The following Monday, DA Robert Morgenthau summoned him to his office.
BY THE 1990S Morgenthau was far and away New York’s preeminent lawman. His connections to the power elite, combined with his nearly thirty years as a top prosecutor, had made him an outsized figure in enforcement circles, a kingmaker. Dozens of former associates had ascended to the bench; still others occupied sensitive positions in state and local government. But Morgenthau’s authority stemmed from his political skills. Despite a clear lack of charisma, he was a master at getting his message across to the press—he enjoyed particularly good relations with the Times—and he was a ruthless behind-the-scenes operator.
He was less hands-on in the administration of his own office. Apart from a few big investigations that claimed his close attention, he rarely bothered himself about the legal maneuverings of a particular case. Most line assistants met Morgenthau twice during their tenures, once when they joined the office and then again when they left, and he held himself aloof from internal politics. This attitude of benign disinterest—as a top aide said, he ruled the office the way the viceroys once ruled India, rarely taking sides between factions, or firing, or even censuring his lawyers—enabled him to rise above the squabbles and professional jealousies that constantly rose among the ranks. Most assistants regarded him, when they regarded him at all, as a sort of paterfamilias, the kindly old gent who signed their paychecks, encouraged them to do the right thing, and protected them from the excesses of the press and the evils of political influence.
The less salutary effect of this was the Balkanization of the office, as bureau chiefs and unit chiefs cultivated fiefdoms, and division heads and eighth-floor executives forged alliances or battled over territory like medieval princes. It was the very issue that had brought about Arsenault’s resignation.
Morgenthau was waiting for him at his conference table at the far end of his gymnasium-sized office. He was deceptively frail-looking with wavy white hair and a beakish nose, his eyes were watery behind thick glasses, and he had a prissy, headmasterish mouth, dour and disapproving in repose. In fact, he was surprisingly spry for a man in his seventies, his handshake was firm, and he had one of those rich, laminated New York voices—hints of his German-Jewish ancestry and Yankee upbringing audible beneath the asphalt rasp of Manhattan. “Sit down,” he told Arsenault.
Arsenault walked past Morgenthau’s desk piled high with papers and a wall full of photographs of famous people, feeling the same mixture of awe and anticipation he always felt when meeting with the boss. He got along well with Morgenthau, though there wasn’t much interaction between them. Morgenthau was less a lawyer or an administrator than a politician; he dealt in the realm of the possible, what he could do for HIU or what the unit could do for him and, by extension, the office and the city. This afternoon, Morgenthau had a gift for Arsenault.
“I just had lunch with [Police Chief] Bratton,” Morgenthau told Arsenault, after he’d sat down. “He asked me what we needed, and one of the things I asked for was help for HIU. And now you have four new detectives.”
Morgenthau was clearly pleased with his offering, and normally Arsenault would have been also. “That’s great news,” he told Morgenthau. “But didn’t Barbara tell you that I’m leaving?”
“Oh, that,” Morgenthau said, waving him off. “I know all about that. That’s been taken care of.”
“Well, how?”
Morgenthau shushed him with an impatient look. “Barbara will explain it to you later,” he said. “You’re not going to go anywhere.”
AFTER THE MEETING, Jones told Arsenault that Morgenthau had taken HIU out of the Trial Division, away from Nancy Ryan. From now on he would report directly to Jones. Heading back upstairs, Arsenault felt a measure of vindication and relief, and no little excitement at gaining four more detectives. But he knew in his heart that the long-term fate of the unit still depended on the outcome of the Cowboy trial.
Arsenault kept Brownell in the dark about the backstage maneuverings. There was no point in distracting him; he had enough on his mind. In addition to the usual case of nervousness before trial, Brownell was concerned about his witnesses. He felt confident that he had more than enough evidence to convict, but nearly all that evidence was in the form of testimony from witnesses whose criminal backgrounds impeached their credibility before they opened their mouths. What’s more, their poor communication skills, their fear of testifying, and in many cases their hair-trigger tempers made them liable to self-destruct under cross-examination. Cynthia Williams, a gang member with a history of violence and mental instability, and a key witness in the Brooklyn murder of drug dealer Juan “Papito” Francisco, had physically attacked Lori Grifa during a recent prep session. And Grifa’s taunts were nothing compared to what Williams was likely to face on the stand.
