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Commonwealth v. Ung: The Other Side of the Story

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In response to our last story about Gerald Ung — the Temple Law student now on trial for attempted murder and aggravated assault (among other charges), after shooting Eddie DiDonato, a former Villanova lacrosse captain and the son of a prominent Fox Rothschild partner — some commenters expressed the view that our coverage was too favorable to the prosecution.

Look — we have no dog in this fight. It seems that the part of the post readers found most objectionable was a blockquote from a source who attended the trial, which we reprinted simply because it was from someone actually present in the courtroom. Sadly, Above the Law doesn’t have a Philadelphia bureau. If you’ve been attending the trial and would like to share your thoughts with us, we’d love to hear from you.

Another reason why the earlier story might have seemed more pro-prosecution is that it was describing the prosecution’s side of the case and the early prosecution witnesses. Now that the trial has been going on for several days, a fuller version of events has emerged. This will culminate tomorrow, when defendant Gerald Ung is expected to take the stand. This is not typical — it happens more on TV and in the movies than in real life — but then again, this is not the typical case. Ung’s defense lawyer, Jack McMahon, may be betting on the ability of his client — a law student, presumably intelligent and articulate — to win over the jury.

Let’s learn more about what’s been going on at the trial over the past few days — and hear some juicy tidbits about defense counsel McMahon….

The trial began with testimony from Eddie DiDonato and the friends who were with him that night. One observer at the trial was unimpressed by them as witnesses. “Looks like DiDonato’s boys are all putting up some selective amnesia,” this reader said to ATL, commenting on the apparent inability of some of DiDonato’s companions to remember what happened. “Ung’s attorney is taking them apart.”

After testimony from the DiDonato camp, witnesses from Ung’s group presented a very different version of events. According to Ung’s friends, DiDonato and his bros were looking for trouble. From the Philadelphia Inquirer:

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Ung’s friends – [Joy] Keh and Rouzbeh Afsarnanesh – testified that DiDonato and his friends shadowed them after the initial altercation. DiDonato and Seth Webster were about 10 feet behind, Ung’s friends testified, and a third man, Thomas Kelly, was alongside them on Market, twice rushing at them, trying to hit Ung.

Keh said she approached the scaffolding as DiDonato’s friend Andrew DiLoreto was doing pull-ups. Keh said she tried to do a pull-up and was distracted by a loud argument. She said she turned to see one of DiDonato’s group – she could not remember who – legs apart, hands gesturing to his crotch, yelling, “Well, come on!”

“What did you say?” was Ung’s reply, Keh said.

Afsarnanesh had a different recollection. He said he walked into Market around the scaffolding and heard someone call Ung a derogatory term for someone who is gay.

“So you think we don’t speak English, or don’t understand English?” countered Ung, Afsarnanesh testified. DiDonato and his friends are white. Ung and Keh are Asian; Afsarnanesh was born in Iran.

Homophobic epithets? Suggestions that Asian-Americans don’t speak English? DiDonato and his fratty pals aren’t looking too appealing right now.

It also sounds like DiDonato and his friends were the aggressors — and that Ung’s friends were trying to defuse tensions:

[Ung’s friend Joy] Keh said she feared for her life, especially after [DiDonato’s friend Thomas] Kelly twice rushed them.

The first time, she said, Kelly rushed from Market, right arm cocked as though to sucker-punch Ung. Keh said she spotted Kelly approaching, blocked the punch, and pushed him backward, saying, “I see that. Stop it!”

She said she tried to make eye contact with Kelly, saying, “You’re a good person, don’t do this.” Kelly, however, seemed overcome with rage, Keh said, and shouted back: “I’ll kill you. You’re dead.”

In addition to eyewitness testimony, a surveillance video capturing some of the evening’s events has been endlessly dissected. More from the Inky:

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On the video, the two groups walk toward the cameras mounted outside the Fox29 studios at Fourth Street and Market: Ung and friends, then DiDonato and his friends about 10 feet behind. Kelly, recognizable in a white cap worn backward, darts into Market and walks ahead to flank the trio.

