Storytelling for Lawyers

by Philip Meyer

  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”:21

  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.22

  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.23

  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.24

  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.”25 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.27

  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.”28

  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.”30

  D. Excerpts from the Climax and Resolution: Where Failla’s Loyalty Is Tested and He Is Compelled to Make a Crucial Decision Redefining His “Character”

  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 Fail
la’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.

  E. Character in Dialogue and Action

  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 sp
ill 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: