Thinking Back on Whitey’s Trial:

IMGP1193-1Ever mindful of keeping sources open, the Boston media seems to see things a certain way that hardly measures up to the reality of a situation.

I wrote a while ago that prosecutors are not good at cross-examination. Not all of them, of course, but many. I said that not because they couldn’t be, it’s just that they don’t get to practice the art as much as a defense lawyer.

Take this case, there were many prosecution witnesses and few defense witnesses. While defense attorneys had plenty of witnesses to work on, the prosecutors had few. You don’t become good at doing things in a trial session unless you can practice the art of doing it. The prosecutors are not lesser trial lawyers, it’s just that not having the practice they aren’t much good at cross-examination.

I believed that throughout my career. In this case where we were supposed to see the prosecution A team I can tell you in my opinion it was not particularly effective in its cross-examination.

The most notorious example was when Prosecutor Wyshak took on Title Examiner Heather Hoffman. He walked into every trap possible because he didn’t realize this slightly built woman was a skilled expert in her field. She knew ten times more that Wyshak would ever know about what is contained in the records of the registries of deeds.

He’d ask her questions and say isn’t that correct and she’d say “no” or “not necessarily so”. He’d set out a convoluted hypothetical question and then suggest the answer was such and such and invariable she’d disagree with him. She had him wrapped around her finger so much that Whitey and some of the jurors were smiling at his frustration. He knew she was beating up on him so his only response was to raise his voice the more frustrated he became.

I pointed out the times when Prosecutor Kelly asked a question not knowing the answer and walked into a right hook getting the  answers he did not want. In a couple of instances he added to the strength of the defense counsel’s assertions contrary to his intent. He wasn’t particularly effective especially when he was cross-examining FBI witnesses who appeared very candid and knowledgeable, had experience testifying, and were comfortable in their clothing because they were telling the truth as they knew it. I couldn’t figure out his purpose in even doing a cross-examination on them.

I did notice that the prosecutors on cross-examination had a common theme to the way they asked witnesses questions. They appeared to think that the essence of cross-examination is to be cross. They’d try to express their disdain that someone would dare testify against them, the United States.

Then they had another cute trick. It was predicated on the idea that the jury box was filled with 12 dummies. They’d end their cross-examination with a flourish of saying, “do you know that Whitey was the partner of Flemmi.” There had been so much evidence introduce showing Whitey and Flemmi were partners that even the chairs in the courtroom knew it.

Given what we saw in this case, I’d guess that Whitey sitting where he was could not have helped measure up the prosecution’s ability to cross-examine. I’d have to say that he could not have been highly impressed. I suggest that because I don’t agree with those who assert he was afraid to testify because of fear of being cross-examined.

Kevin Cullen of the Boston Globe wrote: “Whitey didn’t want to subject himself to cross-examination, when prosecutors Fred Wyshak, Brian Kelly, and Zach Hafer would have had him for breakfast.”  I’d have to guess Cullen was sleeping during the prosecutors cross-examination in this case or else he just had no idea what a good cross-examination involved.

I suppose it is harmless but it goes along with the attitude of the Globe to the federal prosecutors that they do all things right. They’d never want to do anything that would interrupt the source of inside information from the federal grand juries and other investigations.

9 thoughts on “Thinking Back on Whitey’s Trial:

  1. Where is Congress?

    Is every member crippled by fear for the safety of their families?
    They are the civilians with subpoena power.

    They have the power to declare war.
    At least that’s what we teach the kids.

    Checks and balances.
    It may sound quaint, but we still teach that faithfully.

    Where is Congress?

    1. Firefly:

      Congress is afraid to take on the FBI. At least one chairman in the House is a former FBI agent. The FBI has a HUGE presence on Capitol Hill. There is no will to take it on, especially now because the FBI will point the finger at them and say they are interfering with the War on Terror. Keep in mind how the last Congressional committee that set out to investigate the FBI ended up investigating Billy Bulger. Swinging over to him got the monkey off their back.

    2. Firefly- Still on vacation with all the millions they have, I was doing some research about how many politicians are lawyers and how much wealth they have. It is so so many of them. They are out of touch with realizing that it’s now only rich and poor, no middle class. There is no buffer between the two and that’s when the political violence usually occurs.

  2. Matt,

    I tend to believe that when Whitey’s defense, immunity, was tossed out of the trial everything shifted.
    We bought and paid for everything but were not allowed to hear what happened.
    What we did hear was the best defense that could be put on given the fact that Whitey’s best defense had been thrown out.

