The Chicago Mafia Edition: Former Federal Prosecutor Markus Funk discusses the trial that put a hit on the Chicago Outfit

Episode Notes

Transcript

[Music]

Jonathan Amarilio: Hello everyone, and welcome to CBA’s At The Bar podcast where we have unscripted conversations with our guests about legal news, topics, stories, and whatever else strikes our fancy. I’m your host, Jon Amarilio at Taft Law and joining me as co-host today is Jen Byrne of the Chicago Bar Association. Hey, Jen!

Jennifer Byrne: Hey, John. How’s it going? 

Jonathan Amarilio: Well, thank you. Jen, we have a topic today that any true crime aficionado will love. Really, anyone who enjoy The Godfather, Goodfellas, The Untouchables, The Sopranos, or Casino, which is based in large part on the story and characters we’ll discuss today will love this episode. It’s about the Family Secrets Trial, the prosecution that dealt the most serious blow to the Chicago Mafia also known as the Outfit since the conviction of Al Capone and it all began with a letter and a glove. 

The letter was sent in July 1998 by Frank Calabrese, Jr., the son of Frank Calabrese, Sr., the feared and sadistic street boss of the Outfit’s Chinatown crew. It was addressed to the FBI and almost beyond belief, Frank Jr. offered therein to turn state’s evidence, cooperate with the government and take down his father and his uncle, Nick Calabrese, one of the Outfit’s most trusted hitmen. 

Frank Jr. would end up wearing a wire during countless conversations with Frank Sr. as the father reminisced about his decades-long career in organized crime, trying to teach his son about their murders, family business and, in so doing, providing the government with almost unimaginably useful evidence. The glove belonged to Nick, who, on a warm September night in 1986, had accidentally dropped it on the Chicago Street after murdering one of his closest friends, another mob killer, who had previously botched a hit, John Fecarotta. In the Outfit’s world, it was killer be killed and if you bungled a hit, it would usually cost you your own life, even at the hands of a friend. 

The glove sat in an evidence locker for years untraced to its owner until Frank Sr. told his son about its previously unappreciated importance and the FBI, now knowing its value, but unable to reveal their source told Nick in turn that it had his DNA all over it, and they had him dead to rights. The ruse worked and that’s when it happened. Nick decided to cooperate. 

It was the first time in history that a made member of the Outfit had turned state’s evidence and it changed everything. Combined with Frank Jr.’s tapes and the testimony of 125 witnesses, Nick’s cooperation and eventual testimony led to the unraveling of decades of organized criminal rackets and murders. Operation Family Secrets became the Family Secrets Trial, which began in 2007 and ended with the convictions of Frank Sr., reputed outfit boss Jimmy Marcello, Capo Joey the Clown Lombardo, Corrupt Cop Anthony “Twan” Doyle, and several other feared Outfit hitmen. It was one of the most important criminal prosecutions in the country’s history. And it has gone down in legal and Mafia lore as the biggest hit ever laid on the Chicago outfit. 

Joining us to discuss the trial is one of the government’s then prosecutors, Dr. Markus Funk. Well, Markus is one of those lawyers whose resume is humbling to review. He has a PhD in law from Oxford where he’s lectured. He’s a former section chief with the US State Department. He’s been invited to speak before the US Senate, the Vatican and the World Bank among other institutions of note. And he’s the firm-wide co-chair of Perkins Coie’s White Collar & Investigations Group. Markus has been described by the press as a street-smart prosecutor with an Oxford pedigree, and we’re lucky to have him with us here today. Markus, thank You for joining us and welcome to At The Bar.

Markus Funk: Jon, thanks very much and Jen, great to be with you guys. 

Jonathan Amarilio: Markus, we’re discussing what’s been described as one of the most important criminal investigations and trials in American history. No small task, it’s difficult to know exactly where to start with the topic that big, but if you’ll indulge me, I thought we could start by quickly identifying the defendants in the case, the mobsters, and then dive in by discussing the case from your perspective so our audience can see, really experience it through your eyes. 

There were seven defendants in this trial, who we’ll certainly discuss in more detail shortly, but as a very, very quick overview, we have Nick Calabrese, a member of the Outfit Chinatown crew who is one of the Mafia’s most trusted hitmen and who proved to be a key turncoat in the case; Frank Calabrese, Sr., Nick’s brother and the street boss of the Chinatown crew, he was one of Chicago’s most prolific loan sharks and was linked to multiple murders; his son, Frank Jr. would also turn on him during the Operation Family Secrets, which was the investigation that led to the trial and at the trial itself where he testified against his father; Joey the Clown Lombardo, the capo or head of the Outfits Grand Avenue crew, a senior figure and one of the most memorable defendants; Jimmy Marcello, the reputed boss of the outfit at the time of the trial; Paul “the Indian” Schiro, an Outfit enforcer; Anthony “Twan” Doyle, a corrupt former Chicago police officer accused of feeding information to Frank Sr. during the Family Secrets Investigation; and Frank “the German” Schweihs, perhaps the Outfit’s most feared hitman and part of Lombardo’s Grand Avenue crew. 

(00:05:02)

I know that was a lot, but I think it’ll be helpful, Markus, one of the things that might surprise our audience is just how recently this case was tried. I think most of us think of the mob’s apogee ending several decades ago, but I for one was just graduating law school when this trial started in 2007. Talk to us about where you were in your career then in 2007 and how you got involved in the case. 

Markus Funk: Sure, happy to. At the time that I kind of first got involved with the case, I was actually living overseas. I was lucky enough to spend two years in Kosovo as a section chief there for the DOJ through the Department of Justice. I was quite happily sort of living in Pristina and Kosovo and I got a call, I was thinking about coming back to the US, I got a call from the front office of the US Attorney’s Office saying, would I like to be involved in the case. 

As luck would have it, I wasn’t fully sort of read in on all the details of the case, so I made a couple calls, found out that it would be an opportunity to work with Mitch Mars and John Scully, and the FBI agents who served and dedicated to this particular matter, this particular case and this topic. And I think I called back five minutes later and told the front office that I’d be delighted to get involved and that really had a pretty big role in terms of bringing me back to the US.

Jonathan Amarilio: That seems a little random to me. They reach out to a guy who’s posted in Kosovo to come work on a mob trial in Chicago. Did you have prior experience with organized crime investigations, prosecutions or what connected you to the prosecution here? 

Markus Funk: I wish I could say us because they thought I was so smart or so savvy. I think a big part of it was practicality as well as fit. Obviously in Kosovo, I did a lot of organized crime work although primarily from sort of an advising perspective. In the US, I’ve done some Russian organized crime cases. This is a whole different thing and particularly in Chicago, the group that was dedicated and is dedicated to doing that work is really a small group, they’re very senior prosecutors, and frankly, they’re people that few of us were relatively new comers. I had been in the government seven years by the time of the trial. Most of us didn’t get the chance to work with those guys. They were sort of, they seem quite mysterious. They worked in rooms that were dedicated to their cases. And unlike kind of the rest of us who had 20, 30 cases going at a time, these investigations took years, decades and rarely resulted in indictments. And when they did, of course, they tend to be big news just like Family Secrets was.

And so, I was coming back to the US. I didn’t have other cases. I had a sort of a clean plate in front of me and I think that was part of it. Part of it was that I had some trial experience and had some relevant experience, but not to overvalue myself on this one, I think a lot of it also had to do with the fact that they needed someone who the team felt would fit in and who had the bandwidth to do it. And so, I never really asked about why I was asked to get involved, but I know it was a kind of a hot case in the US and a lot of people want to get involved, but there are probably a lot of great prosecutors who just were too busy with other things. 

Jennifer Byrne: Tell us about the prosecutors that you were working with in the US Attorney’s Office, legendary people that you named right there. Give us a little background on those individuals that you mentioned, Mitchell Mars and John Scully. 

