Bob Marrow reflects on defending Ronald “Blood” Peak, the enforcer for Frank Lucas.
It was the day of my summation. The prosecution had opened its case against Ralph “The General” Tutino and twelve black defendants from Harlem seven weeks earlier. Thirteen defendants and their lawyers together with three Assistant U.S. Attorneys and their staff of Drug Enforcement Agents had crowded into the well of the courtroom on the 12th floor of the Federal Courthouse on Foley Square in New York City every day since early November 1975, and finally the ordeal was coming to a close.
I had practiced my summation in front of the mirror in my bedroom over and over again. That was after I had thought of little else for days since the evidence part of the trial had ended. After the outline of my speech began to gel in my head, I wrote it out word-for-word on lined yellow paper – legal cap – and read it to myself repeatedly, making small changes until I knew it by heart. I wasn’t going to read it to the jury, but I would have it on the lectern just in case I froze or thought that I might have forgotten something. But that didn’t happen.
I intentionally wore an old, faded corduroy suit for the summation, trying to differentiate myself from the defense lawyers for the major defendants who were sharp dressers and sharp talkers. They were “mafia lawyers” and they looked it. I wanted sympathy for me and my client, Ronald “Blood” Peak and I would try anything to get it, even dressing like a college professor. This is how I started my summation:
May it please the court, ladies and gentlemen of the jury; you probably can’t see this, but my palms are sweating, my knees are shaking and I’m having some trouble breathing. That’s because I’m scared. This is my summation and it is the last time I will get to say anything to you in this case. This is my only chance to persuade you that the government has not proved the guilt of my client, Ronald Peak, beyond a reasonable doubt or by any standard at all. And if I fail to convince you of that fact, which I sincerely believe is true, that Ronald is innocent and that no evidence of his guilt has been introduced in this case, then I will have failed in my duty to Ronald and I will have to live with that for the rest of my life. That’s a frightening responsibility.
By then I calmed down and the adrenalin which made it hard to breath when I stood up to speak, suddenly became a force that focused my thoughts and gave me incredible strength and assurance. I was in a zone of self-confidence that was rare.
I started to roll and made every point quietly and clearly so that no one could doubt that I was right, that Ronald Peak was not guilty and that the government’s case was frivolous. Ronald Peak and I didn’t belong in this case at all. I was so convincing that Judge Irving Ben Cooper, who had favored the prosecution with every evidentiary and procedural ruling since the prosecution began with the Indictment two years earlier, cut me off in the middle of my speech and took a 15 minute recess – unheard of in any trial.
It was a great summation. The afternoon of that day Jeffrey Hoffman, one of the top “mafia lawyers” who represented a major defendant in this case, started his summation by saying something like this: “I know that I probably look to you like a pretty sharp lawyer, and I know that I can sound glib. But I believe in what I’m going to say with the same sincerity that Mr. Marrow conveyed to you when he spoke for his client this morning, and I hope that comes through.” That was high praise from an experienced trial lawyer. I had never heard anything like it said to a jury by one lawyer about another.
Things had not always gone so well for me in this trial. In fact, the first few days were a nightmare. The trial began, after opening statements, with the government’s first witness who was a major member of the heroin distribution network to which, according to the prosecution, every defendant belonged. This was the first major prosecution in which the United States was charging an entire gang of drug dealers in a single conspiracy case. It was a massive prosecution that would last from the first week of November until Christmas Eve.
The first witness testified that he had been a leading member of the gang, headed by Frank Lucas (played by Denzel Washington in “American Gangster”), and that he knew every defendant in the courtroom. Under methodical direct examination, obviously well prepared, he described the activities of the gang in general and then testified to specific acts committed by each defendant in furtherance of the purchase, cutting, packaging, distribution and sale of massive amounts of heroin imported from Italy through Ralph Tutino.
Although Frank Lucas was the head of the gang and the major target of the investigation and prosecution, the government had listed Tutino as the first defendant so that the case would be called in shorthand, U.S. v. Tutino. That made it appear that the government was fighting the mafia. To further this image, the prosecutors put nicknames for each defendant in the cover sheet of the indictment – for example, Ralph “The General” Tutino, and Ronald “Blood” Peak.
My client, Mr. Peak, got his nickname because he was an enforcer for Frank Lucas – he killed people for the gang. At the time of this prosecution, he was imprisoned on state charges of attempted murder and was brought down from upstate to be housed in New York City at the Metropolitan Correctional Center (MCC) next to the courthouse in lower Manhattan for the duration of the trial.
I was representing Ronald Peak by assignment under the Criminal Justice Act which provided lawyers free of charge for indigent defendants. Legal Aid, which usually represents indigent defendants, could only take one of the 13 defendants because they would have a conflict of interests if they represented more than one. The top six or seven defendants were gang leaders and had plenty of money to hire private attorneys. One of the indigent defendants was represented by Legal Aid and the rest were represented by lawyers like me, appointed under the Criminal Justice Act. We were to keep track of our time and bill the government at the end of the case at the rate of $30 per hour. Obviously, at that stage of my career I was not making much money and took whatever I could get.
Getting back to that first government witness, he connected every defendant to the gang and its activities but had said very little about Ronald Peak. He didn’t mention that Peak was a killer for the gang and only identified him as being in a car and passing a bag of heroin out of the window to the government witness. I should not have cross examined him at all because his evidence against my client was so inconsequential. But I was the ninth defense lawyer in the order that the defendants were listed in the caption of the indictment, and when my turn came I made a big mistake.
