Witness for the Prosecution

Witness for the ProsecutionAuthor(s): Frank OliverSource: Litigation, Vol. 10, No. 4 (Summer 1984), pp. 10-17, 69Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29758900 .

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Witness for the Prosecution

by Frank Oliver In August 1983, Frank Oliver of the Chicago bar defended a client against a federal prosecution that hinged on the testimony of one criminal informant. The defense centered on one question: Could the jury believe the testimony of a paid government informant who wasaself acknowledged murderer, arsonist, and thief?

Oliver's client, Anthony Giacomino, was accused of mail

fraud and conspiracy in connection with the bombing of a

discotheque called Bump City. The informant, a 44-year-old Chicagoan named Frank Cullotta, had made a career of petty and brutal crime and had been arrested in Las Vegas for steal?

ing a washing machine and a toaster. He appeared as a

government witness. The following are excerpts from the opening, cross examina?

tion, and closing argument by Mr. Oliver. Mark S. Prosper! and John L. Burley were the lawyers for the government.

Opening Statement Oliver: Members of the jury: What I want to do is.. .to im?

part to you a kind of point of view from which you can look at this case and evaluate the witnesses in the case.

Now, it appears to me from what Pm able to learn about this case that the testimony against Mr. Giacomino, whom I represent, is probably pretty much boiled to the statements

made by this man whom Mr. Volpe has described to you as a human being, a description that I would personally reject because Pm a human being and I don't want to believe that this creature is the same species as I am. What the evidence is going to portray about this man is evil.

Now most of you have not had the kind of exposure to certain features of this world that will give you a ready sense of evil. But you are all, each and every one of you, laden with some kind of a religious commitment, and that is what you must use to evaluate the evil that you are going to encounter. . .

He is going to tell you that he has done everything from

stealing hubcaps to stealing a lady's washing machine and I guess her electric toaster. He is a sometime part-time pimp.

He's a petty dope seller. He portrays himself as a master criminal.

This argument and cross-examination is adapted from an article that

appeared in The Chicago Lawyer in October 1983.

Now, why any human being who is a human being would want to do that is beyond me. And let me add this: He's go? ing to testify that he has committed all kinds of crimes, and I don't even believe him and won't believe him as to his own

criminality. You just won't be able to tell when you can believe him and when you can't because he is a self-described sink of immorality, dishonesty, disloyalty, malevolence, jealousy. Name any sin. He will agree that he has committed it. Think of any trait of character that is bad. He will concede that he has it.

Now, the government has a problem in this witness. Somehow they have got to come before you later in this case and say to you jurors, "You can reach down into this slimy cesspool of evil and pick something pure out of it that we call the truth, something so pure that you can find another man guilty based upon his truth, guilty beyond a reasonable doubt." I don't think they are going to be able to do it. Proof

beyond a reasonable doubt is the kind of proof that would overcome any tendency on the part of prudent people. Prosperi: I object, your Honor. The Court: Yes, objection sustained. Ladies and gentlemen, the court will instruct the jury on the law at the proper time.

Oliver: I was about to speak about law, and I really mustn't. That is the judge's job, thank God, and not mine.

Nevertheless, I am entitled to say that they must prove guilt beyond a reasonable doubt, and I will urge throughout and at the conclusion of these proceedings that you folks cannot as decent and conscientious people determine something beyond a reasonable doubt from a source as polluted as this man who will be testifying. Prosperi: I object to the argument, Judge. The Court: Yes, that is more properly closing argument than an opening statement, Mr. Oliver.

Oliver: I am going to sit down before I get in trouble here.

Cross-Examination

The cross-examination was preceded by the government's direct examination in which Cullotta claimed to have com? mitted or participated in four orfive murders, roughly a half dozen arsons and bombings, 300or400 burglaries, and about 200armed robberies: In committing one murder, the witness had hunted his victim through a house ? employing 12 bullets, which required reloading a pistol, in what appeared

10



^^^^

to have been slow butchery. Oliver developed these and other details in examining other witnesses preceding the cross examination.

Q: The first thing that happened to you when you came to this courtroom, this trial, was to have an oath ad?

ministered to you. That is right, isn't it? A: Yes, sir.

Q: His Honor put his hand up and you put up your hand, is that right?

A: That's correct.

Q: And his Honor asked you if you would tell the truth, the whole truth, and nothing but the truth, so help you

God. Correct? A: That's correct.

Q: And you understood from that oath that you were

swearing to tell the truth not only so far as the court was concerned, but that you were swearing unto your God to speak truthfully. You understood that, didn't

you? A: That's correct.

Q: Now, this same God unto whom you have sworn to tell the truth is the very God whose laws and command?

ments you have violated repeatedly over the course of your entire lifetime. Is that right?

Prosperi: Objection, your Honor, to getting into his

religious aspects here.

