Dueling The Wind

The Prosecutors Are Chasing The Wind
The Prosecutors Are Chasing The Wind

Time for the prosecutors to get away from the pristine legal approach. Stop repeating yourself over and over again as you did in your recent legal memorandum Time to call the bluff.

But before I go there I want to talk about another issue relating to the memorandum.  I’m confused as to how a blatantly false statement can be written and get through the editorial process at the Boston Globe. Is it another deliberate attempt to manufacture falsities concerning Whitey?

The Globe with its in-house and retired experts on Whitey Bulger noted yesterday that: “US District Court Judge Richard G. Stearns, who recused himself from the case out of concern that he would have a conflict of interest in overseeing the trial.”  (Tip of the Cap to Patty)

Judge Stearns never recused himself.  We all know Judge Stearns fought tooth and nail to hang on to the case. The prosecutors did likewise to support him. He left only after Justice Souter and two other Court of Appeals judges booted him off.

That wouldn’t be bad enough but the article erroneously mistakes Stearns’s ruling relative to immunity and ends with another falsehood stating Judge Casper indicated she would not revisit Bulger’s request. If that were the case why are the parties filing memorandum over it? What she said is that she is not inclined to do that but would hear arguments concerning it.

I have the memorandum in front of me. It again brings up the old bugaboo of Carney & Brennan (C&B) holding press conferences outside the courthouse after the hearings. stating C&B “strategically use press conferences to comment on witness credibility, offer opinion on the case’s merits, and otherwise attempt to taint the jury pool by claiming outside the courtroom that their client is somehow magically “immune” from prosecution.”  

I’ve noted before that to suggest any press conference by C&B is going to taint the jury pool in the face of the mountainous coverage this case receives shows a pettiness on the part of the prosecutors. After all the prosecution is the one that has been highlighting much of Whitey’s exploits over the years with its ongoing cooperation with book authors and news media outlets. Also it holds second position to no one when it comes to throwing bombs. It just does in its pleadings which when picked up by the media are just as likely if not more likely to affect any jurors.

The main problem with the Government’s memorandum is that it is in a position like a contestant at a game show trying to figure out which door to select that contains the big prize. It is really in a difficult situation because it knows less now than it did a year ago about what Whitey is claiming about his deal with Jeremiah O’Sullivan.

The prosecutors are correct in saying C&B’s position is a moving target —  one that “continues to obfuscate” and to “shift ground.”  They suggest, as I have done in the past, that “Bulger is making [his defense] up on the fly.”  A little later they note that Whitey “again strategically refuses to provide any information about the date and terms of his alleged deal with O’Sullivan. As a threshold matter, that failure is as good a sign as any that defendant’s “immunity” claim is made in bad faith.”

Here’s the problem I see with the prosecutors memo. After making the latter statement they spend the next twelve pages talking about other things such as  O’Sullivan did not have authority to give immunity, there was no reliance on it by Whitey, Department of Justice David Margolis’s affidavit, even spend a page talking about Salvatore “Sammy the Bull” Gravano using the unlikely source of Wikipedia as a basis for their factual assetions, and finally tell us the agreement is “void against public policy.”

I understand why they go through all these issues over and over again because that’s how lawyers are trained to repeat themselves sometimes ad nauseam lest by not doing that the judge would have forgotten the other ten times they mentioned it. It’s a natural fear. But it’s a wrong tactic in this case.

The prosecutors here should have set out the flip-flopping by C&B. It then should have put in the two sentences set out above stating how C&B  “strategically refuses to provide any information.” Then should have added one simple statement to the effect, “We are within two months of the beginning of trial.  It is incumbant upon the defendant to file an affidavit setting forth the dates, times and language allegedly used by Jeremiah O’Sullivan and himself concerning any alleged agreement relative to immunity or non prosecution. Until such time as that is done prior to trial the court should bar any further discussion of this issue and bar its use at trial.”

File the motion to have the matter disclosed or barred. It’s time the prosecution stops trying to harvest the wind. I’m at a loss at its willingness to grope around in the dark.

 

18 thoughts on “Dueling The Wind

    1. Rather Not:
      I really don’t know. Reading through their memorandum I see they are all over the place arguing all these points in the alternative. The memorandum is written by Zachary R. Hafer. He’s not listed by the BBO so I don’t know how long he’s been an attorney. Maybe he doesn’t know how to go for the jugular. They should file a motion titled: “Where’s the Cheese.” Put it straight up there because other than that it’s like herding cats.

  1. 1. What legal rule compels the defense to reveal its evidence prior to trial?
    2. If the immunity defense is so absurd and fantastical then why does the USA oppose it so vigorously? It would be the quickest route to Bulger’s conviction.