Brownell’s strategy was to bury the jury in evidence, “to throw as much stuff out there as we could and see what sticks.” But there was a danger in this approach: If the defense could discredit enough witnesses, they would taint the rest of the prosecution’s case by association. In a nine-month trial the jury was not likely to remember the welter of detail that the DAs presented as much as they would the high points, the moments of emotion. In the end, Brownell felt, they would judge with their hearts, not their heads. If the defense could persuade just one juror that there was reasonable doubt, the defense would win; and as Brownell knew, a hung jury was the equivalent of an acquittal. There was little hope, he realized, of going through another nine-month trial.
At times, he wondered whether he was going to get through the trial as it was. Just gathering a jury pool took two weeks. Snyder packed the potential candidates in her courtroom 100 to 150 at a time, explained to them the nature and projected length of the trial, then cleared the courtroom and fielded excuses one by one. Most candidates pled work obligations or financial hardship—jurors are paid only a modest stipend. Others had physical disabilities, had been victims of a crime, were biased against the police, had an extreme aversion to violence, or had one of a myriad other reasons why they couldn’t spend the better part of a year in Snyder’s court. John Kennedy, Jr., who showed up in the first panel of jurors, was deemed a public figure, whose presence in the courtroom would distract from the proceedings. Women who were pregnant or who might become pregnant were also excused.
Snyder was usually tough on dropouts—jury duty, in her mind, was an obligation, not a right or a privilege—but even she recognized the turbulent effects of a nine-month trial, and by the end of each tedious session, only a handful of candidates remained in the pool—mostly government workers, elderly retirees, and unemployed persons. Brownell was not happy about the mix. In his experience, retirees didn’t like to spend weeks, much less months, in a courtroom, and were liable to lose interest in a prolonged case like the Cowboys, or worse, begin to resent the government officials whom they were likely to blame for keeping them there. The unemployed, especially the chronically unemployed, were even worse. There was usually a reason for their status—poor concentration, antisocial attitudes, mistrust for authority.
In the end, the prosecutors managed to get a jury—twelve regulars and eight alternates—that was a broadly diverse mix of working New Yorkers: office workers, a schoolteacher, a postal employee, an electrical engineer; evenly split among men and women, blacks, Hispanics, and whites. The group was somewhat younger than Brownell would have liked—mostly in their late twenties and thirties—but they were all employed, and many of them lived in neighborhoods where crime in general and drug dealing in particular were a problem. What rankled Brownell, however, was the time and effort involved in the process. It had taken weeks just to get to voir dire—the process by which litigators question candidates and select a final jury. Meanwhile, the defendants refused to waive their right to be present during the entire selection process, even though one of them slept through most of the proceedings, and whole days were lost when Corrections failed to produce all nine prisoners. Then
the defense mounted a Batson challenge, claiming that the prosecutors were using their vetoes in a pattern that suggested a racial bias. (It’s an open secret that prosecutors don’t like to impanel young black women, feeling that they have unusual difficulty condemning young black men to long prison terms.) The challenge was defeated, but time wore on. By the time the lawyers were ready to give opening arguments in mid-October, a month and a half had elapsed since hearings had begun, enough time to try several serious felonies from start to finish. “We had decided Don [Hill] would do the opening, and it was a good thing,” Brownell recalls. “I remember walking into court that first day and feeling completely worn out, and then realizing: We still haven’t started yet.”
PART 51, Leslie Crocker Snyder’s Special Narcotics Court, was a relic from the 1940s, a vast square church of a room, calculated to cow even the righteous. A broad center aisle cut through seven long rows of spectator pews, divided the gated arena known as the well between defense and prosecution, and ran up to the elevated, altarlike bench from which Snyder presided—with queenly control—over the proceedings. On her right sat her bailiff; on her left, the jury; and behind her, soaring to the triple-height ceiling, a lacquered wood panel proclaimed the court’s trust in God.
