So What the Hell Happened with Asaro Case?

This guy is 57 years old and still afraid of an 80 year old man. what a pu**
A nearly unrecognizable Vinny Asaro walks home triumphantly with
his daughters lawyers.....

I first heard the term "jury nullification" Monday morning in conversation with a federal prosecution source regarding the Vinny Asaro verdict. I'd actually known what it meant, I just didn't know there was a term for it.

Asaro departed Eastern District Federal Court in Brooklyn on Thursday, Nov. 12, 2015, after being found not guilty of masterminding the infamous $6 million Lufthansa heist at Kennedy Airport in 1978. The anonymous jury of six men and six women also found Asaro, 80, not guilty in the killing of mob associate Paul Katz in the 1960s as well as various extortion, robbery and gambling charges.

His attorneys, Elizabeth Macedonio and Diane Ferrone walked with Asaro who no doubt was thinking about home-cooked food, the comforts of home.

After hearing the verdict, Asaro broke into a grin and slapped  the defense table. He was positively giddy. He then embraced defense attorneys Macedonio and Ferrone.

Jury nullification, quite simply, occurs when a jury acquits a defendant, even though jury members may believe that the defendant did commit one or more of the alleged crimes. The jury doesn't believe the defendant should be punished. The jury may disagree with the laws the defendant is charged with breaking. Or, the scenario seemingly more applicable here, they believe that the law should not have been applied in that case.

"This is a massive humiliation for federal prosecutors," said the source, who wasn't involved with the Asaro prosecution.

He believes, whatever else, Asaro primarily benefited from jurors' sympathy.

"Vinny Asaro looks like a grandfather. He wasn't Whitey Bulger; he was never on the FBI's most wanted list."

Asaro "the mobster," he said, "was the epitome of the mid-level company man, just sort of plugging along through the decades trying to earn a living. He wasn't living large. He wasn't Joe Massino. I don't want to say he's a harmless old man, but he was no mob chieftain in his later years, like, say, [Paul] Castellano was before he was killed [by John Gotti in a 1985 coup to assume control of the Gambino crime family]."

Noting that it took jurors only about three days to come up with verdicts on some 14 charges, he said his sense was that a "who cares?" attitude also seemed to have pervaded the jury room.

This is where the "weird concept" of jury nullification pokes its head up and says "howdy."

"It requires the perfect combination of the right jury and the right defendant, and the defense attorney really has to walk a line, especially in Federal Court, where the judges are sharp."

Defense attorneys have been know to mention the concept of nullification in opening and or closing statements depending on what that state's laws are regarding the concept. In federal court, the source said, telling jurors they can nullify a case, find the defendant not guilty even if they think he committed crimes, isn't allowed, though defense attorneys may mention it obliquely. Nullification also can be raised behind closed doors during deliberation. All it takes is one strongly opinionated juror to raise the idea of "who cares? This is absurd."

"It's just sort of telling the jury, "yeah we all know he did it, but so what? Why are we even here?," among other things.

"That may have happened in this case," he added, noting that some of the charges Asaro faced occurred when the President was named LBJ.

What also fuels the nullification scenario, he said, was the Fed's star witness, Gaspare Valenti.

"[Asaro's] own cousin admitted to needing money and to getting three grand a month. Now, three grand a month in New York City  is probably closer to six grand a month [in many other states]. That's a significant sum of money to working-class people who bust their ass day in and day out."

I'd agree, adding that $3,000 a month isn't bad for New York's white-collar workers, either. Including journalists.

"If I were the defense counsel, I'd be all over that:

Ladies and gentlemen, can you believe that YOUR tax dollars are funding the life of a man who was a leech on the ass of society since before we put a man on the moon?

"This may have been the single biggest thing that killed the government's case... Gaspare makes a liveable wage" for wearing a wire and testifying in a case he himself prompted.

He called the Fed's efforts in this case "bootstrapping." Mobsters have told me of a similar phenomenon, called a "Christmas tree RICO case."

"Basically, they threw a bunch of un-related charges against Vinnie, and the hope was probably that something would stick, and given his age and his background, he ends up serving, effectively, a life sentence."

The source said that what is of particular interest to him is which charge the jury first voted not guilty on.

"I'm thinking that it's the Lufthansa one. Whatever the case, it's a weird sort of dynamic. Say they find him not guilty of one charge. Then they look at another charge, and say, well, this is bullshit too. Basically, they go down the line" saying this. Eventually, he said, do they simply stop going over the charges?

"They may have gotten through four of five charges and said, let's just go home. This might be why they got back so quickly. I read that the prosecutors were just stunned at the verdict. I can tell you, there is nothing in the world like being defense counsel and hearing your client is found not guilty on anything."

A defense attorney in the Marine Corps, the source said when he won his first case, with jurors voting not guilty down the line, he felt like he'd had an out-of body experience.

"I asked my client, did he just say not guilty to everything? Which, by the way, is exactly what Vinnie did."

Such a win as Asaro's is quite rare.

Some of the charges baffled the source, among them the murder charge.

"This was the one that really stumped me. Burke has been dead since '96. And supposedly Vinny and Burke killed Katz with a dog chain the same year we went to the moon... So how did they try to prove that? By Jerome Asaro saying that he helped his dad move the body, in what, 1984? See, I keep coming back to dates, you notice. These alleged offenses, it's worth repeating and re-repeating, are old.

"If I'm the defense counsel, I'm arguing "Where's the beef?" A tagline from a 1980s Wendy's fast food commercial. "I'd throw in cultural references from the sixties thru the nineties, when the bulk of this stuff supposedly happened."

