Mob Star (41 page)

On March 8, 1985, two weeks before Gotti’s indictment, McDonald wrote a much stronger memo. Gotti and Dellacroce should be a part of the hierarchy case because Giacalone’s case “was especially weak against Gotti and Dellacroce and with respect to Gotti, could very well result in his acquittal.” This, he warned, would “immunize” Gotti from future RICO prosecutions involving gambling or loan-sharking conspiracies through 1984, the endpoint of the conspiracy charged in Giacalone’s case.

McDonald obviously was interested in protecting his own turf, but the Strike Force had been given the job of fighting the mob, and Giacalone was getting in the way. He proposed she give up Gotti and Dellacroce for the Strike Force case and proceed against Tony Roach Rampino and John Carneglia on conspiracy charges involving the armored-car heists, which had prompted her to go after Gotti. McDonald also said Willie Boy Johnson should not be in either case.

The memos would make for interesting cross-examinations, if McDonald, Giacalone, or Dearie ever got on the stand. But the star witness of the trial was James Cardinali, who, during his testimony, had this to say about John Gotti:

“He is the finest man I ever met.”

I
N ITS FINAL ACT, THE GOTTI play because a farce. Diane Giacalone, for example, was accused of offering her underwear to a witness.

It happened during the defense part of the case, which began with Andrew Curro and Peter Zuccaro, two of the armored-car robbers, who testified they did not give any of the loot—about $1 million, never recovered—to anyone at the Bergin.

“What am I, Santa Claus?” said Zuccaro.

While Giacalone was cross-examining Curro, Judge Nickerson called for a sidebar, but Cutler stayed seated. As the other lawyers passed behind him en route to the bench, Cutler said: “See if the tramp will give us an offer of proof.”

The wording of Cutler’s request that Giacalone state the relevance of a point she was making was a little too insulting to let go by. “In quite a loud voice,” she told Nickerson, “and I believe loud enough for the jurors to hear … Mr. Cutler said, ‘Ask this tramp if she’ll give us an offer of proof.’”

“Do you want me to respond?” asked Cutler, buying time while he contemplated an escape move. “Or do you just assume because Ms. Giacalone says it, it’s true?”

Nickerson began to speak, but Cutler interrupted, which caused the judge to say:

“You will wait for me to finish, sir.”

“You can call me Mr. Cutler or Bruce. You don’t have to call me ‘sir.’”

Cutler pushed and stalled some more, until he had calculated his escape, which would be an offensive move.

“I’m ashamed that she is part of this government in this courtroom. And what I said … was to ask her to give us an offer of proof … this is a dangerous woman. She’s trying to inhibit me and intimidate me and she is not going to do it, Your Honor. I beg the court to open your eyes, Your Honor, and I say it most respectfully, to see this woman for what she is. I’m not ashamed to say it.”

After more thrashing by both sides, Nickerson told everyone to calm down and forget about it. A former county executive on Long Island and an erstwhile candidate for a seat in the U.S. Senate, the 67-year-old Nickerson now wanted to steer the case toward a conclusion—without a mistrial.

 

 

After Curro and Zuccaro went back to prison, the star of the defense case came into the courtroom. The man who came to save the former Rockaway Boy was Matthew Traynor, the former Ridgewood Saint who became a thief, bank robber, and drug dealer—
perish the thought that Gotti would even know a drug dealer!

Traynor was another Giacalone mistake. Prior to the trial’s original start, he was her witness. Desperate for witnesses to complement Cardinali, she had decided to use a man who had once tried to con his way out of prison by lying to the FBI about a nonexistent murder plot against a cop.

Giacalone had spent many hours preparing Traynor for his testimony, but then she caught him in what she felt was a lie. He told her that while he and Cardinali were cellmates in the MCC, he had overheard Cardinali tell Cutler that he had lied to the grand jury. Giacalone didn’t believe it and dumped Traynor from her witness list. Once the trial was underway, Traynor, seeking to shave some time off his bank-robbery sentence, volunteered his services again, but Giacalone shunned him.

So Traynor called Cutler and told him some Giacalone stories. Some on the defense team were opposed to putting Traynor on the witness stand. They felt he was an unguided missile who might detonate over them. In addition, his FBI files—which would come into the case as evidence—were heavy with details about murder, drug dealing, and other crimes by the Berginites.

