I’ve Got A Right To Sing The Blues

Some Things Are Not Only Prohibited But They Are Unwise
Some Things Are Not Only Prohibited But They Are Unwise

Today’s about my chagrin. I feel like the excited groom standing at the altar and watching the bride’s part of the wedding party hesitantly enter the church and not seeing the bride.  How long do I have to stand there and wait before someone tells me what is going on?

Rather than waiting for a bride, I find myself staring at the wall waiting for an answer and afraid, like the groom fears the bride has flown town, that my answer will never come. Do I blame the moves by the prosecutors for my frustration? Or, should I accept that their moves had no effect on anything. They were merely defending against things that were never going to happen but they could not assume that was going to be the case.

I really wish the prosecutors did not fight so hard to keep out the immunity defense but I have to accept that perhaps there never was going to be such a defense in the first place. Suppose all along the whole story of a meeting with O’Sullivan was a big con – told to Carney and Brennan (C&B) by their client Whitey. I’d guess if that’s the case even they don’t know if its truthful.

More and more it seems likely that the mystery that I’ve yet to unravel will never be solved. That’s why I’m blue. I really wanted to know what Whitey would say was the quid-pro-quo for his getting immunity or for whatever it was O’Sullivan purported to give to Whitey.

Even though I think the idea that O’Sullivan met with Whitey is preposterous I’m still finding it hard to believe that Whitey did not intend to tell us something about what was said by each party. Maybe all that shows is that C&B did a masterful job convincing us, or at least me, that they were prepared to say there was a meeting and a deal was struck even though all they were doing was having a lark.

I have to remember they refused to say when the meeting happened or what was discussed. I have to remember that when pressed they’d change the vague terms of the agreement from one thing to another: immunity to agreement not to prosecute as if they were making the terms fit into the latest legal opinions.

I have to remember that Flemmi testified he and Whitey were informants; that Whitey passed on Flemmi’s information to Connolly; that Weeks testified that file after file showed Whitey was feeding Connolly information; and that the FBI from the venerable leader J. Edgar down to the office clerks believed Whitey was an informant; and on and on. Then Whitey asserts he wasn’t an informant.

I have to recall that Whitey said he paid for information and didn’t give information but in a court filing refused to put it in writing that he paid for the information. I must say it seems very odd if Whitey was paying for information, or at a minimum was not giving any information, O’Sullivan wanted to help him out.

I’m blue because I’ll never get the answers to my questions. I shouldn’t be because even if Whitey gave the answers I’d probably not believe him in any event. But I would have liked to have heard what he conjured up as being something so valuable that an assistant US attorney would let him kill to get it.

Overall I’m blue because I realize that Whitey will never testify. I wanted to hear his story and see his cross-examination. I’d like to see Wyshak or Kelly take him on with the tons of information they must have against him. If that happened, I’d be able to come up with some version of the truth that would satisfy me.

I wouldn’t be happy with just Whitey’s story; I want it tested. I don’t know how skilled either man is at cross-examination, it is not a skill of most prosecutors. Durham who prosecuted Connolly had good skills which surprised me. Even if they had only modest ability it would be enough to bring us closer to the truth.

This whole episode with the immunity defense tells me Whitey won’t take the stand to tell his story like I once believed he would. But even when I said he would testify, I noted that it was probably a waste of time for him. No one would believe him anyway.

Some still find Whitey has a chance in front of a jury because of the fetid nature of the prosecutors case. I understand the case they are making but I don’t buy into it. The prosecutors have too many stones to hit him with for him to come out whole. It’s just not going to happen.

I said all he has left is the sickness card. In thinking it over again he may have some trial disruption card to use, something may happen to so taint the jury that a fair trial is impossible. Judge Casper has shown herself to be fully capable of handing the case up to this moment nevertheless is still wet behind the ears in some ways and may not be up to the task of preventing a disruption or controlling it.

It may not be the end for Whitey, but surely it is the beginning of the end.

