After the victory to keep Gil's statements in church out of evidence, it was on to other hemorrhoids. Our next major gig was to literally stop the presses to halt the daily barrage of damaging coverage. Bert Christie's lawyer, Louis “Louie” Vernell, and I made a motion for the judge to issue a limited gag order on everyone connected to the case, including the news media.
Big mistake, but who knew.
From Jump Street, Gil and Bert were represented in the media as the only suspects in a string of horrific murders—and not just those for which they were on trial. Gruesome details were never spared in news accounts. In fact, they were splashed across newspapers and TV screens so often, people were starting to think they knew the murder victims. Reporters also hammered on Bert's alleged organized crime connections, which caused a prejudicial spillover effect onto Gil. Once people thought Bert and Gil were mob guys, there went the presumption of innocence.
In a June 2, 1991 article, The Miami Herald printed a list of eight victims and the circumstances surrounding each of their deaths. These eight victims were in addition to the three victims named in our indictment. Their pictures were the ones I saw splashed across the front page on the day I became aware of the case. But that didn't stop the other news outlets from running with this supposedly “new” story, turning the people on the list into household names in South Florida.
The coverage kept coming like waves on the shore, echoing the law enforcement allegations that Gil and Bert were responsible for the murders. The media hacks were slick about it, though; I'll give them credit for that. They never blamed the guys directly, so the papers were safeguarded from liability. News accounts would simply quote verbatim from the voluminous police reports, repeating the allegations that “known associates” of Fernandez and Christie had killed some of the victims—at the defendants’ behest.
Gil was never charged with any of these other murders. But he and Bert were the only ones who remained alive from the crowd of people allegedly linked to a variety of related crimes. To some, this lent credibility to the theory that the additional murders were committed out of necessity, to get rid of witnesses. According to the law enforcement agents interviewed in the article, Gil's background as a police officer would have taught him how to leave a crime scene free of fingerprints. But you didn't have to be Sherlock Holmes to figure that out. It was Murder 101. Even bad guys know how to wear gloves to avoid leaving prints.
Police and prosecutors repeatedly asserted that Gil and Bert had the motive, means and ability to carry out these execution-style murders. These accusations were not much more than Dick Tracy-like gumshoe suppositions, but that didn't make them any less credible to the larger and more important jury: the public. Gil and Bert had to read about their alleged responsibility for all the other murders almost every day in the media.
Louie and I fought to get Tyson to muzzle the television and print media guys. Even if what they were saying were true, Gil and Bert hadn't been indicted for the additional murders, so information about them was immaterial in this case. We had to do whatever we could to stop the coverage, despite the otherwise coveted First Amendment's freedom of the press. We knew that lots of people believed everything they saw, heard or read. Most people—including me when I first saw the paper at Baptist hospital—too often thought that where there's smoke, there's fire.
We soon learned an unfortunate truth. When you attempt to gag the press, the media circus only gets exponentially worse. The irony of holding hearings over whether the trial judge should issue a gag order to silence the media is that the hearings themselves only engender more print and television coverage. When the members of the media feel threatened, they circle the wagons. Suddenly, reporters came out of the woodwork, pointing accusatory fingers at the lawyers who according to them wanted to limit the public's sacrosanct right to know. Posturing like peacocks, they strutted about as selfless protectors of the poor unsuspecting citizens who would otherwise be censored by draconian, first-amendment-hating defense lawyers.
My perception, right or wrong, was that Tyson wouldn't be concerned at all about the chilling effect that a gag order might have had on the First Amendment right to freedom of the press. Like most judges, he enjoyed the press as much as anybody else did. In real life, a gag order only meant less sensationalism, meaning less press for the judge, too. It seemed to me that he was more concerned with the media's lead lawyer, Ray Ferrero, Jr.
When the heavyweights in the press worried about getting muzzled, they spared no expense in bringing in the big guns and all the suits. Ray was the biggest gun of all; he was the perfect person to lead the pack of attorneys that each media outlet had hired. Ferrero was not only powerful in the political arena; but his booming voice, confident demeanor and six-feet-five frame made everyone pay attention.
The hearing hadn't even begun when Ferrero and I had a run-in. “Print whatever you want—as long as it comes from the witness stand,” I said to Ferrero. We were both within view and earshot of the lenses and microphones aimed at us outside the courtroom before the hearing.
“Are you telling us how to run our newspapers?” asked Ferrero, who was standing among his media brethren. He stepped toward me, spoiling for a fight. “Are we supposed to print only what you think we ought to print?”
