U.S. v. Flaherty – Part 3 of 10: The Wyshak Affidavit Problem

2015 08 21_3000It got curiouser and curiouser sitting in the federal courtroom last Wednesday listening to the request by Tim Flaherty’s counsel, Martin Weinberg, for more discovery. As Weinberg made his argument the magistrate, Donald L. Cabell, questioned him closely about his assertions. Each point made by the magistrate was answered convincingly by Weinberg even to the point when the magistrate raised a point that he suggested rebutted Weinberg’s argument. Weinberg without hesitating pointed out that what the magistrate just suggested completely supported what he had been saying.

If Weinberg presented his position in a clear, concise, calm and compelling manner for twenty-five minutes, the prosecutor, a middle age man in a dark suit with a big dark mustache, spoke for less than five minutes. At the one point during this time Magistrate Cabell raised a question. The prosecutor said to him in reply as if shutting down any further discussion that Mr. Wyshak had filed an affidavit relative to that issue.

When he said that it seemed to have caught the magistrate short in his tracks, he sort of fumbled his reaction. His response was so unusual that I took note of it. It was as if the prosecutor had said to him: “Are you daring to question the sworn word of AUSA Fred Wyshak?” The magistrate recognizing the horror implicit in the suggestion that he would have had such a thought even momentarily pass through his mind quickly showed his mea culpa by passing over the question and into silence.

A couple of things passed through my mind. First I wondered why the magistrate had what I believed to be such a strange reaction. Did he know Wyshak? Was the prosecutor throwing their personal relationship into his face? Did the mustachioed prosecutor himself have a relationship with the magistrate?

I checked into the magistrate’s background. It seemed that he worked in the same office with Wyshak for about 20 years. They obviously knew each other very well. I assume he had worked with the prosecutors sitting in front of him for a long period. I thought it somewhat unfair to be calling upon one person with a long-term working relationship who socialized and probably also had a friendship with another to be judging the other’s word.

Given that long-term relationship I wondered if it is possible for Magistrate Cabell to do other than to rubber stamp what Wyshak has sworn are the facts? I also wondered at the incestuous relationship that exists in the federal court among judges and prosecutors. I recalled the James Whitey Bulger case where another affidavit was filed. This one was by a David Margolis a deputy attorney general who has been with the Justice Department for 50 years. He too would have known the judges in Whitey’s case. Were they also unable to question what he said? I wonder if I’m the only one that finds it off-putting that judges are making decisions based on affidavits from their former colleagues.

I also thought that if such deference is given to Prosecutor Wyshak why not take it a step further. Why not do away with all the time consumed in discovery, pre-trial matters and trials; wouldn’t it be better if we could just get an affidavit from Wyshak setting out whether he thought the defendant was guilty or not. That way we could move on expeditiously to sentencing.

One of the issues in the Flaherty case is when did the matter become a federal civil rights investigation. All the documents seemed to show that it began at the earliest, if ever, at sometime in January of this year. It is important for the government’s case to show that it began on December 23, 2014. To do that it uses Wyshak’s affidavit and suggests that bars any further inquiry into the matter.

The magistrate who worked with him for many years has to decide whether it does or whether defense counsel Weinberg can go behind it to determine its truthfulness. Affidavits, even those filed by federal prosecutors, are statements of fact. Like those filed by defense counsel there may be other facts to show that what is asserted is contrary to what actually happened. If the situation were reverse and the affidavit was filed by a defense lawyer you know that the government would be allowed to pry into every nook and cranny behind it.

Is what’s good for the goose also good for the gander?


11 thoughts on “U.S. v. Flaherty – Part 3 of 10: The Wyshak Affidavit Problem

  1. Matt,
    Wyshak, in my opinion, has become a god within the Boston US Attorney’s Office. He determines who is guilty and who is not. He determines which victims of crimes, or their families, deserve justice and restitution and which do not (it seems that in Wyshak’s god-like state, the murder victims of John Martorano and Steve Flemmi were not worthy — why else would these two murders be out of prison with money to spend and no judgement to make any restitution to their victims?)
    From all I learned in Sunday School classes, God is not mocked. One day Wyshak will pay for his blasphemy.

    1. Janet:

      Good points. Take this: Catherine Greig went off with Whitey. She had no idea he had murdered anyone. I’m sure he’s not telling her this. She stays with the guy for 16 years. She committed no crimes but helped him in his not being captured. She received 8 years in federal prison with no record probably the highest sentence ever received by a person in her situation. Then there was another woman. She did the exact same thing. She harbored a man who was fleeing from a federal indictment. That was the woman who lived with Martorano all those years in Florida.

      The most evil part of Wyshak’s approach to this matter is the man who actually did all the murders; the one who had the gun and shot them in the head from behind which he brags about in his book written in conjunction with Howie Carr was able to just add Whitey into his crimes without any other proof he was there and receive 12 years in prison; and 20,000 dollars on his release.

      Then there is the most evil of all men Flemmi who is not in the custody of the federal prison system. He is supposed to be serving life but no one has any idea where he is except Wyshak and his friends. He could be living on the Cape or in the Berkshires. The whole thing makes my skin crawl. One man rule likes a king and everyone crawls around him.

