The Massachusetts Criminal Justice: A Look At A Simple Fact Situation Shows Much Is Wrong

Yesterday I stated the criminal justice system in Massachusetts operates as if it is back 70 or so years ago. Imagine going into a hospital today and seeing that it was operating with the devices used back then. Trying to show how hospital’s operated in the Thirties I wanted to see what state the development of anesthesia had reached at that time. I came across an interesting article on anesthesia. Did you know that “[I]n 1898 the Bayer Company introduced heroin as a substitute for morphine. In the early 1900’s the philanthropic Saint James Society in the U.S. mounts a campaign to supply free samples of heroin through the mail to morphine addicts who are trying give up their habits.”  

Just from that I’m sure you get the point that in medicine, dentistry, engineering, and every other field of endeavor things have changed substantially over the last century. That is for most every field except the criminal law field. Other law fields are similarly encumbered but they are beyond this blog. Are we to think that back at the turn of the 20th Century there was nothing we could do to change the way our criminal courts work and they will continue on in perpetuity unchanged?

Here’s how things operate today. Assume my friend Norman K who lives on the South Shore is at the Braintree Mall a couple of weeks before Christmas. He sees a Christmas miracle, a parking spot is opening up close to the front entrance. Coveting it, he patiently waits several minutes while an elderly woman fidgets for a while in her car and manages to extricate her car from the spot. She backs out in such a way that she manages to block the space from Norman.

At that moment coming from the opposite direction is a car being driven by Roger who works in Dedham. Seeing the space, he quickly pulls into it oblivious that Norman has been waiting patiently for it. His mind is on the twenty or so people he still has to get gifts for and he hates to shop so his mood is on the dark side.

Norman jumps out of his car and walks over to Roger as he is getting ready to get out of her car. He tells Roger how he has been waiting. Meanwhile his car is left running in the middle of row blocking others. While Norman and Roger are having words, the other drivers start blowing their horns.

Roger tries to get out of his car but Norman won’t let him. He forces the door into Norman pushing him away but Norman pushes it back. They remain in this one upmanship contest until the cops are drawn by the noise. Unable to quickly settle the situation, they place both men under arrest for disturbing the peace. Peace finally returns to the mall parking lot.

The next day they file complaints against Norman for disturbing the peace and against Roger for disturbing the peace and for assault and battery on Norman when he pushed her door into him.

The men go to court to answer the charges. Neither man has a criminal record.  They will not being going to go to jail under any circumstance. They are interviewed by a probation officer about their ability to pay for a lawyer. Norman says he presently unemployed and hasn’t worked for a while. (His wife is quite well off.) Roger works but would rather spend her money on Christmas gifts than lawyers. He says he can’t afford a lawyer. The probation officer being busy tells the judge that both of the defendants can’t afford a lawyer. They both receive court appointed lawyers by the judge.

Roger’s court appointed lawyer putting all his energy into the case goes to the clerk’s office and seeks to get a complaint of false imprisonment against Norman for holding the door when Roger tried to get out and also for assault and battery with a dangerous weapon when he pushed the door back against him.

Norman’s court appointed lawyer is no slouch.  He wants the assault and battery complaint against Roger upgraded into an assault and battery by means of a dangerous weapon.

Eventually when the smoke clears, everyone recognizes this is a tempest in a tea pot. After the hearings on the requests for the additional complaints and the usual continuances before those hearings, and after the cases with the charges are continued again, and again, and then continued again sometime nine months or so down the road the men are told by the judge to stay out of trouble and their cases will be dismissed in six months.

I belabored the facts here because this is a typical scenario for most cases.  No one seems to ask the question why so much time and energy is spent by the court personnel, why the need for attorneys, and what was accomplished spending all the money on lawyers in this simple matter.

Wouldn’t it have been simpler for the cops to take Norman and Roger from the scene and then release them recognizing that this was an outlier. Why didn’t they settle it? Why did they cause these men and everyone else all this inconvenience?

