Does The Right Of A Free Press Destroy The Right To A Fair Trial

Howie carr on motor bikeToday, as I mentioned, before the start of the day Howie Carr called to J.W. Carney who was sitting at counsel table, he beckoned him to come to him which Carney did, and they engaged in some conversation for no more than fifteen or thirty seconds. Howie turned away with a big smile.

The reason I mention this again is to indicate that Carney was aware Carr was in the courtroom and was in the position to listen to his partner in the book business, John Martorano testify.

Originally Carr was sequestered from listening to the testimony of witnesses which order Judge Casper lifted as regards him. The idea behind sequestering is that you don’t want one witness, who I’ll call Howie, to know what the other witness, let’s call him John, with whom he has a close relationship like a partnership, to be able to tailor his testimony to agree with the first witness.  So if John testifies a car in question was red, you don’t want Howie to know he said that. So when you ask Howie about the car’s color he won’t say red just because he heard John say it.

Sequestering gives us the best chance to get at the truth. You can never totally prevent people from conspiring to keep their testimony from mirroring each others, but the chances of being able to do it under all circumstances are lessened by keeping persons who will be witnesses in a case ignorant of the ongoing testimony.

When Martorano began testifying today Howie was listening to him. Freddy Wyshak, a clever prosecutor who likes to throw all the bad stuff on the table right up front, in the early minutes of Martorano examination asked him if he considered himself a Hitman. You know that is the title of the book he has written in partnership with Howie Carr. Martorano of course denied he was a hitman. (I could only imagine how Wyshak must have hit the roof when he saw that title and the book itself when he first heard about it.)

Why didn’t he consider himself a hitman?  He responded that hitmen make money for murdering people. He never murdered anyone for money. I thought he was going to add he just did it for fun. Yet the evidence will show he was paid to murder people but he says he was not paid for the murder but reimbursed for the expenses of the murder.

So Wyshak asked him, how did the title Hitman come about on the book in which he had a 50% stake. Oh, that? Well that was Howie Carr’s idea – he thought it would be good for the sales.

Now we’ve just seen this act before. It was with Tom Foley who wrote a book Most Wanted. He made clear that he was not responsible for all of the things in the book under his name. His co-author put things in that he didn’t agree with. Some of them he said he didn’t remember seeing.

So defense counsel is standing there holding a book the witness has written and when he goes to show the witness is contradicting himself, the witness suggests he isn’t because the other person put that in and not him. It was similar to watching Dickie O’Brien testify today who suddenly developed amnesia and couldn’t remember anything on cross-examination.

Now Martorano is going to do the same thing. Where the book impeaches his present testimony he’ll suggest that Howie Winter, I mean Howie Carr, (Winter was also a partner of Martorano so it’s easy to get confused) was responsible for those things that seem to make his present testimony perjury. Anytime what he says in the book contradicts what he is testifying to in court, he’ll blame Carr.

Now it seems to me fairly obvious that you don’t want Carr listening to his testimony on these points. You want Carr to come in ignorant of where Martorano is throwing the blame on him so that you can test the truth of Martorano’s assertions. If Martorano says I never said Tony Veranis ducked down as it says in his book you don’t want Carr to know that. You want to ask Carr what did Martorano tell you about murdering Tony Veranis. You’ll never reach the truth with the way things now stand.

At the end of each session today Judge Casper asked the defense attorneys if they had anything for the court. I expected them to rise and suggest that Carr be sequestered because of the danger he will tailor his testimony to what Martorno is saying. But Judge Casper was told by defense counsel they had nothing to bring to the court’s attention.

That caught me by surprise. It seems fundamental to the idea of sequestration that Carr who is on the defendant’s witness list not be allowed to hear the testimony of the guy he will be asked questions about; nor should he be able to hear any testimony. The other reporters are not in the same position and they should be allowed to attend because they did not interview other main witnesses. Martorano is one of three crucial witnesses.

There might be a First Amendment Right for reporters to attend a trial; but there is also a right implicitly granted in the Fifth and Sixth Amendments to a Fair Trial.

