Thursday Evening: Where We Stand Now

IMG_4051I must admit I’m a little confused with the defense strategy. You can add that to my confusion over the prosecutions strategy. I talked about the prosecution not having any real plans other than putting in every bit of evidence it had without regard to its necessity or importance in the scheme of its case. I suppose I shouldn’t have been surprised that would happen when they insisted on charging a guy with 19 murders and to top that off to say he also was a money launderer among other things.

My thinking is you are prosecuting a guy you think committed that many murders, clear the deck of everything else and try him on the murders. The prosecutors should have asked themselves if they would be happy if Whitey was convicted of extortion and money laundering and none of the murders.

With respect to the strategy I’ll never understand why they tried to prove Whitey was an informant. They fell right into defense counsel’s trap. It had no relevance to the case. I pointed to the unnecessary redirect examination by the prosecutors trying correct esoteric points in a witnesses testimony wasting time on things that had no significance and would be little remembered.

It seemed to me early today they got my message when they announced they’d be finished by the end of next week. This apparently caught Carney and Brennan by surprise. My immediate thought was finally they are looking at their case; seeing its strengths; tailoring the rest of the case to what they’ve successfully done; and clearing out witnesses no longer necessary.

What did it mean I wondered. One of my correspondents once referred to me as Sensei. So I put on my Japanese thinking cap and decided the prosecution was not going to call Benji Ditchman as a witness. I thought that a brilliant move.

Weeks had just testified. He he tied Whitey into five murders that he personally witnessed: Halloran, Donohue, Barrett, McIntyre and Hussey; he also tied him in through admissions to Eddie Connors, Spike O’Toole, Buddy Leonard, Paulie McGonagle, Tommy King,  and Debby Davis.  None of Weeks’s testimony about these murders was challenged. He also told us about the location of six of the bodies which were subsequently unearthed and identified as being the bodies of six persons who had gone missing a long time ago.  Previously they had Murderman tie Whitey into the rest of the murders and he too was relatively unscathed when it came to them.

I thought they decided to do the medical identifications, show the cause of death, and then wrap it up. They pretty much had a nice win with this bold move to let Benji Ditchman pass and not to foul the courtroom with his fetid stench. But I was wrong to expect such intrepidity .

They plan to call Benji. They did however streamline their case a bit. We’ll see the end of their case next week.

My sense is they may rue the day they brought Benji Ditchman into the court; that is if the defense doesn’t play patty-cake with him when it comes to the murders as they have with Murderman and Brutalman.

Which brings me to the defense strategy. Letting Weeks go without any attempt to mitigate Whitey’s involvement in the murders, even to the point of suggesting for the jurors ears that there were other possibilities convinced me that they planned to use Whitey. I have no idea what Whitey will say with respect to the murders whether he will deny any involvement, admit some and claim self-defense or admit some and claim O’Sullivan gave him permission to do it. Defense can’t let Weeks stand unrebutted – the bodies cry out for an answer.

Using Whitey, and others, throws the idea of jury nullification out the window as I see it because as I understand the concept you don’t present any defense but rest after the state ends it case and suggest to the jury that the government and its witnesses are so corrupt that nothing it offered can be believed and the jury should send the only message it can to the government that it must cease its behaviour by acquitting the defendant.

With that gone, all that is left is the notion that AUSA Jeremiah O’Sullivan told Whitey he could do all he did (except perhaps the murders) and Whitey relied on his promise, the government went back on its deal, but the jury should hold the government to the deal since Whitey would not have done all these things except for the government giving its OK.  I know it’s got no chance of succeeding but when you come down to it, Whitey never did have a chance.

What does confuse me about the defense strategy is Carney’s objections to some of the forensic evidence relating to the victims who were unearthed. I didn’t think that was an issue in the case. Weeks identified the people put in the graves, the medical examiner will testified how they died, and the other experts will buttress their identifications with dental records and DNA. I can’t see Carney arguing that these aren’t the people they are alleged to be.

But he made an impassioned argument for a two-day continuance because he didn’t get all the dental x-ray records. He said he had to have his expert see all the dental records, even those not related to identification, or he isn’t performing his duty to his client. I don’t understand it. If you are not challenging something, you don’t have to have your expert study it.

