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Jonathan Hafetz

Hi, I'm Jonathan Hafetz, and welcome to Law on Film, a podcast that explores the rich connections between law and film. Law is critical to many films, film, in turn, tells us a lot about the law. In each episode, we'll examine a film that's noteworthy from a legal perspective. What issues does the film explore? What does it get right about the law and what does it get wrong?

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Jonathan Hafetz

How is law important to understanding the film? And what does the film teach us about the law and about the larger context in which it operates? This episode, we'll look at Mr. Untouchable, a 2007 documentary directed by Mark Levin. Mr. untouchable describes the rise and fall of former New York City drug kingpin Leroy Nicky Barnes in the early 1970s, Barnes formed the council and organized crime syndicate that controlled a significant part of the heroin trade in Harlem.

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Jonathan Hafetz

Inspired by the Italian-American Mafia, Barnes became one of the most powerful and notorious figures in New York City. A flashy and flamboyant fixture on the free wheeling social scene of the period. Barnes quickly drew the attention of law enforcement. After several unsuccessful state prosecution attempts, Spahn was indicted, along with multiple other associates by federal prosecutors in New York in 1977.

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Jonathan Hafetz

Barnes was convicted and sentenced to life imprisonment. Barnes, however, was released in 1998, in exchange for working as a government informant and entered the Witness Protection Program, where he remained until his death in 2012, and during which time he would publish the memoir on which the documentary is based. Barnes was also depicted in Ridley Scott's 2007 film American Gangster, which starred Denzel Washington as Frank Lucas, another notorious drug kingpin from the era.

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Jonathan Hafetz

Cuba Gooding Jr played Barnes in that film. Joining me to talk about Mr. Untouchable and the Nicky Barnes case is Robert Fisk, who is senior counsel at Davis Polk in New York, where he previously served as litigation partner for many years. Bob Fisk is one of the most prominent and respected trial lawyers in America. He's been involved in some of the most notable cases of the last half century, including a special prosecutor in the Whitewater controversy and death of white House counsel Vince Foster, the Three Mile Island nuclear disaster, the antitrust suit between the USFL and the NFL, the most contentious America's Cup ever, and the financial swindler Bernie Madoff.

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Jonathan Hafetz

Bob also served as U.S. attorney for the Southern District of New York from 1976 to 1980, during which time he led the prosecution of Nicky Barnes. Bob has received numerous professional honors and achievement awards. Too many to list here. I will add, he is the author of prosecutor, defender, counselor The Memoirs of Robert B Fisk, Jr, where he discusses many of the numerous notable cases in his illustrious career.

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Jonathan Hafetz

Bob, welcome to law on film. It's truly an honor and a privilege to have you on the podcast. Well, thanks, Jonathan.

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Robert B. Fiske, Jr.

I'm very glad to do it.

00;03;10;00 - 00;03;18;03

Jonathan Hafetz

So can you tell us a little bit more about the background for the Nicky Barnes case and the heroin cocaine trafficking in Harlem in the 1970s?

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Robert B. Fiske, Jr.

In the 1970s, both in the Harlem and the South Bronx. Heroin was rampant. Cocaine to a lesser extent. But there were an enormous number of heroin sales. And of course, the trafficking in heroin produces other crimes because addicts need to commit other crimes to satisfy their habit. So there was a huge crime wave in the 1970s, particularly in those two areas all over.

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Robert B. Fiske, Jr.

As a result of the heroin that was being imported through Italian suppliers and distributed on the streets by drug gangs like Nicky Barnes.

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Jonathan Hafetz

And so fast forward, there were 50 plus years later, there's tremendous amount of federal narcotics enforcement. But take us back to this period of time, you know, 50 years ago or so, what role did the federal government have at the time in prosecuting narcotics offenses?

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Robert B. Fiske, Jr.

Well, there were obviously state prosecutors in in Manhattan, also in the Bronx. There was a special narcotics prosecutor that had responsibility for narcotics prosecutions in all five boroughs of New York and the federal government was also involved. But basically, the federal government in the U.S. attorney's offices tended to concentrate on the bigger fish and left the more routine prosecutions to the state level.

00;04;42;14 - 00;04;53;27

Robert B. Fiske, Jr.

There wasn't to say that there weren't efforts by the state to prosecute big fish also, but essentially the federal government basically reserved itself for the for the major suppliers.

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Jonathan Hafetz

And so Nicky Barnes was one of those big fish, right? Who was he and what made him such a significant figure?

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Robert B. Fiske, Jr.

Well, he was the leader of probably the largest, most effective drug ring in New York at that time. And but I think what made him stand out was that he had been prosecuted four times, twice by the Manhattan DA's office, twice by the Bronx DA's office for narcotic crimes and other related crimes. And he'd been acquitted every time.

00;05;24;20 - 00;05;44;23

Robert B. Fiske, Jr.