But nothing about the court’s physical plant was as intimidating as the judge herself. Decked out in her robes, with classic good looks and a mane of streaked blond hair, Leslie Snyder, 52, cut a glamorous figure, which, when combined with her obvious intelligence—she’d graduated first in her class at law school—and imperious tone, made her a mesmerizing and at times exasperating presence in her courtroom.
She also cut a broad swath through the criminal justice system generally. Among the first female prosecutors at the Manhattan DA’s office—she’d joined the office in 1968 under Morgenthau’s predecessor, Frank Hogan—and the first woman to try serious felonies, she founded Manhattan’s groundbreaking Sex Crimes Prosecution Bureau, and later pioneered legislation that modernized New York State’s rape law. A formidable trial attorney, she was appointed to the bench by New York mayor Ed Koch in 1983, and quickly established a reputation as a tough, rigorous judge willing to hand out heavy sentences to violent offenders—something of an anomaly in New York’s famously liberal courts. Known as a prosecutor’s judge, she was feared and in some cases disliked by the state defense bar, but even her critics conceded that she knew the law and was as likely to censor an unprepared prosecutor as a lawyer for the defense.
THE COWBOYS launched the first strike in their defense before the trial began. That fall a prison informant told Tebbens that Pasqualito and Fat Danny had put out murder contracts on Snyder, Brownell, and Tebbens. Apparently, Pasqualito had bribed a guard to use his cell phone, contacted an associate from his old Washington Heights neighborhood named Daniel Cabon, and told him to arrange the hits with El Feo and Freddy Krueger. The price on Snyder’s head was $25,000. Brownell and Tebbens went for $10,000 apiece.
The scheme sounded far-fetched. But knowing the gangsters involved, HIU didn’t take any chances. They contacted the police, who assigned round-the-clock protection for Snyder, and they moved Brownell to a “safe house” apartment in Battery Park City. Police officers escorted him to and from court; he was instructed not to return home or venture out into the city.
Meanwhile, the unit’s detectives took aggressive action to preempt the contracts. Dugan had run across Cabon—who dealt drugs in the Heights—several times during his investigation of the Cowboys’ Manhattan connections. Dugan directed HIU’s undercovers to Cabon’s selling location, where they bought crack from him and arrested him. Later, under questioning, Cabon admitted his drug activities, but refused to give up Pasqualito or Fat Danny, and disavowed any knowledge of a murder plot.
HIU went after El Feo and Freddy Krueger as well. They prevailed on Laurie Horne, the ATF agent who’d taken over El Feo’s case, to expedite his arrest, and on December 12, Horne, along with Terry Quinn and HIU investigator Jose Flores, nabbed the gang leader at the Hilton Hotel where he’d been holing up in Miami. Meanwhile, Dugan tracked Krueger to his girlfriend’s apartment in the Heights, but missed him by hours, before learning that he’d absconded to the Dominican Republic. A Dominican national, Krueger would not be as easy to extradite as Pasqualito or Nelson. But as long as he remained in the Dominican Republic, he posed no threat to the judge.
DON HILL began his opening on October 18. He felt a surge of relief at finally delivering the statement he’d been preparing for weeks, in some ways for years.
Opening statements, by law, may not be argumentative and, by convention, should not be overly dramatic. Their purpose is to establish what the prosecution intends to prove, and how it intends to prove it. Anything else, in theory, is extraneous. In practice, however, the opening is the prosecution’s first real crack at the jury, and it sets the tone for the rest of the trial. Moreover, Hill could not talk about the Cowboys’ exploits without feeling, and he wasn’t about to try.
Hill spent the afternoon session—about two hours—talking about the Quad. For him it was the gang’s most heinous crime, perpetrated at the apogee of their power—an act of pure arrogance and brutality, the best example of what happens when the law allows a cancer of violence to metastasize freely. It was a crime that Hill had lived with for nearly two and a half years. He was conversant with every detail, and barely referred to his notes.
