Storytelling for Lawyers (17 page)

Subsequently, this secondary and flat character assumes a more important role in the story. Dwight “bumps up against” the protagonist Toby; incident and action explore the increasing conflict that develops between the two competing characters. There are the actions that occur on the trip to Toby's new home; Dwight intentionally runs over the beaver (a vivid secondary “flat” character in its own right), and then Dwight attempts to compel young Toby into helping out with the roadkill. “Pick it up. We'll skin this sucker out when we get home.” This incident, and the subsequent events, reveal the cruelty in Dwight's character as the conflict deepens between Toby and Dwight, captured in dialogue: “‘Don't tell me you're afraid of the damned thing.' ‘No sir.' ‘Then pick it up.' He watched me. ‘It's dead, for Christ's sake. It's just meat. Are you afraid of hamburger?'” It doesn't take us long to understand that Toby is, in the terms borrowed from the Amsterdam-Bruner definition of the progressions of a plot, deep in the “trouble.”
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Action and dialogue are used to add depth to Dwight's character and the reader begins to question the assumptions made about Dwight based on Toby's initial description.

In the final excerpt from this sequence of scenes, Dwight makes a pit stop at a tavern at the “last settlement,”
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and the conflict progresses in the “reverberations” to the action, again captured primarily in dialogue. Dwight, in an action that complements and reemphasizes the dialogue, swerves side to side on a “stretch of the road [that] ran alongside a steep gorge; to our right the slope fell almost sheer to the river.” This is a description of physical setting that provides a literal edge to the dialogue. The dialogue here foreshadows Toby's future under Dwight's authority and the conflict unfolding between them. “You're in for a change, mister. You got that? You're in for a whole nother ball game[,]” Dwight says. To which Toby responds presciently (and metaphorically): “I braced myself for the next curve.” Dwight's true character is revealed through further action and dialogue, and he has completed the shift from a flat secondary character to the story's main antagonist.

In 1991, Louis “Louie” Failla, a reputed Mafia soldier in the Connecticut faction of a New England crime family, was one of eight defendants charged with racketeering.
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The thirteen-count indictment included charges that Failla supervised and operated illegal gaming businesses and engaged in wire fraud in connection with schemes to defraud the customers of these gaming operations. The most serious alleged racketeering act, however, was that Failla conspired with two mob informers to murder Tito Morales, his grandson's father. The prosecutor's case was strong; in fact, the evidence seemed insurmountable. The two informants who testified against Failla had been granted immunity and had reasons for lying—to avoid prosecution for other charges and to receive lenient sentences. Failla's words, however, had been captured on tape. Failla's Cadillac had been bugged and his self-incriminating conversations recorded. These tapes and the transcriptions of what one reporter called “Failla's greatest hits”
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formed the centerpiece of the government's case against Failla and his codefendants. In these tapes, Failla implicated himself in the conspiracy to murder Morales and bragged about his multiple roles in the illegal business enterprises that were at the heart of other charges in the indictment against him.

The evidence was stacked against Failla, and he had not testified. While Jeremiah Donovan, Failla's gifted defense attorney, had successfully impeached the credibility of the two mob informants on cross-examination,
Failla had not produced evidence to rebut the incriminating testimony on the tapes. The prosecutor, in a five-hour closing argument, a serious deadpan harangue, had meticulously used these tapes to historically reconstruct Failla's criminality and the criminal activities of the seven other codefendants. In contrast, Donovan's closing argument deemphasized the specifics of the historically reconstructed “plot” created by the testimony and tapes that had been central to the government's case and closing argument. Donovan's story attempted to humanize Failla and to depict him as a sympathetic character.

The material for Donovan's closing argument was provided, primarily, by using the same incriminating tapes that had been played at trial and served as the centerpiece of the government's case against Failla and the other codefendants. But Donovan's approach to this material was different. He imaginatively respliced these tapes and retrofitted the pieces into a newly redefined version of the story.

Donovan depicted Failla as a comic character. The concept of Donovan's Failla character could have been pitched in Hollywood. Failla the Fool, the “bumbling mobster wannabe,” is a “character who could have stepped from the pages of Damon Runyon.”
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Louie Failla, clown and exaggerator, engaged in minor criminal activity. Although he was a “made” Mafia soldier, he was an outsider, not really a part of the mob, operating beyond the control and authority of the evil capo of the Connecticut branch of the Patriarca crime family, Billy “The Wild Guy” Grasso. Failla was shunned by the Patriarca crime family, and he struggled to make a living. His activities, although illegal under state law, were technically not violations of the federal conspiracy statute, the Racketeer Influenced and Corrupt Organizations Act (RICO), because they were not Patriarca family mob activities.

The most serious charge against Failla alleged that he conspired and plotted the murder of Tito Morales, his daughter's ex-boyfriend and the father of his grandson. The prosecutor meticulously detailed Failla's involvement in this murder conspiracy. Failla was, the prosecutor asserted, exactly what he appeared to be in the tapes. His words unequivocally revealed his intent to murder Morales and manifested his thought processes. The government portrayed Failla as a “flat” character: a sinister, two-dimensional villain who plotted with other members of the Patriarca crime family to execute Morales. The prosecution's bottom line was equally clear: Failla clearly intended and conspired to murder Morales; but for Failla's ineptitude, the murder of the capo Billy Grasso, and the timely intervention of the police arresting Morales, Morales would certainly be dead.

