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.