Late Afternoon Developments: Whitey’s Lawyer J.W. Carney Seeks A Delay In The Opening Statements

2013 France-3000_1617At 3:40 p.m. Judge Denise Casper held a hearing on Carney & Brenan’s motion to delay the start of the trial until they get their discovery relative to the state police report that John Martorano is back at his old game of being involved in criminal activity and is being protected by the state police.

You may recall the last time this came up the prosecution told how the state police trooper who made the report retracted it and indicated it had no substance. If that’s the case I figured it would be highly unlikely for the judge to delay the opening on Wednesday. So I was wondering what new information Carney would come up with.

J.W. Carney in a forceful, calm and steady presentation that belied the force of his words presented the argument on behalf of Whitey claiming the government was giving Martorano promises, rewards and inducements for his testimony by foregoing the prosecution of him and his friends for their criminal activities and stopping any investigation of him which it is not disclosing. He alleged John Martorano, Kevin Weeks, James Martorano and Pat Nee have been engaged in criminal conduct since they got out of prison, that the government knows it and had done nothing about it.

He told how a trooper with twenty years on the job, 15 years with organized crime, with an unblemished reputation for integrity, and a noted work ethic was stopped short in his investigation of Martorano. This was done according to Carney by Martorano’s handler Lieutenant Steve Johnson of the Massachusetts State Police who is the liaison to the prosecutors in this case.

After the trooper made the allegation it was investigated by the state police and the trooper was punished for making the allegation. He said the underlying reports about this matter are known by the state police and the U.S. Attorney’s office but not by the defense. Carney called this “a shocking discovery violation.” He says he been told by the US Attorney that the allegations are unsubstantiated yet he doesn’t know what they are.

Carney went on to say they gave him reports to show the allegations were not true but those were a joke. They consisted of interviewing Martorano and his accomplice and asking them if they were committing crimes. He called the reports bogus. He said that when AUSA Wyshak responded in court to his request for these last week the head of a unit of the state police called the statements that Wyshak made “inaccurate and outrageous.”

Carney said he wanted all the reports, the allegation, the investigation into it, the investigation of  Lieutenant Johnson in the possession of the state police and the US Attorney. Carney said what has not been turned over is the critical core of what should be turned over. He said it wasn’t up to the government to decide if this information was substantial.

He said the government kept Johnson and DEA Agent Doherty off their witness list when they should be there as the main investigating officers. This he said is their attempt to hide what Johnson knew of Martorano’s activities opining: “It’s a cover-up!”  He went on to say if the trial is to be fair he needs those materials. If the trooper who complained is disciplined this is a repetition of what has been happening for 30 years from Joe Barboza and up through Mark Rossetti  where government forgoes prosecution of its witnesses. Carney says he wants “the raw material” so he can investigate the allegations and asks that the opening be delayed until Monday so that he can use what he finds in his opening statement.

AUSA Fred Wyshak responded in a slow deliberate manner explaining what Carney seeks does not go to the guilt or innocence of Whitey; nor to the promises, rewards or inducements to Martorano. If Martorano doesn’t know about these things then it doesn’t reflect on his state of mind. In fact, Wyshak said, if asked Martorano will deny he had any protection from the government and will say what the government told him was he had to keep clean and stay out of trouble.

He said Carney would allege anything just to get a headline. There was no need to put Johnson on his witness list because this was a historical investigation and he had no direct knowledge of things. He said Carney can ask “til the cows come home” and the answer will be the same: there were no promises or protection given to Martorano.

Wyshak said Carney knows who the trooper is. In fact his name is on his witness list. He said the trooper wrote the letter to the AUSA anonymously. He lied under oath when asked if he did it. He only admitted it after they discovered it on his computer.

He continued by saying he had no obligation to turn over the unsubstantiated information to Carney but in an abundance of caution showed it to Judge Stearns who issued a protective order on the information putting it under seal.