Gotti, however, felt that what Traynor wanted to say about Giacalone was more important and of course, he prevailed.

Traynor, age 40, took the stand on February 2, wearing a smirk and a pullover sweater. He promptly said that the prosecution had plied him with drugs to induce him to invent stories about the defendants. He said he was frequently “zonked out” when he appeared at Giacalone’s office for a preparation session.

“I was so stoned I didn’t want to go home,” he said.

It only got worse, as the defense “sucked the hate”—as the process was known—out of Matthew Traynor, who referred to Giacalone as “the woman with the stringy hair.” Finally, he cocked his fingers like a gun and pointed at her; he said when he told her he wanted to “get laid,” she “gave me her panties out of her bottom drawer and told me to facilitate myself.”

The defense had put Giacalone on trial during the cross of Cardinali. Traynor was used to keep her there.

“She said, ‘Make do with these,’” Traynor said.

“She really wanted me to frame Mr. Gotti and the others,” he continued. “She didn’t like them … because many years earlier they had ridiculed her for being skinny when she used to walk through the neighborhood where they hung out.”

One fact for the judge, one fact for the jury.

Traynor slugged on. He said that DEA agent Edward Magnuson had given him drugs and when he begged for more, he was sent to a doctor with a fat pad of Rx prescriptions and got Valium and codeine. He said he was so “zonked” that once he vomited all over Giacalone’s desk, and she screamed, “Get him out of here!” He said agents drove him around to sober him up.

Over three days, Traynor was crossed, redirected, and recrossed. It added up to a numbing record of confusion and conflict, all for the get-Giacalone defense.

After it was mercifully over, Nickerson, whose patience had ceased being a virtue, made his strongest statement about the defense—on a day when the trial was in recess, to a virtually empty courtroom. Nickerson finally spoke his mind after coprosecutor John Gleeson spoke his; Gleeson came into court to complain that the defense had gotten too personal.

It had served a subpoena on a hospital for job records of Gleeson’s wife, a nurse. The doctor who prescribed the drugs for Traynor was on the staff of the same hospital. Gleeson, age 33, who left a big-time Manhattan law firm to become a federal prosecutor, told Nickerson the subpoena was “harassment,” pure and simple.

Gleeson was speaking up and asking Nickerson to control the defense because the harassment had “reached outside the courtroom” to “someone very close to me for a reason that I think is patently pre-textural.” He said David DePetris had apologized for the defense, which was “appropriate” but not sufficient. He asked Nickerson “to exert some control” over a defense effort “to create issues of impropriety where none exist” in order “to take this jury’s eye off the ball.”

DePetris showed up to take the heat for the defense, which had wanted to establish a link between the prosecution and Dr. Harold Schwartz, the doctor Traynor was sent to. DePetris told Nickerson he was unaware until late the day before that other defense attorneys had decided to try and make the link by causing a subpoena to be issued.

“How is it conceivably relevant?” said Nickerson.

“How the government got to Dr. Schwartz,” said DePetris. “Because the government got to Dr. Schwartz presumably through Mr. Gleeson’s wife.”

“It is just so off the wall, completely off the wall,” Nickerson said about the notion that the United States government had to use Gleeson’s wife to get a doctor to write prescriptions for Traynor.

Nickerson quashed the subpoena with words that showed how he felt, but not how he ever acted: “This case is not going to turn into any more of a circus than the defendants’ attorneys have already made it.”

 

 

After calling 11 witnesses, the defense rested on February 11. Giacalone then announced she would call 17 witnesses for a rebuttal case.

“Seventeen?” Nickerson wearily asked.

At the six-month mark, everyone was weary, especially Larry King, Willie Mays, The Girl, and all the rest, who wanted to go back to being people again, not numbers. They had been told it would be a two-month trial.

The defense, however, had succeeded in putting Giacalone on the defensive. She felt Traynor’s statements could not go unrebutted. She felt the jury had to see how reputations—hers, Dr. Schwartz’s, DEA agent Magnuson’s—had been besmirched on behalf of John Gotti.

