Afternoon session: Is The Case Getting Away From Judge Casper

Judge Casper Sets the Law and Facts Straight

I have to admit that Judge Casper’s lack of experience showed slightly this afternoon. It looked like Wyshak was starting to take over the courtroom with his talking objections.

The way the game is supposed to be played, at least on the state side and in Judge Joe Tauro’s courtroom, is that if counsel has an objection she says, “objection.” That’s it. The judge will overrule it or sustain it usually figuring it out quickly. If counsel thinks the judge is missing the point or feels particularly concerned about the judge’s ruling, she will ask for a bench conference. Or sometimes the judge herself will call for a bench conference.

But this afternoon things weren’t being done like that. Wyshak was saying objection and making a little speech with his objection. That’s what we call talking objections. It’s a way to get points across to a jury in a little bit of an underhanded way. When that starts to happen then the judge better quickly call a halt to it or things will get testy quickly. I’ve not noticed the other side doing it but that’s probably because they haven’t been objecting much. But if they see Wyshak getting away with it, they’re certainly not sit back and let him have all the air time.

At the end of the morning session Hank Brennan was cross-examining Colonel Foley and tried to have him agree that even though Winter Hill was a gang the guys in it often went their own way doing their own thing. He’s trying to separate Whitey from the guns in Stevie’s mother’s house and other crimes by the gang.  Foley testimony was fudged so that it wasn’t clear one way or the other if the individuals in the gang did act alone or even when alone were still working in concert with others.

Brennan spent the afternoon trying to show that when Martorano decided to cooperate he was the one who called the shots. This would go along with Carney’s opening that the government gave Martorano everything he wanted.  Foley as befits an experience cop made Brennan work hard for every concession he was able to extract from him.

Brennan wanted to focus in on the idea that Martorano said he would not testify against his brother Jimmy nor would he testify against Howie Winter or Pat Nee even though he told Foley that both Howie Winter and Pat Nee committed murders for which they were never prosecuted. Foley said Martorano never said he wouldn’t but that he would prefer not to testify.

Brennan wanted Foley to explain why he never did anything about those murders, which is what he said when he testified previously in Florida. Foley had changed his testimony. He was now saying that he told the Suffolk DA about the murders just for informational purposes.  He explained that his main concern was going after Whitey and Flemmi and he had limited resources. He wasn’t going to divert his attention from Bulger so all he could do was to tell the DA about what Martorano said about the murders and leave it up to the DA to decide what to do with it. He said that was never part of any deal that Martorano would not have to testify about those.

During much of Foley’s cross examination Wyshak was objecting which made it all seem somewhat disjointed. There was no consistency to the judge’s rulings over what would or would not be admissible into evidence. Then the issue came to whether Foley was willing to do small favors for Martorano which went back and forth for a while and finally we had to listen to questions over Foley taking Martorano to his private dentist to have a tooth ache fixed, if that’s what you do with a toothache, and that he was joking with the dentist about Martorano having killed 30 or so people.

Brennan made a good point that I understood but wondered whether the jury did. He pointed out through Foley that the idea behind wiretaps was to record the conversations on tape because that was considered the best evidence. He then pointed out that no one wanted the best evidence from Martorano since no one cared enough to record it.  Foley said they never record interviews.

Then Brennan seemed to be making some good points on the killing of Spike O’Toole but didn’t get it across because the judge had a bench conference and shut him down from inquiring further.

Wyshak got up on redirect and began his usual routine of asking leading questions.  He was caught up on it a couple of times but went right back to them again. Wyshak likes to testify for his witnesses.  He got into the reasons why the feds could not prosecute Nee and Winter because the statute of limitations had run on the RICO statute. He brought out John Connolly was convicted of 2nd degree murder. Wyshak’s most telling point was his comeback to Brennan having gotten Foley to admit they found no guns in Whitey’s house locally. He asked him what they found when he was arrested. Foley replied something to the effect that it was a lot of guns.

I’m sure Wyshak believes the matters he covered were important; and I’m sure Brennan felt the same about the matters he went into in re-cross. By that time the jury was tired and things were probably a jumble in their minds. By August they’ll have no memory at all about them.

The case slowly builds. Whitey who was dressed in a gray pullover long sleeve shirt with jeans and white sneakers seemed more like a piece of furniture as he just sits there. He might as well be one for all he can add to the trial. If I had to guess I’m sure the jurors have no idea what most of the afternoon was about and if asked about Foley’s testimony will only remember the guns.

8 thoughts on “Afternoon session: Is The Case Getting Away From Judge Casper

  1. Dear Henry Barth,
    If living in Boston, I’d start a petition to address the federal seal on my brother’s information concerning the Michael Donahue and Brian Halloran murders. The statute of limitations for perjury might have expired with Kevin Weeks, but you can bet he’s telling the same story when testifying against Whitey.
    You’re last comment concerning me contained one error. William Bulger was sued, not Whitey Bulger. William Bulger allowed the government to extend his statute of limitations. At the Yale School of Law, Professor Stephen Wizner stated, “Only Jon Parker knows what’s happening in class today.” I know William Bulger was being nail to the cross.
    So the government gave William Bulger another pass. There’s really nothing that can be done about it. I chained myself to the old federal courthouse to protest Stephen Rakes being charged with perjury. If he told the police the truth about Whitey, Stephen Rakes wouldn’t be alive today.
    Three times, several dozen of us protested at the new federal courthouse. Shelley Murphy was given copies of my brother’s lawsuit (he sued Whitey) and my lawsuit. These lawsuits were never mentioned in the main stream press – only in this blog.
    Boston used to be called The Cradle of Liberty. Today a better name would be The Cradle of Corruption.
    Exposing the federal seal on the Michael Donahue and Brian Halloran murders would not only take away Kevin Weeks freedom, but it could mean two FBI agents would be indicted for accessory to murder.