Judge Casper said perhaps at the time Judge Stearns sealed it the materiality might not have been clear to him. The situation is now different. She wondered if Carney shouldn’t get all the information available. Fred Wyshak responded: it’s not material to the guilt or innocence, it can’t be used to impeach Martorano, and it has nothing to do with promises, rewards or inducements to Martorano since he knew nothing about them. All we have is an unsubstantiated allegation that Martorano is involved in ongoing criminal activity and Carney is not entitled to know the underlying source information.

Wyshak noted it is of great concern to the government to ensure Martorano is not involved in criminal activity. He concluded by saying the government has fulfilled its obligation. He then said Carney really knows all he has to know and had talked with the trooper’s lawyer in court yesterday. That all Carney wants is headlines and delay.

Carney came back saying he’s not on a fishing expedition. This material was known to the government in December 2012 and reports were done in mid-January 2013 and the government did not give them to him until May 17. Wyshak said we only have to give the material under the Rules 21 days prior to trial and he followed the Rules.

Judge Denise Casper appeared bothered by this matter. She said she needed time to digest the reports and the issues. She took it under advisement. Tomorrow we should know more.


30 thoughts on “Late Afternoon Developments: Whitey’s Lawyer J.W. Carney Seeks A Delay In The Opening Statements

  1. Remember in the movie “Kill the Irishman” about the mob in Cleveland; the Mafia brought in a killer from Las Vegas to plant the bomb, so there’d be “deniability.” “Hey, we were all having lunch with John Martorani in his brother Jimma’s restaurant in the Lake Side District of Cleveland;we had nothing to do with the killing of the Irisman John Miller.” and the Cleveland Godfather Michael Coreleone said, “Hey, Tom (the mob lawyer) we got people in the newspapers who we give free Lasagna to who will cover this up for us, don’t we Tom.” And Tom Hagen the Irish mob lawyer who has friends in the FEDS and Ohio STATE POLICE, friends at the top, top echelon friends, says, “Yuh, Mike and Sonny(Sonny’s Mike’s big brother): we got friends in the press, academia, government and we even got the judges’ girlfriends on the payrole” End Quote! I kid thee not! Fiction is stranger than truth.

    1. Bill,

      If the reporters’ quotes of Wyshak are accurate, he clearly vouched to the court for Martorano. Wyshak told Judge Casper ‘Martorano committed no crimes, received no promises, and the allegations are fantasy.’
      Wyshak has gone way out on a limb in the company of Martorano. In other courts this would be a risky play for a prosecutor.
      Time will tell. Unfortunately, that time will probably come years after this trial as it did with Limone, et al.

      1. Patty:

        I’m not sure Wyshak went that far. He said Martorano was told not to commit any crimes. How could he know if he has or not. It’s something he does not want to know.

        1. Matt,

          Hard to quibble with you because you were there and I relied on various reporters, but I’ll quibble anyway.

          David Frank wrote yesterday:

          “Wyshak calls any suggestion that Martorano received promises rewards and inducements a “fantasy”.”

          I don’t see any reasonable interpretation of this statement but Wyshak is stating that the matter asserted is not true. He is not saying he has no knowledge of it. For Wyshak to say the the matter asserted is not true begets the necessary corollary that he knows what is true. In that manner, Wyshak has strolled out on the limb with Martorano, and perhaps Trooper Johnson.

          Furthermore, Alysha Palumbo reported Wyshak said to the judge, “we investigated these allegations, whether Mr. Carney believes it or not. There’s nothing more to give.”

          Done quibbling.


          1. Patty:

            Don’t ever hate to quibble for quibbles are very important in getting at the truth. David Frank is a good guy although not a trial lawyer and he may have picked that up which I missed. You said Wyshak said Martorano committed no crimes. I suggested he didn’t go that far because he could not know one way or the other if he did commit a crime. Wyshak’s argument on promises, rewards and inducements was for me an unsettling type of argument namely that if Lt. Johnson was obstructing investigations against Martorano and Martorano didn’t know about them then it could not import the idea of “promises, etc.” since he didn’t know about them.
            He was not saying Martorano committed no crimes but that if the government was protecting him he did not now it so it had not inducement effect on his actions.

