My mother likes to attend cases that I prosecute, but I’d told her to stay away from this one. I didn’t want either mob family knowing more than necessary about my family.
All of the media attention and anxiety about the mob had caused Judge Cerrato to implement his own set of courtroom precautions. Rather than having jurors state their names, they were assigned numbers and the attorneys were cautioned about prying too deeply into the jurors’ personal lives. That made selecting a jury even trickier than usual. It took us three days to seat the jury and during that time period, Judge Cerrato made it clear that he was not going to tolerate any theatrics or posturing by either the defense or prosecution.
I liked Judge Cerrato. He was a no-nonsense judge in his late sixties with a reputation for being fair and smart when it came to applying the law. He was also known for having a quick temper and an unorthodox practice. A chain smoker of unfiltered Camels, Cerrato, already short in stature, would feel the urge for a cigarette so badly during long trials that he would scoot down in his chair on the bench so that it was almost impossible to see him. He would bend down as if he were looking for something that he’d dropped on the floor and then he’d fire up a Camel, the telltale smoke drifting upward. In addition to smoking in his courtroom, Judge Cerrato was also known to wear a pistol under his robe and there was little doubt in my mind that if trouble broke out, he wouldn’t hesitate to use it. I just prayed his aim was good because he apparently had poor eyesight since he wore thick Coke-bottle glasses that seemed to triple the size of his eyeballs.
Myerson had assigned a fellow A.D.A. named Carl Cameron to assist me, but he worked for Vanderhoot in the Organized Crime Bureau so I limited his participation to the filing of routine motions and the interviewing of minor witnesses. I simply didn’t trust him.
I kept my opening statement relatively brief and simply asked the jury to listen to the evidence and evaluate the credibility of the witnesses as each of them gave their testimony. I knew Conti and Gallo would be eager to jump on any mistake that I might make so I was careful not to say anything in my opening that I would be unable to substantiate in the course of the trial. I also had decided beforehand that there was no need for me to be overly dramatic or emotional, because the circumstances of the murder were sensational on their own. A verdict of guilty was only half the battle; an appeals court would decide the other half. It was my job to convince this jury that Persico was guilty while policing myself to make certain that I didn’t say or do anything that opened the door later for a verdict to be overturned.
Although I felt we were rushing to judgment, I felt obligated to prosecute Persico to the best of my abilities. The public deserved no less from me and neither did Isabella. Besides, Agent Coyle hadn’t wavered since the moment we’d met. He was absolutely certain that Persico was guilty.
Gallo gave the defense’s opening, explaining that he would leave it up to Conti to later deliver the closing statements. Gallo was more articulate and well-mannered than I expected. He was also a man who preferred to use six words when only two were necessary. I quickly realized that the two attorneys planned to take advantage of their different courtroom styles by falling into a good cop/bad cop routine, with Gallo being the smiling, calm defender of his innocent client and Conti being the angry attack dog with bared teeth let loose when necessary.
My first several witnesses described the crime scene inside the apartment and Isabella’s cause of death. I intentionally did not introduce color photos, and instead used black-and-white shots as I had done in the grand jury. Those, and the testimony of the coroner and the Yonkers detectives who investigated the murder, gave the jury a graphic view of Isabella’s mutilated body. A common tactic of defense attorneys is to file an appeal based on inflammatory photographs, which the color shots of Isabella certainly could have been. I didn’t need to take that risk because I knew that experienced attorneys like Gallo and Conti would be quick to exploit it.
Under my careful questioning, the lead detective established that the time of death was sometime after three-thirty-five in the afternoon and explained that he’d reached that conclusion based on the cut clock-radio cord that had been used to tie Isabella’s arms.
Next up was the medical examiner, who testified that in his expert medical opinion the victim had been dead before six o’clock, creating a window of two and a half hours for the homicide to have been committed.
I was surprised that neither defense attorney challenged or cross-examined these early witnesses. Conti and Gallo were up to something and that made me nervous because I had no idea what it was. I only knew they had something up their sleeves. Persico wasn’t paying them to sit idly by and watch him get convicted, and I suspected that Conti and Gallo knew better than most how dangerous it was to disappoint the Butcher.
37
Although we had lots of circumstantial evidence in this case, I’d always known that the key witness was going to be Coyle. Jurors love to hear witnesses say: “I was there. This is what I saw with my own two eyes.” The fact that Coyle was the picture of a straight-shooting, all-American FBI agent would give his words even more credibility.
He was scheduled to testify during day three and the two of us spent a considerable amount of time together the week before the trial, going over his testimony and potential cross-examination. It had taken a great deal of patience on my part to deal with his arrogance and belief that he could outsmart Conti and Gallo. I kept reminding him that he needed to give yes and no answers and not challenge the defense. Many investigators consider themselves to be experts when it comes to interrogating suspects. And many of them are talented at getting someone who is guilty to confess. But interrogating a suspect at a police station and being questioned on the witness stand are two very different experiences. The rules in a courtroom are complex and so is the stage. A judge and the defense are listening to every word, looking for the most minor miscue.
