Having The Judges Do Their Jobs

“Bring in the guilty lad. I’ll give him a fair trial.”

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?.

15 thoughts on “Having The Judges Do Their Jobs

  1. MMatt (and Bill), I’m a late-comer to this dialogue so forgive me if I trod worn ground.

    My own observations of the corruption in the US Attorney’s Boston office pre-date the Connolly/Bulger episodes. Crossen and others in the past ignore their oaths and mire the system in a sickening miasma abusive power. There is no level to which they will not stoop.

    These are supposed to be the keepers of the flame and they twist all to their own career ends. One episode I recall is the treatment of that hapless young attorney that they hijacked to a NY hotel room and left a quivering mess after their Orwellian threats to suborning perjury of testimony against a judge. Was the US Atty’s office the training ground for these bullying tactics?

    What chance does an ordinary, law-abiding citizen have in gaining redress once they have decided you are a target? Rational people are terrified of the legal system.. How can a republic survive in this atmosphere of terror?

    1. P hutch:
      Welcome to the conversation. You’ll see Bill and I have a totally different view on matters but it is only through testing each other that we can make sure the road we are following is consistent with the facts we see.
      I always thought Gary Crossen was a good guy and still think that although I haven’t seen him for years. When he got involved in the Demoulas matter that got him disbarred (http://www.boston.com/news/local/articles/2008/02/07/sjc_blasts_2_lawyers_for_ethics_breach/?page=full)it was after he left the US attorneys office. My thoughts on the tactics you speak about where they tried to have a law clerk turn evidence against a judge by pretending to offer him a job was a shoddy affair. But if Crossen can be faulted it is choosing to work with the other lawyer who was disbarred with him. He was to say the least one of the few lawyers I never felt comfortable being near. I would have expected more from Crossen but don’t condemn him for the one big mistake. Sometimes as a young attorney trying to survive in private practice yu can make horrible judgments and that’s what he did.
      You are right there is no way to control the power of the prosecutors especially in this day when the media seems to be more of a lap dog than a bull dog when it comes to prosecutors. At one time three were three reporters assigned to Norfolk Superior Court every day to keep track of what was going on. Now one will show up but only at something big.
      If you’re targeted as an ordinary citizen you’re plainly out of luck. You have no redress from actions of a prosecutor since they are immune for their acts committed while doing their jobs. Rational people should be terrorized of the legal system because it is all a crap shoot. As Dickens said, suffer any injustice before going through those doors.
      We’ll survive all right when the judges get more interested in insuring things are done fairly. They’re slowly getting over the timidity caused by the first attack by an enemy on the soil of our states (Hawaii wasn’t a state when it was attacked) in a century. When they get their guts back things may change. We also can depend on a change of prosecutors who will look at their jobs as more than getting convictions or following the mass hysteria of the media but doing justice.
      Nice to hear from you.

  2. That’s my point. Wyshak knew these guys killed to stay out of prison; he knew they’d lie to stay out of prison; he knew Flemmi had already perjured himself before Judge Wolfe and put him on the stand as the key witness in Florida. How do you not have a “reasonable doubt” putting known perjurers and known serial killers on the stand who are telling you triple hearsay stories about events that occured decades earlier? You couldn’t trust them with telling the time of day, how do you trust them on the witness stand? After many years in prison, Martorano and Flemmi came up with stories Wyshak liked. How could Wyshak not have reasonable doubts about their stories and Weeks’ stories? Remember Wyshak warned Durham not to use Salemme in Boston in 2002 because Wyshak said that Salemme is a known perjurer. Durham used Salemme in 2002; Salemme was subsequently convicted of perjury. Wyshak then used the known perjurer Flemmi in Miami in 2008. Wyshak also knew that Flemmi in 2006 had stated under oath that John Connolly never did or said anything intending anyone be killed. (The Dave Boeri article.) Knowing that, Wyshak puts Flemmi on the stand in 2008, a mere two years later, to testify to the exact opposite.
    I’m not writing just to win arguments. I’d like us all to think deeply about these matters.
    P.S. On another matter: I’ll tell you why I conclude the uncashed checks were put in the drawer the same year Connolly sold his condo for $234,000. The testimony was that the checks were for $2,018 and some cents. Bi-weekly that comes out to a gross of $54,000 take-home; bi-monthly $50,000. Earlier the IRS expert testified in Miami that Connolly in Boston made between $45,000 and $65,000. The $50,000 plus take-home, it seems had to be occured at the end of the decade when Connolly was married, probably had his first child, was claiming several deductions, and had sold his condo.
    Also $50,000 take home in the 1980s, I’m told, is the equivalent of $120,000 today. A single guy could live very well on that salary in Boston.
    I’m told that if she said the checks were in the mid-1980s, when he was making $55,000, then how does he take home $54,000?
    So, I’m just casting more wood on the fires of uncertainty that surround Connolly’s prosecution. You all know by now that I believe he was framed by the Justice Department,in the persons of Durham and Wyshak.

