The tale of the tape edition | Inside Johnny Doc’s Trial

Welcome back, court watchers, to another edition of the Inside Johnny Doc’s Trial newsletter. The federal extortion trial of ex-labor leader John Dougherty and his nephew, Greg Fiocca, resumes this morning in Reading, where U.S. District Judge Jeffrey L. Schmehl has signaled things could be wrapping up this week.

So far — in what at times has felt like a really bad performance evaluation — the jury has heard a lot about Fiocca’s behavior at work: poor attendance, a hot temper, yelling and cursing at his superiors, and, of course, a secretly recorded 2020 altercation with his supervisor that’s at the heart of the government’s case.

It’s safe to say Fiocca wasn’t winning any “employee of the month” awards. But have defense lawyers done enough in court to help him and his uncle win the case?

Let’s get to it.

— Jeremy Roebuck and Oona Goodin-Smith (@jeremyrroebuck, @oonagoodinsmith, insidejohnnydoc@inquirer.com)

If someone forwarded you this email, sign up for free here.

📮Do you have a question about the trial? Email us back and we might feature it in our newsletter.

✉️ Looking for the insider scoop on Philly politics? Subscribe to the Clout newsletter here.

👨‍⚖️ As Dougherty arrived Monday to pick his third federal jury in as many years, it wasn’t lost on him that this time another, much more publicized trial was undertaking the same process 100 miles away in Manhattan. He quipped: “You should be up with Donald Trump instead of John Dougherty.”

👷‍♂️ Prosecutors sought to paint Fiocca as a workplace menace who frequently shirked his responsibilities and Dougherty as his nephew’s enabler, willing to back him in the face of any complaint about his bad behavior. But as for the government’s allegations that the duo extorted a contractor during the 2020 construction of the Live! Hotel and Casino in South Philly? Defense lawyers dismissed them as “complete and utter nonsense.”

📲 When his wages were docked over his poor job performance, Fiocca flew into a rage, assaulted his supervisor, Rich Gibson, and threatened to call his uncle and pull all of the union electricians off the job. Gibson secretly recorded the confrontation and testified this week: “I felt threatened by him.”

👊 But defense lawyers contend Fiocca’s reaction, while extreme, wasn’t an effort to extort Gibson. Instead, they say it was a pent-up reaction after months of harassment and unfair treatment by Gibson and other supervisors on the job. As attorney Rocco Cipparone Jr. put it, Fiocca “blew his stack.”

Gibson’s secretly made recording of his Aug. 19, 2020, job-site fight with Fiocca is a central plank in the government’s case. But as prosecutors played it for the first time publicly in court last week, its value as evidence appeared to cut both ways.

Even before the playback began, Schmehl instructed jurors that they could only consider it as evidence against Fiocca, not Dougherty — a ruling the judge made before the trial after concluding that Dougherty couldn’t have been part of a conspiracy to extort Gibson at the time the recording was made. He only learned of the threats his nephew had made after the altercation, and as prosecutors tell it, he entered the conspiracy when he chose to back Fiocca up after the fight.

As for the recording itself, its violence is striking. For nearly 40 minutes, an enraged Fiocca hurls profanity-laced accusations. Muffled noises of him choking, slapping and spitting on Gibson are caught on tape. And he repeatedly pummels the project manager with threats to shut down work at the casino site or cause him bodily harm.

“I’m going to punch you in your f— face, and I don’t give a f—,” Fiocca shouts at one point. At another, he insists: “There’s nothing you can do to me … I’m calling my uncle already. We’re pulling everyone off the job.”

But despite the ferocity of Fiocca’s reaction — a tone Cipparone, his own lawyer, conceded was “horrible” — his words back up many of the points the defense has sought to make since the start of the trial.

Cipparone maintains that his client was driven to a breaking point after feeling like Gibson and the casino job’s electrical contractor Ray Palmieri had for months been constantly checking up on him, second-guessing his attendance, and looking for chances to find him screwing up.

“Youse f— harass me nonstop,” Fiocca yells at Gibson at one point on the tape. He insists at another: “You’re f— with me. You’ve been f— with me since the day I showed up.”

While sounds of Fiocca’s physical attacks on Gibson feature in the recording, it’s important to keep in mind that Fiocca is not charged with assault in this case.

Since this is an extortion trial, the beating can only factor into the jurors’ decision to the extent that they believe that violence — and the fear that something like it might happen again — influenced Gibson’s decision to keep Fiocca on the casino job and continue to pay him.