    As I am reading Triple Cross by Peter Lance, I am overwhelmed by the fact that the court cases of those who attacked the World Trade Center and planned to attack a lot more, those cases were structured by the US Attorney’s office to leave out anything embarrassing to the FBI and the Attorneys.

    Therefore, the most damaging spy from Egypt who

    *had joined our army

    *worked in a special forces unit at Fort Bragg

    *stole classified documents and maps

    *traveled freely to meet with many horrible people

    *became a US citizen marrying a woman who still thinks he’s great

    *was assigned an FBI agent who didn’t keep track of him and even vouched for him when the Mounties in Canada caught him trying to smuggle another horrible person in

    He was available to testify – someone finally caught him – but he never testified.


    Because the trial was structured to keep us from knowing what happened. It was too embarrassing to admit that they had let the lions run free.

    Whitey’s case has woken up Boston to the way the trial was structured to handle the embarrassment of Whitey.

    We parents of Boston are following the US Attorney’s office. No amateurs please.

    Whitey’s tale will come out.

    And what happened to Boston will be told.

    1. Firefly:

      If we were on the level we would not have put up with the FBI as it is presently structured. Where have you seen analogous situations that we now have in America where those in power fear its police force? I can only think of the Soviet states and their puppet allies and dictatorships.

      1. Jan,
        I know I’m sort of laughable, but I’m just trying to figure out what is going on.
        I don’t want to be a bother.
        If there’s room for a regular person to try and help out, then here I am:)

  3. When I think about Whitey Bulger down here in Maine some of us have tied to learn to be smart consumers from the lessons taught to us by Whitey.

    It cost Maine taxpayers $56,000.00 dollars to warehouse 1 inmate for 1 year in our electronic cesspools called prisons.

    In return we are guaranteed that when the person is released from prison they are a more vicious and competent criminal.
    Whitey Bulger is the poster child for this statistic.

    We can’t build prisons fast enough in this country to meet the demands of the police and prosecutors. The USA has the highest documented incarceration in the world.I know this first hand having worked for ABT Associates in Cambridge Mass as a consultant when they were contracted by Congress to determine the prison expansion needs for the country.

    We have the DOC “cooked books”recidivism rates hovering around 75% guaranteeing the voter and taxpayer 75 out of 100 men and women will return to prison once they are released. Yet you will not find anybody from Goldman Sachs or Bank of America in prison.

    I can think of no other business on the planet that people will use that has a 75% failure.
    The voters and taxpayers have a 98% illiteracy rate when it comes to
    being able to speak cost benefit ratio from the CJ crime family.
    Their primary source of information about this dysfunctional organization they fund and own is the X-Files and Hawaii Five O.
    Yet you will not find anyone from Goldman Sachs in prison.

    Look at the people who work in law enforcement. Over 95% of them
    are returning vets from some war like Iraq where the US Military invaded the country for Exxon Mobil because of the serious issues of peak oil. So we now have our laws being enforced by men and women who have the moral compass of serial killers.

    The prosecutors are in their own class of criminal negligence when it comes to being a made member of the CJ crime family. They have no
    problem throwing together rapists,murderers,pedophiles,armed robbers
    together 24/7 where tremendous contamination takes place and the only role models these people have to turn to for years at a time are each other. Professor Phillip Zimbardo made the irreparable harm this causes clear in his famous Stanford Prison Experiment .

    Yet there are no people from Goldman Sachs and Bank of America in prison.

    Until voters and taxpayers see themselves as owners of the Criminal Justice system as well as the primary consumers of this system
    they will not be able to set and enforce standards for their community safety needs.

    The CJ crime family will continue to benefit only the people running it
    eh , Matt?

    1. MS:

      Can’t disagree too much with you. Don’t see where adding Goldman Sachs personnel to the mix will make things much better. Disagree with you analysis of the guys who wear the uniform, I look upon them as the ones who will eventually figure out what has been going one when they are part of the 1% who sought to sacrifice for the country while the other 99% did nothing. Don’t agree with the wars but do agree that we don’t knock the gals and guys who sacrificed to serve even though I never could figure out how not supporting a war but supporting our troops worked. Just feel pleased, I suppose, that those who wear the uniform do so and am not about to knock them for that.

      As for the voters paying attention, I have as much hope as you do. We actually can do something if we separate the bad guys from the good guys. It sounds simplistic but I think it’d work. You point out how 75% come back in. Why don’t the other 25% come back. And, of the 75% how many would not be recidivists if they weren’t put into that horrible environment in the first place. We do agree the criminal justice system is a mess.

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