Donovan's version of the story provided a far more nuanced and complex depiction of Failla. Although Donovan could not completely reverse the polarity of the story and transform Failla into a true protagonist-hero, Failla became the protagonist of a different story, a story about a character trapped between two families, his “real” biological family on one side and his adopted mob family on the other. Rather than being merely a member of a gang of bad guys plotting the death of Morales, Donovan's Failla is an outsider, a complex character of shifting emotions and loyalties who develops and changes during the course of the argument. He is seemingly transformed at the end of Donovan's argument, although his character arc, like the story itself, is left incomplete—it remains for the jury (and the judge if Failla is found guilty and sentenced under RICO) to decipher Failla's motivations, discover the identity of Louie Failla, and write the ending to the tale.

The villain of Donovan's version of the tale is clearly not Failla; it is the murdered mob capo Billy “The Wild Guy” Grasso, who orders Failla, the mob underling, to murder his grandson's father. This also serves the purposes of the other mob defendants accused of murdering Grasso by depicting him as the true villain who meets an all-but-inevitable fate in another subplot of the trial.

In Donovan's version of Failla's story, the “engine of action [is] in the characters rather than in the plot.”
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Donovan redefines Failla's character. Character “is not a bundle of autonomous traits but an organized conception” constructed from “scraps and clues.”
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In the prosecution's simple linear version of the story, Louie Failla is a flat character, his intentions clearly captured on the federal surveillance tapes as he plots Morales's murder. But in Donovan's version of the story, there is a deeper subtext beneath the words. It is as if the action takes place in a Hollywood movie where screenwriters are admonished never to write a scene “on the nose.” That is, the dialogue of spoken words must typically cover a deeper and transformative story: in Donovan's version, the dialogue in the respliced tapes contains “scraps” and “clues” through which the jury searches for Failla's true identity. In the final act of his closing argument, Donovan presents a sequence of primitive hand-drawn cartoons depicting Failla supplemented with cartoon “bubbles” that reveal his more complex thought processes supplementing the text of spoken words. This enables the jury to visualize and reconceptualize the story,
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to look within Louie's mind and into his thought processes, and to see him not as a flat character condemned by his own words, but rather as a round character with complex motivations.

In Donovan's closing argument, Failla stalls the mob and prevents Billy “The Wild Guy” Grasso from taking the murder into his own hands by merely pretending to plot Morales's murder. In doing so, he places his own life in jeopardy, buys Morales the time he needs to save himself, and perhaps even makes a crucial choice (takes an action) that implicitly redefines his character in a far more compelling way than the words he speaks on the surveillance tapes. In Donovan's version of the story, Failla is transformed and implicitly redeemed, discovering integrity and saving himself as well as Tito Morales—just as a character in the movies would do.

Although Failla has never spoken or testified at trial, the jury has watched and studied him throughout the thirteen weeks of the trial, especially as the incriminating surveillance tapes have been played, clearly implicating him in the plot to murder Tito Morales. But now, as if for the first time, the “character” of Failla is brought to life and embodied in the theatrical and dramatic presentation of his seemingly exhausted attorney as he approaches the jury. A reporter describes the scene:

Louis Failla, a bewildered-looking Mafia soldier from East Hartford, has been at the heart of the federal racketeering trial of eight reputed members and associates of the Patriarca crime family.

Prosecutors hammered him while presenting their case, playing dozens of secretly made tape recordings on which Failla, in a voice evocative of Ed Norton on “The Honeymooners” television series, implicated nearly all his co-defendants in a variety of offenses.

Tuesday, it was the defense's turn in U.S. District Court in Hartford. They took aim at him during closing arguments to the jury.

Failla, they said, rambles, is given to flights of fantasy, is prone to hyperbole and is disconnected from reality. He cannot be believed, they said, particularly … while ferrying … around in his Cadillac.…

… Finally, it was time for Jeremiah Donovan, Failla's attorney, to present his summation to the jury. Donovan wore a look of defeat as he approached the jury box, his head bowed, his voice exhausted. He allowed that he is not sure who has beaten his client worse, the government or the defense. Then, he began the most spellbinding harangue delivered since the trial began.
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Donovan does not begin his closing argument with the customary proem or introduction characteristic of closing arguments. He simply tells a story, beginning with the identification of his protagonist, the character Louie Failla, the defendant who sits in the courtroom. Donovan speaks to the jurors, setting the stage for the action that will follow:

I have sat here this morning and listened to Louis Failla accused of being an exaggerator. If you recall, someone who indulges in wild speculation, in fantasy. I haven't said a word yet, but now I want to come forward and plead guilty to those charges. Louis Failla, with all due respect to you, Louis, is an exaggerator. You heard it throughout the trial in tape after tape after tape.
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In his opening, Donovan signals to the jury that, although this is a murder trial and Failla is accused of participating in a murder conspiracy, the jury should be aware that this closing argument will be surprisingly light-hearted—indeed the genre for the telling of this story is that of a comedy, albeit a tragicomedy:

[T]his is a case that lends itself to superlatives.… [T]his is the first case in which an induction ceremony has been played for a jury. This is a case involving the murder of what may be the nastiest man ever to walk the shores of Connecticut, and it is a case in which the charge, in which the legal principals, are probably as complicated as in any case that's ever been brought in America.
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Donovan then refers briefly to the judge's charge. Unlike Spence's recurring mantra about strict liability in the
Silkwood
closing argument, Donovan's references to the law are playful and ironic. It is as if Donovan implies that the jury should set aside the legal particulars and the law that may stand in the way of enjoying the compelling story; indeed, this story is the jury's reward for paying close attention to the evidence during the thirteen preceding weeks
of trial. Perhaps Donovan intimates that strict application of the law would be misguided since it would ignore the subtleties of the motivations and actions of the various characters within the plot:

The Judge's charge will probably last forawhole day, and the Judge will be as hoarse by the time he's finished than I was when I finished questioning Jack Johns [the mob informant who testified against Failla], who was happy that my voice had disappeared. But that charge is going to be really crucial, because it's in the charge in the principles of law, it's there that lie [
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] Louie Failla's defense.
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