Markus Funk: Sure. I mean, look, we all have long careers. We hope to have long careers. And for me, I spent 10 years in the US Attorney’s Office, which by Chicago standards is actually a pretty decent amount of time. Working with those guys was the absolute, not only on, but it was the absolute highlight of my career, both with the government and after the government.

Mitch was, and I say, was because he sadly passed away in February of 2018 prior to the sentencings, but Mitch was really the heart and soul of the prosecution. He was the lead on the team. We always kind of consider each other equals in the US Attorney’s Office, but there’s always someone who’s sort of had the case the longest and worked at the hardest and that was Mitch. And he had a fascinating career previously to come into the Department of Justice, but he was just an unbelievable prosecutor, unbelievable person. In fact, there was a two-and-a-half hour long line at his wake of people, most of which had never met him, and it just showed what respect, I think, the people of Chicago had for what he had done for the city. 

This is a guy who a lot of us, myself included, have a habit of trying to promote ourselves and try to make ourselves look good. Maybe to some extent, that’s sort of the human condition, but Mitch was free of that. He looked great as a prosecutor without trying and so, he was one of those true blue prosecutor’s prosecutor in the best sense of that term.

(00:10:03)

And then John Scully, much the same. John is a career government serving a career prosecutor, worked the case from sort of day one with Mitch, is now a judge up in Lake County, is just one of the finest people I’ve ever met. And they had pretty wicked sense of humor too, a lot of practical jokes, a lot of jokes at my expense as the new guy. I still have a shadow box that I was given at my going-away party with three plastic bananas and them lined up. 

And particularly, Jon, you saw he’s called me the third banana lovingly, of course. And so, that’s the environment that I came into, and like I said, what was really special about it is usually, we have cases that are just pretty quick. You work with the agents pretty intensively, but they settle. In other words, they plead out, or they go to trial, and you’re kind of in and out of the case pretty quickly, relative terms. I’d never had a case like this where it was essentially a full-time job for years, getting prepared for this monster trial. As you said, Jon, at the outset, it’s been described and I think accurately described as the largest mob murder case in US history and you feel sort of the weight of all the other prosecutors and agents who worked on it. I mean, John, Mitch and myself, and Mike Mesa are often the names you hear, but there are literally dozens and dozens of agents, of prosecutors who have, in different facets, in different parts of the country, worked on the case, broadly described. And so, to be able to join a group like that was pretty humbling, I’ve got to say.

Jonathan Amarilio: What was the state of the investigation and the prosecution when you joined? Where were they? Were they ready and on indictments?

Markus Funk: The investigation, I mean look, the conduct charged here went back. I mean, the first murder was I believe in 1970. The last one is ’86. Those were Albergo at the beginning and Fecarotta at the end in the fall of September, I believe, of ’86. The charge murder spanned 16 years. The charge conduct, I mean, we had testimony going back to the Al Capone days from an expert witness, a mobologist who spoke on the history of the Chicago Outfit because one of the things we had to do is establish that there was such a thing as a Chicago Outfit. And that it was, in fact, a racketeering conspiracy. 

And so, the state of the case was that ultimately, if memory serves, 15 individuals were charged. And in 2005, in the 48-page indictment of those 15, 9 of them did not go to trial in the sense that I think 2 of them passed away, 6 of them pled and one, Frank “the German” wasn’t physically in a position to go to trial at that time. And then that leaves us with six, one of which is Nick Calabrese as you mentioned, Jon, at the outset and Nick was, of course, the cooperator so he didn’t go to trial. The five that actually showed up in court with Judge Zagel in the ceremonial courtroom at the Dirksen building or the five you mentioned about. 

The case, when I came over, came back from Kosovo in 2006, had been indicted and we were basically spent what felt like every waking moment getting ready for trial and the big decision really was who candidly not to charge. We had a superseding indictment and there were a lot of people who, there was pretty good evidence against but you can’t charge the world. Really the question was, what it would be the right charges, right individuals, in a way that we could persuasively present to the jury. And that’s where Mitch and John played a huge role. I was also involved in the superseding, but that was a sort of the task at hand when I joined. 

Jonathan Amarilio: Let me ask you about that, Markus. What was the broader strategy here? It’s my understanding this was the first time the Outfit was being treated as a criminal enterprise and its members were just being prosecuted for the individual crimes they committed as part of that enterprise. What was the overall strategy and what were the charges? 

Markus Funk: Sure. Look, the Outfit had been charged previously. Obviously, there were some big really high-profile cases against Chicago organized crime, and it’s important to remember that while there’s not a handbook for it, the FBI’s understanding, our understanding always was that the Chicago mob at its heyday was really the most powerful criminal enterprise in the US and perhaps ever. 

Its reach geographically stretched down to New Orleans and over to Los Angeles. And so, while there was some division of the country between the different organized crime groups, most prominently, of course, the Mafia. In New York, the way this case was charged, the RICO conspiracy is what it was, we charged it as a RICO conspiracy alleging extortion, and bookmaking, and murderer, bombings, all those types of things as the supporting conduct.

And the strategy was for one thing we had the first made member of the Chicago mob to testify, and we also for the first time, which is shocking if you think about the history of the mob in Chicago, for the first time saw to indict and convict a made member of the mob for a homicide. The strategy was, and you were kind enough, Jon, to say that we had essentially taken out the Chicago mob, I wish it were so. I think they’re still alive and kicking in different parts of the city and the different parts of the country. Obviously, not with the same strength that they once had, but the strategy really was to deliver the most impactful frontal blow against the organization that had ever been delivered. And that’s what Mitch and John’s set out to do long before I knew anything about the case or anything about these individual defendants. And ultimately, that’s what we, as a group, set forth to do and we’re lucky enough to be able to complete it. 

(00:15:50)

Jennifer Byrne: Let’s talk about the evidence a little bit in the case. I was thinking about this as I was reading through the press releases that were issued and some of the reading material that you suggested for us, but how do you get through a mountain of evidence that goes back to the 1970s and really pull this case together? I’d be curious from your perspective, how did you go about doing that? And then, once you did, what was the strongest evidence that you had in the case? 

Markus Funk: Well, I’ll begin with the last part, which is what was the strongest evidence. It was really audio tapes. We had Frank Calabrese, Jr. recording his father. He approached the FBI in 1998 about cooperating and he was in prison at the time. And so, he approached his father wearing a wire and recorded conversations, which we were able to get into evidence. That was tremendous.

Jonathan Amarilio: If I can just break in there, I think it’s kind of important to appreciate how amazing that is. You had the son of one of the mob bosses coming to the FBI and volunteering to tape his own father. 

Markus Funk: Yeah, and I mean look, that’s why the name Family Secrets, right? It’s two family members who had secrets here that gave the case the name. One is, like I said, Frank Calabrese, Jr. And Frank Calabrese, Jr. was convinced that if he didn’t cooperate, his father was going to ruin him or worse and so, he felt that he needed to do it, so he dropped a letter to Tom Bourgeois, the FBI, in ’98 and offered to cooperate and that then led to him wearing a wire and talking with his dad in prison about murders and other things with his dad, of course, having no idea that his son was wearing a wire against him, he was very dramatic and an incredibly powerful evidence.

Jonathan Amarilio: And his dad, Markus, was basically just like reminiscing to his son as they were taking laps around the prison yard, right? Isn’t that –?

Markus Funk: There was some level of reminiscing. There’s some level of grooming. There’s some level of preparing his son for the future. In other words, if it’s purely reminiscences, then that evidence is, you can have an argument about admissibility, but you can also, because you need statements in furtherance of a conspiracy, but those are also not the most powerful evidence. What you had here is, to some extent, his dad telling his son, here’s where we screwed up. Here’s where things went wrong. Here’s when people were weak, they should have been stronger. To some extent, it’s his dad bad-mouthing other people, including his own brother, Nick Calabrese, in a way that is obviously intended to both increase his profile in his son’s mind and also again, to tell his son sort of here are the people you can trust, here are the people you can’t trust, and here’s how we do what we do, including, of course talking about the making ceremony, which was the first time that was ever captured on audio, describing the burning of the cards and the hands and so forth. 

