In the grimy underworld of violence and drug dealing, many criminals are better known by their nicknames.
And to the general public, these nicknames are often not the most flattering – “Killer,” “Scuz” and “Fat Jose” to name a few.
With flattery far from their minds, prosecutors like to include these nicknames in indictments. But defense lawyers typically ask judges to keep the nicknames out, especially in court before a jury. They worry that such nicknames will prejudice a jury before they ever hear any evidence in the case.
Challenges of the use of criminal defendants’ nicknames have popped up in courtrooms all around the country in recent years. One such challenge raised in Connecticut recently could end up before the state Supreme Court.
Marco “Killer” Camacho, who was convicted of killing four people in Southington in 1996, asked the state Appellate Court to grant him a new trial on grounds that a testifying witness’ use of his nickname “Killer,” despite warnings by the trial judge not to, kept him from getting a fair trial.
The use of the nickname was “inappropriate,” but Camacho failed to prove it prejudiced the jury enough to warrant a new trial, the state appellate judges ruled.
Camacho was convicted in the 1996 murders in Southington of Nick Votino, 50; Joanne Votino, 18; and their house guests, Lynn Suszynski, 26; and Wayne Barrows, 44. Prosecutors said he and an accomplice, Erik Lee Henry, went to the house to collect a $400 drug debt from Nick Votino. When they were not paid, Camacho became enraged and shot everyone inside, they said.
Camacho, who was 17 at the time of the murders, was convicted of felony murder in 2002 and sentenced to 260 years in prison. Henry received a 45-year prison sentence after pleading guilty to murder and a drug charge.
In Camacho’s latest appeal, his lawyer, Joseph Visone, argued that the jury was prejudiced not only by the use of the nickname but by the cumulative effect it had on jurors when combined with the playing of a 911 tape.
The “Killer” nickname was used twice by Henry’s girlfriend, who was called to the stand by prosecutors — once during her initial testimony and again, six weeks later, when she returned to the stand.
Defense lawyers asked for a mistrial both times and were refused. The trial judge cautioned the jury to disregard the nickname.
“We thought that it prejudiced the jury, obviously the Appellate Court didn’t believe so,” Visone told the Law Tribune. Visone said he would next petition the state Supreme Court to weigh in on the case.
Visone said he could not think of any other Connecticut cases involving a challenge to a nickname that went to the appellate courts.
“It’s not a constitutional thing, just an evidentiary thing,” said Visone. “There’s no particular case I know of right on point that deals with nicknames. You just have to argue the prejudicial impact of it.”
Long time defense lawyer Hugh Keefe, of Lynch, Traub, Keefe & Errante, in New Haven, said he always asks the judge to take out nicknames from evidence. However, he said sometimes their admittance into evidence in unavoidable, especially if wiretap evidence is a key part of the testimony and the nickname is used on tape to refer to the defendant. He said this is most common in organized crime and gang cases.
“Sometimes it’s impossible to avoid it,” said Keefe.
Since it’s the feds who typically handle the organized crime cases, he said they try working in the nicknames into evidence whenever possible “to make the jury biased against them.”
“I try very hard to delete nicknames from the indictment,” said Keefe. He said he often asks the judge for a court order that would take out all references to a nickname in the case.
“When it’s purely gratuitous…and the only reason is to prejudice the defendant, then it should be taken out,” said Keefe. “Buzz Saw, Meatballs, Six Pack- many of them, especially the organized crime ones, are very amusing but amusing or not it fortifies the claim that they are organized crime people. There’s no reason to do it unless there’s an identification issue.”
William “Willie” Dow III, of Jacobs & Dow in New Haven, said in his experience, judges typically allow the nicknames into evidence unless it’s just too prejudicial, like “Killer.”
“To me that would be an awful easy call, you don’t let them do it,” said Dow. “You don’t want the judge to be reading to the jury… that John ‘Killer’ Smith has been charged with murder because it tilts the table.”
Dow cited the old adage that you never get a second chance to make a good first impression. The same applies with a jury, he said. “A nickname can sour the whole thing from the very beginning.”
Dow said it’s especially difficult getting the nicknames removed early on in a case.
“The attempts to purge it from the indictment are rarely successful,” said Dow. “I suspect the theory is that we can give the jury an instruction on disregarding it and the jury will of course follow the instruction.”
Some challenges to convictions where use of nicknames may have prejudiced a jury have been successful in other states.
In 2009, The 2nd U.S. Circuit Court of Appeals concluded in United States v. Farmer, that Laval “Murder” Farmer had been denied due process because the prosecutors “invited prejudice by repeatedly emphasizing Farmer’s nickname in a manner designed to suggest that he was known by his associates as a murderer and that he acted in accordance with that propensity in carrying out the acts charged in the indictment.” As such, Farmer was awarded a new trial for attempted murder.
At trial, Farmer objected to the use of his nickname in open court and said he would concede his identification to avoid having the nickname heard by the jury.
The government rejected the offer and the trial judge sided with the prosecution.
“Thereafter,” said the 2nd Circuit opinion, “the prosecution used the nickname promptly, repeatedly, and in a way calculated to intensify the prejudice.”
Also in New York, a new trial was just granted in February to Marlo “Killer” Collier, of Rochester, after an appellate court said prosecutors repeatedly referred to him as “Killer” during the murder trial. Collier’s defense lawyer argued that only one co-defendant in the case called Collier by the nickname, but prosecutors called Collier by his nickname five times during their closing argument alone.
In Pennsylvania, a trial judge agreed to a bar of the nickname “Scuz” in the murder trial of Demetrius Fiorentino. His lawyers argued that the nickname could negatively influence the jurors. Fiorentino was later convicted of the crime.
Prosecutors initially argued that the nickname was needed to identify the defendant at trial. “All of these witnesses are going to have to call him by the name they know,” said the prosecutor. “We’re not calling him a scuzzball or scuzzy … it’s ‘Scuz’ because that is his nickname.”
Conversely, a Massachusetts appellate court denied an attempt by Melvin “Pinocchio” Martinez to overturn his rape and murder conviction because of the potential impact the nickname might have had on the jury.
Martinez’s lawyers feared that the jury would think Martinez had a “propensity to lie,” given the nickname.
Also in Illinois recently, Arturo “Insane” Romero challenged his attempted murder conviction in part over use of the nickname “Insane” at trial. Appellate judges denied the appeal, noting that his lawyers did not object to its use at trial.
Lastly, a compromise was reached in New Mexico in the case of Jose “Fat Jose” Martinez “so as not to hurt his feelings,” a federal prosecutor reportedly said.
Martinez, 350-pounds, was considered one of the biggest heroin dealers in northern New Mexico in the 1990s.
Martinez had filed a motion in court to strike out all references to the moniker “Fat Jose” in past and future court records and at trial. Martinez “advises that he has had a weight problem since he was a child,” his motion said. “This is not something he is proud of nor is it a moniker he calls himself.”•