So he was 48 to 0 against state prosecutors in terms of jury verdicts. And as a result of that, he had earned a reputation the nickname Mr. Untouchable. And he had become a folk hero, basically in Harlem because of his success and some of his nose at that law enforcement.

00;05;44;26 - 00;05;47;23

Jonathan Hafetz

And he didn't keep a low profile either.

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Robert B. Fiske, Jr.

No. Absolutely not. He was very flashy. Flashy would be an understatement.

00;05;52;29 - 00;06;17;05

Jonathan Hafetz

And so in 1976, you become U.S. attorney for the Southern District of New York. And in March 1977, after two years of work with the Drug Enforcement Agency, the Southern District of New York brings an indictment against Barnes, charging that he was the head of a loose knit narcotics organization through which massive quantities of heroin and cocaine were distributed on the streets of New York.

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Jonathan Hafetz

In addition to Barnes, the indictment also charged five of Barnes top lieutenants and nine other members of his organization. So what was the legal strategy or thinking behind this indictment?

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Robert B. Fiske, Jr.

Well, I think the the strategy was basically to try to bring Barnes to justice. And the indictment was the product of a lengthy investigation. The principal torture, which was a cooperating witness informant named Robert Geronimo, who had agreed to cooperate with the DEA and who was very friendly with one of the defendants, who was indicted, named Wally Fisher, who was a younger brother of Guy Fisher, who was the number two man in the Barnes organization.

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Robert B. Fiske, Jr.

And it was through the undercover work of Geronimo, which also involved undercover DEA agents, that the indictment was produced.

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Jonathan Hafetz

In putting together the case that you or your office spilled on sort of other cases, and thinking about the strategy behind framing the indictment and prosecuting Barnes and his associates.

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Robert B. Fiske, Jr.

There'd been a history of major drug cases in the Southern District of New York, going back all the way to when I was an assistant U.S. attorney back in 1957. So there had been a series of major prosecutions. My predecessor, Paul Curran, had a major one right before I came in. So we were following a mold that had been said before, basically.

00;07;44;29 - 00;07;47;21

Jonathan Hafetz

So there was like a playbook. Barnes was something of a different figure.

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Robert B. Fiske, Jr.

He was by far the most prominent, I think, of the people who had been prosecuted.

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Jonathan Hafetz

And so in your memoirs, you say that everything changed when in June of 1977. So just a couple months after the indictment was filed, the New York Times Magazine and featured a cover picture of Nicky Barnes striking an arrogant pose with the caption Mr. Untouchable and the subtitle. This is Nicky Barnes. Police say he may be Harlem's biggest drug dealer, but can they prove it?

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Jonathan Hafetz

So why did everything change? And what was the significance of the New York Times Magazine story in terms of the case and its stakes?

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Robert B. Fiske, Jr.

When the indictment was returned. The two principal prosecutors were experienced assistants in the narcotics unit times here, and Bob major. And the plan was for those two to try the case together with a very young new assistant U.S. attorney named in his coat to be sent, became a federal judge. But in June, Sunday in June 1977 and went out to the mailbox to get the New York Times.

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Robert B. Fiske, Jr.

And there when I opened it up there on the cover of the magazine section, was this picture of Nicky Barnes with an arms folded kind of an arrogant pose with the caption that you just described. And inside it was a lengthy article, started out by depicting a vignette of a scene in an apartment building, an all night session, naked women sitting around a table packaging heroin that had been imported from Italy, cutting it to diluting it and then packaging it to be sold on the street naked.

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Robert B. Fiske, Jr.

Obviously, so that they wouldn't be stealing it in the process. And the article estimated that the profits from that were $2 million a week, which would be basically $10 million a week in today's money. And then it went on to describe Barnes himself with a sort of flamboyant spit in your eye attitude, thumbing his nose at law enforcement.

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Robert B. Fiske, Jr.

And he described how he had like 200 pairs of shoes, 100 suits. He had several high rise penthouse apartments, flashy cars and Mercedes Benz and BMW, Lincoln Continental and so forth. And then he described how he had become basically a role model for young kids in Harlem, because he was able to focus on law enforcement. And he described how he would lead the police on a wild goose chases all around Harlem.

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Robert B. Fiske, Jr.

And he'd become a role model for young kids because they looked at how successful he was selling drugs. They saw he'd beaten the rap four times. So they sort of thought, you know, hey, white guys going to Wall Street? We don't have to do that. We can just sell drugs, get away with it like Nicky Barnes. So he was a folk hero for the young African-American kids in Harlem in the South Bronx.

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Robert B. Fiske, Jr.

And the article ended with a vignette where Barnes was on trial for one of his cases. And he goes into the washroom during a recess, and he's standing there washing his hands with a detective next to him, and they finish washing their hands, and the detective reaches for a paper towel, dries his hands. Barnes reaches into his pocket, pulls out a roll of $100 bills, dries his hands on him, throws him at the detective, walks out, and the article ends by saying so.

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Robert B. Fiske, Jr.

