Reflections on the Experience of Representing Organized Criminals

Honorable Gerald Alch*

I. INTRODUCTION The concept of representing criminal defendants is not easily grasped. The ability to advocate for a person that the entire world believes is guilty of a crime is beyond the conscience of most individuals, but not a lawyers conscience. Some defense attorneys will offer the stock, automated response that all criminal defendants have a constitutional right to counsel,1 but many trial lawyers are drawn to the competitive nature of the courtroom. They thrive on the thrill of litigating cases and the more controversial, the larger the thrill. Organized crimethe Mafia, La Cosa Nostra, or the Patriarca Family presents the most controversial and high-profile criminal cases. For the true criminal defense attorney, representing the Mafia is the big leagues. As it goes in the big leagues, you might only get one shot to prove yourself. If you fail, it is back to the minors with a slim chance of getting called up again. If you succeed, you can expect to be called upon in the future. If you go beyond courtroom success and earn the admiration and trust of these clients, then you can expect to be treated as family; this is where the line gets blurry. Many thrill-seeking lawyers are driven by the desire to win, impress clients, earn the clients respect, and become family. It can be glamorous to defend the Mafia. However, high rewards do not come without risks. When representing members of organized crime it is necessary to stay on the right side of the thin-line drawn between ethical lawyering and criminal actions. The attorney could risk the possibility of aiding and abetting a

* Hon. Gerald Alch currently teaches trial practice courses at New England Law | Boston and Suffolk University Law School. Judge Alch worked as a partner with F. Lee Bailey in criminal defense before becoming the first Justice of the Dedham District Court in Massachusetts. Many thanks to David Habeeb, J.D. 2012, New England Law | Boston, for the compilation of and research for this article. 1. U.S. CONST. amend. VI.

219

220

CRIMINAL AND CIVIL CONFINEMENT

[Vol. 38:219

criminal enterprise or violating the Racketeer Influence and Corrupt Organization Act (RICO)2 and only be rewarded with a tarnished reputation.3 Keep your moral compass in line with your heart and you will be successful. This article discusses the relationship between the attorney and the organized criminal client. Part II explores the atmosphere surrounding organized crime. Part III provides background on the role of house counsel to a criminal organization under the RICO statute. Part IV explains how wiretapping and electronic surveillance create difficulties for attorneys communicating with organized criminal clients. Part V analyzes the ethical dilemmas faced by attorneys who represent organized criminals. II. ENGAGING ORGANIZED CRIME THROUGH THE ATTORNEY-CLIENT RELATIONSHIP A. The Glamour Many people assume that representing members of organized crime is fraught with danger, tempting the lawyer to stray from ethical boundaries as his reputation implodes; this is not necessarily so.4 High-ranking clients within organized crime structures are selective and astute in their choice of representation. The reputation, everything there is to know about each potential counselor is scrupulously studied and personal opinions are collected for more study. A lot is on the line, for everyone.5 The attorney wants to be retained as counsel because his professional portfolio will be infused with impressiveness. It is a potential first step to recognition, with the ultimate dream of being connected.

2. If a court determines that the attorney has acted as house counsel for the illegal enterprise, then the attorney can be disqualified from representing any of the members in a particular case. See, e.g., United States v. Cannistraro, 794 F. Supp. 1313 (D.N.J. 1992); United States v. Gotti, 771 F. Supp. 552 (E.D.N.Y. 1991); United States v. Melo, 702 F. Supp. 939 (D. Mass. 1988); United States v. Castellano, 610 F. Supp. 1151 (S.D.N.Y. 1985). 3. See generally United States v. Simone, No. Crim. 91-569, 1998 WL 54387 (E.D. Pa. Feb. 3, 1998) aff'd, 172 F.3d 42 (3d Cir. 1998); Peter Margulies, Lawyers' Independence and Collective Illegality in Government and Corporate Misconduct, Terrorism, and Organized Crime, 58 RUTGERS L. REV. 939, 941-42 (2006). 4. Contra Ronald J. Ostrow, Bribery, Intimidation Reported Among Duties of Mafia Lawyers, L.A. TIMES, Jan. 30, 1986, http://articles.latimes.com/1986-01-30/news/mn2168_1_mafia-lawyers. 5. See, e.g., id.; Hon. Gerald Alch, Trial Trimmings: What Goes On Off The Record, GERALD ALCH: I WUZ THINKIN (Sept. 9, 2011), http://geraldalch.blogspot.com/2011/09/ trial-trimmings-what-goes-on-off-record.html [hereinafter Trial Trimmings].

2012]

REPRESENTING ORGANIZED CRIMINALS

221

This, after all, is the professional life you have chosen. It has its perks; many restaurant maitre ds will greet you at the door with aplomb; heads will turn and yours will swell.6 This may be laughed at or ridiculed by others, but these simplistic rituals are part of the life. To organized crime members, these rituals are to be achieved and preserved. If you are introduced as a friend of mine, you have achieved connected status7 and you will find your seat has been moved closer to the boss at a meeting. B. Establishing the Attorney-Client Relationship The glamorous lifestyle notwithstanding, in order to represent organized crime families, an attorney must observe and adhere to specific rules. For example, when the boss is speaking you never avert your eyes. If you are politely requested to visit an incarcerated organized crime member, you understand that you have just been ordered to do something. When the top echelon of the Boston Mob was indicted under RICO and held on high bail, lawyers were summoned to their place of confinement for an organizational meeting to decide who would be representing whom. The meeting ended without any discussion of fees. The next day, I went to speak to the boss about this matter. He assured me that a generous fee had been allocated for each attorney and directed me to see a specific Boston lawyer who would take care of it. When I met with this Boston lawyer later that day, I found the fee was too low. The trial preparation and the actual trial itself were to be so long that I, essentially a sole practitioner, could not handle it. I thought long and hard, considering all the relevant tangibles and intangibles. I again drove out of state to see the boss. I wanted to discuss my position with him face to face, rather than through another, to show respect. I leveled with him. He displayed no anger or resentment. He shook my hand and said he understood. He asked that I bill him for what I had done up to that point. I never did bill him, nor did I ever pick up on any negative consequences. I had served them well, and my relationship with them had served me well. In my own practice, I quickly established lines of conduct with which I was comfortable. Meetings were at my office. Dinner invitations were gratefully acknowledged, but politely declined. There were exceptions, but very few. Dinner invitations may seem harmless, and the rules of ethics

6. See, e.g., Hon. Gerald Alch, Liking A Bad Guy, GERALD ALCH: I WUZ THINKIN (June 30, 2011), http://geraldalch.blogspot.com/2011_06_01_archive.html [hereinafter Liking A Bad Guy]. 7. See, e.g., LETIZIA PAOLI, MAFIA BROTHERHOODS: ORGANIZED CRIME, ITALIAN STYLE 76 (2003).