Standing at the rail of the jury box, he let his eyes range over the jurors’ faces, and turned away only to point out the defendant whose deeds he was describing. He rarely raised his voice, and was careful not to dwell on the gruesome aspects of the crime. His purpose was simply to humanize the victims. They were not heroes, he said. They were not all good citizens. They were just ordinary people going about their business, and even if that business was buying crack, they didn’t deserve to be butchered for it.
It was the first time Hill had told his story to an audience, and as he enumerated the dozens of smaller crimes that culminated in the four cold-blooded homicides—the competing crack sales between the Cowboys and Yellow-Top, the purchase of the firearms from Raymond Polanco, the distribution of the guns to the shooters in the hallway of 348 Beekman just hours before the Quad, the planning of the murders on the rooftop of No. 348, and the brazen shooting into the alleyway—Hill noted with a shock of recognition the utter horror and revulsion mirrored in the gaze of the jurors.
Hill concluded his opening statement the next morning by tracing the origins of the gang at Beech Terrace, then moving forward in time, delineating the development of their conspiracy, and sketching in the violent incidents leading up to the Quad and beyond. With each shooting and stabbing he described, he could sense the growing incredulity of the jurors. By the end, he’d laid out a rough itinerary for the prosecution’s case. He’d also sounded its theme: For many years, while building an empire through greed and ruthlessness, the Cowboys had been a law unto themselves. Now it was time for the real law to judge them.
The defense’s openings were brief, and mostly of the “prosecution has offered no evidence yet to prove their claims” variety. But two strategies emerged: First, the lawyers noted that the prosecution’s case was big and confusing, and like the street itself, full of ambiguities, inconsistencies, discontinuity, and irrationality. Clearly, the defense intended to take advantage of that confusion to argue against the prosecution’s contention that there was an organized conspiracy. Yes, their clients dealt drugs—most of the lawyers were prepared to admit that. And yes, their clients knew one another, many of them since childhood. But they were in business for themselves. The idea that there was a rigid hierarchy, or any kind of complex set of agreements or protocols among them, was absurd.
The second theme was adumbrated in the opening by Pasqualito’s lawyer, a fierce and sometimes strident advocate named Valerie Van Leer-Greenberg. The government’s civilian witnesses, she said, were scum, no better, and in many instances worse, than the defendants; and they w
ere unreliable, and had been paid and manipulated by the prosecution.
But the prosecution’s biggest challenge had nothing to do with the defense’s arguments. With nine defendants, a pared-down witness list that still hovered around 100, and dozens of charges in the indictment, including ten homicides, Brownell feared that jurors wouldn’t be able to remember, much less keep straight, the abundance of detail he needed to elicit over the next six to nine months just to make his case legally sufficient. Worse, he and his colleagues risked alienating the jurors, losing their attention and sympathy.
HIU had devised several tactics to counteract the length and complexity of a multidefendant conspiracy trial like the Cowboys trial. The simplest was the use of visual aids—a photo array of the gang’s hierarchy, a chart listing the main charges (the Quad, the Double, etc.), and the model of the Beekman Avenue neighborhood that the prosecutors had used to prep their witnesses. Every time the jurors entered the courtroom, they would be faced with the same menu of violence, the same gallery of mug shots matching the defendants’ faces; and whenever they could, the prosecutors intended to refer witnesses to the displays, underscoring the who, what, and where of their testimony.
HIU’s chief strategy, however, was simply to tell the Cowboys’ story, to use narrative and dramatic techniques to depict their seven-year reign of terror over a neighborhood. As obvious a tactic as that may seem, many prosecutors balk at the notion that they’re also entertainers, preferring to argue their cases in a dry, legalistic fashion, relying on the judge’s instructions and the jurors’ own good sense to lead them to the correct verdict. But Arsenault and Brownell weren’t taking any chances. They wanted the jurors on the edge of their seats as much as possible, and they arranged the order of the witnesses to grab the jury’s attention early on and build tension throughout the trial, focusing first on the Quad, as Hill did in his opening, and closing with Pasqualito’s assassination of Frankie Cuevas.
Gangbusters: How a Street-Tough Elite Homicide Unit Took Down New York’s Most Dangerous Gang Page 28