On the same day, Dr. Weld testified that Gigante had improved markedly since his 1988 surgery and that by 1995 he was "in far better shape" than he was when Dr. Weld examined him in 1990. Dr. Weld also stated that "there is no evidence that a type of external stress is likely to increase Mr. Gigante's likelihood of death." Dr. Weld concluded that "within a reasonable medical degree of certainty" he saw "no evidence" that Gigante will develop "fatal arrhythmias" from attending trial proceedings.
From this testimony, the court finds that Gigante has not shown that a trial at this time would subject him to a substantial additional risk of heart failure.
Activities Outside the Courtroom
The court has little reliable evidence about Gigante's current activities outside the courtroom. Although Gigante's attorneys say that he now leads a very narrow existence, lives at home with his mother, sees only a small group of friends and family, and rarely leaves his mother's apartment, they and others have long described in similar terms his lifestyle between 1980 and September of 1991. The court has since found that this portrait of Gigante's life was inaccurate and that he actually led an active and stressful existence during that period.
As described in the Findings, over those years, Gigante travelled in the middle of the night to the Upper East Side townhouse of Olympia Esposito, was driven quickly to "lose" law enforcement surveillance, attended clandestine meetings with his colleagues in organized crime, and made important decisions involving large sums of money and the fate of certain individuals. Most important, Gigante engaged in an extensive scheme to convince law enforcement and his doctors that he was insane.
Because of Gigante's history of elaborate deception, the court cannot credit representations as to his current lifestyle. Moreover, the court has already found that Gigante engaged in extremely stressful activities between 1988 and 1991. As Dr. Weld has noted, Gigante in 1988 underwent invasive heart surgery, an event at least as stressful as a trial. That Gigante was then able to withstand severe stresses suggests that he will now be able to weather a trial.
Measures to Minimize Health Risks
As other courts have noted, the court can take various measures to minimize the risks that a long trial might impose on Gigante's health. For example, the court can reduce the length of the court day or week and increase the length and frequency of recesses, see, e.g., Jones, 876 F. Supp. at 399, and can also ensure the presence of doctors or other needed medical aids. See United States v. Knohl, 379 F.2d 427, 437 (2d Cir.), cert. denied, 389 U.S. 973, 88 S. Ct. 472, 19 L. Ed. 2d 465 (1967).
Gigante's doctors have stated that his apparent anxiety is most extreme when he first enters unfamiliar surroundings. Assuming, arguendo, that this anxiety is genuine, the court notes that over the course of a trial Gigante will become familiar with the courthouse and the various players in the proceeding. The court can also devise means to shield Gigante from crowds of unfamiliar people.
The Character of the Impairment
Gigante's physical condition seems unlikely to improve. Both doctors testified that his porcine heart valve will eventually deteriorate and that at that time his health will decline. Because Gigante may never be more capable of standing trial than he is today, the permanent and possibly progressive nature of his ailment weighs against permitting a continuance at this time. See Gambino, 809 F. Supp. at 1079; United States v. DePalma, 466 F. Supp. 920, 926 (S.D.N.Y. 1979).
The Magnitude and Seriousness of the Case
As already discussed, the indictments in this case charge Gigante with serious crimes: six murders, conspiracy to commit three other murders, and various crimes of labor payoffs, extortion, and mail fraud. Determining a defendant's physical competency requires the court to weigh "the invariably unpredictable factor of a defendant's health against the Government's, indeed the public's, interest in a fair and speedy disposition." Bernstein v. Travia, 495 F.2d 1180, 1182 (2d Cir. 1974). Where a defendant is charged with crimes as serious as those Gigante faces, the interest in a speedy disposition is plain.
Following a full hearing under 18 U.S.C. § 4241, the court finds Gigante able to understand the nature and consequences of the proceedings against him and to assist properly in his own defense. The court also finds that a trial at this time would not pose a "substantial danger" to Gigante's health. Accordingly, the court deems Gigante fit to stand trial and directs that he appear for arraignment on the indictments.
Dated: Brooklyn, New York
August 28, 1996
Eugene H. Nickerson, U.S.D.J.
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