And in parallel, not entirely parallel in terms of timing, but in parallel, we have Nick Calabrese who thereafter, is approached by the FBI and Nick is Frank Sr.’s brother. And he also, although he doesn’t exactly voluntarily write a letter to the FBI when the FBI comes to him, he ultimately agrees to cooperate without a lawyer, without a plea agreement, without any kind of a deal. He just asked that he be treated fairly and in the course of his cooperation, he admits and is ultimately convicted of 14 homicides that he himself was involved in. And, of course, using the term involved more broadly, there are many, many more, multiples more that he say to be involved in, but he ultimately pleads guilty to 14 homicides. 

If you look at the spoke in the hub, kind of way of looking at it, you’ve got Calabrese in the middle and you’ve got both his son and his brother independently, and unknowingly of one another giving us information against him and his son wearing a wire and his brother who was present with him at various homicides talking about which homicides they committed and where and when and so forth. It was really a confluence of incredible events for the government that allowed us to bring this case and to really try to, like I said earlier, deliver a meaningful blow against the Chicago Outfit. 

(00:20:14)

Jennifer Byrne: Why do you think they did it? I suppose for our listeners who haven’t read as in-depth into the case or heard the testimony, start with Frank Jr. Why do you think he came forward with that letter? 

Markus Funk: Well, if you ask five people about why these folks did what they did, you’ll get five different answers. I’ll kind of, in terms of what Frank Jr. testified to at trial, was that he was mistreated by his father throughout his whole life and his father was trying to pull him in deeper into the mob. Frank Jr. had not committed any homicide and his concern was that he would get involved. He had a family and his concern was that once his dad came out of prison, he would get him more involved in mob activity, force him to get involved, which would result in him committing murders and being killed or having to kill others. And he just thought that the only way for him to get extricated out of that situation was either to kill his dad or to begin cooperating.

Jonathan Amarilio: And he said his dad pulled a gun on him during an argument at one point, right? 

Markus Funk: They had a volatile — I mean, I think even Frank Sr. would admit this had a volatile relationship. At one point, Frank Jr., the allegation is where he admitted to having stolen money from his dad and his dad put a barrel of a gun in his mouth. I mean, this is not sort of the traditional parenting of father-son sort of environment that we’re hopefully all used to. It’s just a different dynamic. 

And so, Junior just saw that as his only out. With Nick, it’s a bit of a more muddled picture, which is what I said at sentencing with Nick. Nick is a complicated figure to me and I think to most people, not complicated if you’re the kid of someone he killed. If you’re the kid of one of the 14 people he admitted to personally killing or any of the other people whose murders he was involved with, it’s not complicated at all. He’s a horrible person. 

And I remember when I first got involved in the case, I had a pretty strong view and if you speak about morality what should happen to him, at the end of his cooperation and he cooperated in large part because he was caught. I mean, we had his DNA on the glove that had the DNA of the John Fecarotta, his old friend, and he was involved in his homicide. 

And so, we had the goods on him. That said, I think he also realized, and this is armchair psychologist here, and I’ll limit myself to sort of the more obvious things, that he had had a life that was a bad life and his brother, Frank Sr., he loved it. He loved when people laughed at his jokes and pulled his chair out and took his coat off and really try to butter him up. His brother, Nick Calabrese, I mean, he was just kind of a regular family guy. I mean, almost like in the movies where the guy goes home and hangs up his hat and no one has any idea what he did during his day. 

And so, while the Calabrese Sr. was very much an on everyone’s radar screen in law enforcement, candidly, and this came out of trial, we had no idea that Nick had committed any more homicides than that one, the one that we ultimately, kind of caught him with and he said, “Look, I’ll tell you everything I know, but I want you guys to be fair with me and no preconditions.” And then over the course of really of years, he unpacked obviously not course of years overall, but he shared all of the murders that he was involved with all the knowledge he had and I think it’s fair to say that it came as a great shock to everyone in law enforcement that this fairly unassuming guy was involved in really, mass murder. And so, why did he cooperate? 

Well, I think, he just ultimately realized that his days were over and I don’t think he had a great amount of loyalty to his brother. Frank Sr. treated everyone badly including Junior and including Nick. It’s one of those adages about be careful who you step on on your way up because you’re coming back down at some point, and that’s exactly what happened here. And there was very little loyalty to Frank Calabrese Sr. in large part because he was so brutal in his interactions with everyone else while he was still in charge of things.

Jennifer Byrne: And why do you think Frank Sr. trusted his son enough to reveal all this information while they were in prison together and they were having these conversations? I mean, given that the relationship at that point seemed like it was kind of up and down, pretty negative, and he was very suspicious of his brother, Nick, throughout those conversations but yet he opens up so candidly with his son. Why do you think that’s the case? 

(00:25:11)

Markus Funk: Well, he’s cagey with his son too. I mean, it’s not like he just comes out and talks, but he’s cagey in large part because he thinks that the government might be watching, which as luck would have it, we were. I think what his son did really well was basically act. Privately, his son, he loved his dad but he also hated his dad and that’s exactly what he said during trial. And I think that comes out in these tape recordings. 

He knew, once he sent that letter in the mail that the (00:25:41) were cast for him, and I think his dad trusted him because his son made his dad think that his son really was interested in getting in the business and really wanted to know what was going on so that he was prepared to assist his father maybe take over for his father. I think the short answer is that he did a great job of acting and persuading his dad that he was now, he’s past his bad ways of drugs and so forth. And he really wanted to kind of get into the family business with his dad.

Jonathan Amarilio: What were the biggest challenges you thought you would face when you were going into the trial? What did you see as the biggest hurdles? 

Markus Funk: I think the biggest hurdle and there’s the biggest hurdle for the team and the biggest hurdle for me. The biggest hurdle for me was just getting all these people’s names and activities straight. I mean, for John and Mitch, this was second nature. They’d work with and prosecuted some of these people going back again decades. For me, this is all new and so, for me, one of the challenges was and I got sort of put in charge of the homicide part, establishing the homicides and making sure we had the right evidence for it. 

For me the challenge was just to wrap my arms around all of the conduct, all the names and everything that was going on here. I think for us as a team, the challenge was how do we explain to a lay jury, and how do we make sure we get in the evidence that we need to get in, how this organization functioned, that there was a conspiracy, what the connections were between the different individuals that brought them all together, in other words, like John, you and I can conspire Jen may have never met me but if we’re all operating for the same goal, it can still be a criminal conspiracy and that’s easier said than done. 

We all say, well, there’s the outfit, there’s the mob, but you still have to prove it. You can’t just say, “Well, didn’t you see Scarface?” I mean, of course, there’s a — no, you’ve got to actually prove how these people cooperated, that there’s a hierarchy. We had awesome audiotape of Frank “The German” Schweihs being recorded by a guy named Red Wemette saying that, “What are they going to do, kill me? If they kill me, there’s another one. We’re like an army. There’s always one to replace the other.”

But those types of tapes and recordings were critical for us to establish the existence of the conspiracy but part of it’s also you have Frank Calabrese over here, who’s committed 14 homicides, 13 I think what we convicted him of, and then you have on the other hand, Paul Schiro, who you mentioned who’s down at Phoenix who hasn’t met most of these folks, at least, we had no evidence that he had, who in many ways seemed like a bit player and he was involved in one homicide. And obviously, I say one homicide, I mean, it’s a horrible thing if you’re the family member but the Emil Vaci homicide in ’86 is what he was involved in.