    1. Patty:
      JHG answered your question about the rule but any judge worth her salt would understand that in order to decide whether there a legal bar to a contract she’d was to know what the contract was. No case would go to the jury if a twelve year old person entered into a contract with a 45 year old person. The former does not have the legal capability to make a contract no matter what the jury says. No contract should go to the jury if I am trying to enforce you to sell me Dorchester Heights no matter what the jury says. The judge has to know the terms of the bargain.

      I’ve said the Government is in error in the way it is approaching this matter. It looks like it is opposing it vigorously because it is like a woman surrounded by a swarm of bees flailing away at them. The Government has not figured out what the deal is supposed to be because it has not demanded to know. So it writes all around the issue, and in its latest filing, is talking about of all people Sammy the Bull Gravano.

      I know C&B just want to toss smoke grenades at the jury. “Immunity” or “Agreement not to prosecute” is just one of them. They’re thrashing around just like the Government. Here’s how out of control (C&B are getting to it) the Government’s response is. It states if Whitey’s claim is to be believed “O’Sullivan provided both historical immunity for crimes committed before the deal was made (whenever that was) and “ongoing” immunity for crimes committed after the date of the agreement, but only up to and including 1989. The authority to grant immunity from prosecution, however, does not extend to crimes committed in futuro because an immunity agreement cannnot as a matter of public policy license future criminal conduct.”

      The Government shows its ignorance of Whitey’s latest claim. There is no in futuro claim of immunity. The deal is O’Sullivan said he will insure as long as he is in the US Attorney’s office and Whitey performs his part of the mysterious (yet to be figure out) bargain he will not be prosecuted for any crimes. It doesn’t extend into the future but only during the pendency of the agreement on a day to day basis.

  2. Fed rule of crim procedure 12.3, public authority. Although, since this is a novel claim, it up to interpretation if this rule covers.

    1. Thanks Jim P,

      Rule 12.3 looks like its simply a notice requirement. It seems Carney has already fulfilled the bare bones notice requirements of the Rule. The US Attorney’s filing this week demanded the “details” of the defense. It’s hard to imagine a source of law that requires the details of a defense be disclosed to the prosecution before trial (expert witness testimony aside).
      I’ve never heard a prosecutor ask the judge to force the defense to give disclose the details of the defense’s case prior to trial. The defense was always free to present the defense of it’s choosing and I’ve seen some unusual defenses. As a prosecutor, I focused on my own case-in-chief.
      If you step back from it, it’s strange the USA wants to litigate the defense prior to trial. Carney’s words do come to mind ‘Bulger expects to get more fair consideration from jurors than from the court, so he will forego all motions to dismiss, etc.’ It seems the USA actually wants to litigate a motion to dismiss….at least dismissal of the defense.

      Thanks,

      -P

  3. C&B should call a retired law enforcement official to show it was Government policy to go after the Mafia. In the 60s RFK led the charge in the 80s it was Reagan at the helm. Position your defense as being on RFK’s and Reagan’s side. Show that The Enemy Within still operates. Give the jury the choice of advancing the interest of LCN or those opposed to LCN. Compare thousands of murders by LCN to what their client is charged with. Remember Salemme, Flemmi and Martorano were killing many people back in the 60s on behalf of LCN when WB was a courthouse janitor. Ask each what WB had to do with their early murders. The answer is nothing. They were Mafia Assassins before they ever met WB. Ask the jury if they are going to side with the Mafia or those who tried to stop them.

    1. Ishneal:
      Those are good suggestions. C&B have to be on the side of good and show the Government’s on the side of evil. That won’t be hard to do with that little old guy sitting at defense table and the gangsters pretending he was Mr. Big. Whitey’s problem will be keeping his mouth shut during the trial. I agree. Make Whitey the good guy and the prosecutors the evil ones.

      1. Matt,

        You should be careful or you may get POOFed! No questions today, only this comment. LOL

        (I’m still trying to stick to the core)

        1. Question:
          I hope not. But remember, the first thing in poofing a person is to lay the ground work with the public — its sort of like the Hate campaigns Orwell wrote about in 1984. You make the person into a great evil that the general public resents and want taken down. Then if you start reading articles in the Globe alleging I have connections with the Bulgers or Howie Carr coming up with things about me then you know I’m on the poofing list.
          But I’m too much of a nobody for that. But if they wanted to get me Howie could write: “Matt was a top prosecutor in Norfolk County at the time Whitey was murdering people. It may have been because they both lived in the same housing project that he did nothing about the murders.” That sounds pretty good for a start. I’d better stop since I don’t want to give him any idea.

