After The Bell: A Third Round Analysis of Whitey’s Fight

FighterThe strategies of the fighters are unfolding as we go through the trial as are the strengths and weaknesses of some of the persons involved.

Whitey, aka James Bulger, if in-courtroom reports are accurate, has used the “F” word on two occasions – once saying he wasn’t an informant and the other suggesting witness Morris was lying – showing for all to know, if they didn’t already, you can’t take the gangster out of a gangster. So what if he was an informant or not, it is quite clear he was a vicious man who for years was protected by a group of FBI employees so that he could continue his criminal ways. Other than those two times showing his inner venom, he has been an ideal defendant dressed oddly in three or four different colored but otherwise identical long sleeve pull over shirts. Lately he has seem more alert than earlier in the trial.

Fred Wyshak – the lead prosecutor on the prosecution side at this stage of the case. Brian Kelly seems to be the coordinator of matters and carried the load during the pre-trial  matters. Kelly did an excellent opening but hasn’t done much since. He’s taken the barbs of J.W. Carney and let most roll off his back but gives back as good as he gets on some occasions. Zachary Hafer is the legal guy and the young guy on the team. He’s doing the questioning of some of the witnesses, mostly the victim’s families.

Kelly sits in the middle of the prosecutors. On his right is Zac, on his left Wyshak who sits closest to the jury. Defense counsel Hank Brennan sits to the right of Zac. Between him and Carney sits Whitey. To Carney’s right is the witness stand. If Whitey swears at a witness he has to say it loud and clear into Carney’s ear so Carney cannot pretend ignorance to any outburst.

Wyshak has carried the bulk of the heavy stuff so far. He’s all business. When he commented a couple of days ago during a hearing after the jury went home that “I don’t want to be difficult,” Judge Casper had a good laugh as she indicated that if he didn’t want to be he was doing a very good job at it. Wyshak likes to use leading questions which are questions that suggest the answers to a witness. It’s not that he can’t do it right, it’s just his way of getting things across. He’s a fighter not giving an inch as he should be. He also has a tendency to use what are called speaking or talking objections which is a good tactic in front of a jury.

His approach to a witness is to emphasize an important point over and over. He’ll say: “When you looked at that flower what color was it.” Witness: “Red.” Wyshak: “Could you identify what is was?” Witness: “A rose.” [Most likely he’d have asked: “When you saw the flower you recognized it as a rose.”] Wshak, “Now this rose, what color was it?” Witness: “Red.”  Wyshak: “Now after seeing this red rose what did you do? Important things he likes to have heard several times.

I’ve noted he’s fallen into a few traps because of his relentless pursuit of letting no stone be left unturned. He’s a formidable adversary who knows his way around the courtroom. You wouldn’t want to be having him against you.

J.W. Carney is forceful and courageous. He’s ever ready to have a fight but so far he has taken a secondary role to his side kick Hank Brennan. It’s apparently just the way the cards fell — Brennan’s two main witnesses leading off; I expect Carney will be doing the cross-examination of Weeks, who will be a tough customer and I’m anxious to see the match up, and Flemmi, not so tough but I want to see how much he can bloody him up.

Hank Brennan (Brennan on the Moor) has proven himself a person with a nice style. He doesn’t have the tiger in him that Carney has but a more gentlemanly approach when it comes to the court and opposing counsel. Of course he need not show that side if he has it since it is Carney who is always up for a scrape. What he does have is a mind as sharp as a whip. He has taken apart each of the witnesses he cross-examined with his relentless machine gun questions. He never forgets the point he is after and lets his witness swim around a little before reeling him back in. He’s got a knack for editorializing in his questions which Wyshak catches about 80% of the time and Judge Casper tells him to try again. But he’s made the point he wanted to make to the jury.

With respect to counsel they’re all top-notch as they play through this chess game; at times it seems that the last thing they care about is Whitey, enjoying the jousting between the teams.

Judge Denise Casper, a young judge with about two years experience on the bench, is caught up between these two contenders like a referee in a heavy weight match up. I’ve admired the way she has handled the case. She’s made mistakes, as one would expect but she’s growing with the passage of each day. I like that she is calm and gives counsel a lot of rope which she is now tightening; I like the way she openly discusses what she is thinking about when it comes to evidentiary issues; I like that she is trying to be extremely fair to both sides calling it the way she thinks it should be called and giving counsel plenty of opportunity to change her mind. Smart, fair, easy-going, considerate, and mild of manner, she’s doing a masterful job.  Kudos go to her so far considering the lion’s den she has been thrown into.

