Jay Milano, law professor and nationally known criminal defense, malpractice, injury, and accident lawyer in Cleveland, Ohio writes what it is like to represent a client charged with the death penalty in Federal Court.
So said our client (who killed people for a living) to Jay Milano just before the trial. (Sounded like a death threat to me).
It was the “Great Mafia Sit Down of 1999”. Present were the reputed head of the Youngstown mafia, his best childhood friend and two of his muscle. They were, to use the contemporary phrase, lawyered-up.
His brother had just made a deal with the government to tell everything – everything. They needed to decide what to do.
The meeting took place not in a hotel, or bar, or steam bath (with everyone naked so no one could wear a wire) but in a Federal Courtroom. They were all in jail. The Judge had allowed them time together to talk about their defense. All sat handcuffed and shackled at a very large conference table, under the Seal of the United States of America. Around them stood 15 U.S. Marshals, silent but watching everything – like so many eunuchs guarding the concubines.
Every criminal defense lawyer should try a mafia case. It is one true rights of passage (death penalty cases being the other). This one began with a phone call from the judge, asking if I would represent a man charged with what was then the first federal death penalty case in the Northern District of Ohio – conspiracy, gambling, drugs, murders. The client did not have money to defend himself. The answer was yes without reflection.
There were two prosecutors; one my teaching partner, and the other a close acquaintance (our kids were growing up together).
In a federal death penalty case the defense has the opportunity to travel to Washington early in the case and present to the Justice Department why death was an inappropriate penalty. Off we went, one other lawyer and I.
The presentation was made in the Attorney General’s conference room to a panel that included the Assistant Attorney General in charge of death penalty cases around the country. This was not just a conference room at any federal building. It was Janet Reno’s conference room at “Justice”. It looked like it. Fireplaces and wing chairs and portraits. We were duly intimidated.
Our argument was simple and straightforward. The government had charged two black men with the death penalty for carrying out killings. They did not charge with the death penalty the mafia leaders who ordered the hits. It was a bonehead move I thought…but did not articulate…and unjustifiable. They agreed and the death penalty was removed. No one has ever explained why they would have charged that way in the first place.
(The cheapest way, it turned out, to get into Washington was to fly to Baltimore and then take a limo to the Justice Department. The government paid our expenses and we were ultimately called before the judge to justify the limo. We were right, but she was not amused.)
The case itself was a masterwork – not by the lawyers but by the mafia don. Every single defendant, and there were at least 20, cooperated with the government. While the boss sat in jail for more than almost two years, he directed the action. One by one his underlings pled guilty. They each gave information on the next higher up. No one went to jail. The government was the willing victim in an informant Ponzi scheme. They were after the biggest fish and were willing to use the freedom of lesser criminals as bait.
Which brings us back to the sit down. The brother, second in command, had just turned. He, too, became a government informant.The don was not concerned, he had a plan. My client was very concerned and feeling very betrayed.
I had once, in another case long before, represented the brother. In the client’s eyes, at this moment, I was part of the plot against him, a snitch along with his former boss.
He got hot. He shouted that he was being betrayed. The lawyers and the criminals looked away. The marshals stood on alert, hearing everything, ready to move but motionless.
“Anyone who has betrayed me, I will track to the ends of the earth”. He had, by all accounts, killed people. There was no doubt about his meaning and there was no doubt that I was among “anyone”. He screamed, but he would not look at me. I screamed back – “Look you motherf*cker, if you are going to threaten me look me in the eye. Right now I am the only person on earth who gives a f*ck about you.”
The screaming went on for ten minutes, no one else saying a word. Then it ended.
(This man was not the only person (who killed people) who threatened me. You will, however, have to get me drunk to hear the other story.)
I left the meeting, and tracked down an expert on ethics for advice on what to do. We sat in his car. Others, including the marshals, had heard, so there were no secrets to keep. Though I had a right to leave the case, if I believed it had blown over I could ethically stay. Even a**holes, dangerous a**holes, are entitled to a defense. I knew he was a snake when I took him in.
I truly believed that my reaction convinced him of my integrity and that I could try the case without fear.
Well, almost without fear.
But without fear that affected my effort.
Next came the final payment on the informant Ponzi scheme. As had been his intention, the don, minutes before trial, turned on his bosses in the Pittsburgh mafia. Get out of jail free. The government now had bigger fish and a whole other set of headlines.
I swear he has never been to jail, though the government says otherwise. I used to tell the prosecutors and anyone who would listen that we would see him during the trial driving to and from the courthouse in a convertible with two blondes – lighting his cigars with $100 bills.
While the don was entering his plea in open court, the last three defendants sat in a cage in the basement of the courthouse. They were jammed on one side of chicken wire in a holding cell built for one. Their lawyers equally jammed into the other side. Both groups were locked in.
Bernie the Jew was adamant. His lifelong friend would never betray him. They had been together since they were six. Did we know all of what they had done together? It could never happen.
After the don had testified, told everything about Bernie and Youngstown and gambling and drugs and murders, Bernie the Jew leaned over to his lawyer and whispered “Well, kid, you got your work cut out for you.”
The government claimed they took everything from the don. They took a hotel in the Bahamas. They took his house and his bank accounts. Everything.
After the government was through with its examination in front of the jury, it was my turn. I knew him.
“Mr. Strollo, where did you bury the cans?”
Let me explain. Italians, and most Europeans, did not trust banks. This was especially true, as you might imagine, of mafia members. As a result, they buried their money in milk cans. Burying money in cans, digging up cans of money – it’s a running wise guy joke. His fellow boss in Cleveland was reputed to have buried $50,000,000 in cash in a field next to his sister’s house in St. Louis. The government sent bulldozers, without luck.
He knew immediately what I was talking about – but could not let on – except to me. Unlike my client at the sit down, Mr. Strollo had no problem looking me in the eyes. For that moment I was far more afraid than I had been in the face of a much more direct threat.
“What are you talking about?”
“You are a mafia don. You have been in the underworld all of your life. Where is the cash?”
“I do not know what you are talking about.”
He knew. I knew. The government knew. The jury probably knew, too. It did not make much difference because Mr. Strollo was probably telling the truth – about everything. And he told about gambling and dope and murders.
The three who went to trial were convicted after two months of testimony. Their sentences were life without parole.
I had no problem representing Jeff Riddle.
The jury believed he got what he deserved.
I did all that I would to see that he was treated fairly.
In the context of his case, he was.
In the big picture, someone was cheated. The entire Youngstown mafia got off, in return for snitching on the Pittsburgh mafia. The Government got headlines all around. Whether it got (or even cared about) fairness is a different analysis.