“No,” Coyle said.
“Now wasn’t that easy, Agent Coyle?” Judge Cerrato remarked.
I winced. It is never good to have a judge chastise a prosecution witness.
Gallo also knew this and immediately called attention to the judge’s remark.
“Thank you, Your Honor, for your help. Now, Agent Coyle, in the article, Mr. Mancini is quoted as saying that he looked at the man who visited the apartment… and, well you tell us, what did that man see?”
“The article quotes Mr. Mancini saying the visitor had ‘stone-cold eyes.’ ”
Gallo repeated those words. “ ‘Stone-cold eyes.’ That means he got a pretty good look at that man’s face if he saw his eyes, wouldn’t you say?”
“I don’t want to assume,” Coyle said sarcastically.
In a stern voice, Judge Cerrato said, “Answer the question, Agent Coyle.”
“Yes,” Coyle said, “if Mr. Mancini was quoted accurately, then it would appear that he looked at the visitor’s face.”
“Now, please notice that Mr. Mancini did not say in the article that this man had a scar on his left cheek. Can you confirm?”
“That’s true.”
“Then how could that man going into the apartment building have been Mr. Persico?”
Coyle looked frustrated. “Mr. Persico clearly has a scar.”
“That’s not what I asked you,” Gallo said. “If the man whom Mr. Mancini saw didn’t have a scar, then he couldn’t have been my client, isn’t that correct?”
Coyle twisted uncomfortably in his seat. “I saw Mr. Persico enter that building,” he said.
“Your Honor,” Gallo protested, “he’s not answering the question.”
Judge Cerrato glared at Coyle and said, “I’m going to make this very simple for you, Agent Coyle. We all know Mr. Persico has a scar on his left cheek. You’ve just testified that Mr. Mancini did not mention that scar in the newspaper article. The defense has asked you, if the man whom Mr. Mancini said that he saw did not have a scar, could he have been Mr. Persico? Now answer that question.”
“No, it couldn’t have been Mr. Persico if that man didn’t have a scar.”
Gallo said, “Thank you, Judge and Agent Coyle.”
Gallo had done a masterful job raising doubts about whether Persico had been spotted by Mancini. Now Gallo went on to further undermine Coyle’s credibility.
“Would you consider yourself ambitious, Agent Coyle?” he asked.
“No more than any other agent,” Coyle replied. “We all seek justice.”
“Come now, Agent. There’s no need for you to be modest. Isn’t it true that you have moved up the ranks quicker than your peers?”
“I have been promoted much faster than others who entered the academy with me.”
“Is that because you’ve been involved in big cases?”
“Yes, sir,” Coyle proudly declared. “I helped solve a major case in Detroit that involved street gangs.”
“Would getting my client convicted be considered a major notch in your belt and possibly get you another big promotion?”
I objected, pointing out that Coyle couldn’t speculate on the future. The judge told Gallo to move on, but he’d accomplished what he’d wanted. He’d suggested a motive for why Coyle might lie about Persico.
“Agent Coyle,” Gallo said, “in your log entry, you made a remark about Mr. Persico changing clothing after he left the apartment but before he went home for the night, did you not?”
“Yes, sir. He changed his clothes after he left the apartment.”
“What did you conclude from this observation?”
“That the defendant changed clothing to get rid of the clothes he wore at the murder scene because they were covered in blood.”
“I see,” Gallo said thoughtfully. “There was a lot of blood on that scene, wasn’t there?”
“I object,” I said. “Agent Coyle was never at the scene. Calls for speculation.”
“I’ll withdraw my question,” Gallo said. But it hardly mattered. The jurors couldn’t unhear the reminder about how bloody the apartment had been.
“Did you actually see blood on Mr. Persico’s shirt when you say he exited the Midland Avenue apartment?”
“No. I wasn’t close enough.”
“You weren’t close enough,” Gallo repeated. “But you were close enough to notice Mr. Persico’s scar and that he had changed his clothing and you what—assumed he changed it to get rid of blood-soaked clothing, is that correct?”
“I thought it was a fair and logical assumption.”
“A fair and logical assumption?” Gallo repeated. “Did you obtain a search warrant after the murder to search the butcher shop to confirm this fair and logical assumption?”
