Appellate judge expresses misgivings about aspects 2007 Family Secrets mob trial in Illinois
A trial judge's contact with jurors behind the scenes during the 2007 Operation Family Secrets trial — Chicago's biggest mob trial in decades — was out of the ordinary and raised potential legal issues, a federal appellate judge said Monday.Her comments came as lawyers for five reputed mobsters stepped before a three-judge panel of the U.S. Seventh Circuit Court of Appeals to ask for a do-over of the landmark trial widely credited with delivering a body blow to Chicago organized crime.
The 10-week trial ended with the conviction of mob boss James Marcello and two other aging dons for racketeering that included 18 murders; two others were convicted on related charges.
The trial produced weeks of sensational testimony, including a description of how defendant and hit man Frank Calabrese Sr. liked to strangle victims with a rope and then slash their throats to make sure they were dead.
The jury found that Marcello was among those responsible for the murder of Anthony "Tony the Ant" Spilotro, once the Chicago mob's man in Las Vegas and the inspiration for the Joe Pesci character in the movie "Casino."
U.S. Appellate Judge Diane Wood told Monday's hearing she was troubled by accounts that trial Judge James Zagel occasionally wandered into the jury room during the 2007 proceedings and talked with jurors outside the presence of attorneys.
"There's a real problem here with how the trial judge approached it ... having all these private chats with people," she said. Wood said it meant a vital court record of just who said what to whom was "woefully" lacking.
Francis Lipuma, an attorney for one of the reputed mobsters, Joseph "Joey the Clown" Lombardo, complained how Zagel had informed the sides weeks into the trial that he had just dismissed a juror after determining she felt threatened.
Lawyers should have been afforded a chance to express their views before the juror was booted, Lipuma said.
"This is not Judge Zagel's jury; it is not the government's jury," he said. "It is Mr. Lomardo's and Mr. Marcello's jury."
But prosecutors argued the defense did have ample time to object during trial about the juror's dismissal. Even if Zagel erred somehow, they added, it was harmless and wouldn't have affected the verdict.
Appellate judges often play devil's advocate, and when they appear sympathetic to one side that isn't necessarily an indication of their final decision. Still, Wood's statements were more pointed than usual for a judge during oral arguments.
A ruling is likely to take at least several weeks.
Among other defense arguments Monday was that the government, in taking the reputed mobsters to court in 2007, violated double jeopardy clauses that prohibit trying someone for crimes for which they have already been tried.
Marcello's attorney, Marc Martin said his client was already tried in the mid-'90s for taking part in the same mob-related conspiracy, saying that adding murders to the conspiracy didn't alter the fact he was being tried for essentially the same crime.
Lombardo's attorney pointed to courtroom outbursts during the trial by Calabrese, saying it prejudiced all of the men in jurors' eyes. One juror even reported hearing Calabrese say about a prosecutor during closing arguments, "You are a ... dead man."
But prosecutors said there was no reason to believe jurors failed to heed Zagel's instructions to consider each defendant separately and to draw conclusions — not according to any in-court behavior — but on the basis of only the evidence.
http://www.chicagotribune.com/news/nationworld/sns-bc-il--mobtrial-appeal,0,1274418.story
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