Weekly Wrap Up: August 10, 2013

Fun!~ Sailboat beyond Happy Purple Toes :)A week that few could predict, least of all me. It really shows how little we know about juries. Sometime Tuesday morning the judge gave them the case to decide and on Friday afternoon they were sent home still trying to — well to be truthful, we don’t know what they are doing.

I’m the first to admit I don’t know if they are discussing each charge in detail or whether there are some who have announced a position and are refusing to participate in any discussion. Recall, it was on Wednesday there was that mysterious two-hour hiatus in the case where the judge, the lawyers, and even Whitey were going in and out of the courtroom doors like one of those Marx Brothers movies. Tell me what that was about? Has it any effect on what we are now seeing? If you don’t know, then how can you figure out what is happening now.

The week began with the dreaded three and a half hour opening by Wyshak, followed by two and a half hours of Brennan and Carney, followed by 12 or so minutes of rebuttal by Wyshak. A lot of good it seemed to have accomplished since by now their words have vanished from every juror’s mind. Perhaps we’d have been better off if they waived argument.

Think back over the trial, at the times the prosecutor would get up on redirect examination and try to win some minor point. Do you think that point lasted longer in the minds of jurors than it took for the next witness to raise her hand. Remember Heather Hoffman? Remember her being grilled for a half an hour by Wyshak over whether an ownership search of the registry of deeds records will disclose the value of the property. I’m sure your remember her answers. Do you think the jurors are discussing them and that’s why they are taking so long to come to some sort of conclusion?

I’m not suggesting that it was only on the prosecution side that we seemed to wander astray. Brennan in his discussion with Flemmi about there being a delicatessen in the prison and the other benefits seemed wasteful when they already got the benefit of Flemmi not having to face the death penalty into evidence; Carney, the question to Jimmy Katz still sticks in my mind, when he asked him something about the touch of people in prison being like his wife’s.

The problem with both sides was they treated the jurors like some a group of mentally challenged persons. I bet you can’t guess how many times the prosecution asked “and who was James Bulger’s partner.” Or do you wonder at the Wyshak method of treating the juror’s like an unruly first grade class. Wyshak, “can you describe the vehicle.” Witness, “it was a gray Honda SUV.” Wyshak: can you tell us what color it was; and then what was  its make; and then what was its model. I’m surprised he didn’t turn to the jury and say let’s repeat this together: “gray Honda SUV.”

Then don’t you think the jurors had to be highly upset when Wyshak told them in his closing that the informant issue was irrelevant to the case after he brought it into it and caused them to spend four days listening to Agent Marra discuss the informant issues. Then after telling them not to regard it in their deliberations walking over and picking up the files that contained the informant reports attributable to Whitey found in the folder kept by FBI Agent John Connolly and telling the jurors, of course he’s informant, look at these. Then Brennan responds that the government says the issue is not important but that’s all it talks about. Why he asks? Maybe that’s what is taking the jurors so long trying to figure out?  Do you think they will figure it out that it had no place in the case except that a couple of guys with ego problems wanted to duke it out over a non-issue?

The problem with not coming in with a clear-cut case, in other words the problem that the federals have, is they overcharge; overcharging leads to confusion; this results in a jury getting all involved in trivia. Their questions show this: asking about the statute of limitations something that was not in the final arguments, showing how little of an effect those arguments had on it; a question requesting permission for some of the boys to play around with a machine gun; and then one on whether they had to be unanimous in finding a predicate act not proven in the RICO indictment when they had 33 such acts and only 2 had to be proven to get a guilty finding on the RICO.

I’d note the last question had nothing to do with chucking out everything because the jury wanted to send a message to the government, you know, the jury nullification argument. It seems to me that is not an issue at all. I appears that some of the jury did not believe the government’s evidence on those murders beyond a reasonable doubt and others did. A very normal happening in the jury which makes me think they are conducting a thorough review of the evidence relating to each offense. That, of course, is a benefit to the prosecution.

You can’t make anything about the jurors looking tired and frustrated. That could arise from a recalcitrant juror or the long day going through each element and discussing the strength and weakness of the government’s case.

I still have little doubt the jury will convict Whitey of most of the charges. I know the prosecution was looking for a clean sweep but I’m sure now they have put that our of their mind. They won’t get that. Except to them that never mattered anyway. They’ll get their RICO conviction and the media will joyfully spread the news.

I’m sure the horror of a mistrial or not guilty flashes through their minds. That won’t happen. What it may all come down to is the jurors having a little laugh at the lawyers’ expense thinking they made us sit unnecessary for an extra week or two, we might a well make them sit around in suspense for an extra day, or two, or three.

