MAFIA COPS GET OFF ON A TECHNICALITY

Andy Warhol once likened snappily dressed New York defence lawyer Eddie Hayes to a character from the 1970s sitcom Laverne and Shirley. Hayes, Warhol said, was the kind of person invited to parties "to wear funny clothes and jump around and make things kooky". But underneath the cultivated eccentricity, Hayes, the inspiration for the fictional Irish attorney Tommy Killian in Tom Wolfe's The Bonfire of the Vanities, has always been deadly serious about his ability as a lawyer. He wasn't joking when he told Warhol: "I can get you outta anything." Earlier this month Hayes lived up to the boast again when a federal judge overturned guilty verdicts against former New York detectives who have been dubbed the "mafia cops": Louis Eppolito, 57, and Stephen Caracappa, 64. It was a spectacular finale to one of the most scandalous police corruption trials in US history.

In April, Eppolito and Caracappa were convicted on 70 counts of racketeering, charges that included eight murders for the mob. But in a legal twist that shocked Americans, the killers were acquitted on a legal technicality after Hayes and co-counsel Bruce Cutler successfully argued the case against their clients was in breach of a federal statute of limitations.

Yesterday the case took yet another dramatic turn when the same judge, Jack Weinstein, 84, refused to release Eppolito and Caracappa when they appeared before him seeking bail on the one charge on which they together face retrial: a minor drug deal involving 28g of methamphetamine and a few ecstasy pills. Normally, bail in such a case would be routine, but Weinstein said the retired cops were dangerous criminals who represented a flight risk and ordered them returned to their shared cell at the Metropolitan Detention Centre. There they'll stay while state and federal legal authorities mull over how they can be made to pay for their crimes.

The evidence laid out against them in their trial was compelling and shocking. It established that the highly decorated former detectives had worked for the Lucchese mafia family under Anthony "Gaspipe" Casso from the early '80s until their retirement to Las Vegas in the mid-'90s. For a shared monthly retainer of $US4000 ($5277), Eppolito and Caracappa briefed Casso on police investigations and the identity of police informants. Sometimes, when there was extra money on offer, they acted as hit men. The evidence directly linked Eppolito and Caracappa to eight gangland slayings between 1986 and 1991. Some of the victims were mobsters such as Jimmy Hydell, who was ostensibly arrested by the duo and delivered to Casso, who in turn tortured and killed him. Others were innocent citizens who came to know something of mob activities and had to be eliminated. One, a young telephone company technician named Nicholas Guido, was confused with a mobster of the same name. After the mafia cops gave Casso the wrong address, the wrong Guido was shot dead in the front yard of his mother's house on Christmas Day 1986.

With its lurid allegations and roster of Sopranos-style witnesses, the trial kept New York spellbound. Hayes's client, Caracappa, had been in the New York Police Department's elite major case squad and had helped establish a special unit for mafia murder investigations. Eppolito's family links with the Gambino crime family were explored in detail. His grandfather Luigi the Nablidan had associated with gangsters Charles "Lucky" Luciano and Carlos Gambino in the Depression years. As a teenager Eppolito had watched on television as New York gangster Joe Valachi ratted out the inner workings of the Cosa Nostra to a US Senate inquiry and named many who were not only friends of his father, Ralph "Fat the Gangster" Eppolito, but regular visitors to their house in Brooklyn's East Flatbush neighbourhood.

That much of this had already been published in Mafia Cop, Eppolito's 1992 autobiography, in which he portrayed himself as an honest cop who had rejected underworld culture, made it no less fascinating. In retirement Eppolito had played the gangster Fat Andy in the movie GoodFellas and had tried his hand at script writing.

On sentencing day, when the families of the victims finally had their turn to speak, the full horror of crimes committed behind one of the world's great law enforcement badges was revealed. Among the anguished relatives was Michal Greenwald, 30, the daughter of jewellery merchant Israel Greenwald who was murdered because Casso thought he might reveal information about mob money laundering activities. Looking into their cold, unflinching faces, Greenwald told Eppolito and Caracappa: "You took away our daddy and by doing that you took away our childhood. You took away our mother. You stole our innocence. You filled our nights with nightmares and our days with torture."

