A highly unusual, blunt assessment of Zagel's work came during Monday's hearing on the appeal filed by the five major defendants who were convicted during Chicago's biggest mob trial in decades.
Appellate Court Justice Diane Wood ripped Zagel for his handling of juror issues that arose during the lengthy racketeering trial, calling his approach "a real problem."
Wood, who has been considered a leading candidate for the United States Supreme Court during recent vacancies, was relentless in her criticism of Judge Zagel. The justice ridiculed Zagel's "private chats" with an alternate juror who had expressed concerns about her own safety. Wood called the chats between Zagel and the juror "very foolish" and noted that there was no written record of the meetings anywhere.
The Zagel/juror issue is one of the key components of the appeal by all five Outfit defendants: Frank "the Breeze" Calabrese, Sr., Joey "the Clown" Lombardo, Jimmy "the Man" Marcello, Anthony "Twan" Doyle and Paul "the Indian" Schiro. All defendants are claiming misconduct by Judge Zagel in their appeals and asking for mistrials.
"We raised issues relating to Judge Zagel's contacts with the jury and my client's right to be present at all critical stages of the trial which were compromised with our lead issue which when Judge Zagel released and dismissed a juror without notice to any of the defendants," said Frank Lipuma, Lombardo's lawyer.
Calabrese, Lombardo and Marcello are claiming that the prosecution amounted to double-jeopardy because they had been previously tried for the crimes. Doyle is citing a problem with jury instructions. Schiro's appeal maintains that there was a lack of evidence to prosecute him at all.
"I never guess one way or the other," said Johanna Christiansen, Calabrese's lawyer. "I think the argument went very well, i think the judges were interested and that makes me very happy."
After court, attorneys for several of the defendants were encouraged about Judge Wood's remarks. However, they cautioned that such comments during a hearing do not necessarily translate into a winning appeal.
The Family Secrets case was prosecuted five years ago and featured 18 gangland murders.
Marcello's attorney Mark Martin will once again have a chance to meet with his client at Chicago Metropolitan Correctional Center. As the I-Team reported Sunday, Marcello, 68, was just returned to the MCC over the weekend after a whirlwind trip to a California prison and back, the result of a bungled move by the feds.