As lead counsel for one of South Florida's most influential newspapers, the Chicago Tribune-owned Sun-Sentinel, Ferrero spoke as the advocate for a consortium of powerful attorneys. This consortium consisted of Miami Herald attorney Jerry Budney and a cadre of other lawyers representing four local television stations. Naturally, everyone on the media side was opposed to the gag order.
“Just imagine for a moment that the defendant is someone in your family, Mr. Ferrero,” I implored. “And while you think about that, how about remembering the whole notion of the defendant's right to a fair trial?”
“The public has a right to know, Mr. Contini,” responded Ferrero, “…and not just what you want them to know. But the judge will let us all know. So, respectfully, save your arguments for the courtroom.”
Ray Ferrero knew something I didn't: Not many judges would have the courage to stand up against the media, Tyson included. Tyson was a little guy, but he seemed to get larger every time his name appeared in print. Though he was physically small, his ego was as big as mine. It's a wonder that both of us could squeeze into the same courtroom every day.
Although we had little chance of winning this media beef, I had no choice but to make an attempt. After all, Gil and I were living in the shadow of the electric chair. Try as I might to block it out of my mind, the reality of the death penalty wasn't going anywhere.
“Denied,” Tyson chirped.
When the hearing for the gag order was over, I was the only one left gagging. I could no longer be deluded into thinking that a guaranteed fair trial was as important as a guaranteed free press.
Molloy and I just looked at each other, as we often did after rulings. “I wonder who has the better poker face between Doug and me,” I thought, before being interrupted by Tyson's admonishments to the press. The judge was lecturing the media-consortium lawyers, telling them they should voluntarily stop publishing stories related to all murders for which the defendants were under investigation but not indicted. But there were no threatened sanctions included in Tyson's toothless admonishments. Asking these media vultures to make nice and limit what they cover was like asking the Arabs to quit making oil. What kind of admonishment was that? The ruling surprised no one in the Fernandez family.
“That and a dollar and change will buy you a cup of coffee, Judge,” I almost smart-mouthed. Instead, I muttered under my breath, “They weren't even listening to you, Judge.”
Finally, when the judge's remarks were over and he was done playing to the camera, Ferrero and company left the courtroom. I would have given big bucks to see one of Ray Ferrero's invoices after a lengthy hearing like that. And to think, each of the other media lawyers were billing around $300 bucks an hour, too.
Neli and Gil's parents left just ahead of the Ferrero group, after exchanging smiles, hugs and a few encouraging words with Gil. After they left, I took the opportunity to steal a moment with Doug. Controlling the press wasn't my only problem. Now it was time to address the use of the information that had already been printed, most of which came from police reports. The prosecution—the same guys who leaked the reports to the press, I figured—were doing everything they could to enter this highly prejudicial information into evidence.
“Why in the world are you including these police reports on this other guy, “John Joseph Matera”; this “Johnnie Irish” character?” I asked Molloy.
“You insisted on complete discovery; you got it,” Doug responded.
“But what does a ‘reputed captain in the Colombo organized crime family,’ have to do with us?” I asked insistently.
“Read the report.” Molloy replied. “A Mafia guy who's a federally protected witness told detectives that Johnny Irish disappeared in 1980 and that Bert Christie killed him. He said Bert cut him into pieces and disposed of the body in the ocean.”
“Yeah, so what's that got to do with Gil? What does it have to do with the indictment for these three murders?” I pressed.
“Bert's on trial, too, John. These reports were in Bert's file from the BSO Organized Crime Division. It might not be admissible, but it is discoverable.
“John, it's usually the other way around: you guys complain if you don't get everything. You argue you're entitled to anything discoverable—not just things that are admissible, but anything that leads to admissible evidence. If we didn't produce the reports, you'd be arguing that we're withholding discovery from you.” Molloy was as slick as they come.
“Don't hide behind that! You're poisoning the well, Doug. You know it and I know it. It's not about you giving us all the discoverable reports we need; it's about you guys throwing in everything but the kitchen sink. You're infecting the court file with these other organized crime investigations and murder allegations,” I whined. “Furthermore, I know you're doing it so the press can run with it,” I said, hurling the accusation at him.
“I can't win with you. Either you get the reports and then complain that they've got nothing to do with your guy, or you don't get the reports and complain that we're withholding them from you. John, let me ask you something: Are you ever not getting a raw deal?”
