Storytelling for Lawyers (19 page)

Just as in the movies (
High Noon
or
Jaws
) and strongly akin to the illustration provided by
This Boy's Life
, the plot progresses forward based on the unfolding conflict between Louie Failla, the rogue outsider, on one side and Billy “The Wild Guy” Grasso, the villain and capo of the Connecticut faction of the Patriarca crime family, on the other, as the action heads toward the final confrontation. Here, Donovan constructs his defenses to the various lesser RICO conspiracy counts as Failla moves farther outside the sphere and control of the Patriarca crime family in conducting his various criminal enterprises. But there is more complexity to the plot than this: the forces of antagonism are aligned against Failla achieving his goal of becoming a major mobster in Connecticut. There are now the demands of Failla's adopted Patriarca crime family and Billy Grasso calling on Failla to prove his loyalty by executing his grandson's father; there are also the competing demands of his “real” family, his affection for Tito Morales, and his love for his grandson. These countertensions create a compelling dramatic conflict that puts Failla's character under intense pressure, seemingly compelling him to make a definitive choice. Regardless of which choice he makes, it will have devastating consequences.

Thus, this is the final act that leads toward the final crisis, resolution, and climax. But akin to Gerry Spence's legal story in the
Silkwood
closing argument, and unlike the films
High Noon
or
Jaws
, Donovan does not complete his story, and does not provide closure to the tale. It will be up to the jurors in their deliberations and, perhaps, the judge at sentencing (if the defendant is convicted) to finish the story and inscribe a final coda of meaning on the tale. Donovan takes special care not to complete the “arc” of Failla's character.

This final or third act of a movie-like plot structure provides Failla's defense to the murder conspiracy charge, which is the most serious charge against him. Its success turns upon the jury visualizing the scenes (aided by cartoons) and interpreting the subtext of what Failla does not say. It provides a fuller understanding of Failla's complex character, or, at least, Donovan's reinterpretation of who Louie Failla is, and how he responds to the conflicting loyalties and the forces of antagonism aligned against him.

Donovan marks the beginning of the third act—as he has in each of the prior movements of the plot—with another anecdotal story within a story. This is the most complex of his stories within stories (and far more complex than the simple and abbreviated analogies employed powerfully by Gerry
Spence in
Silkwood
). This final story foreshadows strategically the meaning of Failla's words and provides an unstated subtext for understanding Failla's motivations in his willingness to go along with and, indeed, take the lead in plotting Morales's murder (in the various dialogues captured in the surveillance tapes). Donovan maintains the same comedic tonality in his delivery, as if all this material is part of a single overall narrative:

And this brings us finally to the murder of Tito Morales, and this, ladies and gentlemen, is the most serious crime that faces Mr. Failla. Before I start, I'll get my breath back.

I'll tell a story about Frankie Roosevelt, who was apparently an absolutely brilliant fellow at making different sides believe that he was leaning toward their position. There was a coal strike during the depression in West Virginia, and it had turned violent. The President decided that he would attempt to mediate the dispute in order to end the violence, and he got the workers back into compliance. It was a cause that Mrs. Roosevelt, Eleanor Roosevelt, was very much interested in, so what she decided she would do would be to hide behind a curtain and listen to the meetings that the President had.

So first the owners of the mine come in and they explain that, “Look, it's the depression. We're not getting much money for our coal. We admit the conditions are bad. We're doing the best we can to improve them. The wages are low, but we can't possibly pay more. We'll go out of business. The violence in the strike is over.”

President Roosevelt listened and said, “You know, you're absolutely right. You're absolutely right.” They left.

John L. Lewis, the head of United Mine Workers, came in, and he said, “These workers are not making a living wage. Children are being used in the mines. The conditions are absolutely horrible. They've brought in strike breakers. The strike breakers are causing the violence.”

The President said, “You know, John, you're absolutely right. You're absolutely right.” He left.

Eleanor Roosevelt was enraged. She came out from behind the curtain. She said, “Franklin, you told the miners [mine owners] that they were absolutely right, and you told John L. Lewis that he was absolutely right. What are [you] doing?”