9 thoughts on “I’ve Got A Right To Sing The Blues

  1. It sounds to me that you lament the evocation of the “truth” or some version of it the most. It sounds to me that you lament the “fullness” of the process to which you, as both a former prosecutor and defense counsel could appreciate the intricacies and richness of far more than most. It sounds to me like you lament an ideal or image of our judicial system that you once held in your heart when you protected those rights, processes, and our country when you were a marine. No wonder you are singing the blues. You, more than many, have put so much on the line – you fully committed to this country – for the very principles for which it stands – and now you see the court is not fully committing in return. I can’t imagine how you must feel.

    On top of that, I can’t imagine how the victim’s families must feel. Isn’t there a nagging suspicion in them or their counsels as to why this is all getting hammered through so quickly. The victim’s families in this case are in a unique position, on one hand they are probably very grateful that the feds have finally brought in Mr. Bulger and will be holding him to account. On the other hand, did they forget so quickly that the feds were once a party to it all too? As such, isn’t there a hint of “rush” on all of this that smells a little bad to the victim’s counsels? Is something lost most of all for them by the immunity defense being subdued and Mr. Bulger’s not speaking at trial?

    Oddly, the feds removal of the immunity defense might arguably put Mr. Bulger and his victims on the same side.

    Other than that, the victims’ counsels don’t seem up to the challenge, it seems they want it “easy” too. Something neat, all tied up in a pretty bow. Maybe it’s time the victim’s counsels step up and say – whoa, wait a minute – and maybe that would be the disruption the Honorable Judge Casper would have to honor.

    If I were a victims’ counsel, I would be extremely skeptical at this very time…and I might even want the delay. I certainly would want to know, as a third party in this horrendous matter, what party number 2 had to say – that would be my right that I would be getting denied as a result of the denial to the other.

    In other words, when Judge Casper denied Mr. Bulger’s immunity defense, she denied the victims’ further enlightening information which may or may not have been useful in their case against the government.

    If victims’ counsels remain so enamored and forget the past so easily, if they don’t step up, then Wyshak and Kelly have won hands down – and they have “played it” against the victims’ most of all. Imagine when Mr. Davis finally realizes he has been played not by Bulger – but by others.

    Other than that, you gotta hand it to ’em: Kudos to Wyshak and Kelly; they are legal geniuses. If the victims counsels don’t step up and do their jobs, and do it soon, then W&K were able to, in a complex triangulated legal matter with all sorts of swirling in the middle going on, ultimately make sure they were the ones who came out on top at the apex and the other two points rested on the bottom.

    You might be singing the blues now, but I suspect, when light dawns and the victims and their counsels finally wake up, it will be all of them singing the blues – again – which is most heart breaking about this case of all.