Now the feds have taken their shot, but the betting in Harlem is Nicky is going to win again. So the next morning, this was a Sunday. The next morning, probably 9:00. Phone rings. My assistant, Michel Torelli, tells me it's Attorney General Griffin Bell on the phone. He says, But I've just come from a cabinet meeting. President Carter read this article and he told the cabinet, this is the most important case we have in the country today, because if we can't put somebody like this away, there's something wrong with our criminal justice system.

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Robert B. Fiske, Jr.

And Bell said the president had asked him. We have a good case, don't we? And Bell obviously knew nothing about it. And he told the president, don't worry, Mr. President. We'll be fine. He said to me, we do have a deal. Don't we, Bob? And I said, well, will we have problems with informants credibility? But, you know, I think we'll be okay.

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Robert B. Fiske, Jr.

So there was a pause and he said, Bob, this case is really important to the president. And I said, okay, I get it. I get the message. So the next morning I called in Tom and Bob and Dee and said, I'm going to be trying this case with you. So that's how things changed in June of 1977.

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Jonathan Hafetz

So no pressure, right? That's, Yeah. Yeah. I mean, in the documentary as well as the American guys, we really do show the sort of flashiness of Nicky Barnes in that you kind of talked about and the kind of challenge that he posed. I also had love the idea that you heard about this, The Times Magazine, by just going out and grabbing your paper.

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Jonathan Hafetz

Right? I mean, as opposed to today, and your email would have been popping or your phone. Exactly. Now everything's moving a little bit the.

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Robert B. Fiske, Jr.

Old fashioned way.

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Jonathan Hafetz

The old fashioned way. But yeah, but the message got there. So moving to the trial to before the trial, you file a motion for a sequestered jury. What led you to to do this and out of the judge judge worker rule on this, and also an issue around an anonymous jury.

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Robert B. Fiske, Jr.

It was fairly common in those major drug cases to move for a sequestered jury, and it was not unusual for that to be granted by sequestered jury. That means at the end of the day, the jury doesn't go back home. They go to some awfully unknown location in a hotel somewhere, and the defense lawyers hate sequestered juries because the jury being together that much tends to bond together.

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Robert B. Fiske, Jr.

It makes it more unlikely there'll be a hung jury. So they always opposed. And so we had filed a motion for sequestered jury. The defense lawyers had opposed it, and we came into court, I think probably in some day early July, for a ruling from Judge Walker. And Judge Walker said, well, I'm going to grant the motion for a sequestered jury.

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Robert B. Fiske, Jr.

That was not a great surprise. But then he went on to say what was a huge surprise. And beyond that, he said, you're not going to know the names of the jurors. You're not going to know their address. You're not going to know their ethnic background. All you're going to know is this juror number one from New York County, this is juror number two from Rockland County.

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Robert B. Fiske, Jr.

And then, of course, you can ask him questions at that point after that. But you're not going to know their name, their address, or their ethnic background. This was totally unprecedented. Nothing like this ever been done before. And the defense lawyers understandably went totally ballistic. I mean, screaming at the jury, judge, you can't do this. This is outrageous.

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Robert B. Fiske, Jr.

Sit down. I ruled. Judge, can we brief this? Can we at least on a brief sit down rule? So I'm sitting there, and I. I had about five seconds to make a decision. And one thought that raced through my mind was, wow. You know, this is unprecedented. Do I really want to start out this really important case with this huge appellate issue hanging over our heads?

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Robert B. Fiske, Jr.

So maybe I should say, you know, judge, maybe I kind of agree with these guys. Maybe we should step back and take another look. Then the next thought that raced through my mind was, well, if I say that, he'll tell me to sit down. And then on appeal, the defense lawyers will be able to say even the government had reservations about this.

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Robert B. Fiske, Jr.

So I said nothing. And we got the start of the case with the anonymous jury.

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Jonathan Hafetz

Wow. Amazing to have to make that snap decision. Right. And said, you know, I worry about the record. So double down and then just wait and hope.

00;15;53;07 - 00;16;15;14

Robert B. Fiske, Jr.

Moments in life, you know you have five seconds to just go one way or the other. I did the right thing. And of course I should say since then I wouldn't say routine, but common to have an anonymous jury. But most the anonymous juries that are approved now are that you don't know their names, you don't know their addresses, but you are allowed to ask about their ethnic background.

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Robert B. Fiske, Jr.

And that's that was the difference between what's allowed now and what judge work are allowed in that very first ruling.

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Jonathan Hafetz

In a column about Barnes and the trial, the legendary New York journalist Murray Kempton wrote, if a thousand of us stood in a crowd and Nicky Barnes was one among us and the Martians landed, their commander would not say, take us to your leader. He would go at once like pirate to a magnet, to Nicky Barnes. So what were your impressions of Nicky Barnes from the trial or otherwise?

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Robert B. Fiske, Jr.