Q: He is the one that swore to God. The Court: Overruled. He may answer. You may answer.

A: To tell the truth in this courtroom.

Q: You swore to your God to tell the truth. A: That's correct.

Q: And that is the same God whose laws and command? ments you have violated from the time you were a lit? tle boy. That's true, isn't it?

A: I'm telling the truth in this courtroom and in any other courtroom I testify in.

Q: You swear to God. A: I swear to God. That's what I've done.

Q: You know that God tells us, Thou shalt not 1011," don't

you? A: Yes, sir.

Q: And you have borne false witness against your neighbor, haven't you?

A: No, sir. Q: You never bore false witness against, for example, this

boy Mastro? [Cullotta had sought to have Mastro convicted of murder to shield Cullotta's partner in crime from the accusation.]

A: Yes, sir.

Q: So you violated that commandment of God, didn't

you? A: Yes, sir.

Q: When you took that oath before this jury, you intend? ed that the jury should believe that the oath had the same seriousness to you that it would to a human be?

ing. Isn't that right? A: Yes, sir. Q: You intended they should understand your oath to have

the same deep significance to you that their oaths, to

judge your words honestly and fairly, should have to them. That is true, isn't it?

A: Yes. Q: So that so far as the oath that you have taken is con?

cerned, you put yourself on a pedestal with these jurors who have taken an oath, isn't that true?

A: I guess. I don't know if it's the same pedestal. Q: Your recitation entails an admission that you have com?

mitted crime after crime after crime of all descriptions, isn't that right?

A: Yes, sir.

Q: Do you have any idea how many kinds of crimes you have committed?

A: No, sir.

Q: Do you know of any crime whatever that a man could commit that is beneath you morally?

A: I don't know.

Q: There isn't one, is there? A: I don't know.

Q: You cannot think of a crime that would be below you, can you?

A: I imagine there is, but I don't know.

Q: You have never heard of it. Right? A: I don't know.

Q: And that is because you will commit any crime, isn't that true?

A: I don't know about that.

Q: Do you think there might be some crime you might not commit?

A: It's possible. Q: Some time ago, someone acting on your behalf worked

out some kind of a deal whereby you would go unwhip ped of justice in exchange for testimony. Isn't that

right? A: I don't know about going unwhipped. I received time.

Q: You got time? A: Yes, sir.

Q: How much time is that? Eight years? A: And five years' probation. Q: And five years' probation? A: That's correct.

Q: In serving that time thus far, you have spent mighty little of it behind bars in a cage. Isn't that true?

A: That's not true.

11



Q: You have spent some of it behind bars in a cage. Right? A: It's a jail.

Oliver: And you expect to get out or go before the Parole Board when? In 20 months or something like that?

A: I believe 25 or 26 months.

Q: At that time, you expect a grateful government acting through its agents and prosecutors to commend your services to the sympathy of the parole board. Isn't that

right? A: Yes, sir.

Q: So that you will be discharged from the rigors of

punishment? A: Yes, sir.

Q: So that you will be restored to the company of the

citizenry to go about your business. Is that right? A: Yes, sir.

Q: And it is your understanding that the government will

supply you with a new identity. Is that right? A: Yes, sir.

Q: The purpose of supplying you with that new identity is so that people won't know who you are. Right?

A: That's correct.

Q: The understanding that you have is, is it not, that you will take that identity and go to a place where you are not now known. Correct?

A: That's correct.

Q: A place where your reputation is not known. Is that

right? A: Yes, sir.

Q: So that the government proposes to assist you in set?

tling down in a community of decent citizens who have no knowledge of what you were and what you are. Is that right?

A: Yes, sir.

Q: So that out there some place, some small town, some little city, sits a group of honest, decent, law-abiding, hard-working, dedicated, peaceable citizens who will

suddenly find you as part of their community. Right? A: That's correct.

Q: At which time, what you are and who you are will be concealed from them. Right?

A: Yes, sir.

Q: So that you will then be free to prey upon them com?

mitting every kind of criminal depredation that occurs to you against an innocent and unwarned communi?

ty. That's what they have in mind for you, isn't it? A: No, sir.

Q: Well, the reason you say "No, sir," is because you have

reformed, haven't you? A: That's correct.

Q: Together with the deal that was concocted by unwise and probably too youthful men in your behalf, at that

time, you experienced some sort of spiritual rejuvena? tion. Is that right?

A: Rejuvenation. I don't know about spiritual. Q: Well, spiritual awakening whence you came to perceive

the difference between good and evil. Is that what

you're telling us? A: Yes.

Q: So that whatever happened the day before, you were

crawling evil, and then with this awakening, became a paragon of decency. Is that it?

A: Yes.

Q: That must have struck you as a remarkable day in your life, didn't it?

