TRIAL PUT OFF BY SICK JUROR, BUT EVIDENCE ARGUMENTS EXCHANGED IN MERLINO TRIAL

This morning was expected to be more cross-examinations by Edwin Jacobs vs. John Rubeo.  As I arrived I was told there was a delay as one of the jurors was sick and delayed getting to the court house.

 As time ticked away eventually the juror was unable to make it to court and the Judge Sullivan offered both sides time to discuss whether to move on or to push back until tomorrow morning.

 It was agreed that they would push off until tomorrow morning at 9:30 however Judge Sullivan then asked if there was any business to handle, in an effort to keep the process moving along.

Edwin Jacobs, attorney for Joey Merlino wanted to discuss some evidence.  What began as a simple question carried on for over an hour with both sides explaining the reasons for and against the evidence being turned in.  This said evidence revolves around an audio tape of Joey Merlino and John Rubeo discussing a way to sway the bookmaking operation in their favor.  The issue was argued quite well by Jacobs and honestly put a lot of things about the gambling and bookmaking charges in perspective.  The point being, if this tape would prove that Rubeo lied, in an effort to get Joey arrested, or indicted, then it should be admissible under the law(we will get to that law in a minute) The governments stance was that a cross-examination of the transcripts would suffice, but Jacobs had a rebuttal.  The point for the defense was that Rubeo is a liar and could have simply crafted his testimony to fit the governments narrative.  If they have evidence to prove or suggest that Joey Merlino was on record as saying "That's illegal," and suggest that nobody should get involved in that mess, then the evidence could exonerate Merlino of the gambling and bookmaking charges.

The judge made several arguments for and against the request of Jacobs.  The judge stated that the tape wouldn't "prove or disprove the allegations made by Rubeo, and that Mr. Merlino is on trial and not Mr. Rubeo."   The judge felt that the defense just couldn't bring in new evidence every time Rubeo said something that alluded to Rubeo's propensity for lying.  "I don't want to have a sidebar every two minutes on this issue," he explained.  Perhaps in frustration or the point not getting totally across to the judge, it was very easy to understand from where I was sitting.  Cut and dry. If Rubeo is a liar, which he is, and if he has directly changed what he's said in any way, then any evidence to suggest the contrary should be admitted.  Considering Rubeo has lied prior, to the FBI, his handlers, judges and prosecutors then I agree it's in the best judgement of the court to allow Merlino and his defense team to hammer Rubeo where it counts.

You can argue morality and the character of anyone, but the point is that Rubeo as a character witness has been marred by offense after offense, and lie after lie, and inconsistency after inconsistency.  Anytime you are trying a case the character of the witness can be tried.  It happened to me, and it's happened to hundreds of others which brings us to Federal Rule 608.

(A) Reputation or Opinion Evidence.
A witnesses credibility may be attacked or supported by testimony about the witnesses reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witnesses character for truthfulness has been attacked. (in other words, if Rubeo is a pos, which he is, he can be attacked, as his character because he's been untruthful. The point of the argument is providing evidence to support that in the form of a rebuttal)

(B) Specific Instances of Conduct.
Except for criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witnesses character for truthfulness. But the court may, on cross examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:(this is the part the government argued)

1.The witness; or
2. Another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that related only to the witnesses character for truthfulness.  The judge wasn't able to render a decision while I was there and was slated to reconvene at 3 pm to decide what the allowances would be or not be.

I am obviously not an attorney and I don't know all the parts to this argument, but it was logical and easily understood in the courtroom what Attorney Jacobs was getting across.  I stated it earlier but if we are going to make the assumption that Rubeo is giving factual evidence yet there is a tape which proves the opposite allegation then why not allow it into evidence?  I don't think Judge Sullivan was against the idea, but rather the point being he didn't want to sit through "22 minutes of an audio tape where there were different topics of conversation."  Makes sense.  I figure the allowance would be excerpts.  They also debated over which parts of the transcripts they want to vitalize.

Where does this leave us?  For the most part nothing has changed.  I spoke with a few beat reporters while I was there and they agreed with me that the defense won big time yesterday.  In these trials there is always a mountain of evidence and in most cases it's preemptive to make a conclusion based on one day of cross-examination, but I came to the conclusion that Joey Merlino is 100% absolutely NOT GULITY after that first day of cross.  Why?  It's simple.

I'm not foolish enough to live in some fantasy land where I believe everyone is innocent that has allegations levied against them.  Quite the contrary.  What I have always done, is let the evidence speak for itself, and I judge the testimony of those involved.  I have seen a lot of "mafia," trials and poured through a mountain of transcripts in my life, and I have never ever seen something so egregious as this case.  Again, I'm not a lawyer, and this is my opinion.  I could speak at length about how convoluted the evidence is, and lack thereof.  When someone is guilty I say so.  When someone is innocent I say so.  Say what you want about Joey Merlino, many have.  The one thing he's isn't in this case is guilty.   Obviously there is more to come in the trial, but I have never ever seen someone testify who was so jaded, full of shit, and egocentric.  The mere idea that John Rubeo had a notion that anybody would buy his life story, or make a movie about him is comedic at best.  He truly is a bottom feeder who got caught doing stupid shit, and is looking to cash in because he lacks the courage as a man to take a pinch and do time.  He would rather ruin the lives of many others than just subject himself to his due punishment.

To be credible one has to have credibility.  His claims are far fetched and absurd.  Rubeo has been an informant since 2012.  You can't honestly expect me to believe that for 5+ years this guy couldn't get enough to have anyone indicted.  It took five years, $509,000 dollars, for this guy to suddenly have enough information?  He admitted that he tried to blackmail the FBI for money by saying he was "getting book offers and movie offers for $50,000," which was a ploy to EXTORT money from the FBI.  It's laughable.  Yet this is the STAR WITNESS?  This is the guy who beat on his wife, and the FBI knew and did nothing?  This is the guy who was told not to have extra marital affairs, and he did it anyway. This is the guy who was told not to assault anyone, and he took it apon himself to slap someone around twice who "allegedly owed money to him?  All of these things broke his agreement and
status as an informant.  One FBI supervisor was fired over misconduct.  How much more nonsense needs to come out before someone begins to ask, hey what the fuck?

The truth is this.  Rubeo was a zero in that world.  He's another John Alite.  He used names around him to protect himself and make himself look better to those he wanted to impress. Looking at him in court like a shriveled yard gnome I find it hard to believe he could intimidate anyone.  He's the guy who wanted to play "gangster," and the second he stole money he pointed the finger at everyone else and ran for help because he was out of options.  That's the only thing Joey Merlino is guilty of.  He's guilty of trying to help out someone who he believed was his friend out of a jam.  Joey's past, whatever it may be, is simply that.  Just because one extends a hand of help to another doesn't make it a crime.  The only crime that's been committed in this entire indictment is those of John Rubeo, and like most witness who fabricate stories, times, dates, and relationships he's trying to get rewarded because he lacks the fortitude and manhood to just accept he got caught doing his own crimes.