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July 22, 2020

Stay Tuned Bonus: Scenes from the Mueller Probe (with Anne Milgram & Andrew Weissmann)

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In this bonus material from a special episode of Stay Tuned, “Scenes from the Mueller Probe,” Anne Milgram talks to Andrew Weissmann, former lead prosecutor in the Mueller investigation, about his time reforming FBI’s forensics lab, that time he prosecuted Vincent Gigante, the boss of the Genovese crime family, and a death penalty case he defended early in his career as a young lawyer.

In the full episode, Weissmann reflects on the probe, shares his view on the Roger Stone commutation, and previews his forthcoming book, Where Law Ends: Inside the Mueller Investigation. 

As always, tweet your questions to @PreetBharara with hashtag #askpreet, email us at [email protected], or call 669-247-7338 to leave a voicemail.

REFERENCES & SUPPLEMENTAL MATERIALS

  • Spenser S. Hsu, “Convicted defendants left uninformed of forensic flaws found by Justice Dept.,” Washington Post, 4/16/2012
  • Spenser S. Hsu, “U.S. reviewing 27 death penalty convictions for FBI forensic testimony errors,” Washington Post, 7/17/2013
  • “FBI Testimony on Microscopic Hair Analysis Contained Errors in at Least 90 Percent of Cases in Ongoing Review,” FBI.gov, 4/20/2015
  • “Innocence Project Praises DOJ for Undertaking Unprecedented Review of FBI Forensic Testimony,” Innocence Project, 2/24/2016
  • Robert Mueller, Testimony on Forensics before the Senate Judiciary Committee, CSPAN, 5/16/2012
  • Eddie William Finney, Petitioner, v. Walter D. Zant, Warden, Georgia Diagnostic Andclassification Center, Respondent, 709 F.2d 643 (11th Cir. 1983), Justia
  • “First set to die, Ga man gets life in killings,” Access DWUN, 9/21/2013
  • Joseph P. Fried, “In Closing Arguments, U.S. Says Tapes Prove Gigante Is Mob Kingpin,” New York Times, 7/23/1997
  • Blane Harden, “Gigante Guilty of Racketeering, Conspiracy,” Washington Post, 7/26/1997
  • Selwyn Robb, “Vincent Gigante, Mafia Leader Who Feigned Insanity, Dies at 77,” New York Times, 12/19/2005

Anne Milgram:

Hi, folks. Anne, here. I hope you enjoy the rest of my conversation with Andrew Weissmann. This bit is just for the Insider community. I hope you’ll find it interesting.

Anne Milgram:

One of the things you did when you were FBI general counsel is you led an effort to look at the way that the FBI was handling forensic evidence. So people can think about whether it’s … from DNA to hairs that are found at the scene of a crime, serology, blood stains that might be found at the scene of a crime. This is a whole space that we don’t spend enough time, I think, thinking about and talking about. You get to the FBI, you’re general counsel, and you find that there’s this challenge. So this is one of my favorite good government stories, and so maybe you could talk us through what did you find when you got there that warranted action?

Andrew Weissmann:

Sure. This is an example of both horrendous abuse and terrific response, and I’m not going to take any credit for that. I think there were a lot of people at the Bureau who dealt with this wonderfully. So the issue was a series of news articles came out in the Washington Post, terrific reporter who was reporting on some cases defended by the local federal defenders. As you know, the federal defender office in Washington is superb. I mean, probably second to none. There were three people who had their convictions overturned and there was hair evidence where expert from the FBI had testified that a hair from the defendant matched a hair at the scene. I’m just giving a gross overview in generalization of the facts, and that a match meant essentially one-to-one or almost one to one in terms of placing, essentially, the defendant’s hair at the scene. Obviously that can be devastating proof.

Andrew Weissmann:

Well, when DNA evidence came in, their samples were still around and they were tested, which itself is unusual to have them still be around and to be able to get testing because that can be very difficult and the government can fight that. Sure enough, the hairs did not match and they were exonerated and released. So I talked to the lab and tried to find out what exactly was the science at the time, and the science at the time was that you could say something matched, this hair looked just like that hair, but you couldn’t … and I remember their phrase. You couldn’t make a statement of probability because you didn’t know how many hairs were in that universe so you didn’t know if it was like Coca-Cola cans.