And so, part of it’s also to bring it all together so you don’t have the mob boss over here with all the homicides and this other kind of more of a what could appear to the jury to be a lesser figure. 

To us, the big thing was just to not overdo it, not to have too many additional points and to really try to keep it as simple as we could and to establish the homicides and establish all of the different bad conduct. And frankly, I mean, the trial, in many ways you go into a trial, you think of you’re sort of like a producer or director trying to put it together sort of a movie and you try to think of how all the individual vignettes fit together and who should be first. We had some 125 witnesses. Which witnesses come first, second, third, fourth? How do we tell the story? How do we get the jury to understand how this all interrelates? We’re talking about 40-plus years of criminal enterprise. That was the challenge.

Jonathan Amarilio: It’s the swath of bad conduct that you mentioned was immense. It wasn’t just homicides, it was running gambling rings and street tax on local businesses and even running a casino in Las Vegas, right?

(00:29:56)

Markus Funk: Right. I mean, the way some people describe the case is, well, have you seen the movie Casino, if you saw the movie Casino, all of the homicides in that movie are homicides that we charged, there’s criminal conduct in our case. Now, the movie came first, so Scorsese did his movie first. At that point, these homicides have not been resolved, no one figured out exactly how they happened and who did it and certainly, didn’t convict anyone of those homicides. And those were obviously, our conduct was much broader, but those were all homicides we had convictions on. 

Like you say, in a way, our job is to try to sort of prove those things, the different kinds of activity, the loans, the juice loans where they squeeze people for a high interest rates, extortion, gambling, et cetera, all the way from Vegas up to Wisconsin, but what we’re really talking about are hundreds of thousands of individual criminal activities, every loan, all of this stuff that was going on was criminals, so figuring out well, which ones can we prove, where do we have the strongest proof, and where do we have the type of proof that’ll make sense to a jury. And that’s how we proceeded and that was the challenge which ended up coming off flawlessly. And like a lot of these things, at the end of it, it looks like very simple, that means you’ve done your job and I don’t think this case seemed simple to anyone, but I think the jury got it.

Jonathan Amarilio: Going into the trial itself, what do you think some of the turning points were looking back on it and what surprised you about how — you said everything went in flawlessly, but were there any surprises at trial? 

Markus Funk: Well, look, there are always surprises. When you got 125 witnesses, you’ve got witnesses who, for a year, tell you one story and all of a sudden, they’re sitting on a witness stand and they tell you a different one. Now, that ended up being really good for us. It often is. I mean, it was so obvious that sometimes these witnesses were changing their story because they were either trying to undermine our case or they’re afraid of the defendants or some combination thereof. And in each case, it became immediately obvious I think to anyone in the room what was going on here, and we could really turn that against them. 

The big surprise was that I think about three of the defendants testified. Lombardo testified, Frank Calabrese, Sr. testified, and Doyle testified. I don’t know if it’s unheard of, it’s fair to say that none of us thought that we’re going to get three out of the five defendants testifying in their own defense. I think it’s fair to say that very rarely does that ever happen that multiple defendants testify in their own defense in one case and to have these folks do it was —

Jonathan Amarilio: And they ended up shooting themselves in the foot. The descriptions I’ve read about it. They just came off as incredibly disingenuous.

Markus Funk: Well, I’m happy that’s how you felt about it. Certainly, how we feel about it or the people you read who were retelling what their recollections were. I mean, part of it was they shot themselves in the foot, part of it was that Mitch and John and to a lesser extent, I, took their hands and pointed the guns at their feet and started shooting away. 

These guys, I think part of the psychology of these individuals was not unlike famous people or even judges to some extent. They’re very used to people currying favor with them, laughing at their jokes, again treated them like they are the king of the room, that they often forget that they’re maybe not as funny as they think they are, or they’re not as smart or clever as they think they are. And for someone like Calabrese Sr. in particular, he thought he would just sit on that, and same with Lombardo, I’ve no doubt, Doyle who knows? But those two guys, I have no doubt that they thought that they would sit up there and they’d crack some jokes and be witty and charming and be able to confuse the jury because that’s always worked with them. They’ve always been able to get their way with others. 

The problem for them was this wasn’t their home turf. They’re not dealing with their compatriots in the mob. They’re in the federal courthouse with a federal judge dealing with prosecutors who have a lot of experience cross-examining people, who know the fact is well or better than they do. And so, they were getting tripped up constantly in their own stories. They were, I mean, Mitch and John completely dismantled them. Lombardo was completely dismantled as was as was Frank Calabrese, Sr. Senior was in fact, the worst, I think, one of the worst witnesses I’ve ever seen because again, he thought he could outsmart, outfox and outcharm the government and it just absolutely blew up in his face.

Jonathan Amarilio: And he was getting angry up there when he was being challenged like any megalomaniac would.

Markus Funk: Yeah, he would get angry. There’d be these flashes of anger that would show up in between the smiles and the attempts to charm. 

(00:35:00)

Same was true for Lombardo, same as true for Doyle. I mean, in many ways, Doyle, who I cross-examined, Doyle got really angry. At one point, he sort of reared up out of his seat like he was going to charge me or something. By way of background, Doyle was the head of the evidence and recovered property section or Earps of the Chicago Police Department. Here’s a police officer, maybe not first and foremost, but he was a police officer. First and foremost, he was a mob associate, but he got real testy when he was confronted, but I think maybe for slightly different reasons, I think for particularly Calabrese, he was not used to people talking back to him, trying to make him look silly. But yeah, absolutely, there was a psychology to it and there was a psychology to how we approached the case as well. 

Jonathan Amarilio: That’s a good place for us to take a break. We’ll be right back. 

[Music]

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[Music]

And we’re back. Your star witnesses were Frank, Jr. and Nick Calabrese, two witnesses that undoubtedly had credibility problems that would be difficult for you to overcome. You mentioned Frank Jr. and the history of drug use, stealing from his own father, Nick admitted to murdering 14 people was connected to, at least, 22 other murders and spoiler alert, the jury didn’t ultimately convict any of the defendants as I understand it of anything that Nick testified to unless there was some form of corroborating evidence that also linked the defendant to the crime. The jury obviously didn’t just believe everything they said, didn’t take it as gospel. How did you overcome that at trial? That seems to be not an insurmountable challenge, but certainly, a very difficult one. 

Markus Funk: It’s a huge challenge, and frankly, had we known at jury selection what we knew after jury selection, I think we would have been a lot more nervous. When you said the jury didn’t convict anyone of crimes where the only evidence was Nick testifying, you’re right, but in a technical sense. In other words, 11 of the 12 jurors were more than happy to convict. 

One of the jurors, we came to discover later, had certain views of the government and 9/11 and conspiracies and the Pentagon that would have made this juror particularly unappealing if you’re the government. And so, the fact that the rest of the jurors and this one juror were able to come to consensus on anything, in hindsight, was surprising, frankly. And to be honest with you, this is one of those situations where you think you know a jury well, this is actually probably should have asked me who’s your favorite juror, I would have said this particular juror is my favorite juror because she seems to be totally on point with us and nodding and really understood appreciating all the detail. But it just so happened that there are aspects of the total jury pool there that we weren’t fully aware of. 

But you’re 100% right. I mean the view was, and I don’t blame any juror for this, is that look, Nick Calabrese is a murderer many times over and Frank Jr.’s trying to get even with his dad. And so, I’m not going to believe any of these people, which happens. What we felt good about was you have Nick, if you put a chart up, a matrix, you can have all these different persons testifying and then you have video evidence and you have documentary evidence and surveillance and other people testifying. And you can see how the check marks all line up, so you don’t just have to take Nick Calabrese’s word for it or Frank Jr.’s audio tape for it, you have all the external evidence including details about the murders that no one would know who didn’t commit the murder. 

