There’s a report in the Boston Globe today that the prosecution team will disclose the evidence they have turned over to defense counsel at a status conference scheduled today. It notes “a judge is also expected to set deadlines for motions to be filed leading up to Bulger’s trial in March.”
One thing we’re waiting for is to see the content of J.W. Carney’s motion where he’s claiming Bulger had immunity to murder people. I’ve mentioned before this is really intended for two purposes: a/ pressure the FBI to pressure the US Attorney to give Whitey a deal; and b/ delay.
The issue of Whitey’s immunity has already been decided by the Appeals Court that said: “Accordingly, we hold that FBI agents lack authority to tender a binding promise of use immunity to an informant. Absent that authority, any promise made to Flemmi was unenforceable.”
Given that ruling by the First Circuit Court of Appeals, there seems to be a substantial likelihood that Judge Stearns could quickly dispense with the immunity motion without a hearing. But assuming he lets it pass and allows it to become an issue at trial. (I say this with the belief that he won’t and there will be no trial.) How then does Whitey and his lawyer handle this? Will they fall back to a modified version of the desperate rape defense? Here’s how that works.
A male defendant against who exists strong evidence that he raped a woman who was a stranger when unable to wiggle his way out of it by making a plea deal and who is left facing heavy time usually will go to trial using a three prong defense. First, he attacks the woman’s credibility saying that she was making up the whole story and she was never penetrated by anyone in the first place. That sometimes worked but it was often rejected by jurors who recognized that most women, probably well over 99%, don’t say they were raped unless something happened.
He then tells the jury that if it believes the woman was raped then he was not the one who did it. He’ll come up with some alibi of sorts or try to show the woman’s ability to properly identify him is impaired by one thing or another. Not content to leave it there, he jumps to the third part.
He’ll suggest that if the jury finds she was penetrated by him then she consented to it. It’s the last thin thread he has to hang on to — I met this woman in a wooded area jogging along a path and she decided to have sex with me. Desparate men will offer desperate explanations at the same time hoping one will stick — “it never happen, it did happen but it wasn’t me. it was me but she consented to it.”
That’s pretty much what Whitey is now saying except for the first part. He’ll be hard pressed to deny the people he is charged with murdering weren’t murdered. He’ has to accept they were murdered but will defend himself saying he had nothing to do with the murders. He then has to argue to the jury that if it finds he was involved in the murders, then he had the right to do it since he had immunity.
I don’t see it working. No jury in America will acquit him of the murders of the two young women. But like the rape defendant who is caught cold, if Whitey can’t get a deal he likes by threatening to hold the FBI up to high embarrassment then he’ll have to go to trial.