Yesterday's court-proceeding mostly focused on fine-tuning the instructions that will be read to the jurors when they return to start deciding the Mack case next week.
TRENTON — Mayor Tony Mack yesterday put his left hand on the Bible, raised his right hand and swore to tell the whole truth and nothing but the truth.
Though he made his first statements in the courtroom yesterday since his trial began nearly a month ago, Mack was not testifying.
Rather, Judge Michael A. Shipp had instructed defense attorneys to verify that the mayor and his brother Ralphiel Mack had not wanted to take the witness stand.
Mark Davis, the mayor’s attorney, asked his client if he affirmed that his decision not to testify was made under advice of counsel, of his own free will.
“I do,” Mack said.
Ralphiel Mack, charged alongside his brother in an alleged extortion scheme where bribes were passed to move a parking garage project forward, went next, answering “Yes” to similar questions from his own attorney, Robert Haney.
With both brothers deciding not to testify, just one defense witness, a friend of Ralphiel Mack’s, took the witness stand for barely 10 minutes on Thursday.
The prosecution put on six witnesses, three of them FBI agents, during a total of 13 days of testimony.
Yesterday’s court-proceeding mostly focused on fine-tuning the instructions that will be read to the jurors when they return to start deciding the Mack case next week.
Closing statements are expected to begin Monday after the jury is instructed on how to determine whether the government has proved evidence of extortion, bribery, wire fraud and mail fraud beyond a reasonable doubt.
That process, known as the jury charge, is expected to take about 90 minutes, Davis said.
Prosecution and defense attorneys haggled over that charge paragraph by paragraph in court yesterday.
Defense motions on acquittal for the Mack brothers and a request for a mistrial were again put off by Shipp, who listened to arguments on the jury charge from both sides that sometimes boiled down to a single word.
For example, the defense wanted the word “potential” added to a charge about how the Mack brothers allegedly obstructed interstate commerce.
“I think that’s redundant,” Davis said.
“Your Honor, I don’t believe the government has proven an interstate commerce violation in this state,” Haney said.
The government has alleged that the Mack brothers conspired to obstruct interstate commerce because they took bribes to get the fictional parking garage project off the ground.
At several points, prosecutors suggested and were allowed to use phrasing that had been part of the jury charge for former Hamilton Mayor John Bencivengo, who was convicted of extortion in a separate case in November 2012.
Shipp heard further arguments on the motion for acquittal, specifically focusing on Ralphiel Mack.
Although the prosecution has said Mack served as an intermediary, transferring cash bribes on behalf of his brother the mayor, Shipp challenged them to show Ralphiel Mack knew about the proposal for the garage being floated in City Hall.
“I want you to speak to his knowledge in the parking garage project,” Shipp said. “That’s all.”
Joseph “JoJo” Giorgianni, Mack’s campaign benefactor who was allegedly setting up the parking garage meetings and has since pleaded guilty, was taped speaking about Ralphiel Mack’s involvement in wiretapped conversations, Assistant U.S. Attorney Eric Moran said.
“That’s a co-conspirator statement about Joe Giorgianni’s conversation with Ralphiel Mack, Tony Mack about taking the money, Tony Mack exercising his influence in promoting the parking garage project,” Moran said.
The issue came up again when Giorgianni and the mayor were speaking on a call that also was recorded, Moran said.
“When Mayor Mack pauses, Giorgianni clarifies the thing to which he was referring: ‘The thing with Ralphiel,’” he said. “And he says the ‘parking lot.’”
Mayor Mack has his brother on speed-dial and would have not had trouble finding out whether Giorgianni was telling the truth, Moran said.
“Why would Joseph Giorgianni lie about something Tony Mack could easily check?” he asked.
“That’s sufficient, certainly, to get this to a jury, Your Honor,” Moran said.
Shipp decided that the jury would not be allowed to take their binders containing transcripts of all the prosecution’s wiretaps into deliberation, even overruling a request from the government that he reconsider.
“Transcript binders during the trial are a great aid because we know the recording is also being played simultaneously,” Davis said. “We just think there’s no control over what’s going on in the jury room and the binder is just too easy to refer to.”
Davis said the important pauses and timing of words in the recordings, are what’s lost in the transcripts.
“That’s the problem I have; that’s the danger I think, that exists in regards to the binder,” he said.
Shipp concluded the day’s proceedings at 6 p.m. The lawyers and defendants, leaving the top floors of the courthouse as the lights were being dimmed, emerged onto a darkened East State Street.
There, as a car or two passed by, Mayor Mack shared a moment with his lawyer.
The mayor shook Davis’ hand with a broad smile across his face, pumping the handshake several times. Ralphiel Mack stood a few feet away.
Davis, who has been the mayor’s attorney since the day Mack was arrested 18 months ago, looked at his client and brother.
“Get ready for Monday,” Davis said, before parting from the two and walking down the street.
Contact Alex Zdan at azdan@njtimes.com.
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