 

14 thoughts on “Does The Right Of A Free Press Destroy The Right To A Fair Trial

  1. Matt,

    Casper is quite a ham for the ignorant reporters in her courtroom. She has graciously allowed defense counsel to make lengthy, cogent and impassioned oral arguments in favor of their motions. After defense counsel has had their say, and all the reporters have witnessed Casper’s generous judicial temperament, she pulls out the type-written decision she prepared before she even entered the courtroom. Invariably she reads, “after carefully considering counsel’s submissions and oral arguments the defendant’s motion is denied.” Every third decision or so, she ‘takes the issue under advisement’ and denies the defense motion on Pacer after the day’s news cycle is too far gone. That breaks things up nicely. Two attorneys in the audience have seperately and independently described this phenomenon directly to me.
    So if you are surprised that Carney doesn’t waste his breathe on the Judge, you shouldn’t be. With Souter gone from the First Circuit, there’s no hope for relief from that quarter. To paraphrase Carney’s statement to the press last year, ‘Frankly, I expect to get fairer consideration from the jury than I do from the court.’ Carney was obviously convinced as early as last year that the federal judges are terrified of the media and will never make any balanced decision when it comes to Bulger.
    Personally, I suspect Judge Stearns sits in Casper’s chambers and schools the young rookie on how to avoid career pitfalls, such as defying Wyshak or Carr.
    On a related point, Carr’s presence in Casper’s courtroom may also influence the jury. The jurors know well he is a professional character assassin. They also know what outcome Carr desires. It raises the standard because they must have the fortitude to cross Carr if they find the government’s scattergun prosecution lacking on the elements of some charges. Nonetheless, I agree heartily with Carney that his best chance for fair consideration still is with the jury and not the federal judges who can’t break from their prosecutor’s adversarial mindset.

    1. Patty:
      Casper is doing her best. There are a alot of bench conferences where Carney has a lot to say. There’s never been any hope for relief from the Appeals Court. Casper just wants to get through this. Carney may be right about the media. Isn’t there some kind of monthly meeting between the judges and the news media where they get together and tell each other how good they are? What judge would go to bet for Whitey when all the other district court judges, or just about all the others, have already said he murdered these people and given huge civil judgments. It’s a club and if it’s not Stearns who is in the background it is someone else.
      Carr should not be in the courtrooom at all. He’s a critical witness. I was surprised at the lack of fight put up by Carney to keep him out. As you see now more than ever he should be out. I was surprised to see Carney talking to Carr. You’re right about the jury wanting to please Carr because as he was walking by all the public sitting with me were saying there’s howie and what a great writer he is. I was sick but held my tongue.
      Carney’s only hope is the jury but I’m still trying to figure out if he has strategy here; or is it once he had his immunity defense taken from him he is wandering around just flailing away. Maybe in a case like this there is no strategy since there really is no defense plus Carney has thrown in the towel on his opening on some counts.

      1. Matt,

        If Casper is doing her best she should retire.
        Perhaps Carney should renew his motion to sequester Carr now that testimony has shown Car has a financial interest in Martorano and his testimony. That takes Carr out of the position of a journalist reporting facts.

        Carney and Brennan are doing a great job. This case boils down to the credibility of three witnesses, Martorano, Weeks an Flemmi. If they get banged up enough on cross, the jury could be appropriately repulsed. Carney could then splatter Wyshak, Johnson and Doherty with the bloody depravity of their witnesses. Carney must show how the stories of these witnesses was guided by the invisible hands of their handlers to evolve with each forum and charge. For example, Martorano went through multiple proffers and never once mentioned the name John Connolly. Subsequently, Martorano became the star witness against Connolly in two trials. Weeks’s testimony also bears the fingerprints of his handlers, but that’s for a future post. Flemmi is just plain repulsive on his own. A creep.

        If the Wyshak version of events comes off wrong, Bulger has an opportunity to offer an alternative. Whether it is believed depends on large part on an issue we speak of often in this blog. Namely, things have to make sense. If the Wyshak story is cut to ribbons, the jury may be open to a reasonable alternative. That alternative will have to come from Bulger. It will have to be credible, and it will have to fit more with the common sense and life experience o the jurors. That is the formula for reasonable doubt here.
        In an earlier post, I opined Wyshak will have to object frequently and vociferously to any mention of O’Sullivan or law enforcement corruption. This far Wyshak has walked right into that trap. He simply can’t control himself. With each objection he hurts his own credibility with the jurors. It is not natural for a prosecutor to object to benign questions about other prosecutors and cops. Wyshak’s protestations are not lost on the jury. He clearly has something he’s hiding from them.

        1. Carr can’t resist. In his column today he corroborates Martorano’s testimony, buttressing the hitman’s ‘credibility’. Casper should sequester him now.

          1. PattY:

            Any person who would associate himself with a moral degenerate of the first order like Martorano is hardly much better than his partner. Isn’t that what will bring Whitey down he had such horrid partners; well look at who Carr elected to be his partner and that’s all you need to n=know about him.

        2. Patty:

          As you know I suggest Carney should renew his motion but so far he hasn’t. Casper did a good job today telling Wyshak to leave Brennan alone.

