I mentioned how David Boeri and David Frank’s article Ortiz Under Fire got me thinking about other happenings in the justice system. I’ve told how I believe the cops are running the show in the Boston U.S. Attorney’s office. But there is another aspect to that story I’d like to speak about.
I’ve pointed out in my book Don’t Embarrass The Family how the evidence in the case against retired FBI agent John Connolly consisted in the main in two parts: a corrupt FBI agent John Morris who was Connolly’s supervisor testifying against him so he could save his pension and avoid prison; and three gangsters who made fine deals for themselves with the prosecutors to avoid spending the rest of their lives in prison or on death row.
The outcome of the Connolly trial which few seem to know is that the jury disbelieved all of the gangster testimony about John Connolly’s actions as an FBI agent. Martorano testified his gang gave Connolly a $5000 ring, he was found not guilty; Martorano testified he killed Richard Castucci because Connolly had outed him as an informant; Connolly was found not guilty. Connolly was accused of leaking information that Halloran was an informant, that Callahan would be pressured by the FBI, and that Baharian would be wiretapped. He was found not guilty of all. The charge against him of extortion of a liquor store also resulted in a not guilty.
The jury disbelieved all of corrupt FBI Agent Morris’s testimony about Connolly leaking the identity of Halloran or of the wiretap of Baharian. The only crime the jury believed that Connolly committed while an FBI agent was that he gave Morris a case of wine with $1000 in it . As some commentators point out, led by William, after the federal government did a thorough investigation of retired Agent John Connolly’s actions while he was an FBI agent, it was only able to convince a Boston jury of that. The government has never proven to a jury Connolly took a dollar yet I’d venture to guess everyone believes it proved he pocketed hundreds of thousands of dollars.
All the other acts that Connolly was convicted of related to actions he performed four to eight years after he left the FBI. Those related to his involvement in the flight of Whitey and Salemme and his attempts to help Flemmi avoid prosecution. There was independent evidence from non-criminals about these.
I’ve pointed out throughout this blog that the gangster witnesses are allowed to testify against Connolly but are not required to tell the whole truth. The prosecutors made deals with each that they only had to tell some things and not others. For instance Frankie Salemme was allowed to testify against “cops and rats” but not against the Mafia murderers; Kevin Weeks was allowed to hide the identity of his friends who killed Halloran and Donohue and McIntyre; Martorano could hide the evidence against his brother or Howie Winter and could pretend he agreed to give evidence against people he did not know.
The Boeri and Frank article showed in two of three cases they wrote about the judges played an active role beyond listening to the evidence and handing the cases over to the jury. They judged the credibility of the evidence and the witnesses.
One of the two cases involved Attorney Tracy Miner who was in front of Judge Joseph Tauro. The great irony is she also tried the John Connolly case in front of him.
As best I can tell Judge Joseph Tauro listened to the prosecutor’s main witness, found that he was incapable of being believed because he would not identify his associates, so he threw out the case. Judge Tauro didn’t say to himself, “I’ll let the jury figure out if this liar is worthy of belief.” He did what he should have done. He prevented a fraud upon the justice system. That is part of his job. He didn’t pass the buck to the jury.
Yet in the Connolly case given a similar situation he asked the jury to make the decision about the credibility of the same type witnesses. The jury did his work for him and found them incredible. I understand that in a high publicity case like that of FBI Agent John Connolly or Whitey Bulger a judge is reluctant to interfere with a witness. But isn’t that part and parcel of the job just like the US Attorney has to interfere with aggressive cops and suffer the blow back.
Perhaps the judges also have to step up their game. They should be more active in protecting the jury from guessing. There should be a standard, or a red line established, where some people are ruled incapable of being believed without substantial corroborative evidence.
The Connolly jury knew Martorano had murdered 20 people but agreed to testify because he received only 6 months for each murder was not telling the truth. It refused to believe him. What should follow from that? Should Martorano be allowed to try again in front of another jury? That’s what happened in Florida. That’s what will happen in Whitey’s case.
The prosecutors have no problem having him do this. What about the judges? Do they have an obligation to deem him incapable of belief if one jury has already disbelieved him. At a minimum shouldn’t the next jury be told he has already been disbelieved by a prior jury?
Also with corrupt Agent John Morris, should a jury have to guess about the testimony of an FBI agent who admits he lied under oath on several prior occasions? If I prepared an affidavit for a warrant and said my informant has lied on many previous occasions and is now telling the truth any judge I ever dealt with would have laughed me out of the lobby.
What about Morris’s lie in front of the jury? He testified he lied multiple times in the past but now he has to tell the truth to it because if he doesn’t he’ll be charged with perjury. Everyone knows, except perhaps the jurors, that will never happen. It it would destroy the government’s case.
I’d suggest the judges prevent an admitted liar or benefited gangster from testifying without independent corroboration especially after much of their testimony has been previously disbelieve. No judge would issue a warrant based on an affidavit of persons who have been known to have previously lied or been found not credible. Why then in a much more serious matter where a person’s liberty is a risk isn’t the same standard applied?.