Update on Hearing On Motion For A Continuance Of The Trial Date

A short but interesting day before Judge Stearns. Yes, you read that right, the case was kicked upstairs to Judge Stearns. He was on the bench around fifteen minutes. Stearns entered the courtroom quickly commenting on the remarkable show of interest in a motion hearing. The courtroom was packed. Anyone thinking this isn’t going to be one of the biggest cases heard in this area since the Sacco Vanzetti matters just isn’t getting the interest in it. To be frank, I sometimes wonder at this myself even though I have a blog dedicated to it. The jury box was filled with 16 members of the media. A dozen TV cameras were set up outside the courthouse.

Stearns announced that there were two matters in front of him that had to be decided today. A motion for a continuance and a discussion of the dates for filing substantive matters. He said he’d listen to counsel on the motion for continuance and looked at J.W. Carney.  Shortly after Carney began Stearns said he wanted the record to be clear on one thing. He’s heard it suggested that the March 5 date was an arbitrary date set by him.  He said he set that date at the request of defense counsel who argued in February of 2012 that he needed a year to prepare the case.

Carney thanked him for giving him the opportunity to make an oral argument  His pitch was what we’ve heard before. The many pages of discovery which he has to read, compare, review and discuss with others and his client in Plymouth, the information in the civil cases discussing the 25 years of the failure to supervise the informants, the Congressional hearings, and the books written by the witnesses. All required analysis and review and the need to interview people. He said he’s never had anything like this in his 34 years as a lawyer and he and Hank Brennan are going at it full-time. He suggested he’s kept Judge Bowler informed about his difficulties all along. He said all the defendant wanted was a fair trail before a fair judge and which could only happen if he was prepared to try the case and he could not possibly be ready in March. He suggested a trial date in November.

Stearns agreed that Carney has been arguing the need for a continuance for a while.  Stearns asked him about the other substantive motions and Carney indicated that he was not going to file any.

Carney went on saying a case he tried last year had 50,000 pages of documents and it took three years for it to go to trial, the Flemmi’s case took 3 years, and that Weeks’s case took four years.  He continued for a while and said the true test of justice in America is how we treat the most demonized of defendants.

Sterns thanked him and asked Brian Kelly the prosecutor for his position. Kelly said the government was of course interested in a fair trial.  He said Whitey already delayed the case 16 years by running away. He said giving defense counsel almost two years to prepare from the time the defendant was arrested is plenty adequate in this type of case. He said the defense counsel rather than cooperating is obstructing matters and that much of his complaints about duplicate documents are not valid pointing out that there would obvious be duplicates in the papers for the murder trials in Florida and Oklahoma. He said this is not a difficult case. It is not a technically hard case like a pattern dispute. Kelly said it just was a case involving cross-examination of the government’s witnesses and that Carney could be ready to try it next week if he wanted to do so. He discussed how the defense counsel was changing his stance when it came to protective orders. He said they’ve provided much discovery but defendant is never satisfied.

He then said much of this relates to defendant’s “absurd claim of immunity.”  He suggested this is a legal issue to be decided by the court and not the jury and asked Judge Stearns to set up a briefing schedule for that issue.

Judge Stearns listened intently to counsel. He gave each side the opportunity to be heard. The spectators remained quiet also listening to every word.

When Kelly finished, Judge Stearns said he was taking the matter under advisement and would let the parties know in two or three days.  He left the bench just as I was settling in.

This hearing was important for two reasons. First, Judge Stearns is taking control and will quickly decide on whether the March date sticks or not; the other reason is the surprise announcement by Carney that he has no substantive motions. This means for all practical purposes the next time Whitey will be in court is when they begin to impanel the jury.

Stearns was very judicial and in command of the courtroom. He did not give the slightest hint of what he felt or what his eventual decision will be. We’ll just have to wait.

Brian Kelly noted that Carney’s decision not to file any substantive motions made it even more likely that the case can be tried in March. Maybe Carney threw that bone to Judge Stearns just to show he really wasn’t interested in delay but as soon as he was prepared he wanted to go to trial. Judge Stearns has been on the bench over 20 years. He’s seen everything. It will be interesting to see his take on this.

