As Giacalone rose to object again, Cutler said: "Ms. Giacalone is getting up. I don't know if she is doing it for the exercise of getting up ..."

"Those comments aren't useful," Nickerson said. "Please."

After two more objections were sustained, Cutler yelled: "Will the government stipulate there was a hung jury ...?"

"Just a moment, please, please don't shout like that, Mr. Cutler."

"I'm asking if he knows it."

"Please don't shout like that. Please disregard those comments, members of the jury."

Later on, Cutler sneaked in an appeal to the jurors' sense of fairness by suggesting there is a double-jeopardy issue with the RICO statute-an idea held baseless by appeals courts on the theory that when a punished crime shows up as a predicate act in a RICO case, it's merely evidence of a new crime-the crime of racketeering to benefit an illegal enterprise.

"Did you ever hear of someone going to jail twice for the same crime?" Cutler asked.

"Objection!"

"Sustained."

A turn, a look of woe. "Thank you," said Cutler.

"All right," said Nickerson. "Let's have lunch."

After the jury had filed out, Giacalone asked Nickerson to cite Cutler for contempt. Cutler had made it "very obvious" he intended to introduce improper evidence and questions "that contain facts that are irrelevant." He intended to "shout" and "make comments" and "take this courtroom and turn it into a music hall for Mr. Cutler."

Though he agreed, Nickerson demurred. "I don't think I am going to hold him in contempt now, but the questions were plainly improper and have been with respect to several of the witnesses."

"You know what I think?" asked Cutler. "Ms. Giacalone doesn't like the way I question people because I show the jury the sc.u.m that they are." Cutler said witnesses in the case had called him to complain about how "Ms. Giacalone threatens them, how Mr. Gleeson threatens them. And then they get up in a nice little dress and a nice suit and say in front of the press, 'John Gotti is going to influence witnesses.' ... I don't care, Your Honor. I care about my client most of all. The government doesn't like it. Their case is sliding down the tubes."

Richard Rehbock, Willie Boy's attorney, spoke up here. He implied Giacalone was "floating" stories in the press. The "most famous" one-that as a schoolgirl she had walked by the Bergin Hunt and Fish Club in the 1960s-was "absurd."

"You will see, Your Honor, it didn't exist there. It wasn't in Ozone Park [then]," Rehbock said.

The jury didn't hear this factual offer, but near the end of the trial it would hear a completely contrary one-from a defense witness.

Cutler's comment about witnesses contacting him was a tipoff that some big surprises lay ahead in the trial of John Gotti. Some would involve James Cardinali, who had spoken to Cutler months earlier, after a shouting match with Giacalone. Some would arrive with a man from the past: Matthew Traynor, who had known Gotti since their teenage gang days. Giacalone had intended to call Traynor, who was in jail for bank robbery, but dumped him after another squabble. Traynor then called Cutler.

"I went to see Mr. Traynor," Cutler told Nickerson on October 20, "and ... we were together three hours."

Cutler and others executed trial strategies approved, and sometimes conceived, by Gotti. A key strategy: rattle Giacalone, get on her nerves, get her to lose control in front of the jury, put her on trial.

Gotti got into the game on occasion, once while Victor Ruggiero, a former NYPD detective, was on the stand. Michael Santangelo was giving Ruggiero a hard time and Ruggiero was being hard right back, dodging questions in a challenging way-if Ruggiero were still a cop, his bosses would not have been happy. At one point, Nickerson ordered him to be responsive.

Snickers in the court. Giacalone asked for a sidebar: "Something happened on the last question."

Nickerson sent the jury and Ruggiero out of court.

"Your Honor, as you were explaining to the witness, Mr. Gotti said distinctly, 'He is doing it because we threatened him, that is why.' If I can hear him [being sarcastic], there is a chance the first juror could."

"It's not true, Your Honor," Gotti said, arms out, palms up, a look of exasperation. "If anybody is making comments, it's her."

"My client doesn't make comments unless I am there," Cutler added. "Is this really necessary? She cleared out the courtroom and does a little song and dance. We would like to try the case."

