I’m sure you are not shocked at the failure of Judge Casper to overturn Judge Stearn’s ruling on behalf of Whitey. Had you been following this matter for a fair bit of time you’d know that ruling was inevitable. You have to give Carney & Brennan (C&B) points for trying but they too had to know the futility of their efforts following the strategy they have been following. Perhaps they had no choice but to do this, but there was another way they could go. Judge Casper has still let the door open for them to rush through.
The overriding legal strategies revolve around the kick-off of the trial. The prosecutors want to get to trial as quickly as possible. I’m sure they are really at their wits’ end with this matter desperately look forward to life after Whitey. The defendants seek to delay the start of the trial for as long as possible. The opening bell is the start of the long descent into oblivion for Whitey.
The court, like the prosecutors, seeks to rid itself of this case. I mentioned before that the trial court do almost anything it wanted to do including sitting as jurors members of the victims families and the case would not get reversed. It could just deny every defendant request but rather than doing that it has proceeded in as fair and equitable manner as possible entertaining the endless delaying tactics of C & B.
The start of the trial is Whitey’s worse nightmare. No matter what happens he will be removed from his home at Plymouth House of Corrections and transferred either into the custody of the dreaded Federal Bureau of Prisons; or in the most unlikely event of a full acquittal, into the Oklahoma or Florida prison systems. His one aim has been to stop the start; with Judge Casper’s ruling one is apt to say the straw he was clinging to has slipped away. But surprisingly, he still has the power to delay the start of the case.
Judge Casper was in the difficult position of being asked by C & B to overrule the decisions and findings of a fellow jurist, Judge Stearns. Odds are she would not do it. The odds were right. But Judge Casper did something a little different for which she deserves much credit.
Rather than just rubber stamping Stearns, she set out in fine detail how she would have decided the same issues as Stearns. She went through the ever evolving arguments of C & B on the issue of immunity, considered them anew, and found they were lacking. She didn’t have to do this, as she noted in her opinion. But she did and gave a refreshing insight into the case. I urge you to read her memorandum and order.*
Here’s what I get from her opinion. C & B want to present the issue of immunity to the jury. Casper says before they can do that, since it involves a matter of the terms of an agreement, a contract, between Whitey and AUSA Jeremiah O’Sullivan, she has to know what the terms are. She notes euphemistically that C & B’s claim relative to it has been “evolving” as time has passed. That is something we have also noted although in less kind words. She states that until she understands the agreement, which burden is on C & B to set forth, she cannot let the jury hear it.
What she is saying is C & B won’t tell her what the agreement is so until they do she is not going to let them spring it on the jury. She has an obligation to insure that a contract that is beyond the power of the parties, that is a contract that cannot be enforced, not be put in the hands of a jury. It’s easier for me to understand this better if I imagine that Whitey asserted Jeremiah O’Sullivan promised Whitey that in return for his cooperation he would see that the name of the White House was changed to the Whitey House. No judge would for a minute entertain the thought he had the authority to do that. The issue can not be decided by a jury because no jury could say that he had the power to do this.
There is a road she sets out for C & B to follow. I’ll talk about that and other things in her memorandum tomorrow. But the clock is ticking. C & B only have to the 6th of this month to make up their minds.
*Her opinion is available on the Pacer system which sets out the filings in court cases. You have to be a member to get it. I am and I copied it. It cost nothing. I will post it in a bit. I do so not unmindful of the Aaron Swartz case where he was indicted by the Boston U.S. attorney and faced up to fifty years for doing something similar. (He publicized documents which were restricted to limited people and put them on the open internet.) I just hope a judicial decision comes under some sort of exception or that the local U.S. attorney doesn’t notice this.