Prosecutors Discuss the Pagan "Testify Down" Strategy

Pagan testified at a murder trial in which he was the actual murderer.

Recently the ran a story about a "rare and risky legal strategy" used by prosecutors. Turns out they even have a name for it: Testifying down.

Guess who they were referring to! (Well, at least he's still in the clink, as we learn..)

In two recent cases in Brooklyn, one of which was the James Donovan murder trial, in which Pagan testified,  "... [t]he government used cooperating witnesses—"big fish"—who admitted to more serious crimes than the charges faced by the people they were testifying against.

"This is, generally speaking, the opposite of how cooperating witnesses work. Usually, legal experts said, the goal is to get those witnesses to admit to wrongdoing, cooperate with the government and to walk the investigation up the ladder, obtaining evidence against leaders or those potentially engaged in more serious crimes. In exchange, on the recommendation of prosecutors, cooperators typically end up serving reduced or no prison time."

"If you can only punish big or small fish you obviously want to go after the big fish, the most responsible, those who have committed the most harm, the most dangerous," Bruce Green, a professor who teaches legal ethics classes at Fordham Law School, told the Referring to recent Brooklyn cases, including the one in which Luigi Grasso and Richard Riccardi were found guilty for the killing of James Donovan and now face life sentences, the article noted: "the government used cooperators to "testify down," as one defense attorney put it. Prosecutors ultimately walked away with mixed results."

While they won convictions in the Donovan case, they lost another one that "involved a former high-ranking city housing official and a general contractor—who testified about taking or paying millions of dollars in bribes—as cooperators. The official and contractor told the jury about much smaller bribe schemes involving three real-estate developer defendants who were acquitted by jurors."
Making the decision to "testify down" is not one prosecutors make lightly, the article noted.

"There's at least a general practice disfavoring those sorts of arrangements," said former Brooklyn federal prosecutor Jim Walden. The tactic can be "bad trial strategy because it can give the defense a lot of fodder," said Katya Jestin, a former Brooklyn federal prosecutor.

Using such cooperators could create the appearance to jurors that prosecutors are just looking to convict someone, regardless of rank or importance, said Bennett Gershman, a professor at Pace University Law School who teaches criminal prosecution. That, Ms. Jestin said, brings up "equity issues" for prosecutors.

During the March robbery trial, admitted mob associate Hector Pagan testified that in July 2010 he fatally shot James Donovan during a robbery that netted more than $200,000 in cash. His testimony that Louis "Luigi" Grasso and Richard Riccardi committed the stickup with him led a jury to convict them on murder and robbery charges. Mr. Pagan faces a potential life sentence for his admitted crimes but is expected to receive less time in exchange for his cooperation, experts say.

Under questioning at the trial by Susan Kellman, Mr. Riccardi's defense attorney, Mr. Pagan admitted to being a longtime drug dealer and user, extortionist, violent debt collector and in the case of the robbery, a killer. Mr. Pagan is in prison and couldn't be reached for comment. Mr. Grasso is in prison and his attorney declined to comment.

 (The WSJ doesn't note that Pagan shot Donovan from behind, while the man was running away, having dropped his satchel full of bricks of cash; there was no apparent reason to shoot him. Pagan's bullet had nicked the femoral artery and the man bled out in the hospital and died.)

"It makes no sense to me that the U.S. government embraced a murderer to put away two low level [mob] wannabes," Ms. Kellman said.

"It's not like they win the lottery by cooperating...they have to plead guilty to everything they do," the official said. "There are no sweetheart deals."

This strategy nearly played out again, with the shooter testifying against the wheelman based on evidence provided by the killer; the incriminating evidence was highly dubious, however. Turns out, the Feds dropped the case anyway. We refer here to Daniel Fama who had been charged with the crime of killing a person who was believed to be a government informant, a federal charge. The main witness against Fama would've been Joseph “Little Joey” D’Angelo, one of two men who actually fired the fatal shots into Edward "The Chink" Garofalo in front of his home in Bensonhurst, Brooklyn. The other gunman was Frank “Frankie Fapp” Fappiano. Both flipped for the Feds.

As we noted in the Fama story, Fama had likely been targeted because he "never cooperated, and the others did. It's important to give sweet deals to cooperators and to keep the heat on gangsters who don’t," a former federal mob prosecutor had said.

"It's one of the main reasons why the government has been able to significantly dismantle the five families in recent years. And you don’t get a pass because you were a driver. It's significant criminal activity. And you're just as guilty as the shooters."

However, Manhattan Federal Judge John Keenan, a former homicide prosecutor who's been on the bench for 30 years, was not happy with how federal prosecutors handled the Fama case, as we noted.

"Without raising his voice, but in no uncertain terms, Keenan indicated that he believed that Fama lawyer Charles Carnesi had been more honest with him about the failed murder case than the government."

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  1. Still would LOVE to know who Jr pulled a gun on that he caught with Renee! ~kj

    1. I have a name for him, actually, and am in the process of nailing the story down. Supposedly this is the worst-kept secret on Staten Island.

    2. Not to beat a dead horse ed but how they convicted the other two and let him the shooter go is a travesty in the court system ed i seen in the last two philly trials the people the jurors are getting tired of the goverment parading these guys up there to save there own asses and there not believing the testomoney of the wittnesses as u seen in both ligambi trials i hope them 2 guys get to appeal ther convictions and its overturned i know someone died but the wrong guys are doing the time for some scumbag and that my friend is just wrong ed

    3. I agree. I wish I could read the transcripts. I'd love to understand the cross examination strategy.


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