As the trial dragged on, Gotti began regularly tossing off lines for reporters. "They got no case," he would say. "If my kids ever lied as much as these guys lied, they'd have no dinner." All the while, Gotti, his codefendants, and their lawyers kept studying the jurors-looking to see if "Death" was showing any sign of becoming "Life."

26.

THE ART OF BEING MENDACIOUS.

"THIS IS OUT OF GRIMM'S Fairy Tales, Fairy Tales," was a line John Gotti tossed off on December 2, after two days of listening to James Cardinali link him to what certainly sounded like an illegal enterprise.

Gotti was putting on a good face. Cardinali had come across as the "critical witness" he was billed; he had spoken calmly and in great detail and tied Gotti and the others to all three murders cited in the racketeering count. Cardinali had put Giacalone's case back on track, and the defense was alarmed.

Despite his murderous pedigree, whacking out Cardinali on cross-examination wasn't going to be the tea party it was with Maloney and Polisi, even though the defense was holding a few extra cards.

Several months earlier, during the pretrial preparations, Cardinali had become furious at Giacalone and written angry letters to, among others, Senator Alfonse D'Amato of New York, who wrote a "What's-going-on-here?" letter to Giacalone. More importantly, from prison, Cardinali called Cutler and trashed her in tape-recorded comments. As it turned out, some of his anger was based on a misunderstanding, and by the start of the trial, he had made his peace with her and stopped talking to Cutler.

Once, however, would be enough. Knowing he was on tape, Cardinali could hardly run from his earlier comments; moreover, he could hardly deny the blood on his hands and his motivation for cooperating. The way to handle these realities, he decided, was to be agreeable, almost cheerful. During much of his cross, he came across as a happy-go-lucky killer who had snookered the government into an incredibly generous deal. The defense used him to implement part of its strategy: put Giacalone on trial.

The carnage began on December 4 and lasted two weeks. Gene Gotti's attorney, Jeffrey Hoffman, a former a.s.sistant district attorney in Manhattan, was first up. His job was to test the witness's candor, and from the start Jamesy was very candid.

"Would it be accurate to say that you have one primary reason for testifying?"

"Correct."

"And have you described that primary reason as to save your own a.s.s?"

"Exactly."

"Did you have meetings where she [Giacalone] or others in her presence threatened you?"

"Yes."

"[Did] Miss Giacalone ever lie to you?"

"In my opinion, yes."

Hoffman got Cardinali to admit he was looking to do well in his testimony to attract book-and-movie deals. He got him to admit he knew when he began to cooperate he wasn't going to get a good deal if he didn't have good evidence.

"They very specifically let you know that you have to produce for them, right? Or, you were valueless?"

"Absolutely."

As Jamesy answered questions, he occasionally looked over to the defendants, as if to say, I'm sorry, but I couldn't do the time; I'm still one of you, you know that. I'm sorry, but I couldn't do the time; I'm still one of you, you know that.

Now, Jamesy was about to put Giacalone on the floor, by doing for Hoffman what he did for her, tell her the truth.

"Did [Giacalone] ever tell you about any things that go on between she and [Nickerson], how he treated her?"

"Objection! Objection!"

"No, I will let him answer that," Nickerson said.

"Not during this trial," Cardinali said, inviting a follow-up.

"Did you ever say that she said that he treats her like a daughter?"

"She told me that."

"And that she gets whatever she wants from him and the defense gets nothing. Did she tell you that?"

"I've heard her say something like that."

Later, in an embarra.s.sing moment at sidebar, Giacalone would not deny that she had spoken so freely in front of Cardinali. It was an admission that she had trusted a criminal with something of value, even if her boasts were merely careless chatter.

After only a few hours of Cardinali's candor, Gotti felt better and felt like swaggering. During a recess, he strolled over to the audience section; smiling confidently, he pointed his finger at three men-John Gilmore Childers, John Savarese, and Michael Chertoff, prosecutors from the Southern District who had just won guilty verdicts against all the bosses and underbosses in the Commission case and who later told friends that the atmosphere in the Nickerson court was much more tense.

