By ANEMONA HARTOCOLLIS
A Manhattan judge declared a mistrial this afternoon in the racketering case of John A. Gotti, who contended that he had renounced his position as the "heir apparent" to the Gambino crime family,after a jury proclaimed itself hopelessly deadlocked.
The jury in Mr. Gotti's three-week trial deliberated about a day and a half before sending in a note, spiked with capital letters, to the judge at 1:25 p.m., saying that they were making "ZERO headway," that they were "completely DEADLOCKED" and that "no juror can find it in their conscience to change their mind, based on our interpretation of the evidence."
In a "P.S.," the jurors wrote that "We want to leave ASAP."
Based on two previous notes the jury had sent in Thursday and again today, it appeared that the panel was hung on the question of whether Mr. Gotti had renounced mob life in 1999, as his defense claimed. It also appeared, based on the wording of the final note, that more than one juror — and not just a single holdout — believed he had left the mob.
The question of whether he had quit the life of a mob leader at that time was seen as critical in the case, because of a five-year statute of limitations on racketeering charges.
The jury had sent the judge a similar note about an hour and a half earlier, and Judge Shira A. Scheindlin had given them a formal charge to continue deliberating in the hope of reaching a verdict, a customary procedure in such cases.
This time, after lengthy discussion with prosecutors, who initially wanted to send the jury home for the weekend to sleep on it, Judge Scheindlin declared a mistrial, with the government's consent, at about 2 p.m.
This was the second hung jury for Mr. Gotti in six months on virtually the same charges. In September, after eight days of deliberations, a jury acquitted him of conspiracy to commit securities fraud, and Judge Scheindlin declared a mistrial on the more serious racketeering counts of kidnapping, construction industry extortion and loan-sharking. At that time, notations on a verdict sheet indicated that a single holdout juror had refused to convict.
As he left the courtroom, a subdued Mr. Gotti hugged his waiting sisters, Angel and Victoria, his mother, also named Victoria, and his younger, brother Peter, telling his brother, "We gotta go one more time."
Outside the courthouse, his mother, telling waiting reporters, "Your sons are next. That's what they're trying to do, railroad my son."
Prosecutors asked Judge Scheindlin for a "speedy retrial date." No definite date was set yesterday, after Mr. Gotti's lawyers cited financial hardship, saying they had not yet been paid for this trial because Mr. Gotti's property had been "tied up," in the words of one defense lawyer, by the government. The implication was that Mr. Gotti needed to sell property in order to pay his legal fees.
Mr. Gotti's lead lawyer, Charles Carnesi, said that for a case to be tried three times was not extraordinary, but that more than three trials would be very unusual, "because then you're just playing the law of averages."
Mr. Gotti was charged with three acts of racketeering conspiracy: the kidnapping and conspiracy to kidnap Curtis Sliwa, the talk radio-show host and founder of the Guardian Angels; conspiracy to commit extortion in the construction industry; and loan-sharking and conspiracy to commit loan-sharking.
Prosecutors said Mr. Gotti had ordered the attack on Mr. Sliwa in June 1992, in retaliation for his using his radio show as a bully pulpit to insult Mr. Gotti's father.
The charges were part of the prosecution's efforts to show a broad pattern of racketeering going back to the 1980s, and to portray Mr. Gotti as the acting boss of the Gambino crime family, taking over from his father, John J. Gotti, after the elder Gotti's arrest and subsequent conviction in the early 90s.
The second trial was a streamlined version of the first one. It was much shorter, and it freed Mr. Gotti of the taint of two co-defendants. After trial, the judge cleared one of them, Michael Yannotti, the accused shooter in the Sliwa kidnapping, of attempted murder on a legal technicality. The other, Louis Mariani, was convicted of three counts of securities fraud.