Well, I 100% consistent with that. You could tell the way the defense seated themselves at the trial. Barnes was at the very end of the table closest to the jury with his lawyer, David Breitbart. And he was a very commanding presence. I mean, you could feel the tension, the electricity in the room when he was there. And I think one of the things that may have contributed to the verdict was actually, I think the jury probably had a sense of that.

00;17;13;26 - 00;17;20;01

Robert B. Fiske, Jr.

I mean, they could see what a commanding presence he was, but we felt it every day.

00;17;20;03 - 00;17;36;25

Jonathan Hafetz

One challenge you faced, and you alluded to this before, involve your witnesses and in particular your key witness, the DEA agent Robert Geronimo, who is interviewed and featured in Mr. Untouchable. So what were the particular challenges you faced with Geronimo and how did you address them?

00;17;37;00 - 00;18;18;26

Robert B. Fiske, Jr.

Robert Geronimo was interviewed in The Untouchables, and he tells his story, I think, very well. But we knew before the trial started that we had some significant credibility problems. And then another one developed unexpectedly during the trial, which I could get to later. But the basic initial credibility problem with Geronimo was that he was cooperating with the DEA, and there were 2 or 3 times when he went into a bar where Barnes was and he came out, and then he told the DEA about a very incriminating conversation that they had had with Barnes and the DEA agent wired him up with a Nagra tape recorder.

00;18;18;27 - 00;18;43;09

Robert B. Fiske, Jr.

And so they basically said, wow, that's really impressive. Does he have the tape? The tape was blank. And Geronimo would say, well, the tape recorder must have malfunctioned. And that happened at least twice, maybe three times. So finally, the same thing from any conversation comes out. Tape is like a tape recorder malfunction. So they finally they feigned a broken leg that Geronimo had a broken leg.

00;18;43;16 - 00;19;08;04

Robert B. Fiske, Jr.

They put a cast on his leg. And embedded in the cast was a transmitter, so that it was simultaneously transmit what was ever going on between Geronimo and whoever he was talking to, and he could hear it. So again, Geronimo comes out. He's had a conversation with Barnes, which was incriminating, but all the agents heard while he was in there was music.

00;19;08;10 - 00;19;31;17

Robert B. Fiske, Jr.

And when they said, hey, what's going on? Geronimo! And he said, well, I guess we were standing next to the jukebox. The jukebox was to drown out our conversation. So you can sort of roll your eyes at that. Right? So we knew upfront we had a significant issue with his credibility. And so we had a debate. Tom and Bob major and I, we had some evidence we thought would corroborate him.

00;19;31;19 - 00;19;55;00

Robert B. Fiske, Jr.

And the question was, do we put Geronimo on, get him subject to audience cross-examination, then put the corroborating evidence in or should we sort of corroborate him upfront? So the jury is preconditioned to believe him even despite these issues. And we decided to do the former. So I called the first witness, did the trial, and it went something like this.

00;19;55;02 - 00;20;16;17

Robert B. Fiske, Jr.

Would you state your name, please? Yes, my name is Robert Thompson. So what do you do for a living while I'm the superintendent of a high rise apartment building in Fort Lee, new Jersey. Well, now you have a penthouse apartment in that building. You said yes, we do. Q well, could you describe the penthouse apartment for the jury?

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Robert B. Fiske, Jr.

Yes, it has a kitchen. It's got a dining room. It's got a living room. It's got two bedrooms. Beautiful view of the Hudson River. Did you have a tenant in that penthouse apartment? He said, yes, we do. Do you have a garage in the basement? Yes we do. Does the tenant have a car in the garage? Yes, he actually has two.

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Robert B. Fiske, Jr.

He has a Mercedes and he has a maserati. So now in the morning, when this tenant comes down to leave the building, do you sometimes greet each other? Yes we do. And what does he say to you? Well, he says, good morning, Mr. Thompson. What do you say to him? Well, good morning, Mr. Darling. How do you see Mr. Darling in the courtroom?

00;20;58;28 - 00;21;21;22

Robert B. Fiske, Jr.

Yes. And it's Nicky Barnes. And so a second witness. Same thing, only it's a second. And our apartment also in Fort Lee. It's the same scenario. Penthouse tenants got Lincoln Continental and no. Two Lincoln Continentals in the basement. And so, did you greet him in the morning? Yes. What does he say to you? Morning, Mr. Duffy. What do you say to him?

00;21;21;22 - 00;21;59;08

Robert B. Fiske, Jr.

Good morning, Mr. Rice. How do you see Mr. Rice in the courtroom? Yes, Ricky Barnes. So that all took maybe 20 minutes. The next thing you do, we print in the tax returns of Barnes, which showed, among other things, that he had. He claimed $500,000 of miscellaneous income. Obviously prime avoid a net worth tax prosecution of the kind of got Al Capone sent away and the tax return preparer, and also prepared the returns of 7 or 8 of the other defendants, including other members of his count.

00;21;59;11 - 00;22;30;07

Robert B. Fiske, Jr.