Andrew Weissmann:

In other words, this one looks just like that, but there’s 2 billion like that. Or was it one to one? So in a quick look on Westlaw Computer’s system of cases, I saw that whole bunch of cases where the courts talked about the incredible importance of the hair in the case, and I thought, “Okay, something’s wrong because it’s barely relevant.”

Anne Milgram:

You say it’s barely relevant because under the standard you just said, what you could legally say, it basically shouldn’t make a big difference for a jury.

Andrew Weissmann:

Exactly. Basically it’s almost like it’s important because you could exclude somebody, but not really include them. In other words, there’s no match, could be relevant, but the match is almost irrelevant because you don’t know whether it’s one to one or one to 2 billion. So one to two billion, just for non lawyers, is obviously irrelevant by far. So the FBI put together a whole team, we reviewed tens of thousands of cases.

Anne Milgram:

Did you pull the transcripts, all the testimony?

Andrew Weissmann:

We were pulling the transcripts, we had to have teams to identify the defendants, to identify their counsel, figure out how we were going to alert them. In evaluating the transcripts, we wanted an outside reviewer. So we paired with The Innocence Project, which just did an incredible job.

Anne Milgram:

It’s probably never been done before in the Bureau.

Andrew Weissmann:

Well, they had done … I wouldn’t say a similar project, but they’d done an analogous project, but this took the flaws in that and augmented it. We got the solicitor general and the deputy attorney general to agree to waive all procedural arguments so that defendants wouldn’t be time-barred and they could still raise these claims.

Anne Milgram:

What did you find when you looked through all this? Did you find the testimony was what you expected it to be? That it could be one in 2 billion or one to one, we don’t know what the probability is?

Andrew Weissmann:

I forgot the exact amount. I can’t remember, but I kind of predicted what we would find, which was … I think it was over 90% of the cases. It was more than that, but I can’t remember. It was like 95% of the cases had flawed testimony by the FBI.

Anne Milgram:

By the FBI agents testifying.

Andrew Weissmann:

By the way, this is just the FBI. There’s state examiners as well, and there’s no similar review. Then because, as I mentioned, this had been going on before I got there in an unrelated science with the head of compliance at the FBI, wonderful fellow named Pat Kelly, we put together a whole protocol to go through all of the soft sciences to make sure that it wasn’t going on. It’s a horrendous, horrendous problem, but it was definitely what I’ll call the Director Mueller approach to it. We were completely candid with what happened. We briefed both parts of … the Republicans and Democrats in Congress, the inspector general, all of the U.S. attorneys about what was going on.

Speaker 3:

Upon indications that some of those examiners who examined particular hair may have overstated the import of their examinations, the Justice Department, with ourselves contributing, are going back to look at what universe of persons may have been covered by these examiners, which cases may have had occasion where the examiners testified and did overstate the import of their examinations, and then to do whatever notifications are appropriate given that review.

Anne Milgram:

It’s such a great story. Not that there aren’t problems, but how you can approach a problem and think about increasing justice and fairness in the system.

Andrew Weissmann:

Absolutely. When I teach now with you at NYU Law School and what I like to remind students, as wonderful as careers can be in the legal aid society or the ACLU and other advocacy groups and our system wouldn’t work as well as it did and does without them, it is also possible to go into government and do the right thing and make change from within. When you have leadership as I was fortunate to have that back you, you can make those changes.

Anne Milgram:

That’s such an important message. So you’ve had a long and incredible career in the law. What’s the hardest case you think you’ve ever done or hardest matter you’ve ever handled?

Andrew Weissmann:

I think maybe because of my age, but also because of the importance, it was the first pro bono case I worked on as a young lawyer, as an associate in a law firm. It was a death penalty case and we were on habeas review. We were representing the defendant and his name was Edward Finney. He was in his early 20s and he had committed a horrendous crime with somebody twice his age and two elderly women were killed. Our client had worked for these people for years and was cutting their grass. He was dirt poor and lived in Macon, Georgia, and this older gentleman had left prison, found out he worked there and said, “Let’s go there and rob them.” So they did, and there were separate trials and the older gentlemen, he got off. He was convicted but got off in terms of the death penalty, which was the key issue on a sort of Jean Valjean theory. He’d been a creature created by the justice and the prison system, and the jury bought it and he was given life.

