Would Stymied Gotti Prosecutors Try (Try, Try, Try, Try) Again?

(Nov. 20) -- Legally, there's no limit. But all the same, prosecutors in the U.S. Attorney's Office in New York working the case of mobster John Gotti Jr. must be wondering: When a defendant gets off thanks to repeated mistrials, how many times can you retry him before it's time to concede defeat?

Gotti's ongoing trial, which began Sept. 21, is his fourth in five years; the previous three ended with their juries deadlocked. And on Thursday, prosecutors got some unsettling news. The jury, which has been deliberating for seven days, wrote U.S. District Judge Kevin Castel to inform him that "we are unable to reach a unanimous verdict," according to the New York Daily News.

As is typical, the judge directed the jury to keep deliberating on the three counts facing Gotti, which include allegations of racketeering and murder. The jury was off Friday and plans to resume deliberations Monday.

During the trial, as he has in his previous defenses, Gotti claimed he had retired from the mob and therefore couldn't have been part of an ongoing crime conspiracy involving the Gambino crime family. Some jurors in the earlier trials reportedly couldn't agree on whether they bought that claim -- one key reason for the deadlocks. A few also publicly questioned the strength of the government's case.

In this trial, the jury had added charges to consider: allegations that Gotti was involved in drug killings in1988 and 1991.

If the current case produces yet another mistrial, will there be a No. 5? The U.S. Attorney's Office in the Southern District of New York declined to comment Thursday night on such a hypothetical.

But legal experts have their opinions.

"I think eventually you have to walk away," said Anthony S. Barkow, executive director of the Center on Administration of Law at New York University School of Law.

"Then again," he added, "it's a sliding scale. If the Khalid Sheikh Mohammed trial resulted in a hung jury, I think we would keep trying him until we convicted him. They just have to make a decision where on the spectrum John Gotti falls."

Repeated unsuccessful trials risk damaging the legal system's reputation, noted Lawrence Kobilinsky, chairman of the Department of Sciences at New York's John Jay College: "The public could say, 'What's going on here? They can't prove the case, so why are they dragging it on and on?'"

Wally Piszczatowski, a former federal prosecutor turned defense attorney whose clients have included musicians Eminem and Marilyn Manson, believes there comes a point when prosecutors hit diminishing returns. "If you're not going to get them after two times, what makes you think you're going to get them after five?" he asked.

But Kobilinsky believes it could make sense to go for another trial if the government gathers fresh evidence or believes jurors have simply missed the point.

And indeed, there have been times when persistence has paid off for the feds. After three previous failures, federal prosecutors on the fourth try convicted Gotti's father, the boss of the Gambino crime family, on 14 counts that included murder, loan sharking and obstruction of justice. He was sentenced to life in prison and died behind bars in 2002 at age 61.

"It's all based on the circumstances," said Kenneth Wainstein, a former U.S. attorney in Washington, D.C. Repeated hung juries "might indicate you've got a real problem with the evidence. Or you could have [just] had a bad run of juries."