Roosevelt looked at her and said, “Eleanor, you're absolutely right. You're absolutely right. You're absolutely right.”

Louie Failla does this all the time. He doesn't just exaggerate. He is a verbal chameleon. He adopts the coloration of whoever is with him. We see it all over.… When I said that, you [Donovan directly addresses the jury] were supposed to say, “You're absolutely right, Jeremiah. You're absolutely right.”
³¹

In telling this story, Donovan acts the different characters. Several reporters describe how he interacts physically with the jury. Edmund Mahony observes the theatricality and physicality of the performance: “Donovan sometimes strode and other times tip toed in front of the jurors. He shouted, then whispered and waved wildly with his arms. U.S. District Court Judge Alan H. Nevas hid his face to cover a smile and the audience guffawed out loud.”
³²
This story embodies Donovan's conceptualization of Louie's character at this point in the story: Louie will use deceits of language to avoid confrontation and violence; he is a people pleaser, determined to give his audience what they want through story. This anecdote also foreshadows Failla's role as mediator between the violent mob impulses.

Donovan now transitions back into his story:

The most significant example of Louie's being a verbal [chameleon] has to do with Tito Morales. With respect to Tito Morales I'm going to argue to you that except for Louie Failla, Tito Morales would be dead. I feel really off trying to argue to you that he didn't conspire to murder somebody when, in fact, in our view it's Louie's action, I should say, more precisely, his inaction, that has permitted Tito Morales to be alive and happy in prison, however happy he might be.
³³

In this final act, the conflict peaks. Failla confronts Billy Grasso and the Patriarca mob, specifically, Grasso's two violent henchmen, the father-son mob informants who testified against Failla in exchange for a plea bargain, Sonny Castagna and Jackie Johns. These are also “flat” and monochromatic characters, evil antagonists, akin to the various members of the Miller gang, who are plotting to execute Tito Morales.

After arguing that “except for Louie Failla, Tito Morales would be dead,”
³⁴
Donovan tries briefly to explain the legal basis of his theory that Failla did not participate in the conspiracy to murder Morales. He does not lecture the jury;
he merely invites their participation in understanding the law. To provide a legal framework for this portion of the story, Donovan briefly recites a legal theory of conspiracy that anticipates the judge's charge, connecting these to the motivations of Sonny Castagna and Jackie Johns to execute Morales on the command of Billy Grasso:

In order to determine whether Louie is guilty of a conspiracy to murder Tito Morales, you're going to have to make a decision about whether the conspiracy existed and what Louie's intent was. Now in a conspiracy it's seldom true that one act taken by itself can be detected as tending to prove the unlawful agreement. What I mean by this, I mean there was an agreement. There was an agreement between Sonny Castagna and Jackie Johns. Sure, they wanted Tito Morales dead, but Louie did not.
³⁵

Donovan then moves to another action sequence: nine months prior to the conversations in the car, the two mob enforcers close to Billy Grasso are talking about killing Morales. “Why was it going on?” Donovan asks the jury.
³⁶
“What was the motive to kill Tito Morales?”
³⁷

Donovan employs sequences of scenes depicting the characters through their actions to answer his own rhetorical question. First, a sequence of scenes displays the bad blood between Morales and the mob henchmen. In one scene Morales, who had once been a partner with young Jackie Johns in various Hartford crime activities, was arrested. In another scene, the dialogue between Castagna and Johns reveals their belief that Morales thought that they had turned him in to the police. In another scene, again reenacting transcripts from recorded surveillance tapes, Johns and Castagna tell Failla that Morales can implicate them both in the murder of a young boxer named Eric Miller (who was assassinated by Johns and Castagna under Billy Grasso's order, because Miller had foolishly gotten into a fight with Billy Grasso in the parking lot of a Hartford restaurant). Donovan details Castagna's and Johns's motivations to get rid of Morales through edited dialogue. Donovan concludes with characteristic understatement and irony: “Tito Morales, who knows about what happened with the other kid [Eric Miller], can get Sonny and Jackie into some pretty serious trouble.”
³⁸

