How To Win A High Profile Criminal Trial (Part II)
(In my prior post on winning high profile criminal trials, I discussed the complete and total dedication to the task at hand as well as the needed confidence of the defense lawyer, born from over-preparation, which allows him to take the chances necessary to win a case all observers presume is a lost cause.)
Creativity and Courage Are Crucial If You Want to Win a Big Media Case
Many defense lawyers are afraid to take chances in a high profile case. The reasoning goes ‘why take a chance of making a fool out of yourself when a good fight is all that anyone expects of you – and you’ll still get good publicity.’ Well, the main reason a great defense attorney will take chances is very simple: he actually wants to win, not just appear like he fought a good fight. An example: during the Gotti case I decided early on that we would be using a very novel defense, namely that the defendant had actually left the mafia while serving a prior federal prison sentence and, because five years had passed since his withdrawal, the pending federal charges were brought beyond the statute of limitations. Simply put, even if the defendant had committed the charged acts, if the jury believed the withdrawal defense, he would be acquitted.
Not only was this an incredibly bold defense, it was simply not done in Mafia cases as it would require me as the lawyer to admit that the Mafia existed and that my client had been a leading member of an organized crime family. I don’t think there was a single “mob lawyer” in town who would have dared such a defense for fear of losing future mob-related work. Forget whether or not the defense would work at trial — every single lawyer who contacted me about this defense expressed grave concern over my being blackballed in that area of criminal defense. Of course, I could not have cared less about losing this type of defense work: any lawyer in my mind who aspired to or was capable of solely doing organized crime defense work was not worth the time of day. And what was the point of the client even wanting a trial unless he was willing to do whatever it took to win? To Mr. Gotti’s credit, he was game for such an earth-shaking defense. And he picked a lawyer who was not the typical mob lawyer from Central Casting who has cluttered federal courtrooms in Manhattan and Brooklyn over the years. He wanted someone young, bold and hardworking — someone who might actually want to win the case instead of just giving it the old college try. Lesson learned: if you want to win a high profile case, it helps if the client is courageous as well. But a client’s courage is directly related to the confidence and skill his attorney conveys. A lazy lawyer who does not treat the case like a life and death matter conveys no such hope to the client.
In order to allow this withdrawal defense to have any chance to work, I needed to sell it to the jury – a year before the jury was even selected. It was important that this withdrawal defense become amplified and widely known, digested and considered by New Yorkers (and the jury pool) before the trial even began. And only in a high profile case does this opportunity arise, an opportunity to counter all the inherent biases and awful things jurors had read in the media for years about the defendant and his family. It was crucial that a clear, concise, believable defense theory be floated and become part of the fabric of New York City well before the trial started. With this opportunity at hand, why not take advantage of it? Instead of spending my time on Good Morning America or the Fox News channel talking about myself – but having little to no contact with prospective New York jurors – we flooded the New York tabloids with stories of the defendant’s changed life, including his charitable endeavors while in prison which included the completion of a children’s book.
To achieve this at the start, in our motion for bail we liberally used excerpts from over 100 hours of jailhouse recordings made secretly by the government during my client’s visits with friends and family during his incarceration before the current charges had been brought. These tapes had never before been revealed publicly and surely were seen by the government as helpful to its case: in the tapes, Mr. Gotti confirmed his membership in the very organized crime family charged as the enterprise in the RICO indictment against him. However, the tapes served our purpose even more: they revealed a troubled man, railing against his birthright, the organized crime family into which he was born. He complained bitterly about what he felt was foisted upon him and made clear that he was done with it forever. That when he got out of prison he would be starting a new life:
“I would rather clean up s— in Central Park than be involved with . . . these mutts.”
“If you told me my son is involved in the street, I’d rather hang myself. If you told me my son was involved in this life, I couldn’t do another day in jail.”
When these bombshell transcripts, contained within our bail application, hit the media they made the covers of all the New York tabloid newspapers. And the story spread not only nationally but throughout the world: John Gotti, Jr. had withdrawn from the Mafia, rejecting his father’s wishes. Since the factual support for this incredible position was government evidence in the form of Mr. Gotti’s own words, secretly gathered by a government bug placed in the ceiling of an upstate New York prison visiting room, they were believable — as was our defense.
Using the media to a defendant’s advantage is crucial in high profile cases: the jury is always available to be swayed to your side, even a year before they’re chosen as jurors. And even when jurors are eventually picked in a mega-trial, you can be certain they are defying the judge’s orders NOT to research the case or parties in the trial online. And do you want helpful material about your cutting edge defense available online — or article after article describing your client as a violent savage? So off we went, a year before the trial began, boldly locking ourselves into this high risk/high reward defense. But to fight a high profile case in a safe, traditional manner is to ensure a well-fought loss. And I had no interest in losing with honor.
— TO BE CONTINUED: EVERY TOP CRIMINAL LAWYER HAS A GREAT SENSE OF HUMOR – AND AN EGO TO MATCH —
Jeffrey Lichtman has received the highest rating (AV) from the Martindale-Hubbell Legal Directory, is recognized in the Bar Register of Preeminent Lawyers and has also been selected as a New York City Super Lawyer for being a leader in his field of criminal defense. Mr. Lichtman has received a rating of 10.0/10 Superb rating from Avvo Lawyer Directory and was profiled in the New York Daily News, The New York Times as part of the “Public Lives” series and in a two-part series in Super Lawyers magazine. He can be reached at (212) 581-1001.