"Please don't make those comments and please keep your voice down."

A few questions later, Cutler ignored an objection and the judge's ruling-and kept punching.

"Mr. Cutler, please don't do that. The objection is sustained. Please don't do that."

"Yes, Your Honor."

More questions, more objections, more questions.

"Please, Mr. Cutler, please."

A little later, Cutler asked Cardinali about the "free ride" he got for his multiple murders.

"Objection!"

Another put-upon look from Cutler. "It's all right if Ms. Giacalone interrupts me, but it's not okay if I interrupt her, Your Honor?"

"Just a minute," Nickerson said. "She's ent.i.tled to make an objection."

"I don't want a speech from her," Cutler snarled.

On many occasions, Cutler and the others tested the limits of Nickerson's patience, and almost always found them expansive. And many times they stated grievances against Giacalone and Gleeson without the slightest compunction about their irony.

The next day, for instance, Slotnick moaned about Cutler-type tactics from Giacalone during his recross of Cardinali. "I would wish that counsel would follow the rules," he said.

At a sidebar, Cutler complained that Giacalone was getting on Gotti's nerves. "Your Honor, Ms. Giacalone is making a lot of comments ... a lot of facial gestures. I spoke with my client. He's very upset about it ... He's going to do the same thing, judge. He's upset about it. I want you to know about it and I would like you to try and put a stop to it, judge."

Giacalone fired back: The defense had decided "it is advantageous to hara.s.s me" and "create a record that is absolutely false" in "the face of the most extraordinary hara.s.sment" ever seen "in either a federal or state court."

Giacalone said she sometimes could barely hear witnesses because the noise at the defense table was so loud-"I can hear them say, 'The rat is dead.'"

"This thing about hara.s.sment is not true," Cutler said.

On December 16, as Act II was winding down, FBI agents and cops handed out leaflets to Christmas shoppers on East Forty-sixth Street in Manhattan. The leaflets asked if anyone had been on the street the year before and heard or seen anything about the murders of Paul Castellano and Thomas Bilotti outside Sparks Steak House.

"If witnesses to the killings would only come forward, these murderers could be brought to justice. We need your help to solve this crime. We need your partic.i.p.ation to keep the streets of our city safe for all. It is imperative to the maintenance of a civilized society."

The Sparks investigation had stalled. Informants had stories, not evidence. One story recently out was that John Gotti's driver and also Gene Gotti and seven crew members were at the scene of the crime.

In court a week later, John Gotti stood at the railing of the visitors' section to accept season's greetings from many crew members. After a dozen or so had pa.s.sed in review, exchanging handshakes and kisses, Gotti jovially turned to reporters: "See all these good people. They come to wish me a merry Christmas."

The New Year began with another "major" witness: Dominick Lofaro, who had worn a body wire for the state Organized Crime Task Force, which had touted him-once he was surfaced for trial-as the first made man to secretly tape-record other soldiers.

On January 6, 1987, the Feast of Epiphany, Lofaro pleaded guilty to racketeering-two of his predicate acts were murder. For his plea, Lofaro got immunity for anything he would say at Gotti's or any other trial. The government requested that Lofaro be held at a "safe house" until sentencing, but Jack Weinstein, chief judge of the Eastern District, sent Lofaro to the MCC.

"After what this man told me, he is clearly a danger to the community," Judge Weinstein said.

However, an interested observer, Bruce Cutler, predicted that at sentencing time, "Lofaro will walk."

In reality, Lofaro didn't have much to offer against Gotti. He had provided the probable cause the state Task Force needed to instill the Nice N EZ bug-his body wire recorded Gotti talking as though he ran a gambling operation-but none of the Nice N EZ tapes were part of Giacalone's case; all of them had been made after Gotti was indicted in March 1985.

All Lofaro could testify about was the two times he taped Gotti, and though these were colorful conversations, they were not terribly incriminating. Giacalone already had plenty of colorful conversations, but state Task Force director Ronald Goldstock, eager to get credit for getting Gotti, had promoted Lofaro in the media and Giacalone was desperate for witnesses.