222

CRIMINAL AND CIVIL CONFINEMENT

[Vol. 38:219

allow a lawyer to accept gifts from clients.8 However, a lawyer is prohibited from soliciting substantial gifts.9 If clients offer substantial gifts, questions may arise as to whether the lawyer unduly influenced the client to do so.10 When discussing a fee amount, you need not be shy in justifying your request. However, when a deal is made, that is it; negotiating is forever off the table. This form of negotiating is customary with organized criminals.11 There is leeway within the rules of ethics when dealing with a regular client with whom the lawyer has a general understanding concerning fees and representation, but having the agreement in writing helps to avoid misunderstandings.12 By having an established fee agreement and creating boundaries for social invitations, the distinction between counselor and friend is less likely to become blurred. C. Limiting the Relationship One day, a potential client came to my office; he incurred a substantial gambling debt with The Boys and heard that I was in a position to intercede on his behalf regarding more lenient payback arrangements. I said I would look into it and accepted a fee. The very next day, I was visited by the Boston consigliore. He looked at me in disbelief. You dont know who this guy is and you let him know that youre connected? Whats the matter with you? Youre smarter than that. Tell this guy you cannot help him and give back his money. He was not mad, just a little annoyed, but unequivocal in what he wanted me to do. I acted in a way that goes against a criminal defense attorneys grain; I returned the money quickly! I wondered how the news spread so quickly, but my lasting impressions were two-fold. One, I was being watched and two, I had been officially designated as connected by The Boys. Organized criminals notwithstanding, the trials and experiences attending this type of work are challenging, invigorating, and all the more colorful. For reminiscing purposes, they serve as career milestones: a potpourri of drama and, yes, even humor. If the lawyer has the personal proclivity to be able to ignore the assumed guilt of the client and is drawn to the thrill of professional combat, ready to give 100% with no holdback, in it for the juice of winning, with the client
MODEL RULES OF PROFL CONDUCT R. 1.8 cmt. [6] (2010). MODEL RULES OF PROFL CONDUCT R. 1.8(c) (2010) (emphasis added). MODEL RULES OF PROFL CONDUCT R. 1.8 cmt. [6] (2010). This is contrasted with a preferred practice to have formal fee agreements made, in writing, with all new clients prior to representation. MODEL RULES OF PROFL CONDUCT R. 1.5(b) (2010). 12. MODEL RULES OF PROFL CONDUCT R. 1.5 cmt. [2] (2010).
8. 9. 10. 11.

2012]

REPRESENTING ORGANIZED CRIMINALS

223

reaping the ultimate and glorious consequence of victory.13 The lawyers thrive on the competition of being pitted against opposing counsel in a courtroom, gloves off.14 Some may find this selfish because the clients are the ones who should benefit from the acquittal, not the egos of their attorneys.15 The response to that inquiry is simple: if the lawyer wins, the client gets an acquittal.16 Of course, in pursuing victory the lawyer must act within the confines of ethical and legal obligations.17 Defending the likes of organized criminals can be a risky endeavor. You not only need to protect yourself from being disqualified from the case18 or prosecuted,19 but also need to avoid offending or upsetting these clients for safety reasons.20 These people do not like to be insulted. Though they may not take action personally, it is a safe bet to wager that there is someone ready and able to come to their defense at a moments notice.21 With great risks, however, come great rewards; this is the Mafia after all. These guys can get you into sold out Frank Sinatra shows,22 they will put you up in the fanciest hotels while you are trying their cases,23 and once you are able to earn their respect, they will treat you as one of their own because you are protecting their family.24
13. Hon. Gerald Alch, How Can You Defend Someone You Know Is Guilty?, GERALD ALCH: I WUZ THINKIN (May 26, 2011), http://geraldalch.blogspot.com/2011/05/how-canyou-defend-someone-you-know-is.html. 14. See, e.g., Tom Barry, Enter the Courtroom, SUPERLAWYERS.COM, (July 2008) http://www.superlawyers.com/virginia/article/Enter-the-Courtroom/9fff95fd-e542-4b83-bla 6-4c87240e1c0e.html (last visited Feb. 17, 2012). 15. See, e.g., Jamison Koehler, Sometimes the Guilty Verdict is a Win (At Least That Is What I Tell Myself), KOEHLERLAW.NET (Sept. 12, 2011), http://koehlerlaw.net/2011/09/ sometimes-a-guilty-verdict-is-a-win-at-least-that-is-what-i-tell-myself/. 16. Id. 17. For example, lawyers are prohibited from obstructing, destroying, or falsifying evidence. MODEL RULES OF PROFL CONDUCT R. 3.4 (2010). 18. See, e.g., Gotti, 771 F. Supp. at 567. 19. See, e.g., United States v. Simone, No. Crim. 91-569, 1998 WL 54387, at *1 (E.D.Pa. Feb. 3, 1998), affd, 172 F.3d 42 (3d Cir. 1998). 20. See, e.g., United States v. DiSalvo, 34 F.3d 1204, 1208 (3d Cir. 1994). For example, if you do not want your name to end up on a hit list, do not call such a client a gorilla, unless of course you can win the case. Trial Trimmings, supra note 5. 21. Hon. Gerald Alch, Equivocal Attraction, GERALD ALCH: I WUZ THINKIN (Oct. 30, 2011), http://geraldalch.blogspot.com/2011/10/equivocal-attraction.html. 22. Hon. Gerald Alch, The First Time I Saw Sinatra, Live, GERALD ALCH: I WUZ THINKIN (Sept. 3, 2011), http://geraldalch.blogspot.com/2011/09/first-time-i-saw-sinatralive.html. 23. Liking A Bad Guy, supra note 6. 24. See, e.g., Hon. Gerald Alch, A Day in The Life, GERALD ALCH: I WUZ THINKIN (Aug. 26, 2011), http://geraldalch.blogspot.com/2011/08/day-in-life.html.

