The Prosecutor as Underdog

Lifting 135 Ibs. of concrete blocks from the bottom of Jamaica Bay, the bloated body of a Mafia assassin named Ernie ("The Hawk") Rupolo floated ashore one morning in 1964 in New York City's Queens County. Rupolo's murder clearly looked like the gangland variety, which usually defies solution. This time, though, the killers had not displayed their customary efficiency in disposing of the corpse. Moreover, Queens County Assistant District Attorney James C. Mosley was convinced that they had made other errors too. In 1967, he brought a Long Island Mafia lieutenant, John ("Sonny") Franzese, and three members of his "family" to trial for Rupolo's murder.

That trial is traced with disturbing impact in a new book, The Prosecutor, by James Mills (Farrar, Straus & Giroux; $5.95). The plot is Kafka in reverse. The prosecutor is a lonely man fighting impossible odds. His key witnesses are afraid to testify. The opposition's maneuvers force him to present his case to the jury like "a movie run too fast, with a lamp too dim and half the frames chopped out." According to Mosley, the case marked the first time in 20 years that Mafia defendants had been brought to trial for murder in New York City. The book, most of which first appeared in LIFE, shows just how difficult it is to obtain a conviction in such cases. It also reminds the reader, who is left sharing Mosley's indignation, of the high price that must sometimes be paid for a cherished body of trial rules that have been set to protect the innocent.

Friends of the Family. Mosley, now 40, is a man whom Mills describes as having "a great, almost warlike hostility for criminals--a hatred that is an outgrowth of, and never overshadows, his love for the law." It is almost as if he knows, as the trial begins, that the process of law to which he has devoted his life will probably set the defendant free. First comes the jury selection. "I need twelve men who can agree unanimously that the defendants are guilty," says Mosley. But if the defense gets one man who refuses to cast a guilty vote, "it's a hung jury and they're the winners." Then the judge's charge to the jury. "You'll hear all the conditions that have to be met before the jury can return a guilty verdict," said Mosley. "You'll wonder how anyone is ever found guilty."

At the trial, Mosley competes with a team of four lawyers for the defense. The courtroom is packed with "family," friends who laugh and whisper insults when Mosley raises objections. To further isolate the prosecutor, defense lawyers win a motion to have his principal investigator, Detective Joseph Price, removed from the courtroom on the pretext that they might call him as a witness. The book also strongly implies that judges are often favorably disposed toward sustaining defense objections, perhaps partly to avoid the embarrassment of having the verdict set aside later because of an error in procedure.

Mosley holds his own, but his case suffers the same weaknesses as others that have been brought against the Mafia. For example, four of his main witnesses have recently been convicted of crimes; in exchange for their testimony, Mosley has promised to recommend lighter sentences for them. Will the jury believe men with their records? One is a Mafia gunman who testifies that, from a hidden place, he saw Franzese's pals stab The Hawk several times in a parking lot. Remarking on the witness's matter-of-fact account, the defense asks the jury: "Did you ever in your life see a more cold, calculated killer?"

The rules prevent the prosecution from referring to the Mafia or making any mention of the defendants' underworld activities that might prejudice the jury. Occasionally, Mosley manages to work in a reference to the witnesses' fears before the defense can get in an objection. And point by point, he builds a strong case.

Smothering Rage. When Mafia men are in trouble, the author contends, "help has a mysterious way of arriving in the nick of time." In the Franzese trial it came just before the judge's charge to the jury, in the form of a letter from a Sing Sing convict named Walter Sher. The letter claimed that one of Mosley's witnesses had admitted to Sher that he himself had killed The Hawk. In an emotional plea, Mosley argued that Sher was a psychopath, who had written the letter without even being asked, hoping to receive favors in prison from friends of Franzese. Sher's testimony, although unsubstantiated, was enough to raise doubts in the minds of the jurors. All four defendants were acquitted, and Mosley was left to smother his rage. "The long arm of the law isn't so long, is it, Jimmy?" says Detective Price to his boss. "Who has more connections, the cops or Franzese?"

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