The twitter of @davidfrankmlw is quite busy. He’s dealing with the friends of Tsarnaev who are charged as accessories, also covering the Hernandez matters and then the O’Brien probation case. The latter case is the one I am interested in. If you want to find out what’s going on in those cases, you can’t go wrong following Dave Frank.
So far it seems there have been only two witnesses in the O’Brien case, both lawyers and both called unindicted co-conspirators. Neither one knew he had been labeled as such. Both a little bothered that the prosecutor thinks they had committed criminal acts.
Judge William Young is sitting at the O’Brien trial. He’s an old egg who brooks no nonsense. When you are before him it is time to be on your toes and to know the ins and outs of evidence. Young is highly skilled in that area having written and taught it and keeps all the lawyers under tight fetters.
You may recall during the Whitey trial I commented on how much the prosecutor Wyshak seemed to be unable to ask a proper question on direct examination resorting to leading questions. In my book Don’t Embarrass The Family I noted back then that during the trial of John Connolly the prosecutor Durham also seemed to be unable to present the witness without the leading questions. It amazed me because when I prosecuted if I went near a leading question with my witnesses the defense counsel would be all over me.
A leading question is one in which the witness pretty much adopts the prosecutors question with a yes or no answer rather than telling the story in her own words. An example would be: “Isn’t it so Mary that after you finished your fried clams at Kelly’s you went to Butch’s home and saw him standing there over the body of Sally with a gun in his hand?” A proper question would be: “Tell us what happened after you left Kelly’s?”
In Connolly’s trial I was totally taken back at the way Durham proceeded. Judge Tauro, as skilled and hardened as Judge Young, let him continue on. The reason for that is the lawyer for Connolly did not object. You see you can ask leading questions of your witness if the other side does not object.
I mentioned during Whitey’s case that Wyshak seemed to have become what we called in the Marines “salty.” He’d take over the courtroom and act as if he set the rules and no one else. That worked fairly well in front of Judge Denise Casper who although good is still feeling her way along as a judge. I didn’t think his act would play well in front of Judge Young.
Reading the tweets from Dave Frank I see that it isn’t. He tweets: “a lawyer should never lead a witness on direct before Judge Young. If the lawyer does, expect a scolding in front of jury.” I’d have expected everyone to know that. But Judge Young apparently had to say to Wyshak: “You know what leading is. It’s a question that’s forbidden by the evidence. Suggesting the answer is improper. Do not do it.” Frank went on to note: “Judge in Obrien probation dept trial has granted dozens of objections to AUSA Wyshak’s questions on grounds that they are leading.”
In this trial both Judge Young and the jurors can ask questions. Judge Young reminded the jurors: “Judge Young: Keep your eye on the ball. It’s not about whether a manual was followed or not. Its about whether there was mail fraud.” Frank went on to tweet: “Sounds like a juror had a q about a particular hire in Obrien. Judge says he wont allow it bc its uncharged conduct” Then Frank noted: “Judge Young tells jurors that their job will not require them to decide who was the best candidate for a job in probation dept.”
Now that surprised me. The indictments charges mail fraud because the most qualified candidate for the job was not hired. Here’s the language from the indictment: “that the defendants and their co-conspirators did award employment and promotions to individuals who were solicited from and sponsored by members of the state legislature and others when those sponsored individuals were not the most qualified candidates who had applied for the employment or promotion. In so doing, the defendants obtained money and property, to wit, jobs and salaries for individuals who were not the most qualified candidates, but who had the sponsorship of a member of the state legislature or some other individual of significance to members of the enterprise.” (my emphasis)
Even though Wyshak said the case isn’t about patronage, there’s no doubt that’s what it is all about. In following what Judge Young says and reading the indictment, it seems to me that the case is all over for the prosecutors. Judge Young might just direct a verdict of not guilty.
A couple of sidelights. Chris Bulger the former lawyer for the probation department was in court. Prosecutor Wyshak could not resist pointing him out to the jury. Wyshak loathes and is obsessed with the Bulgers so much he believes that pointing out Chris helps his case. It’s strange but there is no reason why he would do it if that were not the case. I wonder how many times he will mention the name Bulger during the case?
Aside from that, what motivated Chris Bulger to go to the courtroom to let Wyshak throw his name into the case? There’s little he can do to help the defendants by showing up in court. I’d have thought he’d have stayed a million miles away.