So far the sides are evenly matched, the referee has no side bets, and the judges are awake and alert. Whatever the result from today’s vantage point I see that no one will be able to complain he did not have a full chance to try the case. That’s how it should be.

 

 

36 thoughts on “After The Bell: A Third Round Analysis of Whitey’s Fight

  1. Nol Pros before trial is easy. Try finding out your witnesses or officers are lying on the stand and dismissing some cases. Of course prosecution is not a science- and thankfully. I did not like my college science courses. Thus I went to law school.

    1. Jim P –

      That’s hard to do. Sometimes once you get in the pit you become interested in the fight. Never had that circumstance of having liars on the stand. Probably because I controlled most of my cases from the git go.

    2. Jim, you know about discretion I assume. Cops have it and prosecutors have it. Its a good thing. Unfortunately conventional wisdom is that cops and prosecutors have no choice and the shame is too many cops and prosecutors believe it. When it fits their purpose of course. Like Martha Coakley prosecuting Tim Cahil.

      It’s a shame that too many prosecutors think it’s about a score card.

      1. Ernie:

        Too many, way too many, prosecutors are afraid to not prosecute when that is appropriate.

    3. misdemeanors and juvenile court junk is where heavy handedness seems to be the status quo for our District Attorneys. With exceptions. But it seems punishment and life long black marks on stupid young people are something police and prosecutors are proud of.

      sad, isn’t it?

      1. Ernie:

        One of the worst things the state ever did was to open up juvenile courts outside of Boston juvenile. It made it necessary to keep it busy and that meant arresting kids for all sorts of minor infractions like fighting.

  2. Ernie/Patty,

    Don’t confuse tenacity and trial advocacy with unfairness. I was also a prosecutor, and I’ve dismissed cases after jeopardy attached when it was warranted. As our esteemed moderator will tell you, I’m a big fan of justice Jackson and his description of the prosecutors role in society.

    But lets not equate fairness or justice with a criminal trial in a court of law. Your job is justice within the bounds of the constitution- it is not to refrain from using advocacy skills to win your case. If a prosecutor can win a case using examination and objection skills that do not amount to a miscarriage of justice than it is absolutely their duty to do it. It is dereliction of duty not to.

    Wyshak’s “no prisonser’s” approach does hurt his credibility with the jury, as does putting on the liars and cheats and not explaining to the jury, through his direct exam, that they are liars and cheats. No reason to sink your credibility along with his by useless objections.

    But alas, I digress.

    1. Jim P
      Dismiss when jeapody attached? Not sure what that’s all abouti think patty and i are talking about ethically brooming a case. Mol pros and motion to dismiss because the community is better off. That is why all prosecutors ultimately report to elected officials.
      Prosecution is not a science even though Martha Coakley and Dan conley and the like have the media and public believing it is.

      1. Ernie:

        So true, prosecuton is not science – it’s more like life with its vagaries. The nol pros is the best tool of a prosecutor. Most DAs are afraid to use it. I loved it since it kept me in charge of what went on. Noting better than thinking someone is being wrongly prosecuted and stopping it. Have had judges and politicians screaming at me but I’d smile since they could do nothing if I choose not to prosecute (and the DA always backed me)

        1. Matt, when Nol pros was not an option (internal matters) and spineless judge would not dismiss, i loved the the move for trial then rest wo calling witnesses or introducing evidence.
          Make the weak judge find the def.not guilty.
          Great way to make judge do the last thing he wanted to do. And seeing that justice prevails of course.

          1. Ernie:

            Don’t know about that. Sounds a horrid perversion of the job. Prosecutor should never ask a judge to dismiss a case. That’s what the nol pros is for. All the assistants in our office used them freely and were encouraged to use them. Didn’t make the cops happy at times but that was the way things are supposed to work. You can’t teach DAs courage.

          2. well excuuuuuuuzzzze Me, mr. I-only-worked-as-a-general-in district- attorney’s-oofice-never-the-front-lines.