  4. Matt; the alleged Agreement between O’Sullivan and Whitey is at the heart of the matter (here). The prosecutors correctly invoke contract principles, and ask whether the K (K=contract) is against public policy, a nullity from the get-go. Martorano agreed to provide info on 24 gangsters and Wyshak agreed to give him only 7-months-per-murder for 20 murders. Well, since all Ks are governed by principles of good faith and fair dealing, I think we can say the Wyshak-Martorano K is null and void ab initio. Martorano perpetrated a fraud upon Wyshak. He agreed to give evidence against 24 gangsters, and after the deal was sealed, he said, “I have no evidence to give against any of them; I don’t even know them.” It’s like a guy agrees to sell you his Buick for $10,000; you give him the cash; he then says, ‘I ain’t got no stinkin’ Buick for sale. I’ll give you nothin and keep your cash!” Well, Martorano kept $20,000 the Feds gave him, and cashed in his “get out of jail early card”, then he reneged on the explicit and implicit terms of the deal. An alternative interpretation is that Martorano’s lawyer (Frank Dimento) pulled a fraud on the court (knowing Martorano had nothing to give and misleading the naive Wyshak into offering the stupid deal); or evernmore sinisterly that Wyshak and Martorano foisted a fraud on the court. How and Why? Well this is sheer speculation, but you’ll admit it’s rational: Because Wyshak and Durham were so desperate to have Martorano, Flemmi and Salemme testify against Connolly, they entered into a K on behalf of the Feds knowing the K was a castle built on sand; a horse that couldn’t run; a dog that wouldn’t hunt. Wyshak may have known Martorano knew nothing about those 24! I say may! It’s another aspect of this case that needs more light shined upon it!
    We know Martorano lied about the killing of Tony Veranis; we know that to a moral certitude. We know Weeks lied about the back-seat passenger with the mask on in Whitey’s car. An eyewitness flat out contradicts him. We know Flemmi lied through his teeth on multiple occassions. Did Wyshak and Durham and Ortiz know the gangsters were lying and put them on the stand anyway? From my vantage point, it seems so; at least its a very strong impression I have that the federal prosecutors knew their witnesses had purjured themselves before and didn’t hesitate to cut deals with them and use them again on the witness stand.
    Which K (Contract, Agreement) smells worse? Wyshak’s with Martorano? or Bulger’s with O’Sullivan. Bulger’s seems more straightforward. Wyshak’s stinks of something fetid, foul and rotten!
    sulli

    1. Bill:
      No one with standing objected to the Martorano/Wyshak contract. Martorano only agreed to give evidence against Whitey, Flemmi and Connolly and guys he did not know. If one had objected, I’m sure the objection would have been the same one that Wyshak raises now that it is against public policy or that Wyshak had no authority to make such a deal. The Government knew Martorano did not know the other people he agreed t give evidence against but thought by enlarging the agreement it would look better to the public. Actually Martorano kept his end of the deal as did the Government. None of them are complaining so the contract stands.

      1. Matt, you’re right: Up to now, no one’s complaining. But the contract is between Martorano and the Feds, not M. and Wyshak personally. When Wyshak quits or gets sacked, a new, honest AUSA might see that the contracts with the killers were void ab initio; that Martorano at least, if not he and Wyshak, perpetrated a fraud. Dimento, of course, is honorable, smart and too experienced to have to resort to skullduggery! Wyshak? Maybe not! I guess my probe is this: Did Wyshak tell the judge who approved the Deal, that M. did not know the 24 gangsters and M. would not disclose the whole truth (saying nothing about his gangster brother, for example.) What judge would ever approve such a deal that violated all principles of Immunity-grants?
        P.S. I’m up at 3, b/c I fell asleep at 9. My bad!

        1. Bill:
          I don’t think after all this time anyone will care about Wyshak’s deal with Martorano. Plus, Martorano has performed for Wyshak to the nines so he’s done his part fully and completely. DiMento’s job is to pick the pocket of the prosecutors. He’s adept at that. The more unconscionable a contract is favoring his client the better he is doing. DiMento didn’t just grab Wyshak’s wallet he took his pants and Wyshak didn’t notice.
          You do however bring up the bigger point which is that while a certain group of many is screaming O’Sullivan had no authority to enter into a bargain with Whitey in which murders may have occurred; no one in that group seems to questions Wyshak’s right to give a guy who confesses to twenty murders about six or seven months in prison for each murder, when many people are executed for one or two murders, but also to reward him upon leaving prison with a thousand dollars for each person he murdered.
          I have to smile when I hear people saying they would not have known of the murders if Martorano didn’t tell them. First, that’s a lie since the other gangsters were very willing to rat on Martorano and he admitted that is why he owned up, but what really causes the smile is that when a person confesses to a murder he usually isn’t praised for his cooperation and giving a reward. According to the Feds confessed murderers are people to be admired and have a good laugh with.

