S’THEMBISO MSOMI | Is ‘bathrobe defence’ at play at Madlanga commission?

There is nothing new under the sun. So goes the idiom which — if I still remember my Sunday school lessons well — originates from a verse in the Book of Ecclesiastes. I remembered this saying when a friend, who has been closely watching proceedings at theMadlanga commission, drew some similarities between certain developments at the inquiry and a 1969 US criminal case, part of which was dramatised in a 2019 streaming series.

TheGodfather of Harlemfictionalised the story of real-life African-American crime boss Raymond “Bumpy” Johnson, played by Forest Whitaker. Johnson’s main rival is New York mafia mobster Vincent “Chin” Gigante, played by Vincent D’Onofrio. Gigante is the boss of the Genovese crime family, an Italian syndicate that had taken control of much of the New York underworld in the 1960s.

There is a scene in the series where federal agents arrive at Gigante’s apartment to serve him with papers to appear before a justice committee inquiry, similar to ourparliamentary ad hoc committee inquiry. When one of the agents is finally allowed to enter the apartment and formally serve Gigante, he finds him sitting fully clothed in a bathtub with an open umbrella protecting him from water pouring out of a shower head above him. He looks deranged as he pleads with the agent and his wife to “protect” him from “the rain”.

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He ends up not being called before the committee at all, because even though there were serious allegations of criminality against him, the federal agent and his bosses became convinced that Gigante was unfit to give testimony. In real life, Gigante became known as the master of what the New York Times would later dub “the bathrobe defence”. He’d be seen walking around town in pyjamas and bathrobes, causing officials to doubt claims that he was the head of the Genovese crime family.

When sceptical cops finally managed to get an arrest warrant against him in 1969, his lawyer was able to convince the court that Gigante was “unfit to stand trial”. It is also said that one crime reporter, after having been assigned to follow him around to see if he was not faking it, came back to report that Gigante was “a disturbed but harmless person”. He kept up the act for years, even as more evidence emerged pointing fingers at him for criminal activity.

It was only 30 years later in 2003, when he was 75, that Gigante finally admitted that he was faking it all along. He was forced to confess after the state managed to get other mob bosses to testify that they had been in meetings with him where he was of clear and sound mind and making decisions. Cornered, Gigante pleaded guilty to obstruction of justice, telling the court that he had planned it all to trick the criminal justice system.

He died two years later, a prisoner. Now no one would be foolish enough to accuse any of the witnesses who have failed to appear before the Madlanga commission, citing medical or health reasons, of adopting a variant of the “bathrobe defence”. Each case needs to be considered on its merits, and the commission has to assume each affected witness is telling the truth unless there is evidence otherwise.

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