|
Volume 30, Number 4 (1996) reprinted by permission of the Law Review© cite as 30 U.S.F.L. REV. 931 By PHILIP N. MEYER*
This two-month trial provided an enormous amount of material to work from. If you listen to the tapes used in this trial, you would say to yourself, "This is not real life - this was written by a radio writer." ...DURING 1990 AND 1991, I attended criminal trials in the state and federal courts of Connecticut. It had been many years since I had attended trials as a young attorney specializing in litigation. Over the course of observing several high-profile criminal trials I noticed several developments. To begin with, I observed that the nature of lawyering practice and storytelling at trial is changing rapidly. Many of these changes are the result of new technologies, especially the use of aural and visual "paratexts" at trial. These new technologies include computer simulations, visual aids, and other "storytelling" devices. The impact of this new storytelling technology at trial is profound. The use of these paratexts has permitted reinvention of the ways that stories are now told, and often the types of stories that are told. Evidence is often presented aurally and visually. These are "present-tense" simulations of voices and images, rather than past-tense testimonial evidence. This adjustment enables, and perhaps compels, a radical reinvention of the types of stories told at trial. Secondly, the law is increasingly complex. Evidentiary details accumulate over weeks and even months. This legal and factual "complexification" of the trial provides additional room for narrative invention and ultimately severs the trial from the events that the storytellers purport to describe. Furthermore, the storytelling at trial often "slows down" some events that led up to the trial, as the past is reimagined and reconfigured from multiple perspectives. Consequently, the storytelling at trial takes far longer than the events themselves. Crucial moments in the dramatic action of the trial can be examined through multiple media and from multiple perspectives (audio and visual tapes, witness testimony, inventive storytelling). At other times, the storytellers can skip over vast spaces of time, especially in the back story that frames the action, and choose to focus on crucial moments of criminality or drama. Additionally, lawyers' work has become popularized and narrativized in the popular imagination through the media, including television and film. These stories incorporate artistic and aesthetic patterns embedded in the cultural imagination. As a result of these changes, a phenomenon has occurred that is notable in the high-profile and complex criminal trials I observed: jurors seem to make sense out of increasingly complex situations through references to other imagistic stories. The new media world at trial evokes other cinematic stories of popular culture. There is an apparent interpenetration between popular stories and the stories that lawyers tell at trial. No longer does popular culture merely reflect the stories told by lawyers at trial - popular culture creates these stories. Sophisticated attorneys are aware of this deep interpenetration. Stories told at trial, particularly in closing arguments, are no longer exclusively the simple linear and reductionist stories based exclusively upon past-tense tes- timony. Stories are packaged in imaginative forms that intentionally capture and embody other popular stories. Furthermore, sophisticated attorneys often intentionally incorporate popular stories into their work, drawing from a shifting repertoire of "stock" images, and the simpler popular imagistic stories through which jurors construct meanings. Often, attorneys choose personas that allow themselves to become characters in the story of the trial. Popular and legal cultural storytelling are embedded in a surreal postmodernist electronic dance. This paper focuses on perceiving the interpenetrations between the worlds of popular culture and the courtroom. This will be done in the context of a close reading of closing arguments in a complex RICO racketeering case. The closing argument of the defendant in this case manifested a new type of argumentation that has emerged in the courtroom recently. It is stylish, imagistically and narratively sophisticated, and compelling in form and substance. The present article builds on previous work2 that has explored some of these popular influences. The first part of this paper presents a narrative reconstruction based upon significant excerpts taken from the Government's and the Defendant Louis Failla's closing arguments in United States v. Bianco.3 After briefly contrasting the form of the parties closing arguments, the paper analyzes the interpenetrations between the defendant's arguments and cinematic stories. These cinematic stories are the narrative templates that underlie the Defendant's closing argument. This newly emergent and open-ended storytelling style is remarkably influenced by the conventions of popular imagistic storytelling. The paper concludes by illustrating the interconnections between the Hollywood films, Pulp Fiction, Casablanca, and To Kill a Mockingbird, and Donovan's narrative. I. Excerpts from Closing Arguments in U.S. v. Bianco (with Annotations) A. Excerpts from the Government's Closing Argument "It's the Mafia. It's the mob. It's La Cosa Nostra." ... For about five hours [federal prosecutor Robert] Devlin led the jury back over the complicated racketeering case the government has built since the trial of eight reputed Patriarca family members and associates began in late April.... Devlin's presentation was much like the government's case in general. He eschewed drama and let the mob implicate itself either through the testimony of informants or through the secret recordings.4Before prosecutor Devlin begins his closing argument for the Government, he thanks the jury for their attention and cautions the jurors to discount the lawyer's words in favor of close attention to the evidence, "If what the lawyers say ... differs from your recollection of the evidence, it's your recollection that controls. The most important job that you have in this case is to find the facts, to decide what really happened."5 After briefly referring to the judge's charge and describing the dramatic initiation rituals of the Patriarca crime family, the tone of Devlin's argument shifts into the moral outrage that characterizes the Government's closing argument. He describes the criminal activities of each of the defendants: And all of these activities, all of them, are