Yesterday I said Judge Stearns got a little ahead of himself in declaring Whitey’s claim of immunity for murders to be committed in futuro will not be considered. I suggested he should not have done that without figuring out what it was that Whitey is claiming. I should have mentioned he has left the door open for Whitey to tell us about his deal
Judge Stearns pointed out he was confronted with “the paucity of information provided by defendant regarding his purported claim of immunity.” Reading the judge’s memorandum it is clear he is trying to figure out what exactly is claimed by Whitey whose lawyer J.W. Carney is saying to the judge “wait until trial and we’ll let you know.” Stearns says he won’t be doing his job if he does that. He says if Whitey has immunity then there will be no need for a trial; on the other hand if he doesn’t have it then a jury can’t say he does. It is up to a judge to decide this issue beforehand.
What Judge Stearns has decided is if Whitey claims AUSA Jeremiah O’Sullivan gave him prospective immunity to murder someone then that in and off itself will not stand because O’Sullivan had no power to do this. In a footnote he said: “it strains credulity to suggest that an Assistant United States Attorney would have had the authority decades ago to authorize the murder of American citizens, on American soil, for reasons wholly unrelated to national security concerns.” I suggest what the good judge is suggesting is that back at the time O’Sullivan is purported to have made his deal with Whitey things in America were different.
They really weren’t. The debate over the existence of kill lists is happening today because we are doing our killings more openly with drones. In prior days, we were more subtle about them. Subsequent to WWII we had a policy to use the CIA to assassinate people. In 1976 President Ford had to enter a secret executive order (Executive Order 11905) barring this practice. It does not appear the passage of time is relevant to the issue.
Decades ago or today, Judge Stearns is absolutely correct suggesting that if the power to kill exists at all it resides in the president and no one else and only with respect to the security of our nation. Unless the president puts his seal on any planned killing, such as he does on today’s kill list or the past CIA targets, no one else in the executive can authorize any person to kill another. Our troops do not go off on combat missions without the approval of our president. There is absolutely no way that Jeremiah O’Sullivan would have thought he had a similar authority. Obviously he never would have suggested to Whitey that he could go forth and commit murder.
The problem we have is we don’t know what Whitey was going to tell us. It’d be nice to know. There are some things O’Sullivan could authorize. Judge Stearns noted as much.
In his final footnote he said he really didn’t know if Whitey’s claim is “one of entrapment by estoppel (or public authority)” rather than one of immunity. If it is either of these, he notes they “are affirmative defenses to be tried by a jury.” But to do this Whitey has to give “appropriate notice of the defense to the government” and the court will determine if Whitey “has a cognizable and colorable basis for asserting it.” In other words, it’s time for Whitey to put up or shut up.
Which leads me to the real problem Whitey has. After upwards of ten books and five or more court decisions telling us of the murders he has done, there are few people who have heard of him who don’t believe he had committed some murders. Anytime Whitey will enter a courtroom there will be a presumption of guilt. Actually, it will be beyond that, there will be a substantial belief in his guilt.
Cloaked with that belief, if Whitey testified, as he now has to do before a judge, of a deal he had with Jeremiah O’Sullivan, a man who most believe served honorably as an assistant US attorney for many years, wherein he says O’Sullivan authorized him to murder people the judge will have great difficulty suppressing a smile indicating her disbelief. No judge would ever get to the point of trying to decide if the deal involved permission to murder people. No judge would believe the conversation ever happened.
Whitey’s only hope was that somehow a naive jury would believe such a preposterous event actually happened. That hope is gone. Judge Stearns said the issue must be decided by a judge noting she has an obligation to prevent “the potential for jury confusion and distraction” which after all this immunity assertion is.
Time is running short. There are few options left to Whitey. One is to testify about his immunity agreement and be subject to the government’s cross-examination. That’s no real choice because he can’t win and he’ll be giving the prosecutors the chance to bat him around before trial. He’s got to recognize he’ll soon be living in the same big house as former FBI Agent Robert Hanssen if his health holds out.