    1. Bill:
      Don’t want to talk about your speculations on how Connolly dealt with money.
      On the other matter, the philosophy of Wyshak which has been adopted by Carmen Ortiz is that you pick up a hand full of mud and sling it at the wall and hope some of it sticks. It is a far cry from trying to do things right. They seek convictions and not justice. They make up their minds to a result and shape the evidence to meet it by offering goodies to people who will help them make the pie with them.

  3. I know far less about Connolly, Whitey, Weeks, and other sordid characters, than anyone else on this blog. However, I am also a former prosecutor. Many times, the only way to get a conviction is to place a nefarious witness on the stand and have him say “j’accuse.” There is no other way around it. Drug users know the drug buyers. The prostitute knows the pimp or john. The gang neophyte knows the boss.

    99.9% of prosecutors will also tell you that they never, ever, put anyone on the stand they knew to be lying. That doesn’t mean my witness wasn’t a dirty rotten scoundrel whom I wouldn’t trust to tell me the time.

    1. Jim P.
      Newman Flanagan when he was an assistant DA used to tell the jury in closing argument if a crime is committed in the jungle you have to go into the jungle to get your witnesses. If a crime’s committed in Savin Hill it’s not going to help much to be looking for evidence in Weston. I agree totally that you have to go where the crime and the criminal is and you need guys involved in the drug trade sometimes to get other guys.

      This case is a little different. The prosecutors are using guys they know are lying to some things and they are concealing what they know in other instances. Weeks, for instance, makes up a story of a guy in the back seat of the car wearing a mask and there are civilian witnesses who say that is not the case. Part of that story is Weeks went to kill two guys but didn’t know one of the guys he was with, never asked about who it was, and never heard Whitey mention it. No prosecutor I know would accept that plus Weeks was able to deal so that some of his friends would not get charged. Salemme after the Connolly trial was charged with perjury in another matter. Agent Morris hid from the prosecutors throughout the hearings before Judge Wolf and right up to a week or two before the Connolly trial that he had received $5000 from another informant, used his home in Florida, and got other gifts from him. He only disclosed it because he heard Connolly’s lawyer was talking to his ex-wife who knew these things.

      There seems to be a cavalier attitude toward the truth and a complicity with the criminals to deceive. Martorano wrote in his book of the prosecutors and he agreeing he would testify against a group of people he did not know so that his deal would look better and fool the public. It’s a lot more than using bad guys as witnesses, it’s more like getting into be with bad guys and doing whatever is necessary to achieve a win, even tolerating lying.

  4. Matt, I think that Manny Casiabelli was trying (1) to paint Martorano as the cold blooded, satanic character he was and is; (2) to point out that men like Martorano who killed to stay out of prison would blithely lie to stay out of prison; and (3) to impugn the integrity of Wyshak by asking the jury to consider the scum Wyshak was putting before them on the witness stand. Remember, the Florida jury acquitted Connolly of first degree murder and conspiracy to commit murder. The murder by gun charge was added by a desperate Wyshak at the end of trial. Wyshak knew his case was a house of cards!
    By the way, at the end of trial, after the judge erroneously ruled that Casiabelle raised the statute of limitations defense too late(you can raise an SOL defense at any time) and the judge also ruled that to be convicted of murder by gun you had to have the murder weapon in your hand (the judge admitted Connolly never held the murder weapon and mocked Wyshak’s blubbering on that issue), Casiabelli (sp?) then filed his own constitutionally ironclad “ineffective assistance of counsel” motion to dismiss. Failure to raise the SOL is per se ineffective assistance of counsel. Casabielle had brilliantly caught the judge in a Catch 22. “If the SOL was raised too late, that is per se Ineefective Assistance of Counsel, so give us a new trial, judge.”) The Miami judge woulldn’t budge; he was blind to the constitutional issues, although he did say in open court he had no doubt Connolly’s conviction would be quickly overturned on appeal. We know what the corrupt judiciary in Florida has done with that appeal! We know the press has been silent about and complicit in that travesty, just as they were in the St. Patrick’s Day Parade case!
    Bottom line: I hope Carney goes over each and every murder with Martorano, and asks about all of them: “Wasn’t your brother, Jimmy, there? When you killed Tony Veranis? Wasn’t your brother Jimmy there? Didn’t you kill Tony because he beat up your brother? Didn’t you need your brother with you to identify Tony?” Carney in his opening statement should mention the obscene deal Martorano got with the government and how Martorano did not have to say anything about his gangster brother’s crimes. Then Carney should say, “I’m going to ask every witness about the crimes of Jimmy Martorano, Pat Nee, Kevin Weeks and their associates. I’ll prove they, not Whitey, committed certain alleged crimes.” Someone suggested that Carney should say, “Judge Wolf and Wyshak cut a deal granting outright immunity to Jimmy Martorano, Pat Nee and others, and that deal gave Martorano and Weeks de facto immunity (in the guise of short sentences) from further prosecution. If Wolf and Wyshak can give immunity, why can’t O’Sullivan?”
    More ideas come to mind: Your posts and the comments help all of us to think more seriously about all these issues.