A: Yes. Q: Did a light flood your soul? A: No.

Q: You laugh? A: Yes.

Q: You laugh because what I say is amusing, isn't it? A: Yes.

Q: Because you cannot perceive of such a thing as a light of decency, isn't that right?

A: I can see decency, but I don't know about no light strik?

ing me or anything like that.

Q: You can see decency? A: That's correct.

Q: Well, let's see. You said that there might be some crimes that you would not commit. Right?

A: That's correct.

Q: Rape is not one of those crimes that you would not

commit, is it? A: I don't ever remember doing it.

Q: You don't remember whether you committed a rape or not?

A: That's correct.

Q: Is it something that just kind of could have happened and slipped out of your mind?

A: I never raped nobody, if that makes you happy. 'Q: What causes you to suppose that anything you could

possibly say would make me happy? A: I have no idea.

Q: Let's talk about the Widow Polito. She was a woman of unsound mind, wasn't she, and you so testified, didn't you?

A: She was a little off, yes. Q: A little off. Right? A: That's correct.

Q: She was crazy, wasn't she? A: A little bit.

Q: A little bit crazy. And her deceased husband, Philly Polito, was a man that you claimed was your friend.

Right? A: Yes, sir.

Prosperi: Objection to this line of questioning, I just don't think it is relevant.

12



The Court: The objection is overruled. You may proceed. Q: And before your friend's body was lowered into his

grave, you carnally knew and violated his widow, isn't that true?

A: No, sir.

Q: After his body was lowered into his grave? A: Yes, sir, but not violated.

Q: Did you not have carnal connection with the Widow Polito?

A: I had sex with her, if that is what you are referring to, yes.

Q: This crazy woman? A: A little off, yes. Q: Who was incapable of giving you consent, isn't that

right? A: No, that's ridiculous.

Q: Now, your vile sexual lusts weren't confined to such as the poor, mentally insecure Widow Polito, were

they? A: My vile trust, is that what you said?

Q: Lusts. A: Lusts. That confuses me, that question. Q: Well, you were in the Illinois State Penitentiary, weren't

you? A: That's correct.

Q: And you were there for some time, weren't you? A: Yes, sir.

Q: And during that period of time, you had men around you. Correct?

A: That's correct.

Q: And one of those men was an innocent young man by the name of Linderman. Isn't that right?

A: I don't even know who he is.

Q: Well, perhaps you forgot. Did you not commit a violent homosexual assault upon the body of a young man by the name of Linderman while you were incarcerated in the Illinois State Penitentiary?

A: No, sir. * * *

Q: Some time back in February of this year in proceedings in this building, you testified, did you not, that one of your lines of criminal activity took the form of muscl?

ing joints. Is that true? A: Yes, sir.

Q: And when asked by the prosecution what you meant

by "muscling joints," you explained that it was obtain?

ing money from joints in order that they should be per? mitted to stay open. Right?

A: Yes.

Q: And the joint that you named as the one j oint that you muscled was the place known as The Bitter End. Right?

A: Yes.

Q: At that time, you said nothing about having been

engaged in blowing up The Bitter End, did you? A: No, sir. I don't recall. I don't believe I did.

Q: Well, you do recall being told then or taking an oath then to tell the truth, the whole truth, and nothing but the truth. Isn't that right?

A: Yes, sir.

Q: And if you didn't tell about The Bitter End being blown up by you at that time, you failed to tell the whole truth.

Right?

A: I don't know if I was asked it. I don't recall.

Q: Well, you don't have to be asked to tell the whole truth, do you?

A: If I'm asked a question, I will tell it. If I'm not asked, I can't volunteer.

Q: You will keep it a secret, won't you? Well, when you came in here and testified about this thing, you claimed, did you not, that your activities with respect to The Bitter End consisted of blowing it up with Mike Swiatek. Right?

A: That's correct.

Q: And you said that Mike Swiatek came to you and said he wanted to blow up The Bitter End. Right?

A: That's correct.

Q: The reason he wanted to blow up The Bitter End had to do with his girlfriend. Right?

A: That's correct.

Q: His girlfriend that worked there? A: Correct.

Q: What was her name? A: Lucy Cantalupo. Q: Lucy Cantalupo? A: That's correct.

Q: Mike Swiatek wanted Lucy Cantalupo to give up her

job at The Bitter End. Right? A: That's correct.

Q: That is what you testified to. Right? A: Yes, sir.

Q: And she refused? A: That's correct.

* * *

Q: And your story is that, because Swiatek's girlfriend wouldn't give up her job and because her bosses wouldn't fire her because she was doing a good job, that Swiatek blew the place a mile into the air. Right?

A: Correct.

Q: And came to you before he did so. True? A: He came to me.

Q: Right. A: Yes.