Assistant US Attorney Robert Henoch told the court Eppolito and Caracappa were totally unrepentant. "Police are supposed to protect people," Henoch said. "We don't have death squads here; at least we aren't supposed to." Weinstein called the crimes the most heinous ever tried in his courtroom and gave the former detectives two life terms in prison and million-dollar fines. But he delayed sentencing to consider pre-trial motions put by Hayes and Cutler.

Eppolito and Caracappa were charged under the federal Racketeer Influenced and Corrupt Organisations Act with a wide-ranging conspiracy involving murder, kidnapping, obstruction of justice, drug dealing and money laundering. For the charges to stick, the prosecution had to prove that a racketeering conspiracy existed within five years of the date of arrest. To that purpose the FBI co-opted a Las Vegas accountant named Stephen Corso who, in 2005, convinced Eppolito that he had four investors who might be prepared to back one his movie scripts. The deal would hinge on the Hollywood boys coming to Vegas and having a good time on designer drugs. When Eppolito and Caracappa arranged 28g of crystal meth and a half-dozen ecstasy pills, the prosecutors had the evidence they needed of continuing racketeering activity. Or at least they thought they did.

From the start of the case Weinstein said the statute of limitations was the "weak link in the Government's allegations" and urged prosecutors to consider alternative charges. One clear option was to prosecute the murder and kidnap elements of the case under state law where no statute of limitations exists. When the prosecutors stuck with their federal strategy, few in New York's legal community were surprised. "For a whole range of procedural reasons, the federal court system is much more prosecutor friendly than the state system," says Don Murray, of Queens, New York-based law firm Shalley and Murray. "For example, jury selection in the federal court is virtually nonexistent. It is a very difficult place to practise criminal defence."

The case proceeded, but with Weinstein reserving judgment on the submissions put by Hayes and Cutler. Then, in a decision that stunned New Yorkers and left the District Attorney's office flabbergasted, Weinstein declared Eppolito and Caracappa acquitted on all charges except the drug-dealing count and a money-laundering charge to be faced by Eppolito alone. In a 77-page explanation, Weinstein said the evidence had overwhelmingly established that Eppolito and Caracappa had "kidnapped, murdered and assisted kidnappers and murderers, all while sworn to protect the public against such crimes".

But he found the prosecution had failed to establish a continuing conspiracy, saying "sporadic acts of criminality" by Eppolito and Caracappa since their retirement from the NYPD were unrelated to their previous ties to the mob. "Once the two defendants had both retired from the police force and re-established themselves on the opposite side of the country, the conspiracy that began in New York in the 1980s had come to a definite close," Weinstein said. "The evidence presented at trial overwhelmingly established the defendants' participation in a large number of heinous and violent crimes. Nevertheless an extended trial, evidentiary hearings, briefings and argument establishes that the five-year statute of limitations mandates granting the defendants a judgment of acquittal on the key charge against them: racketeering conspiracy."

Weinstein conceded that many people would be mystified that criminals as despicable as Eppolito and Caracappa could go "unwhipped of justice". But in comments that some regard as relevant to the circumstances of Australian terror suspect David Hicks at Guantanamo Bay, Weinstein said: "Our constitution, statutes and morality require that we be ruled by the law, not by the vindictiveness or the advantages of the moment."

Giving notice of an appeal, US Attorney Roslynn Mauskopf emphasised the integrity of the jury decision. "Based on the law that was given to them by the court, each of the 12 jurors specifically found that the defendants' heinous crimes were committed within the statute of limitations," she said.

If the appeal fails the question then becomes whether murder charges will be laid under New York state law where no statute of limitations exists. "In US law there's a principle called separate sovereignty, which means federal and state authorities can prosecute the exact same crime without running afoul of double jeopardy," explains defence attorney Murray. "If you get charged with something under federal law and go to court and win, the state government can turn around and charge you with exactly the same thing. I often have to explain this to clients and they're horrified. They say: 'How can this be. I was tried and acquitted. It's double jeopardy.' But it's not."

For the time being Eppolito and Caracappa will remain locked away in the federal detention centre in Brooklyn. But by the end of next month they could well be walking the streets again, a prospect making the families of their victims relive the agony.

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