When I was the Deputy DA in Norfolk County I would meet regularly with the police chiefs. I suggested that things like this be handled at the police level without causing people the inconvenience of going to court or of having to get involved with lawyers.  I was not thinking back then of the other time involved in the use of the court facilities and personnel but mainly the cost and inconvenience the public.

The chiefs said it would never work. They did not want to take the responsibility of making those decisions. They wanted to shift it to the courts. I explained they knew their neighborhood and the people in it and suggested it would be better if they who were closer to the scene made these decisions especially for kids with no records or people who would probably not get in trouble again. They would hear nothing of it.

Some suggested they might be sued for false arrest. I explained they could get a release at that time or if they were sued the charges could be brought at a later time. There would be no liability. I explained our office would back them to the fullest if they made those decisions at the police station level.

Other chiefs thought it would cause a problem with their men.  The men liked the idea of going to court. It meant overtime pay for some of their men.  Some could just show up, have the case continued, and get four hours overtime for less than an hour’s work.  (That is one change made from the turn of the 20th Century.)

I was surprised at being rejected time and again when I offered this solution.  I recognized the change would not come from the level of the police officer, perhaps it could come from the district attorney level, the judges or the legislature. I’ll write about them tomorrow.



8 thoughts on “The Massachusetts Criminal Justice: A Look At A Simple Fact Situation Shows Much Is Wrong

  1. Matt, you are probably right, retrospectively and prospectively,about John Connolly. Retrospectively, though, remember John Connolly was acquitted in Boston of the most “serious offenses” and in Florida he was acquitted of first degree murder and conspiracy, but convicted on a hyper-technicality: his lawyers’ failure to timely raise a statute of limitations’ defense. Remember, too, one juror in Boston repeatedly said he wouldn’t have convicted Connolly of anything if he thought he’d spend one day in jail. Prospectively, John Connolly may have a “what have I got to lose mentality” but I think he would be very reluctant to voluntarily take the witness stand in any court in Massachusetts. He feels as I do that he was framed and railroaded by the DOJ. Why put your hand twice on that hot stove? Why thrice put your freedom in jeopardy?
    As to the wholly irrelevant issue of footnotes, here’s a few authoritative works that lack footnotes: Carl Sandburg’s five volume Abraham Lincoln, the Plains Years and the Civil War Years; historian John Keegan’s Iraq War; historian Paul Johnson’s Heroes. They include source material in the body of the text. It flows better. It’s a matter of style.
    I agree with your views on the legislature and legal system. Both systems should strive to simplify and streamline laws, rules and procedures.

    1. Bill:
      You are absolutely correct when it comes to John Connolly who has been totally demonized, unfairly punished and hopefully forgotten about. The Boson jury found that during his many years as an FBI agent he committed no crimes in relation to any of the murders or extortions. Even without presenting to the jury a proper defense which would have been putting the FBI on trial for setting up his program and condoning his actions and allowing him to believe he had a right to do what he did, the Boston jury acquitted him of all the serious actions only saying he passed on a bribe on one occasion by giving Morris a case of wine with a thousand dollars in it. By the way, Morris testified that the carton of wine was one that had six bottles on the bottom and six on top and the thousand dollars was sitting on the cardboard that separated the two levels. I’m a little fuzzy on this but I don’t think there was evidence Connolly knew the grand was there.
      As you know I believe the Florida case never should have been brought. The FBI was so anxious to get out from the public scrutiny that it gladly gave up Connolly and refused to bring up the issue of the Supremacy Clause doing what I suggest has never been done before in the history of our country allowing a federal agent to be tried by a state court for actions he committed as an agent. Connolly’s problem is his Florida lawyers didn’t see the big picture and still don’t.
      Connolly is in a predicament when it comes to testifying because if Stearns lets the issue go to the jury (unlikely) Whitey will need him as a witness. I can see him being reluctant to do this but according to some articles he is depending on Whitey’s testimony to help him out of his problems.
      You are probably right about footnotes in and of themselves not being necessary but you do need to have an ability to verify what the author speaks about if it is outside of his personal knowledge. His expertise in the area, his prior record relative to what he writes, his background but one has to know that the matter is based on some type of verifiable source rather than street side rumors. I”m reading about Pierre Laval and the Eclipse of France, 1931-1945. He helped run the Vichy Government and was brought to trial for treason in the immediate aftermath of WWII. His trial reminded me of Whitey’s. He was rushed to trial because of political considerations. His jury was considered icy. The judge let the jurors yell when he spoke calling out you deserve twelve bullets, swine, and you’re the trouble maker. A poll of the people showed 78% wanted him executed. It’d be interesting to take a poll of the people about Whitey.