“No, sir.”
“But you could have obtained a search warrant if you had wanted, isn’t that correct?”
“I suppose so.”
“That would have been an easy way for you to see if blood was on his clothing. In fact, it would have been damning evidence, wouldn’t it?”
Strike two, I thought.
For the next several minutes, Gallo asked Coyle about several insignificant items and then he suddenly switched gears.
“Agent Coyle, are you familiar with a person named Daniel DiVenzenzo?”
I’d never heard the name before.
“Yes,” Coyle answered.
I shot Coyle a curious look. Where the hell was Gallo going with this? And why hadn’t Coyle warned me about this Mr. DiVenzenzo?
Gallo said, “Please explain to the court who he is.”
“Objection. Relevancy?” I said, rising to my feet.
“I’m going to allow it,” Judge Cerrato ruled, “but Mr. Gallo, you need to connect the dots.”
“I will, Your Honor,” Gallo said. “Now, Agent Coyle, isn’t Daniel DiVenzenzo an alleged member of a crime family?”
“Yes, the bureau has identified him as being a member of the Battaglia crime family. He lived in Yonkers, where he was involved in numerous illegal activities that date back to his youth. Right now, he’s currently in prison doing ten years for extortion.”
“You seem to know a lot about Daniel DiVenzenzo, Agent Coyle. Why is that?”
Coyle beamed and said, “Because I was part of a task force that was responsible for his arrest and conviction in early January of this year after his trial in federal court.”
“Now, isn’t it true that the basis of his conviction was telephone conversations that the FBI secretly tape-recorded as part of its surveillance of Mr. DiVenzenzo?”
“You are correct, sir. We had permission to place taps on Mr. DiVenzenzo’s telephones.”
“Now, these tape recordings were introduced into evidence during the DiVenzenzo trial and were accepted as evidence by the court, is that true?”
“Yes, the bureau showed an impeccable chain of custody and clearly established the authenticity of all wiretapped and taped conversations to the satisfaction of the court.”
I still had no idea where this was going so I decided to object. “Your Honor,” I said, interrupting, “Mr. Gallo still has not demonstrated how any of this is relevant.”
“Your Honor,” Gallo replied, “a few more questions and you will see the relevancy.”
“Start connecting the dots or I’m going to rule in the prosecution’s favor.”
Gallo said, “Agent Coyle, are you aware that my law firm represented Daniel DiVenzenzo at his criminal trial?”
With a smirk on his face, Agent Coyle looked at the jury and said, “If I’m not mistaken, you represent all the mobsters in the Battaglia family.”
Judge Cerrato didn’t like that response. Slamming down his gavel, he said, “Agent Coyle, stop trying to be clever. A yes-or-no answer will suffice.”
Again, I winced. Each time the judge admonished Coyle, we lost points with jurors.
Gallo suddenly got a concerned look on his face. “Your Honor,” he said, “may we approach the
bench?”
Judge Cerrato waved us forward.
Gallo said, “I’d like to connect these dots, but I’m not sure I can do it in open court without causing a mistrial. Can we discuss this in your chambers?”
“You just now came to this conclusion?” I said sarcastically.
Judge Cerrato said, “Mr. Gallo, I’m losing my patience. I hope you can explain yourself in my chambers because I’m not happy.”
Minutes later, we were standing in chambers before the judge, who was seated behind his desk, sucking an unfiltered Camel.
“This better be good,” Judge Cerrato said.
Gallo replied, “Your Honor, we have copies of the tape recordings from the DiVenzenzo case with us today along with transcripts. They were turned over to my law firm before Mr. DiVenzenzo’s trial by the U.S. Attorney’s Office as part of pretrial discovery.”
“Okay, counselor,” Judge Cerrato said, “I’ll bite. What’s on these tape recordings?”
“The recordings and trial transcripts establish that Corrado DiVenzenzo made a telephone call to Nicholas Persico. During their conversation, Mr. DiVenzenzo can be heard complaining about the Gaccione crime family headed by Giuseppe ‘Tiny’ Nunzio. Mr. DiVenzenzo can be heard saying that the Gaccione family has been, in his words, ‘trying to muscle in’ on several lucrative contracts at refuse collection sites in Staten Island.”