So then the third thing we call a witness named Ernest Smart, who testified that in 1974 she had sold a substantial quantity of quinine to Nicky Barnes, point on being a substance that was commonly used to dilute heroin, and she was stirred of a very savage cross-examination by Barnes, his lawyer, David Breitenbach. And I remember the last question and answer where he was challenging her identification of Barnes.

00;22;30;10 - 00;22;58;13

Robert B. Fiske, Jr.

And he was pressing really hard. And she finally said, well, look, if it wasn't him, it was his twin brother. So basically, in that first morning we'd established, here's a guy with a making a lot of money, declared $500,000 worth of miscellaneous income, living in two different apartments under two different false names, and buying a large amount of substance commonly used to dilute heroin.

00;22;58;15 - 00;23;06;03

Robert B. Fiske, Jr.

So we thought we had done a pretty good job of establishing Geronimo's credibility before he took the stand.

00;23;06;05 - 00;23;10;09

Jonathan Hafetz

That's amazing. I mean, amazing strategic choice, which again paid off, right?

00;23;10;09 - 00;23;46;01

Robert B. Fiske, Jr.

So we also had a major issue during Enron amongst cross-examination by Breitbart. He was on the stand for probably two days of cross-examination and maybe near the end of the second day, it was about four, maybe 430. We're going to recess at five. And Geronimo had regularly reported to the DEA. But everything he was doing, you know, April Trading, Barnes organization and all of that was memorialized in what they called a DEA six, which is like an FBI 302.

00;23;46;04 - 00;24;24;06

Robert B. Fiske, Jr.

It's a written document that basically records what Geronimo was telling the DEA agents. And of course, in discovery, we turned over all of that over to the defense. And there was one item that refer to one particular weekend, which we thought really had nothing to do in the end with the case. So we didn't bring it up in the direct examination, but it chronicled how he and Wiley Fisher had gotten together and they had driven down to Baltimore, basically, and they'd gone to some hotel room somewhere, and they had basically used angel dust supplied by some person that was only identified as Jap.

00;24;24;09 - 00;24;46;01

Robert B. Fiske, Jr.

Clearly, there was no reason to bring that up. So around 430, all of a sudden Breitbart starts asking about this and he says, so tell me what you did. You know, Geronimo faithfully repeats this when we got in the car. What kind of a car we're driving? We went over the George Washington Bridge. Yes. You go down the new Jersey Turnpike.

00;24;46;01 - 00;25;14;14

Robert B. Fiske, Jr.

You ended up in Baltimore? Yes. You went to the hotel? Yeah. Smoked angel. That's a guy named Jap. Yes. Yes, yes. And then there's a pause. And this is like ten minutes of fire. And then Breitbart produces a receipt from a motel in Buck Hills, Pennsylvania, for the same date. And he just described he lives in Baltimore and it's it's signed by one the tooth one Wiley Fisher one.

00;25;14;14 - 00;25;34;27

Robert B. Fiske, Jr.

Geronimo. And they were there with two women. And so the whole thing was completely made up. He never went to Baltimore. There was no such thing as Jap. Actually, he and Wiley Fisher were were these two checks in? But he ordered Sylvania and he ended at 5:00, you know, very effective, because that's the last thing the jury heard before they went home.

00;25;35;00 - 00;25;52;07

Robert B. Fiske, Jr.

And he obviously made the whole thing up. He told a whole series of lies right on the witness that and Judge Walker was really upset, and he called us in and he said, you know, you're going to have to do something about this. If you don't do something about this, you're not gonna like what I say to the jury.

00;25;52;07 - 00;26;15;13

Robert B. Fiske, Jr.

And my charge at the end of the case is this is pretty outrageous. And so we consider Bob major and I, we huddled, decided we told the worker that after the case was over, we would present that evidence to the grand jury and leave it up to the grand jury whether they were going to indict Geronimo for perjury, which he had clearly committed numerous times.

00;26;15;16 - 00;26;38;08

Robert B. Fiske, Jr.

And that satisfied Judge Walker. And so we went on from there. But that was a big hit. We had a second issue with credibility with another witness named Promise Bruce, because Guy Fisher was the number two person in the group. He'd actually been in jail during this whole undercover operation. So we didn't have very much evidence against him.

00;26;38;15 - 00;27;01;07

Robert B. Fiske, Jr.

But we promised Bruce. We testified about purchasing some heroin from Guy Fisher back before he went to jail. And Tom's here, was conducting the examination, and Tom asked him about the conversation that led up to the purchase. And the defense lawyer said, well, fix the time. And so Tom said, well, when was it? And he said, well, it was in the spring.

00;27;01;10 - 00;27;18;14

Robert B. Fiske, Jr.

And then Tom says, so what month says November? Next thing in the record is the judge saying, Mr. Singer, would you like a recess? But in the end, despite those still bumps in the road, we were able to put together a convincing case against Barnes and he was convicted.