I had done some research and found that a conspiracy of the kind alleged in this case was similar in law to a partnership, and that each defendant would be liable for any act committed by any other member of the conspiracy/partnership. I thought that I could get the first witness, the prosecution’s major witness, to say that Ronald Peak was not a partner of Frank Lucas or any of the other major defendants in the case. After a few preliminary questions I asked, “Ronald Peak was not a partner to Frank Lucas or any other defendant in the case, was he?”
The witness was confused by this question, for good reason. He had no idea what I meant by the word “partnership” and no one else in the courtroom had any idea of why I asked the question. But one of the experienced private defense lawyers sensed danger and started coughing uncontrollably. Then he started to choke and in a strained whisper asked the judge for a five minute recess.
The judge excused the jury, ordered a recess, left the bench and the lawyers walked out of the courtroom into the hallway where the coughing lawyer had a miraculous recovery.
He turned to me with his face red and inches from mine. “What the fuck do you think you’re doing?”
I said that I was trying to establish that there was no partnership and that my client was certainly not a partner to any other defendant. His eyes bulged and the veins in his neck stood out as he said slowly and clearly as though he were speaking to a moron, “You moron, you are opening the door for Fortuin (the lead prosecutor) to ask a whole new line of questions about partnership on re-direct. You’re opening the door and you are doing tremendous damage to every defendant in this case including yours. Are you a fucking idiot?”
I didn’t know the answer to that question, but I suspected that he did. I remained silent, although my 5th Amendment rights had nothing to do with it. He then instructed me in the same slow and clear tone of voice, “You are going to go back in there, ask the witness if his name is really John Tiffany, and then you are going to sit down and shut up – do you understand?” I nodded, did as I was told and I began to tremble.
This was an unusual case. Tom Fortuin had told the judge at the beginning of jury selection that nine members of the Lucas gang who had agreed to testify for the prosecution were murdered during the months before the trial began. Fortuin was asking that, for the safety of the jurors, their names be withheld from the defendants and their lawyers during jury selection and for the duration of the trial. They would simply be known as Juror # 1 to Juror #12 and four alternates. Of course, the defense lawyers objected that this would make the defendants seem guilty even before the evidence was introduced, but the judge agreed with the prosecution as he did in every evidentiary or procedural ruling (noted above), except one which I am getting to now.
I was trembling because I thought that if I had opened the door to important prosecution evidence damaging Frank Lucas and the others, I would soon be as dead as the former gang members who had agreed to help the government. I walked my dog in Central Park every morning and evening. I was an easy target.
As soon as the trial was adjourned for the day I went directly to the Bar Association library on 44th Street. I researched every possible point to support an argument that I had not opened the door to questions by the prosecution about partnerships. The first argument was that my question had never been answered, thanks to the quick thinking of the coughing lawyer. My legal brief was handwritten and covered twelve pages. I was just about finished when the library closed at 11 pm.
A day or two later all of the defense lawyers had finished their cross examinations and Tom Fortuin rose to begin re-direct examination, which by law is limited to issues raised on cross-examination. One of the first questions Fortuin asked on re-direct was about partnerships. I jumped to my feet and objected that no evidence about partnerships had been raised on cross-examination of this witness, and that the question was improper re-direct.
The judge, sensing an extended argument on the subject, adjourned the trial, excused the jury and asked counsel to meet him in chambers with the court reporter. The judge then asked Fortuin the basis for his question about partnerships. Fortuin said that Mr. Marrow (that’s me) had opened to door to questions on the subject because I had asked about partnerships in my cross-examination of the witness. The judge turned expectantly to me. I read my twelve page brief into the record, slowly so that the court reporter could record every word. Fortuin responded, weakly I thought, but this judge had ruled for the prosecution on every legal dispute. Would he break his record for me?
He did. I am as sure now as I was then that Judge Cooper was not persuaded by my legal arguments. He was convinced of the guilt of every defendant and would stop at nothing to see them convicted and sentenced to the maximum permitted by law. But he had pity for this young lawyer (me), with his whole life ahead of him, who should not be left in a pool of his own blood, dying from a gunshot wound inflicted by an associate of Frank Lucas. (Lucas was imprisoned during the trial on another conviction and could not do the job himself, although he might have choked the life out of me in the visiting room of the MCC when I visited my client.)
I should say something here about Frank Lucas because, as noted earlier, he was portrayed by Denzel Washington in the movie “American Gangster” and anyone who saw that movie might have the wrong impression. Frank Lucas was the incarnation of evil. He was a large man, not fat or heavy but big. His hands were distorted by what seemed to be some kind of horrible arthritis, but his eyes were frightening. If he looked at you in anger, you melted to a quivering puddle on the floor where you stood. Whatever else Judge Irving Ben Cooper may have done as a judge, his decision in this instance saved a life (mine).
It may be too late to make a long story short, but I will cut to the end of the trial. The jury’s verdict was read on Christmas Eve and every one of the thirteen defendants was acquitted of all charges. I thought Judge Cooper was having a stroke as the verdicts were read. The dome of his forehead turned red and throbbed as his mouth was distorted in rage. He had done everything possible to convict these defendants and the jury had impudently and contemptuously disregarded his every signal.
We (all of the attorneys with the defendants who were free on bail) congratulated the defendants who would remain in custody and rushed to the corridor for a celebration. Juror #4, a black lady who sat right in the middle of the first row in the jury box, came up to me and hugged me. She said in my ear, “Mr. Marrow, I hope you’re not frightened any more.”
Photo: Davidlohr Bueso/Flickr