Being Oscar (9 page)

There were twenty-six cities where these electronic surveillances had led to indictments, and defendants hired me in nineteen of those cities. I went all over the country for preliminary hearings. A lot of the legal arguments that prosecutors used to get wiretap orders were boilerplate. But in order to comply with
the law, Mitchell, or one of his nine top assistants, had to personally sign the authorization requests. That was the only way they could be valid.

If I had had just one client, instead of nineteen clients with nineteen separate case files, I never would have found the legal jackpot that I did. I was sitting in a hotel room one night in Detroit with one of my clients going over some documents. There were papers from nineteen different cases strewn about the room, and he started rummaging through them. After a while, he said to me, “Oscar, this doesn’t look right.”

Since I was preparing for court the next day, I was only listening with one ear, but he persisted.

“You gotta look at this,” he said. “They’re the same name, but different signatures. One doesn’t look like the other.”

I started to compare one city’s paperwork to another city’s paperwork.

My client was talking about the signature of a guy named Will Wilson, the assistant attorney general in charge of the Criminal Division and one of Mitchell’s top assistants. And his “signatures” on the authorizations were strikingly different. We started to check the other documents from the other cases, and we found more discrepancies. The feds were just playing fast and loose with the wiretap rules. Apparently, it didn’t matter to them.

I ended up deposing John Mitchell. I brought him to my friend Byron Fox’s law office in Kansas City. Byron had a co-defendant in a wiretap case in which one of my clients, Nick Civella, was involved. Mitchell sat down with his pipe and I questioned him. Under oath he admitted it wasn’t his signature on any of the documents, and that it wasn’t Will Wilson’s signature either. It turned out that one of Wilson’s assistants had signed his name on all the paperwork.

None of the authorizations were signed by the appropriate official. We filed motions to suppress in all nineteen cities, and
every case was thrown out. Every defendant in every city walked. And with that, my “legend” grew: apparently I couldn’t lose a case.

Now here’s my question—and unfortunately, I could ask this in almost every case I was ever involved in: Was anybody in government penalized for breaking the law, for perpetrating a fraud to get judges to sign orders for wiretaps? Was anybody held accountable?

Maybe Mitchell was punished enough being married to Martha, but what about the others?

If a defense attorney violated a criminal statute in that way, there would be Bar Association actions and possible criminal charges. But time and again, it’s been the same old story: the government disregards the rules and nothing happens.

There was a mob case in Philadelphia where the government had a videotape of several gangsters meeting on the boardwalk in Atlantic City outside the Resorts International Casino-Hotel. One of the gangsters was Nicky “The Crow” Caramandi. He became a government informant and testified in a half dozen cases.

Caramandi was a consummate con man who became a hit man for the Philadelphia crime family in the 1980s. They called him “The Crow,” he said, because “a crow is a shrewd bird.” He was always getting one over on people, scamming them out of their money. But I think his ultimate scam was getting a deal with the government. He ended up doing less than five years after admitting to his involvement in four gangland homicides.

The prosecutors paraded him at almost every mob trial in Philadelphia in the late 1980s. I got to know him from the witness stand. He was the typical government witness, willing to say whatever it was the prosecution needed to make its case. And it
seemed like they used that stinking videotape from Atlantic City every time he was on the stand.

There he was, on the boardwalk, meeting with the mob boss, Nicodemo “Little Nicky” Scarfo and two other gangsters. There was no audio of the meeting. And in every case the government had Caramandi, under oath, tell a different version of what was being discussed; a version that fit with the prosecution’s theory of that particular trial. They used the same video, but in one case they’re talking about whacking
this
guy, and in another case they’re talking about whacking
that
guy.

It was outrageous!

FBI agents used their informants as puppets and made them say anything they wanted. It was like a sinister courtroom version of
Sesame Street
. The witnesses were like Oscar the Grouch or Kermit the Frog. The prosecutors and the FBI were out of sight, manipulating the characters behind the scenes, literally putting words in their mouths.

During my closing arguments to the jury, I would try to make that point by creating my own “puppet.” I’d take a black magic marker and draw two eyes on the fleshy part of my left hand above my thumb and index finger. Then I’d use a red marker to draw a mouth. I’d hold my hand up, with the eyes and mouth facing the jury, and I’d play the role of the prosecutor. I’d tell the jury this is what they’ve heard. I’d pretend to be a courtroom ventriloquist. I’d ask my hand questions and then respond with an answer favorable to the government. It was a show-and-tell way to make the point.

Prosecutors would roll their eyes, but I didn’t care. The government used the same techniques and offered the same justifications for what they did in almost every trial.

