Since the enactment of the 1994 Federal Death Penalty Act, many indictments have charged crimes that would have allowed the U.S. Department of Justice to seek the death penalty. The penalty has been pursued infrequently and imposed rarely. Only three defendants have been put to death under the statute, including Oklahoma City bomber Timothy McVeigh. Six more await their fate on the “Special Confinement Unit” of the U.S. Penitentiary in Terre Haute, Indiana.
But federal death penalty trials teach us lessons about broader categories of criminal cases. “Capital Punishment Trials of Mafia Murderers” by Leonard Orland, who I proclaim as a friend, focuses on two fascinating trials in the Eastern District of New York: the 1992 trial of accused Bonnano crew chief Tommy Pitera before then-Eastern District Judge Reena Raggi and the 2011 trial of accused acting boss of the Bonnano crime family Vincent Basciano before Eastern District Judge Nicholas Garaufis. Each indictment charged the defendant with murder in the course of racketeering; each trial depended heavily on cooperator testimony and, in each case, the government sought to have the jury impose the death penalty.
The book is a virtual tool box for understanding the provocative issues of relative culpability of cooperators and defendants where a life hangs in the balance. The book uses the trial evidence from these two cases to give a tutorial on the subculture referred to by the public as the Mafia and by the law enforcement community as “LCN” or La Cosa Nostra. We learn of Tommy Pitera’s commentary that “Killing is like making love to a woman. It’s a very intimate thing. After it’s done, you don’t talk about it.” Orland does not spare us the details of Pitera’s deeds, including an occasional gruesome photo from the trial record.
Basciano’s misdeeds were exposed through the cooperation of the long-time boss of the Bonnano crime family, Joseph Massino. Massino taped conversations with Basciano, including the latter’s plans to kill Garaufis and then Assistant U.S. Attorney Greg Andres.
But the book is not just a tantalizing collection of tidbits. It raises important questions about inducements to cooperate that are offered to individuals who may have engaged in crimes more numerous and heinous than the charged defendant. In capital and non-capital cases, we instruct our juries to scrutinize cooperator testimony with great care and take account of any benefit the cooperator hopes to gain from testifying.
Skilled defense counsel will often secure a frank admission from the witness that he hopes to be home with his family soon because of his cooperation.
In a non-capital case, jurors are instructed that sentencing of any convicted defendant is entirely a matter for the judge and that they have no role in that process. A verdict in a non-capital case may speak to whether the cooperators were believed, but it does not tell us much about how the jurors felt about one crime participant “walking,” while another faces a lengthy sentence.
Capital cases give jurors a forum to speak their minds in the form of a verdict. Orland tells us that the Basciano jury unanimously found, as a mitigating factor justifying its vote not to impose the death penalty, that three cooperators were “equally culpable in the murder … and will not be punished by death.”
The book includes the closing argument of one of Pitera’s lawyers who noted that the government emphasized the supposed benefits of joining an organized crime family and then compared those benefits to a cooperator joining the government’s team. “You can tell the government the most amazing stories and they believe you. Because you are on their team, they believe you.”
But Orland also gives the full text of the government’s memorandum, submitted to Garaufis in support of its motion to resentence Joseph Massino, who it described as “the first official boss of the American mafia to testify publicly.” Orland lays out the case for the importance of cooperator testimony taking the reader back to the murder trial of Frank James, brother of train robber Jesse James, in which the prosecutor argued to the jury that “it is a custom, as old as the law, to pick out from a desperate band one of their own number, and use him as a guide to hunt down the others.”
The author introduces us to Eastern District Judge John Gleeson’s thoughtful view that national uniformity on the death penalty, imposed through Department of Justice oversight of a local prosecutor’s decision to decline to seek the death penalty, is unwise and may even jeopardize a prosecutor’s ability to obtain a conviction in a murder case in a locality that disfavor the death penalty.
But under an equal protection analysis, would the federal death penalty statute be constitutional as applied if, for example, a murder in the course of drug dealing exposed a defendant to the federal death penalty if committed and charged in one district but could not possibly expose him to the death penalty if committed and charged in a different federal district?
Principles of federalism permit state-by-state variances but do the same principles apply to different districts within a single federal sovereign?
For Orland’s next work, I propose an examination of the collateral consequences of a local federal prosecutor’s unreviewable veto of the death penalty in all cases in his or her district.
Orland’s tool box includes the full text of Raggi’s jury questionnaire, which I commend for reading by anyone contemplating submitting a jury questionnaire or voir dire to a court. The questions are succinct and thoughtfully phrased. The book also contains the complete text of jury instructions on the both the guilt and punishment phases, as well as the verdict sheets.
I disclaim endorsement of any statement or viewpoint in the book, but I do opine that it is an easy read for anyone seeking an introduction to these serious topics. It also is a great resource for anyone taking a deeper dive into the subject, especially those who would benefit from having primary source material ready at hand.