Monthly Archives: February 2013

The Guesswork Involved In Deciding On The Truth – I

Sometimes Some Come In With An Advantage

One thing we know about our system of justice is that wrong decisions are made every day. This is because it is a human system which does not provide for certitude. We have people who don’t really know other people making judgments about them based on a minimal encounter. Even though my career was as a trial lawyer, I’ve always believed it quite unnerving to be brought before twelve people and a judge, or a judge alone, to whom you are a complete stranger and have them make a decision about you.  Even more so if it involves your freedom.

We have no system other than using other people to tell when a person lies or is telling the truth. Our system does not prevent a known liar from coming in and testifying. A person like Sally Slander may say a certain thing ten times and then can come back and testify to the opposite the next time. Someone like corrupt retired FBI Agent John Morris who testified as I’ve shown in my book Don’t Embarrass The Family that he lied over and over again, sometimes under oath, is allowed to testify in the same manner as someone who has never lied before.

Having The Judges Do Their Jobs

“Bring in the guilty lad. I’ll give him a fair trial.”

I mentioned how David Boeri and David Frank’s article Ortiz Under Fire got me thinking about other happenings in the justice system. I’ve told how I believe the cops are running the show in the Boston U.S. Attorney’s office. But there is another aspect to that story I’d like to speak about.

I’ve pointed out in my book Don’t Embarrass The Family how the evidence in the case against retired FBI agent John Connolly consisted in the main in two parts: a corrupt FBI agent John Morris who was Connolly’s supervisor testifying against him so he could save his pension and avoid prison; and three gangsters who made fine deals for themselves with the prosecutors to avoid spending the rest of their lives in prison or on death row.

The outcome of the Connolly trial which few seem to know is that the jury disbelieved all of the gangster testimony about John Connolly’s actions as an FBI agent. Martorano testified his gang gave Connolly a $5000 ring, he was found not guilty; Martorano testified he killed Richard Castucci because Connolly had outed him as an informant; Connolly was found not guilty. Connolly was accused of leaking information that Halloran was an informant, that Callahan would be pressured by the FBI, and that Baharian would be wiretapped. He was found not guilty of all. The charge against him of extortion of a liquor store also resulted in a not guilty.

Wonderings About This And That: The Judiciary

The Judiciary:

The argument before the First Circuit Court of Appeals on whether Judge Richard Stearns should step down from handling the Whitey Bulger case happened on January 8 of this year. The issue seemed quite simple and clear-cut. It called for a yes or no answer. The judges on the panel were the most prominent that could be assembled in this area including a former Supreme Court justice and the chief justice of that court. I’m surprised that they didn’t agree within minutes of leaving the bench, give the answer, and offer a simple explanation for their decision.

It has now been a half a hundred days for the court to decide this. If you ever pause to wonder why it takes so long for anything to be done in the federal judicial system just remember this and you’ll have your answer. If you’re ever told, “why make a federal case out of it?”— you’ll understand better the expression.

The Perfect Storm In Ortiz’s Office

Giving Orders To The Prosecutor

Over the last two days I’ve written about David Boeri and David Frank’s article Ortiz Under Fire. Boeri has been one of the best writers in the matters surrounding Whitey Bulger. He has approached the matter from what I’d call “an investigative reporter” point of view. He considers all sides and puts his long experience to use in arriving at his conclusions. Most other writers seem to line up on the side of the prosecutors and act as cheer leaders for them. I’ve disagreed with some of Boeri’s conclusions but appreciate his insights and ability to see the case through a different lens based on his skill as a reporter.

I know less of David Frank. He seems to be a gadabout going from one high publicity case to another and opining on them. I have no idea what his background is as a litigator or even if he’s ever been in the pit. Perhaps he’s seen enough by now to be able to separate the chaff from the wheat. Together Boeri and Frank produced a fine article well worth being read by every person especially those in the litigation business.

Identifying The Scent

Justice Robert Jackson At the Nuremberg Trials

David Boeri and David Frank’s article Ortiz Under Fire was about three cases where the defense lawyers who won them suggested that had they been properly vetted the charges never would have been brought. To me, that’s a devastating charge. The consequences of being charged with a crime: destruction of reputation, depletion of assets to defend oneself, devastation of health, and direness of prison demands that no person should ever be charged with a crime at either the state or federal level unless the prosecutor is as close to certain as one can be that the person committed the crime. That is at the core of the being a good prosecutor.

For lawyers to suggest their clients should not have been charged and they prove it by having judges decide the evidence is so bad no reasonable jury could convict on it, is a serious condemnation of a prosecutor’s office.

Having strong evidence of a crime is but a first step. Other decisions are then required. First not all crimes should be charged. Next, the charges should reflect the crime and the person. It serves little purpose as we saw in the Aaron Swartz case where an otherwise law-abiding citizen known for his brilliance committed something amounting to little more than a prank ended up facing 35 years in prison and when he didn’t fold the charges were upped to fifty years.

The Scent Of A Problem

Where One Can Get Away From It All

How the mighty have fallen. Carmen Ortiz who enjoyed a Hollywood-like existence as the US attorney in Boston has tripped up and the gang is piling-up on her. Margery Eagan took a shot at her and now I see Dave Boeri and Dave Frank have followed up. I’m tempted to say welcome to the club.

I have criticized Carmen Ortiz based on several things she has done. I thought she was brutal in her recommendation of a sentence for Catherine Greig; was heartless in trying to steal the motel from Russ Caswell; and lacked discretion in bringing RICO charges against the probation officers who were merely doing the bidding of judges and legislators. I suggested her actions in the handling of the Aaron Swartz case a continuation of her lack of judgment.

Yesterday I wrote about what I thought was a solid performance by some of the assistants in her office. It so happened I did this in response to Eagan’s criticism of her. I tend not to like pile-ons. So seeing the new article by Boeri and Frank Ortiz Under Fire.”   I tended to be skeptical, especially since they were quoting some criminal defense lawyers, and my instincts were to defend Ortiz.

Carmen Ortiz Gets One Right

The Lights Of The Federal Prosecutors Office Burn Bright Into The Night

Margery Eagan in the Boston Herald stepped forward to criticize what is happening in the US Attorney’s office in Boston. I was surprised at this because the two major Boston papers have been walking in lockstep over the years in protecting and praising that office despite what seemed to me to be in some instances an obvious horrible lack of judgment.

Ms Eagan deserves praise for her courage. She talks about the deal just given to ex-Chelsea Housing Director Michael McLaughlin who was earning hundreds of thousands of public money but was caught red-handed filing false reports about how much money he was being paid. The federal prosecutors have made a deal with this man who was putting in his pocket tons of money that could have been used to better the condition of the poor folk living in government housing. McLaughlin is hoping he can avoid prison where he belongs.  He’ll get a “stay out of jail” pass if he becomes a cooperating witness for the government and gives it some juicy tidbits on which to chew..

Billy Bulger III

The Sun Sets On Whitey’s Career

 What bothers me about the situation Billy finds himself in are the loose and disingenuous suggestions by newspaper people, and others who have formed an abhorrence of Billy with access to the media, that because of Billy’s high position in the Senate no one investigated Whitey.

No one asks these people, “What do you know of those investigations that were being conducted?” Or, more basically, “How many criminal investigations have you been involved in?” It’s the audacity of these people to aver to something of which they have no knowledge that smarts me.

That is so because I was in the DAs office and worked for years investigating organized crime. I knew what was going on. I did more wiretaps than all the other prosecutors in the state including the federal prosecutors combined for several years in a row. I know this because we were required to file with the federal government reports of these activities.