Podcast - Allergic to Courtrooms
In this episode of "The Trial Lawyer's Handbook," litigation attorney Dan Small looks back on his experience prosecuting the notorious New England mob boss Raymond Patriarca — or lack thereof. As a 73-year-old man who had spent more than 30 years as the head of a criminal organization, Patriarca had no difficulty finding a doctor to declare him medically unfit for trial. Mr. Small, needing a doctor of his own to keep the mob boss included in the trial, quickly discovered that Patriarca's reputation preceded him. He shares the difficulties he faced in getting Patriarca into the courtroom.
Listen to more episodes of The Trial Lawyer's Handbook here.
Mr. Small is also the author of the American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers.
Dan Small: Raymond Patriarca was the powerful and ruthless boss of the Patriarca crime family in New England for more than three decades. His criminal history started in his teenage years when he was charged with hijacking, armed robbery, assault and more. At the ripe old age of 25, he was indicted as an accessory to murder, and it went on from there. As he established control over the mob in New England, he ran his vast criminal empire from a very modest vending and pinball machine business in the Federal Hill neighborhood of Providence, Rhode Island.
But the tentacles of Patriarca's criminal activity ranged far and wide, including labor union offices. He allegedly worked with officials of the Laborers' International Union to funnel the union's insurance and service business into companies they had set up. They then allegedly looted the insurance premiums through kickbacks, payoffs, unearned salaries, and fees and improper expenses. As a federal prosecutor with the Department of Justice's Organized Crime and Racketeering Strike Force, I presented the case to the grand jury and obtained the indictment.
At the time of his indictment, Patriarca was 73 years old. He had some health and heart issues, like many men around that age, but he was more than healthy enough to continue to rule his criminal empire with an iron hand. The joke among law enforcement was that Patriarca was in good health, except for an allergy to courtrooms. He had used his age and health to try to avoid other court appearances, so it was no surprise that he would try the same in our case.
As you can imagine, after decades of doing special favors for his friends and grievous harm to his enemies, Patriarca had no problem finding a local doctor to say, "Oh dear, poor Raymond, he's too ill to go to trial." The defense filed motions to keep him out of court. We could cross-examine their doctor with the fact that Patriarca was well enough to run a violent and extensive criminal enterprise. But once the issue was raised to the court, the government would likely need its own expert, a doctor to examine Patriarca and opine that he was OK to go to trial.
That's where things got difficult. Expert witnesses are generally looking at things in hindsight, explaining and opining on what happened in the past, how something happened, why it happened, what went wrong, etc. Experts often have differing opinions, and the judge or jury has to decide who is right and who is wrong. But when the focus turns forward toward the future, it gets a lot tougher. About 2,400 Americans die of heart-related problems every day. Many of them seem perfectly healthy the day before. Many of them seem perfectly healthy minutes before. How far can a doctor go to give the court certainty — or even comfort — that it won't happen here?
Two basic truths collided. First, criminal trials are stressful events, even for a seasoned pro like Raymond Patriarca. Second, doctors are not fortune tellers. So for a doctor to take the witness stand and say with any certainty that a 73-year-old man with health problems will not have his health impacted by the stress of a criminal trial is a tall order even under the best of circumstances. Well, these were not the best circumstances.
I searched for doctors with good reputations who could examine the defendant and then report to the court with a clean bill of health for trial. Then I started interviewing them. One after another, they expressed interest in being an expert witness for the government — until I mentioned the name of the defendant. Then every one of them lost interest. Some of them communicated that politely with a simple, "No, thanks." Some made excuses, but some were more vocal: "Do you think I'm crazy? Hell no!"
It was a tough sell in the abstract, but when we layered on the reality of Patriarca's violent reputation, it became impossible. Doctors told me that they feared for their business, their houses, their lives and their families. It was no longer a matter of someone winning or losing a hearing or the litigation. It was personal. As a lawyer prosecuting Patriarca for racketeering, I was in no position to deny the danger — however uncertain.
Without a strong medical expert, we couldn't get Patriarca to trial. He was severed out of the case, and it went forward against the other defendants. It was still a prominent case, including high union officials, but not the case we had intended. As it turns out, maybe the experts were right to feel reluctant, or maybe it was just his time. After continuing to run the mob for another three years, Patriarca did in fact die of a heart attack. Justice delayed or justice denied? You be the judge.