Reflections on the Experience of Representing Organized Criminals

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Reflections on the Experience of

Representing Organized Criminals

Honorable Gerald Alch*

I. I NTRODUCTION

The concept of representing criminal defendants is not easily grasped.The ability to advocate for a person that the entire world believes is guiltyof a crime is beyond the conscience of most individuals, but not a lawyer‟sconscience. 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 thecourtroom. They thrive on the thrill of litigating cases and the morecontroversial, the larger the thrill.

Organized crime — the Mafia, La Cosa Nostra, or the Patriarca Family — presents the most controversial and high-profile criminal cases. For the truecriminal defense attorney, representing the Mafia is the “big leagues.” As itgoes in the big leagues, you might only get one shot to prove yourself. Ifyou fail, it is back to the minors with a slim chance of getting called upagain. If you succeed, you can expect to be called upon in the future. If yougo beyond courtroom success and earn the admiration and trust of theseclients, then you can expect to be treated as family; this is where the linegets blurry.

Many thrill-seeking lawyers are driven by the desire to win, impressclients, earn the clients‟ respect, and become “family.” It can be glamorousto defend the Mafia. However, high rewards do not come without risks.When representing members of organized crime it is necessary to stay onthe right side of the thin-line drawn between ethical lawyering and criminalactions. 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.



220 CRIMINAL AND CIVIL CONFINEMENT [Vol. 38:219

criminal enterprise or violating the Racketeer Influence and CorruptOrganization Act (RICO)2 and only be rewarded with a tarnishedreputation.3 Keep your moral compass in line with your heart and you will

be successful.This article discusses the relationship between the attorney and theorganized criminal client. Part II explores the atmosphere surroundingorganized crime. Part III provides background on the role of “housecounsel” to a criminal organization under the RICO statute. Part IVexplains how wiretapping and electronic surveillance create difficulties forattorneys communicating with organized criminal clients. Part V analyzesthe ethical dilemmas faced by attorneys who represent organized criminals.

II. E NGAGING ORGANIZED CRIME THROUGH THE ATTORNEY-CLIENT

R ELATIONSHIP

A. The Glamour

Many people assume that representing members of organized crime isfraught with danger, tempting the lawyer to stray from ethical boundariesas his reputation implodes; this is not necessarily so.4 High-ranking clientswithin organized crime structures are selective and astute in their choice ofrepresentation. The reputation, everything there is to know about each

potential counselor is scrupulously studied and personal opinions arecollected for more study. A lot is on the line, for everyone.5 The attorneywants to be retained as counsel because his professional portfolio will beinfused with impressiveness. It is a potential first step to recognition, withthe 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. Sup p. 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 R UTGERS L. R EV. 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/mn-

2168_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].

http://scholar.google.com/scholar_case?case=6277509180289033588&q=shargel+%22house+counsel%22&hl=en&as_sdt=2,22





























2012] REPRESENTING ORGANIZED CRIMINALS 221

This, after all, is the professional life you have chosen. It has its perks;many restaurant maitre d‟s will greet you at the door with aplomb; headswill 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 crimemembers, these rituals are to be achieved and preserved. If you areintroduced 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 organizedcrime families, an attorney must observe and adhere to specific rules. Forexample, when the boss is speaking you never avert your eyes. If you are

politely requested to visit an incarcerated organized crime member, youunderstand 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 confinementfor an organizational meeting to decide who would be representing whom.The meeting ended without any discussion of fees. The next day, I went tospeak 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 Bostonlawyer who would take care of it. When I met with this Boston lawyer laterthat day, I found the fee was too low. The trial preparation and the actualtrial itself were to be so long that I, essentially a sole practitioner, could nothandle it. I thought long and hard, considering all the relevant tangibles andintangibles.

I again drove out of state to see the boss. I wanted to discuss my positionwith him face to face, rather than through another, to show respect. I

leveled with him. He displayed no anger or resentment. He shook my handand said he understood. He asked that I bill him for what I had done up tothat point. I never did bill him, nor did I ever pick up on any negativeconsequences. I had served them well, and my relationship with them hadserved me well.

In my own practice, I quickly established lines of conduct with which Iwas comfortable. Meetings were at my office. Dinner invitations weregratefully acknowledged, but politely declined. There were exceptions, butvery 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).




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 yourrequest. However, when a deal is made, that is it; negotiating is forever offthe table. This form of “negotiating” is customary with organizedcriminals.11 There is leeway within the rules of ethics when dealing with aregular client with whom the lawyer has a general understandingconcerning fees and representation, but having the agreement in writinghelps to avoid misunderstandings.12 By having an established feeagreement 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 substantialgambling debt with “The Boys” and heard that I was in a position tointercede on his behalf regarding more lenient payback arrangements. I saidI would look into it and accepted a fee. The very next day, I was visited bythe Boston consigliore. He looked at me in disbelief. “You don‟t know whothis guy is and you let him know that you‟re connected? What‟s the matterwith you? You‟re smarter than that. Tell this guy you cannot help him andgive back his money.” He was not mad, just a little annoyed, butunequivocal in what he wanted me to do. I acted in a way that goes againsta criminal defense attorney‟s grain; I returned the money quickly!