Twice Kelly rushes to the sidewalk at Ung. The first time he is pushed away by the woman. The second time, he gets through.

Ung kicks at Kelly, backs up, and holds up a gun. Suddenly, DiDonato moves forward and appears to lunge at Ung.

I’m not an experienced brawler, but my general recommendation when a guy whips out a gun is to RUN.

There is the white burst of a muzzle flash, then a second, and Ung and DiDonato fall to the sidewalk….

DiDonato maintained that he approached Ung to “defuse the situation” and denied provoking Ung.

Here’s another tip. If a guy pulls a gun on you and you want to “defuse the situation,” try raising your hands in the air and backing away slowly, not lunging at him.

One ATL reader drew our attention to a very interesting message-board thread about the case, on a pro-gun forum. Some highlights, via our tipster:

[The thread] some interesting links that give some color on the meathead lacrosse player vs. asian law student angle. DiDonato’s twitter account:

http://0cfa9f600839f57e90e5559b8ee54864.com/eddied10/

A couple of choice tweets:

“Got threatened to have my number blocked, crept on numerous ladies, woke up naked…it was a good night”

“wow blacked out at the white out and i couldnt be happier”

“I’m drinking harder than I did in college…what’s wrong with me?…NOTHING!”

and a nice pic:

http://i90.photobucket.com/albums/k278/jd06sti/DiDanato.jpg

Apparently DiDonato testified that he was sober the night of the shooting. Does he really seem like the kind of guy to be sober at 2 am on a weekend night?

That question was rhetorical, in case you’re wondering.

Moving on from the defendant and the alleged victim, let’s turn our attention to one of the lawyers: Jack McMahon, counsel to Ung. He’s a prominent member of the Philadelphia criminal defense bar, with what one observer describes as “an excellent track record for getting his clients off murder charges.”

Like many criminal defense lawyers, McMahon is a former prosecutor (an ex-homicide prosecutor, in fact, which might explain his strong track record in murder cases). In the late 1990s, he ran unsuccessfully as the Republican candidate for Philadelphia district attorney, against incumbent Lynne Abraham. (Despite being a Democrat, Abraham — who served as D.A. for almost two decades, from 1991 to 2010 — was known as a hard-ass prosecutrix, earning such nicknames as “Deadliest DA” and “Queen of Death,” based on how often her office sought the death penalty.)

Jack McMahon’s campaign for DA was not helped by an unfortunate training tape that he made back in his days as an assistant district attorney. From an April 1997 article in the Philadelphia Inquirer:

Jack McMahon, the Republican candidate for Philadelphia district attorney, made a training tape while working as a prosecutor 10 years ago in which he advised young prosecutors to try to keep “blacks from low-income areas” off juries.

“The blacks from the low-income areas are less likely to convict,” McMahon said on the videotape. “I understand it. It’s an understandable proposition. There’s a resentment for law enforcement. There’s a resentment for authority. And as a result, you don’t want those people on your jury.

“And it may appear as if you’re being racist, but again, you’re just being realistic. You’re just trying to win the case. The other side is doing the same thing.”

McMahon, then a homicide prosecutor, also cautioned colleagues against accepting teachers, doctors, liberals, social workers or anyone “smart” on a jury. And he told the rookie prosecutors that their mission was not to “get a competent, fair and impartial jury,” but to win.

The problem with McMahon’s advice can be summed up in three words: Batson v. Kentucky.

An ATL reader helpfully sent along a link to the McMahon video, which you can watch over here. You can tell it’s from a long time ago because McMahon had more hair and less poundage back then. (McMahon gave his side of the story to the Inquirer back in 1997, saying that he didn’t intend to be racially insensitive in his remarks, and adding that “No one understands the injustices to minorities done in the legal system better than me.”)

