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Tuesday, May 17, 2011

"Rats": Why Juries Believe Them

Vinny "Gorgeous" Basciano has just been convicted of racketeering and murder in a federal court in Brooklyn, New York and faces the death penalty. His conviction was based in large part on the testimony of one of the most powerful and nefarious "rats" ever to get on a witness stand for the government -- the former boss of the Bonanno crime family Joseph "Big Joey" Massino. To be sure, Vinny "Gorgeous" unquestionably is among the worst society has to offer -- apart from his serial murders, he conspired to kill the presiding judge in his trial -- but is he any worse than "Big Joey"?
In finding Basciano guilty, the jury obviously believed Massino. There were also secretly recorded conversations by Massino, but his testimony was critical. Is it surprising, even an insult to one's intelligence, that a jury would believe Massino? The reality, however, is that jurors typically accept the testimony of these reprobates, even though to believe such testimony would seem to defy common sense. Why in a million years should or would anyone with half a brain believe that a witness is telling the truth when he has admitted to a life of ruthless, horrendous, murderous conduct? Such conduct, most normal people would argue, should land him in Dante's innermost circle of the Inferno, rather than a champion witness for the government. Indeed, Massino's long criminal history probably should disqualify him from testifying entirely.
But rats commonly are among the most celebrated and accomplished trial witnesses. Rats are those treacherous stool pigeons and spies who turn on family and friends with scathing accounts of their ruthless criminality, and juries routinely accept their accounts as dramatic, entertaining, and believable. The rat usually makes for great courtroom theater. Prosecutors who produce and direct the performance are adept at using the rat for a broad array of investigations and prosecutions, but none is as celebrated and consequential as trials against the Mob. Prosecutors in arguing to the jury boldly and easily justify the use of such miscreants: "Sure, ladies and gentlemen of the jury, we would ideally have wanted to place before you as witnesses for the prosecution members of the clergy, distinguished judges, respected ministers of government. But men and women of such high standing do not reside in society's sewers. When you need to navigate your way through the sewer of crime and search through the muck and the garbage, you need a rat."
Added to the Honor Roll of famous Big Time rats -- i.e., gangster Sammy "The Bull" Gravano and drug-kingpin Nicky Barnes -- is Big Joey Massino. Unquestionably the most prominent mob figure ever to testify for the government, Massino appeared to be enjoying his moment. Sixty-eight years old, a huge belly, and a droopy countenance, he probably resembled to some of the jurors their uncle. Courtroom observers watched almost in disbelief as the jury listened raptly as Massino recounted his less than distinguished personal resume -- teenage thefts and burglaries, then graduating to murders, lots of murders, and finally culminating in the notorious "Three Captains" hit, in which Massino orchestrated and participated in the executions of the three heads of his rival faction by ambushing and slaughtering them in a Brooklyn social club.
What is it about Massino, and the other rats, that incline juries to believe them? There is virtually no empirical and anecdotal evidence from which to try to draw conclusions, even tentative ones. Mock trial experiments with fake juries have tried to diagnose how jurors react to a wide array of witnesses, including eyewitnesses, alibi witnesses, experts, and police witnesses, but there is no scientific data on rats. From our own courtroom experiences and observations, several important points stand out. First, to be believable the rat must make a full confession to the jury of all his nefarious deeds. He cannot hide them, minimize them, or ask forgiveness. Thus, Massino recounted calmly, almost matter-of-factly, the enormity of his wrongdoing. Apparently to jurors, his "confession" to big-time sin had a quasi-religious quality. Indeed, jurors find it fascinating to hear a person expose in such excruciating detail his own ruthless and despicable behavior. People don't generally say such things about themselves that are so disserving of their character and humanity. Thus, regardless of a juror's moral qualms about the witness's character, there is usually a very good reason for the jury to believe his testimony to be truthful.
Moreover, the preparation and rehearsal of the rat's courtroom performance should not be minimized. Prosecutors, like stage and film directors, over days and weeks of trial preparation, are adept at contriving the dramatic personae for their witness. Massino's courtroom demeanor obviously was artfully staged; his unassuming persona was carefully crafted, and his use of mob jargon ("clip," "brokester," "hit," "boob") was obviously orchestrated by the prosecutors to amuse the jury, which it clearly did, and give an air of authenticity to the role. Massino's crime stories were vivid and realistic and impressed the jury. And lest one forget, these rehearsals were not limited to the prosecutor's own direct questions to his witness. The prosecutors spent many hours, even days and weeks, with their rat, in mimicking the anticipated cross-examination by the defense, and this feigned interrogation effectively prepared the rat for almost every conceivable attack by the defense.
Other prosecutorial tactics invite the jury to make a favorable assessment of the rat's credibility. Every rat makes a deal with the prosecutor, and enters into what is known as a "cooperation agreement." This agreement is like a contract. It stipulates that the rat agrees to testify fully and truthfully, and the prosecutor in turn agrees to consider the rat's cooperation with respect to the rat's punishment, and in his case to help Massino avoid the death penalty and maybe, someday, as Massino put it, "to see a light at the end of the tunnel." Sometimes the terms of the agreement are explicit, sometimes unspoken but tacit. The lawyer for the defendant may actually spend days cross-examining the rat on this deal, in the hope that the jury will conclude that the rat is lying to save his own skin.
But this endeavor by the defense lawyer is usually futile. The cooperation agreement misleadingly invites the jury to see it as the prosecutor's method to bring out the truth from the witness, with the unspoken message that the prosecutor knows what truth is, and through this agreement is assuring its revelation. Jurors thereby get the impression that the prosecutor is carefully monitoring the testimony of his rat to ensure that the jury gets only the truth. The prosecutor in this way effectively buttresses his witness's credibility by vouching for its accuracy, and in a trial featuring as the cast of characters the prosecutor, the rat, the defendant, and his mob lawyer, the prosecutor stands head and shoulders above everybody else for honesty, integrity, and the vindication of the law. And paradoxically, given the rat's association with the defendant, the more the defense lawyer attempts to paint the rat as the evil person he assuredly is, the more the jury sees the paint as staining the defendant as well, usually terminally.
But given the fact that the jury typically is willing to believe men such as Massino and his ilk, as the jury did here, what does this say about the criminal justice process when, unlike the defense lawyer's role, the prosecutor's most important duty is to dispense truth and do justice? How careful should prosecutors be in using rats to catch rats? Should prosecutors simply throw a rat on the witness stand in the hope the jury will believe him?
Despite Massino's horrific past and his probable motives to "cooperate" with the authorities in giving testimony (although he testified that such motives did not include his own desire to avoid the death penalty), it is our experience that the overwhelming majority of prosecutors offer "rat" testimony only if they actually believe it themselves. In many respects, jurors, even though they are lay persons, arrive at their decisions on witness credibility in the same way that prosecutors do -- they bring to their decisions their ordinary life experiences, common sense, and good judgment. Decisions that we make every day require us to use our skill sets in accepting or rejecting the word of persons who represent to us certain facts, or vouch for things, and ask us to rely on their word. Juries do it the same way.
We are long past the day when the law imposed the paternalistic rite of disqualifying certain witness as "incompetent" to testify, for example, for having a criminal record. The majesty of the jury system is that it affords the defendant's peers, meaning jurors -- euphemistically the "man in the street" -- the task of deciding if a witness is telling the truth. Jurors most likely believe "rats" when most other people would believe them, although one has to swallow hard in doing so. And maybe that's the way it should be.



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