Over three more weeks, the 17 testified. Agents, prison officials, detectives, and Dr. Harold Schwartz, who did not know what lay ahead when he was asked a year earlier to examine a federal prisoner apparently suffering a loss of nerve.

When he saw him, Schwartz said that Matthew Traynor was “suffering from a massive anxiety reaction” about testifying against Gotti. “He was pacing back and forth. He was sweating profusely. He was flushed. Very, very agitated.” The patient, the doctor added, was “very anxious” and “afraid for his life.” He feared he would say something that would help the defendants find him, and kill him, even if he were in the witness-protection program.

Schwartz said Traynor was “embarrassed and humiliated” that he didn’t have the strength to be a stand-up guy, like Willie Boy Johnson was in the end. “He mentioned the phrase, ‘If you can’t do the time, don’t do the crime.’” Schwartz said he prescribed Valium and Tylenol with codeine for the pain Traynor felt from a separated shoulder. The drugs were given to prison officials, who dispensed them as indicated.

That was direct and now Cutler got up, to indirect.

As Schwartz tried to answer his questions, Cutler kept cutting him off to twist, shape, bend, and contort, which finally caused Gleeson to get personal, too.

“I object to cutting off the witness,” Gleeson protested.

“Yes,” said Nickerson.

Cutler started Brucifying again.

“Let him finish his answer, Mr. Cutler.”

Cutler started up again, the same way.

“I object to Mr. Cutler’s manner, which is peculiarly offensive,” said Gleeson.

“[It] really isn’t helpful,” said Nickerson.

“I am doing the best I can, Your Honor, I am not a doctor.”

“You are a lawyer,” reminded Nickerson.

“He is not a lawyer, either,” said Gleeson. His Cravath Swaine & Moore decorum had departed.

Nickerson excused the jury to hear Willie Boy’s attorney, Richard Rehbock, sail away on a long discourse that ended this way: “This whole trial is not a search for the truth. It’s become a massive cover-up where they can do whatever they want and we are restricted from bringing out the truth for the jury.”

It was a little too much, even for Nickerson, who didn’t even respond. He turned to Gleeson and Cutler and told them to cut the crap. Please. He wanted to bring the jury back in and get the damn case over with.

“Please don’t make comments,” he said. “Hopefully, we are coming to the end of this trial—someday.”

The jurors filed back. A few lawyers were sure they had recently seen signs of Life in Death. One was sure The Heavy Lady had been saying with her eyes,
I know what you are doing, and it is working.

Cutler started in on Schwartz again and kept on going even after Nickerson called for a sidebar.

“I am going to ask you not to talk over me,” said Nickerson when he finally got Cutler’s attention.

“I have not heard you.”

“You have talked over my voice throughout the trial. I think it is most discourteous. I will not stand it anymore from you.”

“I have not done it on purpose.”

“You have done it constantly.”

“Judge, I really don’t need this in front of the jury. I don’t think that’s right. If I am talking over you in the heat of battle, so to speak, I apologize. But I didn’t hear you ask me to come up until you asked me to come up.”

A few more exchanges and Nickerson said, “Let’s finish this. Please. Please. Let’s finish.”

Then to the jury: “If you heard any comments made by anyone at the sidebar, please disregard them.”

Later in the day, Cutler asked if Gotti could be excused from court on the same day that Nickerson was to meet the attorneys to decide what to tell the jury about the applicable law before it began deliberations.

“I don’t mind,” Nickerson said. “All I want to emphasize to you, Mr. Gotti, I think it’s important to you …”

“If I’m here I can say something?” said the boss who always had a lot to say.

“No.”

Well, then, forget about it.

At the end of the rebuttal case, Gleeson came close to accusing Cutler of suborning perjury, so close the defense thought he had. Afterward, for the first time in 18,250 pages of trial transcript, Cutler remained quiet and asked another lawyer to respond to Gleeson’s comments.

This revealing moment came during a discussion about the Cardinali-Cutler interview that was tape-recorded. The story that Traynor, who was in the MCC at the same time as Cardinali, told about that interview—that Cardinali told Cutler he lied to the grand jury—was why Giacalone dumped Traynor as a witness; she felt he was lying and that Cardinali had said no such thing. A tape would prove it and could be used to prosecute Traynor—and maybe Cutler.