laced one way or another with their undercurrent of violence, their undercurrent of violence that affects everything these guys do, and it spills out from time to time, and we saw that here, too. It spills out when they're burying bodies in a garage. It spills out when people put guns to the back of people's heads and shoot them like they did with William Grasso. It spills out when people plot in cars to kill human beings like they did with respect to Tito Morales.6Louis Failla is one of the eight defendants indicted for racketeering. Failla, a low level Mafioso, is reputedly a soldier in the Connecticut faction of the Patriarca crime family. Among his predicate offenses, Failla is charged with operating illegal gaming offenses for the Patriarca crime family in New York. One of these games was raided by the FBI. Although Failla was not in the gambling establishment at the time of the raid, Devlin relies heavily upon transcripts from audio surveillance tapes to connect Failla to participation in and supervision of this illegal gaming activity. Failla not only confesses to this involvement, he boasts about his supervision of illegal gambling. Devlin reads extensively from surveillance transcripts recorded several days after a successful FBI raid on an illegal gaming operation in New York City. Devlin uses extensive excerpts from other surveillance tapes to document Failla's involvement in other racketeering acts, including conducting illegal gaming operations, extortion, and wire fraud. The words in the tapes speak for themselves; Failla is literally condemned by his own words replayed at trial. Finally, after a break for lunch and several hours, Devlin's closing argument comes to the most serious charge against Louie Failla. Failla is accused of conspiracy to murder Tito Morales, a renegade mobster, who is the father of Louie's own grandson. Devlin does not develop the father-son relationship between Failla and Morales that has become apparent in some of the tapes that were played at trial as part of the defendant's case. Nor does Devlin refer to the poignant and humorous camaraderie between Failla and other mobsters, especially Failla's good friend and master card mechanic, Fast Jack Farrell. Two informants, mob enforcers Sonny Castagna and his son Jackie Johns, are alleged co-conspirators in the murder plan. However, they have been granted immunity and have testified against Failla. But the strongest evidence against Failla comes from his own words in the audio surveillance tapes admitted into evidence. Again, Devlin relies heavily upon the literal text of the tape transcripts. He briefly introduces this portion of the argument: Now, after Mr. Grasso was killed, the violence kind of simmered down ... for a while. But then it flared up again toward the end of the summer when through a combination of circumstances the life of Mr. Tito Morales became in jeopardy.7Devlin documents the bad blood between Morales and the two informants, Castagna and Johns: Mr. Castagna and Mr. Johns suspected that [Morales] had sent some people in there to wreck [their] club, had thrown a, been responsible for a brick being thrown through a window, and had generally been responsible for disrupting their operation that was going on there.Devlin shifts to the transcripts of the taped conversations in which Johns and Castagna bring the plan to kill Morales to Failla. Devlin argued that Failla's "okay," as a member of the La Cosa Nostra, was necessary to proceed with the plan.9 Devlin proceeds through the taped conversations between Failla, Johns and Castagna, documenting the unfolding of the murder plot to kill Morales. For example, Devlin concludes his depiction of a conversation by reciting three pages of taped transcribed conversations between Jackie Johns and Louie Failla: And they conclude the conversation with Mr. Failla saying, "We got to get this over with. I told your father [Sonny Castagna] I give him my word of honor. And you got it. It's going to be done. I told Gaetano [reputedly, the boss of the Connecticut faction of the Patriarca crime family after the murder of William Grasso] yesterday. He said, "Louie you weigh him.'" Now Mr. Failla's telling Mr. Johns that he told Gaetano, Mr. Milano about this, that is, this plan to kill Mr. Morales. And he's telling that, telling Johns, Mr. Milano responds, says, "Louie, you weigh him." Johns testified on the stand here that he interpreted that as a green light to go after Mr. Morales.10Devlin recites the words of the transcripts in a deadpan delivery. He removes the drama and ambiguity from the tapes and even sanitizes the transcripts by removing swearing and vulgarizations. He struggles through the humorous phrasings, as if trying to make sure his audience, the jury, doesn't laugh. It is as if he is trying to eliminate the multivalent meanings and rich shadings of language. In Devlin's interpretation and delivery of the lines, the words in the transcripts have no meanings other than the literal ones. The jurors need only decipher the literal text that reveal an historical reality. Only at the end of reciting long portions of testimony does Devlin editorialize briefly about the meaning of the tapes: Mr. Failla, the government respectfully suggests, in his position as Patriarca soldier would have only to tell Castagna and Johns, "Hey, you can't do this. No. No, we're not going to do this." And that would have been it, but is that what he did, ladies and gentlemen, is this what he did, say, "Hey, no. You guys cool off. We're not going to do this"? He basically gave him the green light, told him that he's seeing Gaetano Milano and Gaetano told him to weigh him. B. Excerpts From Jeremiah Donovan's Closing Argument on Behalf of Defendant Louie Failla: Act I "The Set-Up" Finally, it was time for Jeremiah Donovan, Failla's attorney, to present his summation to the jury. Donovan wore a look of defeat as he approached the jury box, his head bowed, his voice exhausted. He allowed that he is not sure who has beaten his client worse, the government or the defense. Then, he began the most spellbinding harangue delivered since the trial began in late April.12Donovan's closing argument is much different in form, structure and tone than Devlin's. In fact, in many ways it seems to take up where Devlin's leaves off. Donovan uses excerpts from the tapes as dramatic material. He does not refuse to incorporate Devlin's material, the damaging literal text from the tapes, into his story. Instead, he revisits the details of Failla's illegal activities lovingly, artistically, and ironically. He employs a clearly