224

CRIMINAL AND CIVIL CONFINEMENT

[Vol. 38:219

Beyond the tangible benefits, however, these will be some of the most astute and educated clients you may ever have. Many of them have a keen understanding of the legal system and as long as you remain honest and provide them with the best efforts you can muster given the circumstances, you may find that you can win respect despite losing in court.25 III. THE ROLE OF HOUSE COUNSEL UNDER THE RICO STATUTE Representing organized criminals is nearly the polar opposite of representing a legitimate organization. House counsel for a corporate client represents the corporation, not the individuals, and is only allowed to represent the individual employees in limited circumstances.26 An organized crime syndicate, by its very nature, cannot have house counsel because such a relationship can be used as evidence under RICO to establish an enterprise.27 Therefore, when it comes to criminal organizations, counsel should only represent members on an individual basis and should always deny that an enterprise exists. In a RICO case, if the government can establish that the defense counsel has acted as house counsel to the enterprise that gives rise to the charges, the government may move to disqualify the attorney.28 Attorneys are disqualified from acting as house counsel to the Mafia because the presence of house counsel is indicative of an organization. The government is able to use the house counsel as a witness in order to establish that the criminals charged with RICO violations were acting as an enterprise as defined by the statute.29 This can be done, for example, by showing that the attorney represented one or more of the members of the enterprise, but was paid by the boss.30 Furthermore, counsel can be disqualified on grounds that an actual conflict of interest exists, which cannot be waived, as may be the case when such a conflict gravely imperils the prospect of a fair trial.31
See Liking A Bad Guy, supra note 6. See MODEL RULES OF PROFL CONDUCT R. 1.13 (2011); see also Jonathan A. Segal, Educating Executives on the Role of In-House Counsel, EXECUTIVECOUNSEL.INFO (June/July 2010), http://www.executivecounsel.info/v7/i3/educating-executives-on-the-roleof-in-house-counsel/. 27. See, e.g., Cannistraro, 794 F. Supp. at 1321; Gotti, 771 F. Supp. at 560; Melo, 702 F. Supp. at 940; Castellano, 610 F. Supp. at 1167; Margulies, supra note 3; 18 U.S.C. 1961 (2006) ([E]nterprise includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.) 28. See cases cited supra note 27. 29. See cases cited supra note 27. 30. See, e.g., Gotti, 771 F. Supp. at 560, 567 (quotations added). 31. Id. at 559 (quoting Wheat v. United States, 486 U.S. 153, 166 (1988) (Marshall,
25. 26.

2012]

REPRESENTING ORGANIZED CRIMINALS

225

Even when the government does not plan to call the attorney as a witness, an issue may arise if the government plans to use the attorneys relationship with the defendants as evidence of the existence of an enterprise. For example, the government may seek to establish the existence of an enterprise by offering into evidence certain conversations between counsel and the defendant.32 Such counsel would then, in essence, be arguing as an unsworn witness by attempting to justify his own conversations.33 This problem normally does not exist for the house counsel of a legitimate enterprise, because establishing the existence of the enterprise is usually not an element of a charged offense, as it is under the RICO statute. A. The Right to Counsel Under The Sixth Amendment The right to counsel under the Sixth Amendment has been expanded to mean that the criminal defendant has the freedom to choose his own counsel.34 However, this freedom to choose is not an absolute right.35 For instance, a criminal defendant may not choose a person not licensed to practice law or a lawyer who refuses to represent the defendant as his counsel, nor can a criminal defendant demand to be represented by an attorney that the defendant cannot afford.36 A further limitation exists when the attorney of choice has a conflict of interest that the court determines cannot be waived.37 A court may determine that a conflict may not be waived if the conflict threatens the institutional interest in the rendition of just verdicts38 or perhaps if it gravely imperils the prospect of a fair trial.39

J., dissenting)). 32. Melo, 702 F. Supp. at 943. 33. Id. 34. Gotti, 771 F. Supp. at 558-59 (quoting Powell v. Alabama, 287 U.S. 45, 53 (1932)). 35. Id. at 559. 36. Id. 37. Id. (citing Wheat, 486 U.S. at 160). 38. Id. 39. Id. (citing Wheat, 486 U.S. at 166). [W]hen a trial court finds an actual conflict of interest which impairs the ability of a criminal defendants chosen counsel to conform with the ABA Code of Professional Responsibility, the court should not be required to tolerate an inadequate representation of a defendant. Such representation not only constitutes a breach of professional ethics and invites disrespect for the integrity of the court, but it is also detrimental to the independent interest of the trial judge to be free from future attacks over the adequacy of the waiver or the fairness of the proceedings in his own court and the subtle problems implicating the defendants

226

CRIMINAL AND CIVIL CONFINEMENT

[Vol. 38:219

When a court is tasked with the difficult position of passing judgment on whether a particular attorney ought to be disqualified from representing his client, the presumption at the outset is in favor of the clients choice of counsel.40 The government may overcome that presumption not only by showing that an actual conflict exists, but also by demonstrating that there exists a serious potential for conflict.41 Suffice it to say, house counsel for the Mafia is nearly an oxymoron. Such a relationship not only validates the existence of an enterprise under the RICO statute, but counsel is likely to be disqualified from representing these clients.42 Therefore, it is important for a defense attorney to be very deliberate in establishing a relationship with only an individual as a client, not the family. Payment of fees should come from the client, not the boss, and it would also be wise to conduct all conversations at the attorneys office, where it is less likely to be recorded by bugs. IV. WIRETAPPING AND ELECTRONIC SURVEILLANCE
When we met in the attorneys room . . . I took note of a strange noise. It was a low humming of some unidentifiable music. It was coming from my local counsel. The more my questions continued, the louder the sound became. It was now a full-fledged opera nearly shattering my eardrums. Between this and the hand-to-mouth-turning-head routine, I was on the verge of going mad. I glanced at my co-counsel with a what the f-ck is goin on here look. Still belting out Madama Butterfly, he began furiously pointing at the ceiling and walls of the room. I got it. He was shielding our conversation from the assumed bugs hidden everywhere. I was now convinced. I had lost my mind. I needed a drinkfast. [The defendant] had been picked up on phone taps. The Government played them for the jury. This entailed the wearing of earphones by everyone, including counsel and defendant. Cords ran from these head sets to electrical outlets set into the courtroom floor. There was very little slack, severely limiting head movement. Gabes gaze was straight ahead, courtesy of his left hand. I was listening, very intently, to the playback when I heard a noise interfering with my hearing. It was a drumbeat, steady and, frankly, excellently performed. As if the Notre Dame marching band had stormed in. It was Gabes elongated fingers . . . banging on the defense table. I hissed, [S]top that sh -t! He
comprehension of the waiver. Wheat, 486 U.S. at 162 (quoting United States v. Dolan, 570 F.2d 1177, 1184 (3d Cir. 1978)) (emphasis added). 40. Gotti, 771 F. Supp. at 558 (quoting Wheat, 486 U.S. at 164). 41. Id. 42. See cases cited supra note 27.