00;27;18;17 - 00;27;30;09

Jonathan Hafetz

How did you handle like with Geronimo? You satisfied the judge with the perjury referral. But did you do anything back on redirect or in summation, how did you handle it in terms of trying to massage it for the jury?

00;27;30;12 - 00;27;51;17

Robert B. Fiske, Jr.

Well, I just think we acknowledged that that was a series of lies. And of course, you can take that into account in assessing his credibility, but you also in assessing his credibility, you have to look at what evidence, what other evidence is that convinces you that on the main issues in his testimony, he was telling the truth. He obviously lied about that.

00;27;51;17 - 00;28;10;24

Robert B. Fiske, Jr.

He didn't want to admit it. Over the weekend with Wally Fisher, with the women, he made up that story for the DEA agents. But that's really a sideshow. The real question is, was there sufficient evidence that shows Barnes was leading this criminal enterprise? And you look to all the other evidence in the case, and we had some pretty good evidence.

00;28;10;24 - 00;28;42;12

Robert B. Fiske, Jr.

In particular, there was one situation where Geronimo introduced an undercover agent, the agent named Louie Diaz, a very, very effective undercover agent. And he introduced him as his rich friend, rich cousin from California who wanted to buy drug big time. And so Fisher said, you should go to PD Wallach, one of the defendants. And so Diaz did buy some drugs from Wallach, and then maybe he took a few days later, Geronimo was talking to Fisher.

00;28;42;12 - 00;29;15;18

Robert B. Fiske, Jr.

And Fisher says, Nicky says, next time you shouldn't buy it from Roland. You should buy it from that be Monsanto, and you should do it at the Harlem River Motors garage, which is basically their headquarters. So maybe two days later, the DEA agents were surveilling the garage. They saw Barnes go into the garage, and a few minutes later, Diaz drives in and with a tape recorder, he buys drugs from Monsanto, with Barnes standing right there.

00;29;15;21 - 00;29;24;29

Robert B. Fiske, Jr.

And then he drives out. And so that was pretty powerful evidence. And we had other evidence that, in the end, was sufficient to carry the day.

00;29;25;01 - 00;29;32;26

Jonathan Hafetz

You also had another issue that came up in the case, right, with a juror who the defense dubbed the Marlboro Man.

00;29;32;29 - 00;29;55;12

Robert B. Fiske, Jr.

Yeah, yeah. Going back to this anonymous jury, juror number two from Westchester County turned out to be a bank executive. I'm not sure whether they ever identified the bank, but in the questioning, the jury came out. He was an executive, high ranking executive in some bank in Westchester, and he sat there like a ramrod, you know, in the jury box.

00;29;55;15 - 00;30;15;24

Robert B. Fiske, Jr.

And during that first morning, when his facial expressions convinced the defense lawyers, he was already made up his mind. And as the trial went on, they watched him. That's why they gave him the game. The more they called him, the more of a man he would have done anything to get him off the jury. The of man, of course, being the man who was on the cover of the film or cigarets.

00;30;15;26 - 00;30;44;01

Robert B. Fiske, Jr.

So we had an event probably two months into the trial for him near the end. We didn't have much evidence against God. Fisher, as I mentioned before. So Tom's here found a witness who testified to drug transactions directly with Guy Fisher, the only problem was that he had been interviewed by the D.A. several times before, and it never mentioned these transactions.

00;30;44;03 - 00;31;15;28

Robert B. Fiske, Jr.

So the lawyer for Guy Fisher, Paul Goldberger, just absolutely took him apart. I mean, just was devastating. It was a perfect example of the stakes lawyers make when they look at the upside of a witness without fully evaluating the downside. And in this case, the downside clearly exceeded the upside. And so this was a big setback. And so we were in the office probably 7 or 8 at night licking our wounds, trying to figure out how we're going to deal with this.

00;31;16;01 - 00;31;42;07

Robert B. Fiske, Jr.

We got a call from the judge Lockhart. Right. Was and he said, essentially, you better get over here right away. We got a big problem. So we get over there and there's Paul Goldberger with two other of the defense lawyers. They're spitting bullets. They're so mad. And according to Goldberger, the three of them are walking the they walk out of court, they're walking down Pearl Street.

00;31;42;09 - 00;32;10;10

Robert B. Fiske, Jr.

It's night to November, and they see the bus with the jury presumably taking the jurors wherever they're going to go for the night. And in the very back of the bus, sitting next to the window is the Marlboro Man, and he happens to be right under a streetlight. So he's very clear. And as they walk by, he looks down at them and Goldberger says he was looking right at me, and he gives them the finger like this.

00;32;10;13 - 00;32;28;19

Robert B. Fiske, Jr.

And so Goldberger and then it's headed to the judge. Jurors obviously made up his mind. You got to kick him off the jury. He's not faithful to his oath. You're not supposed to make up your mind. Deliver no evidence. This guy clearly made up his mind. You're got to excuse him. And the judge said, no, I'm not going to do that.