structured narrative form, and uses stories within stories as a way to create a three act dramatic structure. Donovan's closing argument becomes another story nested within the story of the trial itself and, simultaneously, nested within a world of popular stories about the mob. The argument begins: I have sat here this morning and listened to Louie Failla accused of being an exaggerator. If you recall, someone who indulges in wild speculation, in fantasy. I haven't said a word yet, but now I want to come forward and plead guilty to those charges. Louie Failla, with all due respect to you, Louie, is an exaggerator. You heard it throughout the course of the trial in tape after tape after tape.13Like the prosecutor, Donovan refers briefly to the judge's charge to the jury. His references to the law, however, are intentionally playful and ironic: The Judge's charge will probably last for a whole day, and the Judge will be as hoarse by the time he's finished than I was when I finished questioning Jack Johns [the mob informant who testified against Failla], who was happy that my voice had disappeared. But that charge is going to be really crucial, because it's in the charge in the principles of law, it's there that lie [sic] Louie Failla's defense.14Donovan's legal theory acknowledges that "Failla has committed some crimes."15 For example, "he ran a gambling den in New York in violation of [state] law," but these were not crimes committed in furtherance of a mob conspiracy under RICO.16 Then he repeats, "So it's in the charge and elements of the offense that our defense lies. I'll get to that in a little while."17 Next comes a story-within-a-story. Donovan begins, "As I make this defense, though, I feel a little bit like the legendary O'Toole, you all know, who - well, in a bar in Dublin ...."18 Donovan slipped into a rich Irish brogue and tells a pub story about a beefy Irishman with a "glimmer in his eyes of craziness," who strides into a pub and demands, "Alright, Where's O'Toole?" The other patrons, "looked into their drinks. They didn't want to be mistaken as O'Toole, except one little guy, seventy years old, five foot two, in the back, "I'm O'Toole. What is it to you?'"19 Donovan theatrically tells the story: [T]he big guy picked up O'Toole, ran him down the length of the bar ... and threw him through the plate glass window, walked outside, picked him up, threw him through another plate glass window and left him for dead. All the patrons looked at the poor old boy in the bloody mess on the floor. Guy looked up and said, "I sure pulled a fast one on that big fellow. I'm not O'Toole at all."20Donovan segues back into his argument, Now I feel like O'Toole, because in tape after tape after tape Louie Failla says, "I am O'Toole. I'm the guy you're looking for. I'm the new capo for Connecticut...." And I'm getting up and saying he's not O'Toole at all. He's not. He's not guilty of the RICO offenses with which he's charged.21During the first part of the closing argument, the "Set-up," Donovan establishes his defense to the illegal gambling charges. He also expands upon the time frame of his story. Donovan introduces Louie Failla as a sympathetic protagonist, and introduces the antagonist, the evil capo of the Connecticut branch of the Patriarca crime family, William "The Wild Guy" Grasso. Thus, the dramatic conflict is established that propels the narrative toward resolution: First of all, let's talk about chronology here. With respect to Louie Failla, this case begins in about February of 1989. What do we know about Louie Failla at that point? Well, he's living in a rented duplex. We know that from these tapes. A rented duplex out in East Hartford. Hasn't been painted for eighteen years.... He is living essentially in poverty. The tapes show that, and I'll read a portion of it to you in a second.Shortly after, Donovan literally assumes Louie Failla's voice, as if replaying recorded testimony from the tape transcripts. Donovan sounds as if he is reciting theatrical dialogue: On August 10th he tells us, "I didn't have no [sic] money. Couldn't do nothing [sic]. And I was never called in to defend myself. I used to go home at nights worried that he'd [Grasso] say the next day ... "I got a [expletive] hole dug for you already. Go get my [expletive] money.' I was living in [expletive] fear. Nobody to turn to. Not a [expletive] sole except Louie Failla. If I was going to get banged, I would get banged alone. I was afraid to take my wife in the car, the baby in the car. Couldn't take my grandson anywhere. I looked in [Grasso's] face, and I saw ... a totally insane man."23Where Devlin had omitted the swearing and stumbled over the vernacular and idiom, Donovan lovingly embraces the words as an actor delivering lines. Donovan cuts back from one type of sequence of scenes to another. These are comedic sequences out of Hollywood "buddy pictures." It is through these sequences that Donovan begins to establish his defenses to the lesser racketeering acts. Donovan affectionately revisits the tapes and material of Louie Failla's illegal activities. These become comedy scenes, as Louie, the lovable outsider, engages in criminal activities that are not part of Patriarca family activities - always just beyond the reach of Billy Grasso and his ruthless enforcers, the informants Jackie Johns and Sonny Castagna. Although Louie may be guilty of violations of state law, he is not technically in violation of RICO with which he is charged. Donovan continues: Here's what I mean. You not only have to have a participant in a RICO organization commit a crime. It has to be a crime that furthers the enterprise. Louie's activities, like the New York gambling operation described in one count of the indictment, are outside of organization activities. "This New York gambling game put money in Louie Failla's pocket, put money in Jackie Farrell's pocket ... [put] money in various people's pockets, but it didn't put any money in Billy Grasso's pocket and didn't put any money in the pockets of the alleged Patriarca crime family."25 Jeremiah Donovan's argument on behalf of Louie Failla is coded by stories within stories. These stories create comedic and pathetic visualizations of Louie Failla at different moments within his overall dramatic transformation. The stories emphasize Failla's dramatic transformation, and also provide the transition to Donovan's defense to the charge that Failla conspired to murder Tito Morales. The stories are playful and ironic; they fit Donovan's depiction of Failla's character. The transcript reveals that these stories within stories