2012]

REPRESENTING ORGANIZED CRIMINALS

227

was seated to my right so he was already (and constantly) looking at me, and nonchalantly responded While youre listening to wutsisname, Im doin the wutchamacallit.43

The legal history of wiretapping can be traced back to the invention of the telegraph and the telephone, and it was first used by civilians.44 Recognizing the potential for invasiveness, Congress enacted the Communications Act in 1934 prohibiting the publication or divulging of intercepted communications without authorization from the sender.45 The Supreme Court interpreted this to mean that evidence gathered from law enforcement agents through wiretaps is inadmissible in federal court.46 Law enforcement agencies needed a way to gather evidence to support the charges which, without electronic surveillance, was very difficult, if not impossible, to gather. Congress recognized that the need for law enforcement agents to use such evidence gathering techniques posed a threat of abuse to privacy rights and responded by passing Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III). 47 At the same time Title III was enacted specifically to assist in the fight against organized crime.48 Congress recognized that organized crime operated on a different level from legitimate business enterprises making it difficult to gather evidence of criminal activity and therefore the use of wiretapping was essential to their investigations.49 Under Title III, law enforcement agents are allowed to use electronic surveillance and wiretaps to gather evidence, but first must apply for a court order with a showing of probable cause.50 However, law enforcement agents can only get such a court order if probable cause is shown that the wiretap will produce evidence of the enumerated offenses.51 Unfortunately for organized criminals, violations with respect to RICO are included in such enumerated offenses.52 Where the RICO statute provides a tool with which to prosecute organized criminals, Title III provides a tool to gather evidence and build a case under RICO.
43. Hon. Gerald Alch, Wutsisname and Wutchamacallit, GERALD ALCH: I WUZ THINKIN (Sept. 19, 2011), http://geraldalch.blogspot.com/2011/09/wutsisname-andwutchamacallit.html [hereinafter Wutsisname and Wutchamacallit]. 44. Orin S. Kerr, The Fourth Amendment And New Technologies: Constitutional Myths and the Case For Caution, 102 MICH. L. REV. 801, 840-41 (2004). 45. Id. at 845; see also 47 U.S.C. 605. 46. Nardone v. United States, 302 U.S. 379, 384 (1937). 47. Geoffrey C. Mason, Electronic Surveillance, 84 GEO. L.J. 821, 821 (1996). 48. S. REP. NO. 90-1097, at 43 (1968). 49. Id. 50. See 18 U.S.C. 2518(3)(a)-(b) (2006). 51. See 2516(1). 52. 2516(1)(d).

228

CRIMINAL AND CIVIL CONFINEMENT

[Vol. 38:219

Whenever law enforcement discovers a new technique to fight crime, the criminals are quick to discover a way to disrupt it. Once the Mafia figured out that their conversations were being picked up by electronic surveillance from the FBI and other law enforcement agents, they began to employ a very complicated and highly intelligent means to disrupt the signal: they would turn on the radio.53 The background noise of the radio did nothing more than make it difficult for the law enforcement agents listening to hear what was being said, but it was enough to frustrate their efforts.54 V. ORGANIZED CRIME TRIALS The atmosphere surrounding an organized crime trial can be an intense experience. The case will most likely draw heavy attention from the media, and sometimes even celebrities. Winning a trial is the goal for any litigator, but with this sort of attention the desire to win is magnified. The following story is an example of one such trial where I got lost in the glamour of the trial. Everything was going my way. My obsessive preparation was paying off. As sure as an attorney can be, that is how confident I was of a verdict of acquittal. Then I allowed my adrenaline to take over. It wasnt enough for me to exonerate my client, I wanted to reveal the identity of the true perpetrator. I overreached.55
I enjoyed a fairly tight friendship with Freddy Lorretti, a crime reporter for the then Herald American newspaper. Having a few drinks together meant many laughsa fine time. On one such occasion, Freddy got relatively serious and asked if I was really as obsessive a Sinatra fan as I claimed. When I got through emphasizing my idolization of The Man and His Music, Freddy told me, thus[]:

53. Wutsisname and Wutchamacallit, supra note 43; see, e.g., SELWYN RAAB, FIVE FAMILIES: THE RISE, DECLINE, AND RESURGENCE OF AMERICAS MOST POWERFUL MAFIA EMPIRES 420 (2006). 54. Wutsisname and Wutchamacallit, supra note 43. 55. The defendants in this story had been convicted of armed robbery and murder in the second degree. See generally Comm. v. Graziano, 331 N.E.2d 808, 808 (Mass. 1975). The Massachusetts Supreme Judicial Court reversed the conviction and ordered a new trial. Id. The new trial resulted in an acquittal and as such is unreported. See generally Jean Caldwell, 2 Innocent in murder retrial, BOSTON GLOBE, Nov. 27, 1977, at 32 . The case was tried before the Honorable John M. Greaney, who, at that time, was a Massachusetts Superior Court Judge. See generally id. Judge Greaney went on to sit on the Massachusetts Court of Appeals, and subsequently was elevated to the Massachusetts Supreme Judicial Court. Adjunct Law Faculty: Hon. John Greaney (Ret.), SUFFOLK UNIVERSITY LAW SCHOOL, http://www.law.suffolk.edu/faculty/directories/faculty.cfm?instructorID=1089 (last visited Apr. 26, 2012). Hon. John Greaney is presently a member of the faculty at Suffolk Law School. Id. This distinguished jurist remembers this case well and refers to it regularly in his classes.

