Over two years ago Judge Mark Wolf came down with the holding in the case involving Robert Kosilek who was convicted in 1990 of murdering his wife. He changed her name in 1993 to Michelle Kosilek. Wolf ruled that she was entitled to a sex change operation also known as a sex-reassignment surgery that had to be paid for by the Commonwealth of Massachusetts. He based his ruling on the 8th Amendment suggesting it was cruel and unusual punishment for her to be denied that procedure.
I wrote at the time that his order will probably not stand up. I noted how Judge Wolf was the one who held the hearings where Steve Flemmi outed himself as an FBI informant. Flemmi said he could not be charged with the criminal acts because FBI agent Connolly had given him immunity to do them. Judge Wolf bought the argument. He planned to have further hearings to decide if not only Flemmi but also all his criminal friends like John Martorano and Frank Salemme were also entitled to walk free.
The prosecutors appealed to the First Circuit Court of Appeals (Appeals Court). In their argument they suggested Flemmi was a liar and not entitled to be believed. Later, they would use him as their own witness in two cases.
The Appeals Court caught Judge Wolf up short by telling him he was wrong in his findings and rulings. It said an FBI agent had no power to grant immunity to anyone. The court said only a U.S. attorney or an assistant could do that.
That decision was known to Whitey at the time of his arrest. Whitey probably had been planning to use the same get out of jail card that Flemmi thought would work for him. After the Appeals Court decision he knew that was off the table. Working through his attorneys he decided to dump the Connolly excuse. He averred that unlike his partner Flemmi he had made a secret deal with an assistant U.S. attorney named O’Sullivan. He apparently forgot to tell his good friend and partner Flemmi about it.
I pointed out in my prior post that Wolf has a penchant for making errors. I said: “If history is a judge, Kosilek should hold off a little on his plans. Wolf has been dreadfully wrong before trying to twist the facts into his sought after conclusion. He may be again about how far the Eighth Amendment reaches.”
Judge Wolf likes to write long opinions. In the Kosilek case it went on for 129 pages to justify his ordering the medical procedure. In the Flemmi hearings his opinion went on for over 650 pages. His opinion in the Flemmi matter I suggest is rife with factual errors yet it has been the foundation for all the misinformation that has followed in the many judicial opinions, books and articles that have been written about the Whitey saga.
We have now learned that the Appeals Court has come down with the decision on the Kosilek’s appeal. As I predicted it overturned Wolf’s ruling. It found Kosilek has no 8th Amendment right to such a procedure.
From the news reports I read the court of appeals was also concerned with what would happen if he got the procedure. I wrote back then in my post: “If his decision is upheld, Judge Wolf will next have to decide whether it is cruel and unusual punishment for the Commonwealth to keep Michelle locked up as the only woman in an all male prison.” The Appeals Court said such a ruling “gave rise to new concerns related to safety and prison security,” if Kosilek would need to be transferred to the state’s women’s prison in Framingham.”
Kosilek is back to square one. His attorneys who represented him who handed in a bill of $724,000 which Judge Wolf ordered the Commonwealth to pay will have to wait a little longer for their money. (These pro-bono attorneys who win suits like this just like the ones in the Boston busing case submit bills for their hours and expenses. This gives them an incentive to find people whose rights they allege are violated.)
Kosilek’s wife was Cheryl McCaul. Her niece said: “she’s glad the court finally stopped the “stupidity.” . . . He nearly decapitated her, . . . “ Kosilek in an interview said that he “came to prison for taking a life in a tragically accidental situation ” It certainly was an unusual accident. McCaul was found strangled with a rope and a wire around her neck.
I’m sure this won’t be the end of this. It should be. Kosilek, though, seems determined to get over to the women’s prison.
Maybe he should try with the Massachusetts Supreme Judicial Court (SJC). Article XXVI of the Commonwealth’s Bill of Rights states: “No magistrate or court of law shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or unusual punishments.” (my emphasis) It wouldn’t be the first time the SJC found we had greater rights under the Commonwealth’s Bill of Rights than under the U.S. Constitution.