I’m off in the press overflow room. It gives me a better view of the proceedings than I would get if I was sitting up the back of the courtroom. Today the day ended about 12:15. Tomorrow morning at 8:45 the lawyers will get together with the judge to go over a few preliminaries and about 9:00 Judge Denise Casper will give the sitting 18 jurors some preliminary instructions reminding them that the opening statements by counsel are not evidence, that Whitey is presumed innocent, that they are not to talk about the case until it is given to them for deliberation and the like.
Then the prosecution will make its opening; the defense may or may not make the opening. The openings are often called roadmaps. It is to give the jury an overview of the case so that as the evidence comes in it can relate it to the bigger picture. It is usually a less dramatic and matter of fact presentation than one will hear at the closing of the case when the attorneys sum up the evidence and give their spin on it. However I’m not sure anything in this case will follow the usual way things happen so take much of what I say will happen with a grain of salt.
Today the day started with a discussion over the jurors. The long and short of it was that the prosecutors and defense counsel having had plenty of time since Monday to look at the jurors and having eliminated those they had a reason to eliminate were left with 18 they could agree upon. They were quickly sworn it at 11:05 this morning. I can’t tell you the composition of it which may be available to you other places but when I have a chance to get into the actual court room I will give you my overview of it and tell you what I think.
Jury selection is pretty boring business except to the person who is on trial and the lawyers. As I’ve indicated before it is pretty much a guessing game and both side with experienced lawyers are fully capable of guessing as well as anyone else. I didn’t expect much to come out it for blogging purposes. There was the usual case of a person saying they had never been arrested before and a search of the records showed she had been convicted of four separate felonies. Another time a juror explained the charge on his record of open and gross lewdness. His story was that he got up in the middle of the night and was very tired and as he staggered through the dark in search of a bathroom he walked out of his apartment into a public area “buck naked” and a large commotion resulted.
In other words the jury represents a cross-section of America. The prosecution looking for goody two shoes. The defense for those who see the law as an inconvenience. So as you can see we have GK Chesterton’s every man going to sit in judgment. As GK said, when civil society has to do really important things it trusts them to the ordinary Joes and Sues.
The news of the day involved the clash over the Martorano being back in business matter. It was the first time J.W. Carney turned up the volume of his voice. The issue is that a state trooper back in October 2, 2012 sent an anonymous letter to an AUSA alleging that Steve Johnson a lieutenant in the state police who is Martorano’s handler has been impeding investigations into Martorano’s criminal activities. Two days after receiving it the prosecution team turned it over to Judge Stearns. An investigation ensued and in December 2012 a determination was made that the allegation was false and not factual. Judge Stearns then issued a protective order keeping it secret. The prosecution sat on its knowledge of the allegation until May 14 when it informed defense counsel. The prosecution justifies this by saying the Rules do not require that it be turned over until 21 days before trial; but I don’t buy that in a case like this where there has been ongoing extensive discovery and battles over discovery for over a year. So the question is why the delay? Is the prosecution trying to hide something?
Wyshak says the troopers allegation has been investigated and it was found that there is nothing to it. Carney says we don’t even know what was investigated so we’re being asked to accept that conclusion without knowing what was alleged. Carney noted if a person got out of Bridgewater after many years and made the allegation he’d believe there was nothing to it; but here is a trooper of unblemished reputation, supported by his union which backed the trooper and called Wyshak’s statements about the trooper were wrong, who spent 15 years investigating organized crime activities making the allegations. He said he can’t even learn what they are.
Judge Casper was reciting why she tended to lean to not disclosing what the allegations were because the report of the trooper was untrue. Carney propelled himself out of his seat and angrily responded: “How do you know the allegation is not true?” He went on to say it was in the interest of the prosecution to make it not true so the trooper who made it was “crushed like a bug” and the prosecution doesn’t want the truth to come out. He went on to say if it was so false why is the prosecution hiding it. He called it a cover-up by the prosecution. He said “why not let us see the documents”and went on to say this is what the prosecution has been hiding for 25 years and to cover up they say this trooper with a distinguished record has gone off the deep end.
Wyshak weighed in at the end. He said Carney had impugned the integrity of the prosecutors. He said Carney does not want to follow 200 years of rules and regulations and conjures up theories and then wants the prosecutor to knock them down. He called what Carney was doing “inappropriate and dishonorable.” He says he has been routinely leaving the courthouse and addressing the reporters outside complaining about the government’s actions which he said was inappropriate.
Wyshak then said “I hope this conduct [by Carney] does not continue.” I’m told Carney responded, “It will.” I didn’t hear it because Judge Casper had stepped in to separate the combatants. After a sidebar she said now that everyone has “taken a deep breath” we’ll get together tomorrow.