Why Roger Stone’s Trial Could Turn on a Judge’s Decision About a Clip from The Godfather II

Roger Stone—the self-proclaimed dirty trickster of American politics—is on trial in federal court. The jury has been selected, and the trial is under way.

But the trial could end up being decided by whether the jury gets to see a video clip from The Godfather II.

Before I get to that, let me confess something that is sure to draw gasps and groans: I’ve never seen any of the Godfather movies.

I know, I know. I’m sorry. I’m a bad movie guy.

Now that we’ve gotten that out of the way, and if you’re still reading, I’ll explain why a judge’s decision about whether federal prosecutors can use the Godfather II clip looms so large in Roger Stone’s trial.

Stone is accused of engaging in witness tampering in relation to Randy Credico’s potential testimony to Congress that could have implicated Stone in perjury.

One of the key accusations against Stone in his federal indictment is that he told Credico that Credico “should do a ‘Frank Pentangeli’ before HPSCI,” the House of Representatives Permanent Select Committee on Intelligence.

Frank Pentangeli is a character from Godfather II who testifies before a congressional committee and claims not to know critical information that he does in fact know—with the purpose of this feigned ignorance to avoid implicating other individuals in perjury.

Prosecutors wanted to play a clip at trial of Godfather II for the jury to put Stone’s statement in context and prove that he had a guilty state of mind when communicating the “do a ‘Frank Pengangeli.’”

Stone’s defense counsel, of course, objected to the playing of the clip itself, arguing that it would be more appropriate to have a transcript of the video or a summary of the events in Godfather II involving Frank Pentangeli.

Federal Rule of Evidence 403 governs this situation—where defense counsel asserts that the probative value of a piece of evidence (the value in proving the truth of a matter asserted) is substantially outweighed by the unfair prejudice that might result from its introduction and presentation to a jury.

Ultimately, the judge presiding over the case agreed with the defense counsel that the video clip’s unfair prejudice from showing a fictional criminal act should be excluded from the trial despite Stone’s alleged reference to that precise fictional character in a virtually identical (albeit fictional) situation involving congressional testimony and a criminal act (though that ruling could be revisited as the trial proceeds).

This is the type of ruling that might have been decided to prevent an issue on appeal by Stone were he to be convicted. That is, an appeal based on the authorization for use of evidence that should have been excluded, which tainted the trial, and therefore requires vacating the conviction.

As someone who hasn’t seen Godfather II, I find the reference to Frank Pentangeli remarkably straight-forward even if I haven’t seen the clip itself.

And I find Stone’s defense—that Credico does a really good impersonation of Frank Pentangeli, voices and accents and all—to be hard to believe.

But my opinion really doesn’t matter.

It’s the opinion of the jury of his peers that will determine Roger Stone’s fate.

At least until he appeals (and, that too, assuming he needs to--presumption of innocence is every criminal defendant's best friend).

I'll be following the trial as it proceeds. If you are, too, I'd love to discuss the twists and turns as they unfold and hear your thoughts.