(00:39:57)

In that sense, it’s true. It’s always a challenge with the jury system to convince 12 people of anything. I mean, try it sometime. And I think the Gallup Polls showed that something like 60% of Americans believe that the sun revolves around the earth. And so, it’s not easy to convince people to convict anyone of anything. And so, there is no such thing as an easy case. And so, here, what we try to do for this whole trial was we’re going to present testimony from Nick Calabrese, but you don’t have to believe Nick Calabrese at all. 

In fact, you’re going to see that they’re like five other avenues of evidence, all of which showed the same thing and line up perfectly and it’s impossible that all these people and all these facts and bits of evidence were all concocted. And like we often say, all prosecutors tend to say to jurors, if you want to learn about baking, you go to a baker. And if you want to learn about committing crimes and being a mobster, you go to a mobster. And the other point that’s sort of a bit of a cliché, but we all tend to say it is that we didn’t choose the witnesses. The Mobsters chose the witnesses. They chose to work with Nick Calabrese and Frank Jr. We didn’t. It just so happens that they’re cooperating. You don’t have to take their word for it because all these other people say the same thing and all the other video and audio tapes, et cetera all proved the same thing. That’s sort of how we tried to combat that inherent credibility issue.

Jennifer Byrne: Speaking of Nick’s murders and the crimes that were testified to and were the impetus for this investigation, we didn’t really talk about the murders themselves. The murder that really got this whole investigation going was that of John Fecarotta and that was essentially because the glove was left, as you mentioned, at or near the scene of the murder and while Frank Sr. was in prison and speaking with his son on tape, there was discussions being had involving Nick Calabrese’s involvement in the murder and Frank Sr. himself’s involvement in that murder. Can you talk a little bit about that and how that sort of unraveled the case? And then maybe mention some of the other murders that were testified to at the trial. I feel like the audience is going to be interested in just hearing about some of the underlying crimes because we haven’t really touched on that. 

Markus Funk: Sure thing and then, this reminds me a little bit of when I was doing the closing in the case. We talked about these 14 murders. And you could almost see the jurors. One murder starts blending and bleeding in with the next one, no pun intended. And part of it is, remember, these are real people, had real lives. Now, some of them like John Fecarotta are mobsters and some could say, “Well, you live by the sword, you die by the sword,” but others were not and others were totally uninvolved with organized crime. They just were at the wrong place at the wrong time. 

And so, I can kind of talk a little bit about Fecarotta, and apologies to all of our Italian friends, the pronunciations went out the window probably 50 years ago on all these names because Calabrese is not a Calabrese, it’s Calabrese and so forth, but so with Fecarotta, you’re right, Jen. The Fecarotta homicide ended up being the string that we were able to pull that made the whole thing fall apart.

Jennifer Byrne: That’s why I bring that up because it’s, I mean, it was related to this Spilotro brother murders. I mean it sort of stemmed from those events or occurred because he botched the burial in that case, if I’m understanding it correctly. That’s why I brought that up, obviously, no one murder is more or less important than the next, but that one took prominence in my mind because it’s sort of got the whole ball rolling for the government’s case. 

Markus Funk: I mean, look John Fecarotta had some other issues including his choices of romantic partners and so forth. There are a number of people who are sort of tired of him. And so, one of his best friends, his childhood friend, Nick Calabrese was given the job to kill him along with Frank Calabrese. And so, in September, it was September 14 of ’86, Nick Calabrese and Fecarotta are driving in a van and the ostensible purpose is to basically put a bomb on this guy’s house, scare him, the doctor I think it was, or dentist. 

The reality was that Fecarotta was given a gun with no firing pin in it. That fake TNT and ultimately long story short, they’re driving, Nick took the gun out and Nick was a driver and Fecarotta caught the play and the two were in the van struggling with one another and then Nick shoots and shoots himself through the arm, but also hits Fecarotta, so the gun kind of imagine the bullet, two people fighting in a car, bullet goes through forearm of Nick Calabrese and hits Fecarotta. Fecarotta gets out of the van, runs away. I remember it’s like near in front of a bingo hall. Nick is chasing him through the park and shoots him and kind of executes him and then walks away. 

(00:45:13)

The thing that this is one of those sort of bad luck situations is September as we all know, is usually pretty cool time in Chicago. And so, on this day, it was unseasonably warm time. And so, what Nick Calabrese ended up doing, he had gloves on, sort of think of driving gloves. He’d now shot his buddy. He’s got these gloves on his hands and it’s a warm day and he’s essentially like in a T-shirt. And of course, he realizes he doesn’t have work gloves on. He has a driving gloves on, it looks strange. He takes the gloves off and puts them in his pocket because he thinks he’s going to draw attention to himself as he’s going over to his brother, Frank Calabrese.

Jennifer Byrne: He thinks people will think he’s wearing murder gloves.

Markus Funk: Right or burglary, it does look notable. And so, he ends up putting it in his back pocket as he’s trying to find his brother who was in the car to drive away with him and unlucky for him at the time, lucky for us, he drops one glove or one glove falls out of his pocket, it falls on the side of the street. The police eventually recover it, but this is sort of pre-DNA times, at least not the way we know them today. 

And so, that glove sits in an evidence vault in Earp’s where our man Doyle was in charge, and it sits there with nothing happening to it. And then, when Nick cooperates and says I committed this murder, my DNA, Fecarotta, whatever, I shot myself through the arm. Now, we know, so now we can take the glove, we can do — or rather Junior tells us this, we can now do a DNA examination. We find Nick Calabrese’s DNA on the gloves as well as obviously, Fecarotta’s blood. And so then, we’re able to approach Nick and say, “We know you did it and we know you did it in part because we didn’t want to burn Frank Calabrese, Jr. We know it because your DNA is all over this glove.” 

Really, had he not dropped that glove on the ground, we would have never, I think, been able to get him to cooperate and had we not had him cooperating, we would never be able to build a case of the stature of Family Secrets. It’s one of those things where just if it was a cold day in Chicago, this case may never have happened the way or at least the prosecution may never have happened the way it did, but it wasn’t. And so, it did.

Jonathan Amarilio: One of the more spectacular murders I think was it Michael Cagnoni, a small business owner in the suburbs. His car was blown up on a Chicago highway because he was refusing to pay street tax. The reason that comes to mind is we spoke earlier about Nick’s, I don’t know if crisis of conscience is too strong a term for it, but just the reason why he eventually cooperated. It’s my understanding that they almost accidentally blew up Cagnoni’s wife and child earlier that morning because she had taken the car to drive their kid to school. And thankfully, that didn’t happen and Cagnoni died I think maybe later that morning, but can you talk to us a little bit about that that murder?

Markus Funk: Michael Cagnoni was in the trucking industry. He refused to pay the mob and they decided that he needed to — they were probably also a little worried he might cooperate, so they basically put a bomb in his Mercedes and it went off when it went around a clover and got within range of think of it like a garage opener that had to be pressed. As soon as he got within range of that, it set off the bomb and the bomb blew up. 

We’re talking June 24th of ’81, I believe is when that happened, and look, these murders are all grizzly and there a lot of horrendous pictures, that’s one of the things we had to decide as we don’t want to offend the jury or freak them out too much. You don’t show them every picture you could show, but Mr. Cagnoni, that homicide and what his body looked like and where the parts of it were and so forth, was something I think it’s fair to say anyone whoever was involved in the case will never forget and he was totally innocent in the sense that he was not a mobster. He was not double-crossing anyone. He was not sleeping with some mobster’s wife. He was just a business guy who didn’t want to be pressured to pay money. 

And you’re right. Earlier that day, his wife and kid were, I think the wife was dropping the kid off at school, they could have very well gone the same route. They could have potentially been the ones that got blown up and I think that’s one of those things that probably wouldn’t have bothered Frank Sr. too much, but it did bother Nick a lot. And so, it didn’t stop him from committing murders, but I think it shook him pretty well. 