“Refuse collection sites? Do you mean landfills and dumps?” the judge asked.
“That’s correct, Your Honor. Mr. DiVenzenzo can be heard asking Mr. Persico what he wants to do about this incursion. And Mr. Persico’s response is that he does not want Mr. DiVenzenzo to do anything. He can be heard telling Mr. DiVenzenzo that under no circumstances should he or anyone else take any action against the Gaccione criminal organization, Mr. Nunzio, or anyone associated with Mr. Nunzio.”
“What was the date of this telephone call?” the judge asked.
“The call was made on December 28, 1979. It was the last piece of evidence that the bureau provided to us before Mr. DiVenzenzo’s trial on January 7, 1980.”
“And the point of all this?” Judge Cerrato asked.
“Your Honor,” Gallo said, “my law firm filed a motion before this trial for full discovery, including all ‘Brady material.’ ”
It suddenly became clear to everyone what Gallo was doing. Brady material was a reference to the 1963 U.S. Supreme Court case Brady v. Maryland, which required prosecutors to give defense attorneys any and all evidence that might exonerate a defendant of a crime.
Looking at me, Gallo said, “The Westchester District Attorney’s Office did not tell us about these wiretaps or about Mr. Persico’s directive that no one harm anyone connected with the Gaccione family, especially Mr. Nunzio and his family.”
“Your Honor,” I said, “we didn’t turn them over because I had absolutely no idea they existed. This is the first time I’ve heard of them. But in any event, I do not see how they would exonerate Persico in this murder case. They aren’t relevant.”
“Your Honor,” Gallo replied, “these tapes establish our client’s state of mind at the time of the Isabella Ricci murder. They speak directly to this case. They show he had no intent to harm any Nunzio family member and that would include Isabella Ricci, who was the daughter of Giuseppe Nunzio.”
From the look on Judge Cerrato’s face, I knew I had to do damage control and do it fast.
“Your Honor,” I said, “the defense has just admitted to you that their client is an experienced crime boss. Surely he would have known that there was a good chance that all of his calls were being tape-recorded. This entire conversation could have been a ruse to establish any lack of criminal intent on his part. It could be a cover story. You can’t believe what he says on those tapes. They are nothing more than self-serving statements.”
Gallo said, “Nice try, Ms. Fox, but the facts are clear. You worked this case with Agent Coyle. He let you read his logbooks and you called him as a witness. Agent Coyle has acknowledged that he participated in the investigation of Mr. DiVenzenzo. Agent Coyle was intimately familiar with these tape recordings. His participation in both cases created a legal nexus or connection between the FBI and the District Attorney’s Office. That clearly makes the tape recordings Brady material that should have been turned over by the D.A.’s office to the defense. Ms. Fox can’t pick and choose what exculpatory evidence to show us.”
I said, “Judge, the defense already knew about them. They already had them.”
“That’s not the point, counselor, and you know it,” Judge Cerrato replied. “The issue is whether or not your office withheld Brady material that Agent Coyle and the FBI knew might help Mr. Persico prove his innocence. Let’s go back into court.”
From the irritation in his voice, this was not going well. When we returned to court, Judge Cerrato immediately asked the jury to leave. As soon as they were gone, he announced that he was going to question Agent Coyle on the record.
Coyle gave me a puzzled look.
“Agent Coyle,” the judge said, “let me remind you that you are under oath and subject to a potential perjury charge.”
For the first time since he’d taken the witness stand, Coyle looked nervous. Threats of perjury do that to witnesses.
Judge Cerrato got right to the point. “Agent Coyle, prior to the commencement of the Persico indictment, did the FBI make the D.A.’s office aware of tape-recorded conversations between defendant Nicholas Persico and Daniel DiVinzenzo?”
“No, sir,” he said quietly. “I did not tell Ms. Fox or her associates about the tape recordings. I didn’t think they were relevant to this case.”
“Well, Agent Coyle, we’re about to find out if they are relevant,” Judge Cerrato said. Judge Cerrato ordered his bailiff to play the relevant portions of the recordings that Gallo had mentioned. By the time they stopped playing, I knew we were sunk. To make certain there were no misunderstandings, Judge Cerrato asked Coyle one more time: “Do you know if anyone in the FBI discussed these tapes with anyone in the Westchester District Attorney’s Office?”