Finally, Donovan caps off this sequence of scenes by describing, from Castagna's and Johns's point of view, the visual shot of Morales “seen going into the federal building.”
³⁹
Donovan underscores the meaning of the scene described: “Tito [Morales] was seen going into the federal building, and
very shortly thereafter … there's a real rough call to Jackie Johns [from Sonny Castagna] … to get over here fast.”
⁴⁰
Donovan shifts tonality from the comedy of Louie Failla's scenes; there is a serpentine quality to the depiction of the actions now defining the characters of Johns, Castagna, and especially Billy Grasso:

What are [these guys] worried about? They're worried Tito Morales is going to go in and spill the beans that these were the guys who murdered Eric Miller [on the order of Billy Grasso]. They're scared that he's going to go in and tell them all about … Jackie Johns's counterfeiting and drug activity.… And besides, Jackie Johns doesn't like [Tito] too much, anyway, because [Tito] put the moves on his girlfriend.
⁴¹

Donovan cuts to the next sequence of scenes. Initially, there is more dialogue between Failla and his friend Jack Farrell while riding in Failla's Cadillac: “[t]hey're reminiscing back to the days when Billy Grasso controlled everything.”
⁴²
Donovan reenacts the scene captured on the tape of when Failla tells Farrell about how he once made an excuse to Grasso, presumably about temporarily refusing to carry out the order to execute Morales:

Failla says, “I didn't do what he said. That's why I walked away from the table once … [h]e came flying right back, ‘You motherfucker'.”

“I said, ‘Look, you don't see the eyes around. I've got people watching me. I know when to fucking move and [when] not to. You're not supposed to tell me when to move'.”

“‘You do what I tell you, you yellow motherfucker'.”…

… Grasso's furious at him that he's a yellow motherfucker. What he's doing is he's saying, “Eyes all around me. I can't do it.” He is making an excuse.
⁴³

“But why did Louie Failla not carry out this order of Grasso?” Donovan asks the jury.
⁴⁴
“Because he and Morales were close.”
⁴⁵
Donovan's answer to his own rhetorical question provides the transition into another scene and more dialogue in the car between Failla and Morales, dialogue in a scene that starkly contrasts the characters of Failla and Morales with the characters of the father and son mobster henchmen, the murderous team of federal informants, Johns and Castagna. This is evidence that Donovan painstakingly introduced during the defendant's case at trial. In these surveillance tapes, Failla and Morales reveal aspects of a far more complex relationship in their
dialogue. For example, while driving in Failla's Cadillac, soon after he has been ordered to murder Morales, Failla tells Morales, “All right, you take care of yourself, kiddo. I love you. You know that, don't you?”
⁴⁶
Donovan then steps outside of the scene and observes, “I don't know. It's not often, I think, that grown men tell each other they love each other.”
⁴⁷
Donovan cuts to the next scene in the sequence:

The great one is, I think, on August 28th, and they're talking about Jason [Morales's son, Louie's grandson]. [Donovan assumes Failla's gravelly mobster voice.] “You should see their fucking tape. They took him to Lake Compounce yesterday, and they made a videotape of him, and he gets up and he starts playing fucking good times, singing and dancing. That was, [the] whole fucking thing. You should see this fucking tape. He should send it to Hollywood. That was, this kid did everything. He looked at the audience and people and give him a fucking scowl like this [Donovan imitates Failla imitating his grandson's scowl] with his face.” Morales laughed. “I got to show you.”
⁴⁸

Donovan briefly frames the scenes and marks the end of the sequence describing the relationship between Failla and Morales: “There's a tenderness between them. I said tenderness is too strong. There's a mutual respect and affection between them. Louie has been placed in a terribly, terribly difficult position. His life is in danger if he does not carry out the order, and he's the father of his grandchild.”
⁴⁹
This sequence leads to a turning point and the climax of the “third act” of Donovan's three-part narrative structure. First, Donovan observes Louie's paralysis and inaction: