Experts: 5th trial would be uphill battle

Professor James Cohen in Newsday, December 03, 2009

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Will there be an Act V for The Trials of John "Junior"Gotti?

In the wake of the one-time Gambino family leader's fourth mistrial in five years on Tuesday, experts said, federal prosecutors have to weigh their belief thatGotti is an unpunished murderer against sobering criticism from jurors and mounting evidence that they just may not be able to overcome his claim that he's quit the mob.

"There is no chance, a zero-percent chance of another trial," predicted Jeffrey Lichtman,Gotti's defense lawyer in his first mistrial in 2005. "There's got to be at least one person in the Department of Justice who is capable of embarrassment from this. They can't get a conviction, and they never will."

Technically, while the case that ended this week has substantial overlaps with the three racketeering trials that ended with jury deadlocks in 2005 and 2006, the latest case added new witnesses and new charges of drug dealing and two drug-related murders that have only been tried once. U.S. Attorney Preet Bharara has promised a decision on retrial "in the near future."

But in addition to not winning a conviction, prosecutors learned from jurors that they weren't even close - getting no more than six votes for conviction on any count - and that star informant John Alite, the sole link betweenGotti and two charged murders, was considered the "least credible" witness.

"They should end this," said Paul Peragine, the only juror on the anonymous panel who disclosed his name, in an interview yesterday. "Four juries have now said all of us do not believe you. This is very expensive for both sides, there's not enough evidence, the crimes happened 20 years ago. You didn't get him. It's over."

While it would be unusual for the government to drop murder charges after only one trial, said James Cohen, a professor at Fordham University School of Law, the jury's strong opinions won't go unnoticed.

"Given the jurors' reaction to that one witness and their perception that Gotti should not be tried again, that may influence the U.S. attorney's office," Cohen said. "I think that'll give them pause. This is a big loss."

Jerry Capeci, an organized crime reporter who has covered theGotti trials from the start and now runs the Web site ganglandnews.com, said his instinct was that prosecutors had no more ammunition. But, he said, to some in law enforcement,Gotti is still an important "trophy."

"I think the government should let it go, especially since they couldn't convince more than six jurors on any of the three counts," Capeci said. "But the government has known for a week that this was likely to end in a mistrial. If they were going to give it up, they could have announced that on Tuesday."