clearly reflect the sophisticated structure of a increasingly visualist three-act dramatic narrative. The incriminating words that Failla speaks are merely the dialogue of an imagistic story, with a deeper theme and narrative subtext. The first act establishes the dramatic situation, the "Set-Up," and provides Louie's defense to the illegal gambling charge. The second act is the "Confrontation" detailing the deepening tension between Louie and the Patriarcas as he engages in other illegal activities outside the scope of Patriarca family indictment. Finally, the third act provides the "Resolution," as the story shifts from the broad comedy of Louie's usually unsuccessful mob scams to dark and shadowy plots of murder. C. Excerpts From Act III "The Resolution" Donovan begins the third act with a story comparing Louie Failla to President Franklin D. Roosevelt: And this brings us finally to the murder of Tito Morales, and this, ladies and gentleman, is the most serious crime that faces Mr. Failla. Before I start, I'll get my breath back. So first the owners of the mine come in and they explain that, "Look, it's the depression. We're not getting much money for our coal. We admit the conditions are bad. We're doing the best we can to improve them. The wages are low, but we can't possibly pay more. We'll go out of business. The violence in the strike is over."Donovan tells this story, drawn from a repertoire of stock pub stories, which spins the plot forward into the third act, the defense to the murder conspiracy charge, the most serious charge against Failla. During the storytelling, "U.S. District Court Judge Alan H. Nevas hid his face to cover a smile and the audience guffawed out loud."27 This story captures Donovan's conceptualization of Louie's character at this point in the plot. Louie Failla will use deceits of language to avoid violence, pretending to give people what they want through story. This story foreshadows Failla's role as mediator between the violent mob impulses that would otherwise result in the murder of Tito Morales. Donovan jumps back and forth in time, blurring his own story with the actual events themselves: The most significant example of Louie's being a verbal [chameleon] has to do with Tito Morales. With respect to Tito Morales I'm going to argue to you that except for Louie Failla, Tito Morales would be dead. I feel really off trying to argue to you that he didn't conspire to murder somebody when, in fact, in our view it's Louie's action, I should say, more precisely, his inaction, that has permitted Tito Morales to be alive and happy in prison, however happy he might be.28Donovan then folds the law of a conspiracy into his storytelling: In order to determine whether Louie is guilty of a conspiracy to murder Tito Morales, you're going to have to make a decision about whether the conspiracy existed and what Louie's intent was. Now in a conspiracy it's seldom true that one act taken by itself can be detected as tending to prove the unlawful agreement. What I mean by this, I mean there was an agreement. There was an agreement between Sonny Castagna and Jackie Johns. Sure, they wanted Tito Morales dead, but Louie did not.29Donovan discusses what acts constitute furtherance of conspiracy and circumstantial evidence. He illustrates his contentions while removing the legal issues: "And so what we have to do is to take a look at the collection of acts of Louis Failla and of Castagna and Johns in order to see if there was an agreement which Louis Failla entered into to murder Tito Morales. There wasn't. There were none."30 Rather than recalling evidence, Donovan reenacts the story, splicing together pieces of testimony from the audio tapes into a visualist story. These sequences of scenes do not merely tell about Failla's fear of Billy Grasso and affection for Morales, the father of his grandson. They embody the story. Likewise, Donovan does not merely tell about the mob enforcers' murderous hatred of Tito Morales, he embodies these voices into drama. He intercuts two contrasting narrative lines in visual opposition, forcing the jury to imaginatively see these strands of the story. For example, in this excerpt Donovan pairs the Failla-Grasso "hatred" and the Failla-Morales "love" sequences in juxtaposition. He begins describing the Failla-Grasso relationship: And we think that the evidence shows that Johns and Castagna go to Billy Grasso with this problem that they have with Tito Morales, and Grasso gives the order to Failla that Morales has to die. This is not an order that can be ignored lightly. Failla says, "I didn't do what he said. That's why I walked away from the table once, and the guy made - " and then you can't hear what he's saying. "He came flying right back, "You [expletive].'"Donovan continues with the Failla-Morales relationship: But why did Louie Failla not carry out this order of Grasso? Because he and Morales were close. Morales was the father of Louie Failla's grandson. Grandson lived at home with Louie Failla, and I played a bunch of tapes in which you could hear the close relationship between Failla and Tito Morales, and you could also hear the frequency with which Tito Morales was in Louie Failla's car.There are cuts to action sequences, where Johns and Castagna plot the execution of Tito Morales. For example, there is a sequence where Donovan explores both Johns' and Castagna's motives to murder Morales: Why was it going on? What was [their] motive to kill Tito Morales? Castagna [the father of Johns] is an expert ... at taking a little bit of truth and weaving around the falsehood.... [A] real good example of that is when I asked him [on cross-examination] what were the reasons for killing Tito Morales, and he said, "First, because he was beating up Italian kids. Second, because he had beat up Jackie Johns. Third, because there was an order from William Grasso to kill him."Donovan then explains these reasons, implicitly, through visual story pieces. He keys his audience into his cuts through verbal cues or apologies for nonsequiturs, as if he had inadvertently forgotten his place in the story. But the story structure is purposeful. For example, Johns and Castagna have multiple motives for wanting Morales murdered. Morales can implicate Jackie Johns (Sonny Castagna's son) in many crime activities, and there is bad blood between them. Johns and Castagna are fearful that Morales will testify against them. Let's jump back for a minute. Since 1986 Morales and Johns had been friends. They had engaged in a very lucrative but not sanctioned activity .... So Jackie Johns and Tito Morales had