Andrew Weissmann:

Our client had been sentenced to death and it turns out that he … we got the case on habeas. We were in New York. We asked to see his school records and got those sent to us from the local public school in Macon, Georgia. Those were sent up to us and it turns out since he was four years old, he had been diagnosed as mentally disabled. The defense lawyer had not raised that issue with the court because the defense lawyer thought that the state would just say he was malingering, meaning he was faking. But these documents prove that of course he wasn’t faking. So the stakes couldn’t have been higher and our advisor from the ACLU said, “Look, the whole goal is to get out of state court as unscathed as possible.” It was a lesson to me because I remember thinking, “Oh, well we’ll have an ineffective assistance of counsel claim,” which is a legal challenge if your defense lawyer has not met certain minimal requirements.

Anne Milgram:

Because the lawyer didn’t raise that as part of the trial?

Andrew Weissmann:

Exactly. Certainly, at least raise that at sentencing.

Anne Milgram:

At the death penalty. Yes. So that’s often … the childhood factors and education and mental health would always be relevant for sentencing.

Andrew Weissmann:

Exactly. I mean, it’s a huge factor. I remember George Kendall, who’s probably renowned in this area, saying, “Andrew, this doesn’t come close.” It was heartbreaking.

Anne Milgram:

To ineffective assistance of counsel?

Andrew Weissmann:

Exactly. So we get to the trial level at Georgia State Court and we win. Not on ineffective assistance, but the trial judge said, “You know what? In Georgia, we believe in the death penalty, we are tough on crime, but we’re fair. I’m finding that it’s unconstitutional under the Georgia constitution to kill somebody who is mentally disabled,” and that precluded because it was based on the Georgia state law. It didn’t matter what was happening federally, and at the time … I’m so old that this was at a time that the Supreme Court of the United States had said that you could kill people who are mentally disabled. So it was remarkable because you had the Georgia Supreme Court ultimately saying, “No, you can’t under the Georgia constitution.”

Anne Milgram:

So the sentence went to life in prison.

Andrew Weissmann:

It went to life imprisonment, which … I mean, he was guilty of the crime, but that seemed like a … it certainly saved his life, which was incredibly rewarding, but incredibly difficult emotionally.

Anne Milgram:

That was one of your first cases when you were a junior lawyer?

Andrew Weissmann:

Yup.

Anne Milgram:

So if you think about it, I asked you your hardest case, what case or matter have you loved the most?

Andrew Weissmann:

I think it was the Vincent Gigante case. He was the boss of the Genovese family.

Anne Milgram:

One of the five big Italian mob families for people who don’t follow the mafia as closely.

Andrew Weissmann:

In New York, they’re five La Cosa Nostra families, and he was the head of the Genovese family, which was, at the time, the was powerful. He was quite wiley because there was a famous case called the Commission Case where all of the leaders of all five families were indicted and arrested except Vincent Gigante. Why? Because he had checked himself into a hospital, a mental institution, a few days before, and for the next 20 years he appeared, when he was outside the street, to be insane.

Anne Milgram:

He was the guy in the bathrobes, right?

Andrew Weissmann:

Yes.

Anne Milgram:

I remember these articles. Yeah. Tell us about it.

Andrew Weissmann:

So it’s actually great that we both teach at NYU because his headquarters was on Sullivan Street, which is right near NYU. He would appear in a shoddy, thin, cotton bathrobe with a lot of stubble, and his nickname was The Odd Father.

Anne Milgram:

Instead of The Godfather. I like that.

Andrew Weissmann:

Exactly, and he did this for years. So you certainly thought, “Okay, this is kind of remarkable that he would do this.” Also, who would do that for so long? But he escaped going to jail.

Anne Milgram:

Was he still running the family at this time when he was pretending or he was walking the streets in his bathrobe?

