The New Federal Standard of Punishing People for Exercising Their Constitutional Rights

At the National Gallery in Washington, DC, which I visited many, many years ago they had a display of American Naïve Paintings.  One, The Cat, seemed particularly important to me for the message it was telling me. I went to the Gallery’s gift shop and found that it was selling that painting on a poster. The price was beyond what I usually could afford to spend but I had to have it. It has looked down at me from the wall of my office ever since.

In the 1991 book describing the painting The Cat on page 444 it suggested there may be a connection between The Cat and Aesop’s Fable’s tale of “The Cat and the Cock.” I usually defer to experts in other areas when they make such suggestions. But it this case I have to suggest the expert was way off base. The meaning of The Cat is absolutely clear, at least to me. It’s an absolutely perfect rendering of the old saw “A Bird in the Hand is Worth Two in the Bush.” Like many old saws its origin is obscure. The expression was found in a reference book in 1670.

My reason for keeping it was to remind me that I should be satisfied with what I already had achieved in whatever investigation or case I was working on. It was particularly useful when dealing with criminals we’d developed a case against. Many were then willing to turn on their buddies. As a prosecutor, I found the cops were always ready to go on and on chasing someone else, even what appeared to be pots of gold at the base of rainbows.

I don’t intend that as a criticism. The chase was always the more exciting part of the job. Once the quarry was cornered and captured the exhilaration of the moment quickly passed and we again wanted to test our wits against another gang of hoodlums. It was tempting to go along on the hunt but The Cat would remind me to look at what I had and consider what I had to give up to move on to another target.

For you see, the birds we had in our hands always wanted something in exchange for their information. Some wanted freedom, others a lesser amount of time in the cage, or even a better type cage. Once you made the deal with the bird you were stuck. You had to hope the next bird would have more meat on it than the one you let get away.

I saw The Cat staring at me today. Over that last couple of days I wrote about Catherine Greig. The feds capture two types of birds; those that squawk in return for something and those who hold their tongue. The feds main mode of investigating certain kinds of cases is give those who chirp away some type of extra feed in exchange for some other bird. It’s not the best way to build a case because the birds they are dealing are motivated to lie to help themselves but it’s a traditional, easy, time approved and recognized way of doing business: paying some birds for their testimony.

Greig didn’t want any extra feed. She didn’t utter a peep. That’s fine. We have amendments to our Constitution which set out our rights against the government. One says, “nor shall [any person] be compelled in any criminal case to be a witness against himself.” 

Grieg exercised her right to remain silent. Having done this, she should be sentenced to prison for what any person similarly situated who committed a similar offense would receive. Unfortunately, the federal prosecutors and judges don’t do that. There is now a movement afoot as shown in her case where they combine together to come up with reasons to punish people who don’t talk. These are the sentence enhancements we’ve seen applied to Greig: increasing the base points (additional points add on years to serve in prison) over the normal recommendation, adding two points for obstruction of justice because she misstated her assets and two more for living with a guy with a gun fetish. A several years upward adjustment to her sentence really imposed for her silence although disguised by legal mumbo jumbo.

We’ve become such a nation of incarcerators where adding extra years to a person’s sentence seems no more significant than an extra dash of salt to a recipe. Federal prosecutors and judges coerce defendants into surrendering their Constitution right by threatening to add punishment to them if they don’t. In State v. Strayhand (don’t you love that last name) when cops threatened Strayhand with enhanced punishment if he didn’t confess, his confession was deemed coerced and involuntary.

Yesterday, a comment by Patty set this out in greater and more compelling detail. I urge you to read it. It speaks of Antigone’s dilemma and tells about the prosecutor’s actions toward a Congressman’s wife (no attempt to coerce there) whose crimes were much more serious than Greig’s.