2012]

REPRESENTING ORGANIZED CRIMINALS

Two Italian Americans had been indicted for first degree murder. The victim was allegedly killed during a drug deal gone badly. The States case was, in the main, predicated upon the testimony of one Sanders, who claimed to have seen the defendants commit the shooting. At trial, his testimony was impressive enough, so that came time for closing arguments, a guilty verdict was inevitable. However, during his final remarks, the D.A. implored to the jury, Lets get the Mafia out of our town!

229

The defendants were convicted and sentenced to life imprisonment, without possibility of parole. Upon appeal, the case was overturned on the ground that the D.A.s remark was so incendiary and inflammatory so as to obviate any chance of a fair trial. By this time, given the slow turning of the wheels of justice, the defendants had served four years in state prison, maximum security. The D.A. scheduled a retrial, bail was set, under the circumstances, the defendants posted it and were looking for new counsel. Interesting case. Freddy continued: Sinatra had taken an interest in the case, intended to monetarily contribute to a defense fund and to make an appearance during trial. At this point, I interrupted with a shriek, Im in! And, so I was. My new clients were made men. This was, therefore, somewhat like a contingent fee arrangement: I win, I live. I lose, I die. Looking back at it, the case had been steered to me by people, in their own fashion. Freddy, standing alone, was not that juiced. But, the how of it was of no consequence. I began to prepare. And, truth be told, given my chosen occupation, I was psyched.

....
I had the ultra important luxury of a private investigator who was well respected in the business. He, also, was an Italian American who, learning of, and having empathy for, what he perceived to be the cause clbre of the case, had enthusiastically volunteered his services. I told him to reconstruct the life of witness Sanders from the date of the guilty verdict to right now. Where was he living and what was his rent? How did he get the new car in which he was now gallivanting, how much did it cost? How was he able to put food on the table? If he was working, what was his weekly take home pay and was it enough to cover his basic lifes expenses? And, who had gotten him the job? I wanted a net worth analysis on the guy and see what the numbers brought in. The P.I.s efforts paid off. It seems that the D.A. had been, indeed, a friend in need. Under a camouflage of non-involvement, Sanders had a bread and butter incentive to never miss a meeting with his singing coach. I

230

CRIMINAL AND CIVIL CONFINEMENT

[Vol. 38:219

now had my quiver quite full of cross-examination arrows. So far. [N]ot bad. With mounting confidence, I began to research and develop a second ground of attack. The polygraph. The state law, at that time, held that polygraph results of a test, run on a defendant, would be admissible under strict conditions. I would file a motion that my clients be administered the test by a polygraph examiner whose credentials satisfied the court. A hearing would be held to decide this issue. But, as always, if it looks too good to be true, it isortheres a kicker. The results of the test would come into evidence, good or bad. If I rolled the dice and the guys flunked, I would immediately become uninsurable. So, having derived the benefits of representing bookies, and, having watched Casino for the thirty-third time, I decided to narrow the odds, as much as possible. I contacted a highly respected polygrapher in Detroit and scheduled a dry-run, off the record, dress rehearsal for my clients. The test results would determine whether I would proceed with the tricky-terrain procedure. What effect, if any, the four years of imprisonment would have, remained an unknown factor. Whats to lose, I figured. Bad results, the whole thing never happened. But I had to know. They both passed. . . . My direct examination accentuated the examiners credentials and expertise and the Judge ruled that he was, indeed, qualified. I then brought out that my clients had taken and passed the polygraph, and the judge ruled that this fact could be presented to the jury. The war remained to be won, but this was a major battle victory. Things were, very nicely, coming together, and, with the inevitable passage of time, the trial date was soon upon us. And, it began. Sanders testified exactly as he had in the first trial. I had obtained a transcript of his testimony and had put in many hours preparing for his cross examination. . . . I rose to cross-examine Sanders.56 .... I slaughtered Sandersdestroyed him. All the information gleaned in pre-trial investigation spawned lethal questions for which Sanders was no match. . . . After the prosecution rested, I called to the stand my polygraph expert from Detroit. On direct, he testified just as he had during the pre-trial hearing. He emphasized his credentials as an expert, explained what
56. Hon. Gerald Alch, The Lawyer Overreaches (Part One), GERALD ALCH: I WUZ THINKIN (May 2, 2011), http://geraldalch.blogspot.com/2011/05/lawyer-overreaches-partone.html [hereinafter The Lawyer Overreaches (Part One)].

2012]

REPRESENTING ORGANIZED CRIMINALS

231

questions he had used in the examination, and meticulously explained the results, i.e. the defendants were telling the truth when they denied any involvement in the homicide. The jury appeared to hang on his every word and, if faces can be read, they were believers. The cross examination was weak, questioning the reliability of the polygraph, which the expert easily deflected with facts and figures. Two for the defense. The D.A. asked for a lobby conference. In chambers, he said, Your Honor, wed like to level the playing field, here. Attorney Alch has had his clients run on a lie-detector and the jury has been told that they passed. In light of this, we ask that our eye witness be able to take that same route. Were confident that hell pass it and the jury should know that, too. The problem is, the Judge replied, the case law specifically limits this option to the defendant, not to a witness. His eyes turned sharply to me. Do you have any comment, Mr. Alch?

....
Your Honor, whats good for the goose should be good for the gander! Firstly, I dont believe I was quoting Oliver Wendell Holmes, not exactly, anyway, and, secondly, what the hell is a gander? I believe in my clients and, therefore, I am not afraid. I, subject to your Honors discretion, have no objection to the prosecutions request. The Judge put it all on the record and asked the D.A. to propose an expert whom they wished to administer the test to Sanders. The prosecutor produced a resume of a retired New Jersey State Trooper whose active duty status was that of a polygraph examiner and expert. The troopers credentials looked sufficient enough and, after all, the Judge would have a hearing to judicially determine that question. The Trooper came to town. He looked as if he had been created by the Lord to be the quintessential prosecutorial polygrapher. Should he ever do anything that might help the defense, he would fall straight to hell. The Judge accepted him as an expert and ordered him to test Sanders. . . . The test was run on Sanders. He flunked! . . . The truth had prevailed yet again. The jury was told the whole story. Three for the defense. I did not call the defendants to the stand, with their consent . . . and I was about to rest my case, but the late hour caused the Judge to recess, putting that formality on the next days calendar. That night, it happened. To be prepared for the unanticipated is an oxymoron. The best you can do is hope that your judgment mechanism is finely tuned and your