I’ve cross-examined numerous FBI agents about the way they debrief cooperating witnesses and record that information. Every time it’s the same mind-boggling story. Agents are required to file
a memo after every debriefing session with a cooperator. The report is a written synopsis of what was discussed. It’s called a “302” because that’s the filing number that the FBI uses to designate this type of memo. Agents swear by those memos, sometimes to the point of absurdity.

When I cross-examine an agent about a 302, my line of questioning usually goes like this:

“When you did this interview, did you have a tape recorder?”

“No.”

“Did you have access to a tape recorder?”

“Yes, I did.”

“Wouldn’t it have been more accurate to record the witness’s statement verbatim, rather than simply jot down some notes?”

“No.”

“No? Wouldn’t a tape recording have more accurately reflected what the witness said?”

“No, the 302 is more accurate.”

I just shook my head in amazement. I wondered if some of these agents really believed what they said, or if they had just been brainwashed to resort to that statement whenever they were on the witness stand.

The 302 memo let the agent shape the witness’s statement to fit the government’s theory of the case. The witness got to review that memo before he was called to testify, so at the end of the day, everyone—the prosecutor, the investigating agent, and the witness—were on the same page.

It may not have been the truth, but it was consistent. And unfortunately, in many cases that was all the government cared about.

John Mitchell sat smugly puffing on his pipe while I deposed him and shamelessly acknowledged that his office had violated the requirements of the federal wiretap law. But he didn’t seem to care, and neither did anyone else.

You could make the argument that I got more than a dozen major organized crime figures off the hook in that case. That certainly was the government’s reaction when we had everything thrown out. They said, “Oscar Goodman won on a technicality.”

This cavalier attitude and the lack of any penalties for prosecutorial misconduct came into play again and again, but it was never more dramatically illustrated than in the case of Manny Baker.

Manny lived in the “’hood” in Las Vegas. Everyone knew his house; it was the one with the surveillance cameras outside and a couple of Caddies parked in the driveway. Law enforcement described Manny as a kingpin heroin dealer. He might have been, but the cops still had to make the case.

Manny’s appearance wasn’t impressive; he dressed as if he were out for a casual stroll on a sunny day. He wore brightly colored Hawaiian shirts that hung loosely over the baggy trousers that were part of his regular outfit. And he loved to wear boots, usually white boots made out of the skin of a snake or an ostrich. He was relaxed and casual, never in a hurry. If you didn’t know he was on his way to court, you’d think he was going fishing.

He tended to mumble when he spoke, but if I listened, I was always able to understand what he was saying. You wouldn’t know it to look at him, but he was one of my savviest clients. He was street-smart. As soon as he opened his mouth, you realized that. And he was good at playing the game. He loved to go fishing, and he used his boat to thumb his nose at law enforcement, christening it “Catch Me If You Can.”

I got involved with Manny after some state troopers down in Texarkana, Arkansas, thought they had done just that. They had staked out the airport there after getting a tip that Manny had a
load of drugs come up from Mexico. They had the airport under surveillance and even knew the supposed pick-up point. They saw Manny being handed a bag and watched as he walked back to his car, which was parked by the curb. After a series of events, Manny was arrested and brought back to Las Vegas to stand trial, and that was when he hired me.

I filed a motion to suppress the evidence seized during the search at the airport, arguing that it was the fruit of a violation of the Fourth Amendment’s guarantee against unreasonable searches and seizures. At a hearing before Judge Roger Hunt, I moved to exclude witnesses from the courtroom so that they wouldn’t hear the testimony of other witnesses. Three big redneck guys got up and went out into the hallway. The prosecutor called a fourth, just as big and with a neck just as red, to the stand, where he took the oath.

He identified himself as a state trooper and said he had gotten a tip that a drug deal was going to go down at the airport. He said that he and the other three who had just left the courtroom went to the Texarkana Airport and approached a car that they saw parked at the curb.

“That gentleman,” he said, pointing to Manny, “was behind the wheel.”

I have to believe it was one of the first, and maybe the only time someone in law enforcement referred to Manny Baker as a gentleman.

“What happened next?” asked the prosecutor.

“We asked him to step out of the car.”

“What happened next?”

“He said ‘Certainly,’ and stepped out.”

That didn’t sound like Manny to me.

“What happened next?”

“We asked him whether we could retrieve the key from the ignition.”

“What happened next?”

“He said ‘Certainly,’ and we removed the key.”

At that point, Manny poked me in the ribs with his elbow and whispered, “Mister Goodman, they lyin’.”

I said, “Shhh,” but Manny kept saying, “They lyin’. They lyin’.”

“What happened next?” continued the prosecutor.

“We asked whether we could open the trunk, and Mister Baker said, ‘Yes.’”

“They lyin’, Mister Goodman,” Manny said yet again.

“And then?”

“We opened the trunk and saw a bag. We asked Mister Baker for permission to open the bag.”

“He lyin’.”

“Manny, be quiet,” I said.

“What happened next?”