I noted yesterday the prosecutor can do whatever he or she wants when it comes to whom to prosecute and to whom will get a pass. If the prosecutor decides it has evidence to convict a person of murder but decides not to go after that person, that is fine and dandy. However, once a prosecutor decides to charge a person with a crime, the prosecutor does not become such a free actor If the prosecutor wants to convict that person, certain obligations fall upon the prosecutor.
The main obligation is not to hide anything from the person being prosecuted, who is called a defendant. This especially arises when it comes to evidence that the defendant may not be guilty. I had a case involving a jewelry store robbery in our county. I had spoken with the detective and with the one witness, Ruby, who was at the store. Ruby identified the defendant from a photo array. She was positive he was the man who robbed her.
On the trial date, his lawyer who I had dealt with before and trusted kept telling me I had the wrong man in such a way I sensed maybe something was not right. I went to Ruby who had come to court to testify to go over the event. I had her explain again how the robbery happened. She was at the counter. He came in, flashed a gun, went behind the counter and grab the merchandise. I showed Ruby the photo array again. She positively identified the defendant. She was frightened but would never forget him.
I asked if she was alone as the police report indicated. She said, “No, Stella, was there. She was smart, she ran into the back room as soon as he did this.”
This was the first time I heard of Stella. None of the police reports indicated anyone was there other than Ruby. I went to the detective. I asked him if he knew Stella was there. He said yes. I asked him if he interviewed her. He said he did. I asked why there was nothing in his reports about her. He said, “She picked out the wrong person in the photo array so I didn’t think she’d be a good witness so I decided not to mention it.”
Obviously I had to tell defense counsel about this and reassess my case. That is why there is an obligation on prosecutors to provide exculpatory evidence. It’s not up to the cops to decide who committed the crime, it’s a jury function and it must be given the full picture.
The need to disclose to defendant also applies to rewards, inducements and promises made to witnesses who will testify. Not just some of the goodies the government is giving the witness, but all of them. Ascertaining those in the case against Whitey is what Carney and his top hand Brennan are seeking.
It was only natural that they’d think Murderman Martorano got a little more than he disclosed at the trial of FBI Agent John Connolly when they learned the feds gave him a $20.000 bonus leaving prison, a grand for each murder victim. Did the feds make a deal not to prosecute his brother, a member of the Mafia, for his crimes they know about? These things matter to juries in assessing why a person would testify. We recall Vito Corleone’s “I’m gonna make him an offer he won’t refuse,” getting across the idea everyone has a price. Make the offer juicy enough and a person will say anything you want him to say.
Carney & Company’s motion said they still can’t get agreement with the government over discovery. They are asking for all correspondence between the US attorney and the Strike Force, the DOJ and FBI concerning Whitey, John and James Martorano, Steve Flemmi, Patrick Nee, Howie Winter, and the “Winter Hill Gang.”relating to the issue of immunity and also as to any other matters.
They allege the government has evidence that would disclose “both John Martorano and Kevin Weeks intend to look out for each other and would not “hurt” each other.” If this is so isn’t there an obligation on the government to disclose they know their witnesses intend to testify in a perjurious manner. Beyond that, how can it even offer them as witnesses? A person who comments wrote that Kevin Weeks and Pat Nee made a similar agreement. I mentioned that earlier in one of my posts that Weeks and Nee seemed to have some sort of understanding. How can the government not disclose its knowledge that its witnesses have side agreements with other gangsters to perjure themselves if necessary to protect that gangster?
Carney & Co. want to know whether John Martorano was questioned about the criminal activity of his brother, Patrick Nee, Howie Winter, and Kevin Weeks suggesting the failure to do so is another benefit to Murderman.
They want all of the correspondence from Robert Mueller the FBI director concerning the people mentioned; they want the memo O’Sullivan sent to the DOJ that contradicts O’Sullivan’s testimony and copies of DEA tapes taken from an electronic bug in Whitey’s automobile.
They want information relative to the compromise of Operation Beans. Former AUSA Crossen testified this was compromised as did former AUSA Jonathan Chiel at the Connolly trial.
All these requests are material to the defense position that Whitey had immunity. The defense intends to show the jury the many times that information came into the US Attorney’s hand in Boston that should have kicked off an investigation of Whitey but nothing came of it. It will argue that the only explanation for this is that Whitey had a pass from the highest levels in the Justice Department.
Defense counsel is also asking why the government didn’t prosecute the women who may have been involved in harboring John Martorano like they did to Catherine Greig. Is this another promise that was given to Murderman to get his testimony?
I could go on, and will refer to it again in individual posts. I wrote in June that it could take years to sort this out. The prosecution has yet to respond to defense counsel’s November 2 request.
A three-month delay in the trial given all the open issues fails to consider the time to really explore what went on between the prosecution team and its witnesses. All discovery will be complete by the end of April, defense counsel has one month to follow-up on it (although it should be doing much of that now). It may seem tight but it will have to be done, Judge Stearns seems determined to hold fast to that date.