  2. As I said yesterday in a post, Connolly won’t testify. If Connolly said South Boston was in the south of Boston, Wyshak would indict him for perjury. Long ago, Connolly’s lawyers saw that the DOJ was gunnning for him and correctly advised him not to take the witness stand. Wyshak has his cache of perjurers, Flemmi etc., who’d be willing to contradict anything Connolly honestly said.
    On another unrelated point I raised yesterday, I’m presently reading a 450 page history, “The West; An Illustrated History” by Geoffrey C. Ward based on the Ken Burns’ documentary. It doesn’t have one footnote.
    Also, I’m glad to see Campbell acquitted by the Suffolk jury. I hope Cahill gets acquitted of engaging in politics.
    One last unrelated thing about our system of justice; the law is not science. Every legal decision is fraught with uncertainty. Scientific certitude and moral certitude are not provices of the law. The scientific method more reliably nails down “facts” than judges or juries. Even in science, “facts” change. I recently read that the elemental particles called quarks, the building blocks of protons, may be made up of smaller pinpoint particles called “proteons”. The plot thickens.

    1. Billy:
      I don’t believe you can rule out Connolly testifying. He brought up the meeting between Whitey and O’Sullivan in one of his jail house interviews with a guy name English. He may be listed as a witness for the defense. He has nothing to lose. He’s facing another dozen or so years in prison and no judge anywhere no matter what Wyshak does will add to his time.
      Connolly twice went before Judge Wolf and took the Fifth. Maybe his lawyers thought it was smart of him to do so. It turned out they were wrong because he ended up being indicted for RiCO offenses. At his trial he again remained silent in the face of evidence against him. I’ve suggested that was the time for him to take the stand. If he was worried about perjury he shouldn’t have been, the charges he was facing were a lot more severe than that and usually a defendant is not charged with perjury after testifying.
      As to your footnote comment, all I can say is it is difficult verifying the truth of the statement without them.
      I wrote about the Massachusetts justice system. I see the law that Cahill was tried under was enacted in 2009. We’d probably be better off if our legislature met every five years.
      Law may not be science but it doesn’t have to act as if the way it was done 200 years ago is the best way. Science continually evolves and discovers new things. The way our court systems operate have not changed in hundreds of years.

  3. What do you think will happen as far as the immunity claim then ? Only because I thought that the media reported that Carney said it was O’Sullivan that granted ammunity to whitey the magician ? I also recently read ( and I believe that the media never let’s the truth get in the way of a good story ) that the prosecution said last month that whitey’s FBI file doesn’t even mention the deal he claims he made with O’Sullivan. They also stated that he has never even proved that him and O’Sullivan ever met. So if in fact there is no mention of said deal and whitey’s claim collapses, What avenue(s) would or could Carney and whitey pursue at that point ?