    1. Bill:
      You make good points and they will be used by Carney if Whitey’s trial goes ahead. Carney will spend a month going over the tales Martorano told in his book. Manny Casiabielle’s cross-examination of Martorano should have been no more than: “You killed John Callahan who was your friend. You admit to killing those 20 people you testified about. They were unarmed people you shot in the head just like Callahan. You are an admitted murderer of more people in the history of Massachusetts than any other person, aren’t you. You made a deal with the state that if you testified you’d do about six months for each murder. You’re now walking the street. You’re here telling this jury what two other gangsters Whitey and Stevie allegedly said Connolly said. You’ve been well rewarded for saying this. You never met Connolly, did you? You never spoke with Connolly, did you. You have no personal knowledge of Connolly saying anything to either of these men. For testifying against him You avoided the death penalty and got at least $20.000 when you left prison.”

      It did no good for Casiabielle to impugn Wyshak. It’s never a good idea to do something like that before a jury. If that was his aim it backfired because the jury did after all convict Connolly. Maybe it did so wrongly but it believed Connolly had something to do with the murder of Callahan or it would have acquitted him. I don’t see any brilliance from Casiabielle in this case. Connolly is rotting in jail in a situation where he should be on the street. Failure to file a motion on time; or in the alternative saying I’m ineffective for not doing so is far from a smart move.

      Give the devil his due, if you are looking for brilliance it is Wyshak pulling that maneuver out of his hat and stealing victory from the jaws of defeat.

  5. Wow, excellent post. The proven lack of credibility of the US Attorney’s witnesses is compounded by other factors. First, the witnesses have been found incredible by other juries. Second, they are career criminals with no respect for any law and certainly not The Oath. Third, they have been given the ultimate incentive to testify to whatever the USA wants; their very lives depend on it. Foutth, they have been given large cash payments for their testimony. Some of the payments are above board, but many are in the undisclosed form of NON-forfeiture, waived fees and fines, and preserved pensions. Fifth, they often testify not as to things they observed, but to inherently unreliable hearsay. Not just hearsay, but the most unreliable kind, totem pole hearsay. Suspiciously, this quadruple totem pole hearsay often goes directly to specific elements of crimes the USA seeks to prove. Sixth, these inherently unreliable witnesses, present inherently unreliable hearsay that relates to events that happened a minimum of a quarter century in the past, back to forty years in the past. Sure a person who joins in a homicide plot should remember such a searing event forever. These guys, however, all fit the definition of serial and mass murderers. Further, they seem to have “forgotten” the involvement in those murders of certain wiseguys the USA is keeping on the street as informants today. The selectiveness of their memories speaks directly to the priorities of the US Attorney. In fact, these witnesses present nearly a blank canvas for the prosecution to create a case that blames all law enforcement misconduct on John Connolly and all organized crime on Whitey.

    1. Patty:
      As a former prosecutor it seemed you’ve made a brilliant final argument putting together in a logical format all that is happening in this case. (1). Witnesses a prior jury did not believe (2) who are life long criminals or admitted perjurers (3) whose freedom is at stake and (4) who received monetary gifts from the government (5) will offer hearsay evidence (6) about events from the distant past while concealing some of it. It’s far from a recipe for telling the truth..

      As you know Hearsay evidence is usually not let in because it is so unreliable. Triple of quadruple hearsay is worthless but the federal judges have no trouble with it. The media loves it. I could be a witness against you with it even though I never met you.

      While responding I recalled an image I saw of the Connolly trial in Florida. It was an exhibit on a stand which contained the photographs of all the people Martorano murdered. In Howie Carr’s book it seems Connolly’s lawyer spent a lot of time cross-examining Martorano about these murders. I’m wondering about why all that happened. Martorano never spoke to Connolly in his life. He admitted killing Callahan. Why all that extra stuff. If Connolly’s lawyer could not present the government introducing it, what was he trying to prove in his cross-examination discussing all of the crimes Martorano committed? The only issues of relevance Martorano had were his murder and the hearsay evidence of his conversations with Whitey and Stevie. Highlighting Martorano’s career seemed to work to Connolly’s detriment. Talk about ineffective assistance of counsel!

  6. Matt, you are 100% correct. I hope every reader deeply ponders these issues. You won’t find them discussed in books by Howie Carr or Globe reporters!

    1. Bill:
      It’s sort of on the line you’ve been suggesting. What I’m puzzled about after reading how Carmen Ortiz is willing to just let the jury decide and we’ve seen the prosecutors use people of abhorrent moral character as witnesses and there are no safeguards to prevent a jury from being tricked is why we let all this continue. I’m sort of urging the judges who have enormous experience to stop being spectators and to be more active in protecting the jurors. I’ve equated it to the need to get a search warrant where if I had an informant like Morris the judge would never issue the warrant but they will let him testify at trial. I’m working my way through this.

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