Q: And he told you that he planned to blow it up? Right? A: He wanted to, yes. Q: And that made perfectly good sense to you, didn't it? A: Yes, sir.

Q: And you thought it was perfectly sensible. The man's

girlfriend wouldn't quit her job and her employers wouldn't fire her because she was doing a good job, so you thought it made perfectly good sense to blow the place up. Right?

A: Right. Q: Back to you. It struck you as being a perfectly sane,

plausible, realistic way of going about solving a prob? lem, right?

A: That was his way, yes. Q: And your way? A: Yes.

Q: And as you look at it now, it seems to have been a

perfectly sound judgment on your part, doesn't it? A: Yes.

Q: The very kind of sound judgment that we can expect from you when we greet you as a fellow citizen courtesy of the prosecution. Right?

A: I guess.

13



Q: Yes. And these men are going to write letters on your behalf?

A: Yes, sir.

Q: Do you know if they have told the victims of any of your crimes that they have given you immunity and are going to write letters on your behalf? Do you sup? pose they have told any of the victims that?

A: I have no idea.

Q: What do you think the victims would say? Prosperi: Objection, Judge. The Court: Objection sustained.

Q: Well, you claim to have seen the light. I suppose that you regret all of those terrible things that you have done. Right?

A: Yes, sir.

Q: You have a sense of shame about them? A: Yes, sir.

Q: Remorse. True? A: That's correct.

Q: Contrition. Right? A: Yes, sir.

Q: Have you ever told that to anyone? A: I may have. I don't recall.

Q: Well, you testified yesterday to having hunted a man down in his own house with a pistol. Right?

A: That's correct.

Q: The man was the father of a little boy? A: That's correct.

Q: A wife? A: That's correct.

Q: You hunted him down while he begged for his life? A: That's correct.

Q: He implored you not take his life away from him? A: Yes, sir.

Q: You showed him no remorse and no pity, did you? A: No, sir.

Q: But now, you are contrite and remorseful. Correct? A: That's correct.

Q: Well, have you expressed that to the widow, or have you done anything for this little child that your criminality has orphaned?

A: I can't see her.

Q: How about the other victims of your atrocities? Have you sought forgiveness of any of them?

A: Yes, sir.

Q: Name them. A: Name the victims?

Q: Yes, from whom you have sought forgiveness. A: I can't reach out and talk to anybody. I can name the

victims that I feel bad for: McCarthy's wife. Q: McCarthy's wife, you feel bad for. That was the

McCarthy... let's see, that McCarthy, yeah. McCar? thy. He was a thief, wasn't he?

A: That's correct.

Q: And you would go out and steal with McCarthy from time to time, wouldn't you?

A: That's correct.

Q: The reason that you set him up was to really separate yourself as much as possible in the minds of resentful people. Isn't that right?

A: I don't believe that's correct.

Q: He was a torturer, wasn't he?

A: A torturer?

Q: Yes, that's the same William McCarthy who would pull a man's teeth out one by one while getting the com? bination to the safe, or throw a bucket of gasoline over a man's child and wave a match and threaten to light the child unless he came up with his money. Isn't that

right? That is that McCarthy, isn't it? A: That's news to me. I don't know.

Q: You don't know about that? A: No, sir.

Q: In any event, this was the man whom you regarded as

your friend. Right? A; Yes.

* * *

Q: We were discussing one William McCarthy whose

slaughter you arranged. Do you recall that? A: Yes, sir.

Q: You claimed to have been his friend. Correct? A: Yes, sir.

Q: And so far as you knew he thought of you as a friend.

Right? A: That's correct.

Q: And so you telephoned him, didn't you? A: Yes, sir.

Q: And spoke to him as a friend. Correct? A: That's correct.

Q: And he spoke to you as a friend. Right? A: That's correct.

Q: And as his friend you sought to arrange for his ap? pearance at a certain time and at a certain place. That's true, isn't it?

A: That's correct.

Q: And portraying yourself to him as his friend, you en?

couraged him to go there at that time. That is true, isn't it?

A: That's true.

Q: At the time that you did that you had in your mind a secret motive. Isn't that right?

A: No, sir.

Q: Well, you knew that when he met that appointment he was meeting an appointment with death, didn't you?

A: I wasn't sure.

Q: But you reassured him that everything was all right, didn't you?

A: Yes, sir. * * *

Q: So that what you did in arranging for his presence at that time and place was to betray your friend. Is that

right? A: Yes, sir.

Q: You were a latter-day Judas Iscariot to your friend. Is that right?

A: I guess so.

Q: Have you ever asked a Power that is greater than yourself for forgiveness?

A: Yes.

Q: You have fallen on your knees and said, "My God, my God, why dost Thou look so fierce upon me?"