            You weren’t there man. You weren’t there when were crawling on our belly through rice paddies with Charlie just a half a click up the Mekong. No man, you were having lunches at Dini’s man (there’s a reference nobody will get) while reality was playing out on the streets man.

            Sure we bent the rules. Had to man. Only way to survive. I’m telling ya man, you had to do what you had to.

            Sure there was understanding. The judge, the ada. defense attorneys, probation, and clerks. Everyone was in on it man.
            When someone was getting screwed the ada would move to dismiss. Wasn’t his fault that the generals had standing order of no “nol pros”. But they weren’t there man.

            And every so often a substitute judge would show up. Comin’ in to the war zone for the first time after learning the trade on some deserted judicial island. Wanna make a name for himself. Tell us we are not tough enough on crime.

            It was awful man. The humanity.
            I tried to dismiss it Man. I did. Really tried.

            But the judge said no.
            I was scared man, real scared. I stood there in disbelief that a judge said no to this case. Until the evening before I had never heard of it.

            I panic. I moved for trial. Then I rested.
            I watched man. Like nothing I’ve seen before or wanna see again. the If he had a gun he would have pointed it at me and shot me man.

            YOU WEREN”T THERE! MAN!!!! YOU WEREN’T THERE.

            1. Ernie:

              I earned my bones as a young defense lawyer. When I became an ADA I was not in the district court for the most part, we had our own action at the superior court level. I only went to the lower court to stir up trouble like the time I filed a nol pross after a judge ordered the clerk to issue a complaint. The judge went bananas, as you might expect, when he realized there was nothing he could do about what I had done. He never called me to complain, he just roughed up the young assistants in the district court as much has he possibly could. They’d come back to the office and tell me how he was battering them around. I laughed and told them it would make them better lawyers.

              1. Thanks Matt, I hope u know in was just having fun. Different offices had different policies. Unfortunately some had the no nol pros policy. But fortunately th d.a. gave the ada lots of discretion including brooming cases when justice required. I agree that nol pros is the answer. Being the d.a you dont have to worry about the judge taking his anger at u out on your client or next client.
                Whats better Matt is when defense atty goes into court he is hardly ever in and might never see the judge again. Then when the esteem judge starts running the court or trial or whatever the way he is use to and the usuals accept it, the lawyer raises holy hell. Tells the judge how much he appreciates the court and what it is trying to do but his responsibility is to his client and he will take the judge and the court done with him if his client is denied his rights.
                This works well especially on a district court w an agile judge who thinks he is annointed rather than appointed.
                Cross examing a lying cop and making him look like an idiot is awsome. Seeing the hate on their eyes as u continue to expose them is priceless.
                Second best is busting up the routine of judge fuher in some god awful court.
                Remember folks unless there is a docket and the case called a judge is impotent. Their egos are the problem. Ever listen to them birch and moan? All about pay raises w these guys.
                Bit still better than elected

    2. Jim P,

      Wow we are further apart then I thought.

      “But let’s not equate fairness or justice with a criminal trial in a court of law.”

      Fairness and justice can’t be seperated from a criminal trial. During a criminal trial is the critical point where the most constitutional rights attach, and with good reason.

      “If a prosecutor can win a case using examination and objection skills that do not amount to a miscarriage of justice than it is absolutely their duty to do it.”

      Yikes! So a prosecutor is obligated to do anything and everything at trial just short of a miscarriage of justice?! I’m OK with zealous advocacy, but the line should be drawn well short of miscarriage of justice.

      Maybe we’re talking past each other here. I agree with you that prosecutors are obligated to apply their examination and objections skills in a criminal trial, but I’m saying Wyshak is abusing and violating the rules of examination and objections. You aren’t suggesting its Wyshak’s obligation to employ talking objections? Baseless objections to interfere with his opponent’s case? Lead his witnesses so they can’t be cross examined?

      I dunno, I’m done here.

  3. I am sure that you are aware that the jousting between attorneys is often more important to them than the bum in the chair

    1. Hopalong,

      Good point. Some of those self important lawyers will even stoop to jousting over minutiae in blog comments where there isn’t even a bum in the chair! 😉
      Maybe this is a sign I should go start celebrating our Independance.