Molloy was too damn smart to spar with for very long. We were still gathering our files and briefcases when I suddenly remembered the name Johnnie Irish. Louie had shown me the diamond pinkie ring he wore and said it once belonged to Irish. He must have thought I'd heard of the guy when he was alive. Of course, I had since learned who he was in death.
“That's great,” I thought disgustedly. “If the allegations about this dead guy and Bert are even remotely true, and Louie's prancing around sporting the dead guy's ring… This is not good.”
Not really done yet with Molloy, I asked him, “Are you also saying the report you gave us on George Gold, the Miami lawyer who was murdered, also is just discovery?”
“Same response, Mr. Contini,” Molloy replied, a bit arrogant this time. He was ready to leave.
“Doug, seriously,” I continued, “can you give me a second? This report speaks to a murder three years before the murders in our case. It says right here, ‘Gold was shot in his office on June 17, 1980, in a possible case of mistaken identity. His partner allegedly was the target of the contract hit because he owed New York mobsters $1 million. A federal witness said in his statement that he helped Bert stalk Gold's partner shortly before Gold's murder.’
“Why would you include this in discovery, when it speaks to a murder that predated these murders by three years? Even the report states it was a case of mistaken identity.”
Doug replied, “My answer is the same. It's obviously of more interest to Bert and his lawyer than to you and Fernandez, but it's still arguably discoverable.”
“Sure. But as long as Gil's denied a separate trial, it's spilling over to us,” I repeated.
“Can I go now?” Molloy asked, half-smiling as he walked toward the door.
This was bad. The murders that prosecutors were trying to link to Gil and Bert seemed to be almost without end, so I knew I had to go over the rest of the police reports with Louie. Discussing them also gave me an excuse to have a few glasses of wine with him at Il Giardino's, a local gin mill on Las Olas Boulevard.
“Louie, what's this police report about Caesar and Patricia Vitale? It says here that Caesar was a driver for former crime boss Joe Colombo, Sr. Listen to this: ‘The couple was shot in their Plantation, Florida home on Feb. 15, 1982. The same federal witness who talked about Gold said in his statement that Bert was the triggerman in this Mafia killing.’ What's up with this?”
“How do I know?” Louie quipped. “There's probably another report in there that says we know where Hoffa's buried.”
He had me laughing again. Louie was good at that. He was twice my age but acted more like my little brother. The waitresses found him charming, too. They probably thought this small, funny guy was cuddly-looking as they brought him drinks and laughed at his rapid-fire jokes.
“Let's hope you can charm the jury, too,” I told him as I watched him make eyes at the waitress.
“What's not to love?” he asked, smiling ear to ear.
He was convincing. And with his smiling eyes and contagious laugh, he was even loveable. I thought, “I wish we could try the case in this bar. It would be a lock.”
The next morning was a bit rough. I had stayed out late with Louie, drinking too much red wine. I had a wife and two babies in diapers. What was the matter with me?
“Do you prefer to hang out and drink with Louie Vernell?” asked Elizabeth later that night, visibly hurt.
“It's just the stress of trial, honey,” I told her. “You need to understand that Louie and I have to talk about things that happened in court and plan for the next day. Please understand. OK?”
“I need to understand?” she asked, getting more upset. “What I understand is that from the smell of things, you drank a lot last night. I was here alone with our babies. I moved from Miami, away from all my friends. I have nobody else here. I was looking forward to you coming home and talking to me, and to having dinner together.”
She was crying now. I felt like pond scum. “I'm so sorry, honey,” is all I could say while I hugged her. “When this thing is over, I promise, we'll do a lot of things together. OK?” I couldn't blame Elizabeth for her tears. She had sacrificed a lot for our new family. But new family or not, the life and death trial was continuing. Three hours of sleep and three cups of coffee later, I was back in court, ready to fight again.
I wasn't done yet with all the police reports that constituted the prosecution's “discovery.” This time I worked on Cindy, who happened to be the first prosecutor to show up. Tyson and the jurors weren't in yet, so it was an opportune moment for me to get in her face.
“Cindy, you guys are speculating big-time on Gil's involvement in the murder of David Theodore Richards. Look, even your own report here states that.”
“Don't tell me; tell the judge,” Cindy replied.
“Come on Cindy. Talk to me. Look, it says here, ‘Richards was a financier for a drug ring run by race boat champion Ben Kramer and Indianapolis 500 driver Randy Lanier, and was shot in his Fort Lauderdale home on Aug. 3, 1984.’ Then it says, ‘Gil allegedly tried to extort money from Richards’ friends after the killing.’