            Wyshak said today the state police were part of the prosecution team. He did say the allegations were investigated and found to have no substance. But as Carney suggests those with an interest in the outcome should not be investigating those that may not have that interest at heart.

        2. Now Laurel Sweet is reporting on that Carney has wagered his credibility with the judge. She quotes Carney as saying if Casper rules his way, “I guarantee we will see things the government will say they do not have.”
          The battle line between Wyshak and Carney has been drawn. Too bad Casper will never let carney get to the bottom of it. She will bail her former colleague Wyshak out of this mess.

          1. Patty:
            What does Laurel Sweet know. Judge Casper said several times to Carney that she understands his fervor and commitment to this issue. That’s hardly wagering his credibility since the judge accepted his outburst as a sincere reaction to her proposed ruling and understood why he would feel that way because of his intense interest in this matter. She cleverly brought the parties together after Wyshak’s blast at Carney and calmed them down.

            Sweet got it wrong when she said Carney erupted when Casper said it doesn’t bear upon your client’s innocence or guilt.” She said that and then went on to discussing how it relates to promises, rewards and inducements but then indicated she found the allegations made by the trooper were untrue. That propelled Carney out of his seat with the shout: “How do you know the allegations are not true?” Casper also indicated she’ll have a decision on Carney’s motion probably at the hearing tomorrow at 8:45 am.

            Don’t underestimate Casper. I can see Wyshak is already frustrated with her. He cannot ever comprehend she is entertaining Carney’s motions and is trying to blow things by her but she like a good goalie is stopping him and is searching for answers. I like what I’ve seen of her so far.

      1. Matt, agreed! Truth is stranger than fiction. I deliberately miswrote the reverse! Why? For no good reason, for lighthearted fun, to dissipate heat, to let the air out of the tire. But George Orwell actually lived in Burma when it was ruled by tyrants, and his “fiction” is less fantasy and farcical and much more real and factual; it’s history projected forward; history repainted on a future canvas. Mankind can imagine Demons and Dragons, but who could have predicted the unspeakable horrors of the Third Reich and Stalin’s gulag archipelago?

        1. William:

          Orwell lived in Burma when it was ruled by the Brits and he was a policeman for the Brits. Orwell got many of his ideas when he was fighting for the communists in the war against Franco in Barcelona. Having been there Orwell was able to predict the unspeakable horrors of Stalinism.
          By the way did you learn anything more about Mr. White from Mr. Upstate New Hampshire over the weekend. Sorry I missed it but I had a long standing promise to Theowizer to do him a favor that took up much time. Plus I had to go to a long scheduled dinner with the Dundalk Demon (speaking of demons) and several others.