    1. Alex:
      You make too much of my lament. I was just intrigued by the idea put out by Carney and Brennan that O’Sullivan met with Whitey for the purpose of asking Whitey to do something which was not informing on other people and in exchange for doing that mysterious thing O’Sullivan would see that Whitey received immunity (or impunity) for any crime he did; or put another way that O’Sullivan handed Whitey a piece of paper that said “you herewith have a license to murder.” I found that such an outlandish claim that I wanted to hear it spelled out. That suggestion is so far over the top that O’Sullivan could believe he could do something the all the highest officials in the land gathered together could not do; and worse, that Whitey somehow though he was murdering people with the OK from the Department of Justice.
      I’ve always been a fan of magic and am amazed at the acts of magicians. I’ve been sitting through this intriguing act waiting to see (or hear) the outcome and bang the curtain comes down and the theater lights go on just before the finale. It has nothing to do with the judicial system as a whole or the feds or anything like that.
      Aside from that, I believe the criminal justice system should strive to reach for the ideal but I have not walked through my career with my head in the clouds. Far from it. I see the system for what it is. It’s a human system and no human system will be ideal. I think most of the people in it are doing what they think is right and there is little if any outright corruption. I’ve disagreed with the way many have handled cases and they felt the same about me. That doesn’t mean anything other than that we are acting with the limits of our discretion based on our best judgments even though they may differ substantially. I may think some prosecutors are overly aggressive or are giving away the house but I recognize that is not being corrupt, it is that they see things differently than I do.
      You seem to think that the counsel for the victims are disappointed. I don’t think so. They are no longer much concerned with what happens here. Most of the victims have had their days in court and received recompense for their suffering in the millions even though some of the persons who were victims were gangsters themselves. The victims and their attorneys are glad the government has been implicated in this because without that they would not have been paid.
      But there is no way any victim would want to be on the side of Bulger nor do I see how keeping the immunity defense out could create that scenario. I think most victims look upon Bulger as he has been presented in the media and don’t necessarily want to hear anything else in this case but the jury saying guilty when it comes to their family member. I’d guess they are indifferent to whether Whitey testifies or not.
      As for the truth, I’m in a constant search for it but I didn’t think everything that was going to come from Whitey’s mouth would have been the truth; but it would have been tested by Wyshak or Kelly and watching that process I’d have a better feel for things than I now have.
      As far as the judicial system my take on it is that it probably all right but far from from fair never mind perfect. Fining a guy with a $400,000 income the same amount as a guy with a $40,000 income for the same crime is a simple example. A more salient example to the matters covered in this blog is that it is fair to say that if John Connolly had sufficient money to hire good lawyers he would not be in prison at this time. If Congressman Tierney’s wife was the wife of Carmen Tottorolo whose brothers were hiding out in the Caribbean running gambling casinos and she did what Mrs. Tierney did there is no way Wyshak would have asked for the street. Catherine Greig got 8 years and and a Mafia guy in New York who just pleaded to murders, racketeering, etc., going back to the ‘70s got 8 years because he became a snitch.
      Remember W & K have a lock on this case. Whitey’s only hope now is some type of hung jury which is a slim hope. I don’t at all think W & K are less than very competent, it’s just I wish they had a different strategy. But I’m sure the last thing they are thinking about is entertaining me.

      1. Matt, I agree except to this extent: I believe the judicial system in AMerica today and for the past 40 years since Roe v. Wade and Forced Busing has been corrupted by politics and idealogy, and that it is indeed an intellectually corrupt system that favors some views and exponents thereof at the expense of others. It’s a system where many judges and prosecutors do not follow the Constitution, Statutes and Regulations, but turn their backs on these texts, and impose their own personal idealogical/political agendas: Like Nancy Gertner, the 16 Jurists in the St. Pat’s Parade case, et al., they follow not the law and the facts, but their personal proclivities which they “feel” like a “pea” at the bottom of eight mattresses. Like Stearns who refused to recuse himself, like Blakely who ignored the SOL, like Liacos and Flannery who sought to forcibly alter by judicial decree a Parade’s expressive content, and like so many others, civilly and criminally, all the way up the chain of command to the top, they have re-conceptualized themselves not as traditional jurists in the tradition of Holmes, Brandeis, Scalia and Thomas, but as “Philosopher Kings” who are above the law, powers unto themselves, “decree dictators” and not servants of the people. Today, a large number of judges believe its their duty not to interpret and apply the law and constitution to the facts, but to invent new law and impose new visions upon the AMerican people. They’ve become false prophets, pharasiedical. The intellectual corruption in our judiciary is deep-seated and could spell the demise of democracy. Read From Trial Court, the Fix, One Life, Shots Heard (ch. Blackout in the Balkans) Character Assassins, and on the fictional ledger: Mac the Dog. From Lewis to Buchanon to Buckley, from Darling to Napolitano to Silverglate, we’ve heard the clarion call: Something is rotten in America, and it is sinister.

        1. Bill:
          Who is to say who is following the Constitution. Since the founding of the republic we’ve had wise men on our highest court disagreeing over its meaning as we’ve seen in the multitude of 5 – 4 decisions that have flowed out of the court. Some are willful with their own agendas, some have philosophies of life different than others, some like business, some like labor, some like privacy, some like protection.Few would put put the quiet man Thomas in the league with Holmes or Brandeis like you do. I don’t despair over our judicial system or consider it corrupt in any manner. Judges decide based on their backgrounds and upbringings and readings.
          You have a certain philosophy in life that is good for you, that doesn’t mean that is the correct philosophy for everyone.

