Has The Defense Been Beaten Down By The Federals?

Sniffing Around For Something That Smells Fishy

I bailed out early today right after Martorano finished his testimony. There was one witness still scheduled to testify who was a Boston police officer in the cold case division. He was just being used to put in pictures of the murder scenes so I saw little reason to remain. Plus, it was more than that. I have a sense today that the fight went out of Bulger’s defense team.

Maybe it’s me and they have some sort of strategy but I don’t see it. Today’s session was not to my liking for a lot of reasons. Not least is Wyshak’s ability to take over the courtroom with his talking objections which seem to get sustained by the judge in her frequent rulings on Brennan questions after a Wyshak objection: “sustained as to form of question,” and Brennan coming back and asking which is in effect the same question and it being allowed. But the interruption gives Martorano more time to consider it and come up with an answer.

Sometimes as I’ve said the questions result in a “side bar” which is when counsel gather outside the hearing of everyone and discuss the ruling. I’m at a loss why Whitey has no interest in these discussions. He sits there as if they are talking about making arrangements to meet for lunch and it has nothing to do with his case.

Side bars are a big interruption in the flow of questioning. I’m used to judges ruling quickly and being wise to objections trying to throw counsel off. I’m guilty of doing them myself since it is a good trial tactic. But most judges caught on and ruled so that both sides could have a free wheeling cross-examination. I always thought the judges favored the prosecutor when I was  a criminal defense lawyer but when I prosecuted I could swear they favored the defendants.

The effect of objections and side bars prevented Brennan from continuing a sustained attack on Martorano’s credibility which he had done effectively by his fast fired questions.

In one series Brennan questioned Martorano about what he said to trooper Foley many years ago and starts reading from a police report. Wyshak objected saying he is reading from a report not in evidence. It is upheld.

One of the first things Wyshak did on re-direct was to start reading from the same police report. Brennan objected. This time Wyshak is allowed to continue reading.

Wyshak has spoken out even without objecting at least once when Brennan was trying to question Martorano. It’s not good what is going on. It seems to have knocked Brennan off his stride at times. Brennan would be in the middle of questioning Martorano about a certain happening, Wyshak will object, and the judge will say “I think you’ve exhausted this area.”

How has a lawyer finished with an area before he’s done? Sometimes you have to go back at a witness in the same area five or ten different ways. Apparently in federal court you can only do it once.

Another time Wyshak suggests the witness has already testified to that. The judge will sustain the objection and have Brennan move on; since when can’t counsel go back over an area once touched if he wanted to tackle it differently.

I’m glad I did very little practice federally. They have taken the soul out of trying a case. It’s like going into the king’s court where everyone bows and curtsies, the women wearing bee hive type hair get-ups and the men powered wigs. No words in anger are ever spoken.

The lawyers have to question a witness from across the courtroom – no approaching the witness except with approval and only when you want to show her a document – no histrionics, no acting, no combat, all very proper-like, so unlike what is happening out in the real world.

At times I felt like screaming “you can’t try a case like that!” But that’s what is done in federal land. It’s so removed from life. Maybe Whitey has given up – he looks like he has done so – knowing this daily exercise of being woken early and driven 50 or so miles in a parade of vehicles to court, sitting and seeing gangsters treated like lords, and being driven back to his jail cell is the best he’s going to see for the rest of his life.

I can’t go until I tell of something that really bothered me. I’ve been on both sides of the fence. The defense has a duty to muddy up the case; the prosecutor the duty to prevent the defense counsel’s actions from confusing the jury. The prosecutor must be intent on telling the truth at all times and must not present to the jury anything that smacks of deception or a lie. The prosecutor’s job in re-direct is to give the witness who has been banged up a bit a chance to put bandages on his wounds and bring the case back on the path to the truthful tale.

Today Brennan showed on cross-examination that Martorano when first interviewed by the cops said that Stevie Flemmi was in the back seat of the car gunning down Spike O’Toole. He even told how he said he leaned over Stevie to fire his machine gun. Stevie couldn’t have been there – he was in Canada.  Martorano said he corrected it later.

Wyshak got up on redirect and asked Martorano to read the last line of the report. In that line it says Martorano told the cops that Stevie was in Canada. Wyshak presented it as if Martorano told them about Stevie being in the car but later on the same day he remembered he was in Canada. Wyshak was trying to deceive the jury into believing this. He knew it wasn’t true.

Brennan cleared up on re-cross, again after struggling with Wyshak’s talking objections. I’ve never known a prosecutor to try to deceive a jury like that by obscuring the truth. At least none of the prosecutors I ever worked with thought that the conviction of any one person was worth doing that.