  2. Ladies and Gentlemen: We now face Fred Wyshak who says because Martorano, a known liar, told him he wasn’t involved in any criminal activity, therefore we must believe the serial killer and serial liar. Why? Because Mr.Wyshak said he believes him. He believes every word Martorano and Flemmi say, including Flemmi’s statement that John Connolly was supplying the IRA with C4 and when John Connolly was at Edison, he arranged a deal with the Boston Globe so that Boston Edison gave the Globe free electricity and a deal on their electric rate. I’m not making this up. Flemmi has said these things: Flemmi and Martorano are such bold faced liars that they’ve told entirely different stories about the same factual event (two opposite versions) Each are demonstrable, pathologic liars, and Fred Wyshak says, in a nutshell,”Judge; there’s no truth to these allegations Martorano is still involved in criminal activity, because he told me straight to my face he isn’t.” Wyshak is as believable as Dershowitz; they’re cut from the same cloth; mangle words meanings; assassinate characters; perpetuate lies and liars. I wouldn’t trust Wyshak, the FEDS, some in the STATE COps (most state cops I’d trust with my life) nor the federal judiciary nor the state judiciary; I wouldn’t trust them as far as I could throw them. I believe they are flat out deliberately deceiving us, the American people. WANT EVIDENCE OF MARTORANO’S NEXUS WITH CRIMINALS: TAKE SOME CURRENT PICTURES OF WHO HE HAS LUNCH AND DINNER WITH: A CIRCLE OF FELONS. WANT TO INVESTIGATE SOMETHING: FIND OUT HOW MARTORANO GOT A LOCKER IN THE RESERVED LOCKERS AT L-STREET. THERE’S A WAITING LIST THAT STRETCHES FOR DECADES TO GET THOSE LOCKERS AS I UNDERSTAND IT. ALSO, GET WYSHAK’S RECORDS ON HOW THE FEDS HAVE BEEN MONITORING MARTORANO SINCE HIS RELEASE. SEEMS TO ME HE’S ON A VERY, VERY LONG, LOOSE LEASH INDEED. I THOUGHT FELONS WERE PROHIBITED FROM ASSOCIATING WITH OTHER FELONS?

    1. William:

      If Martorano’s only criminal activity is getting a locker in the reserved lockers at L-Street then Carney’s going to have a long row to hoe. Only criminals on parole have restrictions on them, Martorano is not on parole.

  3. Dear Matt,
    Is is possible to contact Carney and inform him of the federal seal?

    1. Afraid:

      I think he knows about it. But write him or Hank Brennan at 20 Park Plz # 1405 Boston, MA 02116. Or call the office number at (617) 338-5566.

  4. Dear Matt,
    Before sealing a public record, a federal judge must determine a good cause for secrecy and must cite a compelling government interest.
    Hiding the truth about the Michael Donahue and Brian Halloran was sealed by a federal judge. The only obvious reason – that information was completely different from Kevin Weeks’ under-oath testimony.
    We live in America – not Russia! Is anything going to be done? Most likely the government get what they want and use Kevin Weeks as a witness against Whitey

    1. Afraid:

      Judge Young is a good judge with much experience. I have a hard time understanding why he sealed the report but I’d have to guess that Carney has it. What I don’t understand is why your brother is not on his witness list.

  5. If this issue is the “fantasy” Wyshak claims then why did he withhold disclosure until the last possible day under the Rules?
    Perhaps Wyshak delayed so the defense would have no time to investigate before trial.
    On the other hand, Wyshak might know there really is nothing to the issue and he led Carney into a trap.
    Either way, Wyshak is clearly taking advantage of a rookie judge and Rules that favor the government to interfere with the defense. That’s dirty pool and lends credence to the defense’s repeated complaints that Wyshak has been playing hide-the-ball with discovery for the past two years.
    Does anyone besides Wyshak really think career criminals like Martorano, Weeks and Née have really found God just because Wyshak immunized them and gave them a new life?

    1. Does anyone know the details of Pat Nee’s deal? Does he even have a formal deal? Flemmi named him as one of the killers of Hallorhan/Donahue. It would seem like he has some sort of deal but I have never heard any reference to one and I don’t think he has ever testified anywhere.

      1. JHG,

        Wyshak and Kelly have also denied that Pat Nee has any deal/immunity/protection. Despite the facts that:
        1. Flemmi IDs Née as the shooter on the waterfront. Weeks lies about that.
        2. Nee played a major role in the McIntyre murder, including burying the body in his cellar.
        3. Nee played a major role in the Barrett murder, including burying the body in his cellar.
        4. Née provided Martorano with the guns for the purpose of killing Roger Wheeler. He cooperated with Tulsa police providing information for their “wanted” posters of Bulger.
        5. Née currently runs the rackets in South Boston and meets with the LCN leaders in the North End.
        6. Née hangs out in a restaurant which is also frequented by Kevin Weeks.
        7. Martorano’s immunity agreement with Wyshak states Martorano doesn’t have to provide evidence against Nee.
        8. Weeks’s agreement appears to also exclude Nee. Ditto for O’Neil, Salemme, the Linskeys, etc.