      2. No, you have me wrong on the victims families counsel. I do not think they are disappointed, rather I think I am a little disappointed in them. I am sure they are fine with the easy guilty verdict and for so many reasons I would be too. But, something is amiss/awry…”like the curtain has come down early” as you say. If I am not mistaken, Not all of the judgments have been paid to the victims for the governments joint culpability.

        And sure, and to that end, anything Mr. Bulger says on the stand will be given the presumption of being a lie so why watch and listen to it. But as a family member or victims counsel I think I would still want to hear it nonetheless, as hard as that would be. In my experience, sometimes things may be utterly outlandish, sometimes things that might not seem “plausible” at all end up being the case. And in my experience, sometimes people have used and counted on establishing “plausible deniability” hiding behind that tactic until that which doesn’t seem “plausible” is proven.

        Mr. Bulger is 83 years old, he will be in prison the rest of his life or put to death. A fleeting thought was this, and again only a fleeting one – so then what is his motivation to lie – wouldn’t that be the time he would tell all the truth, for once in his life – as unlikely, and as un-plausible as that would be?

        No, the victims would never see it that they are on the same side as Mr. Bulger from a normal standpoint, of course not. But someday they might see it – as unlikley, as not plausible as it sounds – that both defense counsel and victims counsel have both been denied an opportunity by the system to a full exposure/vetting of the information that pertains to their case.

        Me Personally, I think the victims are still getting the shaft in this case somehow. My disappointment is that the victims counsel aren’t also demanding the same information/records from the DOJ that defense counsel is. Shouldn’t they have access to it too, especially now that Mr. Bulger won’t be coming forward which was really just another form of access to information? Maybe they will after the guilty verdict is gaveled down?

        Alas, I feel your analogy comparing things to a magic show is appropo. A magic show is really all about illusion and deception. To that end, and to the other Mr. Connolly’s point, and it is perhaps in that sense that W&K are “legal geniuses.”

        You and I differ in one respect. I always hated magic shows – they had very little to do with real magic. In fact, I couldn’t help but find there was always a sense of fraud behind the illusion and deception of it all. I felt like I was “paying money to be deceived.” That, felt in turn, like a double-dose of deception. Then, adding insult to injury, I felt like the magicians would then be laughing at me behind the curtain “all the way to the bank” for my having been taken not once but twice. Yes, and thank you – I see it all better now with my head finally out of the clouds, how very much the magic show analogy is like some of our courts today – people paying money and tuning in to be deceived – willingly.

        I can tell you this – I won’t be going to the show.

        Thank you for calling it like it is.

        1. Alex:

          With magicians you willingly pay to be tricked but for me the price has always been worth it. If they laugh at me, so be it, they’ve given me the entertainment I’ve paid for.

          With victims lawyers they’ve done their jobs, received their fees, there is nothing more they can want or be expected to do.

          With the family of victims they can never be made whole but in circumstances like where they have suffered they have been able to be compensated in the only way we know how by giving them money.

          Always keep in mind in our system the accused does not have to take the stand. It has always been Whitey’s decision whether to tell us what he believes happened. I intitially believed he would testify in order to get his story on record once and for all but he should know first of all it won’t be believed and secondly the only parts of his testimony that will be highlighted are those where Wyshak or Kelly demolish it. Whitey has to put in his case through the testimony of the defendants through the cross-examination of his lawyers.

          When I was a young lawyer defending a man charged with rape I tried the case before Judge James Roy of the Superior Court who was notoriously anti-crime. He instructed the jury at the beginning of his charge: “Now jurors, you have heard the Commonwealth’s evidence and the defendant’s tale.” Tale in many minds mean something made up, like the “fairy tales” we heard as young children and, perhaps, what the magician is telling us. Whitey’s testimony would be hard to get out of the realm of tale.