Nonetheless, the defense has raised concerns that Fiocca’s ferociousness on the tape might be too much for the jury to set aside.

There’s nothing you can do to me. Say I put my hands on you, I’ll say no I didn’t. [There’s] no cameras in here.

Dougherty and Fiocca will get their opportunity this week to put on any evidence they want the jury to hear before it begins its deliberations — that is, if they can get their potential witnesses to show up.

More than 25 people and organizations subpoenaed by the defense have filed motions in recent days asking the judge to excuse them from testifying or handing over documents sought by the defense.

The list includes everyone from Ryan Boyer, Dougherty’s replacement as head of the Philadelphia Building Trades Council, to Mark Lynch, the current head of Dougherty’s former union, Local 98 of the International Brotherhood of Electrical Workers, whose once-close relationship with Dougherty has grown hostile in recent months.

Dougherty’s longtime spokesperson Frank Keel — dumped by Dougherty after the first trial in 2021, but still working with Local 98 — was also subpoenaed. As was State Rep. Kevin Boyle (D., Phila.), who while seeking reelection in Tuesday’s Democratic primary against Dougherty’s nephew, Sean, was charged last week with violating a protection from abuse order. Boyle as of late Sunday night had failed to turn himself in to police and his whereabouts are unknown.

The motions don’t explain why Dougherty and Fiocca want any of those people to speak to jurors on their behalf. But the motions to quash their subpoenas all cite similar reasons: The defense gave little explanation for why their testimony would be required and were sent just days — in some cases, just hours — before deadlines set by the defense.

Local 98 said that earlier last week it was directed to hand over “all telephone calls, texts, e-mails, calendar information and all electronically stored information of any kind” that the union produced in 2020.

Aside from that being an enormous amount of information, the union’s lawyers expressed concerns to the court that Dougherty — who is at odds with the union’s current leadership — may have an interest in those documents that extends beyond the current trial.

“Since his resignation as business manager of Local 98, Mr. Dougherty has not hesitated to enmesh himself in the affairs of” the union, its lawyers said in a motion filed Friday. “It would be oppressive to permit [him] to mine e-mails that have no relevance to this criminal proceeding so as to advance whatever internal union political aims he may have.”

The judge has yet to issue a public ruling on any of those motions.

Covering the trial has required your faithful newsletter writers to head up U.S. 422 to Reading — home base of U.S. District Judge Jeffrey Schmehl.

After traveling to Philly to preside over Dougherty’s two previous trials, Schmehl opted this time to require the proceedings to come to him. And the change in locale has definitely resulted in a different vibe.

The 26-story federal courthouse in Center City — the site of the last two trials — features plenty of space for the lawyers, the defendants, jurors and, yes, the journalists covering the proceedings to give each other a wide berth. The Reading courthouse — located on the fifth floor of a government services building — has us all practically tripping over one another.

Some of the prosecutors as well as attorneys for Dougherty and Fiocca are staying at the same downtown Reading hotel as members of the jury whom the court has put up there for the week. And it’s not been unusual to run into familiar faces from court while fetching our morning coffee or picking up lunch at the few local dining spots within walking distance of the courthouse. (Shout-out to the baristas at the Alvernia University Starbucks just up the road who’ve provided a home base for your newsletter writers to work each day!)

Those close quarters seem to have led to a more convivial atmosphere. Jurors make small talk during treks up Penn Street, the downtown area’s main drag. Everyone’s trading recommendations for the best nearby restaurants. And prosecutors, defense lawyers, and journalists exchange pleasantries while brushing past each other in the hotel lobby at the start and end of the day.

But not everyone is experiencing this trial as a sojourn from their normal Philadelphia environs. Dougherty’s been braving the often hellish morning commute to Reading each day and, after court, heads home to Philly.

Things are moving quickly, and the case could go to the jury by the middle of this week. After that, your faithful newsletter writers will be on verdict watch.

⌚In Dougherty’s first trial, the jury took about 3½ days to convict the labor leader on most counts. And the second time around, the jury took about three days to convict him again. How long will this new panel of six men and six women take to reach its decision this time? Your guess is as good as ours.

In the meantime, you can follow along with our live updates and daily coverage. And keep an eye on your inbox for a special “verdict edition” of the newsletter, whenever that decision comes.

We’ll see you here again soon. 👋

By submitting your written, visual, and/or audio contributions, you agree to The Inquirer’s Terms of Use, including the grant of rights in Section 10.