All the Cowboys were stunned by their new circumstances, but Fat Danny seemed particularly put out. Cuffed to a chair in Arsenault’s office, he pawed Don Hill with his free hand. “You shouldn’t have done that,” he told him. “You shouldn’t have arrested me in front of my family.”
In the morning, HIU and HIDTA investigators led the prisoners in a line past reporters and TV cameras to the courtroom to be arraigned—a since-forbidden ritual known as the perp walk. Shortly afterward, Morgenthau held a press conference to announce the indictment and arrests. On the dais with Arsenault, who sat next to Morgenthau, were half a dozen agency and department heads who had never set foot in HIU, who had merely contributed resources or ceded jurisdiction to the investigation. Arsenault was no longer surprised or disconcerted, as he once had been, by their presence; indeed, he knew that those promised chairs, those few minutes in the warm glow of the media, had bought him and his men invaluable cooperation. Arsenault wasn’t troubled at all by who was there—success, he knew, has many fathers. But he was deeply troubled by who was missing. Dan Rather was nowhere to be seen.
FROM ARSENAULT’S point of view, Rather had been acting strangely lately. The last few weeks before the takedown he’d been more reclusive than ever. He was rarely in the unit, spending most of his time in the grand jury and on the eighth floor, writing the final indictment in consultation with Ryan. He barely spoke to Arsenault now. He did send him drafts of the indictment, but he didn’t confer with him.
Arsenault was taken aback by what he read in the indictment. It left out a number of defendants, as well as several overt acts, including a homicide. But what rankled Arsenault most was the conspiracy charge underlying the indictment. In Arsenault’s view, Rather had omitted one of the fundamental charges in the investigation.
There are two types of conspiracy in New York State law. A basic conspiracy charge inheres when two or more persons agree to commit a crime and perform two or more actions in furtherance of that crime. These so-called overt acts do not themselves have to be criminal. The purchase of a flashlight in order to perpetrate a burglary counts as an overt act, even if the buyer didn’t steal anything. Convictions for conspiracy to commit a top felony carry a sentence of two to six years. (Individual members of a conspiracy can also be tried and punished for the specific crimes that also serve as overt acts for the conspiracy. Thus Lenny and Platano, for example, were indicted for conspiracy to distribute narcotics and for murders and assaults committed in furtherance of that conspiracy.)
The second conspiracy charge must satisfy all the conditions of the first, in addition to one more. If the conspirators are over 18 and involve a minor under the age of 16 in their illegal activities, then the conspiracy itself is charged as a top felony and carries a sentence of eight and a half to twenty-five years. This so-called A-1 or top felony provision of the conspiracy statutes had been a key element in the Cowboy investigation. For years the gang had been employing neighborhood youngsters in their operation as a source of cheap, replaceable labor and because minors aren’t liable to the stiff penalties called for under New York’s tough drug laws. All three Cruz-Morales brothers, among others, had been recruited by the gang since they were 12 or younger, and HIU’s investigators had meticulously documented their involvement in the gang’s activities. Charging the Cowboys with an A-1 conspiracy meant that even some of the lowliest street sellers would be facing serious jail time, and were far more likely to make a deal with prosecutors in exchange for their testimony against the gang’s leaders and enforcers.
But Rather’s indictment made no mention of the A-1 conspiracy, although he says he planned all along to include the higher charge in a superceding indictment, and that Arsenault was aware of the plan. However, Arsenault, who had little contact with Rather, says he had no idea what was going on, and had to ask Lori Grifa to transmit his comments and recommendations to Rather as her own. “It was extraordinary,” Grifa recalled later. “I told [Walter], ‘You’re his boss. He works for you.’ And he said, ‘I know, I know. But what can I do?’”
Grifa was even more surprised a week later, a few days before the takedown. She was sitting with Rather in the unit lunchroom—a small office with a fridge and a coffee machine—when Arsenault stuck his head in and told them they were expected downstairs on the following afternoon to brief Morgenthau and his chief assistant, Barbara Jones, for the upcoming press conference. Arsenault generously included Grifa in the meeting, but, Grifa knew, the summons was intended for Rather. After Arsenault departed, however, Rather said to Grifa, “You know, I would never go to a meeting like that.”