10 thoughts on “The New Federal Standard of Punishing People for Exercising Their Constitutional Rights

  1. the number 1 man in new england history as far as crime goes would be raymond patriarca . however since he died in 1984 his life and crime is not as well remembered as whitey and his high profile exploits. perhaps the author will do a post on his life at some point. after all the boston mafia operated under him at a cost to them of i believe 100,000 dollars a month. steve flemmi had a longtime relationship with raymond patriarca and i would be very interested to read the authors perception of this very quiet and opwerful historic crime figure.

    1. Doug:
      I was always surprised the Boston Mafia was controlled out of Rhode Island under the leadership of Raymond Patriarca who operated out of Federal Hill in Providence. Patriarca was given most of New England by the Commission out of New York City so he was entitled to a certain percentage of the proceeds out of Boston. I know very little about him or his life.
      The law firm I was with in Boston represented the Anguilos and Larry Baione and I would see them at the firm from time to time but had no contact with them other than nodding at or to them. They didn’t like Irish lawyers and resented that one of the two partners in the law firm was Irish but because the other one was Italian and probably the top criminal defense lawyer in the city at the time they put up with it and dealt with him. There’s a story that they had to pay a fairly large retainer in cash to the law firm. They did this and they knew that the two partners would split the money. They paid the fee on a Friday. The Irish partner went to Nantucket for the weekend as he did every weekend in the summer. When he came back the next Monday after the Mafia had paid the cash retainer, he found that his house had been broken into by professionals B&E guys (the wall paper behind the pictures was slashed with a razon) who were apparently looking for his share of the cash.

  2. although accounts do say whitey got out of the car and sprayed Halloran on the ground, Carney should be able to subpoena this guy in able to find out who this “Mystery Man” in the back seat is, which anyone who follows this trial closely already knows the answer too. That would bring real heat to the D.O.J. if they are really still protecting “the guy in the back seat”

    1. Jim:
      You’re right it will bring heat on the DOJ because they clearly are protecting that person who many believe to be Patrick Nee who is now running the rackets in South Boston. We’ve seen how the feds like to protect their people. This is a big test to their integrity but since they’ve known all this from the time of the shooting and since they’ve already let Weeks testify that the guy in the back seat wore a ski mask I guess we already know they received a flunking grade on that test.

  3. By the account of that new witness to the halloran hit, it sounds as if “the guy with black hair in the backseat” actually fired the bullets that killed Donahue, is there anyway that mystery witness on the news could be subpoena’d?

      1. Jim:
        From what I understand of the killing of Halloran and Donohue, both Whitey and the guy in the back seat were firing automatic weapons at both the driver and the passenger. They did it initially and then swung the car around to do it again. Halloran got out of the car and both kept shooting at him. Apparently during the first volley Donohue was immediately killed and the car moved forward for a bit. Both the driver, said to be Whitey, and the guy in back fired at both men.

    1. Jim:

      The new witness is known to the cops and I assume to defense counsel. I’m sure there are other witnesses also who saw the person in the back seat had no ski mask on. He can be subpoenaed to testify. The prosecutors don’t want to do it because it will make Weeks look like a liar which he is. I don’t know what defense counsel’s strategy is going to be If Whitey is going to deny he shot Halloran and Donohue, he won’t want to bring him in to testify because he might identify Whitey as one of the shooters even though he will show Weeks is a liar. if Whitey will admit it, then they may want to bring him in. Judge Stearns may say defense can’t do it but that’s another question.
      Thanks for the comment.