The McMahon video, as another tipster pointed out to us, was memorialized in the Third Circuit’s opinion in Wilson v. Beard (handed down in October 2005, when I was working on Third Circuit appeals in the U.S. Attorney’s Office in New Jersey; it was a big deal at the time among prosecutors). The Third Circuit affirmed a grant of habeas relief to a defendant who was convicted of murder, based on the defendant’s claim that prosecutor McMahon had purposefully and impermissibly kept African-Americans off his jury.

The late Judge Edward Becker, in his opinion for the unanimous panel, quoted extensively from the tape (check out the slip opinion, pp. 4-8). Interestingly enough, according to Judge Becker, McMahon “told the assembled prosecutors to avoid ‘smart people,’ law students and lawyers, social workers, ‘very esoteric people,’ teachers, and ‘intelligent doctors.'”

Now, of course, McMahon has a law student for a client. Presumably he likes “smart people” and law students better as clients than he did back when he was a prosecutor considering potential jurors.

One final tidbit about McMahon. As a prosecutor, he didn’t like having “intelligent doctors” as jurors. But now that he’s a defense lawyer, he’s happy to take doctors as clients. Apparently Dr. Kermit Gosnell, another high-profile Philly defendant, has retained McMahon to represent him.

Gosnell might be a doctor, but his “intelligence” is open to question. In case you’ve forgotten what he’s charged with, here’s something to refresh your recollection, from the WSJ Law Blog:

A Philadelphia doctor who provided abortions for minorities, immigrants and poor women has been charged with eight counts of murder in the deaths of a patient and seven babies who were born alive and then killed with scissors, prosecutors said….

Working out of his Philadelphia office, Dr. Kermit Gosnell, 69, made millions of dollars over 30 years, performing as many illegal, late-term abortions as he could, prosecutors said.

Gosnell “induced labor, forced the live birth of viable babies in the sixth, seventh, eighth month of pregnancy and then killed those babies by cutting into the back of the neck with scissors and severing their spinal cord,” [Philadelphia DA Seth] Williams said. Nine of Gosnell’s employees also were charged.

Patients were subjected to squalid and barbaric conditions at Gosnell’s Women’s Medical Society, where Gosnell performed dozens of abortions a day, prosecutors said. He mostly worked overnight hours after his untrained staff administered drugs to induce labor during the day, they said.

Here’s the part that will really turn your stomach:

Early last year, authorities went to investigate drug-related complaints at the clinic and stumbled on what Williams called a “house of horrors.”

Bags and bottles holding aborted fetuses “were scattered throughout the building,” Williams said. “There were jars, lining shelves, with severed feet that he kept for no medical purpose.”

Say what you want about Jack McMahon, but don’t claim that he’s afraid of taking tough cases. Although the claims against Dr. Gosnell are just allegations right now, they are definitely on the horrific side.

If Jack McMahon gets Gerald Ung acquitted, or if Ung is convicted on a less serious charge than attempted murder, it would not come as a shock. There’s enough ambiguity in the fuzzy events of that night for a jury to find reasonable doubt.

If Jack McMahon gets Dr. Kermit Gosnell acquitted, that would be a much more impressive feat.

Different version of Old City shooting emerges at trial [Philadelphia Inquirer]
Video of 2010 shooting in Old City dissected [Philadelphia Inquirer]
Philadelphia DA Candidate’s Tips on Jury Selection: “To Win, Limit Black Jurors, McMahon Said” [Philadelphia Inquirer]
McMahon DA Training Video [Google Videos]
Wilson v. Beard [U.S. Court of Appeals for the Third Circuit]
Kermit Gosnell Hires Gerald Ung’s Lawyer [Fox 29]
Philadelphia Abortion Doctor Charged With Murder [WSJ Law Blog]

Earlier: Commonwealth v. Ung: The Temple Law Student Shooter Goes to Trial
Prior ATL coverage of Gerald Ung

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