“I don’t think so. I didn’t tell Ms. Fox about them.”
“Give me a specific yes-or-no answer. Did the FBI turn these tapes over to the Westchester County District Attorney’s Office? Anyone at all—the D.A. or any of his chiefs?”
“No, sir, not to my knowledge.”
“Agent Coyle,” the judge asked, “did you participate directly in the investigation of Persico with the D.A.’s office?”
“Yes. I was briefed and cooperated with Chief Steven Vanderhoot, the head of the Organized Crime Bureau in the Westchester D.A.’s office, and I assisted Ms. Fox.”
“Did you at any time advise either Vanderhoot or Ms. Fox about these recordings verbally?”
“No, sir.”
Judge Cerrato turned his attention to me. “Ms. Fox,” he said, “I will not bother to put you under oath. Did you have any knowledge of the fact, or did the FBI, or D.A.’s office advise you, that these tapes existed?”
“No, Your Honor, I had no idea before today.”
“Very well. We’re going to take a ten-minute recess so that Ms. Fox can consult with her boss about this case. Let me further say that I believe that what I just heard is very problematic for the prosecution. Do you understand?” he said, looking directly at me.
I did. Judge Cerrato was telling me that the prosecution was in deep trouble.
By the time I got to Whitaker’s office, I was fuming. Agent Coyle and his boss should have known those tapes fell under Brady material. What I didn’t know is whether my boss and his chiefs had known about the tapes and intentionally withheld them from me. From the start, I’d told them that I had reservations about indicting Persico on such little evidence and that an indictment would be driven by publicity, not evidence. I sailed by Miss Potts’s desk without saying a word to her.
“He’s expecting you,” she called over my shoulder.
Under my breath I whi
spered, “No shit!”
Steinberg, Myerson, and Vanderhoot had already assumed their positions around Whitaker’s desk.
It was me against them. O’Brien, my sidekick in most of these confrontations, was left cooling his heels outside the courtroom, since he wasn’t an attorney. Perhaps if he’d been there, he might have calmed me down, because I was about to lose it. “I need to know if I just got fucked down there or did all of us get fucked by Coyle and Longhorn?” My ears could not believe what my mouth had just said.
Whitaker couldn’t believe it, either. “Don’t you dare question my integrity,” he said in an angry voice. “I didn’t know a damn thing about those tapes.” He glanced at Vanderhoot and said, “Did those FBI bastards tell you about any of this?”
Vanderhoot said, “Absolutely not, sir. I didn’t know about the tapes. I swear it.”
Steinberg jumped in. “Forget about the tapes. It’s too late to fix that. We need to do damage control. I say we go forward with this trial and let Judge Cerrato or the jury take responsibility for dismissing it. It will look bad if we dismiss the charges.”
“Are you kidding me?” I said. “This case needs to be dismissed immediately.”
Vanderhoot chimed in. “We still have a chance. The jurors know this is a mob boss. We could get a hung jury if we keep pushing it.”
Myerson joined in the chorus. “In your closing, you could emphasize how much the Persico and Nunzio families hated each other. The jurors haven’t heard those tapes.”
“Are you living in a dream world?” I asked, fully aware that I was being insubordinate. “We didn’t give them Brady material, and if we move forward, the judge is going to let Gallo play those tapes.”
The intercom buzzed and Miss Potts said, “Sir, Judge Cerrato is on line one.”
Whitaker snatched the phone and put it to his ear, leaving us to wonder what Cerrato was telling him. Whitaker didn’t say a word until the judge had finished his tirade. Finally, he said, “Ms. Fox doesn’t have any more witnesses, but we’re going forward with this trial.”
I couldn’t believe my ears. I was being sent to a firing squad.
A few minutes later, I was back in the courtroom with the jury seated. The judge gave Gallo permission to enter the FBI wiretaps as evidence and allowed him to play the snippet where Persico could be heard clearly instructing DiVenzenzo to not take any actions against Nunzio or any of his family members. As soon as the tape stopped, the judge asked me if I had any more witnesses.
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