(00:50:05)

And also, Danny Seifert, I mean, look, every one of these homicides is a really horrible thing, but back in ’74 also, I think in September, Danny Seifert was killed and he was shot by John, Lombardo, and Frank “The German” Schweihs at work and he was shot right in front of his wife and five-year-old son. His five-year-old son is now, give or take, my age and has never forgotten it. And as a five-year-old, he saw his father be shot and then executed. And there are many others. I mean, there’s the Dauber double homicide with Bill and Charlotte Dauber who were, depending on who you listen to or coming back from court or coming back from a meeting with their attorney or rather a meeting that their attorney declined to attend, and so, they were on their way home. And like in the movies, real Frank Calabrese, Sr. pulls up, not only him, but the mobsters basically passed in this rural road, past the car of the Daubers. Opened the side sliding door and start shot-gunning into the car and then end up from close range killing both of them. 

Now, Bill Dauber, without a doubt was not an innocent person from a legal perspective, he was a mob affiliate himself, but his wife wasn’t, but again, wrong person, wrong time. I think, in fact, Calabrese Sr. said words to the effect that she was at the wrong place at the wrong time, but what are we going to do? Tell him to leave? I mean, so that’s how they operated.

Jonathan Amarilio: Let me ask you about a moment in the trial that’s kind of gone down in lore, but I know there’s some debate as to whether it actually happened and we’ve got you here, so no one better to answer it. Did Frank Sr. threaten your life under his breath during the closing argument? Because that’s sort of a legendary moment and there’s a question as to whether the jury heard it or not. Did that happen? 

Markus Funk: Yes, it happened. I mean, whether he threatened me as in to get me to do anything different, I don’t think so. Here’s what happened. I’m doing the closing. It’s five hours long. As you can probably tell, after five hours, people no longer the longer want to hear from me. At some point, you out where you’re welcome with anyone, but sort of midway through I was talking about a homicide that Frank Sr. had committed, and Frank Sr. and Joe Lopez, Joe, “The Shark” Lopez were sort of two, they were sort of made for each other in some ways. If you know Joe, I love Joe, but you know what I’m talking about. They’re both sort of big personalities and very —

Jonathan Amarilio: Lopez was Frank Sr.’s lawyer. 

Markus Funk: Exactly. He was his lawyer. They both like car magazines. I still remember as if it was yesterday. They would sit there with these manila legal kind of folders and pretend to be looking at some document related to the case. In fact, they’re like talk — because they were right behind us. You could hear them talking about like, “Look at this car, look at the wheels or whatever.” 

During the closing, I’m talking about Senior, I’m kind of, as was sort of my habit frankly, pointing at him and sort of, “He had testified.” That’s important to remember from a legal perspective in terms of what you can say about someone who testified and as I’m talking about him and I see him, he starts kind of grinning and chuckling a little bit. Now, I’m sure he was trying to do one of those chuckles like, “Aha, this fool doesn’t know what he’s talking about, trying to make me look bad or whatever.” But for some reason, I remember it really ticked me off frankly and I thought real quickly, did the calculus about persons testified and referring to them or talking to them, obviously is improper normally, but when someone does that, when someone basically comments on what you’re saying, or chuckles, or reacts, you could comment on them. 

What I said was, “See that man there? He’s laughing. I’m talking about a homicide he committed and he thinks it’s funny. Is there something funny about what I just said, Mr. Calabrese?” Or maybe I said, “There was nothing funny about what I just said,” some words to that effect, essentially pretty confrontational by federal court.

Jonathan Amarilio: Put a gun in his face. 

Markus Funk: There was a definitely an element of that during that episode and just in general again to try to diffuse this sense that they own the courthouse, owned everything. And it’s after that. After I said that. Imagine a tennis match. You watch where the ball is. Your head goes back and forth. I’m now back to the jury but the jury has just seen me say this to him, so they’re still looking at him and this all came out later, this came out from the jury themselves, none of us picked up on it and he basically leaned forward and muttered and I say muttered because a jury said, they could tell it from his, like reading his lips and also from what they heard, he said, “You’re an effing,” although, I didn’t use that term, but he said, “You’re an effing dead man,” referring to me, and I didn’t hear it. None of us heard it. 

It’s only after the trial when one of the jurors approaches Mitch Mars and myself. And once a meeting, we meet with, get permission, and then we meet with him and learned that the jury picked that up. Then, in fact, I remember that the juror said that he was surprised that we didn’t have any sort of security detail because that confirmed what they all thought, which is that we probably did not pick up on it because of the way it was said and the sort of muttering way and they were facing right at Calabrese. 

(00:55:22)

The audience was looking to him from the side and the rest of us were looking at the jury. And so, that then, we had two hearings on it. I had to testify, other people had to testify. Ultimately, Judge Zagel made a factual finding that the threat did happen. He also found that it didn’t prejudice the other defendants that they were very — the jury, and I think this is entirely accurate that the jury is very well able to distinguish Calabrese from all the other defendants and they could hold this against Calabrese without holding against the other defendants. 

Jonathan Amarilio: That raises in my mind, the question, do you still ever worry about your safety and the safety of your family? We’re talking about true psychopaths, sociopaths, all the bad kinds of paths that you put away forever and that you were trying to put away forever then. What stops them from seeking retribution?

Markus Funk: Well, try to phrase this sort of carefully, maybe unusually carefully. Big picture, the mob is a business. They don’t enhance their profits or make their job any easier by seeking retribution against law enforcement. That’s more street criminality, street gangs or others. Frank Calabrese was crazy in a way, not clinically crazy, but he really was a psychopath. He enjoyed seeing people suffer. He was that kind of a guy. 

With him, we all took it more seriously. I remember there’s an Italian prosecutor named John Franco Falcone and he was ultimately killed by the mob. He did this huge mob case and Sicily. He once commented that if a mobster ever wants to kill him, that that’ll be a great compliment because that shows that he must be doing something right. And so, I mean, look, I was also a brave man. I had no children. I was a single guy. I didn’t have some of the concerns I might have if things were different. But no, I mean, of course, you take it seriously. As these things turn out, my neighbor certainly took it seriously because it ended up being splashed all over the newspaper, including the cover of the Sun Times. Think it said something like, “You’re a dead man.” 

And my neighbors, living in Old Town at the time, we’re not exactly excited to hear that kind attention. They were sort of like, “Oh, thanks a lot for doing this case but could you please move?” There were some events that occurred that showed that Frank Calabrese wasn’t just venting on that day. It’s easy for me to say now because he’s also dead, and I don’t think any of the other co-defendants were as irrational as he was. I mean, I could see him trying to follow through on it as far as I’m concerned or I can tell. Of course, not being with the government, I don’t have any insights like I used to, but there were some concrete steps taken by him or sought to be taken by him. 

But ultimately, hey, I’m here, he’s not. And I think all of the other defendants, they may not like us prosecutors, but they know that we are, to an extent, fungible too, just like they are. And so, if you got rid of the whole trial team, that doesn’t mean these guys are going free. There’d just be a new group of prosecutors there but I think Calabrese just took it kind of personally. The whole relationship between him and all of us actually was somewhat different than most defendants because he just was sort of a — he was a psychopath. 

Jonathan Amarilio: I know we’re running a little bit tight on time, but I said at the top of the podcast that this was the case that took down the Chicago Outfit. You corrected me on that and said they’re still around, which absolutely, that’s true but in a much reduced capacity. What do you know about the current condition of the Outfit in Chicago? I mean, this trial took down a large part of their leadership. Where are they today as an organization?