    Dear Henry Barth,
    Thatnks for mentioning my upcoming book. Below is some interesting information from that book.

    Hank understood we knew. And everybody respected him. “Hi, Hank. How’s everything going?” Bingo. Bango. One kid named Johnny. Hank put him booking. Down West Second. And “D” Street. The Teamster Tavern. A cute kid. Bang.
    Hank had another kid. That looked like a fag. They’d go to the Beachcomber. On Sundays they went there. Everybody gathered around Hank’s table. Because he paid the tab. He’d go through two. Three grand like nothing. You have fifteen guys eating. Drinking. And the bite. I know a million guys that bit him. Never paid him back.
    Guys told Richie Kelly, “Your asshole must be awful sore. With Hank screwing you all the time.” Hank never screwed him.
    Hank bought the Texaco in Andrew Square. Today it’s the Dunkin Donuts. A gathering place for thieves. A place to meet. Talk. And bullshit.
    When Whitey was coming up. He was a pretty boy. He hung in Andrew Square. In the bars. And the Texaco gas station. Hank used to look at Whitey. Wondering if he’s a good screw. Because Hank knew he raped broads. And figured Whitey might be easy to screw.
    Hank’s boys. The ones I knew. They was Whitey’s age. We all thought Hank screwed Whitey. Everybody thought Hank screwed Whitey.

    Dear Henry Barth,
    Most days I work in the library. “Gaga”: The Real Whitey Bulger/ Irish Mob Story has 92 chapters. In few weeks, it should be available on Amazon kindle. I plan reading it twice more before publishing it as an ebook. Starting tomorrow, I’ll send you a chapter every day.

    1. Afraid:

      No comment. This is an old post I’m just getting to and I see it is intended for Henry. Since that you’ve sent out your first chapter which I just read.

  2. Thanks for the great information you are providing. Could you elaborate on the points Brennan was making about the O’Toole killing? Savin Hill killings have to be given heightened scrutiny.

    1. N.
      Here are my notes:
      “[Brennan asking about] Martorano murder of O’Toole [Foley interviewed him] in ’98 [and] wrote report – a preliminary report was memorialized – [there was] another report a DEA 6 – that’s a DEA report – at both conversation 11/15/99 – [Foley responds he] can’t recall if that was the time or not – M[artorano] told him about O’Toole – the report was a proffer of what we expected he would give – testimony he was going to help us [we were ] focused on Mr. Flemmi and Bulger – O’Toole happened in 1985 – [in report] he said McDonald in front passenger seat – he [Martorano] in back seat – next to him was Steve Flemmi – said Flemmi had a carbine – Wyshak took an objection. Bench Conference – AFterward Casoer says “you were going to go into another are, Mr. Brennan.”

      I’ve always said Whitey and Martorano had nothing to do with Spike’s murder. Apparently Martorano has told two stories about how it happened. He has in his book O’Toole staggering from Sydney St. and Savin Hill Ave down to Dorchester Ave while he sits in the car watching him.. Nothing Martorano said about that hit is believable.

      The point that Brennan wanted to made but didn’t is Flemmi told two different stories.

  3. Foley told two different stories, one in Florida and another one today? Is that perjury? Foley knew of murders by Nee and Winter and told the D.A. but only for informational purposes ? When and what D. A.? No follow up no investigation? Long and Foley condemn Connolly and the FBI for not catching WB for murder but they ignore Nee’s and Winter’s killings. If the D. A. didn’t act why didn’t he go to the A. G.? Looks like a cover up. They seem to be doing with Marterano et al exactly what was done with WB and the Feds. Hiding crime.

    1. N.
      It’s only perjury to tell two different stories if you are not on the government’s side. If you work for the government then you cannot commit perjury since you are an agent of the government that gives you the oath and as an agent you are to be believed at all times. Allegedly it was the Boston police and the Suffolk DA. Without Martorano’s testimony they can’t prove either Howie Winter’s involvement or Week’s involvement in murder and the feds have said they are protecting Martorano from testifying..

  4. Very innovative defence lawyer. Carney take note.

    “Bank Robbery Suspect Wants NSA Surveillance Records for Defense

    Terrance Brown, 40, is on trial in South Florida for allegedly conspiring with four other men to
    hijack armored trucks delivering cash to banks in 2010. All have pleaded not guilty. But now Brown has come up with a unique defense: he wants the National Security Agency to turn over his phone records to the court to demonstrate his innocence.
    The case, which is taking place in federal court, involves phone records – the FBI and prosecutors have been using cellphone records to demonstrate the men’s locations near the robbery attempts. The prosecution said that it was unable to get cellphone records from the time before September 2010 because the phone carrier had destroyed the records.

    1. HENRY:

      Too bad Whitey didn’t know about this before discovery ended. But then again, was the telephone invented when Whitey was doing business?

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