      P

  4. Patty,

    I wholeheartedly disagree about leading questions. They might be objectionable, but you only object at trial if the evidence is both inadmissible and a massive case-loser. As Judge Ralph Fine puts it, a case is not an evidence test at law school (it is not a search for the truth either). A trial is only about winning advocacy and nothing else.

    For example, and the one I remember from the Jude Fine’s book, is from OJ’s trial.

    Q: Were you with Nicole and OJ that day?
    A: yes
    Q: did he hit her?
    OBJECTION (Is it leading? it doesn’t suggest the answer (yes he did or no he did not), just the topic. Although nearly every judge in the world will sustain).

    So, a skilled lawyer, and Wyshak is skilled, would go:
    Q: were you with nicole and OJ?
    Q: Did you see them interact?
    Q: Could you see OJ’s whole body?
    Q: describe his hands?
    Q: what did he do with his hands?
    Q: where were his hands in relation to his body?
    Q: what did he do with his fingers? (make them into a gigantic fist!?!?)
    Q: where did he put his balled up fingers, on his gigantic fist?
    ….A: smack into Nicole’s jaw!

    I embelish, but you get the idea. C & B know better and won’t object to leading unless they absolutely have to. Agreed the Judge should take care of it but C & B have bigger fish to fry than “Objection, form your honor.”

    1. Jim P,

      We just have differing ideas about criminal trial advocacy. It’s probably because I started as a prosecutor and was taught that prosecuting is not all about winning advocacy. A prosecutor’s first duty is fairness. If that’s ignored, all you do is disillusion people and further erode the public’s confidence in the rule of law. It’s a bad cycle.

      On a couple of occasions I’ve had defendants seek me out and thank me after trial. I took that as a better sign I was prosecuting correctly than any jury verdict.

      The current trial is one in which the prosecutor should probably focus more on being fair than winning advocacy. In Wyshak’s own words, “Carney has put the government on trial since opening statements.” I’d venture to say Carney has already proven quite a case against the government. Wyshak’s behavior in court only ties him closer to his seedy witnesses. His “take no prisoners” approach to this trial only hurts him with the jury. His own ego seems to be getting in the way.

      Like most of the cases in Boston Fed court, this case has been overcharged, over sensationalized and is now being over tried. It didn’t even have to be a trial at all. Whitey said he offered to plead if they’d let his girlfriend out. Wyshak rejected that eminently reasonable deal because it would ruin Wyshak’s career aspirations. Compared to the deal Wyshak made with Martorano it is probably a very fair deal, obstructed only by Wyshak’s ego.

      Since I’m a mind reader, I have to state what I think is on Wyshak’s mind. He is supremely confident he will get a conviction on at least one indictment, and that’s all he needs to win everything. He’s putting in mountains of extraneous, incredible, and even counterproductive evidence (Morris) for just one reason. It’s only because he has that evidence. Some of the evidence he’s held for over 25 years without being able to use it, like a powerful gun he can’t fire. The collective evidence here is the fruits of his entire career. He’s 60 yrs old and too damaged from battles to make it in private practice. Wyshak is performing his life’s masterpiece in his very own concert hall in front of an adoring audience. The problem he overlooks is that the true judges of his aria are sitting in the jury box and not the sections reserved for his Agents, his media, or his fellow US Attorneys. He’s performing to the wrong crowd. Wyshak’s winning advocacy strategy might come at the cost of those one or two charges he’s banking on.

      1. Well said patty,
        a prosecutor’s job is justice. His file should be an open book to the defense team. (limited exceptions of course)

        A prosecutor who never lost a case is an unethical bastard or bangs in sick when he gets the losers.

        Hey Patty, have u ever told a defendant after sentencing to put this behind them and get on with their life. Ever tell a drunk driving convict not to listen to the judge. One mistake doesn’t make you an alcoholic.

        Ever tell a cop your not prosecution his case because it’s unfair and over reaching?

        Every decent prosecutor has done that.
        And they have all tried cases to a not guilty and not been displeased with the verdict.

        It’s about justice not convictions.
        And one of the jobs of the defense attorney is to see to it you play by the rules.

        1. Ernie,
          Yup, I’ve done all that, proudly. I’ve also proudly earned some rug burns taking dives in trials when I figured out the cops cheated.
          There is sometimes more justice in a single Not Guilty verdict than there is in a thousand Guilty verdicts.

