Whitey Bulger’s Case — Will It Be Tried in 2013?

I’ve said it is likely Whitey will go to trial on the theory he has nothing to lose.   It’s scheduled for seven months from now in March.  The original date was in November but the significant amount of discovery which the government must turn over to the defense counsel consisting of many tens of thousands of documents made it impossible to adhere to the original date.

At the last hearing J.W. Carney (Whitey’s  lawyer) complained the feds are giving him the discovery in drips and drabs; the feds are saying he’s already received tens of thousands of pages.  I’m with Carney on this one.  Having been involved in discovery processes I know you can get a few hundred thousand pages but not get the pages that are important.  The big law firms love to drown the smaller firm in paper hoping they’ll never have the time to go through it.  The significant papers are buried within the mass or withheld hoping that their absence will never be discovered.  So it is not the amount of paper given out it is the quality and the mindset of the prosecutor.  Is the prosecutor intent on doing justice or winning the case?

I’ve never handled a criminal case with as much paper as this one.   If it only involved the 19 murders then the paperwork involved around each murder would not be that large.  The murders happened many years ago.  The discovery relating to each one would be encapsulated within a small time period and easily provided.

The difficulty the prosecution has here is that the people who will do the main pulling of the oars of the government’s ship are probably the most morally decrepit and repulsive assemblage of rowers ever shanghaied to do this in the history of our republic.  The bloody hands of these witnesses will foul the witness stand and soil the courtroom  The stench of the governments team of murderer after murderer will be hard to overcome.  By the time they are through testifying most of the jurors will look at the witness stand and see it stained with blood.

The government has had to wallow in the slime of the sewer listening hour after hour to Martorano, Weeks, Morris, Salemme and Flemmi telling the sordid details of their vile lives, making records of what they said, then re-interviewing them to make sure their story fits the government’s case,  then investigating their stories to try to get independent evidence, then making deals that make it worthwhile for them to testify, and traveling to other states, Florida and Oklahoma,  to intercede on behalf of these gangsters with the state authorities.   The paperwork of all of this has to be given to the defense team.

It even goes beyond that.  Martorano, Weeks and other associates of Whitey have written books about their exploits.  Salemme has given evidence before other tribunals. There is the testimony some of them gave in the Connolly trial in Boston and then there’s the testimony they gave in his Florida trial.  There would seem to be mountains of documents involving the follow up investigations of their statements to demonstrate their truthfulness.  All of this must involve thousands of pages of relevant paperwork.

Once the defendant has all this, it is then incumbent upon the defendant to follow up on it.  There will be many things the government will have failed to do especially when it comes to looking for evidence that will contradict the testimony of its main witnesses.   Carney’s team has to read every statement made by these witnesses and read everything they have written.  It has to find the innumerable times when they have contradicted themselves.  It then has to go back to each of the murders charged, and even to some that have not been charged, and do its own investigations of them

Here’s an example:  Martorano said he killed Tony Veranis.  He testified in Connolly’s trial that they both had guns and Tony was not as fast on the draw as he was.  The problem with his story according to some people is the autopsy shows that Tony was shot in the back of the head.  In Howard Carr’s book,  Martorano changes his story a little bit.  He has a drunk Tony pulling the gun in a crowded barroom.  Now to try to get the gun shot wound to the back of his head the story reads:  “Taller than Veranis , he fired down, into the ex-boxer’s skull”

I knew Tony.  I remembering him being  about my height, around 5′ 10″.   I’ve seen Martorano.  He also looked around 5′ 10″ tall.   I can see J.W.Carney taking this and working it ten times to Sunday to have  Martorano explain how a guy facing him with a gun got shot in the back of the head.

Each time Carney makes Martorano or any other witness look like a liar the less likely the jury will believe anything he says about Whitey.  Each incident that any of these gangsters have talked about in the past Carney’s team has to go back and examine.  Each new fact discovered will have to be further examined.

Then Carney will want the discovery of the FBI files to see what it knew about Whitey and what its involvement with Whitey and murders amounted to.  These will have to be studied, compared to the gangsters testimony, and investigated.  Agents will have to be interviewed.

There’s an enormous amount of time needed to do this.  If he is still getting the discovery, it is likely he will never be ready by March.

Aside from the discovery, what is going to happen between now and the trial.  J.W. Carney is under obligation to file motions that will decide the types of evidence that may be excluded from trial.   He’s saving his “Whitey had immunity to murder people” argument for trial for obvious reasons.  He knows he doesn’t have a chance with it in front of Judge Stearns and if he lost that he’d have lost most of his chips trying to show the FBI was involved in helping Whitey do his killings.

But he has to file motions to exclude evidence that may have been gained through unconstitutional means.   These motions will require evidentiary hearings that will also take time.  These hearings will require written decisions.  All of this takes time, vast amounts of time, and Whitey’s case is not the only one that Stearns is handling.

Keep in mind a couple of things Whitey faces charges in two death penalty states, Oklahoma and Florida.  He doesn’t want to go to either.  The sooner his case is wrapped up here the sooner his life of relative leisure in Plymouth ends.   Next month he’s 83.  Even he knows the end is near and he wants to reach it as easily as possible.  That will be a big factor in his planning.  Whitey’s goal is delay and this case has built in to it enormous amounts of legitimate delay.

The other thing is the FBI wants this case to go away.  It too will want to delay the trial so that Whitey will eventually succumb to an old age ailment.  It has all the incentive in the world to delay giving the discovery to Carney.

I would not expect the trial to begin until 2014 — unless Stearns just ignores the defense teams’ need to do its investigation and forces Carney to trial whether he’s had adequate time or not.  What Stearns knows is that whatever he decides he will never be reversed.   No appeals court judge is willing to give Whitey the time of day.  Look what happened to Connolly in his Florida case.  The sentiment among the powers seems to be to wrap this thing up as quickly and quietly as possible.

I suppose it is fitting that the trial of Whitey involve a many sided chess game.  He was supposed to have run his criminal enterprise in that manner.