A day after his guilty plea, Lofaro caused more damage-to Giacalone. He told the Gotti jury that he had suckered the state Task Force and lied about being a made man; he was merely a lowly a.s.sociate. He also had exaggerated the number of his murders, figuring, as only a denizen of the Crime Capital would, the more murders, the bigger catch he would appear to be.

"I figured I could get a better deal from them," he said.

Lofaro self-destructed without defense help. He described his two murders, an attempted murder, dealing kilos of heroin, and how the Task Force-to set him up as an informer-let him keep $100,000 in drug money that he had when arrested.

A week later, just before her final witness-now-federal investigator Kenneth McCabe-took the stand, Nickerson ordered Giacalone to use the time during a recess to search for doc.u.ments that the defense lawyers complained had not yet been turned over to them.

As the jury filed out, Giacalone approached George Santangelo and wagged her finger at him: "You're lying!"

"Get your finger out of my face and stick it up your a.s.s," said Santangelo.

During the recess, the newspaper reporters who regularly covered the trial-Pete Bowles of Newsday, Newsday, Leonard Buder of Leonard Buder of The New York Times, The New York Times, Daniel Hays of the Daniel Hays of the New York Daily News, New York Daily News, and Philip Messing of the and Philip Messing of the New York Post New York Post-called their offices and picked up bulletins about another big case.

Across the East River in Manhattan, the defendants in the Commission case had just been sentenced. The aging bosses of the Colombo, Genovese, and Luchese Families, none of whom had made the cover of Time Time, got 100 years each.

"A hundred years! A century!" exclaimed Gene Gotti's attorney, Jeffrey Hoffman, as he came into the courtroom to inform the Gambino boss.

Johnny Boy was cool. He moved over to the rail separating the well of the court and spoke to the reporters clamoring for a reaction: "Those cases got nothing to do with us. We're walking out of here."

The next day, January 14, on the forty-sixth day of testimony, after calling 78 witnesses, the government rested. Before it did, Cutler got Kenneth McCabe to say that in all the times he surveilled John Gotti he never saw him commit a crime. Cutler strutted away: Chew on that fact, Larry King and friends.

Very few people know the facts behind some facts that Jeffrey Hoffman had drawn out of Cardinali weeks earlier.

Cardinali testified that he learned in April 1985 that without his testimony, Giacalone had "an extraordinarily weak case." Cardinali's discovery was made when prison officials mistakenly showed him a letter intended for their eyes only. The letter was written by Giacalone's supportive boss, Raymond Dearie, who wanted the prison personnel to make Jamesy's life better.

Getting the star witness-who was about to be made into a villain-to say that without him Giacalone had a poor case, was another clever move by the defense. But Cardinali, Hoffman, and the jurors never learned that a top government official-before the indictment was handed down-told his Washington bosses and Giacalone's boss, Raymond Dearie, that the case was a loser, even with Cardinali's testimony.

In an October 23, 1984 memo, Edward McDonald, chief of the federal Organized Crime Strike Force in the Eastern District, said Giacalone's case had "little likelihood of success." He said it would prevent the Strike Force, which had been created to battle organized crime, from including Gotti in the Gambino hierarchy indictment it hoped to obtain the following year.

On March 8, 1985, two weeks before Gotti's indictment, McDonald wrote a much stronger memo. Gotti and Dellacroce should be a part of the hierarchy case because Giacalone's case "was especially weak against Gotti and Dellacroce and with respect to Gotti, could very well result in his acquittal." This, he warned, would "immunize" Gotti from future RICO prosecutions involving gambling or loan-sharking conspiracies through 1984, the endpoint of the conspiracy charged in Giacalone's case.

McDonald obviously was interested in protecting his own turf, but the Strike Force had been given the job of fighting the mob, and Giacalone was getting in the way. He proposed she give up Gotti and Dellacroce for the Strike Force case and proceed against Tony Roach Rampino and John Carneglia on conspiracy charges involving the armored-car heists, which had prompted her to go after Gotti. McDonald also said Willie Boy Johnson should not be in either case.