          I’ll laugh my butt off if the Bulger jury reaches that same conclusion!

          P

        2. Ernie:

          A prosecutor must do justice but she must fight like hell to make sure it is done which means you try a case to the fullest with no holds barred if you believe the person on trial is guilty.

      2. Patty:

        Agree with most of it. Just heard Kevin Cullen on McNeil Lehr news hours. He really has not idea what is going on. Says Carney and Brennan have spent 90% of the case on a non-issue, whether Whitey is an informant. This is how one media outlets perpetuates a fraud.

        Boston Federal court loves to overcharge that way if you get one thing out of 100 it’s a win.

    2. Jim P. if I may.

      The prosecutor’s only job is to see that justice is done. That does not mean indictment, conviction, and maximum sentence. At all costs. Unfortunately that is what people believe and law enforcement plays into it.

      The real thing is not like Nancy Grace and CSI makes it out to be. It’s about people and situations. No two are alike.
      But in this time of less emphasis on humanities and liberal arts it’s more and more likely that history will continue to repeat itself.

      1. Ernie:

        Good comment – a prosecutor who doesn’t look at the individual is not doing the job. There’s such a great leeway in what can and cannot be done, not in the murders but in most other crimes, the charge and ultimate punishment is up to the prosecutor. I had a case where I had a couple of witnesses identifying the yund defendant as the one who held up bank, he had just come from a trial in Middlesex where he protested his innocence but was convicted, he had no record other than the Middlesex charge and then my charge based on the cops following up the Middlesex guilty. He turned down a plea offer to a concurrent sentence at Concord = kept insisting he was innocent not only in my case but in Middlesex. Could have easily convicted hime but to what end. If a guy wont’t take a concurrent and claims he was innocent in his earlier case,it was so out of sorts that I had to believe he was not involved so I dumped the case. Took a lot of heat but as you say you got to try to do what is right.

  5. Thankfully and deservedly, I have never seen the inside of a courtroom other than speeding tickets and jury duty, which I have never been selected. This analysis using a boxing metaphor is very exciting to me. You have given us a great insight we can’t get elsewhere, thank you for that.

    It has been said that the overflow video feeds are not being recorded and that footage of the trial will never be available to the public. Is this really true? Wasn’t this also the situation with the Connolly federal trial but it wound up on Dateline later on? I may be completely upside down on this but I am hoping we will get to see a glimpse of the trial.

    I still think the DOJ should sell copies of this trial to the public once it is over with the proceeds going to the victims family. Considering that the govt wont even apologize to the victims, my idea is probably asking way too much.

    1. Another:

      Federal trial videos do not exist. All you end up with is a transcript which leaves out so much. The Dateline report video came from the Connolly Florida trial. You’ll never get to see the federal trial unless you come in to it and even then there are so little spaces for the public (10) and I’m told the cops are getting in early and taking those spaces so that you have to go to an overflow area.

  6. I have no problem with the leading because Carney/Brennan can’t really object. If they did, Wyshak would do it appropriately, and CB would have flagged to the jury that either (1) it is an important topic so pay attention; or (2) I don’t want this in evidence so judge please help me out. Neither is a good way to keep your credibility in front of a jury. Which is why, I’m told, they try to keep most substantive objections out of the jury’s presence at either after hours hearings or before the AM action.

    I do have a huge problem with the talking objections. Those are blatantly inappropriate and the Judge should stop them, and if not, Carney should.

    A simple “Judge, that is the second time today that counsel has put his own opinion before the court and impugned mine. I object to this tactic. If counsel does it again, I will tell this court and jury exactly what my opinion is” or something to that affect.

    But that shouldn’t be necessary. C&B should take care of it each morning, reminding the judge how many times Wyshak did it the day before, and if he keeps it up, should get scolded before the jury.

    Outside of that, from what I can tell very far removed from the court, it is being expertly tried from both parties.