Grifa didn’t know that at all. In Brooklyn, unit chiefs were absolute monarchs, the first assistant was God; she’d never even been in to see the DA. “There must be some mistake here,” she thought at the time.
But there was no mistake. The next day Arsenault stopped at Rather’s office on his way down to the eighth floor. Rather had his feet up on his desk. “I’m not going to the meeting,” he told Arsenault.
“It’s not an invitation,” Arsenault said. “The boss wants to see us now.”
Rather turned away, and after a moment Arsenault headed down to Jones’s office with Grifa. Jones, Grifa recalls, was furious at Rather’s no-show. “Who the fuck does he think he is?” Jones fumed, until a few minutes later Ryan joined them and explained that Rather was too busy to attend. Jones then brought the group into Morgenthau, and Arsenault, having been shoved to the margins of the case, now found himself cast as its spokesman.
But things took an even stranger turn the morning of the press conference. Rather had stayed in the office during the takedown until about 2 A.M., when he left with Grifa to drop her off and then get some sleep. He was back early the next morning showered and shaved in preparation for the conference, or so Arsenault thought. But Rather had another agenda. When Grifa phoned him with a question about the arraignment, Rather refused to take her call and redirected her inquiry to Arsenault. Then shortly before the conference began, Rather disappeared altogether, and Arsenault was slotted into Rather’s seat next to Morgenthau.
The conference went off without a hitch. Morgenthau led off with a statement about the pernicious effect of drug gangs on city neighborhoods, Arsenault added some telling details about the size and violent nature of the Cowboys, and the heads of a handful of law enforcement agencies issued statements extolling the cooperative effort that made the takedown possible. It was a seamless performance duly reported by the papers and local news stations. “Cowboys Lassoed” read a typical headline in the Post; and other editors too seized on the Wild West imagery—first conceived by Terry Quinn—to tell the saga of the Cowboys’ violent rise, and their demise at the hands of a small but determined band of lawmen.
The skirmishes behind the scenes at the DA’s office were unreported. The night of the raids, when Arsenault volunteered his assistance, Rather ignored him. He saw the offer, coming so late in the campaign, as a slight or worse, an attempt by Arsenault to ingratiate himself with Rather now that the investigation was about to go public. In Arsenault’s view, Rather’s unexplained absence from the press conference seemed to augur a puzzling new turn in his conduct of the case. Arsenault was still trying to figure out what it meant, when he learned that Rather had taken off on a fly-fishing trip to Texas. Arsenault was irate. He had wanted to reconvene the grand jury as soon as possible to improve the conspiracy charge. Worse, some of the information he thought he would need for the defendants’ arraignments and bail applications was locked in Rather’s office.
Rather, not surprisingly, had a very different view of events, stemming from his belief that Ryan, not Arsenault, was his supervisor on the case. There was no mystery about his nonappearance at the press conference or the meeting with Morgenthau, he said. He simply doesn’t like publicity, and he wanted his work to speak for itself. Moreover, he didn’t trust Arsenault’s spin on the investigation. Rather said his so-called vacation, more of a long weekend, had been planned
for over a month; the first few days after a takedown are usually quiet, and he needed a rest before the investigation started up again. He was back Monday to do some arraignments, and whatever information Arsenault needed in the meanwhile was easily accessible through Ryan.
Whatever the truth, Rather’s actions were odd at the very least. No matter how publicity-shy he may have been, he failed to inform even Ryan he wouldn’t attend the press conference until the morning of the event. And however long Rather had been planning his vacation, about which he says he informed his colleagues, Arsenault, Hill, Grifa, and the investigators say it was news to them. In fact, they were shocked he’d leave the day after the takedown: at the time they had no idea when, or if, he’d be returning. Once again the stability of the trial team seemed to be in doubt.