A: Not like that, Mr. Oliver. (Laughter.) Q: You have never fallen on your knees and prayed for

forgiveness, have you? Prosperi: Objection, Judge.

14



The Court: Objection sustained.

Q: Have you ever done anything in your entire life that we could regard as decent and humane and honest and honorable and good and caring?

A: I probably have.

Q: But you can't think of any such event, can you? A* If I had the time, I probably could.

Q: Can you think of anything about your character as we now have come to know it that can cause us as decent human beings to believe one word out of your mouth?

A: I don't see why they shouldn't believe me.

Q: Why should we believe you? A: I have no reason to lie. I could only be charged with

perjury. Q: You have no reason to lie? A: That's correct.

Q: Well, how about this for a reason for lying? As long as you sit on a witness stand and swear to tell the truth, you can say anything whatever, and the government will take care of you. How's that for a reason for lying?

A: It's ridiculous.

Q: That's ridiculous? A: That certainly is.

Q: Since you have been a federal witness, the pride of the United States Government, isn't it true that you tried to get another prisoner to falsify an accusation against a man by the name of Newman with a suggestion to that other prisoner that, "You could make lots of money from the federal government by accusing him falsely?"

A: That's a lie. * * *

Q: Now, I asked you if you had been given a psychological test after you became a government witness, or agreed to become one.

A: No, sir.

Q: So that for all we know, you may be the kind of human

being, if you are a human being, that is called a

psychopath, which is a man totally incapable of tell?

ing the truth. Is that right? A: I don't know that.

Q: And as far as you know, the Government has made no effort of any kind to make that determination. Is that right?

Prosper/: Asked and answered, Judge. The Court: Sustained. Oliver: Well, I think I'm about now boring everybody,

Judge. If you will give me just a couple of minutes to confer.

The Court: Two minutes? By all means. Oliver: They have threatened to never speak to me again

if I continue, your Honor. (Laughter.) The Court: Thank you, Mr. Oliver.

Closing Argument I am here to warn you. I didn't know when I came into

this case that that thankless task would fall upon me. And I know what happens to those whose mission it becomes to sound a warning.

Folks say I'm old-fashioned. All right, I'll be very old fashioned today. I'm going to be 3,000 years old and tell you first about Cassandra, whose mission it was to warn, and what her fate was. She promised to bed the god Apollo if he would give her the power of prophecy, which he did, and

then she spurned his further advances. So the god Apollo spit into her mouth; and while she retained the gift of proph? ecy, no one believed her. And the city of Troy was destroyed just about 3,000 years ago.

Nevertheless, I will accept, more or less unwillingly, this kind of mission, because I think you ought to be warned.

When we started this case, I knew something about this fellow Cullotta, and I have been reluctant even to say his name because I have been trying to build in my own mind some notion of what "that" is we are looking at. And I insist we are not looking at a person. We aren't looking at a "him."

We are looking at some kind of a "thing," some sort of ugly, distasteful thing. It is not enough to call him names. I shan't

Older people have a very different

comprehension of evil than younger people do.

bother to call him names. To call him names truly, I think, misses the point.

Now, somehow or other, I want you to perceive what I mean when I say what we have perceived before us is a per? sonification, an apotheosis, of evil. That was evil. That was unadulterated evil that you saw there.

How I wish you were all 90 years old. I'm glad that there is one greybeard in your panel. Older people have a very dif? ferent comprehension of evil from that accorded to younger people. Possibly it's that premonition that life isn't going to

go on forever, a tendency to look back on one's life and to consider what was good and what was evil and what was the nature of evil. Old folks do have a better perception of it.

You see, I'm not talking about something that is just bad. We've all been bad; we've all done things that we wish we hadn't done. I don't care who it is in the courtroom. Let us take his Honor, Judge Bua, as the paragon of virtue. I'm

willing to do that unquestioningly. The Court: You're too kind, Mr. Oliver. You're much too kind. (Laughter.) Oliver: Pardon? The Court: I say you're much too kind. (Laughter.) Oliver: Well, hang on a minute. (Laughter.)

Even a man of such stature, if brought to it, will think of something in the quiet of his chamber that can cause his cheeks to flame with regret at something he has done at some time in the past. It's true. You, and you, and you, and you, and I, a thousand times over. I make no pretense of superior virtue. We've all been bad. But we are not evil. There is

something in us that is susceptible to some kind of

redemption. When you were being qualified as jurors, I was anxious

that we have people that have some sort of religous com?

prehension on this jury, and my reason was this: I'm not a

minister; I'm not what you would call a religious man. I'm

deeply respectful of religion, but I'm not out there dropping money in the plate every Sunday and getting to the confes? sional, although that would not be appropriate for me

15



anyway. That isn't the church to which I belong, I am none of those things, and I expect most of you are not.

