamone, charged with providing weapons to the drug conspirators, ac

tually realized he was participating with the Mafia in an international drug conspiracy.

There are also special strategies for the small defendant caught up in a mega-trial.

Many lawyers practice the "hid ing out" strategy, so they can tell the jurors at the end of the trial that they haven't done much because the pros ecution offered so little evidence against their small-potatoes client. Lefcourt has observed lawyers fol lowing this strategy during closing arguments pick up a 1,000-page trial transcript and point to the two or three pages concerning their clients.

76 ABA JOURNAL / MARCH 1, 1988



Koppelman admits he followed a

hiding out strategy in his represen tation of Vito Badalamenti, who was acquitted. Koppelman's theory was that Badalamenti, although related to some of the major figures charged in the drug conspiracy, was not himself involved. "My main strategy was not to over-try the case," Koppelman says. "I did some cross-examinations, but they were always very limited and specific."

Criminal defense lawyers faced with the decision of whether to take on a mega-trial should be

aware that their clients could run out of money, and that they probably will lose other clients and referral sources

during the mega-trial. There are exceptions. Lewis was

one of the few lawyers to admit to making a lot of money in the Pizza Connection trial. He was paid $200,000. "I doubt if many of the pri vately retained counsel got that much money," says Koppelman.

Kennedy says his client ran out of money to pay him after the sixth month of trial, the time that prose cutors had originally estimated the trial would run. Fogelnest's client also ran out of money. "You can't go to the judge in a trial such as this and say, 'My client's not paying me any

more, judge. I want out,' "

explains Kennedy.

"You have to be financially set," advises Fisher. "You have to have all of your bills paid. You want to have a substantial financial cushion inde pendent of what you expect from your client, so that if there's a short fall along the way you don't feel like taking it out on him."

Fisher thinks a sole practitioner should not take a mega-trial, because the lawyer needs to refer his other cases to those in his firm. Fisher also had two co-counsel in the Pizza Con nection trial, and he was able to try two to three other cases while the Pizza Connection case was ongoing.

But many of the Pizza Connec tion lawyers were sole practitioners. As a result, they lost business. "When the phone rings and I tell people I'm engaged in a long trial, they call someone else," says Kennedy. "They quickly learn the world can run very well without you. That can be a se vere blow to a burgeoning practice."

Lawyers should also consider the

AP

Gaetano Badalamenti

toll a long trial will take on their health and personal lives. Fogelnest, who suffered a heart attack nine months into the trial, explains that a

mega-trial "completely consumes and interrupts your life." He also under

went the stress of moving from Phil adelphia, where he had been engaged in a solo practice, to New York.

Fogelnest claims his client's mo tion for a mistrial after his heart at tack was denied in part because so

much time had already been invested in the trial. Instead, local counsel was brought into the case over his objec tion, and another lawyer was ap pointed at the same time who began to review the transcripts. Three

months later, before the appointed lawyer could take over, Fogelnest re sumed his duties.

Fisher says he experienced large weight changes during the trial. First he gained 30 pounds, then he lost 60. "You want to be in very good shape physically, you want to be lean, you want to be not drinking, not smok ing, and into a regular exercise pro gram," he advises lawyers considering a mega-trial.

Lawyers have little time for per sonal lives during a mega-trial. "It plays hell with your vacation sched ule," observes Fogelnest. Kennedy claims he's lucky his family hasn't thrown him out in the street in dis gust. "I've got a 2-year-old daughter who thinks all I can do is growl," he says.

Several Pizza Connection law

yers also advise lawyers to double any government estimate of trial length. It's important for lawyers to find out

who the other lawyers are and who the judge is before agreeing to take on the case, says Kennedy.

As for the judge, the more ex perience the better. He'll be better able to handle the case and speed it along. As for the lawyers, make sure

they are not "mega-lomaniacs" who are so enamored with the sound of their own voice that they'll drag out the case forever, he says.

Nor do lawyers find they earn great reputations by taking mega cases, some Pizza Connection law

yers say. "I don't think the general crime-committing public has any idea who I am," says Fogelnest, who rep resented one of the lesser defendants.

But Fisher, who represented one of the alleged ringleaders, says law yers can also be saddled with the rep utation of being a Mafia lawyer by taking on mega cases. "I became known as the Pizza lawyer," he says. "All of the print and TV publicity that I had for the entire 17 months was on account of my representation of an

alleged mobster, who besides being a

reputed boss of a Mafia unit was also an alleged heroin dealer."

Despite these warnings, many lawyers admit there also are rewards to taking on the big time. In fact, at least two of the Pizza Connection lawyers, Lewis and Fogelnest, are in volved in another mega-trial with 10 defendants who are allegedly con nected to the Gambino crime family.

