Friday Morning June 28, 2013 – Early Morning Update:

IMG_3095Last night after the jury left the judge and counsel remained behind discussing evidentiary issues for about a half hour or so.  The issue is whether Defense Attorney Carney can get some reports he received from the prosecutors into evidence so that he can show – which is a critical component of his case – that many of the reports filed by John Connolly were copied from earlier reports filed by others or were from information gained through ELSUR (that’s FBI for electronic surveillance.)  Carney’s push is to show, as we’ve heard for months, that what Prosecutor Wyshak calls the myth Whitey was not an informant is a not a myth. Carney believes putting in 30 or 40 of these reports showing the information preexisted Connolly’s reports will give the jury a basis for concluding everything filed by Connolly in his 209s (FBI for informant reports) was fabricated.

Wyshak is objecting to having them entered into evidence because a foundation for them has not been established. He’s not suggesting that they are not authentic documents, but that the mere fact such a document exists means nothing unless Carney can show Connolly had an opportunity to gain access to it. For example, if Connolly wrote the Whitey told him Tiger Jones is driving a blue car and there is a report from another FBI agent two days earlier that his informant told him the same thing, Wyshak argues that Carney has to show Connolly could have had access to that report.

That’s why there’s been a little bit of evidence about how the FBI informant files were maintained in the Boston office. At one point they were in a rotor which was a file system accessible to  everyone and then they were put into an informant file room where access was limited by some system which is not quite clear to me. Some suggest the SAC (special agent in charge) had to approve access but others have suggested it was more broadly available.

The problem with this whole discussion is that in reality the FBI in Boston, as Judge Wolf noted, marched to the beat of its own drum. It was a loose operation and the rules and regulations were there for cover but usually ignored and routinely breached. It also does not consider, as much of this case seems to omit, the everyday banter among these agents.

It’s sort of disingenuous for Wyshak to be pressing this point so hard because of the murder we’ll hear about again, that of Richard Castucci. Wyshak has suggested Whitey and his buddies murdered Castucci because they learned from Connolly that Castucci was informing on Joe McDonald and Jimmy Sims who were hiding out in New York. (I suggest the real reason was to beat the Mafia out of money in my book Don’t Embarrass The Family)

Castucci was the informant of Tom Daley a member of the C  – 3 squad, the same squad as Connolly. Wyshak has put in evidence that the Castucci’s informant file was available to all members of that squad. He has also put in evidence, and this seems to be where he wants to have his cake and eat it, that there were weekly meetings of the squad where agents spoke about what information was coming in and what the informants were saying. He doesn’t want Carney to be able to use the same type of proof as he used which is an inference that the existence of the knowledge of what’s in a report can be conveyed verbally among the agents.

Carney has said that the case will go on to Thanksgiving if he has to bring in each agent to explain all the circumstances of each report he wrote back in the late ‘70s or early ‘80s. Judge Casper listened to each side and is considering it. She asked the attorneys to try to work out some compromise. Carney said that was impossible. It seems to me they could come up with some type of agreement on this but I’m not trying the case and I know if I were I probably would be digging in my heels as counsel is doing.  The ball is going to have to go back to Judge Casper who’ll have to come up with a solution. I’m sure she’ll find one so I’m not trucking up to Boston during the football season.

17 thoughts on “Friday Morning June 28, 2013 – Early Morning Update:

  1. I am not satisfied with the way mrs Casper has handled this case at all. Im not naive enought o thing WB is innocent,But i do think their are worse players out there, aka morris,weeks mortarano etc when the law is not the law and team up with the mafia, thats a problem. how can you make a deal for murder and walk the streets its crazy!! the real criminal is the FBI in this area. its a travesty to think he will die in adx and weeks and various other will line the pockets of carr and other clowns to make a dollar. Its a shame this isnt a fair trial, i mean how many newspapers are sold about the lies in blackmass.? the more that comes out i think connelly made up 209’s to explan why he was with whitey so much, to justify his numerous homes etc he prob wasnt an informant at all then that makes the executioner and 2weeks the biggest rat w/ the paratrooper flemmi in my humble opinion.

    1. PAT2E:

      Judge Casper did not make the deals with the thugs. She doesn’t have the FBI before her on trial. She can’t control what happened in other cases. She has nothing to do with all the lies out there in fact she’s letting us see some of them by giving counsel a good lee way. Don’t take out the sins of the DOJ or FBI on her. She doesn’t have to be as fair as she has been – Whitey will never tip this case on appeal since everyone is convinced by all the lies that have been spread about him especially the appeals court which has upheld cases based on Whitey being a bad criminal.