The memos would make for interesting cross-examinations, if McDonald, Giacalone, or Dearie ever got on the stand. But the star witness of the trial was James Cardinali, who, during his testimony, had this to say about John Gotti: "He is the finest man I ever met."

27.

WAY TO GO, MR. G!.

IN ITS FINAL ACT, THE GOTTI play because a farce. Diane Giacalone, for example, was accused of offering her underwear to a witness.

It happened during the defense part of the case, which began with Andrew Curro and Peter Zuccaro, two of the armored-car robbers, who testified they did not give any of the loot-about $1 million, never recovered-to anyone at the Bergin.

"What am I, Santa Claus?" said Zuccaro.

While Giacalone was cross-examining Curro, Judge Nickerson called for a sidebar, but Cutler stayed seated. As the other lawyers pa.s.sed behind him en route to the bench, Cutler said: "See if the tramp will give us an offer of proof."

The wording of Cutler's request that Giacalone state the relevance of a point she was making was a little too insulting to let go by. "In quite a loud voice," she told Nickerson, "and I believe loud enough for the jurors to hear ... Mr. Cutler said, 'Ask this tramp if she'll give us an offer of proof.'"

"Do you want me to respond?" asked Cutler, buying time while he contemplated an escape move. "Or do you just a.s.sume because Ms. Giacalone says it, it's true?"

Nickerson began to speak, but Cutler interrupted, which caused the judge to say: "You will wait for me to finish, sir."

"You can call me Mr. Cutler or Bruce. You don't have to call me 'sir.'"

Cutler pushed and stalled some more, until he had calculated his escape, which would be an offensive move.

"I'm ashamed that she is part of this government in this courtroom. And what I said ... was to ask her to give us an offer of proof ... this is a dangerous woman. She's trying to inhibit me and intimidate me and she is not going to do it, Your Honor. I beg the court to open your eyes, Your Honor, and I say it most respectfully, to see this woman for what she is. I'm not ashamed to say it."

After more thrashing by both sides, Nickerson told everyone to calm down and forget about it. A former county executive on Long Island and an erstwhile candidate for a seat in the U.S. Senate, the 67-year-old Nickerson now wanted to steer the case toward a conclusion-without a mistrial.

After Curro and Zuccaro went back to prison, the star of the defense case came into the courtroom. The man who came to save the former Rockaway Boy was Matthew Traynor, the former Ridgewood Saint who became a thief, bank robber, and drug dealer-perish the thought that Gotti would even know a drug dealer!

Traynor was another Giacalone mistake. Prior to the trial's original start, he was her witness. Desperate for witnesses to complement Cardinali, she had decided to use a man who had once tried to con his way out of prison by lying to the FBI about a nonexistent murder plot against a cop.

Giacalone had spent many hours preparing Traynor for his testimony, but then she caught him in what she felt was a lie. He told her that while he and Cardinali were cellmates in the MCC, he had overheard Cardinali tell Cutler that he had lied to the grand jury. Giacalone didn't believe it and dumped Traynor from her witness list. Once the trial was underway, Traynor, seeking to shave some time off his bank-robbery sentence, volunteered his services again, but Giacalone shunned him.

So Traynor called Cutler and told him some Giacalone stories. Some on the defense team were opposed to putting Traynor on the witness stand. They felt he was an unguided missile who might detonate over them. In addition, his FBI files-which would come into the case as evidence-were heavy with details about murder, drug dealing, and other crimes by the Berginites.

Gotti, however, felt that what Traynor wanted to say about Giacalone was more important and of course, he prevailed.

Traynor, age 40, took the stand on February 2, wearing a smirk and a pullover sweater. He promptly said that the prosecution had plied him with drugs to induce him to invent stories about the defendants. He said he was frequently "zonked out" when he appeared at Giacalone's office for a preparation session.

"I was so stoned I didn't want to go home," he said.

It only got worse, as the defense "sucked the hate"-as the process was known-out of Matthew Traynor, who referred to Giacalone as "the woman with the stringy hair." Finally, he c.o.c.ked his fingers like a gun and pointed at her; he said when he told her he wanted to "get laid," she "gave me her panties out of her bottom drawer and told me to facilitate myself."