something going for them. What was it? They would go out and they would either rob drug dealers, or they would defraud drug dealers with counterfeit money, and they would get the drugs and ... sell them.34Donovan then develops the scenes pertaining to the murder of Eric Miller, a young professional boxer who had fought with Billy Grasso in a parking lot of a Hartford restaurant, and who disappeared shortly thereafter. Donovan concludes this sequence ironically: "Tito Morales, who knows about what happened with the other kid [Eric Miller], can get Sonny and Jackie into some pretty serious trouble."35 Then he cuts back to the tapes: [T]he [tape] where Louie calls up Sonny and says that Tito was seen going into the federal building, and very shortly thereafter ... there's a real rough call to Jackie Johns [saying] he got [sic] to get over here fast.The two narrative strands converge: The "action" sequences setting forth Johns' and Castagna's plot to murder Morales intersect with the character sequences between Morales and Failla. And the tone of Donovan's argument shifts: And now we get to September 27th.... And then we have the September 27th tape. On September 27th Jackie Johns is in the car with Louie Failla. What I've done here is you got to make a distinction between what Louie said and what Louie was thinking, because intent is really important here. As I said, Louie's a verbal chameleon. He'll tell Johns and he'll tell Castagna what they want to hear, and then he won't do anything about it.In the next sentence Donovan adjusts his tone, using playful irony rather than the darkly twisting rage that marks his just-completed commentary. Each time he has made this shift in tone in the previous parts of the argument, Donovan has fallen into conspiratorial playfulness with the jury, and this has signalled the telling of another story outside the story of the trial. This time, however, it is different. First, this story directly incorporates the material from the trial. Second, the content is transformed from words into larger than life caricatures of Louie Failla, uncovered upon an easel. What I've done is in order to figure out [Failla's] intent, you got [sic] to think what he was thinking, so I have, in order to try to explain, you got to see this. There's Louie. I tell you, you got [sic] to convict a guy on looks, Louie would spend the rest of his life in jail. Two things you got [sic] to do. What did Louie say, or what was Louie thinking when he said it.38Donovan reveals the first larger-than-life cartoon poster of Louie Failla. The poster is angled in front of the jury so that Failla sits behind and to the side of the jury. The Government attorneys have moved from their seat to see the posters and the jury has an unobstructed view of the oversize caricatures set against the "real" Failla. Donovan pulls down the next comic image of Louie Failla, a left-face profile, with the words on the tapes literally coming out of Louis' mouth, labelled "WHAT DID LOUIE SAY?"  "He's been afraid to come around to my house too, I know he is. He's been there twice." What's that mean? That means that Morales is concerned about ... this stuff. He's been there twice to talk to Louie about it.Donovan pulls down a second oversize caricature on the opposite side of the page, a right faced profile, labelled, "WHAT DID LOUIE THINK?" with cartoon bubbles coming out of Louie's head, as if capturing Louie's thoughts, words that had never been spoken as testimony at trial. Donovan assumes Failla's gravelly voice again: "If I tell them he's tried to come to my house, they can't very well expect, you know, me to love him, too."40  Now in that tape Louie says, "What do you want to do? ..." [947]  Remember, at this point Louie only has to delay for a month. He's delayed until April. He just needs one more month. At that point Tito will be in jail, and then Louie's out of it. The problem is, he tells him Tito is going to go away. What if Tito doesn't go away? Then it'll look to Johns and Castagna that he's lying.  Johns responds, "He lies." Louie says, "He lies like a [expletive]. He's saying, "I ain't going to forget that guy pulled a piece on me.'"  If I tell Jackie that Tito's scared stiff of him and his father because of what they did to Eric Miller, Jackie's not in danger and they have nothing to fear from Tito.44 [949]  "All right, we'll get our heads together. When do you want to meet? I got [sic] to go someplace Sunday with Gaetano." [Failla] keeps setting up meets [sic]. This is exactly all throughout these two conversations. "Got to [set] up a meet. We'll have a meet next week."45  This is like - I don't know when you were little if your mother ever told you this, but how does it go? If you want to avoid doing something bad, there is one very easy way. Just put off until tomorrow what you shouldn't be doing today. Mother ever tell him that? I don't know. That's what Louie's doing. [950] So, "We'll have a meeting." There's no reason ... to have a meet. He could say to Jack Johns, "Look, Tito gets into my car, whatever I want. I'll drive him out to your house. You meet me here, and I'll drive him out there." But they have to have a meet. "You got [sic] to get the order. Gave him my order. Got it, it's done. Why don't we get together."  "Louie's telling Johns, okay, we'll do this .... At the same time he's got this real affection for Tito. If he doesn't tell Johns this, they're just going to go off and do it on their own, so he stalls. ["You tell your old man I'm working on it.']"47  "As long as they think I'm doing something about it, they won't go off and kill Tito on their own. [Sonny's] already done time for one homicide. Pulled a gun on Tito after Jackie got beat up. Doesn't think I'm going to be working on it, go do it himself."48  "That's the first conversation. It ends up with no action being taken, but with Louie promising that action will be taken, and the action that's going to be taken is a meeting between Castagna, Johns and Louie."49 Donovan proceeds to explore Louie's thought processes through the use of the cartoon bubbles coming out of Louie's head. He uses Louie's voice. He goes through each of the multiple FBI surveillance audiotapes recorded in Louie's bugged Cadillac. The dramatic tension is created and sustained by Louie's progressively desperate efforts to stall off the mobsters. Donovan concludes by summarizing the evidence, explaining the judge's charge, and then thanking the jury. In contrast to the two hours of storytelling, this summary takes only several minutes. You have a tougher job. In trying to determine intention, the person's intention is necessarily very largely a matter of inference. No witness, you know, can be expected to come here and testify that he looked into another person's mind and saw therein a certain purpose or intention. I tried to do it with cartoons. I can't do it. No FBI agent or expert can come in and testify what Louie's intention was.  