But the fact that we have had that religious training at least assures us that, when we speak of evil, we are speaking of

something as to which we have some common ground for discussion. When the violin repeats what the piano has just said, the sounds will be different. The chords won't be the

same, but we will recognize the logic of the two events and observe the similarity such that we can say, "They are the same music."

What language, what experience in human history, is available to us to examine into the nature of evil? Science doesn't help us. Science deals with what we can weigh, what we can measure. We can't weigh evil. We can't measure evil.

Is there something that can tell us about evil? Yes, there is if we will look at it. If we look at certain ancient literature

You cannot use evil to achieve anything good.

No, not even if you are a federal prosecutor.

that used to discuss such things as evil, we can start to get some comprehension of that.

For the last week I have been sitting over there, mostly reading morality plays from the fifteenth century, looking again at Dante's Inferno

? that was written in about 1320, something like that ? because those men were deeply in? terested in this subject. They had a profound comprehen? sion of what evil is, and what it is all about, and what we can do with it, and what we must not do with it. One thing we must not do with it is to use it.

You cannot use evil to achieve anything good. No, not even if you are a federal prosecutor. Doctor Faustus tried that.

He made his compact with Lucifer, or Satan, through Satan's

agent, Mephistopheles, just as the government represented by young men such as these young men here have made a

compact with evil. They think they can employ evil to do

something good. I tell you you may not touch evil. To touch evil is to become evil. To use evil is to be evil.

[Facing the prosecutors:] Young men, I implore you to con? sider the profound wisdom of the words of Alexander Pope, when he said to such as you and me:

Vice is a monster of such hideous mien, As to be hated needs but to be seen; Yet seen too oft, familiar with her face, We first endure, then pity,

then embrace.

It is precisely what has taken place here. These young government agents have looked upon the face of evil. It has

disgusted them. They could barely endure it. They com? menced to pity it. And they ended up embracing it by enter?

ing into a compact with a manslayer, a burner, a rapist, a

drug seller. They are going to enter into a compact with pure evil, and they expect to accomplish something good with it. No. [To a juror:] Grandfather, tell these people that cannot be done. That is impossible.

I even looked to see if I couldn't find a description some

place that would perhaps awaken something in you so that you can realize the foulness of what you are asked to weigh. You are asked to weigh evil. How can you weigh evil? How can you touch evil? You are asked to weigh something that

emerged from evil. Evil doesn't have weight. You must ig? nore it. There are only two ways to deal with evil, by the way. And your older people on your jury will tell you this. You must either fight it or stay totally away from it. You can't handle it and deal with it. It's as though you made a com?

pact with evil yourselves. Now, I'm not a superstitious man. I'm not talking about

demons flying around here and there. But when the ancients

spoke of demons and evil spirits, they had in mind such things as we might as well say invaded the body of this ? possibly

?

former man. I can't admit that he's human. I'm human. I will not accept the proposition that anything like that can be of my species. It is unacceptable to me.

Let's see if we have anything of description that will help. Here's poor Dante. He wants to enter Hell in the company of the poet Virgil, and he can do so, I guess, with a grant of immunity. Guarding the portals of Hell is this She-Wolf of Incontinence. Let's get a description of this monster:

And down his track, a She-Wolf drove

upon me, a starved horror

ravening and wasted

beyond all belief. She seemed a rack for avarice, gaunt

and craving. Oh many the souls she has brought to

endless grief! And then the poet Virgil tries to describe her a little better for the traveler, and says:

That mad beast that flees before

you there, suffers no man to pass. She tracks down all, kills all, and

knows no glut, but, feeding, she

grows hungrier than she was. She mates with any beast, and will

mate with more.

It is that kind of foul object that the government has brought before you with the hope and expectation that you will ac?

cept anything from that source. I tell you if he tells me he committed a crime, I don't even believe that, because he is

likely to say that he committed any crime if he can say somebody else committed it with him. And so, here, govern?

ment, is another fresh head.

You know, he can get on the stand all day long and talk about his rehabilitation and his moral rejuvenation, but I don't see any of it and neither do you. What you see is a man who is shameless, totally lacking in remorse. He has no grief for the grief he has caused. He does no penance and expects to do no atonement. Has he sought absolution from the vic? tims of his offenses? He has bragged about them.

The government ? this is so appalling

? the government literally has forgiven conduct that the ancients, who thought a great deal about evil, claim that God Himself will not

forgive. Do you remember that ghastly scene? Here is a man in his own house being hunted like an animal through this house by this thing with a pistol in his paw. By the way, can

you imagine meeting him and letting him shake your hand

16



even? But he is chasing him through the house with his pistol, and the man is begging for mercy. That was the testimony. He begged for mercy. He begged for his life.

There is one lost soul that God will not redeem, according to the ancients. It is him who is without pity. It is him who is without mercy. When I asked him,

"Did you have pity?" "None."