232

CRIMINAL AND CIVIL CONFINEMENT

[Vol. 38:219

scales of reason are properly aligned. Throw in a dash of good lucka large one. It was 7 p.m. I had just returned from dinner. There was a frantic knocking on my hotel room door. . . . It was my investigator. He looked wired. He began talking while still in the hall. I told him to step in and closed the door behind him. Whats wrong? Nothing, nothings wrong. He was almost yelling. You wont believe this. I cant believe it myselfbut its real. Whatwhat the hell is it? After court today, a woma n came up to me and asked me if I was on the defense team. When I told her I was the investigator, she told me that she knew something about the case but, until now, had been afraid to come forward. His volume went up a notch. She was there when the murder went down. She saw the whole thing. Our guys were not the shootersthey werent even there. It was just Sanders and two other guys who did the killing. She knows their names and where they come from. Ive gone over it, again and again, I believe her, Go d almighty, I do. Shes downstairs, in the lobby. Can I bring her up? I told him, Of course, and while I was alone, I tried to get a focus on this thunderbolt. I couldnt. All I had were questions. Have I just hit a defense lottery? Was this some form of karmic re-enforcement of my belief in the innocence of my clients? Where had this woman come from? Was she legit? Serious face time was in order. Another knock on the door and I was looking at her. I began by asking many questions. And then, listening. This cycle seemed never ending. This was to be an all-nighter. She repeated, in substance, all that my P.I. had told me. Her name was Bobby Jensen. I had her repeat, over and over again, how and why she had come to us; what she saw; how she came to be at the crime scene, how she was able to identify the shootersevery aspect of what she had to say. I did not hesitate to, at times, look at her skeptically, and go over her story again and again. Three hours had passed. I had mucho coffee sent up. I had looked her straight in the eye. My face was, intentionally, one of a Doubting Thomas. My immediate instinct to disbelieve began to erode, very little by very little. I have always believed that if a person is telling the truth, one hundred Clarence Darrows, in fierce cross-examination, could not shake his or her testimony. Conversely, if the person was lying, a first year law student could search for and destroy all aspects of credibility. So far, she seemed to be passing that test. We took a break. I was walking a mine field, but no explosions, yet. I

2012]

REPRESENTING ORGANIZED CRIMINALS

233

decided to intensify her interrogation. I explained that I was going to simulate her being a witness on the stand and conduct a direct examination. Followed by the most thorough and vicious cross I could muster. She said that she understood and was willing to proceed. I called upon all my years of experience, all the hard learned tricks of the trade, and went into a direct. I cant remember how many times. I tried to get her to just answer the question and not add anything. I told her to rely on my questions to illuminate the path she was to follow. Again and again, and again. Finally, given the time restraints, she was passable. Another break. More coffee, this time with danish. It was 2 a.m. Now, the dress rehearsal for cross examination. I really tore into her. I did my best to emulate the most sadistic prosecutor in the annals of criminal jurisprudence. She stumbled quite a bit, but, regardless of the number of times we went through it, she did not waiver from the substance of her story. No punches had been pulled. She had stood her ground. It was 5 a.m. I went into the bathroom for some privacyI didnt have a suite. It was decision time. I was, of course, tired but not spent. Still pumped. They say that if youre afraid, the blood drains from your brain, into your legs and you cant think. I hadnt reached that state, but I knew it was time, as the cowboys used to say, to ponder, real hard. I was convinced of her credibility, so how could I not put her on? My goal was always to prevail in a trial. I had chosen this line of work and, damn it, this was a once in a lifetime opportunity to not only acquit my clients, but also, to reveal who the real murderers were. (Perry Mason Alch?) I decided to call her as a witness. I told my P.I. to have her in court at 8:30 a.m. Just enough time left to shower, shave, brush my teeth and tend to the hair. The next step of official business was to tell my clients everything, answer their questions and see if they approved. Yeah, you guessed it. Whatever I said was O.K. When I got to court, I asked for a lobby conference. I told the Judge that I wished to call one more witness, whom I had not included on my witness list, and why. The prosecutor strenuously objected; a murder trial was no place for a last minute ambush. The Judge asked me for an offer of proofwhat did I anticipate the witness would say. I did so. He deliberated for a minute, obviously considering the strength of this potential testimony, and weighing it against the D.A.s claim of unfair surprise. He ruled in my favor, while telling the prosecutor that he would afford him a reasonable amount of time, via a recess, to prepare a cross. Back in the courtroom, the jury was seated and I called Ms. Jensen to the stand. She came through. The all-night preparation had paid off. She gave every indication of truthfulness. The D.A. conferred with his assistants

234

CRIMINAL AND CIVIL CONFINEMENT

[Vol. 38:219

and requested a recess until 9 a.m. the following morning. Granted. I thanked my witness, told her to remain available and went to my room to get some catch-up rest. I became religious, again. It was 8:50 a.m. when I entered the courtroom. Suddenly, every nerve in my body electrified. All internal alarms went off. Countless negative vibes were suffocating me. The courtroom was packed. I dont mean crowded, like it was every day, I mean wall to wall packed! And to compound the situation, the crowders were all law en forcement: cops, Assistant D.A.s, Deputy Sheriffs, Court Officers, etc. All bank robbers should have been alertedit was unobstructed heist time. And to make matters worse, they were all rubbing their palms together, like the cat who was about to devour the canary. The Judge took the bench and looked at the D.A. Do you wish to cross-examine? No, Your Honor. I wish, instead, to call one rebuttal witness.