Markus Funk: Well, look, I mean, there are still people out there pursuing these cases. (00:59:08) and the Chicago US Attorney’s Office is really first among equals in that regard. In terms of him getting involved in mob cases. I don’t know exactly what the state of play is now. I can tell you my sense of things just based on where things stood way back when is that in terms of numbers, the Chicago mob is not what it once was. In terms of power, they’re not what it once were.

But one can’t lose sight of, for example, John Ambrose. John Ambrose, a decorated US Marshal, head of the fugitive task force, the Great Lakes Fugitive Task Force. He end up getting swept up in this thing because he had mob ties and he ultimately was informing the mob about the whereabouts of Nick Calabrese, when at the time Nick Calabrese was the country’s most secured cooperator, most secured WITSEC person, cooperator and nonetheless, days later, the mob knew where he was, what he was looking at. 

(01:00:03)

And the reason I bring that example up is the one thing that the mob was able to do then and is still able to do now is infiltrate the higher ranks of civil society, of the judiciary, of law enforcement, of the political arena. In other words, they have their tentacles in at a level so far above what, let’s say, street criminals can do. So, it’s true. If you walk around Chicago and you read this terrifying and horrifying statistics about murders, it’s unbelievable what’s happening, but these people who commit those murders typically don’t have access like the mobsters do. 

They’re street criminals. They have a lot of power. They can terrorize people but they don’t have access to high-ranking political figures. The mob, in my estimation, did and still does have that power. I think they’re a little bit like a sleeping giant. You have to sort of — it would be a big folly, I think, and I know I’m channeling Mitch Mars and John Scully and everyone else who worked his cases, it’s a great folly to count them out. 

Just because we did this case and just because these guys are old and just because you don’t see them walking around and driving Cadillacs and wearing fur coats, doesn’t mean that they’re somehow not there anymore. They’re organized crime, influence in Chicago is still there and it’s just taken on a different form and maybe a little more dormant now than it once was. But again, it would be a great mistake to underestimate them. 

Jonathan Amarilio: Where did all the money go? I mean, it seems to me that we’re talking about one of the most notorious Mafia organizations in the world. They’re shaking down a large part of Chicago. They’re taking street taxes, they’re skimming from unions, they’re running illegal gambling operations. As I said before, they’re running a casino in Las Vegas, but when you look at where these guys lived, they sort of lived these middle-class lifestyles. They weren’t taking private jets to Barbados every weekend or anything like that. It doesn’t seem to reflect the illicit fortunes that they must have been generating. What happens to all that money after cases like this?

Markus Funk: They were playing a long game. I mean, one of the big differences, and this is something I really only learned by doing this case between, let’s say, New York, the five families and the Chicago Outfit is, in New York, it’s very much like you’re in England. If you’re Prince William or whoever, you’re a certain lineage in the throne on the ascendancy to be king. And so, it’s not a meritocracy. In other words, if you’re a banana or your chances — you work your way up within your family.

But as we know from England, as we know from New York, that doesn’t necessarily bring the smartest and best people to the top. And so, in Chicago was much more like a McDonald’s where you work your way up. It doesn’t matter — Al Capone, if your last name is Capone, none of that matters. What matters is sort of how you perform and how hard you work. 

And so, in Chicago you made your way up the hierarchy in more of a meritocracy fashion. The result of that is that most of the people at the top, their kids go to law school, medical school, they go into legitimate businesses, they inherit your money. Half of them don’t even know where the money really came from and they just build their house and their life and it’s totally gone. It’s essentially like money laundering one way. Like you just taken the money instead of taking it and flowing it back to organized crime, you’re taking the ill-gotten gains and they flow out into legitimate lifestyles and lives and then they just dissipate into the ether, so to speak. 

And so, other than Calabrese, you generally, not always, but generally look in vain in Chicago to find a dynasty, a name where the kid, the grandkid, the son, everyone’s involved in organized crime. Typically, the goal is make your money, work hard. You’re going to be a mobster your whole life, but then your kids will have a better life. That’s sort of how it kind of shaked out. And that’s, I think, where a lot of the money is. In other words, I don’t think these people necessarily know that their father or uncle or great-grandfather was some sort of a murderer. They might have heard that on the streets a little bit, but that money is gone and it’s not in some big pot of criminal dollars.

Jennifer Byrne: And just one more question for you today, Markus. Can you tell us about how things resolved? What was the final verdict in the case? And tell us a little bit about the sentencing as well.

Jonathan Amarilio: Sure thing. 

Markus Funk: We had this trial team of Mitch Mars, John Scully, myself. Mitch, as I mentioned, way, way, way too early passed away in 2008. John Scully became a judge and that left me. And so, the trial ended in 2007. By early 2009, really January to March of 2009, we had all of the sentencings in front of Judge Zagel. And so, we had the sentencings for Lombardo who received life imprisonment, for Frank Calabrese, Sr. who received life, for Jimmy Marcello, who received life, for Paul Schiro who received 20 years, and then for Twan Doyle who received 12 years incarceration. 

(01:05:21)

And so, those sentencings all happened kind of one after the other over the course of the weeks, again, largely between January and March of 2009. And then Nick Calabrese, ultimately, as you recall, he was the cooperator who had over a dozen murders to his name and he received 12 years, which, of course, was highly controversial within the victim group, it was highly controversial in the media, but as Judge Zagel explained, without Nick Calabrese, the case would have not been able to be made, not the way it was made. And so, that’s why Judge Zagel decided to give him really an extraordinary break for the number of murders he committed.

Jonathan Amarilio: And the idea there, Markus, is you want to encourage future cooperators to come forward, because if you were to throw the book at him after the fact, then future Nick Calabreses would sit tight.

Markus Funk: The interesting thing, as I mentioned, sort of earlier on is that Nick basically got rid of his attorney and said he wanted it to work with the FBI and the US Attorney’s Office. And the only deal he expected was that that he would be treated, as he put it, fairly. I think given everything that he unpacked, all the information that he shared, all the intelligence that he was able to provide, I would imagine, he could have gotten quite a good deal worked out if he had counsel. And so, it really came down to us to some extent also holding up our part of the bargain. 

And so, like you said, if he had received a very harsh sentence and this is something Judge Zagel emphasized, then no one would come forward. And Judge Zagel also emphasized that Nick would never really be free because he would always have his mob connections his life really of connections after him and behind him and looking over his shoulder. Can’t believe it was the capstone of the case and ended it. And so, it was an emotional sentencing and like I said, I think we had one of the victims fainted, people were very upset about that. But really, 12 years for 14 or so homicides and many more that he knew of, obviously, is a very light sentence but we knew of one murder he committed, and he admitted all the other ones on his own. 

And so, when you look at it through that lens, in that sense, it’s still an extraordinarily positive deal, but like you said, Jon, if he had gotten a life sentence because we didn’t have a plea agreement, that would have, I think dissuaded others from cooperating and he was once again, he was the first and only made member of the Chicago Outfit ever to testify in trial against other made members and that made his cooperation really extraordinary. 

Jonathan Amarilio: And with the end of the story, that’s probably a good place for us to close. We’ll be right back with stranger and legal fiction. 

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[Music]

And we’re back with stranger and legal fiction. Our audience knows the rules. But for the newbies, the rules are pretty simple, Jen and I have done some research on the Internet. We found one strange law that is real but probably shouldn’t be. We’ve made another one up and we’re going to quiz you, Markus, and each other to see who can distinguish strange fact from fiction. Are you ready to play? 

Markus Funk: Ready.

Jonathan Amarilio: All right. Let’s do this. Jen, won’t you lead us off?

Jennifer Byrne: All right. The first option is, it is illegal in Los Angeles to wash your car in the street. The second option is, it is illegal in Chicago to put a chair in the street when you’ve dug out your parking spot to prevent other potential Chicagoans from stealing your dugout spot, which is as you —

Jonathan Amarilio: Chicago tradition. 