        Still, Wyshak continues to deny Née has any deal. It’s quite absurd. More absurd is that the media investigates so many aspects of this case, but never the ones Wyshak doesn’t want them to investigate.

        1. Patty

          I agree that the Pat Nee situation is bizarre. He is the only major player not accounted for.

          Besides his book, he has given numerous video interviews in which he states that he was a main player in the criminal activities of what the government chose to call “The Bulger Group”.

          Straight forward conspiracy law, reinforced by the recent US Supreme Court decision in Smith, holds that once a defendant is member of a conspiracy he remains a member and is liable for the acts of the conspiracy even while incarcerated unless he can show he affirmatively withdrew. To me, Nee would be a straightforward prosecution IF anyone was interested (and I guess they are not or he has a secret deal).

          1. JHG,

            More than bizarre, it is steeply ironic and even corrupt that the US Attorneys refuse to prosecute Nee. Nee fits the FBI’s own definitions of serial killer and mass murderer. The US Attorneys have immunized all of Nee’s accomplices and are therefore in possession of overwhelming, direct evidence of Nee’s many homicides.
            John Connolly was prosecuted for protecting known murderers on the street to further investigations. Now Wyshak is doing that same thing with Pat Nee. This appears to be a cyclical phenomenon destined to repeat itself throughout history as long as federal agents with unlimited power are driven to prosecute certain popular targets at any cost. Connolly was ordered to get the Mafia at any cost and by any means. Now the mantra is to “get” Bulger at any cost and by any means. The result is perverse as many more and worse criminals than Connolly or Bulger are released and rewarded and then protected.
            Federal law enforcement in Boston continues to sacrifice the community’s safety by pursuing goals that are selfishly geared towards their career rewards and egos than public safety.
            It’s sad that the media in Boston is not independent enough to step in and investigate a Pat nee or the Martoranos. The media is beholden to the US Attorney’s for daily copy so they fail at their most basic function, to protect the people from government. Note that the Martorano issue broke in court last week, and not one reporter has looked into these serious allegations. Sadly the media also knows not to embarrass the family. Only a single reporter in Las Vegas has printed a story about John Martorano going back to his gangster ways.

            1. Patty:

              Add to that the media’s total indifference to the current crop of criminals running the Boston organized crime scene. And the idea a guy with 20 murdes to his name is walking the streets and the media cares less is in itself something that is remarkable.

          2. JHG,

            A reporter in court today Tweeted what Wyshak told Judge Casper about Pat Nee:


            Before opening statements, Wyshak has made some costly errors. Yesterday he vouched for John Martorano. Today, he asserted an untenable version of the facts relating to Pat Nee that will soon be vigorously disproven by his own witnesses. Wyshak has torpedoed his credibility with the judge. It’s a very good thing he is in a friendly court with a friendly media.


        2. Patty:

          The media doesn’t investigate much at all in this case if it doesn’t somehow implicate Whitey. Nee stares them in the face and they can’t see him.

      2. JHG

        I think the government would say it has no evidence against him because its deal with his associates is that they do not have to testify against him. But it is a strange case since putting together what he said and what Weeks said in relation to the John McIntyre case in their books you could almost indict him on that alone. It really is a big mystery to me and seems that the government’s drive to get Whitey meant that anyone who cooperated with it got a pass.

    2. Patty:
      Interesting is that Carmen Ortiz sat in the courtroom during Wyshak’s argument on not presenting the allegation of the state trooper to Carney. Is that some more pressure on the judge?

  6. so far, sounds like your take on the judge is on the money.

    we are all entitled to a fair shake in court

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