00;32;28;19 - 00;32;48;05

Robert B. Fiske, Jr.

He said, well, you should at least then you don't believe. Then you should ask the other jurors. And he said, well, I'm not going to do that because you're probably deny it. And then that's going to create dissension among the jury. We start asking them whether they think the other juror lied so forth. So I'm not going to do that either.

00;32;48;08 - 00;33;24;04

Robert B. Fiske, Jr.

What I will do, basically all I will do is I will give a jury an instruction tomorrow that if you don't like one of the lawyers, don't hold that against his client. So the Marlboro men survived and we survived. Actually, this, of course, was a huge appellate issue later, along with the anonymous jury. But what basically saved the day was that after Guy Fisher, there was a hung jury and Goldberg had clearly said the marble man was looking right at me when he said this.

00;33;24;07 - 00;33;44;29

Robert B. Fiske, Jr.

And also there were two other minor defendants that were acquitted. So we were able to argue effectively to the Second Circuit that there was no harm here, because Guy Fisher was a hung jury and there was no spillover effect because they were able to acquit two others. So the Marlboro Man and we both survived.

00;33;45;02 - 00;33;51;10

Jonathan Hafetz

Were you surprised by the verdict when it came in with guilty against Barnes and 11 others?

00;33;51;12 - 00;34;23;13

Robert B. Fiske, Jr.

Well, I wasn't surprised by the verdict, but the key the key charge in the indictment was count number two. Count one was a basic narcotics charge, for which I think the maximum would have been 15 years. But count two was a continuing criminal enterprise, for which we had to show that Barnes was the leader of an organization where he had supervisory authority over at least five other people, and the maximum penalty for that was life without parole.

00;34;23;15 - 00;34;44;10

Robert B. Fiske, Jr.

So when the verdict for the first count came in, which included convicting Barnes on several counts, including most of the other defendants were convicted, two were acquitted and Guy Fisher hung jury. But the key one was his count two, when he came in with guilty on count two, that meant life without parole for Barnes.

00;34;44;13 - 00;34;53;14

Jonathan Hafetz

So and you were able to prevail, as you said, on on appeal in the Second Circuit, any other challenges than the ones you described or think notable about the appeal?

00;34;53;16 - 00;35;14;12

Robert B. Fiske, Jr.

Well, yes, we had, of course, a huge issue with the anonymous jury. We had the issue with the Marlboro Man. We had an issue with the tax returns, because that was very novel at the time, and there were a number of other issues. And I remember when we went up to the Second Circuit on appeal, I relied on the very best minds in the office.

00;35;14;15 - 00;35;35;09

Robert B. Fiske, Jr.

So we had a team of Larry Pedowitz, Bob Johnson, Rick Weinberg, but the very best appellate lawyers in the office. And I remember saying to them, we don't want to write a very long, brief to the second circuit, because I don't want to create any impression that there's any big issues here. And there was a pause and I said, Bob, guess what?

00;35;35;12 - 00;36;04;08

Robert B. Fiske, Jr.

There are some serious issues here. So we ended up filing a 200 page brief, and the case was in the second circuit for ten months, and it came down with a 50 page opinion by the Second Circuit and affirming across the board, but with a very strong dissent, budget minuscule on the anonymous jury. So we won 2 to 1 with Judge Moore and Judge Van Gracelyn on the anonymous jury.

00;36;04;10 - 00;36;19;14

Robert B. Fiske, Jr.

And later there was a petition for rehearing en banc. And on that we won 5 to 3. So it was a very contentious issue. And of course, it took Second Circuit ten months to decide the appeal. So that was a long ten months.

00;36;19;16 - 00;36;49;06

Jonathan Hafetz

Yeah. I mean, that's a, definitely some internal questioning, at least among the second circuit. So stepping back, what were some of the broader implications of the Barnes case? I mean, obviously, you were able to sort of rise to the challenge that person dealt and handed to you. And Jody Barnes was not, immune or above the law, but for the larger questions around drug trafficking and the use of the continuing criminal enterprise under Rico, with many broader implications for narcotics or other other cases.

00;36;49;09 - 00;37;14;13

Robert B. Fiske, Jr.

Well, I think I told the judge at the time, and by the way, that the sentences that were handed out by judge worker, of course, Barnes got a life without parole. But several members of his counsel received sentences of over 30 years. And cumulatively, the sentences in this case one of the largest sentences that had ever been handed out in any one single drug case.

00;37;14;15 - 00;37;42;01

Robert B. Fiske, Jr.

And I told you, worker at the time I thought the significance of the case, which we had broken up, basically, when I described, is the largest and most effective and the most venal drug ring in New York. But I think secondarily, in some ways, equally important, hopefully we had sent a message to the young African-American kids in South Bronx and Harlem that being a drug dealer was not a viable career path.

00;37;42;03 - 00;37;50;29

Robert B. Fiske, Jr.