I tried repeatedly to emphasize this to Coyle. But he seemed more interested in my legs than my advice. It was winter and I was wearing black tights that disappeared into my black shoes in a fluid, seamless fashion. I never thought about looking sexy—only practical. Men are just wired differently.
When he was sworn in, Coyle raised his right hand and answered loudly, “Yes, I do,” when Judge Cerrato’s court clerk asked him if he would swear to tell the truth and only the truth. I always like to start with softball questions because it puts a witness at ease. That’s what I intended to do with Coyle, but he was so cocky that I quickly realized I could shortcut this step. I moved on by having him establish his credentials. He told jurors about his educational background, training in law enforcement, and FBI accomplishments. Next I launched into a series of carefully crafted questions that the two of us had gone over earlier. I needed to reveal to jurors that the FBI had been conducting an ongoing investigation of Persico at the time of Isabella’s murder, but I had to be careful about how I did this. Judge Cerrato had warned me not to prejudice the defendant in front of the jury by labeling him as a well-known mobster. This could have been fatal on post-trial motions. As I gingerly walked Coyle through my questions, I sensed that much of what I was establishing was already known by jurors. The fact that they had been issued juror numbers rather than asked their real names had tipped them off to Persico’s reputation.
After I’d established that the FBI was routinely following Persico, I had Coyle identify the FBI logbook and had it introduced as evidence. I thought Conti and Gallo might raise some sort of objection, but they stayed strangely silent.
I instructed Coyle to open the logbook and turn to December 31, 1979.
“Is there an entry in the logbook on that date?” I asked.
“Yes, it is an entry that I made,” he replied.
Next I asked him to read his entry and had him explain to jurors how he saw Persico enter and leave the Midland Apartments at 2:30 p.m. and 5:30 p.m., respectively. He then recounted how he’d observed Persico wearing differen
t clothes later that night when he left work.
Coyle looked good, dressed in a tailored three-piece wool suit. On the witness stand, he came across with confidence. He answered my questions as he’d been instructed with snappy yes and no replies. When he was required to give a more detailed response, he used short declarative sentences that were easy to understand. Several times he turned his head so that he was speaking directly to jurors and making eye contact. I felt good about his testimony when I asked him my final question.
It was now Gallo’s turn to cross-examine. Rising from his chair, Gallo methodically began his cross-examination without a hint of animosity. He seemed almost admiring of Coyle. I could see my witness being lulled in by Gallo like a Siren beckoning unsuspecting sailors to crash on the rocks. I knew Gallo would eventually make his move and when it happened, I suspected he would do so without drama or flair. He would simply go in for a clean kill.
“Agent Coyle,” Gallo said, “I’d like you to read from the logbook that the prosecution has introduced as evidence.”
Coyle looked pleased as he was handed the FBI file.
Continuing, Gallo said, “Now, you testified earlier that Mr. Persico had been under surveillance for quite some time, is that correct?”
“Yes sir,” Coyle said. “That’s accurate.”
“And this bureau logbook contains entries made by the FBI agents assigned to conduct that surveillance, is that your testimony?”
“Yes, sir.”
“Please look at the entry for Tuesday, December 11, 1979. Do you see it?”
“Yes, sir,” Coyle replied, and then without waiting to be asked, he began reading it: “Tuesday, December 11, 1979. Special Agent Dixon commenced surveillance of the Persico Butcher Shop at 1200 hours after relieving Agent Campbell. At 1400 hours, Agent Campbell observed a limo, New York license plate 65183-LV with driver and passenger, leave from rear of Butcher Shop. Subject followed. At 1430 hours, limo arrived at the apartment building on Midland Avenue, Yonkers, New York.”
I realized that Gallo was having Coyle read the entry that I had first noticed when I’d reviewed the logs at the IHOP restaurant. It was the entry that described how an agent had followed the car to the apartment building, only to discover that someone besides Persico had been in the vehicle.
Coyle continued reading. “Passenger in rear seat of the vehicle exited the vehicle. Passenger had collared overcoat and hat. Agent realized that this was not subject Persico based on subject’s overall height and size. 1435 hours, agent left Midland Avenue, Yonkers, New York, en route to Persico Butcher Shop. 1450 hours, agent arrived at butcher shop. Subject Persico was observed outside butcher shop speaking to unidentified man carrying a bag. Unidentified man appears to be a customer. 1450 hours, agent remained in place for surveillance. Subject remains at butcher shop location. 1600 hours, limo, New York license plate 65183-LV, returned and drives to rear of butcher shop. 1700 hours, Agent Dixon relieved by Agent Campbell.”
Coyle shut the logbook and waited for Gallo’s next question.
“Agent Coyle,” Gallo said, “do you know who the person was who got dropped off at the apartment building on Midland Avenue, Yonkers, New York on Tuesday, December 11, 1979, at 1430 hours?”
“No, sir. I do not.”
Gallo directed him to another entry in the logbook, this one December 31, 1979. He asked if Coyle had written that notation and the agent quickly acknowledged that he had been watching Persico that day.