All I can make of this is that Carney is just trying to stretch out the time Whitey will stay on in the Plymouth jail so any delay he can have is welcome news. It’s almost a concession that Whitey is a goner.


12 thoughts on “Thursday Evening: Where We Stand Now

  1. I believe Carney and Brennan are building everything on the closing. A lengthy but entertaining closing with mucho visuals etc.
    Whitey’s entire informant file is in evidence and the defense has shown under cross it to be unreliable. (Defense will have more evidence of inreliability when the call their witnesses) But point being Carney can read from any document he wants contained in Whitey’s FBI informant file to raise doubr about many things. Twelve hundrd pages of reports about what tis guy said and that guy did. Each character in the reports more untrustworthy and nefarious than the other. Think of the mnay roads Carney can go down in his closing using th governments own eveidence.

    Does Carney have a forensic person on his witness list. Is he more concerned about the accuracy of the descriptions of the bodies and the expert opinions drawn from them? The girls were strangled, consisitnt with Weeks testimony, but also inconsistent with all other descriptins of Bulger killings. ( I think). Whitey shoots people. And the girls were Flemmi’s girlfriends. Carney should nail this arguement.

    The defense has it’s own witnesses besides whitey to help with the picture it paints. For instance Carney indicated today that he will be calling Daley as his own witness. Defense witnesses will make sure the jury knows nothng in the informant can be trusted.

    So we have 1. murders that might not get over the reasonable doubt hurdle because of witness credibility problems;
    2. A simple to understand fictitious element added by the prosecution (informant status) being blown up by the defense exposing stomach wrenching pactices by the government; and
    3. thousands uponf thousands of FBI reports that the prosecution has more or less guarenteed to be truthful,

    I think we have the makings for a highly convincing closing by mr. carney

    1. Ernie:

      Carney has a lot to work with but he’s got to do womething to separated Whitey from the bodies. I don’t think it will make a good argument to get off on the women victims by suggesting his M.O. is shooting people in the head. If all Whitey is after is not being known as an informant and a murderer of women and is willing to concede he likes to shoot people in the head as is shown in the other four bodies it will be.

      The only validity of the informant issue, which the prosecutors mistakenly introduced into the case, is that the FBI files are a mess so the governemnt case must also be a mess as you correctly point out. Much will depend on what Carney does. Don’t be surprised if he doesn’t prsent a case. Iat’d be a huge mistake in my opinion but I’ve had a feeling much of his witness list is phony. But we’ll know soon enough..

  2. Another Matt from Texas: Judge Andrew Napolitano on Fox New (formerly) says what prosecutors do today in cutting deals with felonious witnesses is “legalized extortion.” Tell the prosecutor what he wants to hear, you get leniency; don’t tell or tell a discordant version of “the facts” then you get hammered.

  3. Questions for mtc or anyone who knows

    1 is there an official statement that Flemmi is incarcerated?
    2 when deals are made for witnesses, do they have to be made public?
    3 If a convict (Flemmi) is freed, does this have to be disclosed?
    4 for the single count of murder, does the jury only have to believe in one murder beyond doubt or all 19?
    5 Does any entity have the ability to rescind a deal made with a witness by a prosecutor?
    6 From a pragmatic view, aren’t the deals that prosecutors make pretty much in effect like a pardon? (I understand they are not the same thing but are effectively similar in the sense that typical sentencing is avoided)

    Sorry for t he newbie ???s, I am still stunned by the realization how much of an advantage the prosecutors have over the accused. I know I am late to the party but the spirit of a fair system just isn’t aligning by what I feel most people are led to believe.

    1. Another:

      1. Benji Ditchman was sentenced to life in prison by Judge Stearns. He is not in Bureau of Prisons custody so he is under the control of the DOJ. He’s in one of their locations for guys who cooperate – usually they are well treated. We’ll be able to see how well when he arrives in court. Will he have a nice tan or the prison pasty look?

      2. The deals are in writing and made public. However the prosecutor can go back and seek changes in it by noting the help Benji has given.

