We’ve been waiting for Judge Stearns to decide on the motion filed by Whitey’s lawyer J.W. Carney back over a month ago. It came in sometimes overnight or in the early morning hours. Many of the requests in the motion were deemed moot because the government alleges it already has provided that information to Carney. We learned that the Government will not produce Patrick Nee as a witness so Whitey will not get any evidence of his cooperation with the government. Also, the same applies to James Martorano, Murderman’s brother. Two nice morsels to be tasted on cross-examination gone.
Requests for the presentence report (PSR) of Murderman Martorano was denied. Requests for the prison records and PSRs of Kevin Weeks, Patrick Nee and James Martorano also denied. These denials were based on the government’s assertion that it has or will provide all exculpatory evidence or material that is required under the law.
The requests for communications between the U.S. Attorneys office and other law enforcement agencies relative to Whitey and the Winter Hill Gang or any of the communications among the AUSAs about Stevie, Weeks or Murderman are also denied: “except as to any correspondence reflecting the existence of any agreement, formal or informal, acknowledging or memorializing the conferral of immunity on defendant by the U.S. Government or its authorized agents for any past or prospective crimes for which defendant was responsible (or an affirmance that no such correspondence exists).”
Judge Stearns has taken the bull by the horn and is limiting the discovery to keep this matter on track. Carney’s elaborate motion for roaming discovery is confined to the narrow issues that may come up at the trial.
But there is a shocker hidden in all this. At the end of the order is this:
“It is further ordered that defendant respond, by January 4, 2013, to the government’s assertion that defendant’s claim of immunity is a matter of law to be decided by the court. The government will have until January 23, 2013, to submit a further reply on this issue.”
This is a complete turn around by Judge Stearns. He has previously stated that the matter of defendant’s claim of immunity is a matter of law and fact and that it has to go to the jury. He is now backing off on that.
If he goes along with the government which seems to be the case having climbed down from his prior statement, this blows a big hole in Whitey’s case. It takes the heart out of his defense. It cuts out a great deal of his evidence that he would want to present to the jury.
It also puts Judge Stearns in the position of deciding actions of prosecutors who he worked with when these events were happening. He was asked to step down from the trial because that would be the case. If he takes the decision out of the hands of the jury, his refusal to recuse will come under question.
It is sort of fitting to be writing about it on this date because it will have the same effect on Whitey’s defense as the attack on Pearl Harbor had on the U.S.’s defense forces. The U.S. took two or three years to fully recover, Whitey doesn’t have that time. He has about six months to line up his defense but having the possibility of not being able to use half or more of his planned tactics has struck at the heart of his case.
I don’t want Whitey giving up all hope. Whitey should remember that even though most of the U.S. Navy fleet was lost at Pearl Harbor the U.S. did muster enough strength to destroy the Japanese Naval forces in the Battle of Midway six months later. So six months is still a good amount of time.
Yet, there’s no way he can beat all 19 murders. His plan was to beat some, leave a few, and then tell the jury he had immunity for those. Judge Stearns has just indicated that may not be such a good plan.
Judge Stearns is moving full steam ahead. ADX Florence, Colorado just became a little closer.