Gotti’s Prosecutors Discovered New Evidence Failed to Help
By TIMOTHY WILLIAMS
Published: September 29, 2006
Not long after word filtered into the courtroom on Wednesday that for the third time since last September a racketeering case against John A. Gotti would end in a mistrial, prosecutors had a chance to speak to the jury.
What they heard was that the most important new evidence against Mr. Gotti — secret F.B.I. recordings made while he was in federal prison — seemed not to have swayed a single juror.
“I’m not sure it changed anybody’s mind,” said one juror, who asked to retain the anonymity he was granted by the court while on the panel. “It just solidified people’s opinions.”
A federal official has said Mr. Gotti will probably not be prosecuted on the same racketeering and extortion charges a fourth time unless further evidence is uncovered.
Even if Michael J. Garcia, the United States attorney in Manhattan, approves another prosecution of Mr. Gotti, Judge Shira A. Scheindlin of Federal District Court, who has presided over the three trials and would likely oversee a fourth, seems reluctant to allow it.
Almost immediately after she declared a mistrial on Wednesday, Judge Scheindlin asked Mr. Gotti’s lawyers whether they wanted to file any motions — referring to a move to dismiss the charges, which include orchestrating the kidnapping of Curtis Sliwa, the radio talk-show host.
Even before the third trial started, Judge Scheindlin expressed reservations about the fairness of the government trying Mr. Gotti three times.
Federal prosecutors, who declined to discuss the case yesterday, are expected to announce a decision about a retrial during the next 10 days.
In any case, Mr. Gotti found himself a relatively free man yesterday, for the first time since he was sent to prison on various racketeering and other offenses in 1999. Though he is still officially criminally charged, the United States attorney’s office agreed to release him from two conditions of his bail, house arrest and electronic monitoring.
That government concession contrasts starkly with the aftermath of Mr. Gotti’s first trial in September 2005, when Michael McGovern, a federal prosecutor, argued that Mr. Gotti should not be released from prison before a second trial because he might try to intimidate witnesses.
After the first trial, the government had attributed its failure to convict Mr. Gotti to a holdout juror who voted for acquittal on the extortion and racketeering conspiracy counts. A single juror also stood in the way of Mr. Gotti being convicted on charges of loan sharking as part of a racketeering enterprise.
The second trial, which started in February, ended in another hung jury, but this time the jury split 8 to 4 on most counts, in favor of acquittal.
The sticking point for jurors was the same problem that arose in the third trial — the difficulty in determining whether Mr. Gotti had truly retired from the Mafia in July 1999 as he said. The defense maintained that since he was no longer in the mob, he could not have been part of any conspiracy.
For the third trial, the government went to court with two determined prosecutors, Victor Hou and Miriam E. Rocah, and the F.B.I. recordings, which had not been used in the first two trials.
Instead of the tapes revealing Mr. Gotti’s continued membership in the Gambino organized crime family, they clouded the issue, according to jurors.
“The tapes didn’t help,” said a second juror, who also requested anonymity.
Jurors complained about the recordings’ poor sound quality and the fact that Mr. Gotti seemed to make conflicting statements about whether he was in or out of the Mafia. On that question, the jury split 8 to 4.
The sheer volume of evidence the government presented contributed to the deadlock, the first juror said.
“We could have really used a road map here,” he said.
Matthew Sweeney contributed reporting.
http://www.nytimes.com/2006/09/29/nyregion/29gotti.html?_r=1&ref=nyregion 
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