I predict based on my extensive experience in the field that they’ll come in sometime next week or the week thereafter.  If not then, some other time. Just be glad you don’t listen to my advice. Just thank the good Lord that you’re not one of the attorneys who will have a hellish weekend.


10 thoughts on “Weekly Wrap Up: August 10, 2013

  1. With 30 years of experience trying cases before juries on both sides of the equation(criminal and civil), and having stated on the record that WB was going down on all counts within 2 days of the Judge’s charge, and being even more certain that the jury would come in late Fri. afternoon, I am even more certain that the Feds are in trouble with each day that passes. In other words-I do better guessing with the lottery ( and I’m in a terrible hole there).

    1. Chaco:
      With similar experience give or take some years as a defense lawyer and prosecutor and having decided Whitey would be convicted of just aboout everything last Wednesday, you see why I have similar luck with my lottery picks especially when those zillion dollar drawings come around.

      If I agreed with you that the federals are in trouble as time passes we may both end up continuing our streak of being wrong.

  2. I asked my question because Weeks preposterous testimony that he didn’t know who was in the car on one of the murders because he (nee) was wearing a mask and Morris’s admission that he took bribes but was never prosecuted standing alone just seemed like enough by themselves to have their testimony totally ignored and when combined with your descriptions of Flemmi’s and Martorano’s repulsiveness it makes me wonder if some jurors just want nothing to do with ANYTHING they said.

  3. How about being a juror spending day in and day out in the company of murderers, legbreakers,con artists, crooked G-men and other manner of lowlifes. Then you have a couple of know it all bullies talking down to you like you don’t know nothing. To put the tin hat on it, you have a judge who frequently seems to want the trail over as soon as possible so her summer is salvaged.
    You,just a random citizen yanked from your quotidian schedule, picked to guard the fundamental rights of all your fellow Americans and now that they have finished using you they want to give you the bum’s rush.
    Now the food is very good, the Moakley Building with a terrific waterfront setting is a state of the art handsome building with an inspiring fantastic ambience inside and out.
    Everday, carfare or parking taken care of, a little walking around money for your inconvenience,a truly important duty to carry out, an intimate meaningful shared experience with people you would probably never crossed path with in your life. All of a sudden the Federales are putting the pressure on us to do what they think we must do. All eyes are on you and you have to make sense out of all these machinations and try to find truth. This is not tiddly winks and now they are in a hurry.

  4. If a juror had a preconceived notion that WB was the top criminal in the area and nothing changed that one would expect a guilty vote on all counts. However if as PSE says there is nothing of a forensic nature to connect the defendant to the murders and Gucci, Flemmi and Weeks are totally incredible for a variety of reasons what is left? Any juror in good conscience who didn’t accept the testimony of Gucci, Flemmi and Weeks would be required by their oath to vote not guilty on the murders. That may be the hang up. Some may refuse to vote guilty on any of the charges unless others vote NG on the murders. Or it may be a general abhorrence of all the Feds activity ( letting Morris off the hook, releasing eight serial killers and permitting Flemmi to keep two million of assets). Whatever happens the country needs Carney on the rubber chicken circuit.

  5. I am enjoying your sense of humor. Lol Hank Brennan has appeared somewhat delighted lately.

  6. I agree with your tweet that the Feds should learn they’d be better not to stack charges. All they had to do here was prosecute on 2 charges (is that a correct understanding), prove them well (unlike the light treatment that most (all?) charges did receive), and they’d put Mr Bulger away for the rest of his life. Instead, the jury may have a confusing mess on their hands. It is easy to imagine that 12 people can not agree on all 33 charges – just do the math.
    Poor jury.

  7. I have enjoyed following the trial on your site and reading your book/annotated summary of the Connolly trial. I have a question.
    If the jury decides that they do not want to rely on ANY testimony from Weeks, Martorano and Flemmi and even Morris because they are so offended by obvious lies they told on the stand minimizing their involvement and/or are so offended by the deals they were given is there still enough to convict Bulger on most of the counts and any of the murders?

  8. Mr. Connolly, as ever, thanks for your many, many insights into the trial.

    I am a rookie at following matters of the law and of trials. I must admit I find it puzzling that in some cases (mostly the trial wrap-up, perhaps) you have praised the prosecution for many things and similarly with the defense, then at most other times you are taking each side to task (justifiably, of course) for numerous actions.

    Maybe it’s the nature of the trial beast: lots of good, lots of bad (not to mention frequent tedium). And so maybe your posts, taken as a whole, constitute your attempt to write in a thorough, balanced way. If so, then in my opinion, your blog is a colossal success, a true model for the thought processes involved in trial analysis.

    Is this how you see the whole of your writings about this trial?

    Have a fine, relaxing weekend.

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