by Linda Wolfe
Soon Magliato began seeking even newer horizons, new challenges. He bought real estate—a two-bedroom duplex co-op, a one-seventh share in a valuable building in the Village, and part of the Diddingtons building. He invested in a stylish restaurant. And he started brokering. In all his ventures he was successful.
His relatives considered him not only hard-working and clever but thoughtful and generous. He’d give them free financial advice, lend them clothes from his shops when they had nothing to wear to important interviews or appointments. He nursed his mother through a lengthy terminal illness. “He was gentle and considerate,” his brother Joseph told me.
But not everyone thought so highly of him. One neighbor in his Village co-op said, “He could be sharp. Self-centered. Once, a woman here objected to the fact that he would let his dog run around the lobby without a leash, and when she complained, he told her, ‘When you leash your child, I’ll leash my dog.’”
Still, there was little about him to suggest that he could ever be a killer. He wasn’t prone to sudden bursts of temper, wasn’t a bully or a brawler. When the police investigated his past to see if he had previously gotten himself into explosive situations, they came up empty-handed. And virtually all his friends described him as uncommonly good-natured. “He had the sweetest disposition,” one female friend said. “He was very level-headed, not at all the type who’d get excited or irritable in a crisis,” said another. “He has such a relaxed view of the many complications of life that it is a joy to be with him,” said a third.
I myself, interviewing him on several occasions during his trial, found his temperament remarkably cheerful. He kept assuring me that everything would work out all right because “I have truth on my side.” Interestingly, however, his unusually optimistic nature may have had a great deal to do with what happened to him in SoHo on the night his car was dented. It may have been the very thing that caused him to engage in a series of escalating confrontations with Anthony Giani, a man from whom most other people would have beat a swift retreat.
Or perhaps it was just that he had a weapon. He was licensed to own two guns. One was a .38-caliber detective special. The other, an elaborate automatic, was a 9-mm Walther. He bought the first, he told me, because he often carried large sums of money from Diddingtons to the bank. “I had thirteen female employees working for me,” he explained. “I felt I needed the gun to protect not just myself but them.”
He bought the second gun, a German police weapon, because a shopkeeper urged it on him as a collector’s item. Magliato liked objects. He collected Clarice Cliff pottery, old postcards, early slot machines, antique furniture. So he bought the fancy weapon and applied for a second gun license, this time getting a permit that limited use of the gun to target practice.
He never used it, though. It remained in its box, neat and clean. He rarely shot the .38, either. After searching the records of various shooting ranges, the police discovered that the young bussinessman had signed in for practice only three or four times and, in all, had had only about fifteen minutes’ training.
At about the same time he bought his guns, Magliato got a Mercedes, leasing it from a rental company and charging it as a business expense to a consulting firm he had set up. He had always liked cars, particularly expensive European models and sports cars. His first car, bought when he was eighteen, had been a Karmann Ghia. At twenty-one, he got an 850 Fiat Spider; at twenty-four, a 124 Fiat Sports Spider. Later, he got the Mercedes. Then, in March 1983, he decided to go all the way. He leased a new Ferrari, paying $18,000 down and a monthly fee of $525. At the time, there were fewer than fifteen thousand in the United States. Magliato decided to get his in red.
He took good care of his prized auto. When he parked it in his garage, he covered it with a big plastic sheet. And he arranged to park it himself so it wouldn’t be exposed to the careless handling of attendants.
On the Tuesday after Labor Day, Magliato drove the Ferrari proudly, with its top down, from Southampton to Manhattan. Soo Ling, the Shar-Pei, was with him, and he had another passenger as well, seventeen-year-old Eddie Klaris, the son of a lawyer friend who’d had to return to Manhattan the day before and so couldn’t drive his boy home. Magliato had offered Klaris—a student at the Dwight School, a private high school—a lift into town.
Meanwhile, Anthony Giani, too, had been given a lift into town by his friend Donald Schneider. With Schneider at the wheel of his Chevy station wagon, the two left Jersey City in the early evening and went to Washington Square Park. On the way, they brought some marijuana.
