Mr. Untouchable (2007) (Guest: Robert B. Fiske) (episode 38)

Mr. Untouchable, a 2007 documentary directed by Marc Levin, describes the rise and fall of former New York City drug kingpin, Leroy (“Nicky”) Barnes. In the early 1970s, Barnes formed “The Council,” an organized crime syndicate that controlled a significant part of the heroin trade in Harlem. Inspired by the Italian-American mafia, Barnes became one of the most powerful and notorious figures in New York City. A flashy and flamboyant fixture on the free-wheeling social scene of the period, Barnes quickly drew the attention of law enforcement. After several unsuccessful state prosecution attempts, Barnes, along with multiple other associates, was indicted by federal prosecutors in New York in 1977. Barnes was convicted and sentenced to life imprisonment. Barnes, however, was released in 1998, in exchange for working as a government informant, and entered the Witness Protection Program, where he remained until his death in 2012.  Barnes was also depicted in Ridley Scott’s 2007 film American Gangster, which starred Denzel Washington as Frank Lucas, another notorious drug kingpin from the era. Cuba Gooding Jr. portrayed Barnes in that film. Joining me to talk about Mr. Untouchable and the Nicky Barnes case is Robert B. Fiske, Jr., Senior Counsel at Davis Polk in New York, where he previously served as litigation partner for many years. Bob Fiske is one of the most prominent and respected trial lawyers in America. He has been involved in some of the most notable cases of the last half-century, including as special prosecutor in the Whitewater controversy and the death of White House counsel Vince Foster, the Three Mile Island nuclear disaster, the antitrust suit between the USFL and. NFL, the most contentious America's Cup ever, and the financial swindler Bernie Madoff.  Mr. Fiske also served as the U.S. Attorney for the Southern District of New York from 1976 to 1980, during which time he led the prosecution of Nicky Barnes. 

Timestamps:

0:00   Introduction
3:18     Drug trafficking in Harlem and the South Bronx in the 1970s
4:55    Who was Nicky Barnes
6:27     Trying to bring Barnes to justice
7:57      “Mr. Untouchable” and a call from Attorney General Griffin Bell
13:08   A sequestered and anonymous jury
17:22    Navigating credibility issues with key government witnesses
29:25   An issue with a juror dubbed the “Marlboro Man”
33:46   The guilty verdict against Barnes
36:25   The larger implications of the Barnes case
37:51    The depiction of Nicky Barnes on film


Further reading:

Barnes, Leroy & Folsom, Tom, Mr. Untouchable: The Rise, Fall, and Resurrection of Heroin’s Teflon Don (2007)

Ferretti, Fred, “Mr. Untouchable,” N.Y. Times (June 5, 1977)

Fiske, Robert B., Prosecutor Defender Counselor: The Memoirs of Robert B. Fiske, Jr. (2014)

Roberts, Sam, “Crime’s ‘Mr. Untouchable’ Emerges From Shadows,” N.Y. Times (Mar. 4, 2007)

Wertheim, Eric, Note, “Anonymous Juries,” 54 Fordham L. Rev. 981 (1986)

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