  5. Are these serial killer contracts available to the public? …assuming they’re actually written on paper… It would sure make an interesting read.

    1. KidThursday:
      They are in writing. They legally set out the end results of a long period of negotiations between the gangsters and the government but not much more. What is missing is the lead up to the agreements — the many hours of back and forth between the Government and the gangsters where the Government suggests what it believes to be the facts and the gangsters fill in the blanks. The gangsters are represented by their lawyers who also discuss this with the prosecutors. Weeks was required to take a lie detector test which he failed so the Government was not going to give him the deal so he decided to reinvent his story. The prosecutors and cops tell what they want and what they will give for it; the gangsters and their lawyers bit feed them until each side come out happy. None of that is part of the public record. In the Naimovich case it came out during his trial that after the guy McIntyre (Naimovich’s informant) who testified against him was arrested when first questioned about his relationship with Naimovich said they was nothing wrong with it. The next day he met with Jeremiah O’Sullivan who told him that unless he told the truth he would lose his Milton house, his Cape house, his beloved Cadillac, and all his assets as well as go to jail for serious time. He told him to go out and think of what his relationship with Naimovich really was and come back the next day. When he came back he said he had been paying Naimovich for information. I expect that is a typical federal routine of using uncorroborated testimony from frightened people to get targets who without evidence the prosecution believes committed crimes. .

  6. Matt, I just got an email from Dick Baker (Ned, Ishniell and Sam know him well); he attached a letter he wrote in 2012 to the Florida Court of Appeals. He gave me permssion to share it as I wish. (I’ll get you a copy). He also said the University of Miami Law School has a Justice Program which takes up the cause of people grossly wrongfully convicted, and Miami soon will be petitioning formally the FCOA on John’s behalf for his release.
    I copy here one of the closing paragraphs of Dick’s 3 page letter which exhaustively examines the facts and laws, and which is co-signed by many:
    “Please be clear, your Honor, this is not a case where John Connolly was a participant in the planning or actual murder of John Callahan, the victim. We are not a group of former FBI agents attempting to rely upon some technical loop-holes in the law to advocate for his freedom. Nothing could be further from the truth, and that would only denigrate the service we have rendered to our country. What this is all about is the unwavering and overwhelming support of thousands of John Connolly’s brother and sister former FBI Special Agents—as well as the active FBI Agents– who now know and believe that John Connolly has been wrongfully convicted for a crime he did not, and could not possibly, commit.”
    P.S. it’s nice and quiet early in the A.M. peaceful-like!

    1. Bill:
      That’s a good letter to have and if you get me a copy I’ll post it. Further you should tell us who Dick Baker is. Your three friends might know him well but that doesn’t help the rest of us. (I think you misspelled Ishneal — it’s a common mistake.)
      It is excellent news that the University of Miami is interested in this case. Their involvement should help Connolly’s plight get more publicity.
      What Connolly needs are two things: one, as I just mentioned publicity. The truth has to get out about what he was actually convicted of in Boston and how the Florida trial was manufactured by the Feds as a second bit out of the apple. And also, how absurd the Florida evidence is.
      Also good legal counsel. UM is a good start. Since money is an issue, and JHG is right that money does correspond with the type of legal representation one receives, perhaps if the case was properly briefed good appellate counsel who are funded by other sources might also take an interest in the matter. Barry Schechter’s Innocence Project they might get involved. There’s other groups that if they knew the true facts, beyond the mainstream media’s presentation, like the one that represented the Caswell Motel might be induced to volunteer.
      Finally money. A fund should be set up. A fund where not one penny would be used for administrative purposes but one where the money would be allocated to securing good appellate counsel for Connolly or if he can get good representation by a public interest group then to be given to him upon his release from prison.
      One final point. I suggest it is important not to call Connolly innocent of everything. Accept that he was foolish in his association after he left the FBI with Weeks and Flemmi and committed a criminal act of writing a letter to try to help them out. You’ll see in a day or two you can even question the conviction on the one act he did as an FBI agent. The lie in a telephone conversation to the FBI agent was wrong but in the context of the case is an absurd charge especially considering the Government’s witness Morris admitted lying under oath several times to FBI internal investigators and he wasn’t charge. By not accepting the Boston conviction you diminish your case and the point now is not to recontest that but to get the guy out of prison.
      His reputation may never be redeemed because the mainstream media will take umbrage at the suggestion that he was wrongly committed because it has invested so much of its credibility in vilifying him but that’s of lesser importance now. Publicity, good counsel, and money!

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