The red Ferrari reached the Village at about 8 P.M. Magliato drove first to his apartment, dropping off his clothes and the dog. Then he told Klaris that he’d take him home after he stopped at Diddingtons, nearby, to check on the day’s receipts and pick up some money. But as they drove west the Ferrari was suddenly struck from behind by the station wagon. A moment later, the Chevy sped away.
Impulsively, without getting out to inspect for any damage, Magliato took off after the wagon. He was indignant about the accident and about the Chevy’s abrupt departure. “I’ll get them, I’ll kill them,” he told Klaris. He meant the words as a figure of speech, he later insisted.
Magliato followed the Chevy as it sped west, then south. At one corner, both cars got struck at a red light, and Magliato started to get out. He later said he was going to demand that the driver of the Chevy give him his car registration and insurance cards. But now Anthony Giani sprang out of the Chevy on the passenger side, shouting and holding a heavy-looking club. Eddie Klaris reached down among his possessions and handed Magliato a tennis racquet, saying, “Here, you might need this.” But Magliato had changed his mind about approaching the driver. Giani looked ominous. He was disheveled, his eyes were wild and glazed, and he was waving the club in the air, screaming, “Get out of here, mother——.”
His heart pounding, Magliato got back into the Ferrari. But he didn’t abandon the chase. The Chevy sped away, this time leaving Giani in the street, and Magliato took off after it. He followed it as it turned left for a while, then right, and all the time Klaris kept trying to make out the license plate. Suddenly, they were back at the corner where Magliato had started to get out of his car, and there was Giani, still standing in the street. The businessman pointed the front end of the Ferrari right at the loiterer, then swerved past. He later said he had to force Giani to jump back because, with the top of the Ferrari down, Giani could have smacked Klaris on the head with the club. Schneider, who had parked the Chevy, got a different impression. He telephoned the police, reporting that someone in a red sports car was trying to run down his friend.
By this time, Klaris had seen the Chevy’s license plate number, and he suggested that they give up the chase and report everything to the police. Magliato seemed to concur. He began driving around SoHo, ostensibly looking for a cop. None was in sight. But they saw the Chevy again, at least according to Klaris. Unoccupied, it was parked at Broome and West Broadway, he said. (And he later told police that it was Magliato who first spotted it, saying, “Hey, there’s the car!”)
Their search for a policeman in SoHo so far unsuccessful, Klaris suggested that they might find a policeman in the Village. His father lived there, and he’d often noticed cops stationed at the arch in Washington Square Park. Magliato concurred and headed uptown, and the two of them peered into the park, but they didn’t see any cops. “You can never find one when you need one,” they told each other.
A few minutes later, Magliato told Klaris that instead of looking any further, they should go straight to a station house. But first, he said, they ought to stop at his apartment. He’d left his driver’s license in his wallet when he’d dropped off his clothes, and he didn’t want to talk to the police without it.
Klaris waited in the car in front of the businessman’s apartment building while he hurried upstairs. He was gone five minutes. When he returned, he had his license and his wallet—and his .38. He told Klaris, who was worried
about the gun, that he’d brought it for protection, in case on their way to the police they came across the men from the Chevy. Once, he added, when some people had threatened him, he’d pulled out his gun and they’d disappeared, just like that. (Although on the night of the killing Magliato seemed to display the sort of impulsive behavior often engaged in by people on cocaine, he told me he had never taken drugs.)
Shortly afterward, while driving downtown toward the First Police Precinct, Magliato and Klaris passed the corner of Broome and West Broadway. There, just where they’d seen it before, was the parked Chevy. Magliato pulled over and got out of the Ferrari, the gun in his waistband. The occupants of the Chevy were nowhere in sight. At last, Magliato directed Klaris to call the police.