I wondered how the news spread so quickly, but my lasting impressionswere two-fold. One, I was being watched and two, I had been officially

designated as “connected” by “The Boys.” Organized criminalsnotwithstanding, the trials and experiences attending this type of work arechallenging, 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 assumedguilt of the client and is drawn to the thrill of professional combat, ready togive 100% with no holdback, in it for the juice of winning, with the client

8. MODEL R ULES OF PROF‟L CONDUCT R. 1.8 cmt. [6] (2010).

9. MODEL R ULES OF PROF‟L CONDUCT R. 1.8(c) (2010) (emphasis added).


11. This is contrasted with a preferred practice to have formal fee agreements made,

in writing, with all new clients prior to representation. MODEL R ULES OF PROF‟L CONDUCT R.

1.5(b) (2010).





reaping the ultimate and glorious consequence of victory.13 The lawyersthrive on the competition of being pitted against opposing counsel in acourtroom, gloves off.14 Some may find this selfish because the clients are

the ones who should benefit from the acquittal, not the egos of theirattorneys.15 The response to that inquiry is simple: if the lawyer wins, theclient gets an acquittal.16 Of course, in pursuing victory the lawyer must actwithin the confines of ethical and legal obligations.17

Defending the likes of organized criminals can be a risky endeavor. Younot only need to protect yourself from being disqualified from the case18 or

prosecuted,19 but also need to avoid offending or upsetting these clients forsafety reasons.20 These people do not like to be insulted. Though they maynot take action personally, it is a safe bet to wager that there is someoneready and able to come to their defense at a moment‟s 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 onceyou 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-can-

you-defend-someone-you-know-is.html.

14. See, e.g., Tom Barry, Enter the Courtroom, SUPER LAWYERS.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), K OEHLERLAW. 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 R ULES OF PROF‟L 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), aff‟d , 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-sinatra-

live.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.




Even when the government does not plan to call the attorney as awitness, an issue may arise if the government plans to use the attorney‟srelationship with the defendants as evidence of the existence of an

enterprise. For example, the government may seek to establish theexistence 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 ownconversations.33 This problem normally does not exist for the housecounsel of a legitimate enterprise, because establishing the existence of theenterprise is usually not an element of a charged offense, as it is under theRICO statute.

A. The Right to Counsel Under The Sixth Amendment

The right to counsel under the Sixth Amendment has been expanded tomean that the criminal defendant has the freedom to choose his own

counsel.

34

However, this freedom to choose is not an absolute right.

35

Forinstance, a criminal defendant may not choose a person not licensed to practice law or a lawyer who refuses to represent the defendant as hiscounsel, nor can a criminal defendant demand to be represented by anattorney that the defendant cannot afford.36 A further limitation exists whenthe attorney of choice has a conflict of interest that the court determinescannot be waived.37 A court may determine that a conflict may not bewaived if the conflict threatens “the institutional interest in the rendition of

just verdicts”38 or perhaps if it “gravely imperils the prospect of a fairtrial.”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 defendant‟s 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‟




When a court is tasked with the difficult position of passing judgment onwhether a particular attorney ought to be disqualified from representing hisclient, the presumption at the outset is in favor of the client‟s choice of

counsel.

40

The government may overcome that presumption not only byshowing that an actual conflict exists, but also by demonstrating that thereexists 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” underthe RICO statute, but counsel is likely to be disqualified from representingthese clients.42 Therefore, it is important for a defense attorney to be verydeliberate 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 theattorney‟s office, where it is less likely to be recorded by “bugs.”

IV. WIRETAPPING AND ELECTRONIC SURVEILLANCE

When we met in the attorney‟s 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” hi dden

everywhere. I was now convinced. I had lost my mind. I needed a

drink — fast.

