Alito’s Sole Trial Before a Jury Was a Gamble That Paid Off

He held the gun aloft for the jurors to see and urged them to take it into the jury room. He dared them to try to “accidentally” fire the trigger on the 9-millimeter semiautomatic Beretta.

It was 1987 and Samuel A. Alito Jr. was the new U.S. attorney in New Jersey. He was assembling a staff and running the office, administering the budget and assigning assistant prosecutors to handle the caseload.

But he took this one for himself -- apparently the only time he has tried a case before a jury. His work had always been in appellate law, and now he was taking the biggest gamble of his career.

Should he be able to convince the jury that FBI Agent Edward White was shot intentionally and nearly killed with the handgun, it would establish his credibility as the state’s top federal prosecutor.

“It was a courageous thing he did,” White said.

But should the jury free John Raymond Stonaker, should they rule that the gun went off by mistake, then Alito could be criticized for grandstanding and muffing a relatively simple case.

“He was showboating,” Stonaker said.

The jurors convicted Stonaker, and the judge gave him 23 years in prison. But it was not a clean victory for Alito. Instead of the first-degree attempted murder conviction he wanted, the jury settled on a second-degree finding that ultimately allowed Stonaker an early release from prison.

Nevertheless, the drama that played out in the federal courthouse here tells a lot about Alito, President Bush’s nominee for the Supreme Court.

He proved early on that he was prepared to take chances and was unafraid of the prospect of failure. He was willing to lead by example. He was comfortable with who he was, colleagues said, and not one to second-guess himself.

Alito was 37 when President Reagan named him U.S. attorney for New Jersey, traditionally a high-profile, crime-busting kind of job. Some questioned whether the Ivy League-educated appellate lawyer was a good choice.

Walter Timpone, a New Jersey lawyer who worked under Alito in the U.S. attorney’s office, says trial prosecutors and appellate lawyers are creatures separate and distinct.

“Trial lawyers are ebullient, appellate lawyers are not,” Timpone said. “Appellate lawyers have to convince a court on the law. Trial lawyers have to convince juries on both law and emotion.”

Describing Alito in the courtroom, Timpone said: “With Sam you’d get a cogent argument with a bit of emotion.”

Three days before the FBI shooting, Alito had announced his first big hire: Michael Chertoff, a hard-charging aide to the already legendary Rudolph W. Giuliani, the U.S. attorney in New York.

Chertoff, who became Alito’s top deputy, was all that his new boss was not: a veteran courtroom prosecutor. The shooting of White would have been an opportunity for Chertoff -- now secretary of the Department of Homeland Security -- to hit the ground running.

But Alito kept the case. He chose Stuart Rabner, 27, a self-described “baby lawyer” who had just joined the office, to assist him.

“I was still trying to find the men’s room,” Rabner recalled.

The shooting had taken place at a Days Inn in South Plainfield, N.J.

Stonaker was under investigation as part of a heavy-equipment theft ring, and White and several local police officers cornered him July 9 in a top-floor room.

Part of the story is not disputed:

Stonaker asked the other officers to leave so he could talk alone with White about the heists. After the officers stepped outside, they heard a commotion and a single gun blast from behind the door. But they could not get in. Someone had slammed the door latch shut.

When White managed to pry the latch open, the officers saw him and Stonaker struggling on the floor. They subdued the suspect. The agent had been shot point-blank in the ribs, the bullet passing an inch from his heart and then coursing up and out through the hotel ceiling. His recovery took several months.

The second part of the story became the crux of the trial.

Alito and Rabner compiled evidence that Stonaker had intended to take White hostage or kill him outright. White told them Stonaker had lifted the Beretta from under the bed and shot him once in the chest.

But Stonaker and his lawyer, Lawrence Lustberg, said the 9-millimeter had gone off accidentally as the two men struggled. They argued that a faulty device on the side of the weapon allowed it to be fired without someone squeezing the trigger.

It all came down to the handgun.

Rabner remembers that he and Alito and several FBI agents tried repeatedly to get the trigger on that gun to go off accidentally; they never could.

They called four witnesses when the trial opened in November. The first was White.

Now retired, he recalled in a recent interview that he was impressed by Alito. Not flashy, but persistent. “He seemed to know his way around the courtroom,” White said. “He didn’t seem nervous. He was very self-assured.”

Alito also called two of the police officers to the stand, and the witness he hoped would clinch it for the government -- firearms expert Charles Spaht.

Spaht testified that it would be “a near impossibility” for the gun to go off accidentally. He said that “even if it were dropped from an airplane,” it would not fire unless someone pulled the trigger.

Alito rested his case.

Lustberg presented one defense witness, firearms expert George Fassnacht, who told the jury that the Beretta had a “serious design defect” that could cause it to misfire. Caressing the Beretta in his hand, he easily got the hammer to snap without touching the trigger.

At that point, Stonaker recalled in an interview, he felt confident. He believed the attention Alito was getting by personally trying the case was fading now that Fassnacht had shown the gun was faulty. “He was obviously there for political reasons,” Stonaker said of Alito. “This was a pretty open-and-shut case, and it was easy to try.”

In his closing argument, Alito told the jury that faulty gun or not, Stonaker “was intent on killing.... He had already shot him once and he was going to shoot him again.”

The jury of seven women and five men agreed -- somewhat. They found Stonaker guilty of second-degree attempted murder.

At the sentencing, Alito argued for the stiffest punishment possible, telling the judge: “It was not because of anything the defendant did that a life was not lost. It was only a matter of luck and a matter of inches that this was not a trial for murder.”

Stonaker’s 23-year term was probably 10 years less than if Alito had won a first-degree conviction. He was paroled five years ago and runs a tree-trimming service in Lawrenceville, N.J.

Alito ran the office for two more years. In 1990, President George H.W. Bush appointed him to the U.S. 3rd Circuit Court of Appeals.

If confirmed to the Supreme Court, Alito will be the only justice besides David H. Souter with prosecutorial experience.

Times researcher Vicki Gallay in Los Angeles contributed to this report.