The boy ran to a corner phone booth, dialed 911, and began reporting the accident when, suddenly, he saw Giani and Schneider standing across the street. They saw him and Magliato, and a moment later, Giani went to the Chevy, reached inside, and got out his club. Magliato took the gun from the waistband. He struck a combat stance, his arms extended, and cocked the weapon. A shot echoed in the street. At once, Giani was sprawled on the ground.
Klaris hung up the phone. Giani had been hit, from a distance of about forty feet, just above his right eye.
The corner of Broome and West Broadway erupted into pandemonium. The shooting had occurred right in front of a popular hangout, the Broome Street Bar, and there were many people on the street. A young clothing designer had been sitting on a stoop with a friend, not far from Giani. When Magliato raised his gun, she found herself looking right at the barrel. “I sat there frozen. I didn’t take my eyes off it,” she said. When the gun went off, she bolted hysterically, racing a third of the way down the block before returning to the gathering crowd.
Not just the shooting but the start of the fight had been witnessed by several people. It had begun, these witnesses later told police, when someone—either Giani or Magliato—had shouted out, “Hey, f——, come here! I’ve been looking for you!” But the witnesses were confused about which man had thrown down the gauntlet. One woman who’d overheard the taunt thought the man with the club had made it, while another wasn’t at all sure and said it could have been the man with the gun. But whoever had said it, she insisted, the other had promptly yelled back, “Oh, yeah?”
There was also some confusion about who had raised his weapon first. One woman was sure it had been the man with the club. Several were certain it was the man with the gun and that the man with the club hadn’t ever even lifted his at all. The police took down all these accounts and scanned the crowd for the gunman. But by that time he had vanished.
He had gone home, taking Klaris with him. The boy thought they should have waited and talked to the police and told him this, but Magliato, although shaken, insisted there was no point. The whole thing would just blow over, the police would probably think it was some kind of drug shootout, he said optimistically. They’d never connect it to him.
Klaris was dubious. He’d had to give the cops his name when he’d called 911, he reminded Magliato. The businessman said not to worry: “They probably got it down wrong.” Still, Klaris thought they should go to the police, and he kept pleading until at last Magliato agreed. They’d go. But not now, he said. Not until the next day, when he could appear in a suit and tie, not in the jeans and T-shirt he was wearing.
Magliato never did go to the police, and two days later the police located Klaris. They had telephoned his mother’s house, and his brother had told them Eddie was at his father’s home in the Village. As it turned out, he was there with Magliato; the two of them were setting up a stereo system. Magliato had made the boy promise not to say a thing to anybody about the incident, not even to his parents, and Klaris had kept his word. But now, learning through a telephone call from his brother that the police were on their way, he panicked. So did Magliato, who left abruptly, pausing at the door just long enough to gesture at Klaris in sign language. According to the student, the older man put a finger to his lips, then drew it across his throat.
But Klaris did talk, and three weeks later Magliato was indicted for the murder of Giani.
The trial began in New York State Supreme Court on September 17, 1984, just over a year after the date of the shooting. Many of Magliato’s friends attended, and several of them spoke privately about what they saw as the unfairness of trying an upstanding man like Magliato for the death of an outcast like Giani. They had learned about Giani’s past and felt that in some why his life hardly counted. One man, a well-known journalist, told me, “Giani was what my mother used to call sgutsim. Trash. So he’s dead. So what’s the fuss all about?” Another said, “Frank did society a service.”
Murder trials, however, are not about the crimes of the victim but about the possible crimes of the defendant. The jury would not be told about Giani’s past, only about what had transpired when Giani and Magliato met. “In our society,” the presiding judge, Thomas R. Sullivan, later explained eloquently, “there are no castes, no outlaws, no classes of people who are pariahs, no one who, no matter his lifestyle or past transgressions, becomes fair game. Life cannot be forfeited.”
Magliato had hired Gerald Lefcourt, one of New York’s most able young criminal lawyers to defend him. In 1971, Lefcourt had successfully defended thirteen Black Panthers. In 1974, he had won an acquittal for Henry Brown, a man accused of killing two New York policemen for the Black Liberation Army. Lefcourt had also represented Yippie Abbie Hoffman, and he had helped defend the Chicago 7, the antiwar activists charged with conspiracy at the 1968 Democratic National Convention. In brief, he was a man with a keen interest in the social issues involved in the law.
