Crime Library: Criminal Minds and Methods

John Gotti, the Last Mafia Icon

Giacalone RICO Trial - Round Two

Attorney Bruce Cutler (left) with John Gotti
Attorney Bruce Cutler (left) with John Gotti

A month prior to the trial reconvening, Bruce Cutler was back in the courthouse requesting that his client be allowed to come to his office each morning to discuss trial strategy. "My client takes great pride in his appearance, as the court knows," Cutler told Judge Nickerson. Gotti was even willing to pay for the additional cost of being moved around by the Federal marshals. Prosecutor Giacalone opposed the motion on the grounds that it would create two classes of defendants – "one for those who can pay for special services and the other for those who cannot pay." Nickerson rejected the request.

Pretrial motions were handled on August 18, 1986. Judge Nickerson had ruled that an anonymous jury would be impaneled to protect jurors from intimidation – and the jury would not be sequestered. Cutler claimed, "Such a jury creates an aura of fear that is misplaced and deprives the defendants of a fair trial." Defense attorneys then charged that Nickerson was biased. Other motions by the defense bordered on the absurd. They complained about pretrial publicity, seating arrangements – which gave the prosecution "better eye contact" with the jury – and where Gotti would be served lunch. After a series of motions were denied to have both Nickerson and Giacalone removed, jury selection got under way.

The jury panel consisted of 450 prospective jurors (some references list it as high as 600), from which 12 jurors and 6 alternates would be selected. When Nickerson convened the earlier trial, he stated that he would use different procedures this time to qualify prospective jurors. This new method, according to defense attorneys, could lead to a selection of jurors who were either "ignorant or inhibited." Cutler argued, "Anyone who can see or hear and has half a brain has to know about my client." Jury selection was completed after 18 days. Selection of the six alternates would take another week. The trial, which had been estimated to last 60 to 90 days, took nearly 40 days altogether to seat a jury.

On September 25, opening statements were delivered in the Federal District Court in Brooklyn. Assistant U.S. Attorney Diane Giacalone gave a 90-minute statement to the jury before an audience of approximately 100 people. At least a quarter of the spectators were reporters or sketch artists.

It is perhaps in Giacalone's first remarks that the myth of John Gotti murdering James McBratney to avenge the murder of Manny Gambino and ingratiate himself with Carlo Gambino was born. She claimed that his participation in the murder began his climb to prominence and leadership of the Gambino Crime Family. She asked the jury, "What sort of an organization is it where murder is a means of advancement?" Giacalone told the jury that they would be hearing testimony from witnesses that were murderers, drug dealers and kidnappers. "They're just horrible people," she warned. What an understatement this would prove to be!

Cutler responded in his opening remarks by claiming, "The only family John Gotti knows is his wife and children and grandchildren." The overly dramatic defense attorney pranced around the courtroom making disparaging comments about the prosecutor and the indictment. At one point he took the indictment and tossed it in a wastebasket stating, "It's garbage. That's where it belongs." Calling the government's witnesses "scum" and "lowlifes," the defense team claimed that their clients "were being prosecuted because of past misdeeds for which they had already served prison terms and because the Government did not like the way they lived."

The prosecution's case did not get off to a good start. Their first witness was to be Salvatore "Crazy Sal" Polisi. Saturday, two days before he was to testify, Polisi gave a taped interview to a writer who was doing a book about Polisi's life. (This project failed, but a later book, Sins of the Father: The True Story of a Family Running from the Mob, by Nick Taylor, would be published in 1989.) Because the rules of evidence state the defense is entitled to the same information about a prosecution witness that the prosecution has, in time to cross-examine the witness, Polisi's testimony was delayed. Instead the government played wiretap tapes and called Francis J. Leonard, a Suffolk County detective, who described an illegal numbers operation run by defendants DiMaria and Corozzo back in 1975.

On October 6, the New York Times published an article by Selwyn Raab in which the reporter stated that Gotti was "on his way out as boss of the Gambino organized-crime family, and potential successors are maneuvering to succeed him, according to law-enforcement experts on the Mafia." Raab pointed out that the "experts'" reasoning was Gotti's legal problems and "the belief among influential Gambino family captains that he faces a long prison term." In addition, unnamed law enforcement officials claimed that additional indictments, on both the state and federal levels, were being sought. One federal official stated, "Everybody on the street is convinced he's going away for a long time, 20 years or more." Lieutenant Remo Franceschini said that Thomas Gambino was the person most likely to succeed Gotti. He added, "if Gotti is replaced, it will be by a low-key traditional organized-crime type." Raab summed up his article by stating that "law-enforcement officials said the Gambino group captains apparently were seeking a leader with a lifestyle less flamboyant that Mr. Gotti's." The Dapper Don, Raab claimed, was said "to have antagonized some factions in the Gambino family, as well as leaders of the other families, because of his penchant for notoriety."

Meanwhile the government was handed another setback on October 10, when they were told that the jury could not hear "key testimony" from Edward Maloney. The testimony was to establish a motive for the 1973 slaying of James McBratney. Nickerson accepted arguments from the defense that Maloney should not be allowed to testify about hearsay conversations he had not had with mob figures. "I just think it is too thin," the judge stated. Maloney would be the first witness to get "Brucified," that is unmercifully ripped apart by the classless defense attorney, a term that the arrogant Cutler accepted with great pride. In describing Maloney's payments from the government, Cutler stated, "Put it this way, Mr. Maloney, that it cost the United States of America some fifty-two thousand dollars to give you a new identity, to give you a new home, to give you a new job, to cut your hair, and give you a suit, a menace and a bum like you."

Next to go into what Jerry Capeci termed the "defense shredder" was "Crazy Sal" Polisi. On October 15, Barry Slotnick manipulated the Blacks on the jury by pointing out that Polisi believed "that black people were the lowest form of humanity." Polisi insisted that he was a reformed man, to which Cutler dug in and inquired about "this new religion? Tell us so we can free the jails of lowlifes like you."

In addition to the comments that were directed at witnesses, several "under the breath" comments were made to the prosecution team by defense attorneys and defendants. In early November, former New York Police Department detective Victor Ruggiero was under cross-examination and was giving defense counsel Michael Santangelo a particularly hard time. Ruggiero (no relation to Angelo) was testifying about surveillance outside the Ravenite Social Club during 1978 and 1979. When Santangelo questioned the judge about the witness's evasive answers, Nickerson addressed the former officer. "Why do you do that? The questions are very simple."  Seated behind Giacalone, Gotti sarcastically remarked loud enough for the jury to hear, "He is doing that because they threatened him; that is why."

Giacalone immediately called for a sidebar and the jury was asked to step out. In a brief outburst, Gotti told the judge, "Your honor, it's not true."

"Don't make comments," Judge Nickerson scolded him.

"But it's not true, your honor," Gotti insisted. "If anybody is making comments, it's her."

The trial was falling under the guidelines for a "mockery of justice." Defense attorneys continued to slam government witnesses and defendants joked and made disgusting remarks behind the prosecutors' backs, most of them directed at Giacalone. Gotti made regular disparaging remarks to news reporters about the proceedings, which they ate up. Finally, control of the courtroom, by what could only be described as the milquetoast efforts of Judge Nickerson, was quickly evaporating.

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