“Please read us your entry,” Gallo said.
“1200 hours, Agent Coyle relieves Agent Dixon at subject’s place of business at butcher shop. 1410 hours, limo, New York license plate 65183-LV, leaves from rear of butcher shop with driver and passenger in rear seat. Vehicle followed by agent. 1430 hours, limo arrives at the apartment building on Midland Avenue, Yonkers, New York. Subject Persico identified by agent exiting from vehicle. Subject enters building. Driver remains in limo. 1730 hours, subject Persico identified exiting the apartment building on Midland Avenue, Yonkers, New York. Appears excited and in a hurry. Enters limo, New York license plate 65183-LV. Agent follows limo. 1755 hours, limo returns to subject’s butcher shop. 1900 hours, subject Persico identified and seen getting into limo, New York license plate 65183-LV. Subject’s clothing has been changed from 1730 hours identification. Driven in vehicle by driver. Subject in rear seat. Agent follows vehicle. 1930 hours, subject arrives at his home. Stays in residence for balance of night.”
Gallo said, “Thank you, Agent Coyle. Now, can you please tell us if the person you were watching that afternoon was wearing a hat and overcoat?”
“Mr. Persico was only wearing an overcoat,” Coyle said.
“Was it cold outside?”
“Yes sir, it was.”
“Was the collar on the overcoat pulled up to protect from the cold?”
“No, sir. I could clearly see that the subject was Nicholas Persico. He had a scar on his left cheek that was clearly recognizable from prior surveillance.”
I felt a sudden sense of foreboding. In his eagerness to impress jurors, Coyle had gone off script and was giving Gallo more information than I’d wanted him to. He was supposed to be replying with yes and no answers.
Gallo said, “Agent Coyle, I want to show you a newspaper story dated January 3, 1980, that appeared in the White Plains Daily, written by reporter Will Harris. Have you seen this newspaper article before today?”
“Yes, sir. I read it when it came out.”
“Does this article contain a description of the person seen entering the Midland building on the afternoon in question? A description given by the building’s manager, Roman Mancini, to the reporter?”
“Objection,” I declared. I knew where this was going and I wanted to stop it.
“State your reason,” Judge Cerrato said.
“Hearsay evidence, Your Honor. It is not admissible.”
“Counselor?” Cerrato asked Gallo.
“Your Honor, the description that Roman Mancini gave to reporter Harris comes into the record solely for the fact that it was said, not the truth that it may or may not contain. Therefore, the statement by Roman Mancini is admissible to impeach Agent Coyle’s credibility.” Gallo took two sheets of paper from a file and asked for permission to hand them to the judge’s clerk.
The clerk delivered one sheet to Judge Cerrato and one to me. The sheets were copies of Section 200, from Richardson on Evidence, tenth edition. I knew as soon as I scanned the citation that I was sunk.
“Your objection is overruled,” Judge Cerrato said.
“But your honor,” I complained, “Agent Coyle cannot read that news article in front of the jury until the defense actually enters it as evidence. It can only be used to refresh his recollection at this point.”
“Miss Fox, you have my ruling,” Judge Cerrato said sternly. “Proceed, Mr. Gallo.”
I sat down and glanced at Coyle. I had mentioned to him during our pretrial sessions that Gallo might try to make use of Will’s story, but Coyle had brushed off my warnings and had chuckled at my concerns. He’d refused to even discuss it and had assured me that he’d be able to defuse any tricks that Gallo might try.
Holding up the newspaper, Gallo said, “Now, Agent Coyle, please read what’s been marked as Exhibit Number 207, where Mr. Mancini describes the person who visited the apartment on Midland Avenue on Monday, December 31, 1979.”
In his clear voice, Coyle read:
When asked, Mancini said he’d only seen the face of “Vicky’s” lover once because the older man generally wore a hat and turned up his collar. But on the afternoon of the murder, the woman’s “boyfriend” arrived without a hat and turned-up collar, Mancini said. “He had the eyes of a stone-cold killer. Looking at his face scared me.”
As soon as he finished, Gallo said, “Do you see my client sitting at the defense table?”
“Yes, sir, I do.”
“And do you notice anything unusual about the left side of his face?”
“It is well known that Mr. Persico has a prominent scar on his left cheek,” Coyle said.
“Isn’t it fair to say that Mr. Mancini would have noticed that scar if my client had entered his building?” Gallo asked.
Coyle shrugged and said, “Maybe he forgot to mention it to Will Harris or maybe the reporter forgot to put it in his article.”
“Your Honor,” Gallo said, “I would ask that Agent Coyle’s last remark be stricken—speculation.”
With a loud sigh, Judge Cerrato said, “So stricken.” Addressing the jury, the judge explained that Coyle had not answered the question. Instead, he had tried to rationalize why the article did not mention a scar.
“Mr. Coyle, answer the question that is asked. Don’t speculate or give us your theories,” Judge Cerrato warned.
At that point, Gallo asked Coyle: “Does the statement by Mr. Mancini as reported by Will Harris in the newspaper mention a scar? Answer yes or no.”
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