....
Into the courtroom walked an elderly man. He looked to be, approximately, 85 years of age. He walked very slowly. He was having difficulty carrying something. It was a huge journal of some kind, looking like it weighed a ton. The Court Officer took it from him and laid it on a small table which had been placed in front of the witness stand. He was duly sworn. Please, state your name, Sir. Roger Tolan. And, what is your occupation? I am the keeper of the records at the House of Correction. And, what have you brought with you today? A journal which lists those persons held in custody for a designated period of time. And, at my direction, have you brought with you such a journal which covers the date of the homicide in this case? I have. Would you please turn to that particular page and tell the jury if the name Bobby Jensen appears anywhere? It does. Miss Jensen was in jail on the date of the shooting in this case, awaiting trial on the charge of prostitution. I was about to lose complete control of my bladder. My vision began to

2012]

REPRESENTING ORGANIZED CRIMINALS

235

fail. I wondered if it was physically possible to kick myself in the ass with my own foot. I looked at my clients. I could see in their eyes that their mantra had changed to What the hell have you done, Gerry? . . . The Judge asked if I wished to cross-examine. I walked to the witness stand and looked at the journal from which the witness had read. There it was, in plain English. My obituary. I was a freakin goner. I stared at the Judge, extended my hands, palms up, and, ever so slightly, shrugged my shoulders. He understood and announced that the court would, this being a Friday, adjourn until Monday, at which time both sides would present their closing arguments. I looked at my investigator. His pallor was dark gray. What could I say to him? The buck stopped with me. The clients were in neutral gear, not being able to fully appreciate the gravity of the situationbut they were catching on, more and more, second by second. I checked out of the hotel and began the long drive home. I had blown the case. I had the case won, but I was too god damn greedy. Why was I such a self-proclaimed hot shot? I had put three lives in jeopardy. The clients and [mine]. And how was I going to address this in my closing? . . . This case was being followed by people in Boston. Had they arranged for the magical appearance of Ms. Jensen? That was a question never to be asked. I drove to the office. They were all there and had ob viously heard the news. I walked in, but before I could say a word, the voice barked, You got yourself into this, you get yourself out of it. That was it. I was dismissed. . . . I spent the weekend working on my final argument. I was good at this and it fell together very nicely. Except, I couldnt think of any way to address my fatal error. Not a word came to mind. Not one single word. I did nothing else but think of what to say. Nada. I had to deal with it, but I kept drawing blanks. Monday morning, during the drive back to court, my mind was still locked. I could think of no valid explanation. Court was in session. The Judge looked at me. Mr. Alch, you may commence your closing argument. I walked to face the jury. My mind was still blank. Five seconds elapsed as I just stood there, saying nothing. The jury began to look at me inquisitively. Had I forgotten what I wanted to say? Was I having a stroke? My mind was numb. And then, I had an epiphany. Tell the truth. Just tell the freakin truth! I took a deep breath, relaxed as much as possible, and put my fate into the charge of my heart and soul. Members of the jury. I owe you an apology. I called a witness who lied

236

CRIMINAL AND CIVIL CONFINEMENT

[Vol. 38:219

under oath, who committed perjury. It is often said that when a lawyer calls a witness to the stand, he is vouching for that persons credibility. Well, I made a terrible mistake. Im ashamed of myself. I am so very, very sorry. I beg you to believe me when I say that I stupidly believed her, and that I would never have risked my career and my life if I had thought otherwise. But, this was my decision, and mine alone. My clients played no role in it. The words were coming more easily, now. The more I spoke, the less my burden was becoming. I went with the flow. No script required. So, please dont hold it against them. From the moment this trial began, whatever I decided to do, they would automatically agree. Well, I let them down, just as I have let you down. Be angry with me, not them. They had nothing to do with this terrible mistake. I was rolling, now. Its so easy to tell the truth. This situation reminds me of a time when a father took his son to Fenway Park to see the Red Sox play. At the bottom of the seventh inning, when everyone rose for the seventh inning stretch, a fight broke out in the bleachers, between a short man and a tall man. All heads turned to watch. When the father and son returned home, they were greeted by the mother who asked, who won? The boy said, The big guy! Whereupon, the father said, She doesnt mean the fight, she means the ball game! I beg you: keep your eyes focused on the real issue of this trial. Its not whether Jensen lied. She did, because of my mistake. The question you are to resolve is whether the prosecution has proved my clients guilty beyond a reasonable doubt. And, I submit that they have not. And, heres why. I then proceeded to present my prepared closing which emphasized all of the pro-defense developments during trial. . . . The jury was out for fifty minutes. They returned not guilty verdicts for both defendants. Bobby Jensen was indicted for perjury in a capital case, pleaded guilty and was sentenced to serious time. My clients were, understandingly happy, and I considered myself both naive and very lucky.57

Criminal trials and the rules of evidence are designed to prevent jurors from forming an opinion about the guilt of a defendant before the trial begins.58 Jurors are forced to focus on the facts presented at trial admissible by rules designed to ensure truthfulness, as opposed to forming an opinion
57. Hon. Gerald Alch, The Lawyer Overreaches (Part Two), GERALD ALCH: I WUZ THINKIN (May 7, 2011), http://geraldalch.blogspot.com/2011/05/lawyer-overreaches-parttwo.html [hereinafter The Lawyer Overreaches (Part Two). 58. See, e.g., Ronald B. Standler, Pretrial Publicity Prevents a Fair Trial in the USA (Feb. 21, 2004), available at http://www.rbs2.com/pretrial.pdf.

2012]

REPRESENTING ORGANIZED CRIMINALS

237

from stories heard in the media, which are often unreliable, irrelevant, or false.59 When your clients are made men60 you can expect the case to be heavily publicized, and may even draw attention from celebrities such as Frank Sinatra.61 The spotlight is on, and you can be sure that those associated with your clients will be paying close attention to your every move.62 The justice system was designed to include a jury composed of unbiased individuals that will only form an opinion based on what they learn during the trial.63 Lawyers, however, know that in actuality jurors are biased and will base decisions on preconceived notions of the defendant and the attorneys involved if given the opportunity.64 Attorneys on both sides of these high profile cases will often use the media as a source to paint their versions of the case and plant the seeds of bias in the minds of potential or current jurors.65 Yet, the rules of ethics limit what a lawyer may say to the media concerning a trial. For example, according to the American Bar Association Model Rules of Professional Conduct:
A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood

See, e.g., id. See RAAB, supra note 53, at 420 (detailing how the Mafia inducts new members and referencing the benefits of becoming a made man). 61. The Lawyer Overreaches (Part One) supra, note 56 (Sinatra had taken an interest in the case, intended to monetarily contribute to a defense fund and to make an appearance during the trial.). 62. See generally The Lawyer Overreaches (Part Two), supra note 57. 63. See, e.g., Donald M. Gillmor, Free Press v. Fair Trial: A Continuing Dialogue Trial by Newspaper and the Social Sciences, 41 N.D. L. REV. 156, 165 (1964). 64. See, e.g., id. at 158-59. 65. See, e.g., United States v. Cutler, 58 F.3d 825, 828 (2d Cir. 1995). The then-United States Attorney, Andrew Maloney, announced the indictment at a press conference, where he called Gotti a murderer, not a folk hero and boasted that this time the governments case, which included extensive wiretap evidence, was much stronger than in the prior trials. Gottis lawyer, Bruce Cutler, a member of the New York Bar, countered by calling the prosecutors publicity-hungry and on a vendetta to frame his client. He was quoted in New Yorks four major newspapersthe Daily News, Newsday, the New York Post, and the New York Times. He also gave an interview on Prime Time Live, a nationally-broadcast television show, where he emphatically denied that Gotti was a mob boss. Id.