Asaro used two women as his trial attorneys. He didn't have the stereotypical mob defense attorney roaring in the courthouse.

"It totally flipped the whole, overaggressive Bruce Cutler, Sindone (who defended Nicky Scarfo and won in the 1980s) defense. Here you have two young, relatively attractive female defense attorneys defending an old mobster, and maybe the jurors on some level are thinking, well, if these nice girls are defending him, how can he be guilty?"

The trend in mob cases
The Fed's win 92 percent of cases, either through plea deals or jurors voting guilty. "The government lawyers in Mr. Asaro’s case spent three weeks presenting their case, with evidence and witnesses that they said proved Mr. Asaro had helped organize the 1978 Lufthansa heist, carried out a 1969 murder, and committed other crimes," the New York Times reported.

"It was a fast verdict, particularly for an acquittal, and the jurors did not request much evidence from the complicated case. It was also one of several defeats for organized-crime prosecutors in the Eastern District of New York in recent years, including acquittals for Joel Cacace in 2013; Francis Guerra in 2012; and acquittals on the most serious charges — six murders, including that of a police officer — for Thomas Gioeli and Dino Saracino in 2012."

The Times is piling it on somewhat. The Fed's "lost" those cases, but Waverly and Gioeli still will likely die behind bars. Saracino is serving 50 years. Francis “BF” Guerra, a long-time Colombo associate, was found not guilty of two murders but still was sentenced to 14 years in prison (for selling prescription drugs).

Anonymous Jury
The not-guilty verdict voiced by the anonymous jury is nearly unbelievable. Despite hundreds of hours of wiretap recordings during which the defendant said some pretty damning and incriminating (and comical) things, despite enough evidence to prove (in my mind) that Vincent Asaro was a third-generation card-carrying Mafia member who spent decades living the outlaw life as per a code created by Sicilian bandits more than 100 years ago, he walked out of prison a free man.

Asaro himself couldn't believe it.

“I couldn’t believe it,” Asaro told reporters through a grin while strolling away from the courthouse, breathing fresh air for the first time since he was rousted from his home by the Feds and put on trial for crimes committed decades ago.

He even said a few words for the camera, holding on to his attorneys for dear life...

Anonymous juries are pretty common in mob cases. There's an interesting dynamic involved in cases with anonymous juries that could have backfired in this case. Defense attorneys generally highly object to anonymous juries. John Gotti's final defense attorney, Albert Krieger, spoke out in a near-frenzy about the evils of anonymous juries, pointing out a not-so-obvious major flaw (for the defendant): The simple fact is that the government, by telling jurors that their names will be kept secret during a trial, also relays to them between the lines the fact that: THIS GUY ON TRIAL IS DANGEROUS, YOU, WHO SIT IN JUDGEMENT OF THIS MAN, ARE IN DANGER...

The first anonymous jury was used in New York City in the 1970s. The case was the trial of Leroy Nicky Barnes, a Harlem drug kingpin.

An early clue that the Lufthansa case was not going the way prosecutors had initially planned may have been the fact that Bonanno street boss Thomas "Tommy D" DiFiore's attorneys were able to do something rarely done in major Mafia trials, as this case first seemed to be. 

As this blog reported (first..... I broke this news myself!) in Unheard of Is Heard: A federal judge granted a motion for severance that meant the Bonanno boss and two other Bonanno members, Jack Bonventre and John "Bazoo" Ragano, would have trials separate from the high-profile Lufthansa-related case that only "tainted" Asaro and, back then, his son.

Jerry Capeci acknowledged that this is pretty unheard of stuff, writing, "Normally, the likelihood of success for severance motions in racketeering cases involving five mobsters in one crime family ranges from very slim to none. In this case, the chance that either severance motion will pass muster is even more remote than the norm."

While Lufthansa was touted in headlines around the world following the Bonanno bust in January 2013, only Asaro was ever linked to Lufthansa. Court papers say he took part in “several planning meetings” with Burke.

Asaro at home days after being freed. A Valenti is visiting him.

Other crimes alleged in the indictment predate the airport heist. A homicide allegedly committed in 1969 by Asaro who later told an informant that he and Burke had killed Paul Katz in 1969 with a dog chain. Asaro had suspected that Katz was an informant, he told the actual informant.

Then in the mid-1980s, Asaro ordered his son and another man to dig up the corpse and rebury it somewhere else after Burke revealed that an NYPD detective was looking into Katz’s disappearance, according to court papers.

Asaro was observed on that day driving past the scene of the excavation. 

Later the same day he was seen chatting with Bonanno soldier Ragano. Asaro apparently was upset, court papers noted, adding that “agents observed him drive into a metal pillar.” (We note again: would have been a great scene for "The Sopranos.")

Asaro's other alleged crimes include ordering the early-1980s firebombing of a mobbed-up bar on Rockaway Boulevard in Ozone Park. Called "Afters," the Feds said the watering hole “was named for after Lufthansa. ”

At trial defense attorneys pretty effectively, it seems, argued that that alone was a stretch for the Fed's, as the timeline suggests Asaro would've required the ability to see into the future for that to be true. Afters could simply stand for After Hours.

It seems the Fed's might want to recalibrate their piling it on strategy. Never write a headline that overbills the story too. That's one rule jurors seem to be tired of prosecutors breaking.

I think the Fed's should refocus this vigor on other cases, such as the trend apparently evident on college campuses of male students getting away with rape .... there's some award-winning athletes who may deserve life in prison more than Vinny Asaro, in this writer's opinion. Ever hear of Erica Kinsman?

Just saying...