Whitey Bulger Status Hearing: Sort of Like The Movie Groundhog Day

All the parties were in court by 2:30.  As usual the prosecution team of Kelly and Wyshak were there first; just before kickoff time Carney and Brennan entered.  The courtroom was not that filled, probably about 60% at this time.

US Magistrate Judge ­Marianne Bowler is on the bench just after 2:30. She asks so what’s happening with the discovery. Prosecutor Brian Kelly said he filed his response to the discovery request last Friday. He said the defendant is interested in nothing but delay. He then had two exhibits to offer to the court, A: which was a form that was redacted; and B: the same form as A, but with no redactions on it.  He said the defendant complained about the redactions in A and he already had the unredacted form B in his possession. Kelly said he received 2,200 forms from defendant complaining about redactions and 1,500 or so were like exhibit A, that is, they had already provided unredacted copies of the forms the defendant was complaining about. He said the defendants want the prosecutors to do their work and they are falsely raising problems where there aren’t any.

Carney responded saying that the prosecution pointed out the exact issue that the defendants faced.  Rather than just providing the unredacted form to defense counsel, it also provided the same form many times over that was redacted. Carney said the government was playing a game causing defense counsel to  think some forms are redacted when they are not. This brings about confusion when you have a team working to figure out what it’s received.

Judge Bowler responded to Carney that he wanted everything that related to Whitey and that’s what he got. Carney replied he only wanted one document not many of the same documents. The judge replied it is his problem to sort it out, that out of an abundance of caution he received everything. Carney said that was the problem. What they received was designed to waste their time.

Judge Bowler said Carney sounded like a broken record. He agreed. He then complained that he submitted a discovery letter to the prosecution for 26 or so items. That he took time with his associate Brennan to visit the prosecution and the prosecution  was not prepared to respond to them. Kelly got up and said they did discuss some of those matters and the defendant withdrew two requests, numbers 8 and 9, and they agreed to give them 24.

Does it all sound familiar?  It should. It really is the same thing that’s been going on for months. On September 10 I made a suggestion for getting to the bottom of this predicting unless that was done we’d be doing the argument over discovery endlessly. I also suggested on September 9 that the prosecution seemed to be going about this discovery the wrong way.

Here’s how I look at it. The indictment Whitey is facing was filed against him in May, 2001, before 9/11. It charged him with 19 murders. I assume the government at that time had binders with all the evidence to support these indictments. There seems to be very little more that would have occurred over the past eleven years that would have changed these charges. Had the government turned over to defense counsel the binders it made back in the summer of 2011 in an orderly form that made it easy for defense counsel to figure out what was going on and what was needed, we would be hearing substantive motion at this time.

But the best I can figure, the government didn’t turn over orderly folders, it did a document dump. I’ve explained how that works. I had a case with a firm that Eric Holder was associated with in DC. I asked for certain discovery. I was told what I was to be given. It was going to be hundred of thousands of documents packed up in box after box without any indexing. I forget the exact number but even before I could consider accepting them, I recalled the first thing I had to find out is where I could find space to store them. That was going to be difficult enough, then I realized it would be impossible to ever go through them so we put off the request.

Carney is now saying it will take him until next May to go through the discovery. He does not want to file substantive motions until he has done this. The judge keeps saying he got everything he asked for. She doesn’t seem to understand that you can get it in an orderly fashion or in a dump. It makes a big difference.

Judge Bowler sent them out to meet after the hearing and to go through the discovery letter. Carney said it was a waste of time. She then ordered him to meet with the prosecutor face to face and be civil to each other and no walk outs. I don’t  hold out much hope for the  meeting. As I suggested a while ago, they need a referee.

Bottom line, another status hearing is set for November 1. Carney is going to file a motion for a continuance of the trial date. Judge Stearns is going to set the time for the substantive motions to be filed. So on November 1 we should have a better idea of things.

I’d like to think that since we all believe Whitey is guilty of at least some of the charges, Judge Stearns would not want to be doing anything that would give Carney reason to squawk. I’d give him the continuance he wanted so that when the case goes to trial it is done cleanly. Everyone can say the defendant had a fair trial before he is sent off to ADX Florence.

I can’t predict what will happen. We’ll just have to wait and see.