“Cindy, this report has nothing to do with this indictment! Why did you guys include this in our discovery, if not just to poison the well?”
“John, if it's not admissible, the judge will tell us,” she said dismissively, turning away from me to go through a stack of papers on the table.
“It was nice talking to you, too,” I said sarcastically.
The reports that bothered me most were the ones that dealt with the murder of Tommy Felts, Gil and Bert's alleged accomplice. One report was paraphrased in The Miami Herald, lending it credibility in the public's mind: “Thomas ‘Tommy’ Felts was a member of a ring of bodybuilders who allegedly worked as mob enforcers. He was shot in his pickup truck on Stirling Road in Hollywood, Florida on Oct. 6, 1985. Minutes earlier, he had picked up the Apollo Gym keys from Bert Christie and asked Gil Fernandez to join him for a brief workout. Felts was reputed to have been present at the murders of Walter Leahy, Dickie Robertson and Al Tringali. He told his wife and brother that he wanted to leave South Florida but he knew that he wouldn't be allowed.”
The Felts murder had been trumpeted in the press as yet another crime for which Gil and Bert were responsible. In fact, prosecutors and FBI agents claimed that the Felts murder—and the state's star witness Michael Carbone's belief that Gil and Bert were involved in the murder—was the trigger that ramped up the fear factor inducing Carbone to accept immunity and testify. According to Carbone and his FBI agent friends, Tommy Felts participated in the triple murders and must have been eliminated as a witness. Carbone feared he would be the next victim because he was the only other person involved who wasn't dead or in jail.
The OCD reports on Tommy Felts, Johnny Irish, George Gold, the Vitales and David Theodore “Ted” Richards, were too voluminous to contain. And to make matters worse, there were still even more murders being discussed in the press. Reading aloud the list of people who were supposedly dead because of Gil and Bert would almost be like launching into a filibuster on the floor of the Senate.
It was time to take this to our “neutral and detached” magistrate. Tyson was about as neutral and detached as I was humble and serene.
“Proceed, Mr. Contini,” ordered Tyson, “with your motion to exclude evidence of collateral crimes.”
“Your Honor, the statewide prosecutors have totally poisoned the well in this case. They've infected the court file with naked allegations of organized crime ties. They have dozens of police reports alleging our clients are guilty of more than a half-dozen uncharged murders.”
Louie Vernell then weighed in with his own little sarcastic remark. “Your Honor, these defendants have been accused in the press with everything but the Lindbergh kidnapping.” Even though the interruption was an irritant, I couldn't help but laugh, along with Gil and Bert. I turned and noticed that Neli, Gil's parents, and Bert's daughters and ex-wife were laughing, too. But not everyone thought it was funny. The victims’ families looked at us with the usual hate in their eyes. And, of course, Tyson wasn't laughing. “We discussed this last week and I've ruled on that issue,” Tyson retorted dryly.
Then I grabbed the ball back from Louie. I winked at him and raised my index finger, silently asking him to let me finish uninterrupted. He nodded in agreement. “I know it sounds like I'm raising the same concerns we discussed last week in the gag order motion that Your Honor denied. This time, however, I'm saying the defendants’ right to a fair trial is being denied for a different reason, Judge. It's not about pretrial publicity. I'm talking about something that's interfering with our fundamental ability to defend against the three murder charges contained within the current indictment.”
Molloy started to get up to say something. I decided to be polite for a change. I smiled, cocked my head slightly, raised the same index finger and silently urged Doug solicitously. To his credit, he remained seated and let me finish.
“Judge, the state has intimated that it might seek to introduce into evidence or somehow refer to these other murder allegations. We're talking about uncharged murders here, Your Honor. To permit the prosecutors to even refer to evidence of collateral crimes for which the defendants are not indicted would be extremely prejudicial and illegal. And just as obviously, it would be grounds for a mistrial.
“Any possible relevance of this sort of evidence—and there is none by the way—would be substantially outweighed by its prejudicial effect, according to Rule 403 that we discussed earlier when Your Honor disallowed those church tapes. As you know, that's the rule regarding admissibility of any evidence the state claims is relevant, including for these uncharged crimes.
“Just as we argued before, if the probative value or relevance of any evidence is substantially outweighed by its prejudicial effect, then it's not admissible. And I can't think of anything more prejudicial than additional murder allegations. The bottom line is, Your Honor, you know that evidence of collateral crimes is not admissible in the case in chief, to show somehow that the defendant acted in conformity therewith…”
As Doug stood to respond, Tyson put his hand up like a traffic cop. As if he had just suddenly woken up and heard what I had been saying, he asked, “Wait a minute. What other murder allegations?”