59. 60.

238

CRIMINAL AND CIVIL CONFINEMENT

[Vol. 38:219

of materially prejudicing an adjudicative proceeding in the matter. 66

This rule notwithstanding, a lawyer may make public comments to protect the client from recent prejudicial publicity.67 A balance must be struck between protecting the free speech of the lawyer and the integrity of the trial.68 The lawyer is restricted, however, to making statements in order to mitigate the prejudice created by recent media attention.69 In high profile cases the public perception of the client may precede the trial, making it difficult to obtain an impartial jury. However, in such cases the lawyer is not left without remedy; a change in venue may be sought to cure a prejudicial jury. Beyond the ethical requirements which limit the lawyers public voice, the presiding judge may issue a gag order preventing the attorneys from arguing the case in the media, as opposed to the courtroom, which will result in contempt proceedings against the disobedient lawyer.70 A gag order is a restraint on the freedom of speech protected by the First Amendment and therefore must be narrowly tailored to protect the fairness of the trial in order to pass constitutional scrutiny.71 Most federal district courts also have their own rules which prohibit attorneys from discussing the merits of pending criminal cases in public.72 The rules are designed to prevent attorneys from prejudicing the court proceedings as they are privy to non-public information, which if made public, could threaten the fair administration of justice.73 However, it is not uncommon for some of this information to get leaked to the press by anonymous government sources, thus begging the question whether, and to what extent, a defense attorney may respond in order to level the playing field.74 If the goal is to preserve the fair administration of justice, a defense attorney ought to have an opportunity to respond to potentially prejudicial non-public information that has been leaked to the press.

66. 67. 68. 69. 70.

MODEL RULES OF PROFL CONDUCT R. 3.6(a) (2010). MODEL RULES OF PROFL CONDUCT R. 3.6(c) (2010). MODEL RULES OF PROFL CONDUCT R. 3.6 cmt. [1] (2010). MODEL RULES OF PROFL CONDUCT R. 3.6 cmt. [3] (2010). E.g., E.D.N.Y, LOCAL CRIMINAL RULE 23.1(h) (2012); see also Cutler, 58 F.3d at

828.
71. Barry Tarlow, RICO Report, NACDL.ORG (July 5, 1998), http://www.nacdl.org/ CHAMPION/ARTICLES/98jul05.htm; see U.S. CONST. amend. I. 72. E.g. E.D.N.Y, LOCAL CRIMINAL RULE 23.1(h); LOCAL RULES DISTRICT OF MASS. 83.2B; LOCAL RULES DISTRICT OF MAINE, CRIMINAL RULES 157.3; LOCAL RULES DISTRICT OF NEW HAMPSHIRE 83.8. 73. Id. 74. See, e.g., id.

2012]

REPRESENTING ORGANIZED CRIMINALS

239

Organized crime trials of this magnitude will also give added incentives for an attorney to win. The bigger the case, the greater the stakes, the more public, the greater the recognition for the winning side.75 Fighting to defend your client with vigor and zeal is an admirable quality, but it is important not to venture into the realm of win at all costs.76 If you lose your focus, blinded by the bright lights of victory, you are likely to miss important details and may unwittingly jeopardize your clients case. VI. CONCLUSION The atmosphere surrounding organized crime is ripe with legal and ethical dilemmas for attorneys to avoid. A lawyer who represents organized criminals will encounter social temptations that generally do not exist when representing other types of criminal defendants.77 These temptations will cloud the relationship boundaries if succumbed to, blurring the attorneyclient relationship with that of a friend who enjoys the status of being connected.78 Federal laws, such as RICO, create additional obstacles, as the lawyers relationship to the organization can provide evidence of a RICO violation in and of itself. Such a situation may result in the lawyer being disqualified from representing members of the organization. However, if the lawyer plays the game right, the opportunity to represent organized criminals at trial is an experience unmatched in ordinary criminal defense work. The goal of this article was to instill a sense of what representing organized criminals entails: the glamour, the excitement, the challenges, and the risks. It is a most rewarding career if done correctly, but beware of the temptations that exist. The defense attorney has ethical and legal obligations that will take priority over the other considerations. It is important to not get caught up in excitement such that you allow your moral compass to tilt in the wrong direction. The enjoyment derived from this work is unlike any other legal career. It is not for everyone though, so before you set your sights on such a lifestyle, be sure you are made of the right mold.

See, e.g., The Lawyer Overreaches (Part One), supra note 56. See, e.g., Tom OConnor, Legal Ethics, DRTOMOCCONOR.COM, http://www.drtomoconnor.com/3300/3300lect05.htm (last updated Oct. 21, 2011) (A winning is everything Canon has no place in a Code of Ethics, and it doesnt matter if you try to water this down with words like zealous (or synonyms like earnest, enthusiastic, hearty, diligent, or persistent). The effect is the samepeople are not treated like ends, but as mere pawns to winning cases.). 77. See supra Part II. 78. Id.

75. 76.

240

CRIMINAL AND CIVIL CONFINEMENT

[Vol. 38:219

A criminal defense attorney cannot win em all. When you lose a heavy case, it is quite possible that the client will wind up in states prison. Your first visit to him can be most awkward. Knowing you did your best is no solace to him. Hes on a long stretch to nowhere. In such a situation, I would usually address him thus[]: John, I can only imagine how depressed you must be. But, I want you to know that I have already filed an appeal to the Massachusetts Appeals Court and, failing that, I shall make further appeal to the Supreme Judicial Court, the highest court in the state. And, if necessary, I shall file a Writ of Certiorari with the United States Supreme Court. In short, John, I shall leave no legal stone unturned in my efforts to free you. In the meantime, however, I advise you to carry on with your plans to escape!79

79. Hon. Gerald Alch, Potpourri, GERALD ALCH: I WUZ THINKIN (June 23, 2011), http://geraldalch.blogspot.com/2011/06/potpourri.html.