Storytelling for Lawyers (18 page)

Donovan acknowledges that “Failla has committed some crimes.”
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For example, “he ran a gambling den in New York in violation of [state] law,” but these were not crimes committed in furtherance of a mob conspiracy under RICO.
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Then he repeats, “So it's in the charge and the elements of the offense that our defense lies. I'll get to that in a little while.”
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Then Donovan breaks from his story. It is as if he is tired from the beating he and his client have taken at trial up to now. Like his client, he needs the relief of a joke, for his own sake as well as the jurors'. This storytelling appears spontaneous, as if he is merely stumbling upon this story within a story as he goes along. But he is methodically articulating and crystallizing a theme that serves as the spine of the narrative structure; it is embedded in his presentation of an archetypal comedic character who, the jury will soon see, will be transformed into Donovan's version of the “character” of defendant Louie Failla. Donovan begins with a well-delivered version of a classic Irish barroom story, apparently borrowed from a repertoire of such “stock” stories that can be readily inserted into closing arguments as appropriate: “As I make this defense … I feel a little bit like the legendary O'Toole.”
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Donovan now assumes an Irish brogue and begins as if he is in the pub himself; his voice breaks the tension, and the juror-audience relaxes:

[Y]ou all know, who—well, in a bar in Dublin in walked a fellow who was about as tall as Ted, the judge's clerk, broad as Jackie Johns [the Mafia informant who testified against Failla]. He had that glimmer in
his eyes of craziness that I think you may have seen in Phil Leonetti. He walked into the bar and said, “Alright, where's O'Toole?”

All the patrons from the bar kind of looked in their drinks. They didn't want to be mistaken as O'Toole, except one little guy, seventy years old, five foot two, in the back, “I'm O'Toole. What is it to you?”

Well, the big guy picked up O'Toole, ran him down the length of the bar knocking off the glasses all the way and threw him through the plate glass window, walked outside, picked him up, threw him through another plate glass window and left him for dead. All the patrons looked at the poor old boy in the bloody mess on the floor. Guy looked up and said, “I sure pulled a fast one on that big fellow. I'm not O'Toole at all.”

Now I feel like O'Toole, because in tape after tape after tape Louie Failla says, “I am O'Toole. I'm the guy you're looking for. I'm the new capo for Connecticut.” … And I'm getting up and saying he's not O'Toole at all. He's not. He's not guilty of the RICO offenses with which he's charged.
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Donovan's opening “hook” takes ten transcript pages (approximately ten minutes or one page per minute). According to a standard Hollywood formula for successful screenwriting: “You've got to hook your reader immediately. You have approximately ten pages to let the reader know WHO your MAIN CHARACTER is, WHAT the premise of your story is, and WHAT the situation is.”
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As the audience determines how it reacts to the story within the first ten pages of a script, a reader likewise knows “whether your story is working or not; whether it's been set up or not.”
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Donovan's opening fulfills the aesthetic commands of the screenwriting manual. He establishes a sympathetic character and creates the point of view from which the story unfolds: Failla's perspective. He also foreshadows the dramatic situation: the bumbling everyman, the low-level Mafioso struggling to make a living, trapped by the orders and commands coming down from the Connecticut capo above him.

In the next stage after this initial set piece, Donovan creates the dramatic situation and establishes the conflict between Louie Failla (the complex
protagonist) and the flat yet compellingly sinister villain, Billy “The Wild Guy” Grasso, and the power of the Patriarca crime family (the forces of antagonism compelling Louie to display his loyalty to the mob by plotting to murder Tito Morales). Initially, Donovan reintroduces Failla through the technique of description. Louie Failla, the Mafia outsider and small-time operator, struggles, often ineptly, to make a living. He is a tenderhearted man, filled with pretense and false bravado, and his actions always fall short of his words. He is deathly afraid of Billy Grasso, his Mafia capo. Nevertheless, he engages in unauthorized minor criminal activity, always fearful that his small scams will be discovered by Grasso and the leadership of the Patriarca crime family (who are not receiving any tribute or profits from these activities).