"Childers, Savarese, Chertoff," said Gotti. "You know who I am. Now I know who you are. It's better when everybody knows each other."

The job of leading Jamesy through his catalogue of crimes fell to David DePetris, former chief of the narcotics unit in the Eastern District. DePetris's client was Tony Roach Rampino, the Gotti gopher who had become a heroin addict. Because Tony Roach tested positive for drugs early in the trial, DePetris had to a.s.sure Nickerson every day that Rampino wasn't stoned and was able to a.s.sist in his own defense.

Under DePetris's probing, Cardinali admitted using drugs while in the witness-protection program awaiting his debut as a star witness. He admitted that while at the MCC, he a.s.saulted an inmate who ratted out a guard who was supplying him with heroin. His punishment was a transfer to a prison in California, where he again was caught using drugs.

Most of Cardinali's direct testimony would remain intact despite the whacks of seven lawyers; he would be tripped up on only a few discrepancies. But details about his behavior, atop all the slime about his murders, were having their intended effect on the jurors-during jury selection, Larry King himself had said he would "have a problem" with the testimony of criminals singing for their freedom.

Halfway through DePetris's questioning, Slotnick complained at a sidebar that Giacalone and Gleeson were making "facial expressions" as Cardinali testified. Giacalone denied it, the judge said he hadn't seen it and called a recess. As the jury began to file out, Giacalone heard a murmur from the defense table, and once the jury was gone, spoke up: "I think it's ironic. On the way back from a sidebar in which counsel made claims about the behavior of the government, which they were unable to articulate, Mr. Gotti said quite loudly and I'm certain loudly enough for the jury to hear ... "

Gotti cut her off, "She's lying to you!"

Giacalone finished her sentence: ". . . 'she's trying to protect that murderer, she's the murderer, that mother.'"

"Judge, do I have to go through this all the time?" Cutler inquired.

"Those are lies!" Gotti said.

"Please," Nickerson said.

Giacalone asked the judge to instruct the defendants to keep their comments to themselves when the jury is present.

"I sit here and I have to watch Ms. Giacalone making faces, grimaces, smiles, comments to Mr. Gleeson," Cutler said. "I don't like it ... I don't know why she's brought this out now."

"Because she's a liar!" Gotti said.

Nickerson told the prosecution not to make faces, the defense not to make comments.

Later, Gotti said to a reporter: "Mendacity. The word for today is mendacity. It's the art of being mendacious."

On December 15, the start of Cardinali's third week on the stand, Giacalone sought to rehabilitate him. Jamesy said he had told the truth in court; the only threats Giacalone had ever made were to prosecute him for lying; and he would be killed by the defendants if he ever returned to Ozone Park.

Jamesy said he was "frequently abusive" to Giacalone and "yelled" at her on the phone.

Giacalone used this response to get in a shot worthy of Cutler. "Did you ever speak to John Gotti the way you talked to me on the telephone?"

"Objection, judge!" Cutler cried.

"Sustained."

"Are you kidding me?" Cutler said in disgust.

Several more times during the remainder of Cardinali's testimony, Giacalone and the defense lawyers exchanged barbs. The defense, however, had a numbers advantage; they could rest on the bench while their teammates rushed Giacalone and Gleeson all over the field.

Giacalone ended her redirect by getting Jamesy to say that Cutler was pleasant, a "gentleman, soft-spoken," when he spoke outside of court, unlike the way Cutler "behaves in court."

As Giacalone sat down, a defense lawyer asked for a brief delay, but Cutler, who was to re-Brucify, was already up and storming toward Jamesy and one of the trial's many low points.

"You made up with Ms. Giacalone, did you?"

"Yes."

"So she's no longer the same individual you described in May of 1986, is that correct?"

"That's correct."

"In other words, she's no longer a s.l.u.t, is that right, in your mind?"

"Correct."

"She's no longer a b.l.o.w. .j.o.b in your mind?"

"Correct."

"Excuse me a minute," interrupted Nickerson. "Please keep your voice down."

"Yes, sir, sorry, sir ... I apologize to the court."