No evidence of going out and buying a gun. No evidence of a real plan that would bring Tito out at this time to this place. No evidence of - you know, when they searched Louie's house, they found no gun. Found it at Sonny Castagna's, but not at [Louie's]. No evidence of any kind of the actions that one would expect that Louie should have been engaging in if he had really conspired to kill Tito Morales. He talked, and by talking he saved Tito Morales' life. By making Johns and Castagna think that he was going along with the plan, he got Tito Morales that one more month he needed to get into prison. In my trial journal I noted that when Donovan completed his closing argument I felt a rush of feelings like I had just sat through a film in the dark. When the lights came on I didn't know whether to laugh or applaud. Others had apparently shared in this same transformative and theatrical moment. The other defendants, who until now had hated Louie because of his audiotaped confessions, were laughing too, slapping one another upon their backs, as if the murder of William Grasso had somehow been justified. And the judge, who had been covering his mouth and face to keep from laughing, was still smiling when he left the bench. Was he smiling at Donovan, Failla, or at the images that Donovan's story had imaginatively reconstructed? Would he still be smiling when it came time for the sentencing, if Louie Failla was ultimately convicted? Several members of the jury, on the way out of the courtroom, had looked back at the larger-than-life cartoons and then the real Louie, and then back again. Was this a trial or entertainment? Louie's "real" family, his daughter and wife, embraced him. This was the first time since the start of the trial that their dutiful yet skeptical attention had been transformed. It was as if somehow Donovan's argument had caused suspended of their disbelief of his innocence. Through narrative, Donovan was able persuade Failla's family that there was an interpretation of the events which absolved Louie of guilt and compelled forgiveness. After thirteen weeks of the trial I knew that these "other audiences," the judge, the other defendants, Louie's family, and even the spectators in the audience, had become as important an audience as the jury. It was as if these audiences were somehow now interconnected to the jury's deliberation. Similarly, it occurred to me that Donovan and Louie were likewise interconnected. Donovan was somehow, in telling the story of a storyteller who talks to redeem another's life, telling his story as protagonist in the conspiracy. Furthermore, Donovan's story had managed to introduce Louie's testimony; although Louie had never taken the stand, or had his testimony scrutinized in cross-examination. Donovan surely made a far more attractive protagonist than Louie Failla, and probably was far more persuasive and sympathetic than the "real" Louie. Of course no one would ever know since Louie had never spoken a word. Donovan returned to his defense table as if he was winding down from theatrical performance. He arranged his paperwork and shut down his courtside computer with its color screen filled with its charts and pictures. I recall a distinct feelings of both admiration and skepticism. It was just like the feeling that I have sometimes when I see an effective Hollywood movie that manages to subvert my intellect, and then later see through the sleight of hand as I emerge from the darkness of the theater. D. Excerpt From the Government's Rebuttal Argument The government attempts to change the focus of the argument: With respect to Failla, and I will turn to the murder now, with respect to Mr. Failla and Tito Morales, Mr. Donovan is an excellent lawyer. And Mr. Donovan's final argument in my view was outstanding. But when Mr. Donovan stands here in front of you with cartoons and suggests to you what Louie Failla was thinking I suggest to you that that's too far. Because there is no evidence in this case about what Louie Failla was thinking or saying other than the tape recordings which were admitted into evidence in this case. II. Observations and Analysis The Government's closing argument is in the form of an historical chronicle. This is a form of historiography without characteristics of dramatic plot or character that compel imaginative participation of the audience. It is difficult for the reader of the transcripts of the prosecutor's closing arguments to make sense of the "story" unless he or she has attended the trial and listened to the tapes at trial. Devlin's disconnected testimonial fragments substantiate specific allegations of racketeering. Accordingly, Devlin's version of Failla is not really a "character" in a drama, he is merely a function of his words. He is one of many evil men, indistinguishable from the other Patriarca mobsters, conspiring to do cruel and violent acts. Failla is merely another criminal who conspires with mobsters and is caught. Devlin's closing argument is decontextualized, and the long excerpts of transcript testimony recited are almost boring. Devlin does not reveal the powerful narrative possibilities embedded in this material. After all, these are stories about family, honor and betrayal. They chronicle what men do out of love, as well as from hate and greed. These Mafia men are complex and compelling characters. This is potentially richly dramatic material, but Devlin stays scrupulously away from narrative and psychological depictions of character that invite speculation as to motive and meaning. All of Devlin's Mafioso, including Louie Failla, are monochromes. Strategically, Devlin wants to avoid allowing the narrative possibilities embedded in the material to take hold. There is too much dramatic material in the surveillance tapes that have been played during the past thirteen weeks, too many ways to imaginatively reconfigure the material into meaning. In contrast, Donovan's closing argument on behalf of Louis Failla is a cinematic fable. The story embodies principles of three-act construction, which are characteristic of Hollywood cinema. The story is protagonist driven, and the lens of the camera follows Donovan's Louie Failla throughout the action. Donovan's version of Louie Failla has the multi-dimensional