[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. Gabe‟s 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 Gabe‟s 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.




was seated to my right so he was already (and constantly) looking at

me, and nonchalantly responded “While you‟re listening to wutsisname,

I‟m doin‟ the wutchamacallit.”43

The legal history of wiretapping can be traced back to the invention ofthe telegraph and the telephone, and it was first used by civilians.44 Recognizing the potential for invasiveness, Congress enacted theCommunications Act in 1934 prohibiting the publication or divulging ofintercepted communications without authorization from the sender.45 TheSupreme Court interpreted this to mean that evidence gathered from lawenforcement agents through wiretaps is inadmissible in federal court.46 Law enforcement agencies needed a way to gather evidence to support thecharges which, without electronic surveillance, was very difficult, if notimpossible, to gather. Congress recognized that the need for lawenforcement agents to use such evidence gathering techniques posed athreat 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 thesame time Title III was enacted specifically to assist in the fight againstorganized crime.48 Congress recognized that organized crime operated on adifferent level from legitimate business enterprises making it difficult togather evidence of criminal activity and therefore the use of wiretappingwas essential to their investigations.49

Under Title III, law enforcement agents are allowed to use electronicsurveillance and wiretaps to gather evidence, but first must apply for acourt order with a showing of probable cause.50 However, law enforcementagents can only get such a court order if probable cause is shown that thewiretap will produce evidence of the enumerated offenses.51 Unfortunatelyfor organized criminals, violations with respect to RICO are included in

such enumerated offenses.

52

Where the RICO statute provides a tool withwhich to prosecute organized criminals, Title III provides a tool to gatherevidence 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-and-

wutchamacallit.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. R EV. 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. R EP. 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).




Whenever law enforcement discovers a new technique to fight crime, thecriminals are quick to discover a way to disrupt it. Once the Mafia figuredout that their conversations were being picked up by electronic surveillance

from the FBI and other law enforcement agents, they began to employ avery complicated and highly intelligent means to disrupt the signal: theywould turn on the radio.53 The background noise of the radio did nothingmore than make it difficult for the law enforcement agents listening to hearwhat 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 intenseexperience. 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 followingstory 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 payingoff. As sure as an attorney can be, that is how confident I was of a verdictof acquittal. Then I allowed my adrenaline to take over. It wasn‟t enoughfor 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 laughs — a 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 R AAB, FIVE

FAMILIES: THE R ISE, DECLINE, AND R ESURGENCE OF AMERICA‟S 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 U NIVERSITY 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.




Two Italian Americans had been indicted for first degree murder.

The victim was allegedly killed during a drug deal gone badly.

The State‟s 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, “Let‟s get the Mafia out of our town!”

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, “I‟m 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

célèbre 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 life‟s 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 friendin need. Under a camouflage of non-involvement, Sanders had a bread

and butter incentive to never miss a meeting with his singing coach. I




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 is — or —there‟s 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 resultswould 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. “What‟s to lose,” I figured. Bad

results, the whole thing never happened. But I had to know.

They both passed. . . . My direct examination accentuated the

examiner‟s 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 Sanders — destroyed 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-part-

one.html [hereinafter The Lawyer Overreaches (Part One)].




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, we‟d 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. We‟re confident that he‟ll 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, what‟s good for the goose should be good for the

gander!” Firstly, I don‟t 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

Honor‟s discretion, have no objection to the prosecution‟s 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 trooper‟s credentials looked sufficient enough and, after all, theJudge 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 day‟s 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




scales of reason are properly aligned. Throw in a dash of good luck — a

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 lookedwired. He began talking while still in the hall. I told him to step in and

closed the door behind him. “What‟s wrong?”

“Nothing, nothing‟s wrong.” He was almost yelling. “You won‟t

believe this. I can‟t believe it myself—but it‟s real.”

“What—what the hell is it?”

“After court today, a woman 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

shooters —they weren‟t even there. It was just Sanders and two otherguys who did the killing. She knows their names and where they come

from. I‟ve gone over it, again and again, I believe her, Go d almighty, I

do. She‟s 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 couldn‟t. 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 wasBobby 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 shooters — every 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 Darrow‟s, in f ierce 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 ofcredibility. So far, she seemed to be passing that test.

We took a break. I was walking a mine field, but no explosions, yet. I




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 can‟t 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 privacy —I didn‟t have a suite. It was

decision time. I was, of course, tired but not spent. Still pumped. They

say that if you‟re afraid, the blood drains from your brain, into your legs

and you can‟t think. I hadn‟t 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 proof — what 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




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 inmy body electrified. All internal alarms went off. Countless negative

vibes were suffocating me. The courtroom was packed. I don‟t 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 alerted — it 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




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 mantr a had changed to “What the hell have you done, Gerry?” . . .

The Judge asked if I wished to cross-examine. I walked to the witnessstand 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 situation — but 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 Isuch 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 obviously

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 couldn‟t think of any way to

address my fatal error. Not a word came to mind. Not one single word. Idid 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




under oath, who committed perjury. It is often said that when a lawyer

calls a witness to the stand, he is vouching for that person‟s credibility.