So, too, was the prosecutor, Assistant District Attorney John Lenoir. A lawyer for only five years, Lenoir had spent most of his professional life as an anthropologist, earning a Ph.D. and living for three years in a tribal village in Suriname. There he became interested in the law after watching how primitive cultures resolved disputes. In the hands of these two men, the case of the red Ferrari emerged as a sharp sociological drama. To Lefcourt, Magliato was Everyman, beset on all sides by crime and violence, persecuted if he tried to defend himself. To Lenoir, Magliato was the classic vigilante, the man who takes justice into his own hands and who, though a hero in modern movies, is as much a menace to society as are the evils he seeks to correct.
The prosecution relied chiefly on the eyewitnesses from SoHo and on Eddie Klaris, who had come down from his first year at Vassar for the trial. Klaris seemed to quiver on the stand, perhaps torn between some lingering loyalty to Magliato and the damning account he was giving. It was damning indeed, for the boy insisted that they had obtained the Chevy’s license number and had seen where the car was parked well before Magliato got his gun—testimony that was ultimately critical for the jury.
The defense relied chiefly on Magliato’s own testimony. In almost a full day on the witness stand, he told the story of his life before the confrontation with Giani. As for that fatal meeting, he insisted that the shooting was an accident. When he drew and cocked the weapon, it was only to keep Giani covered until the police arrived. But he grew so rattled that the gun went off on its own. “I didn’t mean to pull the trigger,” he said.
The defense also produced character witnesses and a chilling triumvirate of gun experts, one of them a graduate of Yale University and Harvard Law School. The experts contended that guns like Magliato’s could fire accidentally, particularly if the shooter was under stress. The three bore a striking resemblance to one another. Each sported a bushy mustache, as if it were a trademark. Two had attended Soldier of Fortune conventions. Among them, they had written over a thousand articles, with such titles as “Buckshot Breakthrough,” “Shooting Through Coat Pockets,” and “Hit the White Part,” for magazines like S.W.A.T., Gun World, and Gun Digest. They thought the fact that Magliato had managed to hit Giani right above the eyes from a distance of about forty feet was just beginner’s luck—or mis
fortune.
Throughout the trial, Magliato seemed certain of vindication. During breaks, he made small talk with his family and friends, asking about an aunt’s sore foot, a friend’s problem at work. He was free on a $1 million bond, and each evening he hurried off with his companions, loping along in his awkward, gangly manner.
Giani’s mother was there every day, too. All day she clutched a crucifix, and she told me that whenever the talk turned to weapons, she looked down at the crucifix and thought to herself, This is my weapon. Once, she turned to her lawyer and said it aloud.
At last, after three weeks of testimony, the trial drew to a close and the lawyers gave their summations. First, the defense: Magliato had picked up his gun out of fear, and Giani had died as the result of a “tragic freak accident.” Then the prosecution: Magliato had shown a “depraved indifference to human life” by pulling the trigger on a crowded street, and he’d shot Giani not because he had “dented his car but because Giani had dented his pride.”
The judge’s instructions were complicated. The jury could convict Magliato of any of five crimes—or none at all. There were two separate counts of murder in the second degree: intentional murder and so-called depraved murder, murder resulting from a reckless indifference to human life. There were two counts of manslaughter: manslaughter one, an intentional act, and manslaughter two, a reckless act. And there was one count not bearing a mandatory jail sentence: criminally negligent homicide.
The jurors deliberated for two days, repeatedly asking the judge to reread his instructions. They also asked at one point whether certain of the charges were more serious than others. The judge, telling them to decide which crime, if any, the evidence seemed to support, warned them that they were not supposed to think about punishment, for such is New York law. The defense objected to this warning, suspecting that the jury might be trying to convict Magliato of one of the less serious crimes.