characteristics of popular Hollywood protagonists. He is not a monochrome or merely a cartoon. However, although he is a psychological character, he does not have the depth or complexity of protagonists in modern literary novels. Donovan's Louie Failla is created in the old fashioned Hollywood tradition, according to traditional formula prototypes. For example, Donovan's Louie Failla embodies the classic "inner contradiction" of stock Hollywood protagonists. He wants the recognition of the mobsters of Patriarca crime family, but also wants desperately to be loved by his real family. He cannot have both at the same time. Through his storytelling and exaggeration Louie attempts to prove who he is and, simultaneously, remove the pain and fearfulness coating his own heart. Donovan's Louie Failla is a comic and sad character, a man "desperate for love." He is also an "everyman," the gangster version of the stock sympathetic Hollywood protagonist. Donovan's stock story fits his narrative material. But the theme and plot are also legally effective. Failla's hustles are outside the scope of Patriarca crime family activities and, although illegal under state law, are technically not illegal mob activities under RICO. Simultaneously, Donovan's depiction of Failla's character, the tender-hearted mobster shunned for lacking the murderous cruelty necessary to be like the Patriarca capo Billy Grasso, provides the defense to the murder conspiracy charge. Donovan brings his story to the surface via images. He creates a Hollywood plot structure complete with stock characters. Once he gets his audience to reconstruct Failla's story in accord with prescriptive Hollywood patterns, the tapes become a dialogue with a deeper narrative subtext. Donovan's "Failla" has a developmental arc of the stock Hollywood protagonist. He goes through a pivotal crisis and transformation just when it all seems that he may be beyond redemption. The story is constructed through cinematic cuts and montage. Donovan retrieves pieces of material from the tapes and re-splices the segments into a story that plays out interactively in the imagination of the audiences. He keeps his audiences emotionally invested in the story, while interested and entertained. He even employs competing story lines, playing action against the interior drama. And so the closing argument makes Louie's story "feel" just like a popular film. In Donovan's story, Louie Failla's words are just the surface of a larger story. Donovan's version of the Louie Failla story is a visualist fable about other popular images even though it is, simultaneously, a "real" story about actual characters. Donovan encodes the Louie Failla's story in the story of the trial, as well as in a world of popular cinema. Because the structure and composition of Donovan's closing argument so closely parallels the aesthetic structure of popular and commercial Hollywood films, it is instructive to perceive Donovan's version of Louie's story in relationship to other Hollywood stories. In the remainder of this paper, I briefly describe some possible interconnections between Hollywood storytelling and Donovan's storytelling. A. Pulp Fiction: Sensibility Donovan's closing argument is a simulation that references the audio tapes at trial rather than the events that preceded the trial. This distance is emphasized by the form and tone of Donovan's storytelling. His stories forever spin elliptically within stories, until nothing is as it seems. Furthermore, what is evoked by this material and Donovan's ironic presentation is an imaginative interior world of shared images. This is what many popular films attempt to do now, playing against the shared expectations and imagistic awareness of the audience. Quentin Tarantino's parody mobster picture, Pulp Fiction, manifests this attitude and consciousness.53 We laugh at the dialogue which is ironically distanced from the action, yet nevertheless seems familiar and real. The characters share a connection of popular culture and expectations even while they commit atrocities upon one another. Eventually, we laugh along with them at the gruesome violence in Pulp Fiction because it is so deeply contextualized in humor and disconnected from any possible interior life of the characters. We even let the violence give us a charge, because we are invited to enjoy it vicariously. Tarantino suggests a world where the only reality is in an agglomeration of conversational fragments that allude to a shared pop culture iconography. Likewise, Donovan's closing argument is only partially about what it initially seems to be about - mobsters who have plotted the murder of another mobster. Donovan has encoded his story in a different imaginative world, stories within stories and, ultimately, stories within the story of the trial itself. Somehow Donovan, as both storyteller and protagonist, manages to make his multiple audiences aware that, like his own stories, the crucial audio conversational fragments, played at trial condemning Louie Failla through his own words, are merely words spinning in space, in an unreality severed from the past. These are merely words that have been played in the Government's meticulous case and relied upon in the historical annals of mob activities detailed in the Government's five-hour closing argument. The audience can never connect what has been said to what cannot be seen. The dramatic resolution of Donovan's cinematic version moves his audience forward into a world of hopeful possibilities rather than back into the darkness of an unknowable and black past. Everyone in the audience wants to believe in the goodness of what can be uncovered in the human heart and transcendence. But then this is not a cinematic simulation. It is supposed to be a "real" story about "real" people accused of plotting (and in many instances actually committing) horrendous acts, including murder. Then how is it possible at the end of Donovan's performance, everyone feels so good? Why is everyone (mobsters, judge, jury, and audience) laughing together as if on the inside of some shared imaginative dream? How is it that Failla may be redeemed through Donovan's storytelling in what initially appeared as an open-and-shut case that has reopened onto imaginative possibilities within the collective dreamspace of the popular imagination, where there is always room for reasonable doubt and cinematic salvation? There are aesthetic differences between Tarantino's use of a shared popular imagination and Donovan's as well. For example, while Tarantino accentuates the distance and disconnection between the