Giving up Gotti – Why Feds Need to Let Junior Go

As soon as the inevitable fourth hung jury rendered its verdict, reporters asked the US Attorney’s Office if there would be a fifth re-trial of Junior Gotti. The government responded with its usual stock response “No determination has been made yet.” Well it should be crystal clear that the fifth trial should never take place just by the result of the fourth trial. There is obviously not enough evidence to convict.

A disclaimer first – For many years, I represented Carmine Agnello, Junior’s brother-in-law,who was married at that time to his sister Victoria Gotti. But I never met Junior nor was I aware of any of his business dealings. There was certainly no love lost between Junior and Carmine, so this just my objective opinion.

The main problem with the Federal trials against Junior is that they could never directly connect him to the attack on Curtis Sliwa. Also, he came up with this “I resigned from the Mafia” defense.  Both of these problems can only be combatted with a cooperating witness, someone like this John Alite who testified in Junior’s trial. To quote famed trial attorney Murray “Don’t Worry” Richman, “When you lay down with rats, you get a crappy case.” Because people will say anything to get out of jail and jurors know that. Or if they don’t, they will be reminded by a skilled trial lawyer like Charles Carnesi. (People charged with organized crime and rap stars seem to be the last groups who understand and appreciate the need to get a really good lawyer when you are in really big trouble, but I digress).

Its only if you get a really top informant like Sammy ‘The Bull”  Gravano who was deeply inside and connected to the target that you might get a conviction in a case where your sole witness is a cooperator. The jurors in Junior’s trial made clear what they thought of Alite and it wasn’t pleasant. The problem is that since the ’80s, because of changes made in the way Federal crimes are prosecuted using strict sentencing guidelines, the US Attorney’s Office has forgotten how to try a case without a cooperator. The only way to avoid mandatory strict sentences under those guidelines was to offer cooperation to the government. So it became a race to the government’s office to proffer testimony so you could get a deal. All of a sudden, instead of having to pursue lengthy investigations, the Feds were being handed cases by co-defendants willing to “trade up” by ratting out their cohorts and superiors. It soon became standard operating procedure and how US attorneys are trained to prosecute; it sometimes deprives them of the ability to either try cases without a cooperator or to properly evaluate the evidence and likelihood of conviction.

But more importantly, the Due Process Clause of the US Constitution, applies to everyone. Forcing a defendant to repeatedly try a weak case -normally from the confines of Federal Prison – is unconstitutional because its deprives the target of due process. The stress, monetary burden, stigma, etc become insurmountable. Remember that the government has a bottomless pocket. For all the talk about high-priced defense counsel, its impossible to outspend the government. Its a little known fact that the LA District Attorney’s Office spent more money losing to the Dream Team than OJ spent on his gold-plated defense. And public defenders with limited budgets cannot come close to competing nor are they as experienced. The government with an army of investigators and experts on annual payroll is a formidable opponent. And do you have any doubt that the prosecution team was told to spare no expense on this prosecution? So who could consistently match up to that barrage? Eventually the government will win by attrition.

Let me put it this way: Who would have won in David versus Goliath if it was a best of seven series?

So its a matter of fundamental fairness to someone presumed innocent that if the power of the government is insufficient to bring enough evidence in four separate trials, that there is just not enough credible evidence to convince a jury of twelve beyond a reasonable doubt. Enough is enough. Or as Junior might say “Basta!”

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