"Did he beg you for mercy?" "Yes."

"Did you show him mercy?" "No."

In Everyman, God sends his messengers out. His messenger is Death, and Death goes to Everyman, and tells him that he must appear before the Throne of the Great Lord, Adonai, and there make his accounting for his life. Everyman visits his friend Good Fellowship, his Kindred, his Goods.

They all say, "No." "Whether ye have loved me or no, by Saint John, I will

not go."

They won't accompany him to his death. Yet he has got to appear before his Maker, and he has got to give his

accounting.

And, finally, he learns that all he is able to take that means

anything are his Good Deeds, of which he has, as most of us have, all too few.

This man, if he is a man, could not think ? and I asked him, "Can you tell us one decent, honorable, caring, humane, good thing you have done in your entire lifetime?" ? and he thought he might be able to, if I gave him time enough. Just as, "Can you think of any act, any crime, that is morally beneath you?" Well, he was sure he could think of one of those, given enough time.

This is what the government asks you to believe, this man without pity, without mercy. We learn from Everyman of the condemnation of such a one who lacks pity or mercy, because as the author says when he appears before the Throne:

God Almighty saith: Ite maledicti in ignem eternum.

Depart ye accursed to everlasting flame.

This pitiless, this merciless, unregenerate man is what the government wants you to believe. That is what they have forgiven, the very creature that the ancients tell us God Almighty cannot forgive.

Now, I warn you. One fine day, young men such as these and these among them will be writing letters to parole boards:

Dear Parole Board: We have known Frank Cullotta for three years. We

find him of good moral character, whatever he has been. He has been of great value to the Government, and we commend him to your merciful hands.

Yours truly, The Prosecutor

I hope, when these young men sign such letters, they will realize they are signing the death warrant of some innocent person. He is a manslayer. He will slay again. They are send? ing him out there without anything from which anyone can be warned of the desperate nature of his character.

* * *

This manslayer is going to be placed out in some honest,

decent, law abiding, hard-working community, among peo? ple like yourselves, and he will slay again. He has robbed, and he will rob again. He has burned, and he will burn again. And when he does, I'll tell you what will happen, because these folks when they entered into a compact with evil took on a much longer contract than they thought they were go? ing to take on. Because the first time he gets accused of a crime, he's going to be on the telephone to some federal agent, saying, "You'd better come and help me." And the federal agent will say, "Why should we come and help you?" And the answer will be, "Well, if you don't come and help me, I'm going to start telling everybody that I lied in every one of the cases in which I was a witness, and that you told me to do it." And he is going to extort further protection from

men such as this.

[To the prosecutors:] Oh, please, don't let this happen to you. Don't you know that when you sow the wind, you reap the whirlwind?

I'm sorry that I have this sad commitment. I think I wouldn't have it if our law were as civilized as it was 200 years ago, but we have gotten all so smart in our modern think? ing. We are just so much smarter than anyone that lived before us. Why, it's just a pity that those men back there couldn't have been as bright as we are. I mean, after all, we have television and all the advantages of a modern education.

Let me tell you something. Newton, the great Sir Isaac Newton, said, when he was commended for his tremendous scientific work, "I stood on the shoulders of giants."

Ladies and gentlemen, civilization today did not make itself in the last 20 minutes, or just since you were born, or since you both [to the prosecutors] were graduated from law

Here is a man in his own house being hunted like an animal by this thing with a pistol in his paw.

school. We are standing on the shoulders of our ancestors, and we are in many cases standing upon the shoulders of giants.

Now, I may not argue law. But I may argue history. Arid let me tell you what the history of witnesses such as this has

been.

The Court: You have four minutes left, Mr. Oliver.

Q: Well, it won't be much of a history lesson, will it? (Laughter.)

On the subject of witnesses, that last of our legal sages, Sir William Blackstone, had the following to say of a slight? ly older legal sage:

Sir Matthew Hale observes that more mischief hath arisen to good men by these kinds of approvements upon false and malicious accusations of desperate villains than benefit to the public by the discovery and conviction of real offenders. And, therefore, in the times when such appeals were more frequently

(Please turn to page 69)

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full effect to the open meetings provi? sion act.

Other states have not been as

rigorous in their adherence to the sun? shine acts and less willing to impose sanctions. In Puka v. Greco, 119

Misc. 2d 696, 464 N.Y.S.2d 349 (N.Y. Sup. Ct. 1983), the court held that an unintentional failure to comply with the notice provisions should not be grounds for invalidating the action of a public body and went on to say:

Every violation of the open meetings law does not therefore

automatically trigger enforce? ment sanctions.

In St. Cloud Newspapers, Inc. v. District 742 Community Schools, 332 N.W. 2d 1 (Minn. 1983), the Supreme Court of Minnesota held that meetings to provide school board members with information were still "meetings" within the Minnesota open meetings law.