Well, I made a terrible mistake. I‟m 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 don‟t 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. It‟s 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 seventhinning, 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 doesn‟t mean the f ight, she

means the ball game!‟ I beg you: keep your eyes focused on the real

issue of this trial. It‟s 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, here‟s 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 jurorsfrom 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-part-

two.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.




from stories heard in the media, which are often unreliable, irrelevant, orfalse.59 When your clients are “made men”60 you can expect the case to beheavily publicized, and may even draw attention from celebrities such as

Frank Sinatra.

61

The spotlight is on, and you can be sure that thoseassociated with your clients will be paying close attention to your everymove.62

The justice system was designed to include a jury composed of unbiasedindividuals that will only form an opinion based on what they learn duringthe trial.63 Lawyers, however, know that in actuality jurors are biased andwill base decisions on preconceived notions of the defendant and theattorneys involved if given the opportunity.64 Attorneys on both sides ofthese high profile cases will often use the media as a source to paint theirversions of the case and plant the seeds of bias in the minds of potential orcurrent 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 AssociationModel 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

59. See, e.g., id.

60. See R AAB, 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. R EV. 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 government‟s case, which included extensive wiretap evidence,

was much stronger than in the prior trials.

Gotti‟s 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 York‟s four major newspapers— the Daily News,

Newsday, the New York Post , and the New York Times. He also gave an interviewon Prime Time Live, a nationally-broadcast television show, where he

emphatically denied that Gotti was a mob boss.

Id.




of materially prejudicing an adjudicative proceeding in the matter.66

This rule notwithstanding, a lawyer may make public comments to protectthe client from recent prejudicial publicity.67 A balance must be struck

between protecting the free speech of the lawyer and the integrity of thetrial.68 The lawyer is restricted, however, to making statements in order tomitigate the prejudice created by recent media attention.69 In high profilecases the public perception of the client may precede the trial, making itdifficult to obtain an impartial jury. However, in such cases the lawyer isnot left without remedy; a change in venue may be sought to cure a

prejudicial jury.

Beyond the ethical requirements which limit the lawyer‟s public voice,the presiding judge may issue a gag order preventing the attorneys fromarguing the case in the media, as opposed to the courtroom, which willresult in contempt proceedings against the disobedient lawyer.70 A gagorder is a restraint on the freedom of speech protected by the First

Amendment

and therefore must be narrowly tailored to protect the fairnessof the trial in order to pass constitutional scrutiny.71

Most federal district courts also have their own rules which prohibitattorneys 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 thequestion whether, and to what extent, a defense attorney may respond inorder to level the playing field.74 If the goal is to preserve the fairadministration 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. MODEL R ULES OF PROF‟L CONDUCT R. 3.6(a) (2010).

67. MODEL R ULES OF PROF‟L CONDUCT R. 3.6(c) (2010).



70. E.g., E.D.N.Y, LOCAL CRIMINAL R ULE 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 R ULE 23.1(h); LOCAL R ULES DISTRICT OF MASS.

83.2B; LOCAL R ULES DISTRICT OF MAINE, CRIMINAL R ULES 157.3; LOCAL R ULES DISTRICT

OF NEW HAMPSHIRE 83.8.

73. Id.

74. See, e.g., id.




Organized crime trials of this magnitude will also give added incentivesfor 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 isimportant not to venture into the realm of “win at all costs.” 76 If you loseyour focus, blinded by the bright lights of victory, you are likely to missimportant details and may unwittingly jeopardize your client‟s case.

VI. CONCLUSION

The atmosphere surrounding organized crime is ripe with legal andethical dilemmas for attorneys to avoid. A lawyer who represents organizedcriminals will encounter social temptations that generally do not exist whenrepresenting other types of criminal defendants.77 These temptations willcloud the relationship boundaries if succumbed to, blurring the attorney-client relationship with that of “a friend” who enjoys the status of being

“connected.”

78

Federal laws, such as RICO, create additional obstacles, asthe lawyer‟s relationship to the organization can provide evidence of aRICO 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 representorganized criminals at trial is an experience unmatched in ordinary criminaldefense work.

The goal of this article was to instill a sense of what representingorganized criminals entails: the glamour, the excitement, the challenges,and the risks. It is a most rewarding career if done correctly, but beware ofthe temptations that exist. The defense attorney has ethical and legalobligations that will take priority over the other considerations. It is

important to not get caught up in excitement such that you allow yourmoral compass to tilt in the wrong direction. The enjoyment derived fromthis 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 theright mold.

75. See, e.g., The Lawyer Overreaches (Part One), supra note 56.

76. See, e.g., Tom O‟Connor, Legal Ethics, DR TOMOCCONOR .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 doesn‟t 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 same — people are not treated like ends, butas mere pawns to winning cases.”).

77. See supra Part II.

78. Id.




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 state‟s prison.

Your first visit to him can be most awkward. Knowing you did your

best is no solace to him. He‟s 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.

Reflections on the Experience of Representing Organized Criminals

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