Judge Nickerson, reluctant to use his authority, let Cutler get away with courtroom murder. Cutler punched after the bell and below the belt; he called Giacalone a tramp and got a witness to call her "a s.l.u.t and a b.l.o.w. .j.o.b." When it seemed the judge might slap him down, Cutler drew back, apologized, and promised to be good, usually after accomplishing what he wanted, an unfair question, an insulting remark, a sly inference, a gambit for the jury-which ultimately elected "Larry King" its foreman.

On the first day of testimony, Cutler let Nickerson know that John Gotti wanted to know and hear everything that was to go on. He didn't want the judge and lawyers to hold many sidebar conferences. "It's our position we'd like to keep sidebars to an absolute minimum," Cutler said, except for "an emergency situation."

The Gotti trial would have many emergencies-every day.

Cutler was only one of the able lawyers on the defense team. Their strategy was simple-show the case is a lie. It was unveiled early in the trial by the brothers Santangelo, Michael and George, and Susan Kellman, who represented the other guys, Leonard DiMaria and Nicholas Corozzo.

As the prosecution set the scene with several police witnesses, the Santangelo brothers chopped away. At the outset of their careers, they were Legal Aid Society lawyers-working for the poor-but now they were well-to-do gunslingers, and every time they stood to cross-examine a witness, they dripped contempt for the case, implying that every cop and agent was lying or merely mouthing facts from the ambitious table of Diane Giacalone, "that lady in red."

Her case did have problems. One was hardheaded Edward Maloney, once part of a kidnapping gang with James McBratney, the man Gotti helped kill. He was the first major witness to be Brucified.

Maloney was an easy target-it was hard to figure out why he was testifying. Having failed to get Willie Boy Johnson or Billy Battista as witnesses, and antic.i.p.ating the defense would clobber Polisi and Cardinali, Giacalone put witnesses on the stand who didn't have much to offer, except their own terrible resumes.

In his questioning of Maloney, Cutler established with a rapid volley of questions that Maloney had spent half his life in prison for kidnapping, armed robbery, and other violent crimes. Then he raised his eyes from a rap sheet he was reading and, granting Maloney a look for the first time, shouted: "You'd agree with me, sir, you are a menace and have always been, haven't you?"

"No."

"Were you a menace to society when you went into jewelry stores and held people up with a loaded gun?"

"Yes."

Through more questions-accompanied by smirks, sneers, and mocking chuckles-Cutler set up how "a b.u.m" like Maloney was given immunity, wired up, and sent out to catch a small-timer like Philip Cestaro, the bookmaker at the Cozy Corner Bar.

"Did you ever meet John Gotti in your life, sir?"

Cutler turned toward the jury. A look of disgust. Then of wonder. And now triumph.

"No," Maloney said.

Giacalone had wanted Maloney to testify that he was targeted for murder because he and McBratney had kidnapped mobsters. But before Brucification began, Nickerson accepted a defense motion that the recording in which Maloney said Gotti "got his wings by whacking" out McBratney should not be played, because FBI agent Edward Woods had spoon-fed the idea to Maloney. There was no doubt that Gotti had helped to kill McBratney, but the jury had to wonder: What was the motive? Was it for the enterprise? Or a bar fight?

The jurors got to hear only harmless conversations between Maloney and Cestaro.

"And you know quite honestly," Cutler continued, "that as far as Phil Cestaro was concerned, he was afraid of you, wasn't he, sir?"

"Yes."

"As a matter of fact, Mr. Maloney, isn't that why you maintained a relationship with him? Because monopolizing the weak, and the sick, and the infirm is something that you know about, isn't that true?"

"No."

"Didn't Phil Cestaro tell you throughout these tapes that his friendship or relationship with you was not known to John Gotti?"

"No."

"Didn't he tell you that the reason it was not known to John Gotti was because he wouldn't want Cestaro a.s.sociated with a menace, a lowlife, and a drug dealer like yourself? Isn't that what he told you, sir?"

"No."

Nickerson would remind jurors many times that questions are not evidence; only answers matter. But when questions are repeated often enough, sometimes they do matter, subliminally if not consciously, especially if a witness repeatedly answers "no."

If Maloney had replied "yes," Cutler would have moved on, but now he paused and found a transcript in which Cestaro told Maloney that they would have to meet a drug dealer in secret.

"Why?" Cutler asked. "Tell the jury the truth."

"Because he [the dealer] was involved in narcotics."

"And Phil Cestaro knew the only way to meet an individual like that would be unbeknownst to John Gotti, isn't that right, sir?"

"That's the way I understood it."

Cutler turned to look into the jurors' eyes again. An I-told-you-so look this time. Like I said in my opening, John Gotti doesn't have anything to do with drug dealers. Like I said in my opening, John Gotti doesn't have anything to do with drug dealers.

Later, when Maloney refused to confirm that the government had spent $52,000 taking care of him, Cutler waved a doc.u.ment and said, "Do you see a figure for the fiscal year nineteen eighty-three, eighty-four, eighty-five?"

Nickerson said the question was improperly framed, so Cutler put it another way: "Does it refresh your recollections that you received from the government in toto some fifty-two thousand dollars-well, let's see, put it this way, Mr. Maloney, that it cost the United States of America some fifty-two thousand dollars to give you a new ident.i.ty, to give you a new home, to give you a new job, to cut your hair, and give you a suit, a menace and a b.u.m like you?"

"Objection!"

"Sustained."

Cutler wasn't through. He demonstrated how the trial would at times sound like a Gotti tape recording when he asked Maloney if he were a "f.u.c.king c.o.c.ksucker." He began by paraphrasing an earlier remark by Maloney that someone "gave him up," and asked, "Is that what you are, a giver upper?"

