Telling the whole story, not just separate pieces

Question: Mr. Bank teller, what happened January 2nd of last year?

Answer: Well, we were robbed, sir. Robbed at gunpoint.

Q: Did you get a good look at the robber?

A: Yes, I did.

Q: Do you see him in the courtroom today?

A: Oh, yes, it’s the defendant, I’ll never forget his face.

Q: And did your security system get a picture of him?

A: Yes, it’s Exhibit 22. There he is, right there.

Obviously, the story would take a little longer to tell, but that’s the gist of it, pure and simple.

But some crimes, in some cases, more closely follow the words of the Irish writer Oscar Wilde, who famously said: “The pure and simple truth is rarely pure and never simple.”

Too much complexity, too much uncertainty, lack of credibility and so much more. Those cases can be a challenge to try to make sure that Juror No. 6 knows the whole story.

Some years ago, the Public Corruption Unit of the U.S. Attorney’s Office in Boston conducted an investigation of the administration of then-Boston Mayor Kevin White. The investigation revealed widespread corruption and resulted in a large number of convictions for bribery, extortion, fraud and other crimes.

Mayor White himself was never prosecuted, but a light was shined on corruption, which resulted in change.

Ted Anzalone was Mayor White’s right-hand man. We were told that to pay off the mayor, you went through Anzalone. So it was an important high-profile step when we were able to bring a grand jury indictment against Anzalone for extortion and money laundering.

In any case, it’s important to be able to tell the whole story, not just bits and pieces of it. Otherwise, Juror No. 6 will struggle to understand the truth. But sometimes the law makes it hard to tell the whole story. That can create real obstacles for grasping the truth.

Take, for example, crimes committed in secret or involving cash or both, like drug dealing or corruption. After all, cash is cash. If a drug dealer has a bag of cash, how do you prove definitively that that cash came from drug dealing and not from under his father’s mattress?

Without a witness who is in the chain of custody of the cash or other direct evidence, it can be a real challenge. You have to make a circumstantial argument, and the strength of those inferences can vary widely.

That was the challenge with Anzalone. We had one incident of alleged extortion and two incidents of hiding cash or money laundering. But the evidence of extortion, a crime done in secret, came largely down to one witness, so it was particularly important to have the money laundering charges as corroboration, as evidence of the use of cash and of efforts to hide that cash.

Similarly, the money laundering charges involved cash that Anzalone funneled to the mayor’s mother and the mayor’s wife, not to the mayor himself. So it was important to have the extortion charge to show a motive to hide the cash.

We indicted the two crimes together and pushed hard to keep them together. The defense wisely tried to sever them. The trial judge was an excellent jurist, and we were hopeful he would understand the need to keep everything together.

He did understand the need, but the law on severance made him uncomfortable. What direct evidence did we have, he asked, that the crimes were, in fact, linked together — essentially, that the extorted cash was the same cash as the laundered cash?

Cash is cash, we responded. In an undercover case in which the payoff is anticipated, the government can try to track the serial numbers of the cash. But not after the fact. There can never be a 100% link in a case like this.

Many cases are tried successfully on circumstantial evidence, and the link should be a question of fact for the jury, we argued. But the judge didn’t buy it. He thought the evidentiary link needed to be stronger, so he severed the extortion charge from the money laundering charges and ordered separate trials. We were devastated and angry.

We went ahead with two separate trials, but with mixed results. Our lead witness in the extortion case was badly damaged on cross-examination, and without the cash case, we couldn’t corroborate in the same way. We were badly hurt by our inability to tell the whole story.

As I later learned, the judge ultimately agreed with us. Long after both trials were over, he told me in confidence that ordering the extortion and money laundering cases severed was one of the biggest mistakes he had made in his long and distinguished judicial career. Of course, by then, his change of mind was too late to do us any good.

As trial lawyers, we are storytellers, and we have to push hard to tell the whole story, not just separate pieces.

Daniel I. Small is a litigation partner in the Boston and Miami offices of Holland & Knight. A former federal prosecutor, he is the author of “Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers,” published this year by the American Bar Association. The above column is adapted from “Lessons Learned,” with permission of the ABA.