In trying to prove their case, prosecutors relied heavily on two turncoat witnesses, Michael DiLeonardo and Joseph D'Angelo, who set the stage for the trial by testifying about intimate details of mob life, from the induction ritual for Gambino soldiers, which involved burning a picture of a saint stained with the prospective member's own blood, to a brutal murders. They also provided the key testimony implicating Mr. Gotti in the specific charges.
None of the murders that the witnesses told about, however, involved Mr. Gotti directly. Prosecutors could not even pin attempted murder charges on him in the Sliwa case, because their Mr. DiLeonardo and Mr. D'Angelo testified that Mr. Gotti had ordered a severe, "hospital beating" of Mr. Sliwa, and that Mr. Sliwa was shot instead because one of his attackers panicked and botched the plan.
Mr. D'Angelo, the driver of the stolen taxicab that picked up Mr. Sliwa in the kidnapping plot, testified that his accomplice, Michael Yannotti, became flustered when Mr. Sliwa jumped into the cab unexpectedly, and shot him. One bullet penetrated both his legs, the other tore through his intestines, leaving him near death, though he recovered.
Unlike the other charges, which depended on the testimony of the turncoat witnesses, it was hard to deny that the kidnapping ever occurred, and Mr. Sliwa testified for the prosecution.
But because the attack on Mr. Sliwa took place so long ago, prosecutors had a problem. Even if the jury found Mr. Gotti guilty of that count, it would not be enough to convict him. To satisfy the five-year statute of limitations, the jury had to be convinced that Mr. Gotti carried out at least one more act of racketeering conspiracy within five years of his July 2004 indictment.
Mr. Gotti built his defense around the contention that he had renounced his life in organized crime before 1999, when the statute of limitations began ticking. This was the part of Mr. Gotti's second trial that diverged most sharply from his first trial. Although Mr. Gotti's lawyers also claimed in his first trial that he had withdrawn from the mob, they did not introduce any witnesses to support his claim.
This time, his new lawyer, Mr. Carnesi, did. A parade of witnesses — including Mr. Gotti's younger brother, Peter, a cousin, Michael DiGiorgio, and even Ronald L. Kuby, Mr. Sliwa's radio partner — took the stand to support Mr. Gotti's claim.
"He was sick of this life; he wanted this to be over," Mr. Kuby, a criminal defense and civil rights lawyer, recalled Mr. Gotti telling him in the spring of 1998, when Mr. Gotti was contemplating pleading guilty in an earlier racketeering case. "He wanted to rejoin his family and be done with this."
From the point of view of spectators, Mr. Kuby's testimony was somewhat sensational, because he was turning against his own co-host on the WABC-AM radio show "Curtis and Kuby," leading Mr. Sliwa to call him "Judas" on the air. It was not clear whether jurors connected the two, although Mr. Kuby identified himself on the witness stand by the title of the show.
The defense also showed a poignant jailhouse videotape of Mr. Gotti talking to his dying father in 1999. The jury could hear Mr. Gotti telling his ailing father that he was afraid the government would pursue his brother, Peter, his children, and perhaps even his grandchildren. He said he wanted to give prosecutors their "pound of flesh," and then move his family to "a house in Carolina." Mr. Gotti pleaded guilty to racketeering in that earlier case in April 1999.
His lawyer, Mr. Carnesi, pointed out that Mr. Gotti, who has been either in prison or under house arrest since 1998, when he was arrested in the earlier case, had already served more time than Sammy Gravano, once the Gambino family underboss, who pleaded guilty to murder before turning state's witness.
From opening arguments on the first day, the prosecution and defense presented starkly different images of Mr. Gotti. To prosecutors, he the faithful son and heir of John J. Gotti, the former Gambino crime family's "dapper don," who died of cancer in a maximum security federal prison in 2002, while serving a life sentence without parole.
But the defense portrayed the son as a reluctant heir to the family's legacy of organized crime, someone who early in his life may have been seduced by his father's legendary charm and power, but who came to regret the price that Mafia life exacted on his wife and children.