Through the conflict between Failla and Grasso, Donovan contextualizes the dramatic tension as he, simultaneously, establishes his defenses to the various lesser RICO charges that have been brought against Failla for these activities. Each of these racketeering acts serves as an inciting incident (building the tension between Failla and Grasso as Failla moves ever farther outside the mob to conduct his various nefarious crime-related activities), setting up the ultimate confrontation or showdown between Failla and the mob in the final act. This final act is akin to Kane's showdown with Frank Miller and the Miller gang in
High Noon
or the heroic confrontation with the ravenous man-eating shark in
Jaws
.

For example, one of the charges in the indictment against Failla is that he ran an illegal gaming operation in New York for the Patriarca crime family. Donovan's defense is simple: Failla ran the gambling operation in New York; and there is no denying this, as Failla brags about the scam. Although illegal gambling is a violation of New York State criminal law, Failla is not charged under state law. Further, this game, like Failla's other criminal activities, is not a part of the Patriarca family mob-controlled criminal enterprises as alleged in the indictment. It is unrelated to the crime organization's activities; indeed, Failla would be severely sanctioned and punished if his various scams were discovered by the Patriarca family.

After marking the jury's laughter at his opening hook, Donovan tells the next part of his story, depicting the character of Failla and the villain Billy Grasso through the technique of description, employing vivid and carefully selected details from the tapes presented at trial:

First of all let's talk about chronology here. With respect to Louie Failla, this case begins in about February of 1989. What do we know about Louis Failla at that point? Well, he's living in … [a] rented duplex
out in East Hartford. Hasn't been painted for eighteen years.… He is living essentially in poverty.…

Why is he living in poverty? A made member of the Patriarca crime family, how could he be living in poverty? Because something has happened, and William Grasso has essentially shunned Louie Failla.… They keep him out of all activities. Grasso has done that.… [He] wouldn't let Louie be involved in anything.
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Donovan also speaks anecdotally, describing the antagonist and villain, Billy Grasso, with vivid details taken from evidentiary surveillance tape transcriptions. Grasso, “the nastiest [man] … who's ever walked the shores of Connecticut,” tells one of his henchmen that, after he assassinates a person, he will bury him with his hand up out of the ground, “‘so I can kick it every day as I walk by'.”
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Donovan continues, “walking through a McDonald's with one of his men, and enraged, [he] picks up a kid's hat and throws it down.”
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Louie Failla is petrified by Billy Grasso. To depict Failla's fear, Donovan assumes Failla's voice and borrows edited sequences of Failla's monologue from the dialogue captured on the surveillance tapes. The use of dialogue, of course, is the second technique employed in a planned and carefully constructed sequence of scenes used to establish Louie Failla's character. Failla's words are made more compelling as Donovan assumes the Italian Mafia voice of a movie actor in a typical mob picture, to situate the story comfortably with the audience, just as Gerry Spence employed the deep and resonant voice of a Shakespearean actor in an effort to elevate and defamiliarize the circumstances of his version of Silkwood's character. Donovan's voice is akin to Failla's voice on the surveillance tapes. And, as observed by the press covering the case, it is also strongly “evocative of Ed Norton on ‘The Honeymooners' television series”:
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I didn't have no money. Couldn't do nothing. And I was never called in to defend myself. I used to go home at nights worried that he'd [Grasso] say the next day, … “I got a fucking hole dug for you already. Go get my fucking money.” I was living in fucking fear. Nobody to turn to. Not a fucking soul except Louie Failla. If I was going to get banged, I would get banged alone. I was afraid to take my wife in the car, the baby in the car. Couldn't take my grandson anywhere. I looked in his [Grasso's] face and I saw a fucking totally insane man. I saw a totally insane man.
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The next scenes are based on the characters' “actions.” These are comedic episodes typical of Hollywood “buddy” pictures taken, again, from the transcripts of the surveillance tapes and spliced together into the careful structure of a purposeful plot. Donovan then casts onstage two “flat” yet vivid “secondary” characters, drawn from a vast assortment of potential supporting characters depicted in the repository of FBI surveillance tapes: Jack Farrell and Patty Auletta, who are depicted as if they are all outlaws from an updated suburban mob version of
Butch Cassidy and the Sundance Kid
.
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And he had his friend Jack Farrell. Jack Farrell is a master mechanic … in the sense that this guy had all the natural moves to be a card shark and a dice shark. Jack Farrell and his pretty girlfriend Patty Auletta, defraud you just by being so quiet you would never think that he had a shoe there where she could feel the next card coming up was a high one or a low one.
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Jack Farrell is described with just a few well-chosen phrases as “a master mechanic” with “all the natural moves.” And, likewise, Donovan depicts his “pretty girlfriend” who could “defraud you just by being so quiet.” Neither has testified at trial. Yet it is doubtful a novelist could have reduced their essentials to a description any better or more concise. The initial function of these two characters—the old Irish card shark and his “pretty” girlfriend—spins the plot forward into action. This enables the audience to better visualize Donovan's version of Louis Failla “in action.”