Jennifer Byrne: — know a tradition that we call dibs. 

(01:10:06)

Jonathan Amarilio: What do you think, Markus?

Markus Funk: Man, maybe I’m showing that I don’t live in Chicago anymore, but my thought would be it’s illegal to put an object in the street, whether it’s to protect a parking spot or for any other reason. I know in the US, if it’s not illegal, then it’s legal. In other words, if it’s not specifically prohibited, you can do it, whereas, in Europe, they come to it from a different perspective, which is you have to sort of explicitly allow certain things to happen here. That’s my logic, but I’m sure you guys know the answer. I mean, I’m sure that comes up every winter. There’s a little article and someone or John Cast(ph) does a story on it or used to. What are your thoughts, Jon? We’re a team, right? Is that how it works here?

Jonathan Amarilio: No, we’re all against each other. It’s every person for themselves.

Markus Funk: Oh, I’ve given up my logic then. 

Jonathan Amarilio: I’m going to go the other way and here’s why. Dibs is a time-honored Chicago tradition. And if I remember correctly, it was Louis Brandeis who said that if you want people to respect the law, you have to make the law respectable and undermining that tradition and undermining the hard work that Chicagoans put into digging out their cars every winter, I think would be a travesty to the legal profession. You’re still screen sharing Markus, so I can see you Googling it right now. You’re cheating for our audience. He’s cheating in real time!

Jennifer Byrne: He already gave us the answer so now, he can Google it.

Markus Fink: I gave my answer. I’m already–

Jonathan Amarilio: All right. Jen?

Markus Fink: I’m locked in, Jen. I know it’s not respected by some people, but I’m going to say the LA law is real.

Jennifer Byrne: You’re wrong, Jon. Markus is correct. 

Markus Fink: Score one. 

Jennifer Byrne: The LA law is actually that no person shall dust, wipe, wash or otherwise clean, use or employ any method of dusting, wiping, washing or otherwise cleaning any vehicle or any portion thereof while on any street unless such vehicle is owned by or under the direct control or supervision of the person doing the acts enumerated herein. What that means is you can’t wash your friend’s car in the street or your neighbors, but you can wash your own. 

Jonathan Amarilio: You can’t have like a charity car wash to raise money or anything like that? That’s just —

Jennifer Byrne: Nope. Well, not in the street. If you did it in a parking lot maybe, there would be an exception there. In Chicago, it is illegal to —

Jonathan Amarilio: It’s just wrong. 

Jennifer Byrne: To put your chair, your folding chair to do the dibs. Specifically, the ordinance says, except as otherwise specifically permitted by this code, no persons shall use any public way for the storage of personal property goods, wears, or merchandise of any kind and it goes on and gives more specifics there, but it’s kind of been grandfathered in. It’s been referred to by multiple of our mayoral candidates as something that is commonly done in Chicago, but still technically on the books is illegal, but the article that we saw you pulling up there, Markus, you should give it a read because it talks about the various crimes that people commit against those who violate the dibs rule. I think WBEZ did some research and found out that there’s a lot of destruction of property that occurs right around the time of big snow storms in Chicago. I think that pretty much says it’s like it’s illegal, but it’s done. Your turn, Jon.

Markus Funk: I was watching one of these shows where they talk about the terrible neighbors and they had a lady with a snowblower or maybe that was a man with a snowblower totally bearing this woman’s car because she had apparently violated his dibs, his customary law that Jon loves so much. But again, just for the record, since you did have me screen sharing, had I looked it up prior to giving the answer, that would have been cheating. Afterwards? Simply confirming.

Jonathan Amarilio: I never got the answer. I’m happy to see I was right.

Markus Funk: Former prosecutor, ladies and gentlemen. 

Jonathan Amarilio: I’ll tell you what, if you can see my screen right now, that’s Lori Lightfoot’s cell phone number, mayor of Chicago. I’m calling her after this and we’re going to have a discussion about repealing that law, because that’s terrible. 

All right, option number one. It’s illegal in Nevada not simply to steal a shopping cart from a retail store laundromat or dry cleaner, but also to retrieve that cart from the thief or subsequent possessor unless one has a license authorizing that retrieval. That’s option number one. 

(01:15:00)

Option number two. In Cloverdale, Illinois, it is illegal for retailers to hang holiday-related ornaments from any type of tree or bush that is not a non-deciduous conifer or other type of cone-bearing seed plant. 

Markus Funk: Come on, man. 

Jonathan Amarilio: I mean, you seem pretty certain. What is it doctor? 

Markus Funk: Not to quibble here, but when you say, unless you have a license, so you’re telling me, there’s someone who’s a licensed shopping cart retrieval person, not has license to, in other words, a police officer. But you’re saying, because I can see the logic. The logic is you don’t want someone running around with a shopping cart with some company’s name on it and then claiming, “Oh, I was just — I took it from someone else. I didn’t steal it.” They’re trying to make sure that they can grab you down the road. 

Jonathan Amarilio: I could see why the presence of the article and that sentence is important. It’s a fair point, but that may not be the real law. 

Markus Funk: The way you the way you said licensed is in fact what the question is. It wasn’t just an error on your part in terms of, so you’re saying there’s someone with a license that says I have a license to retrieve shopping carts?

Jonathan Amarilio: That’s what I’m saying. 

Markus Funk: I think I know my answer, but I don’t even understand the second one. But Jen, do you want to — how does this work? I mean, I’m a newbie. 

Jennifer Byrne: Yeah, I’m going to side with you, Markus. I’m going to say that the Nevada law is the phony law. It’s just too outrageous that you would have a license to retrieve carts or to have a cart. Is it that you have the license to actually possess, it’s a laundry cart? No, that’s fake.

Markus Funk: Shopping. See, the way Jon’s smiling though now, dear listeners, you don’t see this but makes me think he’s up to no good, but I think he’s maybe fooled us both in the same direction, in which case, my overall tally will not change against both of you. 

Jonathan Amarilio: Rule of thumb in this game, the more ridiculous and improbable the law seems, the more likely it is to be real and that rule controls here. 

Markus Funk: Can I change my answer then?

Jonathan Amarilio: Nevada revised statutes, and you can Google this in real time since you’re still screen sharing, section 205860, addressing the wrongful possession, abandonment or alteration of carts and serial numbers makes it illegal to engage in self-repossession activities without a license to do so. 

Jennifer Byrne: I should have known. I’m not a newbie to this game. I should have known that it was real, but it just seems so outrageous. 

Markus Funk: But how is the other one any less crazy?

Jonathan Amarilio: That’s how you decorate a tree.

Markus Funk: They’re both crazy.

Jennifer Byrne: I should have known that that one sounded made up because it was but —

Jonathan Amarilio: Thanks for doing this, Markus, it was a lot of fun.

Markus Funk: Sure, you bet.

Jonathan Amarilio: And that’s our show for today. Markus, it’s really been an absolute pleasure and an honor to speak with you today. Thank you so much for everything you did to make the city safer for its residents and again, for joining us on the pod. I also want to thank my co-host and executive producer, Jen Byrne, as well as Adam Lockwood on sound and everyone at the Legal Talk Network family. 

Remember, you can follow us and send us comments, questions, episode ideas or just troll us on Facebook, Instagram and Twitter @CBAatthebar, all one word. Our email address is [email protected]. We’re putting together a mailbag episode for early 2022 so be sure to send us ideas for interesting legal topics, cases or strange laws you’d like us to explore. 

Please also rate and leave us your feedback on Apple podcast, Google Play, Stitcher, Spotify, Audible, iHeart or wherever you download your podcast that’s helps get the word out. Until next time, for everyone here at the CBA, thank you for joining us and we’ll see you soon At The Bar.

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Outro: The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

 

Podcast transcription by Tech-Synergy.com

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