    1. Leading questions by Wyshak during direct examination are not only inappropriate and objectionable, they rob the defense of their opportunity to cross examine the witness. (A led witness only testifies to “yes” or “no”.) A pattern of such inappropriate conduct by a prosecutor inhibits the defendant’s 6th Amendment right to confront witnesses.
      In this trial, I estimate Wyshak uses inappropriate leading questions more than 90% of the time. Carney and Brennan started objecting to Wyshak’s transgressions 100% of the time. Wyshak, however, kept on leading. Even when Brennan objected to Wyshak’s form and the Judge sustained the objection, Wyshak would simply ask another leading question with slightly different wording. Judge Casper eventually gave up on making Wyshak obey the Rules. She is dead wrong and she put The defense in an untenable position. The defense either has to object constantly to the great aggravation of the jurors, or they have to sacrifice their client’s ability to cross examine witnesses.
      It is her solemn duty to enforce the rules fairly. She has failed her duty and handed the defense a nice appellate argument. Wyshak and Casper don’t care about appellate issues, however, due to the age of the defendant. Wyshak has made it clear he has free reign to do whatever he wants in Casper’s courtroom.
      Wyshak’s chronic talking objections inappropriately allow him to testify to the jury as to his own opinions. Judge Casper repeatedly fails to admonish or even strike Wyshak’s testimony. Or justice system is supposed to require evidence to come in only through sworn witnesses and exhibits. Wyshak wants to so away with those and be a professional witness. His talking objections violate a host of the defendant’s constitutional rights.
      Wyshak’s strategy also included objecting to every question the defense asks on cross exam. Although Casper often overrules the baseless objections, they have their desired effect. Wyshak’s baseless objections are intended only to break up the cross exam, give the witness time to think of a way around the question, and keep the defense from leading the gov witnesses into traps.

      It would be great to see a statistical analysis done by law students of Wyshak’s leading questions, talking objections and baseless objections in relation to the defense’s objections thereto, and the Judge’s rulings in each instance.
      I’d give Judge Casper a failing grade. She handed control of her courtroom over to Wyshak.
      I’d give Wyshak an A. Very time he objects, the jury knows he is only trying to hide truthful evidence. He tied himself to Martorano and Morris and put his own credibility on the line repeatedly. Wyshak gets an A for being so helpful to the defense’s strategy of proving the government continues to deceive and hide the truth from the jury.
      Carney and Brennan get an A+. They have assumed the role of prosecutors in this case and have made huge strides to uncover the truth, over the red-faced objections of Wyshak and Kelly. The victims’ families are even grateful to Carney and Brennan for their work to uncover the truth. C&B are dominating even in the enemy’s headquarters. At the start, everybody in that building hated them and wanted them to fail. But C&B have turned the tide on decades of Whitey myths. They have disproven thousands of pages of media rants and fraudulent government reports. Now C&B are treated respectfully by all in the enemy camp. They earned it the hard way.

      The media deserves an F, too. C&B have humiliated them. They all know they’ve been sold a bill of goods from Wyshak, but they can’t switch horses now. They look broken.

      1. Patty,
        True Wyshak has asked lots of leading questions but it doesn’t destroy the defendant’s opporunity to cross- examine or confront the witness. When Judge Casper has told him not to lead he does the direct effectively but then goes back to leading after a bit. I guess he’s been able to get away with it for years in the federal system. I don’t see that it is peculiar to Judge Casper that this happened. I watched the Connolly case in front of Tauro and it wsa all leading questions at that time by Durham. Carney objected at times but the witnesses are well prepared so they could probably answer without an questions at all.

        I like Judge Casper – I really think she is trying to be fair – much fairer than other judges would be considering the case will never be reversed on appeal. I’e only reported after three rounds, the middle three are coming up and the lead one here is Weeks.

    2. JimP

      Objecting is protecting your client. With Wyshak objecting all the time there is no downside to Carney and Brenna doing it as I see it. If the jury is going to think anyone is keeping something from them they’ve already made up their minds it is Wyshak.

      Carney tried something like you suggested but the judge shut him down and reminded counsel no talking objections which held for five or ten minutes.

      The judge is young and easy going. She gives counsel a lot of rope. She’ve very open in her rulings outside the view of the jury. I think she’s been extremely fair with a little lean to the prosecution which whines a bit more. But your basic sense is correct that no one will be able to complain at the end that they did not have a chance to do what they wanted to do on the matters that really count. I think no matter the outcome that is something that I wanted to see.

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