The defense had put Giacalone on trial during the cross of Cardinali. Traynor was used to keep her there.

"She said, 'Make do with these,'" Traynor said.

"She really wanted me to frame Mr. Gotti and the others," he continued. "She didn't like them ... because many years earlier they had ridiculed her for being skinny when she used to walk through the neighborhood where they hung out."

But wait. At sidebar months earlier, a defense lawyer had accused Giacalone of "floating" an "absurd" story about walking past the Bergin as a schoolgirl. The Bergin wasn't even in Ozone Park then!

One fact for the judge, one fact for the jury.

Traynor slugged on. He said that DEA agent Edward Magnuson had given him drugs and when he begged for more, he was sent to a doctor with a fat pad of Rx prescriptions and got Valium and codeine. He said he was so "zonked" that once he vomited all over Giacalone's desk, and she screamed, "Get him out of here!" He said agents drove him around to sober him up.

Over three days, Traynor was crossed, redirected, and recrossed. It added up to a numbing record of confusion and conflict, all for the get-Giacalone defense.

After it was mercifully over, Nickerson, whose patience had ceased being a virtue, made his strongest statement about the defense-on a day when the trial was in recess, to a virtually empty courtroom. Nickerson finally spoke his mind after coprosecutor John Gleeson spoke his; Gleeson came into court to complain that the defense had gotten too personal.

It had served a subpoena on a hospital for job records of Gleeson's wife, a nurse. The doctor who prescribed the drugs for Traynor was on the staff of the same hospital. Gleeson, age 33, who left a big-time Manhattan law firm to become a federal prosecutor, told Nickerson the subpoena was "hara.s.sment," pure and simple.

Gleeson was speaking up and asking Nickerson to control the defense because the hara.s.sment had "reached outside the courtroom" to "someone very close to me for a reason that I think is patently pre-textural." He said David DePetris had apologized for the defense, which was "appropriate" but not sufficient. He asked Nickerson "to exert some control" over a defense effort "to create issues of impropriety where none exist" in order "to take this jury's eye off the ball."

DePetris showed up to take the heat for the defense, which had wanted to establish a link between the prosecution and Dr. Harold Schwartz, the doctor Traynor was sent to. DePetris told Nickerson he was unaware until late the day before that other defense attorneys had decided to try and make the link by causing a subpoena to be issued.

"How is it conceivably relevant?" said Nickerson.

"How the government got to Dr. Schwartz," said DePetris. "Because the government got to Dr. Schwartz presumably through Mr. Gleeson's wife."

"It is just so off the wall, completely off the wall," Nickerson said about the notion that the United States government had to use Gleeson's wife to get a doctor to write prescriptions for Traynor.

Nickerson quashed the subpoena with words that showed how he felt, but not how he ever acted: "This case is not going to turn into any more of a circus than the defendants' attorneys have already made it."

After calling 11 witnesses, the defense rested on February 11. Giacalone then announced she would call 17 witnesses for a reb.u.t.tal case.

"Seventeen?" Nickerson wearily asked.

At the six-month mark, everyone was weary, especially Larry King, Willie Mays, The Girl, and all the rest, who wanted to go back to being people again, not numbers. They had been told it would be a two-month trial.

The defense, however, had succeeded in putting Giacalone on the defensive. She felt Traynor's statements could not go unreb.u.t.ted. She felt the jury had to see how reputations-hers, Dr. Schwartz's, DEA agent Magnuson's-had been besmirched on behalf of John Gotti.

Over three more weeks, the 17 testified. Agents, prison officials, detectives, and Dr. Harold Schwartz, who did not know what lay ahead when he was asked a year earlier to examine a federal prisoner apparently suffering a loss of nerve.

When he saw him, Schwartz said that Matthew Traynor was "suffering from a ma.s.sive anxiety reaction" about testifying against Gotti. "He was pacing back and forth. He was sweating profusely. He was flushed. Very, very agitated." The patient, the doctor added, was "very anxious" and "afraid for his life." He feared he would say something that would help the defendants find him, and kill him, even if he were in the witness-protection program.