Twenty-year Time Lapse in Ponzo Trial Reveals Confusion
By James Miller
BU News Service
BOSTON — In the ongoing trial of alleged Patriarca Family associate Enrico Ponzo witnesses are having difficulty recalling the exact details of what they saw and heard nearly 20 years ago. For the defense and prosecution, this time lapse has created as many challenges as opportunities as each team tries to use foggy memories to bolster their positions.
Ponzo’s alleged crimes occurred during the late 1980s and early 1990s. All 14 of his alleged associates have faced trial or have died since then. However, after being indicted by the United States government in 1994 under 11 counts, including the attempted murder of Patriarca family boss Frank “Cadillac” Salemme, Ponzo fled Boston and settled in Idaho where he became a cattle farmer.
The bucolic ranch life of Ponzo—known to Marsing, Idaho residents as Jay Shaw—was cut short when federal agents arrested him on his property in 2011, nearly two decades after his alleged crimes.
Since Oct. 7, Ponzo, who is charged under the Racketeer Influenced and Corrupt Organizations (RICO) Act, which allows groups of people to be tried for wider conspiracy charges, according to the indictment document, has been in court as the last of 15 Patriarca Family members to face charges. The trial went into day 15 on Thursday at the U.S. District Court for the State of Massachusetts in South Boston.
“Time gaps are a problem, often for both sides,” said Northeastern University professor and criminal law expert Daniel Medwed, “On the one hand, it makes it harder for prosecutors to find evidence and prepare witnesses whose memories of the event are likely faint. On the other hand, it also makes it harder for defendants to construct an alibi defense.”
Frequently, according to University of Massachusetts law professor and criminal defense attorney Irene Scharf, criminal defense teams will use a time delay as a tactic in their defense. However in the case of Ponzo, the time delay was not fought for by the defense attorneys; instead, it was created by Ponzo’s absence.
In Ponzo’s trial, witnesses have ranged from cops who arrested him in 1994 to alleged mob associates.
All witnesses have struggled at times to work out details of specific events, but for many the memories are still vivid.
At the trial on Oct. 22, for example, Mark Spisak, a Patriarca family member who received a plea-bargain in 1998 commuting his sentence in exchange for his agreement to be a government witness, according to the indictment document, remembered specific days in particular.
When asked by assistant U.S. District Attorney Dustin Chao about March 31, 1994, the day Spisak and two associates killed Richard Devlin and injured Richard Gillis, Spisak recounted: “At that time it was clear. We’d go out hunting. You know? It was life or death.”
Despite his perfect memory of this day nearly 20 years ago, Spisak struggled to answer questions concerning another. Judge Nathaniel M. Gorton frequently reminded Spisak “only [to] describe what you saw or heard. Not what you think.”
When asked about Sept. 25 1994, the day of the attempted murder of Larry O’Toole, according to the indictment document, Spisak often repeated himself or answered, “I don’t remember.”
The 15-member jury took note of this as some look confused and others scoffed. The prosecution encountered difficulties when examining Spisak, who often responded to detailed questions saying,
“It’s just been too long. I’m sorry I can’t remember.”
“Delay typically hurts the prosecution,” said Boston University law professor and criminal law expert
David Rossman. “Since memory decays with age and the prosecution has to prove its case (they have the burden of proof) and the defense doesn’t have to prove anything,” said Rossman in an email.
Waiting longer for trial often “has an adverse effect for the prosecution” and may sometimes lead to the dulling of witnesses and even the loss of evidence, according to Scharf. When assistant U.S. District Attorney Karen Beausey questioned Boston Police Officer Paul Brooks on Oct. 22 about a drug-related arrest he made on July, 27 1994, his story seemed fresh and complete. However, upon cross-examination the defense pointed out holes and incongruities.
The incident occurred in East Boston after Officers Brooks and Chris Conley saw the exchange of a “mysterious white powder,” according to Brooks’ testimony. The officers approached both men. When one began to back-peddle as the other approached Officer Brooks, he pushed the officer, according to Brooks, and shouted: “Run, Michael, run!”
However, the defense was quick to note that in Brooks’ police report, filed the same night as the arrest and not 20 years later, the name “Michael” is left out. In the report, the accused only shouted
The incident, according to testimony from Brooks on Oct. 22 and his police report, involved Michael Romano and Enrico Ponzo. Ponzo, who had at the time identified himself as “Michael Castillo” to Brooks but was identified by Officer Conley, was arrested for five charges that night including assault and battery of a police officer.
For defense attorney Jaime Zambrana, Brooks’ memory of the night some 20 years ago is spotty.
“This is different from what you’re testifying today,” said Zambrana. Zambrana went on to question Brooks, asking him various details about the exact spot of the arrest, the time of day and the contents of Ponzo’s pockets that night. Brooks was unable to remember the specifics for each.
The U.S. District Attorneys office did not return a call seeking comment.