"I would say that right now."

"You used expletives like f.u.c.king c.o.c.ksucker and b.u.m on the tapes quite often, didn't you?"

"Yes."

"Is that what you are?"

"Objection!"

"Sustained."

Cutler's questioning of Maloney was enhanced by a prosecution decision to play hardball. Though not required to turn over information the government has about its own witnesses until after they testify, prosecutors usually do so beforehand, so that the defense is ready to cross-examine and the trial moves smoothly.

Citing concerns about witness safety, Giacalone and Gleeson withheld material about another member of the witness-protection program, Crazy Sally Polisi, until after his direct testimony. When the defense argued it had no time to prepare its questions, Nickerson delayed the trial and then because of a scheduling problem allowed Maloney to go on the witness stand before Polisi got back on for cross-examination by the defense.

Cutler's cross-examination of Maloney introduced Larry King and his colleagues to the idea that what is heard in direct testimony is not always all there is to know. When Polisi came back for his turn in the defense shredder, the point was made consecutively.

In the Polisi material that was turned over to the defense were transcripts of tapes that Polisi-the ex-marine who defrauded the Marine Corps-made with a writer who wanted to feature him in a book. On October 15, Barry Slotnick began exploring the tapes for the benefit of the jurors, especially Larry King, Willie Mays, and the other ex-marine as well as the other black on the jury.

"I think I left off ... asking you about the fight you had in jail with a black man. Is that correct?"

"That is correct."

"I believe I asked you whether you had expressed some opinions about the fact that you believed that black people were the lowest form of humanity?"

"That is correct."

"And later on when you start kidnapping black people you indicate that ... is [a] reason why you kidnap black people."

"Correct."

"You told the author ... that black people could not count, right?"

"Correct."

"When you told her this, you claim to this jury you were normal and sane. Is that correct?"

"Correct."

Polisi had nowhere to hide, and Slotnick kept him in a corner, asking Polisi if it were true that when he faked a judge into giving him probation, all he had on his mind was getting out of jail "to go out and steal."

"That is correct."

Slotnick asked if it were true that Polisi fraudulently took $300,000 from the Veterans Administration over a 20-year period after feigning insanity to get out of the Marine Corps.

"Sounds like a reasonable estimate."

As Slotnick demolished Polisi, the defendants couldn't contain their glee, and cracked jokes and laughed.

"Excuse me, Your Honor," interrupted Giacalone. "May we have an admonition as to the comments coming from behind me?"

"Yes, please don't talk."

Nickerson would use the word "please" a lot in the days ahead.

Slotnick picked up where he had left off. In addition to the VA fraud, he revealed that Polisi got a $400 monthly disability check from the Social Security Administration.

"Isn't it a fact that every day of your life, you woke up and said to yourself, 'Who can I rip off today?'"

"At one point in my life, I would say that's correct."

Cutler also got in his licks at the would-be antihero of a never-published book whose working t.i.tle was Kicks. Kicks.

"Mr. Polisi, haven't you spent your adult life taking advantage of the weak, the infirm, the diseased, and women?"

"No, sir."

Cutler called Polisi a "yellow dog" for punching a black inmate, running away, and causing a race riot while in prison. He got him to agree that Gotti was "loved and revered" in the Queens neighborhoods that Polisi had polluted with drugs.

Nickerson raised his voice when Cutler inserted the name of federal Judge Mark Constantino into the trial. The judge had been quoted in newspapers as calling Polisi a "lowlife" because Polisi had said a case in Constantino's court was fixed.

Cutler wanted to use Constantino to bash Polisi some more. Nickerson tried to stop him, but Cutler kept punching, after the bell.

"Did you find out yesterday that Judge Constantino called you a lowlife and a liar?"

"Objection!"

"Stop, stop. Don't do that again, Mr. Cutler."

"I wanted to know if he knows it."

"Stop. The objection is sustained."

"I wanted to know if he knows it."

"The objection is sustained."

"I won't ask." Cutler asked again.

Later, at sidebar, Giacalone asked Nickerson to admonish Cutler if he "continues to behave improperly before the jury."

"You shouldn't ask a question like that about Judge Constantino," Nickerson told Cutler. "Don't do that."

"I just asked if he was aware."

"Don't do that. You know it's improper."

"I don't believe it's an accident," Giacalone said. "It's happened over and over again. I don't believe the government will be able to get a fair trial if counsel continues to use these tactics."

"I think you will get a fair trial," Nickerson said.

When Giacalone got her chance to question Polisi again, on redirect, she tried to establish that he was a reformed man.

"Mr. Polisi, are you proud of the way you played your life in the past twenty years?

"No. I think it's completely un-American, and I'm ashamed of the way I lived my life."

Moans from the defense table. Cutler objected to the answer and asked that it be stricken. Giacalone asked that Cutler's "performance" be stricken. Cutler denied performing and the judge overruled another lawyer's request to strike Giacalone's characterization of Cutler's objection.

In a recross of Polisi, Cutler got in a final shot when he asked him when he had acquired "this new religion? Tell us so we can free the jails of lowlifes like you."

When Giacalone, unable to do much with Maloney, put on other witnesses about the McBratney case, Cutler agitated her more. Her contempt for him was now heartfelt and she would soon make her first demand that he be cited for contempt.

A man in Snoope's Bar the night McBratney died was on the witness stand. During his cross, Cutler sought to plant the fact that the first state trial in the McBratney killing-when John Gotti, on the lam, was not a defendant-had ended with a hung jury.

Each time Cutler tried to plant, Giacalone objected and Nickerson sustained and told Cutler to stop, but Cutler ended up just shouting out what he wanted the jury to hear.