  2. Two candidates for the presidency, Paul and Carson, have expressed support for term limits not only for politicians but judges. It would seem essential to restore the lost integrity in the system. The Courts have degenerated into a corrupt cabal where criminals are given a pass and the innocent are framed. Epstein gets a slap on the wrist. the Mafia is unmolested and Ms. Grieg gets eight years for nothing. 2. The top running back for FSU was charged with assault on a women in June. He got his jury trial this week in less than 60 days. He won an acquittal just in time to rejoin the team. Why is his case expedited and Connolly’s is almost seven years old without a final decision from the State Courts in Florida? Talk about two sets of rules. 3.Since Trump declared for office the Market is down 3000 points. Are they related?

    1. NC:

      1. The guy who calls himself the fixer has been in the DOJ for 50 years. He’s 76 years old and says he has not intention of retiring. He tells the U.S. attorneys what they can and cannot do and is loved by all the AUSA because he fixes their cases to ensure no matter how dreadful their conduct there is no consequence. You know who I mean. The judges just go along for the ride; and it is an easy one with accommodations that would fit a prince and when they go senior status everything stays the same but their workload is down to 1/4 of what it used to be which is not much in the first place.

      2. Connolly’s atrocious case means that he did not play for Florida State. Yes, Florida judiciary made a spiteful ruling in Connolly’s case. Even a moron could tell the idea behind the gun statute was to deter people bringing guns to the scene of the crime and not to punish a guy who was out hunting boars the day before the crime.

      3. No the Market is not related to Trump who is the darling of lots of people; it is related Xi which is the Roman Numeral for 11. The people who I go to in the stock market say that the market will go down to 11,000 because Nostradamus predicted during the reign of Xi – the eleventh child of Mr. Jinping – in the year of the Wei (wood sheep) – the market will drop 40%. If you say Xi Wei fast fifteen times you can understand why that prediction was made.

  3. We all had a great time last night at
    the Kelly’s house .
    Junior brought the nachos and
    Edna brought a six pack of Ballantyne Ale.

    Elbows Wychulis arrived late with this
    week’s videotape to show at our weekly
    para- legals without partners meeting.

    Elbows slid the tape into the VCR ,
    Enoch hit the lights and the pixels
    on the TV screen slowly came into

    The Verdict – Paul Newman – Courtroom Summation – YouTube
    ▶ 3:44

    sigh !

  4. You raise a great point about the cozy relationships in the courthouse. I see federal prosecutors get away with all kinds of things that defense counsel would be called on in a heartbeat.

    Beyond that, Fred Wyshak’s ethics are at least open to question. One example: Before Mr. Wyshak awarded Steve Flemmi his government halo, Wyshak went on record with the First Circuit calling Flemmi a liar and perjurer–not worthy of belief. Once Flemmi joined the team, Wyshak handed Flemmi off to Tulsa D.A. Tim Harris as, essentially, a credible witness, knowing that Harris was about to file an affidavit using Flemmi as his main witness to charge former FBI Agent Paul Rico of murder. Rico, of course, died in jail (because of negligence or worse), without even a probable cause hearing.

    Wyshak had an obligation to ensure that other prosecutors and judges were fully apprised of Wyshak’s on-the-record characterizations of Flemmi’s lack of credibility made to the United States Court of Appeals for the First Circuit.

    Wyshak also sat idly by while he had to know of Frank Salemme’s perjury in John Connolly’s federal trial.

    There are undoubtedly many other examples.

  5. Matt

    That is why we call it the criminal justice system crime family

    So who is the capo di capo here?

    Vincent ‘ the big cheese Lisi?
    Or Carmen ‘ Boobalu Miranda’ Ortiz?

    1. MS:

      If we really knew who the big cheese is we wouldn’t have to be skirting around the edges all the time. Perhaps a freedom of information request to AG Lynch asking “who is the big cheese” may be an important missive to come from the group that was at Kelly’s.

  6. Matt, Attorney Weinberg seems competent, to say the least. Nevertheless, I hope he has someone working with him who will be reading your posts on this case in order to pick up on a significant, relevant detail or two that might otherwise go unnoted.

    Obviously your research into and knowledge of “who knows who” among <<>> is key in this case, with friends, colleagues and ex-colleagues trading favors or doing what they consider “the right thing,” etc. On the flip side, I wonder this: Who, if anyone, among Flaherty’s family, friends, colleagues and ex-colleagues might somehow be an enemy of one of the Feds?

    1. GOK:

      Marty Weinberg does not need any help from me. What ever I think of he has thought about a few days earlier. He is right at the top of attorneys with his brilliance and command of the law. Add to that he’s a great guy. I felt very relieved when I learned Flaherty hire him.

      By the way Bob Fitzpatrick the FBI guy indicted by Wyshak has another good attorney Bob Goldstein so I can tell from that he won’t be backing down. These cases will not be pushovers for Wyshak. All we can hope for is a judge who is not afraid of him.

Comments are closed.