      3. If Benji gets out, it shoud be disclosed. He will have to have a public hearing wherein he is released.

      4. There is one count of racketeering. There are 19 predicate offenses which are the murders. The jury only has to find beyond a reasonable doubt that Irish Whitey committed 2 of them to convict him of racketeering.

      5. The prosecution is pretty much supreme in this area. For instance, take Pat Nee, the prosecution has evidence he committed other murders yet it has decided not to charge him with them. Only the prosecutor can commence a prosecution. A judge can refuse to go along with some of the deals a prosecutor made but usually that will not happen.

      6. The prosecutor in a general sense has an ability to pardon by not prosecuting. The prosecutor once commencing a prosecution can stop it at any time. Once a person is convicted and sentence, the options of the prosecutor narrow substantially.

      Early on in this blog I explained how immense are the powers of a prosecutor.

      1. Thank you for taking the time to explain, I don’t even think some “experts” truly understand #4. thanks again.

        1. Another

          You are right. Some “experts” have said there are 19 counts of murder. The federals have no jurisdiction over these murders so they drop them in a RICO indictment as predicate charges.

  4. I would be just as surprised to learn that Whitey isn’t a goner when all is said and done as I would be to learn that Stephen Flemmi was walking the streets a free man again. A man like Whitey, who wears his incarceration at Alcatraz as a badge of honor, is deeply concerned with his legacy… more, or at least as much as he is concerned how comfortable he will spend his remaining days. Through the course of the trial I have become convinced, with the exception of Murderman (and even him to a high degree) that Whitey thrived off of and had a vested interest in controlling all those around him. Yes, his criminal network was expansive, but through buffering himself he dealt with a select few of highly skilled criminals (in thier own right, to include law enforcement, feds, etc) who he clearly held sway over.John Connolly’s payment did not only consist of cash payments, in part (and a large part) it was delivering Steve Flemmi; Murderman enjoyed his lifestyle and freedom and Weeks basked in the glory of having a full access pass and benifits of being number two to a gangster of the likes he could never become. Flemmi needed a man as ambitious and skilled as Bulger to allow him to enjoy the money, women and vicious acts he loved to commit. Any one of them wouldn’t have lasted without Bulger. Now they have all turned on him, yet they call him the rat. I am anxious to hear what he has to say and hope he does testify.

    1. John:

      I disagree with you in some respects. Stevie Flemmi (Benji Ditchman) was already Connolly’s informant long before Whitey came on the scene. Benji was already protected and had lasted pretty well through the Irish gang wars and managed with the FBI help to get out of a murder and blowing up an attorney charge. Murderman Martorano also had no need for Whitey because he was a special headcase in and of himself. When he and Whitey first met, it was Irish Whitey who was the supplicant, not Martorano who had his own Roxbury gang.

      I just read how a Mafia kingpin who was conviced of 8 murders was just let out in NY because he went in an cooperated. I can feel it in my bones that Benji Ditchan has a secret deal to get out. Benji did need Whitey and Whitey needed Banji. But in the end, it turns out they all became rats, even Irish Whitey who has already ratted out John Connolly, that is, if he testifies which he must if he is to have any chance of beating the women murders.

      1. I grew up in and around Boston. I understand the system. It is a horrible one. If someone like Martorano has something to give, he can walk. So you can commit a murder, then you give someone else up that has committed a murder. From we, the citizens, point of view; Why bother? To me this is not one hand washing the other. It is our keepers washing certain hands and cutting off other hands. On occasion some of those cut off hands will be reattached.

        To me these upper echelon law enforcement and judiciary people are no different from someone’s fat, cigar-smoking, priviledged brother-in-law that has a city, county, state, or federal job that in the end, serves no real purpose. Can’t we just beat confessions out of people any more?

        1. Honest:

          We did a pretty good job of doing that to some of the terrorists.

          You make good points. A lesson for everyone is if you want to commit crime make sure you don’t do it alone and if it looks like the law is coming down on you then quickly turn in your buddy. We’ll always have the fat, cigar smoking, privileged brother-in-laws who’ll brag about how they are ripping off the system. I’m not sure there are that many of them. The rap on the city, county, state or federal workers is wrong; there are lots of hard workers among them with great knowledge who have made this country what it is: those highways and bridges and other things we rely on weren;t built by layabouts.

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