It’s a prosecutor’s obligation to present the truth, not to get a conviction. Maybe that was why I felt I had to leave early. I’ve been defending Wyshak saying he sees things differently than I would have seen them if I were a prosecutor, nothing more. But now I have to wonder about him.

Finally, the best line of the day which I hope defense counsel picked up was when Martorano said about his proffer and the agreement he entered into that “the first part [of the questioning when he was making a proffer] was just discussing things and putting them  in place. Afterward it was the final product.”  That’s about a candid admission as I’ve heard that the evidence was spit shined to meet the prosecutors need.

13 thoughts on “Has The Defense Been Beaten Down By The Federals?

    1. Jon:

      Murderman is capable of saying and believing the most outrageous things. If he was really pressed he’d assure us that all the people he murdered wanted him to murder them and he was actually owed a favor from them for having done it. His words are really meaningless.

  1. If the government’s star witness comes across as a liar and the prosecutor appears deceptive and a hider of the truth not a seeker thereof what more could a defendant ask? Except to have the judge run a unfair and biased trial. C and B may have hit the trifecta. 2. A defense counsel told me he tried an OUI before a judge who sustained every objection of the ada. One time the judge was reading a document and not paying attention. The ada objected but the judge kept reading for several minutes. When she finally looked up the ada said objection ( she obviously didn’t know what he was opposing) and it was sustained. The entire jury burst out laughing. It took ten minutes for a NG. Juries generally find unfairness unattractive.

    1. N.
      1. I think Patty thinks that they have and that is their plan with Wyshak playing right into their hands.
      2. I think in this case the jury might receive the instructions on the law from Wyshak. I’m not sure what role the judge will play. I agree with you both that the jury must be scratching its head by now. But even that won’t help Whitey who presents poorly in court.

  2. Keep up the excellent reporting. C and B’s job is to discredit the government’s case. The Carr issue is a sideshow.

  3. Ambrose Bierce, American Civil War warrior, defined a lawyer as someone who circumvents the law.
    I recognize the mordant wit but Uncle Sam’s role in this case is that it shall be victory at any cost.

    Maybe the defendant was a hockey player that knows that going into the third period and behind by twelve goals is an awful hard challenge to get up for but you never throw in the towel.

    My biggest worry is as a citizen with a self interest in not being collateral damage as the feds burn their way to justice.

    Keep in there punching. We need your take on things especially those regarding federal procedures. A defendant, no matter, is entitled to a fair shake and a level field in the American justice system.

    1. Hopalong:

      Agree and share the same concerns about America much more than I’m interested in this case. I saw the FBI found all of its agents who ever shot someone were justified in doing it in NY Times. Wyshak’s interest in a win rather than doing justice is just another sad part of the lack of ethics among some prosecutors. His win at all costs, even deceiving juries, is a bad omen for our society especially since the media thinks him such a hot shot.

  4. I think the only lawyer still young anuff and capable of trying whitey case(don’t get me wrong these guys are ok) that mob lawyer cardinale the guy who hates flemmi and whitey. he was his only chance, but he would never have took the case. maybe whitey should have coughed up the doe and went with one of the ny elite ( jerry shargel ect). whitey did crack the joke in the late 80tys look what cardinale did for fat tony in the commission nyc trial 100yrs, but that guy has more federal rico fights then any other around boston. some of the ny lawyers been fighting mob rico cases in nyc for 30yrs, C&B are out of there league. the manhatten guys never get walked on like they do. some of them scream and get held in contempt. jerry shargel is a shark theres a bunch others(the guy who fought jr gotti threw 4 mistrial in 5 yrs) carnesi?. cant remember off the top of my head, but they wouldn’t let why the talking objection and get he points the nyc judges would crush him in this day in age. back to I think he a weasel, you know it too. he write a book after this you know it. weak. Im still praying whitey goes off, or something to happing.

    1. The Manhattan guys are way overrated, as the Ynkees, Jets and jiants are way overratted. C&B are doing a great job within the corrupt DOJ-Federal Courthouse in Boston. You can fight, you can publicly beat them to a pulp, but you cant formally win in Boston when the judges are prosecutors are corrupt to the bone, both, and ignorant, willfully or not, of constitutional fair trial, equal protection imperatives.

    2. Pat:

      There still a lot of time to go. But I noticed today Wyshak, except for walking into a trap, was more quiet. I’m not giving up on C&B but I am trying to figure out what their strategy is.

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