by Philip Meyer
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.”3 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.”4 Donovan redefines Failla’s character. Character “is not a bundle of autonomous traits but an organized conception” constructed from “scraps and clues.”5 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,6 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.
II. Annotated Excerpts from Jeremiah Donovan’s Closing Argument on Behalf of Louis Failla
A. “The Hook”: Where the Character Louis “Louie” Failla Is Cast Onstage
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.7
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, setti
ng 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.8
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.9
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 [sic] Louie Failla’s defense.10
Donovan acknowledges that “Failla has committed some crimes.”11 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.12 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.”13
B. Who Is Louis Failla? A Story within a Story Depicting Failla’s Character
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.”14 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.15
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.”16 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.”17 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.
C. Excerpts from the “The Setup” and “The Confrontation”: Trouble Breaks the Steady State and the Villain Is Cast Onstage
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.18
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’.”19 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.”20