words (as reality) and image (as unreality) Donovan moves intentionally in the opposite direction. For Donovan to succeed, the imagistic story must trump the prosecutor's literal and aural version of events (the audio tapes). Donovan's story is about Louie's inaction, his tenderness and humor, contrasted with the random violence, brutality and manifest evil of Billy Grasso and his freewheeling henchmen (whose dialogue sounds even more bizarre than that of Tarantino's mobsters). That is, in Tarantino's vision, the words are devised to pull us back into ourselves, our internal references, so that we do not feel the violence of the images on the screen (it is "pulp" fiction). In Donovan's vision, just like in classic Hollywood film, the images are more than the dialogue and make us feel for the characters. Likewise, Donovan uses images and story, instead of merely creating sensation, to bring us towards the shared and familiar and hopeful, until it begins to look like the classic Hollywood film. In doing so, especially given that this is a "real" trial rather than a popular film, Donovan's work is as innovative as Tarantino's dark vision. B. Casablanca: Heroism Then and Now The story of the closing argument is rooted in popular cinemyths of an earlier generation, and in simplified and traditional notions of sympathetic protagonists who learn from, and are transformed heroically, by their experiences. These characters grow in stock ways, across developmental through-lines, from loneliness to love, from erotic love to a "heroic" and transcendent love that is larger than the love of one person. This is one of the traditional Hollywood cinemyths. For example, Donovan's Louie is an embodiment of Humphrey Bogart's "Rick" in Casablanca. Rick is a weak man, an alcoholic, who exists in a brutal world.54 He falls in love, and it is this love that saves him from his self-indulgence and despair. Rick redeems himself through his heroic actions, and ends up moving beyond personal selfishness to redemption as he sacrifices himself to a larger love. Initially, it may seem absurd to compare Donovan's plot for Failla's story with Rick's story. But it is not. Donovan's Failla follows the same developmental arc as Rick. He is a selfish man. There is a moment when he can fulfill his personal longing and selfish desire by following through with the murder of Tito Morales and assuring his ascendancy in the Patriarca family; instead, Donovan's Failla chooses to sacrifice himself by doing nothing. He transcends his inner need, his longing to be loved by his mob family, and does what any self-respecting Hollywood protagonist would do: He refuses to defeat the imaginative expectations of the audience, which are fulfilled in ways that give us pleasure. The underlying narrative structure of Louie's story and Rick's story are structurally the same. The bad guys in Donovan's "Desperate For Love" are Wild Billy Grasso and the murderous Patriarca family rather than the Nazis. And, unlike Rick's, Louie's romantic interests are a thing of the past (although there are still the hilarious and poignant recollections of amorous adventures in- terspersed at trial in the audio tapes between Louie and his friend, the card shark Fast Jack Farrell, just as there must always be sexual romance in Hollywood). Nevertheless, Donovan's Louie is an heroic Hollywood archetype, a recognizable and sympathetic character, designed to call upon the recognition of his audience. He is built in accord with audience expectation. There is the Butch Cassidy and the Sundance Kid playfulness in the scenes with Louie and Fast Jack Farrell.55 And there are delicate shadings of love and affection in the scenes between Louie and Tito Morales. C. Gregory Peck as Atticus Finch in To Kill a Mockingbird (Persona of the Attorney as Protagonist at Trial) In To Kill A Mockingbird, Gregory Peck, like other lawyer heroes, has a particular identity, a consistent persona.56 It is a persona of dignity and quiet strength. His client, an inarticulate black man accused of rape, needs a strong and articulate champion. Attorneys may borrow their courtroom personas and construct theatrical identities. It is not surprising that many of these personas are borrowed either piecemeal or wholecloth from images in popular entertainment. What is surprising is that the identities shift according to the trial. Jeremiah Donovan's theoretical model for the "ideal" closing argument does not come from "real" life but from the image of Gregory Peck in the Hollywood version of To Kill A Mockingbird. Donovan observes that "there is nothing flashy about his oratory, Gregory Peck simply exudes such a sense of common decency that you cannot help but be carried away by his argument."57 But in the trial of Louie Failla, Donovan assumes a different persona and delivers a different type of closing argument. Generally, trial attorneys desire to be trusted by jurors. Sincerity is paramount. The criminal defense attorney does not want to be misperceived as a narrativist trickster or an entertaining storyteller. For to be a storyteller is to be someone who concocts selective fabrications, rather than struggling to attach to an objective and historical truth. In the closing argument in Bianco Donovan intentionally assumes the persona of the narrativist trickster, the entertainer. He spins his material into an amusing story, a cinematic fable. This identity is closely akin to that of the identity of his client, Louie Failla. Donovan likens his story telling to Louie's. And he literally assumes Louie's voice and embodies Louie's identity. Donovan, like Louie, lets the audience perceive that his storytelling has the power of narrative redemption. And like Louie, Donovan tells his story to save a life, and to redeem himself along the way. Donovan's and Louie's stories seem inseparable, as if, in telling Louie Failla's story, Donovan is simultaneously telling his own. Conclusion In a review of the closing arguments in this case, the influence of popular storytellers, particularly cinematic artists, upon the choices made by an excellent trial attorney are apparent. In the closing argument on behalf of Louie Failla, attorney Jeremiah Donovan draws upon and transforms stock Hollywood cinematic stories and popular storytelling forms. Although this closing argument may at first appear unique, in many ways it is not. It is representative of the type of work that many sophisticated trial attorneys are doing now. Donovan's technique illustrates the deep interpenetration of legal and popular cultural storytelling in a high-profile criminal trial. |