    1. Craigmack:
      I personally think Whitey’s immunity claim is totally bogus but has been concocted by Whitey and Connolly because it is Whitey’s only chance ever to see freedom. I saw it coming a long time ago when I read an article by a guy named English (I posted about it) who said Connolly told him that O’Sullivan met with Whitey in a hotel room I think it was in 1978 or 1979. When J.W. Carney notified the court he was going to use this defense he did not identify the AUSA who he claimed gave the immunity. I immediately wrote and said it was going to be O’Sullivan because of what Connolly said to English and because O’Sullivan cut Whitey out of the race fixing indictment.
      What do I think happen will be a quick denial by Judge Stearns who will rule it is not admissible into evidence. He’ll base his ruling not so much on the idea that O’Sullivan never met with Whitey and told him he could murder at will which will require a factual finding but based on the premise that even had O’Sullivan made those promises he had no right to do it. In other words O’Sullivan only has so much powers as an AUSA and he had no right to authorize immunity to a person to murder another. That keeps Stearns from deciding facts and sticking just to the law.
      If Stearns lets the case go to the jury, I think there’s a 50/50 chance J.W. Carney can convince them Whitey had immunity. There’s a lot of things that happened that would give credence to that claim.
      I’m sure there is nothing in Whitey’s file about the immunity claim. But Carney can easily get around that. There is nothing in the file about all the dinners he had with the FBI agents or many other meetings in hotel rooms with agents or the visits to his apartment and drinking beer a day or two after Halloran got gunned down or the exchanging of gifts or many other things. Carney can show this and argue that most of the important things were not put into his file. Whitey, if he testified, can testify that he met with O’Sulivan and as I said earlier Connolly will back him up on that. (It will be interesting to see if Connolly is willing to testify. He likes to say things outside of court but has avoided taking the stand.)
      My best guess is Stearns takes the claim away from Whitey and J.W. Carney will have no chance to prove it happened. I hope I’m wrong. (I haven’t read any of the law on this. I haven’t seen the legal brief of the government. But I have to figure that is what must be going on.) I hope I answered your question. It is right on point as to what matters now.

  4. I may have missed it but how come nobody is upset about the fact that a District Attorney could possibly have so much power that they could grant immunity to a citizen for unspecified crimes? I would think that such powers do not exist. How could J. O’Sullivan possibly have had the power to allow Bulger to commit any crimes? If the Governor committed such crimes, they would be prosecuted. So how could any person grant immunity to another for crimes? The only thing that I’m aware of that approaches this is the Presidential pardon.

    1. Brian:
      The concept behind immunity is the government is bound by any deals it makes. The courts have said if the U.S. Attorney General or one of his lawyers in the justice department makes a deal with a person the government cannot go back on it. In Whitey’s case the U.S. Attorney has made a deal with Murderman Martorano that he does not have to give evidence against his brother Jimmy; it has made a deal with Brutalman Weeks that he has to only testify against four people. It knows that Murderman can probably implicate his brother in some criminal acts and Weeks can implicate some others like Pat Nee. Those deals in effect give immunity to others.
      In Whitey’s situation if O’Sullivan said to Whitey, “you inform for us and we’ll not prosecute you for any murders you may have committed and may commit in the future” then he is arguing that the government is stuck with that deal. Whitey performed on his end; the government must be held to the bargain on the other end.
      Prosecuting attorneys have enormous powers – they decide whether to prosecute a case or not. If they make a decision not to prosecute, the case won’t happen.
      Some have argued that during the Bush administration crimes were committed when it authorized the use of torture. Obama said we would not look back to see if there were criminal acts by high administration figures for obvious reasons, such actions would be detrimental to the country.
      There are lots of people who are committing crimes today who are FBI informants who like Whitey are being protected by the FBI. A guy named Berkowitz ran a booking operation for 25 or so years and pretty much corrupted the city of Chelsea under the FBI’s umbrella of protection. O’Sullivan had evidence Whitey and Stevie were involved in fixing races and decided to give them a pass.
      The presidential pardon is as you point out another powerful tool but that is used in cases where there was no prior deal with the government about a person’s right to commit crimes.
      I don’t think O’Sullivan gave Whitey any such immunity but in theory he could have done that and arguably that would bind the government. On the other hand, the Justice Department will argue, as you suggest, that such a deal violates public policy and even if O’Sullivan said such a thing to Whitey he had no right or power to do this so Whitey cannot rely on something which a person had no right to offer.
      As far as you thinking no one is upset, I can tell you the prosecution team is very upset and has called the claim of immunity absurd.

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