When Rather came back the following Monday, he met with Ryan in her office to discuss his status at the unit. “He asked me if I thought there was any way he could reasonably stay on the case,” Ryan recalls. “Naturally he wanted to stay on and try the case, and we discussed the pros and cons of his doing that at length. But in the end we both realized it was going to be a big, difficult case to try, even with everyone pulling in the same direction, and under the circumstances he felt his staying on would hurt the unit’s chances of succeeding, and much as I wanted to, I couldn’t disagree with him.”
However, not everyone in the office felt Rather was eager to go to trial, or believed his reasons for quitting the unit. Luke Rettler, among others, was mystified when Rather stopped by his office to explain his departure. “He gave me three reasons for leaving,” Rettler recalls. “He said that he couldn’t get along with Walter and didn’t want to work with him any longer, that everyone was trying to steal his case, and that he wasn’t getting any support. When he said that I just had to laugh. I told him, ‘Don’t give me that. If you can’t get along with Walter—well, that’s just something you’ll have to deal with. But don’t try and tell me that everyone’s trying to steal your case. I guarantee you no one wants that monstrosity. And as far as not getting any support, the whole office is working on your case. You’ve got Dugan and Tebbens, the two best detectives in the world, working for you full-time.’”
In Rettler’s opinion, Rather was suffering from cold feet and using his feud with Arsenault as an excuse not to go to trial—and he was not alone in his thinking. Earlier that summer, Dan Brownell, a top prosecutor who’d joined HIU in January, had been chatting with one of Rather’s old bureau mates, an assistant who knew Rather’s work well, and mentioned that Rather was going to try the Cowboys case. “No, he won’t,” the assistant remarked somewhat cryptically. Brownell didn’t press him at the time, but now in the wake of Rather’s departure, he understood what the assistant had been trying to tell him.
In fact, Rather had tried the average amount of cases in his early years, including a tough, politically fraught misdemeanor and a high-profile rape case that he second-seated, and he’d rapidly moved up to the homicide chart. But for one reason or another—he served as a Criminal Court supervisor; he specialized in investigative cases, all of which pled out—he never tried a murder to verdict and never made his mark as a trial lawyer. Often, when lawyers fail to gain sufficient major felony experience, the fear of going to trial becomes increasingly daunting. This is true for any prosecutor, but is especially the case for one like Rather, whose early prominence and perfectionist ethic can create high, even unreasonable expectations. “At some point you’ve got to just lay it on the line,” Rettler says. “But some guys are afraid of getting beat up and you’re going to get beat up. There are plenty of lawyers who are going to be better than you when you get started, and the longer you wait, the harder it becomes. You’ve just got to take the plunge and if you don’t do it while you’re young, when it’s okay to make mistakes, it just gets harder and some guys never get over it.”
Privately, Rettler speculated that was happening now. He had hoped that the Cowboy case would be the one that got Rather over the hump, and he told his friend to stop kidding himself about his reasons for leaving the unit. Rather didn’t respond. Rettler remembers that after a while he became quiet and detached, and seemed to stop listening. Then he got up, left without a word, and never spoke to Rettler again.
Rather denies he was afraid of going to trial and maintains that his decision to leave HIU was motivated by a desire to return to his previous work in “firearms trafficking on a full-time basis and on the practical impossibility of my continuing to prosecute the Wild Cowboys case with Walter Arsenault as the unit chief.”
A day or two later Ryan reassigned Rather as chief of newly created Firearms Trafficking Unit, a program that targets the city’s gun sellers, much as HIU targets violent drug gangs. Then she called Arsenault down to her office and told him the case was now his. She recalls that the meeting was perfunctory. Arsenault told her that he couldn’t do the case himself but the unit could handle it; and then they discussed candidates to replace Rather, deciding on Dan Brownell.