          Judge Casper’s decision on immunity probably had no effect on what was going to happen. Whitey may still testify. He still can come in and say that O’Sullivan gave him a license to murder; who knows, he might have carried it in his wallet in case he was caught by a cop garroting someone he could say, “Oh, it’s all right officer, I can murder this man. Here’s my license to do so.”

          The idea that Whitey even knows the truth is hard for me to accept. Just read John Martorano’s book where he says he’s always been a good man. Or Whitey’s comment to DEA agents Boeri and O”Reilly that he’s a “bad good guy.” When you can justify murder, as these men do, they are incapable of telling the truth.

    2. I would hesitate calling a “genius” a prosecutor like Wyshak who has so flagrantly flouted the U.S. Constitution, its underlying principles of fairness, due process, equal treatment, and freedom from double jeopardy, and who believes without flinching the highly dubious testimony and patent lies of serial killers, and who knowingl puts known perjurers on the stand while he condemns his colleague Durham for putting known perjurers on the stand. Wyshak a genius? He’s a craven! Genius is made of sterner stuff, humbler stuff, more honest stuff, integrity!

  2. Didn’t O’Sullivan state he met with some informants. Then it is not preposterous that he met with WB. Does it even make a difference? Had the head of the Strike Force directed an FBI agent to construct an informant agreement with WB and Flemmi wouldn’t that make it binding? How do the Feds explain the race fixing case? The top ten Winter Hill guys named in the indictment but two are left out as unindicted co conspirators. Doesn’t that suggest some arrangement between WB and the Feds? What does zero prosecutions for twenty five years indicate? Souter says there was a relationship. 2. WB could testify but refuse to be cross examined. He could claim the prosecutors are aiding the Mafia either wittingly or unwittingly and refuse to be subject to LCN disinformation. Would the judge hold him in contempt? Can they send you to Florence for contempt? If your theory is correct that WB wants to prolong his stay in Plymouth then a mistrial works to his advantage. All he needs is one stubborn juror who refuses to accept the terrorists, hitmen and LCN version of events. Just one to say there is something rotten on the waterfront. 3. Maybe he knows he can’t win but his only satisfaction is to expose the Feds deals with the killers. It may or may not sicken the jury but it will nauseate the public. That may be his only card. From WB’s perspective he was double crossed by the Government. He and Flemmi gave them LCN and they abandoned him. ( see Benghazi)

    1. N
      O’Sullivan did say he met with some informants. He said he never met with Whitey. I suppose the head of the Strike Force could use FBI agents as “agents” in the construction of an agreement with a gangster but there is no one has suggested that happened.
      The Race Fixing case is easy, a prosecutor can always decide who she will put into an indictment. The evidence in the Race Fixing case is totally against any immunity claim. It wouldn’t have been necessary for Morris and Connolly to approach O’Sullivan to give Whitey a break in that case if he had immunity.
      Zero prosecution for 25 years indicated FBI protection.
      If Whitey testifies and refuses to be cross-examined his testimony would be stricken. He’d look like a fool. The jury would immediately turn against him after seeing all the other people who testified were cross-examined. The last thing the judge would do would be to call a mistrial.
      True, all you need is one juror to cause a mistrial. Carney could be playing the strategy to get that one. Whitey will be 84 by the time the trial ends, he wants to stay in Plymouth as miserable as that is.
      Whitey through Carney will be able to show the jury the horrible deals the feds made with the witnesses but the public will never hear of it. All the testimony will be filtered through the media who seek to perpetuate the myth of one bad man responsible for all evil abetted by a rogue agent.
      How can you see Ben Garzi if you live in the US. You sound like Sarah Palin who could see Russia.
      Yes, Whitey Bulger was double crossed as was Connolly because the rules were changed. Connolly took the biggest hit because he was doing what he was supposed to be doing which when it was revealed everyone pretended he shouldn’t have done it; Who knew what Whitey’s deal was but certainly it didn’t include the right to murder people or earn money of the South Boston drug business.
      The feds might have used tactics that are questionable but we can’t go so far as to start saying that Whitey is not being properly prosecuted. Shed no tears for Whitey. He had few for the people who ran afoul of him.

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