I’m really of two minds on this. On one hand I see Stearns going full steam ahead because he knows whether Carney is prepared or not will not matter. He’ll never be reversed on appeal on this issue. On the other hand, Stearns is known for bending over backwards to be fair. If he has the slightest doubt that holding the trial date in March would be in any manner detrimental to providing a fair trial for Whitey, he will move it.

I’m pleased he’s taken over. Everyone will have more certainty about the matter. You could sense by the atmosphere in the courtroom that he’s the boss and what he says will go. Maybe he’ll split the apple and set the trial for next June, the second anniversary of Whitey’s arrest. I’ll let you know as soon as I find out.


2 thoughts on “Update on Hearing On Motion For A Continuance Of The Trial Date

  1. I have to differ, Matt. Judge Stearns merely knows how to put on a good show of due process. “I am going to keep an open mind,” he said at the outset of the hearing. What?!!! How stupid does he think we are? It’s his first and unspoken duty to keep an open mind!!! In thousands of court hearings before hundreds of judges, I’ve never ever heard a judge utter those words!! It’s actually offensive. That statement is one of pure posturing. Posturing is what the attorneys must do in this adversarial sytem; when the judge feels the need to posture and posit, something is wrong. With fewer words, Stearns did more posturing than Kelly in this hearing.

    There is not a chance Stearns will give Carney what he needs for a fair trial: at least six more attorneys, a one year continuance, funds for an investigator, and cooperation on discovery from Wyshak and Kelly. At best, Stearns will give the defense a dog treat to show how “open minded” he is. I predict he will make a few minor concessions so he looks better in the appeal of the recusal motion to the First Circuit. The media will praise his tough fairness, etc. Nobody will note that Carney had to waste months litigating discovery and a continuance to end up with less than he requires to mount a fair trial.

    Today’s hearing did nothing to convince me that Stearns is impartial. In fact, he doth protest too much and I am certain than ever he cannot “keep an open mind.’

    1. Patty:

      It doesn’t surprise me that you differ with me. I appreciate your thoughts. I missed Judge Stearns saying “he would keep an open mind” Stearns sometimes speaks in a low voice that I don’t pick up. Most of the media were sitting closer to him in the jury box so I have no doubt if that were reported he might have said it. But is suggest you have to consider it in light of the context that has gone on before. Stearns was probably referring to what Judge Bowler indicated previously that the trial date was set and it was fixed and not going to be changed. He just wanted everyone to know that was not his position.
      I think you are being too hard on Stearns. Carney has some good points and so does the prosecution. Carney asked for a year and got a year. He’s now asking for another eight months. He says that will be sufficient. I’m sure he can use other lawyers and investigators. You can’t overlook that Carney wants to delay the trial because that is what his client wants him to do. Whitey knows he will be convicted of something and he is never getting out of prison. He likes Plymouth when he thinks of the other places he can be sent to. The longer the trial is delayed the better the rest of his life will be.
      Kelly is right that a large part of the case is going to come down to the gangster testimony and the cross-examination of those guys. That’s how the murders will be proven. He’s wrong in suggesting this could be done next week or by March. There’s just so much out there that these guys have said over the years (not including their books) that it is a mammoth job to put it together. Kelly is pushing for trial because he believes that the case is pretty straight forward and want to bring it to a head. I know how he feels, having been there myself trying to a case up to the starting line. I don’t blame him for wanting this done but he has to recognize that Whitey might have been on the lam for 16 years but that is irrelevant to Carney’s need to prepare the case.
      I think Kelly is making a mistake thinking Carney’s claim of immunity is “absurd.” It isn’t. There’s enough there to make it a valid claim and a factual issue for the jury.
      Kelly wants to have Stearns decide it and keep it out of the trial. I don’t see how he can do this. It is an issue of fact whether O’Sullivan gave his blessing to Whitey’s reign of terror. He had the right to do it. Did he do it?
      It’s really all that the case is about. All Kelly has to do in his opening is to stand up with a poster board with the pictures of nineteen dead people on it and Whitey is gone, or in the alternate, a poster board with a picture of Whitey’s associates. That’s Carney’s big difficulty – to have the jury accept the immunity defense he has to get Whitey off the hook in many of the murders.
      Thanks for your input. Appreciate it. All thoughtful comments like yours are welcome.

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