Arsenault was shocked when Ryan told him Rather was quitting the case. Whatever Rather’s and Arsenault’s differences, however poorly they got on, the case was the important thing; not seeing it through, short of leaving the office, was an unpardonable sin in Arsenault’s view. Moreover, it created a huge headache at the unit. Camacho was bogged down in several investigations, and Arsenault couldn’t handle the case and continue to act as supervisor to HIU. True, Brownell was a highly regarded litigator; but he was then in Africa on vacation, and even if he agreed to take the case on his return, it would take him months just to get up to speed. “Oh no, you wanted [this case],” Arsenault says he told Ryan. “Now it’s yours.”
But even as he said it, Arsenault knew he was just venting. HIU had too much invested in the case to give it up now. Anything short of a resounding triumph would jeopardize the survival of the unit, and at this stage even a victory might not repair the damage to Arsenault’s career.
BACK ON TRACK
FALL 1993
TALL AND LANKY with broad shoulders, jet-black hair, and finely chiseled features—co-workers compared him to the young Gregory Peck—36-year-old Dan Brownell had a knack for making things look easy. A star runner at Syracuse, he had a long, loping stride so smooth and unhurried that you thought he wasn’t really trying or going very fast, until you checked his results. He once clocked a 4:11 mile indoors, and he was still improving when he ruptured his Achilles tendon in his sophomore year. The injury cut short his running career. But years later colleagues, watching him in the courtroom, noted the same poised, effortless style that marked him as an athlete. “He has this relaxed, conversational way with witnesses and juries, as if he were talking to them in his living room,” Luke Rettler said. “But he’s so methodical; underneath he’s making his points boom-boom-boom, bringing in the facts always at just the right time. And yet if you’re not paying close attention to what he’s doing, it sounds like he’s making it up as he goes along.”
Nothing, according to Rettler, could have been less true. Brownell was a tireless worker who prepared rigorously for every court appearance and rarely slept on the eve of a trial. But he affected a bemused detachment that seemed to shield him from the sweat and squabble of everyday lawyering, and he had a deft touch and quick dry wit that enabled him to carve up witnesses or tweak a fellow jurist without causing offense. Arsenault recalls a time when Leslie Crocker Snyder, the formidable, and sometimes lecture-prone, Special Narcotics judge who presided over HIU’s cases, was hectoring Brownell during a routine hearing. “Let the record reflect that being in this court is like trying a case in front of my mother-in-law,” Brownell announced. Then while anxious colleagues waited for Snyder’s reaction, Brownell asked the stenographer to read back his statement; he wanted to send a copy to the Appellate Division, he said. Snyder just laughed.
“No one else could have gotten away with that,” Arsenault said. “Nobody else would have tried.”
Brownell’s pe
ople skills, as much as his courtroom expertise, made him the ideal replacement for Rather. Throughout the fall and winter, his steady, congenial presence served as anchor and magnet for the disparate, and at times headstrong, personalities involved in the case. Quinn, Hill, and Grifa—all of whom had been operating on a need-to-know basis during the last months with Rather—now felt as though they were back in the loop. “He was an incredible consensus builder,” Grifa recalls. “He built a bridge to HIDTA, got the detectives in the squad working together, made sure Don and I were part of every decision, and kept Walter involved in the process, which was maybe the best thing he did. Walter was just this great resource. He’d done dozens of these investigations and he had all this experience, which none of the rest of us had; but we’d been afraid to go to him before because there was a sense that somehow we were being disloyal [to Rather] if we did.”
Arsenault and Brownell made an odd team. Standing next to each other, they were a study in contrasts—one lean, angular, and polished; the other compact, rumpled, and combative. But their different styles complemented one another, especially when dealing with people outside the unit. Brownell projected a calmness and an affability that worked as a perfect foil to Arsenault’s prickly intelligence. He was accessible, where Arsenault was reclusive; politic, where his boss was blunt. And if at times Brownell seemed a little facile, too cool or impersonal in his approach to the case, Arsenault added grit and a spark of passion.
Gangbusters: How a Street-Tough Elite Homicide Unit Took Down New York’s Most Dangerous Gang Page 24