“Yeah, like you don't read the same newspapers everyone else reads,” I thought.
I replied, “The newspapers have been quoting allegations like those in this report, the one the prosecutors provided us in discovery. Here's an example of the type of stuff the discovery material contains. Please allow me to read it to you: “William Halpern was a firefighter and cocaine dealer who had his throat slashed in Miramar, Florida on Oct. 21, 1986. Harry Van Collier is suspected of this killing. He is reputed to be a member of Bert Christie's bodybuilding and mob-enforcement ring. According to Collier's wife, he came home on the 21st with red stains on his pants. She said he hid knives and cash around the house and barricaded the doors. He was alleged to have told her, ‘We finally got the man we've been watching.’
“The inference, Judge, is that there's a mob ring run by Bert, and that they had been watching Halpern before they killed him. This is precisely the sort of prejudicial and inflammatory material that should never be permissible.”
“I will not permit any reference to these other murders, if that's your motion,” Tyson ruled.
“I could kiss you, Judge,” I almost said. Looking back at a very relieved and happy Neli, I saw her smother Emma with her embrace. Gil's dad was grinning from ear to ear and I could have sworn I saw him wiping away happy tears.
I knew that never should have been a close call in the first place and that it was time to go for broke. Something told me I'd better keep riding the judicial wave while I was still on the board. I didn't know when I would be beached on the shore with a mouthful of sand.
“Your Honor, there are actually more murders we need to address. This report provided by the prosecution alleges that Harry Van Collier was a member of the mob bodybuilding ring. Police say that he and James Hinote, Jr., who was a cocaine dealer, were both shot in the head in Pembroke Pines on May 14, 1987.
“The report goes on to state that before the murders Mr. Fernandez had been asking about Hinote's drug business. Van Collier supposedly informed Fernandez and Christie that he planned to leave South Florida and join his wife in New Jersey on the night of his death.
“Tests showed that the bullet that hit Harry Van Collier exploded. Supposedly, Mr. Fernandez showed up at the hospital the next day to have lead removed from his eye. My client is alleged to have given the police a statement that the metal was lodged there during an accident in the gym. The report goes on to say that a machine gun and a shotgun were seized in Van Collier's house, both of which belonged to Mr. Fernandez and were linked to…”
“That will not be referenced in this trial, if these victims are not the same ones named in this indictment,” ruled Tyson, as he held up the indictment contained in the court file.
Gil and Bert, who were sitting at opposite ends of the defense table, reached around Louie and me to briefly clasp one another's hands. The Fernandez family was in a group embrace by this time. It was the same with the Christie family. Then the two families were hugging each other, smearing their happy tears all over one another's cheeks. I would have loved to have that moment on film. But the cameras were focused instead on the victims’ families’ faces, which were filled with painful despair. Apparently, that made for better theater.
Molloy was now standing but said nothing. The photographers clicked away while some of the spectators on the prosecution side wept and shook their heads, clearly disappointed with Tyson's ruling. There was no doubt whose side they were on. Doug remained quiet because he knew the admission into evidence of any of these other murder investigations would constitute reversible error. If the case were reversed, it would have to be tried all over again, even if the state were to prevail. There was no way Doug wanted that either.
Being street-savvy, Molloy no doubt realized that his office had just been handed a very convenient ruling from Tyson. It enabled him to explain to all the other grieving families why their loved ones’ murders wouldn't be discussed during the Fernandez/Christie trial. You could almost hear the prosecutors telling the other families, “because the judge ruled that he won't allow it.”
“Your Honor,” I continued, “we're also seeking the same ruling for the same reasons, with regard to the murder investigations we haven't discussed yet. The police reports on these also were provided as part of our discovery.”
“Who are the victims?” Tyson asked.
“Charles Mitchell Hall and Charlinda Draudt. Draudt was Hall's girlfriend. The couple had their throats slashed in Tamarac, Florida on May 6, 1987. There were fingerprints found on the duct tape at the scene that the police say belonged to Harry Van Collier, who I mentioned earlier. Shortly before he was killed, Hall told friends he knew who killed Halpern. He was alleged to have been killed to prevent him from revealing this information.”
“Same ruling,” Tyson replied. “Are there any other motions?”
“Just a few dozen, Judge,” I joked.
No one laughed.