  4. Patty has pointed out the two big lies being propagated by the Feds and the Media. First that Whitey is the biggest criminal in New England history and second that Connolly was responsible for all law enforcement misdeeds. These are both patent falsehoods. 2. It’s important for people to know how stupid or crooked the Federal Judges in Boston are when they adopt the claim that Brian Halloran was killed because of a “LEAK”. Halloran was an organized crime killer with a reputation for being sadistic and vicious. He was arrested for killing Pappas and charged with first degree murder. The D. A. had many witnesses and a slam dunk case. He had zero prospect of getting bail. However the State Police intervened on his behalf. Halloran had a relative on the State Police ( either a brother or a cousin). They secured his release and he then went to the Feds with a proposal of co operation. D. A. Mundy wouldn’t have agreed to his release unless a deal was in place. Everyone in the courthouse and throughout the city knew ne was a co operating witness. No one leaked his informant’s status. It seems probable that the Castucci and Callahan killings were completely unrelated to leaks.3. You point out in an appendix to your interesting book (almost finished reading it) that att. Silvergate speculated that the Feds wanted to convict Connors, give him a long sentence and force him to testify against Regan and Delahunt thus framing two innocent men. While that was mere conjecture by Silvergate it is exactly what happened to to Connolly. Instead of using the vile Sperrazza against local authorities the Feds used the vile Martorano, Salemme andFlemmi to frame Connolly. What does it say about the judgement of the DEA and Srate Police to release seven serial killers to frame an innocent cop? 4. What does it say about the character of the members the Mass. Congressional delegation? In that 2002 hearing they hauled Bill Bulger before them and treated him like a criminal defendant. He knew as much about FBI misconduct and organized crime as Madonna. All the Mass. delegates at one time lobbied him for pay raises , pension adjustments or redistricting benefits. Sam Giancanna the head of the Chicago Mafia was treated better by Congress when he appeared back in the 50s. The Congress creates, funds and has oversight responsibilities for the FBI. They can eliminate the Top Echelon informant program or expand it. Your idea to record all FBI interviews is a good one. The more one looks at the last twenty years the nore one sees politics at every turn.

    1. Neal:

      1. I disagree with your first point. Who was a bigger criminal than Whitey? No one in the history of our area outside a couple of anarchists in the 1930s have received as much attention for his life of crime than Whitey. When something happens to him it is a national story. Who else from this area was on the top of the FBI’s most wanted list for so long. I agree that Connolly was not solely responsible for the FBI’s misdeeds, he had a lot of agents abetting him.

      2. Halloran may have been killed for the leak. We know Whitey killed him. We know a short time before Whitey killed him he began to provide incriminatory information to the FBI about Whitey. Others may have wanted to kill him but Whitey did it. Whitey had no interest in doing this until he learned Halloran was giving the FBI information about him. Morris said he leaked his informant status to Connolly who told Whitey. Castucci’s murder had nothing to do with leaks. He was killed because the Winter Hill thugs wanted to rip off the NY wise guys for $150,000 or so. Callahan had to die because he knew too much. No one had to tell anyone of the guys who dealt with him that he was a weak link.

      3. Your absolutely right that it is an old fed trick to target someone, let’s say Mr Knucklehead, and then find someone else that it can extort evidence from, let’s say Mr Badeyes. They jam up Badeyes and tell him unless he jams up Knucklehead he’ll do some heavy numbers. Badeyes might like Knucklehead but when it comes to doing a heavy bit he’d rather Knucklehead do it than him. However, I have to disagree that using Martorano, Weeks and Flemmi against Whitey fits that bill. As far as Connolly is concerned, he became a buddy of Weeks and Flemmi after he left the FBI. If you’re going to hang around with those people, and if you are aware that the FBI likes to do the switcheroo having worked it yourself, it seems to me you assumed the risk that they would turn on you.

      4. What it says about Congress is that its members run like a pack of wild dogs chasing after anyone who is wounded especially if there is a television camera near by. Congress started investigating the FBI and wound up investigating Billy Bulger. The reason is simple and two fold. First by going after Billy they got a lot of press coverage unlike what they had been receiving going after the FBI, and second, the FBI is a hard target to go after whereas Billy was easy. I agree that the MA Congressional delegation did not do credit to itself for what it did in that incident. Congress has as much interest in taking on the FBI’s nonsensical Top Echelon Program as you do in the Japanese Kabuki Theater.

      Thanks for you kind words about my book.

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