Compliance was required. Information received at such meetings could

foreseeably influence later decisions of the school board. But, the court also held that good faith is no defense to the statute, but a court could properly con? sider it in defining the penalty. The fact that the action of the governmental of? ficials was taken in good faith clearly mitigated the remedy.

In Carefree Improvement Associa? tion v. CityofScottsdale, 133 Ariz. 106, 649 P.2d 985 (Ariz. Ct. App. 1982), the Court of Appeals of Arizona held that failure to comply with the sunshine law

required invalidation of an ordinance that sought the annexation of a

neighboring corporate entity. The court said it first had to determine that there had been "substantial compliance with the open meeting law," which implies that substantial compliance would be an

exception to the sunshine act. The Supreme Court of Idaho was

faced with the same issue in State v. City ofHailey, 102 Idaho 511, 633 P.2d 576

(1981). Chief Justice Bakes wrote that the sunshine law applied only to

meetings at which final action had been taken. The court decided that four

"workshop sessions," which led to the eventual action of the governmental body, were not covered. In a sharp dis? sent, Justice Bistline pointed out that the decision to provide citizens with access "to the deliberative processes" required that the sunshine act apply to each

meeting of the governmental body, not

just to those of final decision. The New Jersey appellate courts re

examined the sunshine law. In Precision Industrial Design Company v.

Beckwith, 185 N.J. Super. 9, 447A.2d 186 (N.J. Super. Ct. App. Div. 1982), the court had to deal with whether ac? tion taken by a planning board was void after technical noncompliance with the sunshine law. The court found that notice of a meeting had been timely posted, delivered to two newspapers as

required, and filed with the clerk of the

municipality. The notice "inadvertent?

ly" failed to state the place or the hour. The court declared the board's action null and void. The court held as follows:

[d]espite the inadvertent and minor technical deviations in? volved.. .it is clear that pursuant to the express provisions of

N.J.S.A. 10:4-15(a), there is no alternative to the voiding of the resolution then passed.

The present trend is not only to in? sure strict compliance with the sunshine acts to employ sanctions to protect the

public. The Supreme Court of Kansas, in State v. Palmgren, 231 Kan. 524,646 P.2d 1091 (1982), decided whether

penalties under the open meetings act meant a strict construction of the act because it was penal. The Kansas act allowed civil penalties up to $500,000.

After recognizing that the First Amendment does not indeed protect private discussions of governmental af? fairs among citizens, the court went on to say:

Everything changes, however, when a person is elected to public office. Elected officials are sup? posed to represent their consti? tuents. In order for those consti? tuents to determine whether this is in fact the case, they need to know their representative has acted on matters of public con? cern. Democracy is threatened when public decisions are made in private.

Responding to the charge that proof of "criminal intent" had to be shown before the penalties could be levied, the court held that no specific intent is

necessary to constitute the offense ex?

cept the intent to do the act denounced

by the statute. Dismissing all other at? tacks upon the constitutionality of the

act, the court upheld the imposition of fines as a valid sanction stemming from the violation of the sunshine act. While the cases are not uniform in

their interpretation of the sunshine acts,

I submit that the clear trend of the future will lead to a prophylactic rule that can manifest itself in as many ways as the courts' imaginations can con? ceive. I suggest further that the courts of the future will be less likely to be satisfied with "substantial compliance" with the acts. They will give the acts a strict construction. Litigators would do well to become familiar with this

relatively new statutory test when ex?

amining the validity of any action by a

public body. All of this is as it should be. Everyone

must accept the wisdom of Alexis de

Tocqueville's statement that: It is by taking a share in legisla? tion that the American learns to know the law; it is by governing that he becomes educated about the formalities of government. The great work of society is daily performed before his eyes, and so to say, under his hands.

For the

Prosecution

(Continued from page 17) admitted, great strictness and

nicety were held therein. We don't do it with any great strict?

ness and nicety now. We're too smart for that. We do it carelessly. We used to do it with judicial supervision. Now, we just let it be done any way any pros? ecutor anywhere wants to do it. And it is dangerous. I warn you. I warn you not for your sake. I warn you for your children's sakes. I warn you for your grandchildren's sakes. I can be utterly unselfish. It isn't something for me. It isn't something for mine. I have no "mine." Please do it for yourselves.

Find these men not guilty because to do otherwise requires you to attempt to use evil to accomplish good. And the older persons on this jury are going to tell you... The Court: You have run past your time, Mr. Oliver.

Q: Thank you, your Honor. .. .you cannot accomplish anything

good by the employment of evil.

After closing arguments, the judge charged the jury with the case. The jury acquitted Mr. Oliver's client.

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Documents

Witness for the Prosecution