          The case isn’t that simple. They’ve already conceeded all the drug and money laundering charges. The three witnesses you speak about talk about the murders. There shouldn’t be a person in the courtoom except perhaps Wyshak who if paying attention is not absolutely disgusted with Martorano. Tomorrow Brennan who by the way is good and sharp will go into the deals – he’s already got rid of the idea that Martorano was doing society a favor as he suggeest today when he said he wanted to tell the truth before the others lied. Brennan responded if that was your intent you could have just stood up in court and done that without going for a deal so why didn’t you. Of course he had no answer.
          I’m not sure how much the Whitey lawyers can help Connolly, they’ve already joined with the prosecution to blacken his name. That is one of the problems with this case. It’s not really a search for the truth but one to make Whitey look good.
          The way Martorano testifies about Flemmi you’d expect him to ooze under the door to the courtroom he sounds so repellent but listening to Martorano with fresh ears I’m not sure he’s not worse than Flemmi. I’d say Wyshak’s version is full of holes and it wouldn’t take much to have the jury totally reject it. Brennan must tie Wyshak into all the shenanigans that went on once Martorano started getting his deal. Wyshak’s objects when Brennan has Martorano on the ropes – he calls attention to the fact his client is being hurt – not such good trial instincts. If he was smart and wanted to do that he’d do it also to areas that are meaningless but he doesn’t.

  2. Thank you for this Post (and to Patty for her comments) above. Mtc9393 you hit the nail on the head when you referred to the court + media as a “club”.

    It seems the courts/media/attorneys are really acting like a form of “clique” focused on a person’s power and popularity – which is what all cliques really do anyway. I also likened organized crime gangs to cliques, as well, as they too are little groups focused on “whose the toughest”, with constant shifting in which little clique is the “in” clique of the week – with Patriarca, Gianelli, Genovese, Winter, Bulger,et al jockeying for the Queen Bee role. In other words – just like the media/court/counsel clique, the “organized” crime cliques are also focused on “power” – they are just a different faction and sit at a different table at lunch so to speak.

    However, from a distance it is clear to see that Poor Ms. Murphy, try as she might [and she’s got the manipulation tactics down] will never be more than number 2. Howie Carr is clearly the Queen Bee and probably even the Prom Queen of the media/court/prosecution clique and always will be.

    Judge Casper will never be Queen Bee in her internal court clique, she’s clearly a lowly worker bee of the clique within the clique and doing as she’s told. Wolf, who is more likely her adviser behind the curtain than Stearns, is the Queen Bee of the Court Clique.

    Ahh, it seems the great “School of Life in Southie” is stuck in Junior High….enjoy “Summer School” everyone…at the Moakley Junior High.

    Final Point: “Hats off to Carney” and he wore it well. I think he had it right about the court and the media, so I’m gonna take Carney’s advice and just focus on the Bruins. “Go Bruins.”

  3. Matt,
    i know this is kind off topic,but isnt it against the law ,i think its the son of sam rule ect, that prevents one from profiting from books,movies?? well hitman himself said yesterday that he sold the movie rights to holleywood and CARR himself paid him 75k for the book,oops they left that out of the herald ,hmm so then the gov gave him 20k to start over, so 250k for the movie,wow cime does pay i guess?? Maybe that donahue kid should focus on this instead of ranting about how much of a scum bag WB is.

    1. PAT2E,
      I thought that was the case. I’m surprised he and Carr can earn money off his crimes. I don’t know why the victims lawyers are not going after both of their money. I know in Massachusetts you can’t earn money off books. I’m going to have to research that issue more.

    1. PAT2E:

      No apologies here. I’ve made more mistakes than all of you will ever make. All we can do is do our best at the time we are doing it.

  4. Wonderful incisive insightful comments by all. I’ll add just this:. There’s no “equal justice under the law” in that Den of Iniquity that sadly bears the name of a great American, Joe Moakley. The MainStreamMedia work hand in glove in formal partnerships with Federal Judges (joint media press-judicial conferences are held monthly where each scratches the others’ backs and promise explicitly or implicity “protection” of images and “special favors” like “sequestration for some but not for the elite insiders”> It’s a corrupt RACKET!) and informal joint ventures with FED prosecutors LEAKING to favored reporters to advance both of their net worth and to varnish their craven images to the detriment of us all. They feather their own beds, and to the rest of us say, “Screw you!!!” What a corrupt society with the pitifully vile Mr. Howie Carr posing as a pampered hero of the FEDS and local Press. Equal treatment my left foot! It’s Animal Farm and its not just the Pigs but the Donkeys and laughing Hyenas that pretend to rule the rest of this time around.
    Sickeningly I read in yesterday’s newspaper that a Miami Florida prosecutor described the conscienceless psychopathic serial killer Martorano as a “charming” likeable man.

    1. William:

      Florida is a strange place – anyone who sees one thing to like in the vile Martorano should not be a prosecutor.

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