Lewis has moved his office from the converted storeroom to a suite with a view of the Brooklyn Bridge. He has computerized his office and expanded his library. His phone rings more often than it used to.

"It was an opportunity to work on the biggest stage of all," says Lewis. "In effect it's getting to Broadway

without having to play regional thea ters. You're there with some of the best lawyers in the country. The abil ity to learn is unparalleled."

"You get an opportunity to work at the cutting edge of the law," says Fogelnest. "It's big and complex and fascinating."

"What's the reward of climbing Mount Everest?" says Fisher. "There will never be another Pizza case. It's just the greatest trial experience you could have."

ABA JOURNAL / MARCH 1, 1988 T7



Article Contentsp. 74p. 75p. 76p. 77

Issue Table of ContentsABA Journal, Vol. 74, No. 3 (MARCH 1, 1988), pp. 1-140, 143-150Front MatterA Message From the PresidentWHAT SHAPES THE PROFESSION: MONEY, MORALS, SOCIAL OBLIGATION? [pp. 10-10]

Letters [pp. 12, 14]NewsPARENTS SUE LIQUOR COMPANIES: Cite lack of warnings about fetal alcohol syndrome [pp. 17-17]ERISA SPURS PRACTICE: Employee-benefits attorneys in demand [pp. 18-18]THAT #$% CLIENT!: What to do with obstinate clients [pp. 19-19]A SURPRISE LEGAL ANGLE: Firm that rates schools used by lawyers in custody cases [pp. 20-20]OPEN DEPOSITIONS TO PRESS?: Judge's order hailed as First Amendment victory [pp. 22-22]$2.48 BILLION TRUST FUND: A.H. Robins faces claimants, bankruptcy, takeover agreement [pp. 24-24]McCLESKEY RETRIAL: Latest appeal succeeds [pp. 26-26]MANDATORY PRO BONO?: Maryland proposal sparks debate among lawyers [pp. 28-28]SECTION URGES PRO BONO [pp. 29-29]QUOTES [pp. 29-29]ADOPTION DEBATE REOPENED: Child's slaying spurs critics of private adoptions [pp. 30-31]HEDONIC DAMAGES: Illinois case to be reheard en banc [pp. 31-31]NEW TACK FOR VICTIMS' RIGHTS: Groups now target state constitutions for amendments [pp. 32-32]BISHOP IS A LAWYER: Cardinal Krol's successor an ABA member [pp. 33-33]LAWYER'S ROCKY MOUNTAIN HIGH: Aspen Institute just the thing for 'lawyer burn-out' [pp. 34-34]MARSHALLING HIS VIEWS: Justice's controversial comments break 20-year silence [pp. 36-36]BLIND JUSTICE DENIED? Disabled lawyers finding doors closed [pp. 38-38]SELF-HELPERS ON THE INCREASE: Nearly half of Phoenix divorces done without lawyers [pp. 40-40]INSIDER TRADING CURES? More aggressive enforcement, legislation seen [pp. 42-43]PROTECTING YOUR FIRM: What policy on client information should say [pp. 43-44]SPECIAL PROSECUTORS: Is law unconstitutional? [pp. 44-44]GEORGIA AG BACKED: State bar blocked [pp. 44-44]

At Issue: MEDICAL MALPRACTICE [pp. 48-49]Supreme Court Preview [pp. 50-50]Supreme Court ReportWAITING FOR KENNEDY [pp. 52-55]

The Opinions of Anthony Kennedy No Time for Ideology [pp. 56-61]The New Rules for International Contracts [pp. 62-66]Last Chapter for Bar Residency Rules? [pp. 68-70, 72]LITIGATIONMega-trials: Risks and Rewards [pp. 74-77]Rambo Litigation Why Hardball Tactics Don't Work [pp. 78-81]The Verdict on Surrogate Jury Research [pp. 82-86]

2ND ANNUAL LEGAL SOFTWARE DIRECTORY [pp. \[1\]/SD(89)-28/SD(116)]LitigationCROSS-EXAMINATION [pp. 117-118]

Lawyer LIFESTYLESLIVING AT THE MOVIES [pp. 120-121]

Trends in the Law [pp. 122-125]Your FinancesBETTING ON A WEAK DOLLAR [pp. 126-127]

EthicsTHE RIGHT CHOICE [pp. 128-128]

MarketingFORMAL PRESENTATIONS [pp. 130-130]

Office TechnologyAPPLE'S ACT II [pp. 131-132]

Books for LawyersReview: untitled [pp. 133-133]Review: untitled [pp. 133-134]Review: untitled [pp. 134-135]Review: untitled [pp. 135-135]Review: untitled [pp. 135-136]

INSIDE ABANews Update [pp. 137-139]New Products [pp. 143-143]Public Service Profiles [pp. 144-144]

War Stories [pp. 150-150]Back Matter

mega-trials: risks and rewards

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