      You’re right that Whitey is making a good case showing he’s not an informant. Much better than I thought he could do. Hope to have my thoughts together on it by Monday to post what the defense strategy is. You’re also right the real rats are testifying against him.

  2. The government wants the trial of this sorry tale behind them asap so they and their fan club can take the bows and write the books. The Bureau will write it off as a rogue element in Boston and carry on per usual. The DOJ isn’t going to let the inconvenience of rules and procedures get in the way of speedy injustice. Meanwhile the defendant stays in the can reading Grant’s Memoirs awaiting the grim reaper while any appeals based on the court’s handling of the case are grinded by the wheels of justice.

      1. Ernie:

        Better questions for today’s high school graduates: Who is Grant and What ia a memoir.

  3. Matt, before I quit the Law, I put on my last resume this: “work hours: M-F 9-6, evenings as needed; also available Saturdays’ and Sundays’ afternoons, but not available after Noon Saturday during the College Football Season. I sent out 100 resumes (@2002-4) received one interview and wasn’t hired. Thank God!! I was done with corrupt lawyers and corrupt judges and corrupt clerks and corrupt law professors. (Not all, but over 50% in my humble estimation.) So, like you, I hope this trial is over by Labor Day Weekend and everyone has had a chance to lay his cards or lie all his/her or their cards upon the table, or everyone has a chance to speak their minds, lay their cards on the table and lie through their teeth or tell the truth. Then we all can decide for ourselves where the murderers, criminals, crooks, perjurers and those who suborn perjury and flout and subvert statutes and the Constitution stand or lie or crawl. End it all before the Fall. Then we can focus on the many other ways the FEDs and DOJ, from the Imperial City (D.C.), disserve us, abuse their power and deceive us.

    1. William:

      I suggest the corruption is very very low – people with different ideas see the world differently. That doesn’t mean they are corrupt.

      1. Matt, the luck of the draw, perhaps, had be butting heads too often with corrupt ones. I never called anyone corrupt whose ideas drifted, diverged or were on polar opposites from mine. I’ve encountered too many intellectually corrupt and ethically obtuse persons in the legal profession to chalk it up to mere chance or mere varying opinions. I’ve encountered very few in the public-health, environmental, or medical fields who I’d label as “corrupt”.

        1. William:
          I spent my whole career dealing with judges and lawyers and I can think of less than 10 I’d suggest were corrupt.

  4. Matt,

    If Wyshak concedes authenticity they should be admissible with a minimum showing of relevancy. Authentic documents that impeach the government’s evidence (The File) should easily meet the relevancy standard, as determined by the judge.
    The “chain of custody” requirement speaks only to the weight of the evidence, not its admissibility. The weight of the evidence is a determination solely in the province of the jury, not the judge. Wyshak and Casper are incorrectly imposing a “chain of custody” obstacle on Carney.
    Judge Casper errs when she states the defense must produce a witness to draw a nexus between the impeachment report and John Connolly. She is exceeding her authority in a way that obstructs the defense.
    Lastly, the amount of hearsay evidence Casper allowed the government to introduce is astonishing. It’s perverse that she is now obstructing the defense from introducing reports that were created by the government, and were required to be disclosed to the defense pursuant to Court discovery rules. The very same type of reports are the bedrock of the government’s case (The File). It is patently unfair that the jury will only be allowed by the judge to see the reports that help the government’s case and not the 30 that year it down.

    1. Patty, o gave up on what i knew were the rules of evidwnc long ago when it comes to this trial I had th same thoughts as u. Then I caught myself. This is the bulger trial . In federal court w a young and inexperienced former ausa/Middlesex ADA as the judge.
      Really patty. You should know better than to ask. 🙂

      1. Ernie:

        Judge Casper’s doing a pretty good job. She’d be a good judge to try a case in front of. I see her being real fair so far. Giving counsel enough rope. May be guessing at some evidence but is guessing right most of time.

    2. Patty:
      Caspers doing a good job. I find her considerate and understanding to both sides. She’s green but overcomes it with her candor. I disagree it is a chain of custody issue. If defense can’t show somehow that Connolly had access to information he is apparently copying then how can they suggest he copied it. I think she is right on this but I think access has already been shown by Wyshak putting in the evidence that FBI agents discuss what their informants told or what is in wiretaps openly. Defense has not argued that.

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