Simply put, we derive a deeper understanding of who Louie Failla is from the way he conducts his business. Here, Donovan not only admits Louie's participation in the New York gambling operation but, since these activities are outside of Patriarca family activities and not covered under RICO, he lovingly embraces and revisits the details of the scam. These activities are depicted in a much different way than the prosecution's rendering of criminal activities. In contrast to the flat tonality of the prosecutor's narrative about a monolithic mob, Donovan's description is colloquial and playful, encouraging listeners to establish a sympathetic relationship with these characters: “[I]t was a sting.… [T]hey tried to get these extremely rich, high rolling gamblers, … real high rollers, guys with a lot of money to burn, to come and play blackjack and to play dice, craps, and they would try to play.… The problem was that when Louie Failla
got involved, it didn't work very well.”
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Only at the end of this sequence, or the other sequences of scenes about Failla's various criminal escapades, does Donovan tie his story back into legal defenses. At the end of the New York gambling caper Donovan depicts “a real cartoon-like picture of the statute” admitting that the game is “in violation of New York laws.”
²⁶
It is not, however, in violation of RICO, the Racketeering-Influenced and Corrupt Organization statute:

Here's what I mean. You not only have to have a participant in a RICO organization commit a crime. It has to be a crime that furthers the enterprise.…

… The crimes have to be related to the organization. They have to further the policies of the organization. They have to bring money into the organization. They have to be done with respect to the person's role in the organization.
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The organization is, like the villain Billy Grasso, antagonistic to Failla's enterprise. Indeed, the serpentine Patriarca crime family and the local capo
are
the forces of antagonism that oppose the will of the protagonist. Donovan argues that the New York gambling game, and Failla's other well-documented criminal activities and schemes that serve as the basis of the multiple counts in the RICO indictment, are outside organization activities: “This New York gambling game put money in Louie Failla's pocket, put money in Jackie Farrell's pocket … money in various people's pockets, but didn't put any money in Billy Grasso's pocket and didn't put any money in the pockets of the alleged Patriarca crime family.”
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Donovan works back and forth, from description to sequences of scenes and action and then to dialogue and back again, employing excerpts from the tapes to make the story come alive. For example, Donovan moves from incident and action back to dialogue in Failla's taped conversations with Jack Farrell, once again assuming a version of Failla's gravelly mob voice from the surveillance tapes.

Here, for example, Donovan illustrates Failla's fear of the risk of what would happen should Grasso and the Patriarca family ever discover the New York gambling operation: “We're all fucking done as far as I'm concerned.”
²⁹
To emphasize and make explicit the meaning of Failla's observation, Donovan adds an ironic and understated editorial aside that, “as far as Louie Failla went, boy, that would be an offense that would be a harsh one, harsh.”
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