Andrew Weissmann:

Absolutely. He was running the family and he did something else that was very smart, which is that there was a rule in the Genovese family that you could not use his name because he did not want to be caught on tape, but he also was savvy. He didn’t want others people to be recorded talking about him.

Anne Milgram:

So what did they call him?

Andrew Weissmann:

They would say, “That guy”, or because his nickname was Chin, they would just tap their chin. So it wouldn’t appear on a recording.

Anne Milgram:

On a wire tap on someone’s phone.

Andrew Weissmann:

They would go, “That guy,” and you and I can see each other and you can see what I’m doing, but for your listeners-

Anne Milgram:

You’re tapping your chin, for the record.

Andrew Weissmann:

Exactly. So incredibly savvy. One of our great pieces of proof was we had a cooperating witness who was an associate in the Genovese family, and we had them go up to the underboss, that’s the number two position, and he used Vincent Gigante’s name. Immediately the underboss says, “Shh! Don’t say that.” The reaction was so great because if he’s really just a vegetable and he’s not running the family, who cares? I mean, why not just say his name? That was the description of his doctors, and so his doctors were saying that his mental condition was so depleted that it was akin to a vegetative state. But the big break in showing that he was competent … because that was the main issue. In order to get a trial, you have to have a judge say that he is competent to go to trial. You can’t bring a defendant to trial unless they’re mentally competent.

Andrew Weissmann:

An FBI agent named Charlie Baldwin in the New York office had discovered that Vincent Gigante had not just a wife and children in New Jersey, but also had a girlfriend and children in a townhouse between Fifth and Madison and 77th street, which is … you and I know is a very tony area. This agent for three months was in a school where he had permission to go, and it was faced the back of that townhouse. Night after night, he would look into the townhouse and record in contemporaneous handwritten notes what he was seeing. I remember meeting Charlie in my office and saying, “So what did you find?” And he goes, “Oh, the investigation was really blown.” This was years before our case. I said-

Anne Milgram:

Was it part of your investigation? No, it was a separate investigation. Okay.

Andrew Weissmann:

It was a separate investigation and it had never gone anywhere. I said, “Well, what happened?” And he said, “Yeah, we just didn’t see anything criminal. I mean, there was … nothing happened.” I was like, “Well, what did you see?” And he goes, “He was reading the newspaper, he was talking to people, he was counting money.” Of course my eyes lit up and I was like, “Well, did you ever see him in a bathrobe?” And he’s like, “Yeah, sure.” I said, “What did it look like?” And he goes, “I don’t know. Sort of like a Brooks Brothers, fluffy, white terrycloth bathrobe,” and that became this vignette that we played out to the judge of the internal persona and the external persona and the bathrobe was such a good example of that.

Anne Milgram:

Yeah. I vaguely remember the bathrobe that he used to walk around in Greenwich Village wearing, which was in tatters. Right?

Andrew Weissmann:

Yes.

Anne Milgram:

It was in horrible condition, it made him look like he was potentially homeless or like he suffered from a mental health issue.

Andrew Weissmann:

Absolutely. He was definitely in character and fully clothed. He had a very good costume designer.

Anne Milgram:

So did that case go to trial? What ended up happening?

Andrew Weissmann:

In addition to that, we had a number of cooperating witnesses. Sammy Gravano, Al D’Arco. At that point, we’d had these major cooperating witnesses who were leaders in organized crime who had decided to cooperate, which was very, very unusual at the time. So first the defendant was found competent and then the case went to trial and we played out all of that competence evidence to the jury so that they could see, well, why would you go through all of that if there wasn’t something to hide? The witness who, by the way, made the tape recording where he used the name, he was dying of cancer in the witness protection program and he testified remotely from his death bed and died just two weeks after the trial. It was so dramatic and there was conviction. So that was a tough case, rewarding case too, in bringing somebody to justice.

Anne Milgram:

That was when you were at the Eastern district of New York? That was when you were a prosecutor there?

Andrew Weissmann:

Yep.

Anne Milgram:

As always, please write to us with your thoughts and questions at lettersatcafe.com.

 

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Stay Tuned Bonus: Scenes from the Mueller Probe (with Anne Milgram & Andrew Weissmann)

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