So those were the two significances of the case beyond establishing the precedent for the anonymous jury, which has been used ever since.

00;37;51;01 - 00;38;01;25

Jonathan Hafetz

When you saw Mr. Untouchable, the documentary, did you find the portrayal of Barnes and the case accurate, and did your impressions of Barnes change over time?

00;38;01;27 - 00;38;24;21

Robert B. Fiske, Jr.

Well, I thought the movie did a very good job of describing Barnes, who he was, and everything about the trial. I think they did an excellent job. Of course, a lot of the movie at that point was Barnes agreed to be interviewed for the movie, and a lot of it was interviews with Barnes talking primarily about what he did when he later cooperated.

00;38;24;23 - 00;38;33;16

Robert B. Fiske, Jr.

And that's an aspect of Barnes. And of course, I never saw I just saw him in a courtroom as a very imposing, commanding figure.

00;38;33;18 - 00;38;51;00

Jonathan Hafetz

Yeah. I mean, the cooperation and the later cooperation is, yeah, a part of the movie. And it seems like from the documentary, Barnes basically trying to get back at the council for his being upset about the way they treated him and what went on after he was convicted.

00;38;51;02 - 00;39;16;11

Robert B. Fiske, Jr.

Yes. And this was after I had left the office. But he basically called Bill Tandy, who was then, chief assistant from prison, and basically said he would like to cooperate. And he came in and did under when John Martin was a U.S. attorney and and testified against a number of the members of his counsel. And there were a number of very significant convictions as a result of that.

00;39;16;13 - 00;39;34;01

Jonathan Hafetz

I mean, one of the fortunate things or one of the aspects of Mr. Untouchable was Barnes, because he's in witness protection. It wasn't witness protection at the time. He since passed away. We don't see his face, right. His face is blurred. So we lose that. We still we see the pictures of him, all the photographs that kind of portray him in the in his milieu in the 70s.

00;39;34;01 - 00;39;55;03

Jonathan Hafetz

We do, though, in the American gangster film, which focuses on that, said Frank Lucas, different narcotics figure from the period, the Barnes character, or Nicky Barnes, played by Cuba Gooding Jr. We do see a portrayal of Barnes in that movie to try to give kind of a sense maybe of who he was. Did you think they kind of captured Barnes in American Gangster?

00;39;55;06 - 00;40;23;05

Robert B. Fiske, Jr.

I thought the American gangster Frank Lucas was basically trying to bring Barnes down, as not as significant a figure as he was. I did not think that that was a valid I mean, I sort of attribute that to professional jealousy is he was a competitor. But significantly, by the time I came in as 1976, by the time we prosecuted Barnes, Lucas and already been convicted, he was already cooperating.

00;40;23;07 - 00;40;31;18

Robert B. Fiske, Jr.

His drug ring was gone. So at the time I was prosecuting Barnes, that was the most significant drug ring in New York.

00;40;31;21 - 00;40;47;07

Jonathan Hafetz

And you can go back and you want to see it's a fictional portrayal by Cuba Gooding Jr, but you really get the sense the movie, I think, captures all the suits and the flashiness of Barnes and the clubs like, and also the mingling with like non organized crime. These were something of a.

00;40;47;07 - 00;40;59;10

Robert B. Fiske, Jr.

Socialite, right? He was totally I mean he went to the Frazier Alley fight. No that kind of thing. He was definitely a very as a flamboyant figure, a very much of a personality.

00;40;59;12 - 00;41;12;15

Jonathan Hafetz

And so Bob, in your long and extraordinarily distinguished career, you've been involved in some of the most significant high profile cases in U.S. history. So where does the Barnes case fit in, and what, for you is the most important legacy of the case?

00;41;12;17 - 00;41;35;24

Robert B. Fiske, Jr.

Well, I would say looking back on all the cases that I tried, I would think Barnes and probably in many ways the most significant I mean, when the president of the United States says this is the most important case in the country, I mean, and you were you were able to convict that person. You know, it's pretty hard to say that anything else would ever rise to that level.

00;41;35;26 - 00;41;58;18

Robert B. Fiske, Jr.

So that was probably the most significant thing I did. And I thought I thought it was it was so important because as I said to the judge, we've broken up this very effective drug ring. And also we sent that message, which is not something that I think was attributable to any other drug dealer, to the same extent that there were the African-American kids in Harlem, in the South Bronx.

00;41;58;24 - 00;42;13;19

Robert B. Fiske, Jr.

They thought he was a folk hero. And so being able to send him away for life without parole basically sent a very good message to them. So that I think was the most significant. That's those were the two significant aspects.

00;42;13;22 - 00;42;22;24

Jonathan Hafetz

Well, Bob, thank you so much for coming on the podcast. It's been, as I said, just an honor and a privilege to have you on to talk to you about Nicky Barnes and your career.

00;42;22;27 - 00;42;28;00

Robert B. Fiske, Jr.

Thank you so much for that. I really appreciate it and I really enjoyed it.